Citation:

ONDŘEJEK, Pavel (ed.): Judicial Law-Making and Judicial Interpretation in Central European Countries: How Can Courts Strengthen or Weaken the Unity of Law? Prague, Warsaw, Bratislava, Budapest: Wolters Kluwer, 2021, 228 p.Review:

Prof. dr hab. Monika Florczak-Wątor (Professor at the Constitutional Law Department, Head of the Centre for Interdisciplinary Constitutional Studies, Director of the Interdisciplinary Doctoral Program “Society of the Future”, Jagiellonian University in Krakow)

Doc. Mgr. Marek Káčer, Ph.D. (Head of the Department of Legal Theory and Constitutional Law, Faculty of Law, Trnava University)

This book was written within the framework of the project entitled “What unifies current law and what fragmentises it from the perspective of legal theory and judicial practice?” supported by the Czech Science Foundation [Grantová agentura České republiky] under reg. number 19-10723S.

© Martin Abel, Karel Beran, Alexander Bröstl, Tomáš Gábriš, Fruzsina Gárdos-Orosz, Zdeněk Kühn, Pavel Ondřejek, Lisa Sonnleitner, Jan Tryzna, Katarzyna Žák Krzyžanková, 2021

ISBN 978-80-7676-183-4 (print, Czech Republic)

ISBN 978-80-7676-184-1 (e-pub, Czech Republic)

ISBN 978-80-7676-185-8 (mobi, Czech Republic)

ISBN 978-83-8246-990-5 (print, Poland)

ISBN 978-83-8246-991-2 (e-pub, Poland)

ISBN 978-83-8246-992-9 (mobi, Poland)

ISBN 978-80-571-0412-4 (print, Slovakia)

ISBN 978-80-571-0413-1 (e-pub, Slovakia)

ISBN 978-963-594-006-6 (print, Hungary)

ISBN 978-963-594-007-3 (e-pub, Hungary)

Obsah

Acknowledgements

About the contributors

Introduction: Unity of law achieved through judicial reasoning

Pavel Ondřejek*

1 The changing role of courts in Central Europe

2 Structure of the book and overview of individual chapters

2.1 Theoretical and doctrinal foundations of judicial law-making in Central European countries

2.2 Pro-systemic and anti-systemic effects of judge made-law and judicial interpretation

Part I

Theoretical and doctrinal foundations of judicial law-making in Central European countries

Ekklesia and Dikasterion—which body is considered to be kyrion panton? (Is it the right question to be asked?) Recent dimensions of an old problem

Alexander Bröstl*

1 Introduction / Εισαγωγη

2 On the Relationship Between εκκλησια and δικαστηριον in the Athenian Democracy

3 Strengthening the Judicial Power: The Birth of the Constitutional Review in the United States of America (Marbury v. Madison)

4 Who Should Be the Guard of the Constitution?

5 The Sword of Damocles Hanging Over Constitutional Amendments

Legal decision-making in the view of cognitive sciences: Between systematic and casuistic approaches to law

Tomáš Gábriš

1 Introduction

2 Systematic versus Casuistic Approach to Law: On the Benefits of Legal Casuistry

2.1 Problems with the Systematic Approach to Law

2.2 Casuistic Jurisprudence

2.3 On the Use of Casuistry in Post-Positivist Legal Thought

3 Cognitive Science and Legal Problem-Solving

3.1 Judgment and Decision-Making from a Traditional View of Philosophy and Psychology

3.2 Judgment and Decision-Making in View of Cognitive Sciences

3.3 Implications for Legal Thinking (Judgment and Decision-Making of Lawyers)

4 Conclusions

Beyond the coherence of legal rules

Martin Abel*

1 The context of interpretation

2 Beyond discovering

3 The pretence of deduction

4 The place of induction

Sources of law and settled administrative practice

Zdeněk Kühn*

1 Position of established (settled) administrative practices within the dogmatics of sources of law

2 Case law of the Constitutional Court

3 Case law of the Supreme Administrative Court

Part II

Pro-systemic and anti-systemic effects of judge made-law and judicial interpretation

Judicial interpretation as a competence

Karel Beran*

1 Introduction

2 What is interpretation of the law and in what ways it differs from interpretation in general?

3 Interpretation as part of the process of application of the law

4 What competences are required for interpreting the law?

5 Conclusion

How the legislator and jurisprudence can increase the pro-systemic nature of judicial interpretation and application of the law?

Katarzyna Žák Krzyžanková*

1 Introduction

2 On the legislator’s options to influence the pro-systemic nature of judicial decision-making

3 On the ability of jurisprudence to influence the pro-systemic nature of judicial decision-making

4 Conclusion

Maximalism and minimalism in judicial decision-making: How can courts strengthen or weaken the unity of a legal system?

Pavel Ondřejek*

1 Introduction

2 Minimalism and maximalism in judicial decision-making

3 Integrity in law and Janus model of the effects of case law

4 Pro- and anti-systemic characteristics of a judicial decision in terms of width and depth of arguments

4.1 Pro-systemic minimalism

4.2 Pro-systemic maximalism

4.3 Anti-systemic minimalism

4.4 Anti-systemic maximalism

5 Summary

(Trans)Forming the applicable norm by the German type constitutional complaint—The case of Hungary

Fruzsina Gárdos-OroszIn memoriam András Bragyova

1 Introduction—the problem of judicial law making

2 The norm, the court and the German type constitutional complaint in Hungary

3 Finding and revising the norm created by the ordinary judiciary—the spotlight of the constitutional complaint procedure

4 The Fundamental Law and the Constitutional Court case law in ordinary jurisprudence

4.1 Further thoughts on the constitutional change

4.2 References to CC decisions

5 The result: examples where the norm created by the ordinary court was changed by the Constitutional Court by constitutional complaint review procedure

6 Conclusions

Legitimacy of retrospective effects in judicial decision-making process

Jan Tryzna

1 Introduction

2 Significance of judicial decision-making for legal order

3 Retroactive/retrospective judicial decision making

4 Reasons for retrospective judicial decision making

5 Prospective effect of judicial decisions

6 Conclusion

Evolutive vs. static interpretation: Unity or fragmentation in the intertemporal interpretation of the European Convention on Human Rights?

Lisa Sonnleitner

1 Introduction

2 The European Convention on Human Rights as a “Living Instrument”

2.1 A History of Evolutive Interpretation of the ECHR

2.2 The Brighton Process as an Obstacle to Evolutive Interpretation?

2.3 Unity versus Fragmentation in the Intertemporal Interpretation of the ECHR

3 Static and Evolutive Interpretation and the ECHR Constitution

3.1 The Constitutional Triangle of the ECHR

3.2 The Roots of Static and Evolutive Interpretation in the Constitutional Triangle

4 Evolutive and Static Interpretation in Balance

4.1 The Constitutional Values of the ECHR as Principles

4.2 Resolving the Conflict Between Static and Evolutive Interpretation: Cornerstones of a Balancing Model

5 Conclusions

Summary

Bibliography

List of case law

Acknowledgements

This volume is the outcome of a three-year grant project of the Czech Science Foundation titled “What unifies current law and what fragmentises it from the perspective of legal theory and judicial practice?” (reg. No. 19-10723S). The project’s main objective has been to describe the doctrinal conceptions and the role played by courts in unifying the currently differentiated, or even fragmented law. I would therefore like to thank, first of all, the Czech Science Foundation for its financial support.

