Nové jevy v právu na počátku 21. století II.

Authors of this publication define essential elements of a democratic legal state and analyze the current models of the courts’ being bound by law. In this context they point out that the scope and content of “a democratic legal state’s essential elements” is not definite. It is not defined by constitution and can be inferred by comparing particular forms of a democratic legal state in its changing manifestations. The concept of a democratic legal state is not static but dynamic and so the transformation of the social relations, in which it acts, can come into conflict with these existing ideas of its unchangeable attributes. The traditional model of courts’ strict boundedness by law, elaborated in the continental legal system in the 19th century, is increasingly more confronted with the reality of the plurality of the sources of law and their growing hypertrophy and instability. The effort to legitimize the weakening of strict boundedness of courts leads to critical argumentation using exaggerated legal formalism as opposed to the desired judicial pragmatism. The authors understand legalism in law as well as the discretionary powers of judges as undesirable extreme approaches to contemporary law. Using theoretical analysis and principal judicial decisions of highest court instances including European judiciary bodies, they reveal in detail the shortcomings of both of these extremes. They believe it is indispensable to elaborate sophisticated methods of legal argumentation lege artis, which should be substituted for the no longer usable simple application modes while limiting the arbitrariness in judicial decisions. The current hierarchical model of the legal order has been undergoing changes, being replaced by a network model reflecting the increasing dilution of public authority. The monograph presents the consequences of these processes from the point of view of defining the legal order of the Czech Republic, the relations of constitutional, international and European law and the functioning of the constitutional system of the Czech Republic at present and in the foreseeable future.