The first discussion of the arguments presented in the book took place at a seminar organised by the Czech Association for the Philosophy of Law and Social Philosophy (Czech section of the IVR) on 6 October 2002, and I am very pleased that I was able to engage in a discussion with the members of the Czech IVR and in particular with two young scholars, Tomáš Koref and Jan Pokorný, who in their comments on my book opened up a number of issues for discussion and touched on aspects of the book that are related to their long-term research.

Their critical comments and their pointing out of weaknesses in the book’s argumentation were much appreciated and made me realise that some of the ideas in the book needed to be explained further and, in particular, placed in the context of my previous writings. These explanations certainly could (or rather should) already have been mentioned in the book itself, but since they were not, I would very much like to elaborate on them in this short rejoinder.

A Reply to Tomáš Korefʼs Article “Defragmentation of (Private) Law Through Proportionality Test”

After an excellent introductory summary of the arguments presented in the book, Tomáš Koref moves on to his own critique, which is based on the following ideas: if the book seeks a comprehensive view of the requirement of coherence of the legal order and postulates the argument of normative coherentism, the question is why is the discussion of the principle of proportionality limited to the constitutional law argumentation? Instead, it would be appropriate to focus on the role of the proportionality principle in general, for which, according to Koref, there are three important reasons: 1) the principle of proportionality is always applicable when there is a conflict between legal principles, and legal principles are commonly found among all branches of law, not only in constitutional law; 2) the principle of proportionality promotes normative coherentism in law, again in various branches of law; and 3) the principle of proportionality is a tool for the justification of decisions and in certain cases can provide more convincing justification than traditional methods of interpretation.Tomáš Koref. Defragmentation of (Private) Law Through Proportionality Test. A Review Essay on Ondřejek’s Monograph ‘Defragmentation of Law: Reconstruction of Contemporary Law as a System’. Ratio Publica, 4(1), 2024, chs 2.3–2.5.²⁾

First of all, I would like to stress that we are not in dispute on the basic issue: proportionality is clearly applied in different branches of law. In my earlier paper on the principle of proportionality in law-making, I emphasised the thesis that the specific method of proportionality is a manifestation of the more general idea of seeking proportionality in our actions, which applies not only to law as a social artefact but to all human activities in general.Pavel Ondřejek. Zákonodárce a princip proporcionality [The Legislator and the Principle of Proportionality]. In Pavel Šturma and Pavel Ondřejek (eds). Ochrana lidských práv: úloha parlamentů a soudů [Human Rights Protection: the Role of Parliaments and Courts]. Studie z lidských práv [Studies in Human Rights], vol. 13, Faculty of Law, Charles University, 2020, p. 33. ³⁾ Koref focuses on private law in his contribution, but many other manifestations of proportionality in law can be mentioned - a typical example is the proportionality of punishment (or more generally of sanctions in law),Eg Jesper Ryberg. The Ethics of Proportionate Punishment: A Critical Investigation. Kluwer Academic Publishers, 2004.⁴⁾ or proportionality in elections (the principle of proportional representation).Eg Marek Antoš and Filip Horák. Proportionality Means Proportionality. Czech Constitutional Court, 2 February 2021, Pl. ÚS 44/17. European Constitutional Law Review, 17(3), September 2021, p. 538. ⁵⁾ The different manifestations of proportionality in law also have their terminological implications, when one speaks of the principle of proportionality, the method of proportionality, the proportionality argument, proportionality, etc.These terminological issues are not the subject of Koref’s or Pokorný’s discussions, so I will not elaborate on them here. I would refer to recent Czech and Slovak publications on proportionality in law, which also note the broader implications of proportionality for the legal order as a whole – Zdeněk Červínek. Metoda proporcionality v praxi Ústavního soudu [Proportionality Method in the Praxis of the Constitutional Court]. Leges, 2021, p. 13.; Tomáš Ľalík. Obmedzovanie ľudských práv a test proporcionality: teória a prax [Limitations of Human Rights and Proportionality Test: Theory and Practice]. Wolters Kluwer, 2023. ⁶⁾ It is true, however, that the meaning of proportionality in private law is a topic that has been insufficiently explored. The implications of the application of proportionality in private law relations are far broader than the bookʼs basic idea about the need to defragment contemporary law.