In July 2019, members of the research team organised a workshop within the 29th World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) in Luzern, Switzerland, where they presented papers that eventually became a basis of this volume. The workshop’s ultimate ambition was to discuss the trends and forms of judicial law-making in the countries of Central Europe, and thus contribute to resolving the following topical issues: what role is assumed by courts in democratic states governed by the rule of law, and what should their decision-making be like to improve the general coherence of law, rather than contributing to its fragmentation.

My many thanks therefore go to the organisers of the IVR World Congress for preparing such an excellent environment for scientific work and exchange of ideas. Primarily, however, I would like to thank the workshop participants, as this book would certainly not have seen the light of day without them. That being said, I owe my thanks not only to the active participants who contributed to this book in spite of the extraordinary circumstances caused by the Covid-19 pandemic (Prof. Karel Beran, Prof. Alexander Bröstl, Prof. Tomáš Gábriš, Assoc. Prof. Fruzsina Gárdos-Orosz, Dr. Martin Abel, Dr. iur. Lisa Sonnleitner, Assoc. Prof. Jan Tryzna and Dr. Katarzyna Žák Krzyžanková), but also to other participants from various countries and legal cultures who helped the authors refine their work by engaging in the debates following the individual presentations. I would also like to thank the research team working on the grant project (Prof. Karel Beran, Prof. Zdeněk Kühn, Dr. Katarzyna Žák Krzyžanková, Dr. Ondřej Kadlec, Dr. Viktor Gazda and Dr. Martin Abel) for the fruitful discussions we had on the topics at hand—these were a great help in finalising the book. I am grateful to Prof. Aleš Gerloch, the head of the Department of Legal Theory and Legal Doctrines at the Charles University Faculty of Law, for his support to my work on the book, and my thanks also go to Prof. Michal Tomášek, Vice-Dean for Research and Publication Activities of the Faculty of Law at Charles University.

Finally, I would like to thank the translators at Prague’s Orange Tree Translations for their assistance in translating and proofreading the individual parts of this volume as well as Mrs. Karolina Drachovská who assisted with finalisation of the index of this volume. Last but not least, my thanks go to the Wolters Kluwer publishing house and its editorial team for their dutiful work in preparing the manuscript. In this respect, Mgr. Iva Rolečková, the Editor-in-Chief of the Wolters Kluwer Czech Republic, deserves special appreciation.

Pavel Ondřejek

Editor

About the contributors

Martin Abel is a PhD candidate at the Faculty of Law, Charles University in Prague, Czech Republic. He received his Master’s degree from Prague (2018) and Oxford (2019). He regularly publishes about legal theory and constitutional law in Czech Law reviews. He published an acclaimed book in Czech language entitled Meze základních práv v České republice [On the Limits of Fundamental Rights in the Czech Republic] (Prague, 2018). His current PhD research is concerned with the ways human rights inform constitutional rights.

Karel Beran is a Full Professor of Theory, Philosophy and Sociology of Law at the Faculty of Law, Charles University in Prague, Czech Republic. As a visiting researcher, he worked and studied at universities in Europe, the USA, and Australia. He completed a long-term study visit at the University of Michigan Law School, Ann Arbor (USA), supported by Fulbright-Masaryk scholarship programme in the academic year 2016/2017, a two-semester scholarship stay at Rechtswissenschaftliche Fakultät Universität Salzburg (Austria) within his doctoral studies in 2002/2003, and medium-term study visits at Freie Universität Berlin, Fachbereich Rechtswissenschaft (Germany) in 2012, at Griffith Law School in Brisbane (Australia) in 2007 and at Cardiff Law School (UK) in 2006. Karel Beran has long been interested in the status of persons in law, especially that of juristic persons. In this regard, his work focuses on issues related to legal personhood and legal capacity, theory of juristic persons, juridical acts and corporate liability. He has authored the English monograph The Concept of Juristic Person (Prague, Warsaw, Bratislava and Budapest: Wolters Kluwer, 2020) and a further two monographs in the Czech language, and has co-authored six monographs (of which two abroad and one in a foreign language) and has written over 70 scholarly articles and papers published in the Czech Republic and abroad.

Alexander Bröstl graduated from the Faculty of Law at Šafárik University in Košice (1976), received his Dr. jur. degree at Comenius University in Bratislava (1977), his CSc. (1984) at the Institute of State and Law of the Slovak Academy of Sciences in Bratislava. He studied Chinese and Chinese Law at Fudan University in Shanghai (1987–1989). As a DAAD scholar he spent one semester 1990/1991 at the Institut für Allgemeine Staatslehre und Rechtsphilosophie at the Friedrich Alexander University in Erlangen-Nuremberg (Prof. Dr. Reinhold Zippelius). He was elected the Dean of the Faculty of Law in Košice (1994–1997). One year (1998) he worked as a visiting scholar at the Max Planck Institut für ausländisches öffentliches Recht und Völkerrecht in Heidelberg (Prof. Dr. Jochen A. Frowein), another short stay in 2001. In 1999–2008 he acted as the Head of the Chair of Constitutional Law at the Faculty of Law in Trnava, He has served as a Judge of the Constitutional Court of the Slovak Republic (2000–2007), and advisor at the same Court 1994–1999, and 2007–2019. Vice-President of the Šafárik University for Foreign Relations and Legislative (2007–2011). Appointed as full professor of Theory of State and Law in 2002. He is President of the Slovak IVR Section (1996), and he was a member of the IVR Executive Committee (1999–2011). He was the Slovak member at the Committee of Experts on the European Charter for Regional and Minority Languages in Strasbourg (2001–2019), member of the International Commission of Jurists in Geneva (2001–2013), He was member of the Editorial board of ARSP (1999–2011), he is still in this position in Ratio Juris, in the Slovenian Law Review, The Lawyer Quarterly, Studia Lubliniensia, Právny obzor. Since 2019 he is also a member of the Heidelberger Gesellschaft für ausländisches öffentliches Recht und Völkerrecht. Recently he is Director of the Gustav Radbruch Institute of Legal Theory at the Faculty of Law, Šafárik University in Košice.

Tomáš Gábriš graduated in law and history from the Comenius University in Bratislava and in philosophy and cognitive studies from the Trnava University in Trnava (Slovak Republic). He also completed further studies at the Central European University in Budapest, Hungary and at the Tilburg University in the Netherlands. From 2004 to 2018 he worked at the Department of Legal History and Comparative Law and in 2018–2019, he was the Head of the Department of Theory of Law and Social Sciences at the Faculty of Law, Comenius University in Bratislava. He currently works as a researcher at the Institute of State and Law of the Slovak Academy of Sciences in Bratislava, and as a Full Professor of History and Theory of State and Law at the Trnava University in Trnava, Faculty of Law. He was a member of the Recodification Commission of the Ministry of Justice of the Slovak Republic for Civil Procedural Law, and also a member of the Commission for the Recodification of Private Law. He is currently a member of the Legislative Council of the Government of the Slovak Republic. In his research and publications, he focuses on the theory and history of law, philosophy of law and legal methodology. His latest book is the monograph Preskriptívna teória práva: Metodológia aplikácie práva pre súčasnosť [Prescriptive Theory of Law: Methodology of Application of Law for the Present Days] (Bratislava, 2020).

