Explanatory Reports as a Means to Understand the Legislator-court Dialogue
| Authors | |
|---|---|
| Year of publication | 2017 |
| Type | Article in Proceedings |
| Conference | Argumentation 2017 |
| MU Faculty or unit | |
| Citation | |
| Web | Oficiální web konference |
| Keywords | Law as literature; legislative history; explanatory report; legislator – court dialogue; legal interpretation; legal argumentation; Czech legal cases; intentionalism. |
| Attached files | |
| Description | This paper focuses on the theoretical assumption that there exists a constant dialogue between the legislator and individual courts concerning the form and application of legal rules. The legislator adopts a rule with certain intention and with the more or less accurate prediction of its application. The courts however use various methods of interpretation of these rules and the historical one focusing mostly on the intention of the legislator is only one of them. The paper points out selected situations in the Czech law within the last few years, concerning the existence of the legislator-court dialogue and tries to delimit the character of arguments used in legislative history, or explanatory reports, to influence the court to see the rule and the area it governs in the way the legislator does and persuade it to see these views as decisive ones. Using the legislative history (or the explanatory reports) as a means to understand the dialogue may prove interesting from various points of view. The legislative history, or explanatory reports, is used amongst the first means to understand the intention of the legislator. However, this paper shows that in certain cases it is not only a kind of non-binding literature, but in certain cases it is more of a literary fiction that anything which should be even considered as normatively binding. Analysis of a draft of a rule and its explanatory report along with the study of theory of legal interpretation (and also legal argumentation and case law) can actually answer the question how successful the legislator is in his presumptions about the courts usage of the specific rules and moreover, whether there actually exist the legislator-court dialogue in the Czech legal environment in the first place. |
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