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

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