The topic of this article deals with an issue that has already been described and evaluated in many, if not all, respects. However, recent cases indicate that some of its aspects require repeated analysis or even reassessment, partly because they are continuously evolving. From the existing extensive literature, which shares a common focus on various aspects of the relevance of judicial decision-making as a distinctive part of every legal environment, particular reference can be made to the collective monograph New Trends in Judicial Law-Making.Miloš Večeřa and others, Nové trendy v soudcovské tvorbě práva (1^st edn, Masarykova univerzita 2015).¹⁾ This work summarizes the development of perspectives on judicial decision-making within the legal environment of the Czech Republic, considering numerous foreign influences over the past three decades of legal development in the country.

When evaluating doctrinal conclusions concerning the significance of judicial decision-making for the legal system, it is impossible to overlook the fact that the development of the role of judicial decision-making in the legal environment follows a predominantly one-way trajectory. It has been gaining increasing autonomy in relation to other actors within the legal framework. It can be assumed that this development is rooted in the fundamental characteristic of the continental legal system—namely, the dominance of statutory law over other potential sources of law, particularly judicial case law, and consequently, the dominance of legislative power over judicial power. In this context, it is essential to recall the provision of § 8 of the General Civil Code: "Only the legislature has the power to interpret the law in a generally binding manner. Such an interpretation must be followed in all legal cases that have not yet been decided, unless the legislature has specified that its interpretation should not apply to the resolution of legal cases concerning actions taken and rights asserted before such an interpretation was issued." To remove any doubts, the Austrian legislator further clarified this principle in § 12: "Regulations issued in individual cases and judgments rendered by judicial authorities in specific legal disputes shall never have the force of law and cannot be applied to other cases or other persons."For a partial commentary on this provision see Zdeněk Kühn, ‘Kapitola třetí: Právotvorba soudcovská. I. Klasické civilní kodexy a otázka soudcovské právotvorby.’ in Aleš Gerloch and others, Teorie a praxe tvorby práva (1^st edn, ASPI 2008) 92, 94. ^2),The provisions of Section 7 of the General Civil Code cannot be overlooked in this context: "If a legal case cannot be decided either by the words or by the natural sense of the law, it is necessary to look to similar cases apparently decided in other laws, and to the reasons of other related laws. If a case of law remains doubtful, it must be decided according to the natural principles of law, taking into account the circumstances carefully summarized and maturely considered." Significantly, there is a complete absence of reference to case law or doctrine as a source of possible rules for remedying deficiencies in the law. According to Esser, this concept primarily confirms the monopoly of an all-encompassing statutory law that is "at hand" in every situation and should and must be applied. Cf. Josef Esser, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (Tübingen 1956) 149. For the sake of fairness, it should be recalled that the Austrian legislator had no illusions about the completeness of statutory law, as evidenced by F. Zeiller's opening speech to the Court Commission on Legal Affairs in 1801: "Civil laws must ... be complete. There must be no legal case which cannot be decided according to the law and the rules contained therein. This requirement is unquestionably the most difficult, and every legislation must fail on it, if it sets itself the object of exhausting all cases by the words of the law; if it the judge to a literal (buchstäblich) application of the law; if it forbids him all interpretation, whether from the spirit of the law or from general principles: in short, if it resolves to make judges into machines speaking the law." Quoted from Sigrid Jacoby, Allgemeine Rechtsgrundsätze: Begriffsentwicklung und Funktion in der Europäischen Rechtsgeschichte (Duncker und Humbolt 1997) 68.⁴⁾

If legal thought was to evolve in any direction, it could only be one that deviates from these rules—toward the independence of judicial decision-making and judicial interpretation of law, ultimately leading to judicial law-making. There is no other path. If the legislator has been granted a key role in the legal system as the sole creator of law, then other actors within the legal framework can assert themselves only at its expense. As will be briefly suggested later, the Anglo-American (or common law) legal system has undergone a partially opposite development—shifting from the dominance of judicial power to the dominance of legislative power. It seems to be a general pattern that when societal development in a particular area reaches its peak, it subsequently turns in a different direction.

The reasons for the increased interest in the significance of judicial decisions, judicial interpretation of law, and the judicial shaping or creation of legal rules were undoubtedly not only ideological but also pragmatic. Although judicial decisions were not supposed to be a source of law according to the General Civil Code (they were not meant to have the force of law), the inherent principles of the legal order inevitably led to the need to recognize the relevance of judicial decision-making for practical legal life. The basic idea of justice, which requires consistency in decisions for identical cases, had to, via fact, overcome the prohibition of the general binding nature of judicial decisions, or judicial interpretation of the law. A similar conclusion is reached by the requirement for the predictability of judicial decision-making in individual cases and some related principles.

The Austrian tradition is, of course, not the only one in the continental environment. Other countries have approached the same issue differently. An example is the Swiss Civil Code, which instructed judges, in cases of silence or ambiguity in the law, to decide "as if they were the legislator"Article 1(2) ZGB: „Kann dem Gesetz keine Vorschrift entnommen werden, so soll das Gericht nach Gewohnheitsrecht und, wo auch ein solches fehlt, nach der Regel entscheiden, die es als Gesetzgeber aufstellen würde.“⁴⁾. However, this concept did not gain acceptance in the domestic legal environment.

Despite this, the trend is clear and, as suggested, consists of the gradual independence of judicial decision-making in the sense of expanding the relevance of judicial interpretation of the law at the expense of legislative norm-setting, which grows into judicial law-making.

1. Judges as Original Creators of Law?

From the somewhat abbreviated introduction, the question arises whether a state has already been reached where one can speak of judicial law-making in the full sense of the term, i.e., whether judicial case law has achieved the status of an autonomous source of law, a source of legal rules that is independent of other sources of law.The concept of autonomous law is understood here as defined by Lech Morawski and Marek Zirk-Sadowski, ‘Precedent in Poland’ in Neil D. MacCormick, Robert S. Summers and Arthur L. Goodhart (eds), Interpreting Precedents: A Comparative Study (Dartmouth Publishing Company Limited 1997) 233. ⁵⁾ Domestic literature so far seems to be rather cautious on this issue. The previously mentioned collective monograph by authors from the Law Faculty of Masaryk´s University mainly speaks of "shaping the law"Večeřa and others (n 1) Chapter 1.1.2 Interpretation of the Law and Shaping the Law, Chapter 1.1.3 Different Forms of Shaping the Law, and even Chapter 1.3, titled optimistically Judicial Law-Making in the Context of Postmodernism, specifically Subchapter 1.3.2 Judicial Law-Making, ultimately tend to emphasize "shaping the law", although it concludes by summarizing that "[j]udicial law represents the creation or shaping of binding rules of behaviour a posteriori".; Ibidem, 66.⁶⁾ and avoids conclusions about judicial law-making in the autonomous sense.Similarly, one of the most recent doctoral theses defended at the Faculty of Law of Charles University, authored by Patrik Koželuha, bears the fairly "standard" title The Boundary Between Interpretation and Shaping the Law, without the ambition to search for cases of original judicial norm-setting. Likewise, Pavel Mates writes about the role of courts in "shaping administrative law", noting that the boundaries of this shaping are continuously shifting. However, he still speaks only of "shaping" the law [see Pavel Mates, ‘The Role of Courts in Shaping Administrative Law’ (2018) Právník 4, 333–342]. A somewhat more promising title is Ivo Pospíšil’s online contribution, Judicial Case Law and Shaping or Reshaping the Law? Examples from the Application of the Freedom of Information Act, which asks whether "we are already at the boundary where judicial case law exceeds what is within its competence, and instead of applying laws, it reshapes them and creates primary norms on its own". See Ivo Pospíšil, ‘Judicial Case Law and Shaping or Reshaping the Law? Examples from the Application of the Freedom of Information Act’ (2019) Právní prostor <https://www.pravniprostor.cz/clanky/ustavni-pravo/soudni-judikatura-a-dotvareni-ci-pretvareni-prava-priklady-z-aplikace-zakona-o-svobodnem-pristupu-k-informacim> accessed on February 15, 2025.⁷⁾ The idea of the dominance of written law, the concept of the separation of powers, and the very fact that positive (written) law refuses to recognize judicial decisions as a source of law are probably still such strong factors that acknowledging judicial decision-making as an autonomous source of lawSee Article 95, paragraph 1 of the Constitution, the content of which is gradually modified by legal provisions: specifically, Section 13 of the Civil Code, the regulation of conditions for appeal proceedings in Section 237 of the Civil Procedure Code, the introduction of the mechanism for changing the case law of the highest courts in the Act on Courts and Judges (Section 20 of Act No. 6/2002 Coll.) and in the Administrative Court Procedure Code (Section 17 of Act No. 150/2002 Coll.), as well as in the Constitutional Court Act (Section 23 of Act No. 182/1993 Coll.).⁸⁾ is not easy. In these cases, judicial decision-making takes place within the field of interpreting existing law (and if something already exists, it cannot be said to be newly created), or its completion in cases of incompleteness, gaps, etc. However, shaping the law is not the same as creating it; it is about supplementing what already exists, partially or fundamentally.

