Abstract
Comparative method has become one of the main trends of contemporary law. Constitutional law is no exclusion.
Foreign law is often used as an inspiration in drafting, amending and interpreting of modern constitutions in many states, as well as in the Czech Republic. First part of this book creates a theoretical basis in Czech, with stresses on history, taxonomy and methodology.
Chapter 1 analyses the history and importance of comparative law. Chapter 2 defines some methodological aspects of comparative law.
Chapter 3 provides an introduction to comparative constitutional law and Chapter 4 shows several patterns, how, when and where can foreign law have influence on domestic legal systems. To certain extent, Czech and Czechoslovak examples are being used and analysed.
In the second part of the book, 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.