Publication details
Interpretační pravidlo v pochybnostech ve prospěch: účinný nástroj, nebo rétorická ozdoba?
| Title in English | The Rule of Lenity: Useful Tool or Rhetorical Ornament? |
|---|---|
| Authors | |
| Year of publication | 2016 |
| Type | Article in Periodical |
| Magazine / Source | Právník |
| Citation | |
| Web | https://www.ilaw.cas.cz/casopisy-a-knihy/casopisy/casopis-pravnik/hledat-v-archivu/detail-clanku.html?id=32517&r=%252Fcasopisy-a-knihy%252Fcasopisy%252Fcasopis-pravnik%252Fhledat-v-archivu.html%253Fnaki_search%253D1%2526form_state%253D%2526query%253Dsvob |
| Description | This article deals with the concept of interpretative doubt. The existence of such a doubt is a condition for the application of the rule of lenity, the rule used in public law. The article shows that the concept of doubt can be, and in the case law actually is, approached differently. This variedness makes the rule of lenity manipulatable. The article consists of six parts. The first one introduces the rule. The second and the third analyze it from two theoretical aspects: (i) whose doubt counts, and (ii) at what point of the interpretative process the doubt is evaluated. The first aspect can be approached either by an internal perspective, which means that interpreter's internal doubt is decisive, or by an external perspective, focusing on the doubt of the addressee of the interpreted law. As to the second aspect, the rule can be applied at three different points in the interpretative process: at the beginning, in the middle or at the end. Because the aim of interpretation is to eliminate unclarity, the placement of the rule in different phases of interpretation results in a different scope of the rule of lenity. The fourth part of the article shows inconsistent approach to both aspects in the case law of Czech high courts. The fifth part proposes solution to the problem. Doubt should be approached by an external view. Also, the rule should apply at the point, where the process of elimination of doubt by interpretation has become unpredictable for the addressee of the law. The sixth and final part summarizes the entire article. |