Fruzsina Gárdos-Orosz is a senior research fellow and director of the Institute for Legal Studies, Centre for Social Sciences and also Associate Professor in constitutional law at the ELTE Law School, Budapest. She worked at the Hungarian Constitutional Court between 2003–2007 and 2010–2013 as law clerk in different positions. Fruzsina graduated in law at the ELTE University (Budapest, Hungary), and holds an LLM degree from Central European University in comparative constitutional law. In 2011, she earned her Ph.D on the possible scope and the methodology of the application of fundamental rights in private relations. She completed her habilitation in 2020 at ELTE Law School. She published extensively on the rule of law and separation of powers with regard to judicial review and the protection of human rights. She published one monograph, book chapters and several articles in these topics mainly in Hungarian and English, but also in Slovak and Russian in translation. She is chief editor of the double-blind peer-reviewed Hungarian language law journal Állam- és Jogtudomány and editor of the indexed journal of the Hungarian Academy of Sciences, the Hungarian Journal of Legal Studies-Acta Juridica Hungarica.

Zdeněk Kühn graduated from the Faculty of Law at Charles University in Prague (1997) and received the degrees of JUDr. in 2000 and PhD in 2001. In 2006, he became an Associate Professor of Theory, Philosophy and Sociology of Law, and has gained a full professorship in 2018. He also completed studies at the University of Michigan Law School, obtaining the degrees of LL.M. in 2002 and S.J.D. in 2006. Since 2008, he has served as a judge of the Supreme Administrative Court in Brno. Zdeněk Kühn also lectures at multiple US law schools (Cornell University, University of South Carolina, University of San Francisco, Nova Southeastern University in Ft. Lauderdale etc.) and in Croatia. He hosts educational courses for judges in Slovakia, Croatia, Bulgaria, Romania, Poland, and other countries. As a scholar, he specialises in the area of interpretation of law and comparative public law. He has authored or co-authored a number of monographs and commentaries, and over 100 scholarly articles and papers published in the Czech Republic. Zdeněk Kühn has also published an English monograph entitled The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? (Martinus Nijhoff, Brill 2011) and dozens of scholarly papers in English, Chinese, Arabic, and Russian.

Pavel Ondřejek is an Associate Professor of Theory, Philosophy and Sociology of Law at the Faculty of Law, Charles University in Prague, Czech Republic. Along with his doctoral studies at the Faculty of Law, Charles University in Prague, he has completed a long-term study visit at the Faculty of Law of the University of Antwerp (International and European Legal Studies Programme) and short-term and research stays at the European University Institute (Fiesole), Central European University (Budapest) and Max Planck Institute for Comparative Public Law and International Law (Heidelberg). He is the author of two Czech monographs: Princip proporcionality a jeho role při interpretaci základních práv a svobod [The Principle of Proportionality and its Role in Interpretation of the Fundamental Rights and Freedoms] (Leges, 2012), and Koncepce práva jako systému [The Conception of Law as a System] (Wolters Kluwer, 2020). In his work, he focuses primarily on various aspects of the theory of fundamental rights, the systemic approach to the law, transformations of public law over time, and application of the principle of proportionality. His work was featured in premiere law journals home and abroad, including European Constitutional Law Review, European Public Law and Espaço Jurídico Journal of Law.

Lisa Sonnleitner received her doctoral degree from the Faculty of Law at the University of Graz (2020) where she worked as a lecturer at the Graz Jurisprudence research group. She completed a short-term research stay at University College London in 2019. She received the Award of Excellence for outstanding Austrian PhD theses in 2020. She researches and publishes on the temporal aspect of interpretation in constitutional and international human rights law. She is the author of the monograph A constitutionalist approach to the European Convention on Human Rights: the legitimacy of evolutive and static interpretation (Hart Publishing, 2022).

Jan Tryzna graduated from the Faculty of Law of Charles University in Prague (2002). He also earned his PhD at the same school in the field of theoretical jurisprudence (2007). In 2020, he was appointed Associate Professor in the field of Theory, Philosophy and Sociology of Law. He currently works at the Department of Legal Theory and Legal Doctrines of the Faculty of Law, Charles University, and also at the Department of Public Law of the Police Academy of the Czech Republic. He focuses especially on the theory of legal interpretation, legal reasoning, and recently also effects of the law over time. He has published a number of professional papers on these topics. He is the author of the monograph Právní principy a právní argumentace – K vlivu právních principů na právní argumentaci při aplikaci práva [Legal Principles and Legal Reasoning—On the Effect of Legal Principles on Legal Reasoning in Application of the Law] (Prague, 2010). He has completed a study visit at the Faculty of Law, the University of Passau, and has also taken part in a number of international conferences dealing with various fields of law. Along with teaching and science, he also runs a legal practice; since 2006, he has been an attorney-at-law specialising in various areas of private and public law, with emphasis on protection of human rights. He holds several awards granted by Charles University and the Czech Bar Association.

Katarzyna Žák Krzyžanková is a senior lecturer at the Department of Legal Theory and Legal Doctrines, Faculty of Law, Charles University in Prague. She has also elaborated her knowledge of jurisprudence at the Faculty of Law of Jagiellonian University in Krakow and at Kent Law School, University of Kent in Canterbury. She has completed several short-term study and research visits (including at the European University Institute). She is the author of a Czech-language monograph titled Právní interpretace – mezi vysvětlováním a rozuměním [Legal Interpretation—Between Explanation and Understanding] (Wolters Kluwer Czech Republic, 2019), and has co-authored the textbook Praktikum teorie práva [Practical Guide to the Legal Theory] (Aleš Čeněk, 2017). She has also written more than twenty articles dealing especially with legal interpretation and argumentation, selected aspects of human rights and, recently, various forms of legal reasoning, where she combines Logic and Law. She is also a co-editor of four reviewed conference proceedings. Along with her academic activities, she is an attorney-at-law.

Introduction: Unity of law achieved through judicial reasoning

Pavel Ondřejek*

1 The changing role of courts in Central Europe

No later than at the end of the 19th century, jurisprudence in the countries of civil (continental) law began to abandon the cognitivist view of courts as mere “subsumption machines”. In “hard cases”, judicial interpretation of law is thus also conceived as its formation (complementing the body of law). This view of the judicial branch is by no means new; in the early 20th century, Ernst Rabel already described the legal system as a skeleton formed by statutes, muscles provided by case law and nerves represented by doctrine.[1]

Although the law was already complemented by the judiciary in the past, what has become apparent over the past few decades is the increasing significance of courts as institutions, at the expense of other branches of government. The courts’ decisions, now more often than ever before, go against the very wording of the law. This approach is based on arguments relying on legal principles, values or purposes. Settled case law has a quasi-precedential effect—this means that the courts not only base their decision-making on statutory law, but must also reflect other court decisions. Furthermore, especially supreme courts tend to formulate general principles, which are then applied to more or less similar cases in the future.

