Zdeněk Kühn*

(Пълният превод на статията на български език може да намерите в частта „Резюме“ на този том)



Supreme Courts’ Interpretational Statements and Guidelines: Their Emergence and Persistence in Central and Eastern Europe

In the 1950s one phenomena almost unknown in the Western world appeared in the then Socialist states of Central and Eastern Europe. Following the Soviet model of guiding explanations issued by the plenum of the supreme court,[1] in all Central and Eastern European countries during the Communist rule the supreme courts had the power to issue guidelines and interpretative statements dealing with important legal questions. Those statements were enacted in abstracto, without any real life case pending before the court. In some states such directives were formally binding on the lower courts. Many of the directives were long treatises analyzing the correct and incorrect application of the specific law by lower courts within some period of time without taking into account the particulars of the case at hand.[2]

The socialist supreme courts prepared these documents as evaluations and appraisals of case law to react promptly to Communist Party Congresses; in the beginning of these evaluations, they often emphasized the Party politics of the time. In these official documents, the anti-formalism of the Socialist judiciary always won out, at least rhetorically, against ‘capitalist’ positivism and dogmatism. For instance, “The Report of the Chief Justice of the Czechoslovak Supreme Court on the Significance of Ideology in the Judiciary” instructed the judiciary to be a reliable tool to strengthen state authority and the authority of state bodies and also to be an effective “instrument” in the enforcement of Socialist ideology.[3]

In the Czech Republic we encountered those interpretative statements in 1953 for the very first time in our legal history. Then they were called guidelines for proper interpretation of legislation and other laws (“směrnice pro správný výklad zákonů a jiných právních předpisů”).[4] Since the late 1960s the term statements ensuring unified interpretation of law (“stanoviska k zajištění jednotného výkladu zákona“) has been used instead.[5] The statements and guidelines, faithful to their birth at the peak of Czechoslovak Stalinism, were linked to a strong emphasis on centralized interpretation of law, distrusting decentralized lawmaking powers of lower courts. Moreover, lacking proper interactions between legal scholarship and the judiciary, these statements in a sense served as a substitute for it, attached to a strong, and of course, centralized and formal authority.

One of the rare occasions when the judges in Socialist Central and Eastern Europe could speak freely (The 1968 Prague Spring, a short-lived attempt at liberalization of the Czechoslovak communist regime) revealed that just this power of the supreme courts was considered to be a danger to judicial independence.[6] And it was soon after the Soviet invasion of 21 August 1968 when the communist apparatchiks started to criticize the weakening role of these interpretational statements as one of the typical products of the 1968 “reactionary” movement.[7] Because the communist regime deeply distrusted the ability of its judges to apply law by their own reasoning and best judgment, it was necessary for the “socialist application of socialist law” to guide judges and direct them through the directives of the high courts.[8]

The situation did not change much after 1989 in this respect. Surprisingly enough, old-fashioned traditional ideas about precedents still dominate judicial and legal discourse.[9] Instead of precedent, most Central Eastern European legal systems continue to use interpretational statements and various guidelines prepared by the high courts, а specific instrument of unbound judicial law-making par excellence. The statements are still issued by supreme courts on a certain legal issue in order to unify the conflicting case law without any real-life case pending before the supreme court.

Unlike the situation in some states prior to 1990, at present such statements are usually not formally binding, though they naturally possess a high degree of force throughout the judicial system. The statements do not have a direct impact on any individual case, because they are decided in abstracto, on the proposal of the Supreme Court, minister of justice or like authorities, when these bodies opine that the interest of uniform case law so demands.[10] In Hungary, the only system with a pre-Communist tradition of this abstract judicial law-making, these so-called uniformity decisions are even formally binding so that the lower courts must follow interpretative directions found therein.[11]

Western judges react to this post-Communist institution with a mixture of surprise and embarrassment,[12] because they view it as in conflict with their ideal that the judiciary makes law only through deciding cases, “interstitially,” as Justice Holmes once famously noted,[13] not through making law in abstracto. Thus, it is possible to argue that the continuing adherence to this institution confirms what the post-Communist systems understand by the notion of judicial law-making and demonstrates why they have difficulties in understanding proper judicial law-making. In addition, a minister’s power to request such a statement might be easily misused to intervene in politically sensitive cases pending in lower courts.