Nevertheless, it is important to mention where I agree and disagree with Koref's account of the relevance of proportionality in private law. We both support the thesis that total constitutionalism, i.e. the transfer of conflict resolution from the statutory to the constitutional level, is not the right answer. It weakens specific sectoral legal principles and, if we follow the consequences of total constitutionalism, the question arises: What is the need for statutory regulation at all? The difference between our approaches lies in the fact that even in private law cases I take into account their constitutional dimension, which usually (although not necessarily) arises. When these questions about the constitutional dimension of private law cases arise, they necessarily lead to a discussion about the horizontal effects of human rights and the role of proportionality in constitutional and sub-constitutional law. In other words, I do not advocate an artificial separation of the constitutional and sub-constitutional levels of decision-making.A strong argument for the interplay between constitutional and sub-constitutional regulation in the construction of fundamental rights is made in a collective monograph by Gregoire Webber, Paul Yowell, Richard Ekins, Maris Köpcke, Bradley Miller and Francisco Urbina – Gregoire Webber and others. Legislated Rights. Securing Human Rights through Legislation. Cambridge University Press, 2018. In Czech scholarly literature, this idea is developed by Martin Abel: Martin Madej. Meze základních práv v České republice [Limitations of Fundamental Rights in the Czech Republic]. Leges, 2019.⁷⁾ I shall illustrate how my approach differs from Kummʼs theory of total constitutionalism with an example.

In 2017, I described a then topical case of bank customersʼ complaints about credit account fees, which had been dealt with not only in the Czech Republic, but also in Germany and the UK, for example.Pavel Ondřejek. A Structural Approach to the Effects of Fundamental Rights on Legal Transactions in Private Law. European Constitutional Law Review, 13(2), 2017, p. 281–304. ⁸⁾ The case was simply about whether banks can charge fees to customers for maintaining accounts, even though there is no special consideration on the part of the bank associated with the actual maintenance of the accounts. The claimants – the banksʼ customers – argued that these were in fact “fees for nothing”, which violated the implemented EU Consumer Law Directive.Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, for more details see Ondřejek (n. 8), p. 291.⁹⁾

In Germany, the litigation was conducted exclusively under private law and the court of last instance was the Federal Supreme Court there. In its view, the fees constituted a secondary arrangement which, unlike the main contractual arrangements, was subject to review. It was the fact that the fees for the maintenance of the loan accounts were not matched by any consideration from the bank that led the German Federal Supreme Court to regard the bank charges as unlawful.Ondřejek (n. 8), p. 290. Putting aside for the moment the critical views that it is possible to isolate the main and ancillary arrangements in the case of fees which are in fact the “price” for banking services – see also the UK Supreme Court reasoning in Office of Fair Trading v. Abbey National plc & Others [2009] UKSC 6.¹⁰⁾

In the Czech Republic, for procedural reasons, it was not possible to lodge appeals against court decisions in disputes over the legality of bank charges. The reason was the small value of the disputed amount. In the absence of class actions in the Czech Republic, the court of first instance ruled in individual cases and the only way to challenge its decision was to lodge a constitutional complaint. However, that presupposed finding a constitutional dimension to the case, which the complainant saw in subordinating consumer protection to the constitutional principle of substantive equality and correcting the autonomy of the will with the principle of equity and justice.Judgment of the Constitutional Court of 10 April 2014, Case No III ÚS 3725/13 (bank charges), paragraph 7 of the reasoning of the judgment.¹¹⁾

Thus, the Constitutional Court stepped in, feeling the need to unify the case law of courts of the first instance, some of which considered bank charges to be illegal, others not. The Constitutional Court first had to recognise that the case had a constitutional dimension in order to rule on the merits. It then ruled that the regulation of bank charges did not violate the Constitution (considering bank charges, in addition to interests, to be sources of profit for the banks arising from the entering into the loan agreement). Therefore, the Constitutional Court dismissed the constitutional complaint.Judgment of the Constitutional Court of 10 April 2014, Case No III ÚS 3725/13 (bank charges). For more detailed English summary of the judgement see Ondřejek (n. 8), p. 293–294.¹²⁾