The most common objection to the idea of a judge as a creator of law is the claim that the judge always decides based on the law, which represents at least a basic starting point for their reasoning, even if it is vague or unclear. In other words, according to this assumption, a judge in the continental European system cannot become an original creator of legal rules. This argument can be considered misleading for several reasons.

If we use the position of the true legislator (parliaments) as a starting point for comparison, it is clear that even in their case, it cannot be claimed that they are always the original creator of the law. They are limited by the constitutionSee, for example, the requirement of the Constitutional Court expressed in the judgment file No. Pl. ÚS 27/09, according to which the condition for issuing an ad hoc constitutional law is an explicit constitutional authorization: "The original constitution-maker in Article 9, paragraph 2 of the Constitution placed the principle of democracy and the rule of law on the same level as principles fundamentally identifying the constitutional system of the Czech Republic. As follows from the case law of the Constitutional Court, a violation of the principle of the generality of law falls within the framework of an unacceptable disruption of the rule of law. Possible exceptions are either cases of adopting an act of application of law in the form of a law (e.g., the state budget law), cases of explicit authorization to issue an ad hoc law (e.g., constitutional laws issued under Articles 11 and 100, paragraph 3 of the Constitution), or ad hoc laws for which exceptional reasons satisfying the proportionality test exist (e.g., "enumerative" restitution laws). In the absence of constitutional authorization to issue ad hoc constitutional laws, the constitutionality of a constitutional law passed in violation of the framework of competence defined by the Constitution and Parliament could only be based on the protection of the material core under Article 9, paragraph 2 of the Constitution. In other words, the protection of the democratic rule of law in the form of adopting an ad hoc constitutional law could be accepted only under absolutely exceptional circumstances (such as wartime or natural disasters, the resolution of which is not permitted by either the Constitution or Constitutional Act No. 110/1998 Coll., on the security of the Czech Republic, as amended by Constitutional Act No. 300/2000 Coll.), with such a procedure having to meet criteria derived from the principle of proportionality."⁹⁾ and often by the international commitments of the state, which they must respect. Nevertheless, no one would doubt that the law is an original source of law and that the legislator is the original creator of norms. This simply implies that the existence of certain binding elements that exclude an absolute degree of autonomy (the ability to regulate and normatively control any area of social relations) does not mean that it is not autonomous law-making.

The claim that a continental judge always relies on an existing source of law in their decision-making has, among other things, its origins in comparing their position with that of a judge in the Anglo-American legal cultureVečeřa and others (n 1) 37–39.^10),Zdeněk Kühn, ‘Význam proměny soudcovské ideologie aplikace práva ve světle ústavní judikatury let 1993–2003’ (2004) Právní rozhledy 4, 123 ff. ¹¹⁾, where the judge is sometimes considered an autonomous creator of law in certain cases. Therefore, it is an attempt to describe and distinguish the position of a continental judge in such a way that this description fits into the continental European idea of a judge bound by the law as a key feature of this type of legal culture, which must differ from the Anglo-American concept.

Even in the Anglo-American (Anglo-Saxon) approach, the role of the judge as a law-creating entity is not understood uniformly, as evidenced by the so-called declaratory theory of precedent, which dominated English legal thought in the 18^th century. The premise of this concept is that judges, when deciding individual cases where no existing precedent is available, do not interpret and apply legal provisions nor create law with their decision. Instead, they find the law as already existing, though hidden, and consistent with what aligns with shared morality and ethics. The declaratory theory of precedent had, of course, many opponentsJeremy Bentham, ‘Truth versus Ashhurst, or Law as It Is, Contrasted with What It Is Said to Be’ in John Bowring (ed), The Works of Jeremy Bentham, vol. 5 (William Tait 1843) 235; John Austin, Statute and Judiciary Law (Murray 1879) 655; Lord Reid, ‘The Judge as Law Maker’ (1972–1973) Journal of the Society of Public Teachers of the Law 12, 22. ¹²⁾, as well as defenders. Opponents of this concept were largely supporters of legal positivism, who, by denying the relevance of this doctrine, contributed to the assertion of the doctrine of parliamentary sovereignty, the subordination of the judiciary to the legislature, and the resulting dependence of case law on legislation.Brian Zamulinski, ‘Rehabilitating the Declaratory Theory of the Common Law’ (2014) 2 Journal of Law and Courts, Cambridge University Press 1, 172.¹³⁾ Defenders of the declaratory theory emphasize that it can be an appropriate tool for potentially limiting the legislature in law-making, particularly when the laws being enacted are in conflict with morality. In such a case, the judge has a duty not only to interpret the law but also to assess it from this perspective. However, this does not only refer to a conflict with morality in the narrow sense of the word, but also to cases where the law contradicts other existing rules, such as obligations in the field of human rights protection.Ibidem.¹⁴⁾

A certain parallel to the declaratory theory can be found in domestic case law, for example, in the judgment of the Constitutional Court, file No. Pl. ÚS 33/97. In this ruling, the Constitutional Court raised the issue of the recognisability of general legal principles, which it referred to as unwritten sources of law, asserting that "they apply and are commonly used". If this is the case, and they are not "written", they must be "unveiled" as already existing when a court intends to base its decision on them.On the issue of legal principles cf. e.g. Zdeněk Kühn, Aplikace práva ve složitých případech, k úloze právních principů v judikatuře (Karolinum 2002); Jan Tryzna, Právní principy a právní argumentace (Auditorium 2009).¹⁵⁾

If we wish to distinguish between a continental judge and an Anglo-American judge, who is assumed to originate law in certain cases, we must assert that the continental judge does not do so. Otherwise, we would have to admit that the positions of the continental and Anglo-American judge are not so fundamentally different, which would weaken the established distinction between these two major legal systems. However, since it cannot be denied that, in many cases, judicial decision-making does not consist of the "simple application" of legally unambiguous rules, and since a certain fluctuating degree of creativity in judicial activity cannot be denied, various forms of law-making are discussed.

This conclusion is both theoretically and empirically disputed. In terms of the theoretical part of the problem, it is necessary to draw a line between "completing" and "creating" legal rules.The above mentioned collective monograph [Večeřa and others (n 1)] lists various examples of the completion of law (“dotváření práva”) , which can be categorized as follows: p.18 – (1) decision clarifying the content of a rule, but still within the boundaries of the literal meaning of the interpreted provision, (2) decision remaining within the text of the law, which, however, is formulated very vaguely, such as in the case of general clauses, (3) decision departing from or exceeding the law’s text, (4) decision introducing a new legal institute into the legal system, which the monograph refers to as examples of "judicial lawmaking", p. 26 – (5) completing the text of the law praeter verba legis, i.e., applying an analogy to "negative candidates", those outside the widest possible linguistic meaning, (6) completing the text of the law contra verba legis, a process in which a teleological reduction excludes certain subjects from the legal concept, even though, based on the wording of the law, those subjects would be included, p. 145 ff. – (7) change in judicial interpretation (jurisprudence), etc. ¹⁶⁾ In my opinion, this line is very clear. The completion of a legal rule occurs when the rule is not supplemented by an element that was not previously included in any form. The creation of a rule happens when the rule acquires a new, previously non-existent element. In the first case, "completing" the law means selecting from alternatives that the rule already contains in some form, even if it is very abstract, including in the negative case (i.e., where the rule excludes its application to a particular case, but it is still applied). Such cases also include so-called judicating contra legem, which involves excluding the application of the rule to a case it would otherwise apply to, typically with reference to a constitutional principle.„The possibility of interpretation contra legem, i.e., in contradiction with the explicit wording of the legal provision (without such a conclusion being permitted by the text of the interpreted provisions, even if understood somewhat more loosely), arises only exceptionally, e.g., in cases where it is necessary to fill a gap in the law or, conversely, in the case of teleological reduction, and exclusively in situations where such an application procedure requires an important reason arising from the constitutional order." (Ruling of the Supreme Administrative Court, file no. 5 As 154/2016–62, dated August 29, 2017).¹⁷⁾

