Unwritten Rules in the Czech Constitutional Law: A Functional Analysis

Abstract

Unwritten rules are an essential and inherent aspect of any constitutional system, including that of the Czech Republic. However, there are significant differences in opinions regarding their character and importance for the functioning of Czech constitutional law. As a result, the current academic discussion results in persistent uncertainty about what unwritten rules actually are, which term should be used to describe them, and what status they should be assigned within the constitutional legal framework. This article employs the method of functional analysis to identify and define three distinct constitutional legal constructs. Although these constructs share certain common features (unwritten nature, usus longaevus, opinio necessitatis, and relevance to the functioning of the constitutional system), they differ in other respects, with each fulfilling a unique role in the Czech constitutional framework. The first construct, referred to as constitutional custom, has a norm-creating function, enabling it to independently establish new constitutional norms. The second construct, established constitutional practice, is relevant for interpreting the constitution and serves an interpretive and argumentative function by solidifying one of the originally pluralistic interpretations of the written provisions of the constitution. Lastly, the third identified construct, referred to as constitutional convention, has a preventive and moderating function. It is not legally binding or judicially enforceable. However, it can be effectively enforced through extra-legal, typically political, mechanisms. We believe that distinguishing these three separate constructs with their differing functions will help clarify the existing ambiguities surrounding unwritten rules (not only) in Czech constitutional law and prevent potential issues arising from the substitution or hybridisation of these constructs.