The Normative Force of the Factual, As Derived from Examples in Czech Case-Law

21 Pages Posted: 27 Mar 2019

See all articles by Slavomíra Henčeková

Slavomíra Henčeková

Charles University in Prague - Faculty of Law

Date Written: March 23, 2019

Abstract

This paper deals with the concept of the normative force of the factual, not only in the Czech case-law, but also generally in legal theory, and presents in this context three main theses. Firstly, Jellinekʼs concept of the normative force of the factual does not necessarily contradict Hume’s fork. Secondly, in the Czech jurisprudence, constitutional conventions provide the most suitable examples of the normative force of the factual. Thirdly, not only in the Czech Republic, but also in general, constitutional conventions have normative force, but not legal normative force, and what normative force they do deploy does not derive from facticity in and of itself.

Keywords: normative force of factual, constitutional conventions, normativity, facticity, Is-Ought gap

Suggested Citation

Henčeková, Slavomíra, The Normative Force of the Factual, As Derived from Examples in Czech Case-Law (March 23, 2019). Charles University in Prague Faculty of Law Research Paper No. 2019/I/4 . Available at SSRN: https://ssrn.com/abstract=3360532 or http://dx.doi.org/10.2139/ssrn.3360532

Slavomíra Henčeková (Contact Author)

Charles University in Prague - Faculty of Law ( email )

Nam. Curieovych 7
Praha, 11640
Czech Republic

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