In contrast, cases of judicial law-making can be seen as situations where the rule is supplemented with an element that it does not contain by itself. A fitting example is the "interpretation" of Article 50, paragraph 1 of the Constitution adopted by the Constitutional Court in the aforementioned ruling, file No. Pl. ÚS 33/97, which leads to the reformulation (or new construction) of the provision as follows: "The President of the Republic has the right to return an adopted law, except for constitutional laws, with justification within fifteen days from the day it was forwarded to him. If the last day of the period falls on a Saturday, Sunday, or public holiday, the last day of the period is the nearest following working day." In none of its provisions does the constitutional order account for "non-working" days. The addition of such a condition or exception is, therefore, not an interpretation of the existing rule, but the creation of a new rule, one that did not previously exist.However, it is a matter of reconstructing the chosen interpretation whether it is, after all, a "simple" interpretation that includes a systematic interpretation taking into account those unwritten legal principles. Since there may be reasonable doubt about the existence of "unwritten rules" regarding the calculation of time, it can at least be argued from this perspective that it was a case of creating a new legal rule. Compare this with the persuasive dissenting opinion of Ivana Janů on this ruling, which is often completely overlooked. Nonetheless, it should be assumed that proponents of the concept of "mere" judicial development of law will consider this example as just such a case, rather than as a case of original law-making.¹⁸⁾ If we were to look for an alternative in the form of "true interpretation" of the stated rule, we could, for example, debate whether individual days of the period should be considered only working days (for some reasonable purpose), or all calendar days, etc.

Another appropriate example could be the ruling of the Constitutional Court, file no. Pl. ÚS 27/09, which concerned Constitutional Act No. 195/2009 Coll., on the shortening of the fifth electoral term of the Chamber of Deputies, specifically regarding the competence of the Constitutional Court to review constitutional laws, when this competence is confronted with the provision of Article 87, paragraph 1, letter a) of the Constitution, according to which the Constitutional Court decides on the annulment of laws or their individual provisions if they are in conflict with the constitutional order. It is clear that, in this context, the cited provision cannot be interpreted in such a way that it establishes the competence of the Constitutional Court to review the compliance of constitutional laws with the constitutional order; the opposite conclusion, therefore, means the creation of a new, previously non-existent rule.Authoritative support for this conclusion can be found in the dissenting opinion of Judge Jan Musil to the ruling (point 30), where he states that "the above assertions go beyond the role of the Constitutional Court as a negative legislator and appropriate the competence of positive law-making by creating new constitutional rules". The statement of the dissenting judge relates not only to the Constitutional Court's authority to review the constitutionality of constitutional laws but also to other aspects of the ruling.¹⁹⁾

The creation of legal rules through judicial decisions does not necessarily have to concern individual provisions of legal acts that are supplemented with new elements. It can also pertain to entire legal institutes, with the most suitable example being the concept of the temporal scope of legal regulations (retroactivity) created by the case law of the Constitutional Court from 1994 to approximately 2016. In shortIn detail cf. Jan Tryzna, Retroaktivita v právu (Auditorium 2024) 126–169.²⁰⁾, it involves the fact that, due to the "silence" of the constitution-maker and legislatorCf. on the contrary the explicit historical activity of the legislator in the form of Section 5 of the General Civil Code: "Laws do not operate retroactively; they therefore have no effect on acts that have previously occurred and on rights previously acquired." ²¹⁾ on the issue of prospective or retroactive application of legal regulations, over time, the case law of the Constitutional Court established rules regarding the permissibility or impermissibility of enacting retroactive legal regulations, or rules concerning the temporal effects of legal regulations lacking the relevant transitional provisions. If, aside from entirely general legal principles (principles of the rule of law, principles of legal certainty), there are no such legal rules in the Czech legal order that can be applied, we must accept the fact that these rules were originally created by the case law of the Constitutional Court. This conclusion is not altered by the fact that the Constitutional Court was inspired by Czechoslovak legal traditions, selected foreign case law, etc., as even in such cases, the rules it created were original. Only in the case of retroactivity in criminal law can we speak of an interpretation or supplementation (explication) of existing legal rules in light of Article 40, paragraph 6 of the Charter of Fundamental Rights and Freedoms.

If we can make the partial conclusion that at least some specific instances of judicial decision-making can be considered as original creation of legal rules, the question remains whether there are certain limits to this law-making. The fact that finding an adequate solution is complex is demonstrated by the following section dealing with case studies.

2. Limits of Original Judicial Creation of Law

Despite the aforementioned examples of original judicial law-making (or "creation"of law), it can be assumed that there should be certain boundaries that a court cannot, or rather should not, cross. A practical issue may arise from the fact that in the legal environment, the view of the one who makes the final decision usually prevails, and the final decision-maker in a potential dispute between the legislative and judicial branches is ultimately always the court.A current example of such a dispute is the issue of the legal regulation of the salaries of constitutional officials following the ruling of the Constitutional Court, file no. Pl. ÚS 5/24. After the Parliament re-passed the amendment to Act No. 236/1995 Coll. (overriding the veto of the President of the Republic), many are now claiming that the new regulation is in conflict with the Constitutional Court's ruling and have announced their intention to challenge the law before the Constitutional Court once again. The Constitutional Court will thus once again become the arbitrator in the dispute between the judiciary and Parliament.²²⁾ These limits are likely to be found in the general principle of the separation of powers, meaning the court should not interfere with areas regulated by the legislator. On the other hand, the question arises whether the court can enter into areas left unregulated by the legislator. In both cases, the limitation will ultimately lie with the judiciary in the form of accepting the element of judicial self-restraint, which is an important part of the debate on the legitimacy of judicial decision-making.Cf. e. g. Richard A. Posner, ‘The Meaning of Judicial Self-Restraint’ (1983) 59 Indiana Law Review 1, 1–24. ²³⁾

The search for such boundaries can be quite complex in practice, as demonstrated by the very cases that have inspired this text.

The first example is the ruling of the Constitutional Court, file no. Pl. ÚS 23/24, in which the Court annulled a previous decision of the Supreme CourtSupreme Court Resolution No. 22 Cdo 1946/2023-452 of 26 July 2023.²⁴⁾. The case concerned the interpretation and application of Section 742(2) of the Civil CodeThe provision reads as follows: "The value of what has been expended from the joint property on the exclusive property of one spouse, as well as the value of what has been expended from the exclusive property of one spouse on the joint property, is taken into account when settling the joint property, increased or decreased depending on how the value of the part of the property to which the expense was applied has increased or decreased from the day the expense was incurred until the day the joint property was reduced, dissolved, or extinguished."²⁵⁾ regarding the so-called valorization of contributions from the joint property of spouses to the exclusive property of one spouse, or from the exclusive property of one spouse to the joint property. The Supreme Court interpreted this provision in such a way that indexation of contributions would only be applicable if the spouses had agreed to it. Exceptionally, this rule could be corrected by referring to Section 2(3) of the Civil Code (the corrective of good morals), which could overcome the lack of agreement. The conclusions of the Supreme Court were, of course, supported by specific arguments, the essence of which was that automatic indexation of contributions does not fit within the concept of regulating private legal relations between spouses, or private legal relationships in general. The Supreme Court compared the rule on indexation of contributions to a loan, which is generally interest-free (interest must be agreed upon), and thus there is no reason to assume that one spouse should be favoured by an increase in the value of the property in question, which is typically dependent on objective, independent factors. Moreover, this typically concerns only certain types of property values (e.g., real estate, which was the case in this particular instance), not other values (e.g., a personal car).