Such a manner of decision-making, however, gives rise to some issues: Excessively broad dicta can lead to unwanted consequences and unpredictable impacts in future cases. Arguments contra verba legis raise the issue of recognising the actual purpose of the law, and also a more general question of the relationship between the judicial branch and the democratic legislature. On the other hand, it can be argued that, using applied principles and values, the courts can improve the coherence of law, which is otherwise fragmented and characterised by a great many regulations which are frequently amended, and the courts thus counter the postmodern “deconstruction of law”. These are just a few of the many examples described by the authors of the individual chapters in this volume where the courts’ decisions can unify the law or, on the other hand, weaken its unity.

This book aims to reflect on the changing role of courts in Central Europe. More than thirty years after some of the Central European countries transited to democracy, questions arise as to how the position of courts and their decision-making have changed,[2] and what is their relationship to other governmental authorities,[3] as well as bodies of international organisations and institutions.[4] Considerable attention is paid to the institution of constitutional review and the related development of constitutional justice.[5]

From among the many problems associated with the position of courts in contemporary states, the volume focuses on a single one: how can the courts’ decision-making reinforce the overall coherence of law, rather than contribute to its fragmentation? The problem then breaks down into several questions, for example: What role can be played by the manner of use of interpretation methods in terms of strengthening or weakening the law as a system? Is it legitimate for the courts to formulate, in their decisions, general principles and rules which have a potential to impact a very broad circle of future cases? What weight should the court attach to the purpose of a legal regulation if it goes against its very wording? What is the role of courts in strengthening the unity of law in relation to the other branches of government, and to international bodies and institutions? Each of the ten contributions comprised in the book touches on at least one of the above questions. As common for similarly complex problems, the individual authors approach them from various angles.

The starting point for examination is the concept of the unity of law, which itself is ambiguous and can be perceived in many ways. In terms of the systems theory of law, the unity of law illustrates the enclosed nature of the law as a social subsystem, distinguished from other social subsystems (such as economics, politics, media, science, etc.). German sociologist and lawyer Niklas Luhmann, known as the founder of the systems theory of law, perceived the dynamics of the legal system in its interaction with the environment. At the same time, he described the evolution of the individual social subsystems (including the law) resulting from a growing complexity of society. It is the task of each of the social subsystems to reduce this complexity of the outer world through its own actions (first through self-observation and then by reducing the potential questions and issues using specific codes and programmes). This is also true of the law as—by reducing complexity through the adoption of its own rules—it contributes to the main function: stabilising the normative expectation, i.e. the expectation that people will behave in a certain way and, if this does not happen, that a sanction will be imposed by public authority.[6]

However, the unity of law can also be conceived analytically, as the coherence of law comprising two levels—first, a logical coherence in the sense of avoiding logical contradictions among the duties following for the addressees of the law from the legal norms, and second, a value coherence, expressed through a consistently interpreted background of the law, which is formed by the foundation of legal principles and values.[7] In a similar sense, Czech legal theorist Tomáš Sobek distinguishes between a coherence of terminology and classification, on the one hand, and a coherence of principles and teleology, on the other hand. While in terms of terminology and classification, the focus is on a consistent use of concepts and good arrangement of the legal system, the principles and teleology imply that the functions and purposes of the individual legal norms are mutually linked and form larger functional units.[8]

While there are numerous approaches to the coherence and unity of law,[9] in practice, the latter phenomenon is traditionally associated with a systemic approach to law-making, especially with the idea of codification, but also with interpretation and application approaches. The activities of the judiciary are usually linked with interpretation and application of the law, and possibly its complementing; this book also deals specifically with judicial law-making in countries of the civil (continental) legal culture.[10] Many of its chapters refer to the emerging institutionalisation of judicial law-making, both through the activities of the courts themselves and in the legal doctrine, and even reflected by the legislature.

2 Structure of the book and overview of individual chapters

The volume approaches the topic of judicial interpretation and law-making from se-veral angles. Despite some variety in the topics and opinions presented in the individual chapters, the contributions also show a number of interrelated considerations. This is true primarily of the argument that in civil-law jurisdictions, courts must be able to make their decisions even if there is no clear rule to guide them, a rule laid down a priori by the legislator. In this situation, the courts cannot simply apply the law, but must rather make it. Given the ever stronger concept that similar cases should be decided similarly, such court decisions—especially where the courts are consistent in their decision-making—can be likened to classical sources of law.

Even though the approaches taken by the individual authors share a number of common ideas, the volume is nevertheless divided into two distinct parts. The first part focuses on the theoretical and doctrinal foundations of judicial law-making in Central European countries. The authors deal with topics touching on the relationship among the judicial branch, the constitution and statutory law; legal casuistry, as opposed to a systemic approach based on the idea of codified law; judge’s decision-making in a situation where there is no a priori regulation; and the role of settled practice in terms of the traditional doctrine on the sources of law in civil-law legal systems. The second part then focuses on pro-systemic and anti-systemic effects of judge-made law and judicial interpretation. Along with general contributions approaching interpretation as a competence and dealing with the criteria of pro-systemic interpretation of law, this part also tackles the issues of maximalism and minimalism in judicial decision-making; judicial law-making with regard to constitutional complaints; coherence of law in connection with retrospective effects of case law; and finally, the legitimacy of evolutive interpretation in the light of the principles of human rights protection developed by the European Court of Human Rights.

2.1 Theoretical and doctrinal foundations of judicial law-making in Central European countries

The introductory chapter written by Alexander Bröstl, titled “Ekklesia and Dikasterion—which body is considered to be kyrion panton? (Is it the right question to be asked?) Recent dimensions of an old problem” presents a philosophical and political view of the judiciary’s position. The contribution is based on parallels among the historical foundations of Athenian democracy, American constitutionalism, and debates of the pre-war theorists in Weimar Germany as to who should be the guardian of the constitution, and ends with highly topical questions of the legitimacy of constitutional review. The basic question asked by the author is the following: “Which body is in the position of the most ‘powerful and significant authority’ in a democratic polis governed by nomoi, if not the ekklesia / Assembly?” In the introduction to the chapter, the author presents the concept of Athenian democracy grafe paranomon, where every citizen was able to challenge a law adopted by the assembly in contradiction with a previously enacted law. Such a complaint was presented to a jury (dikasterion) in a process similar to what we now refer to as judicial review. In practice, however, a mere announcement of a potential complaint often led to postponement of voting on the given legislative act. It can thus be postulated that the possibility of reviewing legislative acts improved the coherence of the legal order, at least by making it possible to eliminate laws and decrees that contradicted existing valid law. In conclusion, the author turned his attention to current issues, especially the constitutional review. He derives the legitimacy of this procedure from two arguments: How can we prevent constitutional authorities from failing if not by reviewing the results of their work? Which body could be better equipped to review constitutionality than the constitutional court?