In the Czech Republic both supreme courts have the power to enact interpretative statements. The actual practice differs, however. The Supreme Court, the final court for civil, commercial and criminal cases, uses this power very often. In fact, the statements seem to be the most important tool for the unification of case law and judicial law making. The Supreme Court rarely uses its grand chambers for this purpose.

In contrast, the Supreme Administrative Court, a new court established in 2003, has used this power only twice, in the first two years of its existence. Since 2005 it has never used the power to enact statements. The prevailing mood at this court is that such statements are an improper way of judicial decision making, a sort of unrestrained legislating from the bench being in conflict with the separation of powers. Unlike the Supreme Court, the Supreme Administrative Court uses its grand chamber to unify conflicting case law of its small chambers.


Reasons behind persistence of interpretational statements and guidelines in Central Eastern Europe

In fact, Communist dictatorship as any other sort of dictatorship by necessity generated an authoritarian understanding of law. As explained by Professor Siniša Rodin:

Instead of rational discourse that shaped legal and institutional landscape of Europe’s West, the predominant discourse in Central and Eastern Europe was authoritarian. The main characteristic of such authoritarian discourse is the proclamation and imposition of one truth as universal and final. Such discourse was authoritarian since it purported to have a social monopoly over determining the meaning of legal and political language at the top of political hierarchy and communicating it downward. It was, nevertheless, a discourse, since communication of meaning defined in authoritarian way was indispensable to support the claim of universal acceptance, the maintenance of which is a condition of the system’s integrity.[14]

Authoritarian judicial discourse must be distinguished from authoritative judicial discourse. The judicial discourse of any legal system is inherently authoritative. This is a result of the fact 1) that by definition courts must decide as if there were one correct answer to the questions presented to the court (the judicial ‘one right answer’ thesis), and 2) that judicial decisions are final because of their authority within the judicial and legal system.[15] Authoritative judicial discourse does not preclude, but on the contrary presupposes, a pluralism of opinions and the participation of all competent persons in the legal decision-making process. Plurality of opinion and the fact that the court takes all relevant opinions seriously gives to the decision-maker of last resort the legitimacy to provide the ‘right’ answer, which is a necessary condition of the discourse to remain authoritative.[16]

In contrast, authoritarian discourse means something very different. Here, the pluralism of opinions is absent. The ‘right’ answer is achieved through a ‘one-way’ process and is backed entirely by threat and force. Those to whom decisions are addressed cannot participate on finding the ‘right’ answers; instead of being subjects, they are rather objects of authoritarian decision-making. Authoritarian discourse implies that legal meanings are produced from above and that the existence of any dispute, questioning, legitimate disagreement, or construction of the law from the bottom-up  (say, starting from lawmaking capacity of lower court judges) is unthinkable.[17]


Authoritarian discourse might face serious difficulties with internalizing judicial law-making via precedent proper, based on interactions between legal scholarship, private parties and the judges of law courts, both those at the lower echelons and those of the high courts who possess the final authority to say what the law is in an individual case. That is why authoritarian discourse makes an open preference for centralized judicial law-making by supreme courts without listening to anyone including the lower courts. Politically, interpretational statements might be welcome tool for politicians to model their laws via judicial abstract statements by inviting judges to decide on some particular problems.[18]

The single most important added value of statements is their speediness and clarification of the law without the need to wait until the case would arrive at the supreme court in a regular way, through appellate proceedings or cassation. On the other hand, the statements and guidelines tend to turn the supreme court into a weird academic institution, debating legal issues detached from colorful circumstances of real life cases. The legitimacy of judicial lawmaking is vested in the judicial duty to address the facts of a pending case, not to address any issue the judge considers worthy of her attention disregarding the fact that no case bringing this issue before the bench has yet emerged.