For the Constitutional Court, the principle of the separation of state powersPoint 31of the reasoning in the ruling No. Pl. ÚS 23/24: "While the legislative power is responsible for creating laws, the task of ordinary courts is to interpret and apply laws. While the legislator is bound by the constitutional order, the ordinary courts are bound by the law (Article 95, paragraph 1 of the Constitution)."²⁶⁾ became decisive. The Constitutional Court outlined the boundaries between interpretation, development, and creation of law, accepting that judicial development, which involves stepping beyond the broadest limits of possible linguistic interpretation, is permissible as long as it respects the "generally recognized methodology" of law-makingIn this context, it primarily involves distinguishing between intentional (deliberate) and unintentional gaps in the law.²⁷⁾. The final limit is the rule that "the substantive meaning of an act of a democratically elected legislature cannot be entirely redrawn by interpretation. The democratic nature of the state requires that the clearly expressed and intended will of the legislator is reflected in the application of the law, unless there is a substantial change in the relevant circumstances." In terms of the mentioned methodology, the Supreme Court proceeded by identifying a so-called teleological (false) hidden gap in the law in § 742(2) of the Civil Code, stepping beyond the linguistic meaning and developing the law using teleological reduction. Based on this assumption, the Supreme Court concluded that the linguistic meaning of this provision is broader than required by its teleological background or the purpose of the law, in the context of the regulation of property relations between spouses. Therefore, it narrowed the applicability of § 742(2) of the Civil Code regarding the valorisation of contributions directly under the law only to cases where the parties explicitly agreed to it (in the specific case, no agreement was concluded or proven). According to the Constitutional Court, the Supreme Court erred by not clarifying whether the alleged gap in the law was intentional or not, whereas the explanatory report to the Civil Code clearly indicates that the legislator intended to change the previous method of valorising contributions. Alternatively, the Supreme Court failed to consider whether, since the Civil Code's entry into force, there had been a change in circumstances that would justify a different approach than that which the legislator intended. In other words, in this case, the Supreme Court exceeded the limits of judicial development of the law.

From the perspective of the relationship between the supplementation and creation of law, the described case can be evaluated as an example of original creation of law because the application of the rule required the fulfilment of a condition not indicated by the law in any form. The Constitutional Court describes this case as an example of teleological reduction, which seems inappropriate. The essence of teleological reduction is to narrow the scope of a legal norm by excluding certain elements of the norm's hypothesis that the norm contains. However, in this case, the necessary element (the agreement of the spouses) was added.It should be noted that such a distinction is often not applied, or cases are considered examples of teleological reduction even when the narrowing of the interpreted rule's scope is achieved by both removing and adding elements. A narrower interpretation is, for example, advocated by A. Kramer – see Ernst A. Kramer, Juristische Methodenlehre (4^th edn, C. H. Beck, MANZ, Stämpfli 2013) 64.²⁸⁾ Moreover, this case does not align with the concept of teleological reduction advocated by the Supreme Court, which views teleological reduction as "a tool for supplementing the law, where only the "core" of the legal provision or legally regulated concept is applied to a particular factual situation, even though a broader or more specific interpretation of the norm could also be used"Supreme Court Judgment No. 28 Cdo 2143/2018 of 27 November 2018.²⁹⁾. It seems logical that if a norm is too broad, we omit certain conditions (elements of the hypothesis), thus narrowing the scope of its application. However, in this case, each instance of a contribution directly affects the core of the legal provision, and to achieve such a reduction, a condition must actively and positively be added. Although the addition of the condition in the form of the spouses' agreement leads to a narrowing of the scope of the norm, the result depends on the introduction of a new condition, not the removal of an existing one. This is where the active, law-creating element must be identified.

The second decision of the Supreme Court, which the Constitutional Court responded to, concerns the interpretation of Section 135(2) of the Civil CodeJudgment of the Supreme Court, Case No. 23 Cdo 327/2021 of 30 November 2021; Ruling of the Constitutional Court, Case No. Pl. ÚS 26/24.³⁰⁾. In this case, the Supreme Court dealt with whether a legal entity could successfully claim compensation for non-pecuniary damage caused by an unlawful interference with its reputation within the framework of protection of its reputation. Given that the legislator did not include unlawful interference with the reputation of a legal entity in the list of specifically defined cases related to the right to compensation for non-pecuniary damage under Section 2894(2) of the Civil Code, the Supreme Court concluded that, after the new Civil Code came into effect, a legal entity does not have such a right. The reasoning of the Supreme Court, as well as the subsequent reasoning of the Constitutional Court leading to different conclusions, was extensive, and it is not the purpose here to summarize it. From the perspective of the methodology of permissible judicial law-making or interpretation, it is essential that, according to the Constitutional Court, the denial of the possibility to claim compensation for non-pecuniary damage (satisfaction) through a violation of the right to protect one's reputation under Article 10(1) of the Charter, which the Constitutional Court holds also applies to legal entities, must be considered in terms of proportionality. After a negative answer to this question, the Constitutional Court concludedPoint 110 of the reasoning of the ruling.³¹⁾ that the Civil Code represents a gap in the law, which can be addressed by analogy, provided that from the legislator's perspective, it is an unintended gap. Since the Constitutional Court found that "the intent of the legislator to deprive legal entities of the possibility to claim appropriate satisfaction in the case of interference with their reputation has not been unequivocally proven; in particular, there was no clear intention or at least a statement in the explanatory report to deviate from the previous legal regulation and lower the standard of protection of the reputation of legal entities", the presumption of an unintended gap applies, which must be overcome in the interest of teleological and value consistency within the legal order.

The ruling was supplemented by a dissenting opinion from five judges, who stated that the previous jurisprudence of the Constitutional Court had been based on the specific status of legal entities, accepting the natural inequality between individuals and legal entities. As a result, it was "only the current ruling that granted legal entities protection of their good reputation under Article 10(1) of the Charter and the constitutional right to compensation for non-pecuniary damage in cases of unlawful interference with their reputation"Point 6 of the dissenting opinion.³²⁾. The dissenting judges concluded that "it is certainly not the task of the Constitutional Court to project its ideas of better law into the valid Civil Code as some sort of alternative legislator". With support from the separate opinion, this case can thus be assessed as an instance of judicial creation of law, rather than judicial law-making or interpretation.

Based on these two examples, where it is noteworthy that in one case the Supreme Court "incorrectly" found a gap in the law, while in the other it "incorrectly" failed to find one, though the Court's conclusions were not arbitrary (unjustified or unreasoned), it can be stated that the limits or boundaries of judicial law-making are, despite efforts to maintain a certain methodology, very vague.

Both decisions raise further questions that will be the subject of interest. These include the reasons for judicial law-making, as well as the conditions under which such judicial law-making can occur.

3. The Gap in the Law as a Reason for Original Judicial Creation of Law

It is clear that the reason for any lawmaking is the finding that the legal regulation is insufficient or incomplete, i.e., has a gap. This applies not only to legislators but also, as demonstrated above, to judicial decision-making. In both cases (and, of course, there are many more in the case law), the conclusion about the necessity of teleological reduction, or alternatively, the necessary use of analogy, was justified by a gap in the legal regulation. In both cases, this was due to the absence of a certain element. In the first case, it was the wrongly absent limiting condition of the necessary agreement between spouses regarding their contributions; in the second case, it was the absent group of subjects (legal entities) regarding the recognition of the right to redress for an infringement of reputation.

I believe that the concept of "gaps in the law" is currently often used in the spirit as it was (critically) described by Hans Kelsen. According to him, a "gap" is a gap in the sense that the deciding body considers the solution dictated by the legal order (whether it is a dismissive decision or not) as "unnecessary or unjust". He argued that "gaps are therefore nothing more than another term for the differentiation between positive law and the order considered to be better, fairer, and more just"Hans Kelsen, Ryzí nauka právní: Metoda a základní pojmy (Orbis 1933) 45.³³⁾.