Although the second chapter written by Tomáš Gábriš, with the title “Legal decision-making in the view of cognitive sciences: between systematic and casuistic approaches to law”, reflects on the role of courts in ensuring coherence of law from the historical perspective, just as in Alexander Bröstl’s introductory chapter, the author concludes with a view of the contemporary judicial decision-making. The main author’s theses are based on differentiation of the systematic and casuistic approaches to law. The systematic approach is based on the codification tendencies of the 19th century, while the casuistic approach is oriented towards finding a fair solution to individual cases; the combination of the two approaches then represents a principlist approach. Mid-twentieth century marked an increased interest in the rhetorical, topical and argumentative approaches to law, denoted by the author as legal casuistry. The roots of the casuistic approach can already be found in ancient Roman jurisprudence or in early modern moral theology. The author perceives issues of the current interconnection of the systematic and casuistic approaches primarily in the risk of uncertainty in application of law in cases where such application is oriented mainly towards individual justice. However, this uncertainty can be alleviated by modern theories of cognitive sciences, which explain decision-making processes as multi-dimensional processes that include memory, learning, experience and feedback. As shown by the research on which the author relies, emotions also have effect on the final decisions in some cases. The solution to hard cases thus cannot be found solely in the abstract world of rules, as one can never leave aside the mental processes of decision-makers. The systemic nature of the law is thus, inter alia, a manifestation of the capacity for judgement and decision-making on the part of official authorities, which have to try and find a just solution to any individual case, without however deviating from the boundaries of the law.

In the third chapter named “Beyond coherence of legal rules”, Martin Abel analyses the concept of coherence of law, which he conceives more broadly than just a coherence of the system of legal rules (among which he ranks legal norms, legal principles and values). The main topic of this chapter is the position of courts in decision-making on cases that are not foreseen in statutes and other legal regulations. In this regard, the author presents a dual approach to the context of the legal system. The narrower approach works with the context of other applicable legal rules in the legal system. This approach corresponds to the conventional conception of systematic interpretation and the author denotes it as a “Simple View”. He believes that a broader approach to the context (which he denotes, for the sake of differentiation, as “con-text”) means a “certain utterance (normative or not) and purposes behind their expression. If the purposes happen to be value-laden, these values form part of the ‘con-text’.” In this respect, the author refers to a similar conception devised by Claus-Wilhelm Canaris with regard to the inner system of the law. In the final part, the author criticises the artificially extended conception of interpretating the law, especially in Central Europe. According to the author, in hard cases, a judge in the civil-law legal culture “is asked to at least preserve the appearance of deduction from the legal order”. In reality, in a situation where no rule applies to the given case, the judge must come up with a suitable solution. Based on the theories of H.L.A. Hart and Alf Ross, the author describes the criteria based on which judges should prefer formal equality or, to the contrary, the value of justice. If a judge cannot clearly identify a rule applicable to the given case, he or she must take into consideration the whole context of the case, the facts of the case and the cases that relate to it.

Chapter four of the first part, entitled “Sources of law and settled administrative practice” and written by Zdeněk Kühn, focuses on the system of law based on a more general question of the changing structure of sources of law in countries belonging to the civil-law legal culture. The chapter outlines the basic differences between historical and contemporary sources of law, while emphasising the importance of statutory law, and especially modern codices, for contemporary civil (continental) law. Although the emphasis on written law in the form of legislation is quite natural, the author also notes that the significance of subsidiary sources of law has been somewhat neglected so far. These may include, in particular, private-law traditions (usages), constitutional conventions and customs, case law and, last but not least, settled practice of administrative authorities. Such subsidiary sources co-exist with written law and are dependent on it, but also complement and sometimes even modify written law. This is so because the meaning of written sources tends to be determined by those who interpret them, rather than by their actual wording. This settled practice has also been reflected by the legislator; the author refers to the Czech codices of the early 21st century as an example. Pursuant to Section 13 of the new Czech Civil Code (Act No. 89/2012 Coll.) “anyone seeking legal protection may reasonably expect that his legal case will be decided similarly to another legal case that has already been decided and that coincides with his legal case in essential aspects.” The main objective of the author’s contribution is to generally reflect on the role of the settled practice of administrative authorities in terms of how it is created, what effects it has and what role it plays in the legal system. At the same time, the author raises many questions related to the evolving case law on the effects of settled practice in the law, including for example, the question of prospective and retrospective effects of this practice, and the question of distinguishing settled decisions from cases that deviate from the settled practice. Answers to these questions will undoubtedly contribute to a more coherent approach to the legal order.

2.2 Pro-systemic and anti-systemic effects of judge made-law and judicial interpretation

The second part of the volume deals with judicial interpretation of law, which significantly influences its systemic nature. Several contributions in this part indicate that the courts can reinforce the unity of law through its interpretation, e.g. if the courts’ procedure is predictable and based on a recognised methodology of interpretation, or in contrast, they can weaken its unity, such as when their interpretation practices are surprising, if they formulate their conclusions too broadly or if they interfere with the legitimate expectations of the parties.

The fifth chapter, entitled “Judicial interpretation as a competence”, written by Karel Beran, deals with the substance and basic aspects of the process of interpreting the law. In the introduction, the author defines the process of interpretation as attributing a meaning to certain symbols; in civil (continental) law, this is primarily true of a normative legal text. In the author’s opinion, the purpose of interpretation is ultimately to impose obligations. The substance of interpretation thus lies in the transformation of a general—and often abstract—duty comprised in the legislation into an individualised specific duty. The author describes this transformation process as two distinct competences that form a part of the legal questions (quaestiones iuris) in interpretation of the law: 1) the competence to specify (concretise) a legal norm; and 2) the competence to individualise a legal norm. According to the author, the competence to specify a legal norm means “the ability to specify the relevant duty or its scope”. The individualisation competence then means—again using the author’s words—“the authority to choose the correct legal norm to be applied in an individual case”. The chapter follows on from the theory of decision-making processes in the law, created by the prominent Czech legal theorist Jiří Boguszak, who used to distinguish between “closed and open conditional processes” when applying the law. Both Jiří Boguszak and Karel Beran note that decision-making processes are mostly not closed in the law, i.e. automated or programable. This fact implies not only the need for discretion in interpreting vague provisions in the law, but also the requirement for certain evaluation in the selection of norms that apply to the given case. In the conclusion of the chapter, the author summarises that the choice of norms following from the individualisation competence requires teleological evaluation of the purpose and context of individualisation.

