THE JUDICIAL DEVELOPMENT OF LAW BEYOND STATUTORY LIMITS. Petr Bezouška 1

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1 DANUBE Law and Economics Review I (2011) 73 THE JUDICIAL DEVELOPMENT OF LAW BEYOND STATUTORY LIMITS IN THE DRAFT OF THE CZECH CIVIL CODE Petr Bezouška 1 Abstract The draft of the Czech Civil Code tries to describe, in some way, the rules for determining the law, and thereby render the process objective. By so doing, it apparently differs from the existing concept and seeks guidance from foreign legal regulations. My primary goal is to point out such sources of inspiration and to perform a basic comparison of the approaches adopted by different European countries. At the same time, I want to focus in the introduction on the broad context of the Europeanization of private law. The core of my research focuses on the rule involved in Section 10 (2) of the draft of the Czech Civil Code, which represents the legalization of the judicial development of law and provides guidelines on how judges should proceed when filling the gaps in legislation, if the legal regulation does not provide any clues (development of law beyond statutory limits) and, at the same time, it is obvious that the law-makers keep silent intentionally (i.e. a qualified silence or an intentional gap in the legislation). Keywords Civil Code, Comparison, Private Law, Re-codification, Development of Law I. Introduction During the last 200 years, legal science has developed according to the national spirit in Europe; e.g. in Germany, they have referred to a set of interpretation rules defined by Savigny and his followers, in France, the grammatical and logical exegesis of the Civil Code has been superseded by dynamic, evolutionary judicial interpretation, and in England, the resolution of each case still begins with a possible precedent. There is a different situation in post-communist countries, which struggle, more or less successfully, to overcome the heritage of totalitarian legal thinking. However, all countries of the European Union have one thing in common: they deal with much more complex relationships among the sources of law than they dealt with when the European Union did not exist or the countries were outside its boundaries. The courts of member countries must, when resolving legal cases, take into account many more relevant rules, in particular those arising from directives, as the most important source of secondary European law. It becomes useful for them to monitor how the same directive is executed in other countries and consider foreign case-law and jurisprudence. 1 Faculty of Law, University of West Bohemia in Pilsen, Sady Pětatřicátníků 14, Plzeň. bezousk@kpo.zcu.cz.

2 74 Petr Bezouška The Judicial Development of Law Beyond Statutory Limits in the Draft of the Czech Civil Code However, in my opinion, the road to uniform legislation in the area of private law does not lead through European regulations and directives, which are often considered foreign ; I think that what Zimmermann points out is of much greater importance: an essential prerequisite for a truly European private law would appear to be the emergence of an organically progressive legal science, which would have to transcend national boundaries and revitalize common traditions. 2 Besides, publications seeking common solutions in various European countries already exist and, together with other approaches, e.g. the establishment of common principles and the education of students based on comparative law, herald the beginning of a true European legal science. 3 If we take a broader view of the issues in question, it would be good to at least ask whether the ongoing harmonization of individual legal regulations of European countries (their content) also enforces, or has already enforced, a certain level of unification of methods of how to define the law (the procedural part). If so, Czech law-makers performing recodification should, at least, take it into account. At the same time, it should not be taken lightly that certain rules which are easily imported and incorporated into the text of laws may as well easily yield to intellectual dogmas applicable in the given system. On the contrary, transplantation of the way of thinking is not that simple. II. Rules for Defining the Law in the Draft of the Civil Code and their Direct Inspiration Section 10 (1) If a legal case cannot be decided according to the express provisions of this Act or another legal regulation, it shall be judged pursuant to a provision concerning a legal case which most closely approximates the contents and purpose of the legal case in question. In the absence of such provision or if it, thereafter, remains unclear how to decide the legal case, it shall, after thorough consideration of all related circumstances, be judged according to the principles which form the basis of this Act and according to the common practices of private life. (2) If a legal case cannot be decided pursuant to Article 1, it shall be judged according to the principles of justice, with regard to the state of legal doctrine and to established decision-making practice in order to achieve a good ordering of rights and obligations. (3) Personal status cannot be decided upon pursuant to Clause 1. Defining the law is not limited only to the interpretation of provisions of legal regulations; it also involves the development of law (from the German Rechtsfortbildung). 4 Section 10 (1) of the draft provides room for the binding development of law: for the development of praeter verba legis, referred to as statutory analogy (analogia legis) 5, and for the analogy 2 See Miller, Zimmermann (1997). 3 Some authors use the term convergence of legal thinking in connection with this. See Kramer (2001). 4 See Fischer (2007). 5 Besides, Section 8 of the draft ( Obvious abuse of law is not subject to legal protection ) may be considered a maxim dictating that law should be developed in the form of teleological reduction.

