Martin Škop

Carving Out Central Europe as a Space of Legal Culture: A Way Out of Peripherality?

The aim of the present paper is to contribute to promoting a discourse of Central and Eastern European legal identity, underscoring the legal-cultural bonds of legal cutlure in the region, based on a common past, a common juridico-political mentality and a common present predicament. To this end, the paper posits regarding Central Europe as being a legal family in its own right, distinct both from other legal families in Europe. The paper contends that legal taxonomy is a matter of social construction of reality and has a disciplining function. Considering the ‘death and burial’ of the Socialist Legal Family as the founding myth of Central European regional juridical identity, the paper posits the succession of the former by two coexisting legal families: the Central European and the Eastern European/Eurasian ones. However, the paper does not intend to give definitive answers to the questions of legal taxonomy of the post-Soviet/post-socialist juridical space; its ambition is more moderate – to put forward a number of arguments in favour of a Central European legal family with the intent of destabilising the hegemonic ‘return to Europe’ approach and fostering a discussion of comparatists, legal theorists and socio-legal scientists focused on the problem of legal identity of our region. Keywords: comparative law, legal taxonomy, Central Europe, Central European Legal Family, Socialist Legal Family, legal identity, legal culture, legal tradition

“PREFERRED READING” OF LEGAL TEXTS

In the 1970s, British cultural theorist Stuart Hall introduced a concept known as preferred reading. It combines the ideological influence of mass media and dominant ways of understanding any text. This article focuses on mass media as a source of ideological background or context of legal interpretation and of any reading of legal texts. Law operates in culture and culture represents limitations in the law, according to the needs of dominant ideology. Culture introduces structures of domination which manipulate law. An important role is also given to popular culture and mass culture. These parts of the culture industry create borders in which the recipients (audience) think of law. Through mass media – rather than through other channels – dominant ideology infiltrates law. Legal consciousness is formed by dominant cultural frames formed by dominant ideology. Through this formation of mass media, law becomes a commodity. It shares the same values or contents as that of cultural industry and is the place where the theory of preferred reading can be introduced. According to the aforementioned theory, there are methods of interpretation that are more accurate than others are. This is simply because they lead to a result that is more preferred by ‘common opinion’ disseminated by mass culture.

Milan Kundera and Franz Kafka - How Not to Forget Everydayness

Milan Kundera and Franz Kafka - How Not to Forget Everydayness Purpose of the article is to show that while in fundamental constitutional questions we are still attentive to our past, in everyday legal cases we can forget more likely. In my opinion, in case of the post-communist countries it is very dangerous to forget the Past because we have nothing other than our memories. To forget means either to be exposited the danger of return to the system as it was or to transform our legal praxis into a depersonalized system. Methodology/Methods In this article I want to analyze two decisions of Constitutional Court of the Czech Republic and compare them with situation described in early works of Milan Kundera (The Joke; The Book of Laughter and Forgetting). His work reflecting the past everydayness in communist Czechoslovakia can be used as a good example of the analyses of forgetting. Very similar inspirations we can find in work of Franz Kafka (The Trial) or even better in Milan Kunderas interpretation of Kafkas work. The scientific aim of this article is to show that although the literature represents different conception of knowledge when this knowledge is compared with legal knowledge we can gain parallels that describe the law rooted in culture and society. Conclusions of this article show that on one side we face reminding of our Past in decisions regarding politically considerable cases. On the other side we face the oblivion: In cases at constitutional level dealing with everydayness in legal praxis we can find rather shift to formal interpretation without any reference to our past. The result can be Kafkaesque legal system without any signs of living people.