In the sixth chapter, entitled “How the legislator and jurisprudence can increase the pro-systemic nature of judicial interpretation and application of the law?”, Katarzyna Žák Krzyžanková deals first with the definition of pro-systemic judicial decision-making. The criterion of a pro-systemic approach lies—according to the author—in maintaining the existing social order, which is a concept based on the theory of Peter Berger and Thomas Luckmann. The role of the courts is thus to provide protection to the social order, and the means used to do so include especially the application of a predictable methodology of interpreting the law and also a—more or less—uniform decision-making practice. An important role in reinforcing the unity of law is also played by other public authorities, along with the judiciary; in terms of judicial decision-making, the most important function is that of the legislator, who directly influences the courts’ work through the quality of laws it enacts. The author of this chapter deals with the question of how the legislator should proceed in order to facilitate pro-systemic interpretation of law by the judiciary: apart from respecting the rules of the legal language, e.g. providing definitions where it is appropriate or using concepts developed by jurisprudence, it is important—in the author’s opinion—that the legislator manifest its will, i.e. specify explicitly and clearly the objectives of the legal regulation. However, even if legislative activities are improved, the courts still have the power to interpret the law, which can never be formulated so clearly as to predict all future possibilities. The key requirement for judicial interpretation of law is to reflect the broader normative context, i.e. the related rules, as well as legal principles and values. In the conclusion of the chapter, the author notes the importance of jurisprudence for ensuring the unity of law. This includes, in particular, fine-tuning the methodology of legal interpretation or deconstruction of a certain practice that can open a way to its correction.

In the seventh chapter, “Maximalism and minimalism in judicial reasoning: how can courts strengthen or weaken the unity of a legal system?”, Pavel Ondřejek elaborates on Cass Sunstein’s theory of minimalism and maximalism in judicial decision-making. The notions of minimalism and maximalism in judicial decision-making (“decisional minimalism and maximalism”) are linked to the methods of substantiating court decisions, which, on the one hand, may comprise brief reasoning and be limited to the given case only or, on the other hand, set out general principles that will also have a bearing on other similar cases; the reasons given may also be very detailed. In his contribution, the author assumes that in the continental legal culture (civil law), courts were traditionally not asked to promote the coherence and unity of the legal system. Their task was rather to hear and decide individual cases. However, the role—especially of supreme courts—has been evolving and it is thus necessary to focus on the aspects of width and depth of judicial decisions. While a broadly formulated and thoroughly substantiated decision can be considered an unambiguous expression of the court’s opinion on a given case, as well as its opinion on similar cases to be decided in the future, it is questionable whether courts are always a suitable authority to deal with such issues. We can also ask what the respective roles should be of courts and the democratic legislature in regulating these—using the words of Lon Fuller—polycentric questions in law. While a minimalistic decision provides a greater space for solutions devised by other public authorities and also eliminates possible unwanted consequences of generally formulated rules in case law, in view of its narrow focus, it fails to provide a guidance for similar cases and leaves the addressees of law in uncertainty. The chapter concludes with the proposition that a judge must be aware of the advantages and disadvantages of minimalistic and maximalistic decision-making when formulating the reasons for his or her decision. Consequently, in the author’s opinion, decision-making that is a priori minimalistic or a priori maximalistic is not a universally preferred option in decision-making.

In the eighth chapter with the title “(Trans)Forming the applicable norm by the German type constitutional complaint—The case of Hungary”, Fruzsina Gárdos-Orosz deals with judicial law-making in the context of a constitutional complaint—an institution introduced to Hungarian law in 2012. The author first focuses in general on the aspects of judicial law-making by constitutional courts, which she conceives more broadly than merely their position as Kelsen’s negative legislator, or a positive legislator where constitutional courts provide interpretation of statutes conforming to the constitution. Even where the constitutional court is called on to rule on an individual complaint filed against a court decision, its conclusion will have implications for similar cases in the future. Further to András Bragyova’s theory, the author conceives the constitutional complaint procedure not as a constitutional review of a specific court decision, but rather as a review of the norm (jogtétel) comprised in this court decision. From this point of view, the author likens the relationship between the constitutional court and ordinary courts to a dialogue between the legislator and the constitutional court in abstract constitutional review. In the second part, the author supports the thesis on judicial law-making in relation to case law of the constitutional court by an empirical analysis of ordinary courts’ decision-making in Hungary. The analysis shows that ordinary courts often apply case law of the constitutional court and use it to complement statutory law. The constitutional court’s case law thus operates besides statutes and modifies the norm (jogtétel) that an ordinary court formulates in its decision. In conclusion, the author summarises that judicial law-making is thus not only the dominion of constitutional courts, but also of lower courts, which follow case law of their constitutional court when applying the law in hard cases.

The ninth chapter, written by Jan Tryzna and titled “Legitimacy of retrospective effects in judicial decision-making process”, analyses the often neglected question of retrospective effects of the law. In this regard, the author follows from a conception of law as a dynamic system, which is modified not only by legislative law-making, but also significantly by courts’ decision-making. In case of a change in the legislation, this can impair the legitimate expectations of the parties to legal relationships, and therefore, rules limiting retroactive effects of the law have gradually evolved in the legislative process. The author points out that, as far as case law is concerned, legal certainty and predictability of the law can be hampered in case of a change in case law applied by the courts to all other proceedings, regardless of whether such other proceedings were initiated before or after the change in case law. In the second part of the chapter, the author argues in favour of prospective effects of case law, i.e. a situation where a potential change in case law, which probably can never be completely avoided, would have no effect on other proceedings initiated before such a landmark decision. In the final parts of his chapter, the author first rebuts certain arguments in favour of retrospective effects of case law—e.g. the argument of equality or the need for development of the law through case law, and subsequently also refutes arguments aimed against prospective effects of case law, as he mentions, e.g., the danger of excessive rigidity of the legislation or the creation of a different type of inequality than in the case of retrospective decision-making. The author summarises that while changes in case law are necessary, it is nonetheless not set in stone that new case law will provide a better solution than the former one. Even if the new solution were better, the author considers it necessary to always determine whether the benefit of proceeding according to the new case law will overweigh the (lack of) legal certainty on the part of addressees of the law.

In the tenth chapter, Lisa Sonnleitner turned her attention to interpretation of the European Convention on Human Rights, especially by the European Court of Human Rights. In this chapter, entitled “Evolutive vs. static interpretation: Unity or fragmentation in the intertemporal interpretation of the European Convention on Human Rights?”, the author deals with the conception of evolutive interpretation and its legitimacy in the light of the fundamental principles underlying the European Convention. Evolutive, i.e. dynamic, interpretation differs from a static one in that it approaches the source of law to be interpreted as a living instrument reflecting the developing social standards. In contrast to dynamic, evolutive interpretation, relying especially on the values governing the European Convention (such as the value of human dignity), the Member States sometimes promote static interpretation, which is based solely on the formal aspect of rights. The core of the chapter lies in a search for an answer to the question of when the European Court of Human Rights should apply evolutive interpretation and, in contrast, when it should give preference to static interpretation. According to the author, the answer to this question cannot be categorical, but rather the benefits of applying static or evolutive interpretation have to be balanced in each individual case. This paper thus elaborated in an interesting way on Alexy’s weight formula in the context of a conflict of different approaches to interpretation of the European Convention. Such a balancing exercise also raises further questions regarding the priorities of the individual methods of interpretation (specifically, whether such balancing could also provide a solution to conflicts between the individual methods of interpretation).