3 DANUBE Law and Economics Review I (2011) 75 of law (analogia iuris), with reference to general principles (even though this may possibly be the first gateway to a strong judicial development of law, see below). The second and third Clauses of Section 10 set forth the rules for strong development of law beyond the statutory limits (development of law praeter legem and sometimes also contra legem). Foreign legal systems take different approaches to solving the issue of judicial development of law. Some legislation does not primarily provide any clue (France), some other countries choose to provide a very clear interpretation in the text of the law (Switzerland, Portugal, Austria, Czech draft), and other countries open the gateways thereto indirectly and perform it primarily through the activity of higher courts. That is the case in Germany; 6 it is worth mentioning that the decision of the German Federal Constitutional Court allows strong development of law, even beyond the limits of analogy, for cases in which:... the living conditions between the creation and application of law and legal opinions have changed so radically as in this [20th] century. Judges cannot escape from a possible conflict of the legal norm and the material conception of justice in a changed society by referring to an unchanged text of a statute. They are forced to use legal forms more freely so as not to fail to perform their obligation to deliver justice. 7 The preamble to the Czech draft admits obvious inspiration in the famous Section 1 of the Swiss Civil Code (ZGB) which, in the absence of a legal regulation and common law, orders judges to decide according to a rule which law-makers would establish for the given case ( If it is not possible to derive any rule from the law, then the court should decide according to common law, and in the absence thereof, according to a rule which it would establish as a law-maker ). In fact, it is the law-makers confession of their own imperfection. 8 Even though the Czech draft uses slightly different wording, it is necessary to examine in particular whether and by what Swiss judges are limited when developing the law. Interestingly, even though the incompleteness of legal systems was recognized in all of Europe as early as the beginning of the 19th century, such a clearly expressed rule of judicial creation of law was unique for its time. 9 Meier-Hayoz, the Swiss postwar theorist, claims that such provision obliges judges to pursue the law-making method when determining the law. 10 However, the designation of such a method is misleading. Melzer points out that, when creating legal regulations, there is a significant difference between the consideration of law-makers, who are mainly restricted by the constitutional order, and the consideration of judges, who are bound by the existing legal system in its entirety However, the German Civil Procedure Code (ZPO) has, since 2001 in Section 543 (2), expressly provided that review courts are obliged to further develop law, and admits review of a case if further development of law is required (Fortbildung des Rechts). 7 Judgement of the Federal Constitutional Court of 14 February 1973, 1 BvR 112/65 (Soraya Urteil). 8 Widmen (2007). 9 It is sometimes claimed that the conceptual jurisprudence method was overcome by this see Henninger (2009); however, as Sobek (2010) points out, it is a very simplified understanding of conceptual jurisprudence which did not exclude the judges interference. 10 Meier-Hayoz (1966). 11 Melzer (2008) writes that it is incorrect to say that judges decide modo legislatoris, but that they conjecture the consequences of existing legal system.

