Conceptualization of "public order" within Czech legal style

SMEJKALOVÁ, Terezie and Markéta ŠTĚPÁNÍKOVÁ. Conceptualization of "public order" within Czech legal style. In Argumentation 2021. 2021.

Basic information

• Original name: Conceptualization of "public order" within Czech legal style
• Authors: SMEJKALOVÁ, Terezie (203 Czech Republic, guarantor, belonging to the institution) and Markéta ŠTĚPÁNÍKOVÁ (203 Czech Republic, belonging to the institution).
• Edition: Argumentation 2021, 2021.

Other information

• Original language: English
• Type of outcome: Presentations at conferences
• Field of Study: 50501 Law
• Country of publisher: Czech Republic
• Confidentiality degree: is not subject to a state or trade secret
• RIV identification code: RIV/00216224:14220/21:00119389
• Organization unit: Faculty of Law
• Keywords in English: public order; legal style; normativism; formalism; social representations
• Tags: rivok
• Tags: International impact, Reviewed

Abstract

In an ongoing project, we explore the use of social representations approach (Moscovici 1961/1976, 2008) in studying conceptualization in law. One of the concepts we explore is that of “veřejný pořádek” ("public order"). Public order is a vague legal concept and as such it lacks legal definition and needs to be interpreted and re- interpreted in relation to context. While the interpretation of vague legal concepts is essentially in the hands of persons applying the rule containing them, some of them have inescapable links to social realities. It would seem that using public order in legal argumentation requires understanding that is far from strictly formalistically legal. Is that the case for Czech legal environment and how far should a judge go in order to understand the concept in order to apply it properly? In a recent case the Czech Supreme Administrative Court relied on the concept of public order when making a decision on gender indication in a person’s national identification number. The court indicated that for the national identification number to bear a different than assigned-at-birth gender identification when the identified person has not yet undergone complete gender affirming surgery would be (among other reasons) contrary to public order. The argumentation leading to this conclusion seems to show clear argumentative gaps when it comes to the steps taken to determine the content of the concept of public order, as the court practically entirely relied on personal insight of the judge making that decision. In this paper, we report the findings of a part of wider complex research related to social representations approach in understanding vague legal concepts. In the course of our research, we have explored our participants’ understanding of public order in a very similar setting to the one presented in this case. Their understanding seems to suggest that although public order points towards basic values of a given society, some of our participants suggest that it is a concept whose interpretation remains strictly legal, confining the judge to – sometimes incomplete – information provided by formal legal sources or legal doctrine. While such a confinement may result in weak argumentation, we believe it may also be explainable in terms of normativistic and formalistic tendencies present in the Czech legal culture.

Links

• GA20-10171S, research and development project: Name: Využití metod sociální reprezentace v analýze právních konceptů

Investor: Czech Science Foundation