Selected issues of normative adjustments and application practice of generalextenuating circumstances in Czechoslovakia 1918–1938. 2. Normativity, itsevolution and context

Abstract

The series of articles deals with the legal regulation of general mitigating circumstances as an important criminal law institute influencing especially the amount of punishment imposed in interwar Czechoslovakia in 1918–1938. It provides an analysis of both the normative form of the institutes examined at the time and their application in a pilot study of the decision-making practice of the Czechoslovak courts. In doing so, it notes the conceptual differences regarding the general mitigating circumstances and their application in the law of the Czech lands and in the law in force in the territory of Slovakia and Subcarpathian Rus, when, as a result of legal pluralism, the form of criminal law differed in the various territories of the Czechoslovakia, which affected not only generally binding normative acts, but also the very decision-making and the form of the so-called living law, and thus legal certainty and legitimate expectations. The series of articles draws attention to the correspondences and differences in the identification of general mitigating circumstances in the Czech lands and in Slovakia and Subcarpathian Rus, and to the consequences that this led to in their application in practice, including shortcomings and errors. It also draws attention to the contemporary principles of interpretation related to the application of the norms and principles of general mitigating circumstances and, more broadly, of criminal law in the years 1918–1938, to the elements of similarity and possible unification within the judicial decisions on general mitigating circumstances, as well as to the differences between theories and norms on the one hand and the actual decision-making concerning (not only) general mitigating circumstances in contemporary criminal law on the other. In doing so, it does not neglect the influence of extra-legal, especially political, considerations on this decision-making practice. The series of articles thus not only provides a thorough introduction to the historical roots of one of the important legal institutes still existing in the law of the Czech Republic and Slovakia today, but also enables a better understanding of how the legal order actually functioned at that time. Due to its size, the text is divided into two consecutive articles, one of which is devoted to the normative form and the other to the application practice related to the issue under study. Building on the previous article, this second article presents selected issues of the application practice of general mitigating circumstances in the Czechoslovakia in 1918-1938, conceptual, functional and other issues of application practice regarding general mitigating circumstances in Czechoslovakia with respect to normativity and legal pluralism, and summarizes the research findings from both articles.