9 - Showing by Fiction: Audience of Extra-legal References in Judicial Decisions

Summary

1. INTRODUCTION

It is often argued that law – and judicial decisions – are not primarily addressed to the laypeople whose life they regulate but to other legal actors: bodies of the state, courts – in short, lawyers (Stevenson 2005: 108, 112; Kelsen 1945: 61; Smejkalová and Škop 2017). To be fully capable of using all that law has to offer, one has to acquire knowledge that is predominantly sign-based. Legal education is understood as a matter of learning to fully participate in legal discourse (language acquisition and interpreting legal signs) (Garret 2010: 62–3; Chen 1995). The discourse of judicial decisions (or more precisely the discourse of rationales of judicial decisions) is a matter of legal rules as well as formalised convention. While some of its content is prescribed by black-letter law, some – especially the argumentative parts – are a matter of convention, or fashion/custom.

Judicial decisions play a specifi c normative role even in traditional civil law systems, such as that of the Czech Republic. For this reason, many civil law scholars have shifted their attention to study this normative role and analyse various elements that contribute to it (for example, MacCormick and Summers 1997). Some of the elements which are being addressed are the references to various sources the judge uses to make his or her decision, such as laws, other judicial decisions, doctrinal legal writing or even extra-legal writing.

The legal system of the Czech Republic has a strong tradition of legal formalism stemming from the legal positivism of Kelsen and Weyr, which is in many ways still tied to the years of the communist regime the country endured. The socialist legal systems were built on the supremacy of a parliamentary ‘statute’ and its judicial decision-making was very formalistic (David and Brierley 1978; Lasser 1994–5; 1997–8). Since the Velvet Revolution, a shift in the legal culture has been taking place. The Czech apex courts, including the new Constitutional Court, have adopted and focused on complex ways to justify decisions in hard cases. Among these, there started to be made references to doctrinal writing and, on rather rare occasions, even to extra-legal writing: literary works, such as novels or plays.