If we look at the case from the point of view of the applicable law, we can distinguish between the statutory and constitutional levels. Moreover, at both the statutory and constitutional levels, there are legal principles and values that play a role in this case. As described above, these principles and values are interrelated (for example, the constitutional value of liberty and the principle of autonomy of the will, or the private law principle of contractual justice and the principle of substantive equality in constitutional law). As I indicated above, I think it is important to mention that both statutory and constitutional rules have a role to play in this case. In dealing with conflicting rules, the first key point that arises from the plurality and irreducibility of values in contemporary liberal democracies is the need for proportionality between principles or between values, since neither of them form an a priori hierarchy. If we were to regard a particular principle or value as fundamental, there would be no proportionality, because that fundamental value would act as a Dworkinian trump card in disputes. The second key point, on which I agree with Koref, is that the application of laws is not merely a projection of the application of constitutional rules and principles. If this were not the case, the thesis of total constitutionalism would apply and balancing conflicting constitutional rights and principles would be sufficient to resolve the case at hand.

From both of the above mentioned premises, it follows that balancing takes place at two levels – statutory and constitutional. The binding nature of laws requires that the statutory level be taken seriously when dealing with hard cases, while the higher legal force of the Constitution and the special status of fundamental rights and freedoms (as well as conflicting public interests protected by the Constitution) in legal orders requires that the constitutional level of litigation be also taken seriously. Together with Koref, I consider it important to carry out a balancing of abstract principles in private law as well, but this balancing will, in my view, be influenced by the context of balancing similar principles at the constitutional level. This context may affect the outcome of balancing between fundamental rights and public interests, however clearly it does not predict it. Thus, it is possible, for example, that the balancing of freedom of contract and contractual justice in a given case will be somewhat different than the balancing of the value of liberty and substantive equality in constitutional law. In dealing with hard cases, it is possible for constitutional principles and values to “radiate” at the level of individual statutes.The well-known thesis of the radiation of fundamental rights and freedoms into the entire legal order follows from the judgment of the German Federal Constitutional Court of 15 January 1958 in the Lüth case (BVerfGE 7, 198). For an English commentary on this case, see e.g., Robert Alexy. Constitutional Rights, Balancing, and Rationality. Ratio Juris, 16(2), 2003, p. 132–134.¹³⁾ Since the dispute is primarily fought on the level of statutory regulation, such a radiation may take the form of a constitutionally conforming interpretation of statutory concepts or a reinterpretation of the results of balancing in private law with respect to an important institution or argument occurring in constitutional law.Pavel Ondřejek. Koncepce práva jako systému [A Conception of Law as a System]. Wolters Kluwer, 2020, p. 188.¹⁴⁾

A Reply to Jan Pokornýʼs Article “Towards a New Legal Pluralism”

In his commentary on the book Defragmentation of Law, Jan Pokorný focuses on three issues: the question of the consequences of the increasing complexity of law, situations of fragmented law in different jurisdictions and, finally, the issue of legal pluralism and its potential as a source of integration of law. I will address these issues in turn. 

Pokorný begins by reflecting on the consequences of the increasing complexity of law. Although there is no dispute that the volume of legal regulation is increasing,Here he also relies on the analysis of quantitative parameters of Czech law published by František Cvrček (František Cvrček. Základní kvantitativní parametry českého právního řádu [Fundamental Quantitative Parameters of the Czech Legal System]. Právník, 145(4), 2006, p. 434. ¹⁵⁾ the real question lies in the implications of this complexity in relation to the addressees of the law.

Pokorný argues that “we don’t know whether the growing complexity of the law truly translates into inadequate legal literacy and ability to solve legal problems in an average citizen”Jan Pokorný. Towards a New Legal Pluralism. A Review Essay on Ondřejek’s Monograph Defragmentation of Law: Reconstruction of Contemporary Law as a System. Ratio Publica, 4(1), 2024, ch. 2.¹⁶⁾. This fact is illustrated by studies showing, for example, that approximately 50-60% of EU citizens feel themselves as not very well or even not informed at all about law. According to another study, around 60% of EU citizens have fairly good knowledge and abilities to resolve their legal problems. He concludes with the interesting observation that it is an open-ended question whether higher chances of solving conflicts will further increase with the proliferation of AI engines like ChatGPT.Ibid., ch. 2.¹⁷⁾

