How can legal interpretation change the legal order into legal disorder? (Lessons from the Czech Republic)

Abstract

An opinion long prevailed in the Czech Republic that a judge is bound, in his decision-making, only by statutory law and by international treaties which, according to the Constitution of the Czech Republic, have priority over statutory law. The fact that a judge is bound by statutory law was mostly understood in that the judge is bound by the “word of the statutes”. A judge thus could not be formally bound by someone else’s interpretation of the statutes, i.e. by case law. However, both these basic assumptions began to change radically in the Czech Republic, especially following the adoption of the new Civil Code in 2012. This article therefore aims to present the transformations in the binding effect of case law in the Czech Republic at the beginning of the 21st century and, in doing so, it will concentrate on the yet insufficiently examined question of limits to judicial law-making in the sense of constructive interpretation of statutory law by courts. When a judge applies the law, and thus necessarily also interprets it, he must ask two fundamental questions: (i) Whether he/she is bound by interpretation of the statutory law which has already been provided by someone else, and the judge is thus obliged to adhere to this line of interpretation. (ii) How should he/she proceed in the interpretation, which comprises the question of what methods of interpretation he/she should use, in what order and what significance should be attached to these methods? The ambition of this article is to show why a “discursive” or “conditional binding effect of case law”, on the one hand, and a judge’s competence to interpret the law, on the other hand, can lead to fragmentation of the Czech legal order and contribute to transformation of the law from an order to a disorder, and how these unfavourable tendencies can be eliminated, or at least mitigated.