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



Rok publikování 2017
Druh Další prezentace na konferencích
Fakulta / Pracoviště MU

Právnická fakulta

Popis Judicial decisions play a specific normative role even in typical 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 (e.g. MacCormick and Summers 1997). Some of the elements, which are being addressed, are the references to various sources the judge uses to make her decision, such as laws, other judicial decisions, doctrinal writing or even fiction. This paper shall focus on the references to fiction as specific cases of exemplarity in law, ones that show by drawing (often very sketchy) analogies to supposedly shared extra-legal knowledge or cultural background. As such, these references may also be analysed in relation to Sebeok’s (1986) definition of ostension and other theories of ostension (Osolsobě 1979 or Eco 1985). Using them as a starting point, this paper shall argue that showing, referencing and exemplarity in law is essentially a matter of addressing. A question that must inevitably follow any consideration of exemplarity in law is: To whom is the example addressed? Who is to benefit from this case of shift from the general to the specific? To whom do we show? This paper shall use the instances of overt references to fiction in Czech Constitutional Court’s decisions to tackle these issues and further discuss whether exemplarity could be understood as an inevitable step in making the law more accessible to those without formal legal education, or whether this ‘concession to the lay addressee’ is just a misdirected shot that not only does not help in understanding law and eventually creates a wider gap between the court and the lay party, but also that a wrongly used one discredits the argumentation in the eyes of those with legal background.

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