Abstract
In the Czech jurisprudence there is a plenty of decisions from the field of constitutional law, commercial law and administrative law on which the Jellinek's concept of "normative power of the factual" can be demonstrated. In these cases the courts not only acknowledged that certain facts had normative force, but even recognized their predominance over legal norms expressed in positive law.
These norms were of two kinds: either (i) clear, unambiguous (e.g. in commercial law), or (ii) containing vague terms (e. g. in constitutional or administrative law), on the contrary. The analysis of these decisions gives rise to the more general theoretical questions: Did the courts have a legal background for these decisions? If so, what is this legal background? Are there any similarities between the Jellinek's concept of "normative power of the factual" and the concept of free law presented mostly by Hermann Kantorowicz and the Free Law Movement (Freirechtslehre)? The proposed paper will be seeking answers to these questions on the ground of individual cases decided by the Czech courts.