It is also important to remember that the concept of gaps in the law was originally shaped with regard to the principle of the prohibition of denegationis iustitiae. The legislator's assumption about the completeness of the legal regulation did not stem from a belief in the completeness of their legislative work but rather from the requirement that every case must be decided, or from the prohibition of not deciding a case due to the incompleteness or ambiguity of the statutory regulation.Klaus F. Röhl and Hans C. Röhl, Allgemeine Rechtslehre (Köln, Bonn, Heymann 1994) 303.³⁴⁾ However, it should be added that the prohibition of denegation denegationis iustitiae only requires a decision (it forbids not deciding). It does not in itself impose any requirement on the outcome of the decision. In other words, a potential claim can also be rejected, which is sufficient to fulfill this principle. Nevertheless, the current approach seems to deviate significantly from this concept, as it appears that a gap in the law is identified precisely when (seemingly) it prevents a positive decision.

Therefore, it is necessary to recall the statement of B. Rüthers: "The argument of a gap is particularly suitable for loosening the constitutionally anchored binding of judges to the laws or for completely freeing them from it. It often leads judges, when they are dissatisfied with the legal regulation of a certain matter, to not apply the unsatisfactory law, but instead go 'searching for a gap.'"Bernd Rüthers, ‘Dotváření práva soudci’ (2003) Soudce 8, 6. ³⁵⁾ Both of the cases mentioned above are evidence of such an approach.

The author of this text does not aim to deny the concept of gaps in the law, but rather to highlight, through the specific examples provided above, the problems that arise in this context. Moreover, the prevailing communis opinion doctorumFrom numerous literature cf. especially Claus W. Canaris, Die Feststellung von Lücken im Gesetz (1964); Ernst Zitelmann, Lücken im Recht (Dunker und Humbolt 1903); Carlos E. Alchourrón and Eugenio Bulygin, Normative Systéme (1994) 184 ff.; Pavel Holländer, ‘Mezera v zákoně, § 7 o. z. o. a ryzí nauka právní (Poznámky k úvaze Franze Bydlinského)’ in Tatiana Machalová (ed), Místo normativní teorie v soudobém právním myšlení (K odkazu Františka Weyra a Hanse Kelsena) (conference paper, MU Brno 2003), and of course the works of F. Melzer, J. Wintr and others. ³⁶⁾ clearly leads to the conclusion about the relevance of the phenomenon of gaps in the law, which is also supported by positive legal assumptions (cf. § 10 of the Civil Code).

In the contexts mentioned, it is appropriate to point out only one particular aspect associated with the question of gaps in the law, namely the assumption of the impossibility for the legislator to foresee all possible situations and legal relationships brought about by everyday life.Večeřa and others (n 1) 66; Hart is quoted: „Human legislators cannot know all possible combinations of circumstances that the future may bring.“ Herbert L. A. Hart, Pojem práva (Prostor 2010) 133.³⁷⁾ This formulated assumption is too broad and therefore misleading, as clearly demonstrated by the above-mentioned cases. In the case of the valuation of contributions, the Supreme Court argued that the valuation of contributions is essentially the only case of this kind in the property relations between spouses, or more broadly in the context of private law, which otherwise assumes that the appreciation of certain assets can only occur based on the agreement of the parties to the legal relationship. In contrast, in the case of the legal person's right to compensation for the infringement of its good reputation, the Supreme Court argued that this is the legislator’s intention, who grants legal persons the right to compensation in certain cases (economic competition and other cases expressly mentioned in the law), but excludes it in others (argument per eliminationem). From the perspective of the subsequent argumentation of the Constitutional Court, the difference was that in the case of the valuation of contributions, it was hardly possible to find any constitutionally relevant argument leading to the conclusion that it would be constitutionally inadmissible for the rule on the valuation of contributions to apply automatically, so to speak. On the other hand, in the second case, the Constitutional Court found this constitutional requirement when it subsumed the right to protection of the legal person’s good reputation under Article 10, paragraph 1 of the Charter and subsequently concluded that this right was limited by the statutory regulation in violation of the principle of proportionality.

From this, one can deduce the necessary correction of the aforementioned assumption of the incompleteness (gap) of the law, which can only be considered when its incompleteness (the omission of a certain circumstance or fact by the legislator) is found in light of constitutional or equivalent rules. Acceptance of this approach would lead to a clearer distinction between cases where the legislator makes a purely political decision reflected in the content of the law and cases where this political decision is limited by normative reasons primarily stemming from constitutional rules, or in the present day also from international commitments or decisions of international or supranational courts. However, it is impossible to ignore the fact that accepting this approach would significantly reduce the possibility of utilizing the claimed gaps in legal regulations based on teleological or contextual arguments formulated at the level of the law itself. This would likely diminish the relevance of advanced interpretive methods, which are currently strongly defended, as they are seen as a tool for addressing various deficiencies in the lawEspecially the works of J. Wintr, F. Melzer, P. Holländer and many others.³⁸⁾. From a methodological standpoint, the concept of unconscious gaps in the legal regulation would become significantly less applicable. Current methodology for "filling" gaps in the law allows for their filling only in cases where the gap is unconscious"As a matter of principle, a judge is not empowered to fill a conscious gap in the law." Cf. rulings of the Constitutional Court, Case No. III ÚS 2264/13, Case No. II ÚS 1578/21, or point 36 of the Constitutional Court's ruling, Case No. Pl. US 23/24. Similarly, with the opposite consequence for unconscious gaps, point 121 of the judgment of the Constitutional Court in Case No. Pl. ÚS 26/24. ³⁹⁾, but this can only be identified at the level of the law with the help of teleological or contextually evaluative reasoning.

If we proceed from the definition of gaps in the law by F. Melzer, then a significant part of it would remain unusable: "For a given problem, there is no applicable provision from a linguistic perspective, but one would have to exist if the legislator were consistent with the legislative plan, in accordance with what the legal order as a whole requires. This legislative plan, in turn, stems primarily from already existing value decisions and the hierarchical structure of the legal order."Filip Melzer, Metodologie nalézaní práva. Úvod do právní argumentace (1^st edn, C. H. Beck 2009) 221.⁴⁰⁾ The relevance would ultimately lie in the reference to the hierarchical structure of the legal order, which can be understood as an instruction to take constitutional rules into account.

A partial advantage of such a proposed limitation of the concept of gaps in the law would also be the exclusion of a substantial part of the considerations regarding whether the gaps in the law are conscious or unconscious, which is precisely what determines their potential filling through judicial lawmaking. The pitfalls of this issue are hinted at by the Constitutional Court in its judgment file no. Pl. ÚS 23/24 in comparison with its judgment file no. Pl. ÚS 26/24. In the first case, the Constitutional Court stated that in the matter of the valuation of contributions, it was clearly stated in the explanatory report to the Civil Code that the previously applied principle of reduction of contributions was to be supplemented by the principle of their valuation, to which the legislative regulation of the explicitly formulated provision of Section 742, paragraph 2 of the Civil Code corresponded.Cf point 29 of the reasoning of the ruling of the Constitutional Court in Case No. Pl. ÚS 23/24.⁴¹⁾

In contrast, in the second judgment, the Constitutional Court stated: "The intention of the legislator to deny legal persons the possibility to claim appropriate compensation for an (actual) interference with their reputation was not clearly proven; in particular, there was no clearly expressed intention in the explanatory report to deviate from the previous legal regulation and lower the standard of protection of the reputation of legal persons. If it was not proven that a rational legislator created a conscious gap in the law, it is necessary to proceed with the assumption that it is an unconscious gap. This fulfills the basic assumption for the development of the law."Cf point 121 of the reasoning of the ruling of the Constitutional Court in Case No. Pl. ÚS 26/24.⁴²⁾

The Constitutional Court's requirements regarding the proof of the "unequivocal intent" of the legislator seem excessive. Principally, the main source of information about the legislator's intention can only be the explanatory report to the law and, possibly, the record of the legislative process. Since the author of the explanatory report is not, unless in the case of parliamentary proposals for laws, the legislator themselves, it raises the question of how to evaluate the explanations regarding the meaning of the proposed legal text that the explanatory report contains, whose author is the "true" author of the bill, not the legislative body or its members. Moreover, the explanatory report is not formally subject to approval in the legislative process. Furthermore, the question arises of which information should be drawn from the explanatory report, which, like the law itself, may not account for "all possible cases that may arise in the future", or how intensively the author of the explanatory report must explain their intent for it to withstand comparison with the final text of the law. It is probably not acceptable for the failure of the author of the explanatory report to mention or consider a certain possible aspect of the legal regulation or its consequences to open the door for the conclusion of an unintended (unconscious) gap in the law. Such a requirement would clearly be absurd, primarily because it would elevate the significance of the explanatory report above that of the legal text itself.

