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This paper is a part of a project Využití metod sociální reprezentace v analýze právních konceptů
(GA20-10171S) funded by the Czech Grant Agency.
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Legal concept of public order: A Case for Social Representations Approach
Terezie Smejkalová, PhD
Markéta Štěpáníková, PhD

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Legal concept of public order
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Overview
̶Case 2 As 199/2018 – 37 and use of public order
̶Restrictive approach to law and doctrine in light of normativism
̶Methodology & data
̶How did the participants thought about the model situation?
̶How do they believe the concept of public order should be interpreted?
̶Consequences of the restrictive approach
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Case 2 As 199/2018 - 37

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Case 2 As 199/2018 – 37 and use of public order
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̶Claims it makes a „minimalist“ argument, leaving possible changes in social values to the
legislator
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BUT
̶Prevalent sentiments and attitudes of the society
̶Correspondence to reality argument – to say otherwise would be contrary to public order

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Normativism heritage and restrictive approach to law
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̶Hans Kelsen and his purity thesis
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̶František Weyr:
̶legal science as epistemology of norms
̶Legal theorists should study the form of law; content and values do not belong to law

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Methodology & research questions
̶13 participants, legal academics, chosen to span across all the major legal fields traditionally
recongnized in Czech legal thinking
̶3 women, 10 men; aged between 26 and 48
̶
1.Model situation
2.Thoughts about the process of how the concept should be interpreted
3.

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Model situation
“Do you think it would be contrary to public order for a transgender person who has not yet
undergone gender reassignment surgery to have their preferred gender indicated in their identity
card?”
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X
̶Public order as perceived fundamental core legal norms + this issue is a matter of public order
̶„Correspondence to reality“ argument
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̶Public order does not extend that far
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̶Reverse „correspondence to reality“ argument (we have no right to know)

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How should a judge go about interpreting public order?
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̶Public order as a vague legal concept:
̶Laws – travaux preparatoires – commentaries – case-law – doctrine
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̶What if this process does not yield an answer?
General tradition
Social values
Political documents and memoranda
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But
̶„…the judge should not evaluate the mood in a society without any scientific data…“
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What science, what doctrine?
̶Weyr’s normativistic tradition
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̶Judge is not a sociologist

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Capacity of the concept of public order to veil the lack of argumentative evidence
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̶Invitation to make uneducated guesses about the content of vague legal concepts
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A case for social representations approach?
̶Normativistic approach may be seen as arrogant and overlooking deeper understanding of law in
society
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̶Social representations are capable of helping in examining and exploring what are essentially folk
meanings of concepts within law

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Thank you.
terezie.smejkalova@law.muni.cz
marketa.stepanikova@law.muni.cz