4 76 Petr Bezouška The Judicial Development of Law Beyond Statutory Limits in the Draft of the Czech Civil Code The law-making method finds expression in something else: judges must seek a solution which can claim general validity and which must be made in a generally abstract fashion, and they must use a similar procedure as the law-makers would use. Such rules must not be interpreted to mean that judges would have indefinite and absolutely legally-independent freedom to create law. 12 They should rather choose a solution which would best comply with the entire legal system. In other words, judges must pursue the intent of a statute and must not contradict the essence thereof; they may only complement it. Seemingly free determining of law is governed by formal and material criteria which have developed in practice. Particularly interesting is the case of Portugal, whose Civil Code of 1966 (Art. 10 (3)) provides a more detailed wording of Art. 1 (2) of ZGB: In the absence of any analogous case, the case shall be decided according to a rule which would be created by the interpreter himself if he had to, within the boundaries of the spirit of the system, perform the activity of a law-maker. III. Formal Criteria for the Judicial Development of Law Art. 1 (2) of ZGB refers to an Aristotelian maxim, but it cannot be taken literally. When creating law, judges are primarily limited by the principles of the rule of law. Kramer literally states that the judicial solution of a case must be generalizable (generalisierbar) and capable of regulating (regelfähig); judges must formulate a universal ratio decidendi, their decisions must be applicable to the same or similar cases. 13 From this perspective, the shift in the Czech draft seems interesting because it originally involved, in Art. 10 (3), a rider (clearly under the influence of Art. 5 of the French Code Civil) that judges may not decide by making a general and normative statement. It is, in my opinion, appropriate that the rider was excluded by later amendments because Art. 5 of the French Code Civil responded, in its time, to a particular situation during the period before the French Revolution. Today, according to prevailing opinion, nothing prevents judges from issuing decisions which primarily refer to a particular case, but which may be generalized and pursued (arrêt de principe); however, they must not replace law-makers and issue normative, generally-binding decisions without any relation to the solution of a particular case. 14 The French Code Civil does not contain any explicit provision with respect to the method of determining the law; as Henninger points out, local legal science does not distinguish between the interpretation and development of law and the boundaries of the development of law. 15 It is quite unlike the German approach for example 16 where interpretation and development are clearly distinguished, even though Larenz states that the interpretation of a statute and the judicial development of law cannot, in principle, be viewed as different, but that they concern two different levels of the same process 12 Kramer (2005). 13 Ibid. 14 Henninger (2009). 15 Ibid. 16 The possibility of the judicial development of law was fully approved by the judgement of the Federal Constitutional Court on the merits of Soraya (Soraya Urteil, , 1 BvR 112/65).

5 DANUBE Law and Economics Review I (2011) 77 of thought. 17 The requirement of generizability goes hand-in-hand with the imperative to respect legal equality (to decide similarly in similar cases) and to provide proper reasoning. Judges must not hide behind imaginary elementary values of the legal system, but they must substantiate their decisions by giving appropriate reasons. Such reasons are of interior (emerging from the system of law) and exterior nature. 18 The draft of the Civil Code anchors such requirements in Section 13: Everyone, who seeks legal protection, may reasonably expect that their legal case be decided similarly as another legal case which has already been decided and which coincides, in essential features, with their legal case; if the legal case is decided otherwise, everyone who seeks legal protection shall be entitled to receive a persuasive explanation of the reason for such deviation. IV. Material Criteria of the Judicial Development of Law In addition to the formal criteria (generalizability, legal equality, proper reasoning), judges must also take into account the material criteria, which often involve: previous decisionmaking practice, doctrine, general legal principles, or legal comparison. The draft of the Czech Civil Code expressly refers to the principles of justice, the state of legal doctrine, and established decision-making practice. But it still differs from the Swiss regulation, since it directly prescribes a hierarchy of criteria to be used by judges. The principles of justice are put in first place and judges are ordered to decide in compliance therewith. Such principles must never be neglected by judges and must always be applied at the beginning of their considerations. A. General Legal Principles vs. Principles of Justice General legal principles (principles of natural law) are