Quantum Law Workshop

Author(s): Terezie Smejkalová / Language(s): Czech Issue: 3/2018

Dalo by se říci, že 20. století – a především pak jeho druhá polovina – je pro právní teorii typické tím, že se do jejích úvah dostávají metody a koncepty z jiných vědních disciplín. Zatímco sociologické teorie práva již považujeme za prakticky tradiční, z práva a ekonomie (law and economics) nebo práva a literatury (law and literature) se z okrajových oblastí stávají prakticky nezbytné součásti právní teorie, některé „law and…“ směry jsou zatím v zárodku a není jisté zda a do jaké míry se jim podaří být pro zkoumání práva skutečným přínosem. Jedním z těchto směrů je nepochybně právo a přírodní vědy, konkrétně pak fyzika.

Komplementárne pôsobenie etického a právneho normatívneho systému

Author(s): Ondrej Mitaľ / Language(s): Slovak Issue: 2/2018

Considering ethical aspect of public administration practice is an essential part of public administration in democratic countries. The presented study tries to enrich discussion about the importance of ethical norms in the sphere of public administration. Besides that, the study examines, with the help of deductive and inductive method, the benefits and limits of ethical norms as a regulator of public administration employee’s behaviour in the conditions of Slovak Republic. The introductory part of presented text is devoted to the most discussed theoretical opinions linked to the examined issue. The core part of study concentrates its attention on the current state of practice with emphasize on ethical norms adopted by state administration and local self-government units. The main benefit of this paper is based on the finding that ethical norms could be important factor, which could influence the behaviour of employees and should be used as a complementary and additional regulator along with the legislative. Finally, the study ends with a discussion of the assumptions and suggestion connected with potential of qualitative improvement of examined issue.

MOLITERNO, James E. a Paul Douglas PATON. Globální problémy profesní etiky právníků

Author(s): Tomáš Friedel / Language(s): Czech Issue: 2/2018

Tradice sémiotických kulatých stolů a otázka exemplarity

Author(s): Terezie Smejkalová / Language(s): Czech Issue: 2/2018

Možnosti a limity axiomatizace práva

Author(s): Filip Horák,Martin Madej / Language(s): Czech Issue: 1/2018

Axiomatization of law, transforming it into a logically coherent system similar to mathematics, was in the center of attention of some legal theorists and philosophers for centuries. The purpose of this article is to provide more precise definitions of key terms, to summarize the development of important ideas on this topic as well as to discuss theoretically and methodologically whether axiomatization of law is both possible and desirable.

Neurčitosť v práve

Author(s): Eduard Bárány / Language(s): Slovak Issue: 4/2017

Law strives for determinacy, but it is unavoidable indeterminate and particularly vague. Some of it’s vagueness is caused by vagueness of natural language, but some parts of any legal system are inherently vague (legal principles). There is a special kind of vagueness caused by the complexity of legal systems. A practical solution of the vagueness problem has been formulated by P. Heck in 1913. His model of the meaning of any legal concept (core – periphery – not belonging) is still used in interpretation of law. The indeterminacy in law influences the functioning of a legal system; in some amount it is usefull for it, but it endangers the predictability of the application of law.

Osoba v právu z hlediska Vídeňské a Brněnské právní školy

Author(s): Karel Beran / Language(s): Czech Issue: 4/2017

The aim of this article is to describe the approach of pure legal science to a person as a personified set of legal norms. For this reason it is essential to explain the approach of legal normativism to subjective rights as legal norms. Generally, legal normativism is identified with Vienna School of Legal Theory, particularly with Hans Kelsen. That is why this article is supposed to demonstrate that even Brno School of Legal Theory, especially František Weyr or less famous Czech normativist Josef Slezák, made a significant contribution to the issue of a person at law.

O úlohe metafyziky pri odôvodňovaní ľudských práv

Author(s): Marek Káčer / Language(s): Slovak Issue: 3/2016

When justifying human rights we can essentially rely on two different types of reasons: facts and metaphysics. Against the first kind of justification Hume’s thesis is standardly raised. According to this thesis it is not possible to derive a normative conclusion from a set of purely descriptive premises. Against the second kind of justification it is usually objected that metaphysics is too speculative to secure a solid ground for a consensus in pluralistic societies. In the following text I will try to interchange the targets at which these objections are usually aimed: I will challenge the factual justification of human rights by the objection of speculation and at the same time I will raise Hume’s thesis against the metaphysical justification of human rights. My conclusion is that human rights, same as any other norms, can by justified only by normative premises regardless of their metaphysical nature.

MRVA, Michal a Martin TURČAN: Interpretácia a argumentácia v práve

Author(s): Martin Hapla / Language(s): Czech Issue: 3/2016

Review - MRVA, Michal a Martin TURČAN: Interpretácia a argumentácia v práve. Bratislava: Wolters Kluwer, 2016, 195 s. ISBN 978-80-8168-390-9.