It can thus be summarized that the acceptance of gaps in the law should be limited only to cases of gaps identified through the comparison of legal provisions with norms of higher legal force or those on the same level. This would, in fact, diminish the relevance of H. Kelsen's factually correct remark about the nature of most alleged gaps in the law. On the other hand, from the perspective of normative theory, such gaps would still exist because a delegated norm (law) would not correspond to the delegating norm (constitutional law).

Ultimately, the discussion would then be confined to the question of whether norms of higher legal force (constitutional provisions or equivalent rules) allow for the conclusion that there is a gap in the statutory regulation. However, even this can be problematic, as demonstrated by the Constitutional Court's judgment in case No. Pl. ÚS 26/24, where a significant portion of the Constitutional Court judges expressed the belief that the constitutional framework does not support the right of a legal entity to compensation for a violation of its reputation. Therefore, the question arises whether there is one correct solution to a particular problem, which relates to the validity of the presumption of the "one right answer thesis".

4. One right answer thesis

The one right answer thesis was introduced by R. M. Dworkin in response to H. L. A. Hart's idea of the "open texture"Herbert L. A. Hart, The Concept of Law (3^rd edn, Oxford University Press, 2012) 124 ff.⁴³⁾ of law, which suggests that there are certain "shades of meaning" in legal texts that give judges discretion in choosing the appropriate solution. Dworkin argues, or assumes, that each difficult legal case (hard case) offers only one correct solution. His concept of law as a complex system (law as integrity)Ronald M. Dworkin, Law’s Empire (Fontana Press 1986).⁴⁴⁾ includes the requirement to consider various arguments, including moral arguments, as well as different political objectives, which align with his understanding of legal principles. However, Dworkin's conception of the one right answer is rather broad, as it assumes the inclusion of many non-normative arguments (or arguments whose normative nature is debatable). Nevertheless, one can still build on the core of this idea, which is that the legal system allows and expects the discovery of a single correct answer.To fulfil this task, however, Dworkin calls upon the fictional judge Ulysses, who is able to assess all the relevant factors involved in the case. Ibidem, 164–166. However, because of the fictional nature of this judge, this concept is often rejected. Compare: Radoslav Procházka, Dobrá vôľa, spravodlivý rozum. Hodnoty a princípy v súdnej praxi (Kalligram 2005) 164.⁴⁵⁾

A certain contrast to this concept is currently presented by ideas about the plurality of solutions, which are based on the postmodern state of society characterized by a plurality of values and norms. This creates a "postmodern context of judicial lawmaking"Večeřa and others (n 1) 70.⁴⁶⁾. In the field of legal interpretation and application, this implies "a shift of law towards the plurality of its sources and a retreat of the nation-state from its position as the exclusive legislator. The legal system of the state takes on the form of a multicentric legal order with the dominant position of international and European law. With the process of globalization, quasi-legal systems of a global character (lex mercatoria, ius humanitatis, and others) spontaneously emerging in pluralistic societies are also being established, as well as quasi-legal systems of minority religious and ethnic groups (Islamic law). The relationship between parallel legal systems may not be precisely defined by constitutional documents, and the current solution is left to judicial decisions, political choices, or spontaneous development."Ibidem, 71.⁴⁷⁾As a result, "[t]he fact of different legal spaces and the end of understanding law as an objective reality means that law is no longer an expression of an unequivocal command from a single unquestionable authority (the legislator), but depends on the outcome of a discursive process. The interpretative and applicative process of law thus does not result in one correct outcome."Ibidem, 72.⁴⁸⁾

However, certain limits should still apply to judicial lawmaking, namely that (1) the interpretation of legal norms must ultimately be secundum et intra legem, (2) the application of the law contra legem is limited, (3) judicial lawmaking must not serve utilitarian socio-political goals, private economic interests, or the interests of a narrow group of legal entities in violation of the prohibition of discrimination, (4) judicial lawmaking is substantively excluded in certain areas of law and specific legal fields that significantly affect legal certainty and fundamental constitutionally guaranteed legal principles.Ibidem, 75.⁴⁹⁾

The mentioned assumptions regarding the context of the current (i.e., postmodern) concept of law and the limits of its development, however, mutually exclude each other, as evidenced by the examples above. That is, it can be viewed positively in the sense that "inadmissible" deviations have been caught by mechanisms of corrective or quasi-corrective measures (i.e., the Constitutional Court corrected the attempt of the Supreme Court to step outside the boundaries of the law in the matter of the valuation of contributions; somewhat less certain is this assessment in the case of the second ruling, although in the spirit of relativizing everything within postmodernism, even the correctness of this evaluation itself can be questioned).

I believe that for law and the legal order, the acceptance of postmodern perspectives that relativize the truth of anything is undesirable, or even harmful. This can be demonstrated by the last two aspects of this text, namely the dissenting opinions and the so-called judicial departures, or changes in judicial case law.

5. Dissenting Opinions

Dissenting opinions can be considered as a manifestation of the acceptance of the fact that consensus cannot always be reached.In the following text, only those dissenting opinions that are made accessible to the public are considered, and only if they are reasoned. A mere lack of unanimity in a judicial panel—where a majority of votes is sufficient for a decision—has practically no significance in this regard, unless it includes sufficient reasoning that allows for an assessment of the differing position of one of the judges. Cf. Section 37 of Act No. 99/1963 Coll., the Code of Civil Procedure; Section 127(2) of Act No. 141/1961 Coll., the Code of Criminal Procedure; and Section 21(7) of Decree No. 37/1992 Coll., on the Rules of Procedure for District and Regional Courts.^50),Cf. Caroline Wittig, The Occurrence of Separate Opinions at the Federal Constitutional Court. An Analysis with a Novel Database (University of Mannheim 2016) 72. ⁵¹⁾ They reflect the recognition of the need for a certain discourse, but they are also capable of shaking the authority of a decision, especially when the outcome of the decision depends on one or two votes from the judges of the relevant panel.Kateřina Šimáčková, ‘Odlišné stanovisko jako jedna ze záruk nezávislosti soudcovského rozhodování’ in Vojtěch Šimíček (ed), Nezávislost soudní moci (Leges 2020) 151. ⁵²⁾

The positive contribution of dissenting opinions is often seen, in addition to their discursive nature, in the fact that they create pressure for thorough justification of the majority opinions, which should be adopted only after considering all possible arguments. Thus, they are, by their nature, an internal mechanism for controlling decision-making.Vojtěch Šimíček, Ústavní stížnost (Leges 2018) 218. ⁵³⁾

In terms of the issue of judicial lawmaking under consideration, dissenting opinions can be regarded as rather destabilizing. Essentially, it is a matter of the fact that the court does not, and should not, have political discretion, which is reserved for the legislator.

To avoid misunderstandings, it is necessary to emphasize that by the term "political discretion", I do not refer to cases in which courts (particularly constitutional courts) deal with so-called political questionsOn this issue, cf. e.g. Andrea Procházková, ‘Ústavní soud ČR mezi právem a politikou’ (2022) Právník 11, 1084–1097.⁵⁴⁾, i.e., cases of clear political significance in the narrow sense. These are usually situations where political rivalry between conflicting parliamentary parties continues in the courtroom, as in the case of pension indexationThe ruling of the Constitutional Court Case No. Pl. ÚS 30/23.⁵⁵⁾, or when it concerns explicitly political issues, such as the adjustment of salaries for state officials.The ruling of the Constitutional Court Case No. Pl. ÚS 5/24.⁵⁶⁾ In these cases, it is not a matter of lawmaking or law development as understood in this text. Often, it involves the application (rather than interpretation) of abstract constitutional principles.

By "political discretion" I mean the "simple" choice between multiple options, such as the question of whether contributions to the joint property of spouses should be automatically indexed or only if the spouses agree, whether a legal entity should have the right to compensation in the event of an attack on its good name, or whether the claim for compensation for an infringement of the right to protection of personal rights isJudgment of the Supreme Court, Case No. 30 Cdo 1542/2003 of 25 September 2003.⁵⁷⁾ subject to or is notJudgment of the Supreme Court, Case No. 31 Cdo 3161/2008 of 12 November 2008.⁵⁸⁾ subject to a statute of limitations, etc.