The very procedure of enacting statements brings yet another concern. As a rule it is the entire court which enacts them. However, the judicial deliberation is and shall be different from parliamentary debates. The difference between judicial deliberation and political discussions is qualitative rather than quantitative. The debate in the legislature brings a number of speakers from various political groups and atop of that tens of more or less disinterested listeners who would later follow the opinion of their political club on a particular issue.

In contrast, judicial deliberation is made through actual participation of all judges involved. Even though no one knows exactly what is the maximum number of people who could deliberate in this way it is certain that dozens of judges could hardly take part in rational judicial deliberation. The supreme courts in the common law systems deciding as a whole have never more than nine justices. In the civil law world various grand chambers of supreme courts have never more than twenty judges. The same applies also to the constitutional courts. Otherwise there would have been no time for all judges to speak, it would be close to impossible to make a rational legal debate in this way. Last but not least it is not likely that dozens of judges involved in enacting statements could prepare well for debating complex issues of law. After all, if some judges are not prepared for the issue it would not be visible in the assembly of dozens of people, most of whom must remain silent just for the sake of time. At the end of the day the entire “judicial” deliberation would move towards parliamentary debate, with a lot of silent listeners who would then follow in their voting the opinions of the opinion leaders they trust most.

When debating the issue of interpretational statements, we must be always aware that judges are the final authoritative interpreters not because they are omniscient and infallible, but because of their function and status within the legal system. The authority of the judge to decide the case “correctly” shall be ultimately tested by real-life cases. The judges are not free riders picking up the legal questions they want to consider depending on their immediate will and changing mood. If understood from this perspective, abstract judicial interpretational statements are not only against the very core of authoritative legal discourse, they are also in conflict with the basic tenets of separation of powers.




*  Associate Professor of Jurisprudence, Charles University Law School, Prague, Czech Republic & Judge at the Supreme Administrative Court of the Czech Republic. Ph.D., Charles University Law School (2001); LL.M., University of Michigan Law School (2002); S.J.D., University of Michigan Law School (2006). I owe my thanks for many ideas developed here to my discussions with professors Eric Stein and Mathias Reimann of the University of Michigan Law School. All translations are mine unless otherwise indicated.

[1]   On Soviet interpretative statements, cf. Akmal Kh. Saidov, Comparative Law (W.E. Butler transl. 2003), Wildy, Simmonds & Hill, London (Russian original in 2000), at 206.

[2]  In Hungary, cf. a critical evaluation from the point of sources of law, P. Schmidt, Konstitucionno-pravovye voprosy sistemi istochnikov prava VNR [Constitutional Problems of the Hungarian System of Sources of Law], (1985) 27 (1-2) Acta Juridica Academiae Scientiarum Hungaricae 133-160, 146-148. In Poland, cf. A. Rzepliński, Die Justiz in der Volksrepublik Polen (1996, transl. Maria Jansen), Vottorio Klostermann, Frankfurt am Main 163 ff.

[3] Zpráva předsedy Nejvyššího soudu Československé socialistické republiky o významu ideologické práce v justici [The Report of the Chief Justice of the Supreme Court of the Czechoslovak Socialist Republic on the Significance of Ideology in the Judiciary], Collection of Decisions 1974, pp. 432-441, at 439.

[4]  § 26 para 1 of the law no. 66/1952 of Collection of laws, on the organization of courts.

[5]   See law no. 156/1969 Coll.., amending law no. 36/1964 Coll., on the organization of courts and elections of judges.

[6]  A. Bajcura, Výsledky ankety o postavení sudcov [The Results of the Poll on the Status of Judges], (1968) 51 Právný obzor 834, 835.

[7]   J. Němec, XIV. sjezd KSČ a úkoly justice [XIV. Congress of the Communist Party of Czechoslovakia and the Task of the Judiciary], (1971) 19 Socialistická zákonnost 385, at 390.