the most frequent route to the judicial development of law. We may start with the last Clause of Section 7 of the Austrian Civil Code ABGB ( Should a legal case still remain dubious, it should be, in view of carefully summarized and thoroughly considered circumstances, decided according to the principles of natural law ) and it is apparent that the Czech law-makers also found inspiration there. The same provisions can be found in, for example, Art. 12 (2) of the introductory law to the Italian Codice Civile (princìpi generali dell ordinamento giuridico dello Stato) or in the Spanish Civil Code. However, there is a shift in the Czech draft. According to the Austrian doctrine, the principles of natural law are a primary starting point for strong judicial development of law; e.g. Bydlinsky points out that Art. 1 of ZGB also involves a reference to general legal principles and, thereby, puts the two rules in the same position 19 and further argues that the application of the principles pursuant to Section 7 (2) of ABGB differs from the analogy 17 Larenz (1991). 18 E.g. a court considering a case of damages must, when distributing the risks, consider the effects of its decision on the future competition of entities in a similar situation. It must make the same consideration the law-makers would if they formulated a general rule in a legal regulation. See Kramer (2005). 19 See Bydlinski (1991).

6 78 Petr Bezouška The Judicial Development of Law Beyond Statutory Limits in the Draft of the Czech Civil Code of law (Gesamtanalogie, Rechtsanalogie); 20 Kubeš arrived at the same conclusion. 21 The Czech draft puts the application of general principles (which constitute the basis of the Act) in Section 10 (1), i.e. before the hardcore of the judicial development of law in the second Clause of the same Section. It is a kind of preliminary stage which we may refer to as the softcore of the judicial development of law. Such a conclusion is, in reference to the Austrian experience, only natural, even though, according to the Czech traditional opinion (which I consider erroneous), it concerns analogy of law. 22 Thus, let me discuss briefly the use of such general principles. Generally, principles have several functions, one of which is their application for legislative activities. 23 Judges who refer to them and use them to resolve a particular case should think about them in the same way as law-makers. They should not use only the system of values they believe in. Höltl states (based on the provision of Section 7 of ABGB) that judges should use such principles to enforce the law after having carefully summarized and thoroughly considered all circumstances; they should not do so using their own sense of justice, but using the intent of the law-makers. They should make the decisions the law-makers would make if they had to establish a rule to resolve a particular case. 24 And, by that roundabout way, we have come back to the law-making method described above, in reference to the ZGB. This also supports the fact that the gateway to the judicial development of law praeter legem can already be found in the last Clause of Section 10 (1) of the Czech draft. We may also ask what is actually meant by principles of justice in Section 10 (2) of the draft of the Civil Code. If we look at how the principles are approached in the draft then we can see that only the term principles without any attribute is used in Section 3 (2), and a phrase generally recognized principles of justice and law in Clause 3 of the same Section. What seems to be particularly problematic is that Section 10 refers to the principles twice. First, in the first Clause, which orders judges to judge a case upon thorough consideration of all its circumstances according to the principles which form the basis of this Act and according to the common practices of private life, while the second Clause orders judges to decide a case according to the principles of justice, with regard to the state of legal doctrine and established decision-making practice in order to achieve a good ordering of rights and obligations. I assume that it concerns different principles. It cannot concern one and the same set because it would render the application of the rule in Section 10 (2) impossible. The 20 Ibid. In the Austrian doctrine, analogy of law is not always connected with the application of general legal principles but with the fact that a common legal idea is extracted from multiple legal norms (the kinds of new facts of a case), which is then applied to resolve a legal case (whose facts are not directly provided in any of the norms) see Korenke (2006) Koziol et al. (2005). Larenz (1991) takes the same view. 21 Kubeš (1987). 22 Knappová et al. (2002). 23 It is worth mentioning Kühn s (2002) idea that adherence to principles and the concept of the legal principle as a regulatory idea for making new legal regulations is also implied by the fact that legal principles limit the possibility of the law-makers consideration when making laws, and determine the content of laws, e.g. by establishing boundaries for creating basic laws within which the law-makers may operate when making laws. 24 Höltl (2005).