* * *

The volume shows that the effects of case law in terms of strengthening or weakening the unity of law cannot be described using a single theory or from a single point of view. It shows that there exist many factors and influences. These include the prevailing role attributed to the courts and their interpretation by the constitutional legislature, or the “ordinary” legislature, as illustrated by Fruzsina Gárdos-Orosz on an example of unifying interpretation, which is the task of the Supreme Court (Curia) according to Art. 25 (3) of the Hungarian constitution. Another factor is the way the courts themselves conceive their decisions (Zdeněk Kühn focuses on the issue of settled practice in judicial and administrative decision-making; Pavel Ondřejek deals with minimalism and maximalism in judicial decision-making; Lisa Sonnleitner analyses the evolutive and static approaches to judicial interpretation of the European Convention on Human Rights).

The institutional settings of the separation of powers also play a significant role (as emphasised by Alexander Bröstl, who describes, among other things, a number of historical examples of a conflict between the legislative and judicial branches), and the same is true of the general theoretical background of judicial interpretation methodologies (dealt with by Karel Beran, Katarzyna Žák Krzyžanková and Martin Abel). The chapters written by these three authors also show the potential importance of jurisprudence for reinforcing the unity of law, as it creates methodological models for interpreting the law, which are not only purely theoretical, but may also be reflected in the courts’ decision-making.

Tomáš Gábriš turns our attention towards the actual decision-making by judges, which is also examined in fields other than the law, as the decisions they adopt strongly influence the systemic nature of law. As shown by Jan Tryzna in his chapter, inter-temporality of case law also influences the system of law through judicial decision-making. It thus becomes apparent that coherence of law also has its dynamic aspects as we can refer to material and formal continuity of law when describing the coherence of the contents of legal regulation over time, or coherence in the origin of law in the form of a continuous chain of authorisations from which new sources of law are derived.[11] However, changes in law also entail the important question of legal certainty on the parts of the addressees of the changing law.

The authors of the individual chapters, as members of the academia in the region of Central Europe, describe various aspects of judicial interpretation and law-making. Along with the general tendency towards reinforcing the judicial branch, some of the contributions also indicate a trend towards institutionalisation of judicial law-making, which is undoubtedly a phenomenon that deserves further examination.

1* This contribution was written under the Czech Science Foundation (GA ČR) project: What unifies current law and what fragmentises it from the perspective of legal theory and judicial practice? (reg. No. 19-10723S).

RABEL, Ernst: Aufgabe und Notwendigkeit der Rechtsvergleichung. München: Max Hueber, 1925, p. 4. In Czech scholarly literature, this path was followed on several occasions by Professor Karel Eliáš—the head of the expert team that prepared the draft Czech Civil Code adopted in 2012. The code substantially reinforced the role played by case law in the domain of private law as the courts were newly required to make similar decisions in similar cases, or to justify any deviation they make—see ELIÁŠ, Karel: Příspěvek ke kultuře a precedentnímu působení civilních soudních rozhodnutí a právních vět [Contribution to the Culture and Precedential Force of Civil Court Decisions and Headnotes]. In: DVOŘÁK, Jan, MACKOVÁ, Alena (eds.): Pocta Aleně Winterové k 80. narozeninám [Tribute to Alena Winterová on the Occasion of Her 80th Birthday]. Prague: Všehrd, 2018, p. 73.

[2] KÜHN, Zdeněk: The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? Leiden: Martinus Nijhoff, Brill, 2011. KOSAŘ, David: Perils of Judicial Self-Government in Transitional Societies. Cambridge: Cambridge University Press, 2016.

[3] ŠÁMAL, Pavel, RAIMONDI, Guido, LENAERTS, Koen (eds.): Binding Effect of Judicial Decisions—National and International Perspectives. Alphen aan den Rijn: Kluwer Law International, 2018. PÓCZA, Kálmán (ed.): Constitutional Politics and the Judiciary. Decision-making in Central and Eastern Europe. Abingdon, New York: Routledge, 2018.

[4] ŠÁMAL, Pavel, ŠIPULOVÁ, Katarína: Introduction. In: ŠÁMAL, Pavel, RAIMONDI, Guido, LE-NAERTS, Koen (eds.): Binding Effect of Judicial Decisions—National and International Perspectives. Alphen aan den Rijn: Kluwer Law International, 2018, pp. 21–28. KOSAŘ, David, PETROV, Jan, ŠIPULOVÁ, Katarína, SMEKAL, Hubert, VYHNÁNEK, Ladislav, JANOVSKÝ, Jozef: Domestic Judicial Treatment of European Court of Human Rights Case Law. Beyond Compliance. Abingdon, New York: Routledge, 2020.

[5] PROCHÁZKA, Radoslav: Mission Accomplished. On Founding Constitutional Adjudication in Central Europe. Budapest: CEU Press, 2002. SADURSKI, Wojciech (ed.): Constitutional Justice. East and West. Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective. The Hague, London, New York: Kluwer Law International, 2002. SADURSKI, Wojciech: Rights before Courts. A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe. Dordrecht: Springer, 2008. FLORCZAK-WATOR, Monika (ed.): Judicial Law-Making in European Constitutional Courts. London: Routledge, 2020.

[6] ONDŘEJEK, Pavel: Systémové teorie v právu [Systems Theories in the Law]. In: SOBEK, Tomáš, HAPLA, Martin et al.: Filosofie práva [Philosophy of the Law]. Brno: Nugis Finem Publishing, 2020, p. 209. With regard to this concept of the purpose of law, see LUHMANN, Niklas: Law as a Social System. Oxford: Oxford University Press, 2004, p. 142f.

[7] For this approach, cf. e.g. ONDŘEJEK, Pavel: Koncepce práva jako systému [Conception of Law as a System]. Prague: Wolters Kluwer, 2020, p. 172f.

[8] SOBEK, Tomáš: Koherence práva [Coherence of Law]. Právník. 2012, Vol. 151, Issue 4, pp. 350–351.

[9] The authors of the individual chapters follow, for example, from H.L.A. Hart’s theory on the unity of primary and secondary rules, Ronald Dworkin’s idea of integrity in law, Joseph Raz’s concept of a legal system, and Claus-Wilhelm Canaris’ theories of the internal and external system of law.

[10] The question of judicial law-making and its differentiation from legal interpretation belongs among complex and admittedly still unresolved problems of legal methodology. Although a number of contributions in this book follow from the German doctrine concerning the limits of the wording of law, which is quite influential in Central Europe, the individual authors are also aware that judges often develop, construct and, to a certain degree, make law in their decision-making. However, a more detailed discussion on the limits of judicial interpretation and law-making would go beyond the scope of this work (an excellent analysis of this issue can be found, e.g., in the following work: KLATT, Matthias: Making the Law Explicit. The Normativity of Legal Argumentation. Oxford, Portland: Hart Publishing, 2008, p. 4 ff).

[11] SOBEK, Tomáš: Koherence práva [Coherence of Law]. Právník. 2012, Vol. 151, Issue 4, pp. 356–357.