I do not intend to dispute the studies mentioned above. On the contrary, I believe that these statistics actually support my own argument rather than contradict it. If 50-60% of people do not feel well informed about the law, and at the same time at least 40% of people do not even know who to contact when dealing with complex legal problems, this is, in my opinion, a rather high number in view of the requirement of law as a universal system of rules that should be, as Hans Kelsen also argues, “by and large” recognised by their addressees.Hans Kelsen. Pure Theory of Law. University of California Press, 1967, p. 212.¹⁸⁾ While it is likely that even a simpler law would not be fully understood by all addressees, I believe that the claim that the number of addressees who feel well informed about their legal rights decreases with the increasing complexity of the legal system is consistent with practical experience, while the opposite position (i.e. that the level of knowledge of the law does not change with increasing complexity) is, in my opinion, strongly counter-intuitive. My focus on reducing the complexity of the law by strengthening the coherence of legal rules and principles could therefore have a rather positive effect on the overall level of legal literacy.

Regarding the role of computer information systems, I agree with the opinion of the Czech professor of legal theory Karel Beran, an expert in the field of legal informatics, who, even before the spread of more advanced artificial intelligence tools, stated the following on the issue of using legal information systems in teaching law:

Commercial providers of legal information systems, in an effort to make searching as convenient as possible, offer their users one-line full-text search engines – similar to those used by Google. The algorithms are then applied to the predefined search, which should, as far as possible, lead the user to what he or she is looking for, without the user having to know what he or she is looking for and why he or she is looking for it. If a future lawyer becomes accustomed to this method, it inevitably leads to his or her dependence on the legal information system, unable to orient oneself and define one's query.Karel Beran. Proč potřebujeme právně teoretický přístup v právní vědě? Co má teorie, filosofie a sociologie práva vlastně vůbec společného a v čem se liší [Why Do We Need a Legal Theoretical Approach in Legal Science? What Do Theory, Philosophy and Sociology of Law Have Actually in Common and How Do They Differ]. In: Záboj Horák and Petra Skřejpková (eds). Pocta Jiřímu Rajmundu Treterovi [Essays in Honor of Jiří Rajmund Tretera]. Leges, 2020, p. 58–59.¹⁹⁾

The second comment addresses the issue of de facto inequality between states.For discussions concerning the sovereign equity and its limits, see Lora Anne Viola and Duncan Snidal and Michael Zürn. Sovereign (In)Equality in the Evolution of the International System. In: Stephan Leibfried and others (eds). The Oxford Handbook of Transformations of the State. OUP, 2015, p. 221–236.²⁰⁾ Pokorný highlights that certain states fail to adhere to international human rights law as well as judgements made by human rights courts or quasi-judicial bodies. I fully agree with the claim that in these situations conflicts arising from the different requirements of international, supranational and national law do not arise in practice. On the other hand, however, it is important to focus on the consequences of non-compliance with the most important rules of international law, such as those arising from international human rights law.

In the book, edited by the Czech professor of constitutional law Jan Kysela, my co-authors and I addressed the more general question of the changing authority of contemporary states.Jan Kysela (ed). State as a Giant with Feet of Clay. Peter Lang, 2014. For a more comprehensive discussion of the transformation of contemporary states, see Stephan Leibfried and others (eds). The Oxford Handbook of Transformations of the State. OUP, 2015.²¹⁾ We identified phenomena that weaken contemporary states, but also others that strengthen them. The analysis of the selected cases showed that although states still have the final say on the enforcement of international law on their territory, in case of international human rights law the possibility to defy the rules is regularly associated with criticism from other states. And even powerful states are not exempt from this criticism.