7 DANUBE Law and Economics Review I (2011) 79 preamble suggests that the principles, which form the basis of the Civil Code, may conflict and each principle may lead to a different goal and result than the other one. In such an event, the principles of justice shall apply. However, the use of the term justice makes me think that the law-makers did not mean any other principles in common legal understanding, but rather a general idea of justice as a value basis of the legal system. The law-makers suggest that judges should, when comparing conflicting general legal principles, take into account a certain ultimate goal of good and justice. We may refer to the case law of the Constitutional Court, which adopted such an idea when comparing fundamental rights. It not only urges the judges but also the law-makers (which is interesting in the perspective of the judicial development of law) to decide so as to retain as much as possible of the two compared fundamental rights, and if that is not possible, to give preference to the fundamental right which is favored by the general idea of justice. 25 In another ruling, the Constitutional Court defined the primary task of a judge under the conditions of material rule of law as seeking a solution which would ensure maximum implementation of the fundamental rights of the parties in dispute, and if that is not possible, to decide in compliance with the general idea of justice, or according to a general principle of natural law. 26 B. Established Decision-making Practice Does the express reference to the established decision-making practice in the draft of the Civil Code contravene the continental system of law which traditionally excludes judicial decisions from the sources of law? Moreover, knowing that previous judicial decisions are not only referred to in Section 10 (2) when developing law praeter legem, but also in Section 13, for any determining of law. Is a new precedential doctrine being established here? To find answers to these questions I refer to already published literature; 27 here, I proceed from the prevailing opinion that the normative strength of case law (in particular that of higher courts) is of an argumentative nature and that it is important for the justification of a judicial decision judges may deviate but such deviation must be convincingly justified. 28 Previous judicial decisions (precedents) may, perhaps, be considered the clearest and best comprehensible criterion from the perspective of a judge who is to determine the law. The Swiss ZGB does not expressly refer to them, but according to the traditional interpretation they are covered by the term used in Article 1 (3) of ZGB (German Überlieferung, French jurisprudence, Italian giurisprudenza). Precedents represent a subsidiary source of law (with a limited obligation to observe them), in particular for the purpose of maintaining legal equality and legal certainty. Such binding force is not much argued in literature, the debate is rather about the nature and scope of such binding force. 29 Reference to the 25 Constitutional Court s ruling of 6 October 2010, ref. Pl. ÚS 39/08, complex amendments. 26 Constitutional Court s ruling of 7 September 2010, ref. Pl. ÚS 34/09, determining a just resolution in the event of a conflict of fundamental rights. 27 Bydlinski (1991) or Kühn et al. (2006). 28 Hondius (2007). 29 Meier-Hayoz (1966).

