Interpretation as a ritualistic veil in courts’ law-making

k 2018

Interpretation as a ritualistic veil in courts’ law-making

SMEJKALOVÁ, Terezie

Basic information

Original name

Interpretation as a ritualistic veil in courts’ law-making

Authors

SMEJKALOVÁ, Terezie (203 Czech Republic, guarantor, belonging to the institution)

Edition

2019 Annual Conference of The Association for the Study of Law, Culture and the Humanities, 2018

Other information

Language

English

Type of outcome

Prezentace na konferencích

Field of Study

50501 Law

Country of publisher

Czech Republic

Confidentiality degree

není předmětem státního či obchodního tajemství

RIV identification code

RIV/00216224:14220/18:00108941

Organization unit

Faculty of Law

Keywords in English

ritual; legal interpretation; judicial law-making

Abstract

V originále

Continental legal systems are quite wary, if not outright derogatory, when it comes to acknowledging that courts would actively engage in any law-making. Description of the courts’ role is usually centred on their part in the application of law, one that allows for recognising their authoritative role in interpretation of law, but one that denies their active role in the process of making law. Yet there are studies (Lasser 1994-1995, 2003) that show that even a court such as the French Cour the Cassation whose decisions are formulated as simple syllogistic applications of legal rules that do not allow or require detailed description of the interpretative processes that the court might have gone through before pronouncing such a simple sentence of a decision, engage in sometimes complicated interpretive processes, ones that are not dissimilar to active creation of law. Other continental legal systems, such as the German or Czech one, require certain level of justification, including interpretation of applied provisions, but the required depth of such justification often quite differs from what is expected in common law systems. Moreover, there are theoreticians (Knapp 1995) who point out that a legal rule (or, in a more typical continental terminology, a legal norm) is only an end product of interpretation of a text of legal regulation, which would mean that a law becomes law only when interpreted. To avoid sheer subjectivism in interpretation, legal theory provides the interpreters with “methods” (Savigny), yet those methods, when looked into more closely, rather overlap with one another and still provide quite a lot of semantic space in which the interpreter may move. These methods of interpretation are consistently taught, and their usage, often reduced to the level of simple labels, is being reinforced throughout the process of legal education to the extent that they may be analysed in terms of their ritualistic presence in justifications of judicial decisions. In this respect, this paper will tackle interpretation of law as a ritualistic veil behind which the reader-interpreter introduces her own experience and knowledge into the law and thus creates law.

Citovat

SMEJKALOVÁ, Terezie. Interpretation as a ritualistic veil in courts’ law-making. In 2019 Annual Conference of The Association for the Study of Law, Culture and the Humanities. 2018.

@proceedings{1473797,
   author = {Smejkalová, Terezie},
   booktitle = {2019 Annual Conference of The Association for the Study of Law, Culture and the Humanities},
   keywords = {ritual; legal interpretation; judicial law-making},
   language = {eng},
   title = {Interpretation as a ritualistic veil in courts’ law-making},
   year = {2018}
}

TY  - CONF
ID  - 1473797
AU  - Smejkalová, Terezie
PY  - 2018
TI  - Interpretation as a ritualistic veil in courts’ law-making
KW  - ritual
KW  - legal interpretation
KW  - judicial law-making
N2  - Continental legal systems are quite wary, if not outright derogatory, when it comes to acknowledging that courts would actively engage in any law-making. Description of the courts’ role is usually centred on their part in the application of law, one that allows for recognising their authoritative role in interpretation of law, but one that denies their active role in the process of making law. Yet there are studies (Lasser 1994-1995, 2003) that show that even a court such as the French Cour the Cassation whose decisions are formulated as simple syllogistic applications of legal rules that do not allow or require detailed description of the interpretative processes that the court might have gone through before pronouncing such a simple sentence of a decision, engage in sometimes complicated interpretive processes, ones that are not dissimilar to active creation of law. Other continental legal systems, such as the German or Czech one, require certain level of justification, including interpretation of applied provisions, but the required depth of such justification often quite differs from what is expected in common law systems. Moreover, there are theoreticians (Knapp 1995) who point out that a legal rule (or, in a more typical continental terminology, a legal norm) is only an end product of interpretation of a text of legal regulation, which would mean that a law becomes law only when interpreted. To avoid sheer subjectivism in interpretation, legal theory provides the interpreters with “methods” (Savigny), yet those methods, when looked into more closely, rather overlap with one another and still provide quite a lot of semantic space in which the interpreter may move. These methods of interpretation are consistently taught, and their usage, often reduced to the level of simple labels, is being reinforced throughout the process of legal education to the extent that they may be analysed in terms of their ritualistic presence in justifications of judicial decisions. In this respect, this paper will tackle interpretation of law as a ritualistic veil behind which the reader-interpreter introduces her own experience and knowledge into the law and thus creates law.
ER  -

SMEJKALOVÁ, Terezie. Interpretation as a ritualistic veil in courts’ law-making. In \textit{2019 Annual Conference of The Association for the Study of Law, Culture and the Humanities}. 2018.

Detailed Information on Publication Record