An example is the violation of the right to contact a consular officer, which is enshrined in Article 36 of the Vienna Convention on Consular Relations, when a foreigner is in detention in another state as a result of a criminal charge. In the United States, perhaps the most famous case was that of a Mexican citizen José Ernesto Medellín convicted of murder who was denied contact with the Mexican embassy by the US authorities.I dealt with this case in more detail in the chapter of the above-mentioned book edited by Jan Kysela: Pavel Ondřejek. International law limits on state power. In: Jan Kysela (ed). State as a Giant with Feet of Clay. Peter Lang, 2014, p. 51–54.²²⁾ Simultaneously, Mexico was litigating with the United States before the International Court of Justice, which ruled that the United States has an obligation to allow contact between persons deprived of their liberty who are citizens of a third State and the relevant consular officials.Judgement of the International Court of Justice of 31 March 2004 in Mexico v. United States of America (Avena and other Mexican nationals), http://www.icj-cij.org/docket/files/128/8188.pdf.²³⁾

However, the outcome of the case was not favourable to the convicted Mexican citizen. The U.S. courts refused to give international treaties a direct effect in U.S. law, nor did they recognise the obligation to implement the judgments of international tribunals or other international bodies.Judgement of the U.S. Supreme Court of 25 March 2008 in Medellín v. Texas, 128 U.S. 1346 (2008).²⁴⁾ The appeal on the grounds of violation of the procedural guarantees of the convicted person was thus unsuccessful. At the international law level, the U.S. also refused to respect the Avena judgment and to provide convicted aliens with contact with consular officials. However, this has again put pressure on the US judicial system, on top of the imposition of the death penalty on juvenile offenders.Ondřejek (n. 22), p. 54.²⁵⁾ Although this pressure was not direct, as no specific judicial decision was enforced, indirect pressure and criticism led to decisions that reversed the practice of the imposition of the death penalty upon juvenile offenders.In the judgement of 17 May 2010, Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court of the United States of America declared unconstitutional the imposition of a life sentence without parole for offenses other than voluntary manslaughter committed by a juvenile offender. For details on this case, see Moshe Cohen-Eliya and Iddo Porat. Proportionality and Constitutional Culture. CUP, 2012, p. 89. ²⁶⁾

It is possible to document many examples where human rights violations have led to pressure for changes in legislation or state practice. Reference can be made, for example, to the regulation of procedural safeguards in the case of targeted sanctions imposed by the UN or other international law bodies, which arose in response to criticism of the practice of making it impossible to review a person’s listing on a sanctions list. Again, it was this criticism, pointing to inadequate safeguards for persons suspected of terrorism, that became the vehicle for changes in legal regulation and practice.Sanctions imposed on Russian representatives and companies by states and international organisations after February 2022 in connection with the ongoing aggression against Ukraine are an even more striking recent example.²⁷⁾

My last comment concerns the detailed comments on the chapter on the integrative potential of legal pluralism. In the book Defragmentation of Law, I argued that “legal pluralism need not necessarily be a phenomenon disrupting the traditional conception of law and weakening the law of states. In contrast, as legal systems (both official and unofficial) rest on certain fundamental principles and protect similar values, such as life, health, property, freedom, equality, dignity, etc., it can be claimed that legal pluralism can also have an integration potential. This integration potential is based on the above-described foundation of law (consisting of universal principles, values, recognised doctrines and also public interests). Although this foundation is not completely identical in all legal systems, it is much more stable and some of its individual components (e.g., separation of powers, limitation of public authority by law, guarantees of fundamental rights, etc.) are often referred to as a universally valid background of the law.”Ondřejek (n. 1), p. 185.²⁸⁾

First of all, Pokorný assesses my approach as “positivist”, both in the case of the narrower conception of legal pluralism outlined above and in the situation of normative pluralism resulting from the recognition of non-state law (lex mercatoria,lex sportiva, lex digitalis, etc.). According to this broader conception, normative pluralism, in order to be recognized as law, must also follow from the common social fact of recognition.

Pokorný claims that sociological pluralism with broader conception of law exists and finds its support by many scholars.An example is Isabel Trujilloʼs argument that ‘we must not forget that the prevalence of state law is only a chapter in the history of law, not the longest one, and probably not the last one.’ Isabel Trujillo. Introduction: Why (Ever) Define Law and How to Do It. In: Christoph Bezemek and Nicoletta Ladavac (eds). The Force of Law Reaffirmed. Frederick Schauer Meets the Critics. Springer, 2016, p. 1–2. ²⁹⁾ According to him, the main problem of my conception of legal pluralism is the fact that I deliberately refuse to recognise certain social norms as law, unless they have a pedigree following from the state. He continues: “when the states weaken or just look away there can emerge communities that essentially replace failing states law and order.”Pokorný (n. 16), ch. 2.³⁰⁾