[8]    O. Rolenc & V. Rolenc, K ústavní zásadě nezávislosti soudců [On the constitutional principle of the independence of judges]. (1971) 19 Socialistická zákonnost 391, at 396 and 401.

[9]    F. Emmert, The Independence of Judges – A Concept Often Misunderstood in Central and Eastern Europe, (2002) 3 European Journal of Law Reform 405. In more detail see Z. Kühn Z. The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? Martinus Nijhoff, Brill 2011, 207 ff.

[10]  In the Czech Republic the competence to request such a statement is vested, inter alia, in the Minister of Justice, see Art. 123 (3) and Art. 14 (3) of the Act on the Judiciary, of November 30, 2001 no. 6/2002 Coll. Similarly in Slovakia, see Art. 21 (3) and Art. 23 of the Act on the Judiciary of December 9, 2004 no. 757/2004 Z.z. [Official Gazette]. In Poland, Supreme Court’s resolutions are requested, inter alia, by the Spokesman for Citizens’ Rights, the Public Prosecutor General or, within his/her competence, by the Spokesman for the Insured. See Art. 60 (2) the Act on the Supreme Court of November 23, 2002, Dz.U. Nr 101 of 2002, item 924, available in English at (visited 15 March 2016).

[11]  Cf. Á. Erdei, Law of Criminal Procedure, in A. Harmathy (ed.), Introduction to Hungarian Law, The Hague/London/Boston 1998, at 211.

[12]  As did German judges in their reports on the Czech judiciary of 2003. All of them actually criticized this institution, which is according to them the waste of the Supreme Court’s energy. Moreover, they noted that it solves a question in abstracto, without a proper judicial testing on the lower levels. Souhrn návrhů pro českou justici v oblasti organizace soudnictví, civilního a trestního řízení [A Set of Proposals for the Czech Judiciary the Area of organization of the Judiciary and Civil and Criminal Procedure], Twinning Project CZ 01/IB/JH/01 Judicial Reform and Court Management Czech Republic – Germany – United Kingdom (not published, on file with the author).

[13]  Southern Pac. Co. v. Jensen, 244 U.S. 205, at 221 (1917) (Holmes, J., dissenting: “I recognize without hesitation that judges must and do legislature, but they do so only interstitially; they are confined from molar to molecular motions.”).

[14]  S. Rodin, Discourse, Authority in European and Post-Communist Legal Culture, (2005) 1 Croatian Yearbook of European Law and Policy 1, 7-8 (footnotes omitted).

[15]  See chapters in Neil MacCormick and Robert S. Summers (eds.) Interpreting Statutes: A Comparative Study, Aldershot, Dartmouth 1991 (although the degree of the discursive nature of judicial decisions differs, at one pole standing the common law system, and at the other French system, all courts work on the assumption that their decisions are ‘right’).

[16]  I think this argument is best made by the United States Supreme Court Justice Robert Jackson. When evaluating judges of (any) supreme court, he famously declared: “We are not final because we are infallible, but we are infallible only because we are final.” See Brown v. Allen, 344 U.S. 443, at 540 (1953), Justice Jackson concurring.

[17]  I take my inspiration from Joseph Vining, The Authoritative and the Authoritarian, The University of Chicago Press, Chicago and London 1986.

[18]  And sometimes by punishing those who do not follow the rules of the game. The Chief Justice of the Czech Supreme Court was infamously dismissed in February 2006 by the Czech President. One of the crucial reasons was the fact that the Chief Justice did not assure “unification of law” via judicial interpretational statements. The president’s dismissal was annulled by the Constitutional Court which rebuffed all the president’s arguments. The judgment of the Constitutional Court of 11 July 2006, Pl. US 18/06. For the best description of this case in English see M. Bobek, The Fortress of Judicial Independence and the Mental Transitions of the Central European Judiciaries, European Public Law 14 (2008), pp. 99 – 123.