The fundamental issue in this context is the fact that law is primarily an authoritative tool for regulating human behaviour, which is incompatible with a potentially discursive approach in its application. Space for discussion is provided during its creation. It is unlikely that the legal order would maintain its authoritative character if the outcome of each individual dispute depended on what the "decisive majority" of the relevant judicial panel would be in a particular case.

It must not be forgotten in this context that the process of interpreting the law, its development, and its creation always takes place in a judicial environment against the backdrop of a specific dispute. As emphasizedCf. in a broader context Jan Kysela, ‘Kdopak by se "soudcovského státu" bál?’ in Vojtěch Šimíček (ed), Role nejvyšších soudů v evropských ústavních systémech – čas na změnu? (Mezinárodní politologický ústav 2007) 127–143. ⁵⁹⁾, courts and judges take a stance on a particular issue only when it is presented to them in a specific case. A court dispute practically excludes, using sports terminology, a draw. One side wins, and the other leaves defeated. Even though many decisions have an impact beyond the individual interests of the participants in the particular dispute, it is, first and foremost, they who are directly affected by the decision. From the perspective of the direct participants in the proceedings, it is therefore problematic to find out that the decision depended on a relatively narrow voting result, which was supported by opposing arguments.

In the domestic legal environment, the significance of dissenting opinions in the decisions of general courts is relatively marginal. A dissenting opinion is not possible in proceedings before the Supreme CourtMore precisely, the statutory regulation does not provide for this in the case of the Supreme Court. The possibility of expressing a dissenting opinion is provided only by the Rules of Procedure of the Supreme Court in Article 35(5). According to this provision, at the request of a judge who participated in the session of a panel or the plenary and disagreed with the adopted opinion or its reasoning, the essential content of that judge’s dissenting opinion (legal view), including their name, shall be attached to the minutes of the panel session or plenary meeting. If the judge so requests, the dissenting opinion shall be published together with the adopted opinion in the Collection of Judicial Decisions and Opinions of the Supreme Court.⁶⁰⁾, whereas the legal framework for the decision-making of the Supreme Administrative Court allows dissenting opinions since 2012 (§ 55a of Act No. 150/2002 Coll., the Code of Administrative Court Procedure)Compared to the regulation applicable to the Supreme Court, in the case of the Supreme Administrative Court, it is foreseen that a judge’s dissenting opinion will be attached to the written version of the decision. The publicity of the dissenting opinion is therefore significantly greater in this case than in the case of the Supreme Court, as the dissenting opinion is made available in each individual case, whereas a dissenting opinion of a Supreme Court judge is published only if the decision is published in the Collection of Judicial Decisions and Opinions.⁶¹⁾. Dissenting opinions are primarily reserved for the Constitutional Court, both for decisions in panels and for decisions in plenary (§ 14 of the Constitutional Court Act). This means that in matters related to the development or creation of law by judges, dissenting opinions are typically encountered indirectly in the decisions of the Constitutional Court, when a particular issue is raised in proceedings concerning a constitutional complaint. However, most constitutional complaints are decided in panels; only in a minority of cases does the plenary court address questions arising from the application of laws in specific cases, often only indirectly, that is, when a review of the constitutionality of a law used in the decision is initiated during the assessment of a specific constitutional complaint. It is in these rather rare cases that dissenting opinions related to the interpretation and application of legal norms can be analyzed. The aforementioned case concerning the right to compensation for an infringement on the reputation of a legal entity is an example of this kind.

In cases that can be classified as instances of original judicial creation of law, dissenting opinions play the role of political discretion. They suggest the possibility of a different solution, which cannot be denied to the legislator, but should not be allowed to the court if we maintain that the court has the right only to develop the law, not create it. In other words, the existence of dissenting opinions is an argument in favour of the conclusion that judges do, at least in some cases, create law in an original manner.

6. Changes in judicial case law

From a methodological perspective, a change in judicial case law is typologically similar to dissenting opinions. The difference between them lies in the fact that with a change in judicial case law or a so-called judicial departure, an opinion different from the one previously held prevails, while in the case of a dissenting opinion, the differing view remains sidelined in terms of the case's outcome. A shared feature of both concepts is the existence of multiple potentially correct solutions to a particular issue.

In my view, a change in judicial case law can be classified among instances of original judicial lawmaking.The monograph Nové trendy v soudcovské tvorbě práva does not take any specific position on this issue [cf. ‘Chapter 4. Changing Case Law’ in Večeřa and others (n 1) 145–178]. ^62),Cf. also Franz Bydlinsky, Grundzüge der juristischen Methodenlehre (2^nd revised edition, 2012) 140–149.⁶³⁾ This is because the previously interpreted rule (the statutory rule in its interpreted form) is replaced by a new rule, one that previously did not exist (or at least was not identified). The question, then, is how the permissibility of changing judicial case law is legitimized.

As mentioned above, the argument justifying judicial lawmaking in connection with the application of laws is the claim that "the law cannot account for all possible situations", and therefore, it must be (judicially) supplemented. In the case of a change in case law, such an argument is the claim that "case law cannot be without development"The ruling of the Constitutional Court, Case No. II. ÚS 3168/09: "Case law cannot remain without development, and it is not excluded that (even with unchanged legal regulations) it may not only be supplemented with new interpretive conclusions, but also changed, for example, in connection with the development of social reality, technology, etc., with which changes in the value accents of society are associated.“⁶⁴⁾. The validity of this argument, however, seems rather contentious, as the reasons in its favour are not entirely convincing.For example, Vojtěch Šimíček argues that if case law could not be changed, it would essentially represent binding rules of conduct and would thus substitute the outcome of legislative activity, which is an undesirable phenomenon. See Vojtěch Šimíček, ‘Předvídatelnost soudního rozhodování’ (2004) Jurisprudence 5, 8. However, this is not the case, at least for the reason that the existing case law should not stand up to a new legal regulation that differs from the original one, should the legislature choose to proceed with it. Persisting with old case law applied to a new (i.e., different) legal regulation would primarily mean the denial of the principle of separation of powers. This is also evident in the analyzed case of case law regarding the valuation of contributions to and from the joint property of spouses. ⁶⁵⁾ Before these arguments are analyzed, it should be emphasized that the very need to find a suitable justification for the concept of changing case law is an argument in favour of the conclusion that a change in case law constitutes original judicial lawmaking. If a change in case law were not at least implicitly considered original lawmaking, it would be regarded as a so-called standard interpretive process, which by itself does not require any justification, as it is an inherent part of judicial decision-making.It is clear that this issue is related to the degree of normative relevance of judicial case law, which this text touches upon both directly and indirectly, without dedicating substantial attention to it. ⁶⁶⁾

There are typically three justifying reasons mentioned. The first case concerns a change in the legal regulation itself.Večeřa and others (n 1) 152.⁶⁷⁾ Of course, this does not have to refer only to a change in the directly affected legal regulation. The change may concern related regulations, or it may stem from the development of international or European law, etc. This reason for changing case law is probably the least convincing, as essentially two situations may arise. Either the formally new legal regulation adopts the content of the previous regulation, in which case there is no reason to change the existing case law based on a formal, rather than material, change in the law, as the existing case law is tied to substantively identical rules. Or, if the new legal regulation differs from the previous one in content, then there is no reason to stick to the old case law, because in such a case, the legislative change intended by the legislator would not be enforced.Certainly, many "transitional" variants can exist where the new legal regulation adopts partial content elements from the previous regulation; in such cases, it is necessary to determine whether and which older case law loses its relevance.⁶⁸⁾

The second reason could be the change in the social environment (the so-called new social reality)Ludvík David, Na hranicích práva: soudcovské eseje (Leges 2012) 43.⁶⁹⁾. This reason appears more convincing, but the question arises as to how profound such a change must be. It could certainly involve fundamental political transformations in society (e.g., a shift from a totalitarian regime to a democratic one); however, in a stable democratic state, the emergence of such a new social reality, which the legislator would not react to, is rather difficult to imagine.