As for the problem of recognizing the social norms as law, in the book Defragmentation of Law I cited the “floodgate argument” against the broadening the scope of the non-state law.Ondřejek (n. 1), p. 125 citing William Twining. General Jurisprudence. Understanding Law from a Global Perspective. CUP, 2009, p. 369. ³¹⁾ According to this argument, law loses its specific character when every habitual behaviour is denoted as law.As Frederick Schauer rightly pointed out, ‘however much we wish to broaden our understanding of law to include soft law, non-state law, and other institution that fall under the legal pluralist umbrella, we should be careful not to broaden our understanding of law so much that we lose sight of the fact that law still exists as a differentiated institution on numerous sociological, methodological, and informational dimensions.’ – see Frederick Schauer. Incomplete Responses. In: Christoph Bezemek and Nicoletta Ladavac (eds). The Force of Law Reaffirmed. Frederick Schauer Meets the Critics. Springer, 2016, p. 163.³²⁾ Regarding the problem of states with severely limited statehood, I would stress that my book does not specifically address this issue.Here, I believe that a comprehensive discussion of the various forms of limitation of state power is beyond the scope of this paper. I agree with Risse, who argues that a ‘consolidated and fully sovereign state’ is an ideal, and also that there are hardly any states ‘which lack any authority over their territories and have completely lost the monopoly on the means of violence’. Thomas Risse. Limited Statehood. A Critical Perspective. In: Stephan Leibfried and others (eds). The Oxford Handbook of Transformations of the State. OUP, 2015, p. 153. ³³⁾ At the same time, and perhaps more importantly, it may be questioned, whether the states may simply “look away” without any consequences and without potentially being held liable for failing to protect and promote certain human right protected either by international agreements or as peremptory norms in international law.Dinah Shelton. Normative Hierarchy in International Law. AJIL, 100(2), 2006, p. 291–323.; Andrea Bianchi. Human Rights and the Magic of Jus Cogens. EJIL, 19(3), 2008, p. 491–508.; Erika de Wet. Jus Cogens nad Obligations Erga Omnes. In Dinah Shelton (ed). The Oxford Handbook of International Human Rights Law. OUP, 2013, p. 541–561.³⁴⁾

Although the system of international law does not have the same features of effective enforcement as systems of domestic law, there is a growing recognition of the hierarchy of norms in international law, as well as the status of certain norms as peremptory (or jus cogens).De Wet (n. 34), p. 560.³⁵⁾  As I have shown above in the cases of Medellín and Avena, disrespect for human rights creates strong pressures on states (even including politically powerful states). As Isabelle Trujillo points out, violation of the soft law rule in international law comes with a reputational cost. “A loss of reputation is then a really big cost for the states because they become less credible in the context of international cooperation.”Trujillo (n. 29), p. 12.³⁶⁾

Law as Non-optimal System

In the book Defragmentation of Law, I concluded that the systemic nature of law is crucial for achieving its purposes, one of the most important of which is to stabilise the normative expectations of its addressees. The systemic nature of law is therefore a value in itself, as is justice or equality before the law.Ondřejek (n. 1), p. 187.³⁷⁾

Critical comments by Tomáš Koref and Jan Pokorný highlighted some of the many problems with attempting to outline law as a system. Indeed, the external observer of the functioning of the law must agree with Michael Sampford that we are more likely to observe the disorder of the law rather than legal order.Michael Sampford. The Disorder of Law. A Critique of Legal Theory. Basil Blackwell, 1989.³⁸⁾ So although law is a non-optimal system, it is still important, in my view, to emphasise the value of its systematicity, although this value is certainly not a trump card that always prevails. Thus, in particular cases, we may find stronger arguments for choosing the ad hoc solution (in the case of rule-making, this reason may be a strong democratic support; in the case of judicial decision-making, arguments may be based on individual justice in a given case, which may require an exception to a universally applied general rule). Thus, a key feature of the normative coherentism presented in the book Defragmentation of Law is to highlight the argument for the coherence of law and its systemic character in the processes of law making, legal interpretation, and application of law.

If we accept that law can either be approached as a system, whereby legal acts are situated within that system, or approached in a deliberately different way which denies its systemic character, then the question arises: Are there any relevant arguments for denying the systemic character of law?