8 80 Petr Bezouška The Judicial Development of Law Beyond Statutory Limits in the Draft of the Czech Civil Code previous case law is a rule; deviation from higher courts decisions is an exception. And still, Probst points out that the frequency of changes to case law is relatively higher than in the Anglo-American legal culture. 30 Spanish law-makers also expressly allow limited binding force of some judicial decisions. According to Art. 1 (6) of Código civil, this applies to the established case law (doctrina legal) of the Supreme Court. On the other hand, precedents do not represent a source of law according to the German doctrine. However, nobody underestimates their actual binding force, in particular that of decisions of higher courts. The force of a source of law is given to them only exceptionally if the criteria for viewing a decision as a legal custom are satisfied. 31 Thus, only very old judicial decisions may become a source of law, which may be counterproductive and not really in line with the dynamic development of law. 32 There is a similar situation in Austria where the starting point is Section 12 of ABGB ( Measures for an individual case and judgement in special legal disputes rendered by courts never have the force of a law and, therefore, it would be inappropriate to apply them to other cases and other persons ). It is analogous to Art. 5 of the French Code Civil and the general binding force of judicial decisions is rejected by the majority, 33 even though there are also different minority opinions. 34 We may conclude that, after the draft of the Civil Code has been enacted, we should at least open a debate in the Czech Republic about the nature of judicial decisions, if not rethink the term source of law in the spirit of the Swiss doctrine and admit the general binding force of previous judicial decisions. However, it should be kept in mind that the wording of the Czech draft differs from that of the Swiss ZGB, in which previous judicial decisions play a key role. At least, the precedent is clearly defined as a material source of law (legitimate basis in judicial decision-making). C. State of Legal Doctrine Like the Swiss ZGB, the Czech draft urges judges to refer to legal doctrine. In ZGB, legal doctrine is even given priority. But it is still undisputed that the doctrine does not have any normative binding force; it is only a source of inspiration, it operates through its persuasive force, depending on the arguments presented in literature. While the Swiss law-makers refer to bewährte Lehre (well-proven doctrine), the Czech draft refers to the state of legal doctrine. I think that such wording is important because the judges, when resolving a problem, are ordered to consider various opinions of the legal doctrine and to choose those which are well established within the existing doctrine, and supported by the best arguments. They cannot use the legal doctrine concisely, i.e. extract only such opinions which support their own beliefs, but they must also deal with opposing opinions, if any (and if those are not in an absolute minority). 30 Probst (1993). 31 Reinhardt (1997). 32 See Kühn (2002). 33 See Henninger (2009). 34 See Bydlinsky (1991).

9 DANUBE Law and Economics Review I (2011) 81 Different European countries take different approaches to legal doctrine. Generally, they operate by their persuasive force, but in, for example, Italy, it is directly forbidden by law to quote, in judicial decisions, opinions from the legal literature. 35 V. Conclusion Harmonization of private law in the European context is a process which is accelerated in some areas (e.g. consumer law), but which rather drags along in others. At the beginning, I raised the question of whether such a process also requires a certain level of unification of methods of determining the law. This paper does not provide any answer to the question and it did not intend to provide any. It would be, at this stage, audacious to claim that there is a causal link between the harmonization of the content of the legal system and the approximation of methods of determining the law, even though some signs of this may be observed. However, it may be positively claimed that we have to travel a long way before uniform ius commune europaeum methods are established. Smits points out, in connection with this, that the mere existence of a regulation of European origin, which influences the national legal arguments, does not by any means indicate that such influence results in the convergence of national legal systems. 36 On the contrary, it is likely that Europeanization of substantive law rather strengthens the differences in legal arguments, instead of removing them. 37 As regards the main topic of my paper, i.e. strong judicial development of law, the following partial conclusions may be pointed out: a) European legal systems usually interpret the development of law praeter legem as a legitimate means for determining the law; some of them even expressly open the gateways to this in their civil codes. b) When developing law, judges must not refer only to the system of values they subjectively believe in, but they must put themselves in the role of law-makers and proceed with respect to the legal system as a whole. c) The role of previous judicial decisions is being changed; precedents are becoming more important (in particular in view of the principle of legitimate expectations and legal equality). The Czech draft of rules for developing the law is a combination of the Austrian and Swiss approaches; at first glance, it seems to be consistent, but after a closer look it turns out to involve some ambiguities. In the Austrian doctrine, the last Clause of Section 7 of ABGB is accepted in the same way as Art. 1 (2) of ZGB in Switzerland. However, the Czech draft seeks inspiration in both codes. This is, in my opinion, an inappropriate blending of 35 See Ecchecr et al. (2009). 36 See Smits (2004). 37 Smits (Ibid.) argues that one area of national law (i.e. consumer law) is very strongly tied by the uniform rules and pushed towards the uniformity of legal thinking, while other areas are not affected and divergence is an inevitable consequence. It then results in fragmentation of national regulations and in different approaches to them.

