THE AUTHORITARIAN LEGAL CULTURE AT WORK: THE PASSIVITY OF PARTIES AND THE INTERPRETATIONAL STATEMENTS OF SUPREME COURTS

Abstract

The purpose of this paper is to show that several rarely discussed features of the legal culture in Central and Eastern Europe distinguish this region from its Western counterpart. First, there is the misunderstanding of the classical Continental principle of Iura novit curia, the maxim which tells us that it is the judge who knows the law. While the activity of parties and their close collaboration in discussing issues of law with the judge is an important engine in applying European law in the old EU of 15, the parties are often viewed as passive objects in post-Communist litigation. Second, there is the specific idea of interpretational statements issued by post-Communist supreme courts irrespective of any real-life pending case. My thesis is that both these phenomena have a concrete philosophical and historical underpinning which constitutes one of the deep differences between the conception of law in Europe’s East and Europe’s West.