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Diffuse judicial review, marginal incompatibility and legal certainty

Publication at Faculty of Law |
2022

Abstract

We can find both concentrated and diffuse models of judicial review in Czech law; there are also borderline situations where both models can be conceivably activated. The main advantage of diffuse review is operative resolution of the norm conflict in an individual case and, accordingly, expeditious protection of parties' rights.

On the other hand, legal certainty is regarded to be the principal advantage of concentrated review in the continental legal system. The article tries to relativize this notion, mostly for the cases of partial or marginal incompatibility where diffuse review is less invasive in terms of legal stability.

Especially in these cases, it is therefore thinkable e.g., that ordinary courts apply an international treaty concerning human rights. Finally, the article argues in favor of wider judicial discretion regarding the selection of a model of review.