Part I

Theoretical and doctrinal foundations of judicial law-making in Central European countries

EkklesiaandDikasterion—which body isconsidered to bekyrion panton? (Is it the right question to be asked?) Recent dimensions of an old problem

Alexander Bröstl*

Abstract

The article is focusing on the history of the relationship between the ekklesia (public legislative assembly of the Athenians) and the dikasterion or jury-court especially during the period of the classical Athenian democracy and also later on with an accent on the challenge of “unlawful” or “unconstitutional” laws / decrees prepared or already adopted by the people’s assembly before the judicial authority (people’s courts). Considerations are concerning first of all the investigation of the institution of grafe paranomon and grafe nomon me epitedeion theinai (what meant that a decision of the assembly would be reviewed by an Athenian court in a procedure closed to the one later known as constitutional / judicial review) as well as the work of nomothetes in cases when the law should be changed (amended). They are followed by the more recent appearance and introduction of the judicial review (U. S. Supreme Court) and the change of the paradigm in the relationship between the legislative power and the judiciary in the early 19th century, and by the debates on the topic who should be the guardian of the Constitution in the European 20th century continuation, beginning from the exchange of views between Carl Schmitt and Hans Kelsen. Finally, it is analyzing the very recent problem with the constitutional amendments in the light of the doctrine of their possible unconstitutionality, and the limits of amendment powers (pro et contra argumentation).

* This paper is dedicated to Professor Dr. Reinhold Zippelius to his 90th birthday earlier last year (2018), who was my supervisor during the time of my first academic stay in his Institut für Allgemeine Rechtslehre und Rechtsphilosophie in 1990/1991, at the Friedrich-Alexander-University of Erlangen-Nürnberg, Faculty of Law. At that time he recommended me to take part in the IVR World Congress in Göttingen in 1991. This was my first participation in that event: since that time I have attended all the IVR Congresses until Luzern 2019.

Keywords

ekklesia, dikasterion, grafe paranomon, grafe nomon me epitedeion theinai, judicial review, guardian of the constitution, unconstitutional constitutional amendments

Χρωμεθα γαρ πολιτεια τους των πελας νομους παραδειγμα δε μαλλον αυτοι οντες τισιν η μιμουμενοι ετερους. Kαι ονομα μεν δια το με ες ολιγους αλλˇ ες πλειονας οικειν δημοκρατια κεκληται.12

Our constitution does not copy the laws of the neighboring cities, we are rather a pattern to others than imitators ourselves. Its administration favors the many instead of the few; this is why it is called a democracy…

Pericles’ Funeral Oration. Thucydides, The Peloponnesian War.

London, New York. Dent, J. M.-Dutton,E. P. 1910, II, 37.

Eλευθεριας δε εν μεν το εν μερει αρχεσθαι και αρχειν.

But one factor of liberty is to govern and be governed in turn...

Aristotle, Politics, 1317b

1 Introduction / Εισαγωγη

The situation when Constitutional Courts are overruling Constitutional Amendments because of their unconstitutionality (non-compliance with the Constitution) had first of all in the respective Parliaments caused consternation, horror and furore, and a series of questions like How can the Court touch the “original and untouchable” constituent power (which should exclusively rest in the hands of the Parliament?), Which body is in the capacity of the most „powerful and significant authority” in a democratic polis governed by nomoi / a democratic state governed by the rule of law, if not the ekklesia / Assembly? The dilemma can be whether it should be in other words the Legislative (ekklesia, People’s Assembly) or the Judiciary (dikasterion, Supreme Court / Constitutional Court)? Another way around: Which principle is decisive—the Supremacy / sovereignty of the Parliament or the Judicial Review in the name of the Protection of the Constitution?

2 On the Relationship Between εκκλησια and δικαστηριον in the Athenian Democracy

Democracy also with respect to the opinions of ancient Greek legal philosophers (Plato, Aristotle, etc.) must not necessarily be understood as a failed, unsuccessful majority rule, as an unstable, arbitrary and occasionally brutal, supported by populist tyranny of majority,13 corrupted and against nature.14

Every polis as we see is a sort of partnership (κοινονια), and every partnership is formed with a view to some good,15 and is in fact a partnership of citizens in a government.16 A politeia is a matter of citizens. Who is (in an absolute sense) entitled to the name of citizen, and what is the essential nature of a citizen? Here I would like to share Aristotle’s response to this question: “A citizen pure and simple is defined by nothing else so much as by the right to participate in judicial functions and in office (assembly, etc.).”17

In a brief overview I would like to point out to the circumstance that Athenian democracy tried to develop itself towards perfection, following an ideal model of the relationship between “various branches of government” (thesmois, offices, institutions) in their constitution, and “more kinds of participation in the administration of an office”. A special view I would like to offer to the role of the judiciary in a democracy, as an important source of inspiration for later, medieval, but also modern (contemporary) democracies at all. The question is—did the Athenians become aware of the fellowship between democracy and jury-courts? What was the reason that dikasteria in a way became a prototype of the democratic idea?18

By the way, deliberating over democracy probably needs to make two important remarks about this topic. The first one is focusing on Aristotle: before he is analyzing democracy he mentions that “it is thought that there are two forms of constitutions, democracy and oligarchy,” and in his more precise view he announces “that there are several varieties … of democracy (about five kinds of democracy; note by A. B.) and of oligarchy.” And the constitutional government (πολιτεια) is, to put it simply, a mixture of oligarchy and democracy.”19

In the second special remark I would like to state that I am sharing the view of Friedrich August von Hayek when he underlines his opinion that “It is greatly to be regretted that the word democracy should have become indissolubly connected with the conception of the unlimited power of the majority on particular matters. But if this is so we need a new word to denote the ideal of a rule of the popular opinion on what is just, but not of a popular will concerning whatever concrete measures seem desirable to the coalition of organized interests governing at the moment.20 … If it is insisted upon that democracy must be unlimited government, I do indeed not believe in democracy, but I am and shall remain a profoundly convinced demarchist in the sense indicated.”21

Aristotle himself questioned whether this form should even be called “democracy”: “And another kind of democracy is for all the citizens that are not open to challenge to have a share in office, but for the law to rule… And it would seem a reasonable criticism to say that such a democracy is not a constitution at all; for where the laws do not govern there is no constitution, as the law ought to govern all things while the magistrates control particulars, and we ought to judge this to be constitutional government; if then democracy really is one of the forms of constitution, it is manifest that an organization of this kind, in which all things are administered by resolutions of the assembly, is not even a democracy in the proper sense, for it is impossible for a voted resolution to be a universal rule.”22

Aristotle’s rudimentary considerations on democracy include also his statement that the “fundamental principle of the democratic form is liberty—(…) only under this constitution do men participate in liberty (ωρ εν μονη τη πολιτεια ταυτη μετεχοντς ελευθεριας).” I would similarly refer to his use of the word “archein”: “But one factor of liberty is to govern and be governed in turn (ελευθεριας δε εν μεν το εν μερει αρχεσθαι και αρχειν = merei archesthai kai archein).23

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