Foreign Sources in the Decision-making and Argumentatiton of the Constitutional Court of the Czech republic
Abstract
The authors analyse the question what motivates the judges of the Czech Constitutional Court to use foreign legal materials in their decision-making: is it to find a solution or to justify a solution found on different grounds. By foreign legal materials the authors mean voluntary use of foreign state's legislation, case-law and academic literature.
They refer to neither international treaties and international courts' case-law nor to mandatory use of foreign law in private international law cases. Constitutional interpretation is specific due to the open-ended and often ambiguous terms used in most constitutional texts which invite a more anti-formalistic and sometimes activist approach to judicial activity.
The use of foreign legal materials, due to their belonging among the so called may sources, provides an interesting example of the above mentioned specificities of constitutional decision-making. The study is based on a quantitative review of all the decisions of the Czech Constitutional Court which contain at least one reference to foreign legal materials in the period between 15th July 1993 and 31st December 2016, qualitative analysis of selected cases and interviews with several constitutional justices.
On the basis of the empirical analysis the authors formulate several normative conclusions about the appropriate use of foreign legal materials.