10 82 Petr Bezouška The Judicial Development of Law Beyond Statutory Limits in the Draft of the Czech Civil Code two approaches whose contemporary application in the two countries pursues the same goal. This may lead to confusion and to problems in application. Since it concerns one of the key general provisions of the draft code, it may have negative consequences for the code as a whole. If the present case law practice stays in the same old rut, often beaten deep in its past, and if it fails to reflect the dynamics and needs of legal relationships, then an ambiguously worded rule may lead to its disregard and attempts to find autonomous solutions which support the current good approach. References Bydlinski, F. (1991). Juristische Methodenlehre und Rechtsbegriff. Wien: Springer. Constitutional Court s ruling of 6 October 2010, ref. Pl. ÚS 39/08, complex amendments. Constitutional Court s ruling of 7 September 2010, ref. Pl. ÚS 34/09, determining a just resolution in the event of a conflict of fundamental rights. Ecchecr, B. et al. (2009). Handbuch Italienisches Zivilrecht. Cape Town: Oxford University Press Southern Africa. Fischer, Ch. (2007). Topoi verdeckter Rechtsfortbildungen im Zivilrecht. Tübingen: Mohr Siebeck. Henninger, T. (2009). Europäisches Privatrecht und Methode. Tübingen: Mohr Siebeck. Höltl, J. (2005). Die Lückenfüllung der klassisch-europäischen Kodifikationen. Wien: LIT. Hondius, E. (2007). Precedent and the Law. Electronic Journal Of Comparative Law, 11(3). Judgement of the Federal Constitutional Court of 14 February 1973, 1 BvR 112/65 (Soraya Urteil). Knappová, M. et al. (2002). Občanské právo hmotné. Brno: Masarykova univerzita. Korenke, T. (2006). Bürgerliches Recht. Wien: Oldenbourg. Koziol, H. et al. (2005). Kurzkommentar zum ABGB. Wien: Springer. Kramer, E. (2001). Konvergenz und Intemationalisierung der juristischen Methode. In Heinz-Dieter, A. et al. (eds.) Unterschiedliche Rechtskulturen Konvergenz des Rechtsdenkens. Baden-Baden: Nomos. Kramer, E. (2005). Juristische Methodenlehre. Bern: Stämpfli. Kubeš, V. (1987). Theorie der Gesetzgebung. Wien: Springer. Kühn, Z. (2002). Aplikace práva ve složitých případech: k úloze právních principů v judikatuře. Praha: Karolinum. Kühn, Z. et al. (2006). Judikatura a právní argumentace. Praha: Auditorium. Larenz, K. (1991). Methodenlehre der Rechtswissenschaft. Berlin: Springer. Meier-Hayoz, A. (1966). Berner Kommentar zum schweizerischen Privatrecht. Art Melzer, F. (2008). Metodologie nalézání práva. Brno: Tribun EU. Miller, D. C., Zimmermann, R. (eds.) (1997). The Civilian Tradition and Scots Law: AberdeenQuincentenary Essays. Berlin: Dunckert & Humblot. Probst, T. (1993). Die Änderung der Rechtsprechung. Basel: Helbing Lichtenhahn. Reinhardt, M. (1997). Konsistente Jurisdiction. Tübingen: Mohr Siebeck.

11 DANUBE Law and Economics Review I (2011) 83 Smits, J. M. (2004). The Europeanisation of national legal systems: some consequences for legal thinking in civil law countries. In van Hoecke, M. (ed.). Epistemology and Methodology of Comparative Law. Oxford: Hart. Sobek, T. (2010). Nemorální právo. Plzeň: Aleš Čeněk. Widmen, P. (2007). Helvétské úvahy nad návrhem nového českého občanského zákoníku. In Švestka, J. et al. (eds.) Sborník statí z diskusních fór o rekodifikaci občanského práva. Praha: ASPI.