Finally, the third reason is the overcoming of previous case law due to its "incorrectness". As correctly pointed outVečeřa and others (n 1) 152.⁷⁰⁾, this is one of the most controversial cases for a variety of reasons. Given the normative impact of case law, it cannot be denied that case law creates legitimate expectations regarding the outcome of a particular matter.The concept of so-called incidental retrospection of changed case law rather exacerbates the problem than resolves it. The essence of incidental retrospection lies in the fact that the "new" legal opinion (new case law) is applied to all cases that have not yet been decided, i.e., also to those cases in which proceedings were initiated during the "validity" of the previous case law, but a decision had not yet been made. Cf. Zdeněk Kühn, ‘Prospektivní a retrospektivní působení judikatorních změn’ (2011) 19 Právní rozhledy 6, 191. ⁷¹⁾ A change in judicial case law disrupts this legitimate expectation, and it also creates a difficult (and perhaps even insurmountable) question of how to adequately address cases that have already been decided in accordance with the previous "incorrect" interpretation.Somewhat different reasons are presented by Lorenz Kähler. Cf. Lorenz Kähler, Strukturen und Methoden der Rechtsprechungsänderung (2^nd revised edition, Nomos 2011) 80–93.⁷²⁾

Essentially correctly, the Constitutional Court expresses the requirement that "[a]ny change in judicial decision-making practice, especially when it concerns the practice of the highest judicial authority tasked with unifying the case law of lower courts, should be approached with caution, and when assessing individual cases, it should ensure that the principle of predictability in judicial decision-making is not disrupted and that such a change does not undermine the requirement for a fair decision in terms of respect for the basic rights of the participants in the proceedings"The aforementioned ruling of the Constitutional Court in Case No. II ÚS 3168/09.⁷³⁾.

The fundamental issue with the third reason for the permissible change in case law is the question of whether the new legal opinion is "correct" compared to the original one. It is clear that the previously mentioned acceptance of pluralistic opinions, none of which is necessarily more correct than the others, plays a detrimental role here, i.e., the rejection of the thesis that there is only one correct answer. This can be demonstrated with the previously mentioned examples. From an objective standpoint, there is no reason to consider the opinion that the valuation of contributions to joint property between spouses is only possible with the consent of both spouses as less correct compared to the view that such contributions should be automatically valued. Similarly, from an objective perspective, it is not possible to consider the opinion that the claim for non-material damage compensation is not subject to limitation more correct than the view that it is subject to limitation. Each of these opinions was based on certain arguments and reasons, and thus it cannot be claimed that they are entirely arbitrary, which would likely disqualify them. A similar example could be the debate over whether the provision of Article 39 of the Charter of Fundamental Rights and Freedoms, which states that "[o]nly the law specifies which acts constitute criminal offenses and what punishment, as well as any other damage to rights or property, can be imposed for their commission", includes the issue of the statute of limitations for criminal prosecution.Compare the original ruling of the Constitutional Court, Case No. Pl. ÚS 19/93, according to which the change in the conditions for the statute of limitations for criminal prosecution (such as declaring certain criminal acts that occurred in the past and were subject to a statute of limitations as non-limited) is not in conflict with this provision, and later rulings, Case No. Pl. ÚS 15/19 and Case No. Pl. ÚS 4/20, according to which the statute of limitations for offenses committed before the change in the legal provision cannot be altered (extended); in particular, reference can be made to the differing opinions invoking the relevance of the original ruling, Case No. Pl. ÚS 19/93.⁷⁴⁾ Again, it is not possible to definitively say which of the presented views is "more correct".

It is likely that in none of the randomly selected examples of changes in case law, the development of social reality is not significantly reflected.

If a change in judicial case law can be considered an original manifestation of judicial norm-making, it would be advisable to consider the possible contexts of this phenomenon.

First, the question should be posed as to whether a change in judicial case law is even permissible in situations where there are no external reasons for it (such as changes in legal provisions or social facts etc.It is possible to refer for the last time to the Constitutional Court ruling, Case No. Pl. ÚS 23/24, which in paragraph 44 states: "The Supreme Court did not address the issue of whether a substantial change in circumstances occurred during the (ten-year) effectiveness of the Civil Code, which would justify this change against the will of the legislator; in fact, nothing suggests such a conclusion. Therefore, judicial development of the law was not permissible in this case." It is not clear what change could have occurred during such a short period to justify the change. Moreover, even if such a change did occur, is it not primarily the task of the legislator to respond to it?⁷⁵⁾), but instead, it is caused by internal reasons. In answering this question, it is necessary to consider whether the thesis of a single correct answer holds or if there is a plurality of equally correct answers. If the first thesis holds, one could argue in favor of changing the case law, as it would be irrational to persist with the previous incorrect solution. On the other hand, if we accept the plurality of possible solutions, all of which are equally correct, then it would be irrational to replace the initial solution with another, unless the correctness of the later solution can be unequivocally proven. It is evident that the obstacle here is precisely the discursive nature of judicial decision-making, which introduces uncertainty and doubt into the matter.

An alternative variant conditioning the change in case law would be the application of similar principles formulated for cases of legislative changes.Cf. Lon L. Fuller, The Morality of Law (Yale University Press 1969) 38: "Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible ... "⁷⁶⁾ This particularly concerns the issue of the temporal scope of new legal regulations, i.e., their potential retroactivity, which is primarily linked to the problem of interfering with the legitimate expectations of the addressees of the legal regulation, or more generally, with the principle of legal certainty. If a change in judicial case law were to be considered a form of original norm creation, there would be no reason why the same requirements placed on the legislator in cases of legislative change should not also apply. It is likely that this approach would lead to a demand for predominantly prospective effects of changes in case law, a concept that is difficult to implement in the legal application process due to the inherent nature of judicial decision-making. Even from an empirical perspective, only a few states apply changed case law prospectivelyFor some limited examples, cf. Beryl H. Levy, ‘Realist Jurisprudence and Prospective Overruling’ (1960) 109 University of Pennsylvania Law Review 1, 2 ff. ⁷⁷⁾; on the contrary, retroactivity (retrospectivity) is the norm.Cf. in a comparative context Eva Steiner (ed), Comparing the Prospective Effect of Judicial Rulings Across Jurisdictions (Springer 2015). ⁷⁸⁾

Given that the change in judicial case law has legal support enshrined in procedural regulations, it cannot be expected that this possibility would be abandoned. Although the change in case law is difficult to justify in cases where the original case law is argued to be incorrect, in other cases (such as changes in legal regulations, etc.), it is generally uncontroversial, and it cannot be expected that such changes will not occur. Principally, this is because the first solution chosen in a particular case would be "frozen" or "conserved", which would likely be unsatisfactory to later judges. Cases where the principle of clausula rebus sic stantibus could be applied would be so rare that such a procedure would hardly be used.

However, it cannot be said that judicial restraint in the case of changes in case law does not have any solution. The legislature is still present, and it could create the conditions for a change in case law by amending legal regulations, if it adequately responded to judicial case law.

Conclusions

The aim of this text was to answer the question of whether the relationship between the legislative and judicial powers has reached a point where judicial decisions should be recognized as having the potential to be autonomous, i.e., an original source of law in the sense that it introduces elements into the legal environment that do not have support in legislative activity, or where this support is only apparent. It is obvious that accepting this fact would disrupt the established view of the concept of legal sources in the continental legal culture, the relationship between the branches of state power, and the concept of the separation of powers in general. In my opinion, it is impossible to ignore that many doctrinal and judicial concepts used in the application of law allow for this conclusion to be accepted, while the legislature does not indicate that such a state of affairs is undesirable; on the contrary, it contributes to it through legislative amendments (broadly formulated interpretative rules, conscious expansion of judicial discretion, limited or no response to judicial conclusions accepted in specific cases, etc.). It is also impossible to overlook the fact that many judicial outputs are openly labelled as the judiciary taking on the role of the legislator, although in other cases, this role is denied.

Recognizing that the judiciary can also act as an original lawmaker would necessarily raise the question of who exactly takes on this role. While currently judges are largely unknown to the general public (except for Constitutional Court judges and high-ranking officials of general courts), recognizing judicial power as an original norm-maker would likely increase public interest in judges. It is uncertain whether the judiciary desires this kind of publicity.

Thus, it is not clear whether the procedures and concepts that support the conclusion of judicial decision-making as the creation of original rules are unequivocally desirable, and whether accepting the dominant position of the legislature might still represent a safer haven for all actors in the legal environment.