Between Two Legal Orders: A Relativist Doctrine for a Member State Constitutional Court?

In Koch, H., Hagel-Sørensen, K., Haltern, U. and Weiler J.H.H. (eds) Europe. The New Legal Realism. Essays in Honour of Hjalte Rasmussen, pp. 757-782. DJØF Forlag, Copenhagen 2010

34 Pages Posted: 2 Feb 2015 Last revised: 11 Aug 2015

See all articles by Lubos Tichy

Lubos Tichy

Charles University in Prague - Faculty of Law

Tomas Dumbrovsky

Yale Law School; Charles University in Prague - Faculty of Law

Date Written: December 6, 2010

Abstract

This article deals with two intertwined processes: the formation of the Czech Constitutional Court’s doctrine on the relationship between the Czech constitutional law and the European law (the European doctrine), on the one hand, and the reassessment of Court’s own role under new circumstances where it faces two interconnected but, to a certain extent, independent legal orders in its jurisdiction, on the other hand. We study two formational decisions of the Court. First, we present the Court’s reasoning and dissect essential components of its European doctrine. Second, we critically analyse these essential components and highlight weak points of the Court's doctrine. And finally, we identify the origins for the Court’s confusion that weakens its doctrine and suggest a correction to its doctrine, in the form of a more accommodating approach to a conflict between the two legal orders.

Keywords: European Law, constitutional law, Sugar Quotas, Reimbursement of Medicaments, legal order, constitutional core, relativist doctrine, Member State constitutional court, Czech Constitutional Court, Court of Justice of the EU, Solange I, direct effect

Suggested Citation

Tichy, Lubos and Dumbrovsky, Tomas, Between Two Legal Orders: A Relativist Doctrine for a Member State Constitutional Court? (December 6, 2010). In Koch, H., Hagel-Sørensen, K., Haltern, U. and Weiler J.H.H. (eds) Europe. The New Legal Realism. Essays in Honour of Hjalte Rasmussen, pp. 757-782. DJØF Forlag, Copenhagen 2010. Available at SSRN: https://ssrn.com/abstract=2557758

Lubos Tichy

Charles University in Prague - Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

Tomas Dumbrovsky (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

HOME PAGE: http://mwpweb.eu/TomasDumbrovsky/

Charles University in Prague - Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

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