Weyrovy dny právní teorie 2016

Author(s): Martin Hapla / Language(s): Czech Issue: 3/2016

V prvním červnovém týdnu se v prostorách Právnické fakulty Masarykovy univerzity konala konference Weyrovy dny právní teorie 2016. Tato akce zorganizovaná místní Katedrou právní teorie tak úspěšně navázala na loňský Weyrův den právní teorie. Změna jejího názvu je přitom odrazem jejího nového dvoudenního formátu, díky kterému se podařilo poskytnout nejen více časového prostoru více než třem desítkám vystupujících, ale umožnit i podrobnější diskuze nad rozebíranými tématy.

Koncepce evolutivního výkladu – metodologické ukotvení interpretační techniky

Author(s): Michal Malaník / Language(s): Czech Issue: 2/2016

This paper aims on the evolutive (or evolutionary) interpretation of legal texts. In our legal background we use generally known methods of legal interpretation to which the evolutive interpretation does not belong. This paper shows what the evolutive interpretation of legal texts is, what are its main features, and puts it into context with continental and anglo-american methodological approaches. It thusly serves as an invitation to proper theoretical understanding of this interpretative tool.

PASCAL, Ide: Je zygota lidskou osobou?

Author(s): Jakub Valc / Language(s): Czech Issue: 2/2016

Review - PASCAL, Ide: Je zygota lidskou osobou? Praha: Triton, 2012, 215 s. ISBN 978-80-7387-526-8.

Empirické zkoumání metodologie interpretace práva

Author(s): Michal Malaník / Language(s): Czech Issue: 2/2019

This paper focuses on the possibilities of empirical research in the field of methodology of legal interpretation. It briefly discusses the scope of research in literature both domestic and foreign and informs about the most important foreign research on the subject. Although the primary interest is placed on the legal interpretation in the application process, especially how to study the interpretation procedures of judges, the paper does not forget the law-making stages, where the interpretation methods are also necessary to be considered. The paper also offers selected results from the pilot research conducted with several judges of the Supreme Court.

Justifikace lidských práv a is-ought problém

Author(s): Martin Hapla / Language(s): Czech Issue: 1/2020

Clarifying the transition from facts to norms is one of the key issues of legal philosophy and ethics. In the article, the author analyzes how various theories of justification of human rights attempt to solve it. He first characterizes human rights as critical moral rights and clarifies in what sense we can say that they exist. He then describes the Is-Ought Problem and analyzes why some approaches cannot deal with him adequately. At first, he focuses on human rights justification through the concept of basic needs and capabilities, later on Robert Alexy’s explicative-existential justification. However, the greatest attention is paid to the justification theory, which was constructed by Alan Gewirth, one of the main representatives of ethical rationalism. According to the author, this is the most sophisticated attempt to deal with this problem in the field of human rights. In the last part of the article, the author formulates his own opinion on it. According to him, the solution is to stop imposing absolute demands on the justification of these rights, but to start assessing its strengths and weaknesses in relation to the concepts that compete with it.

Jak normativní je právní komparatistika?

Author(s): Uwe Kischel / Language(s): Czech Issue: 2/2020

The discussion on methods in comparative law has continued unabated for decades. While traditional, functional comparison dominates in practice, many of its academic critics deplore its lack of „theory“. This conflict is exemplified by the question what is the significance of simple norms in comparative law. A practice-oriented, hermeneutical solution not only to this question but to the entire discussion on comparative methods is provided by the contextual approach to comparative law. It preserves the basic idea of the functional method while simultaneously avoiding its pitfalls and problems. Its hermeneutical approach in essence requires the comparatist to feel his way into the foreign legal system through a process of slow and diligent familiarization with the respective foreign law and with the normative as well as non-normative setting of the concrete rule under consideration. One helpful tool for this process is an overall type comparison of legal systems worldwide, which aggregates basic insights and experiences about these systems into a defined set of different legal contexts. Ultimately, comparative law is just as normative as it is non-normative: Only norm and context combined lead to true understanding.

The Rule of Law Framework and its Effectiveness

Author(s): Štěpán Paulík / Language(s): English Issue: 1/2021

The article gathers information about the Rule of Law Framework and analyzes the Rule of Law Framework and its implementation. It starts by introducing the Framework itself. It further maps out its implementation via the Recommendations made against Poland. The Recommendations are set within their context, and their reception by Poland follows. Building on the experience, the European Commission opened a discussion on the future of the Framework and its potential improvement. The discussion is touched upon in the article as well. The article analyzes the effectiveness of the Framework in a case study in Poland. It concludes that the Framework was ineffective with regard to achieving its three functions.

Koho trápí existence lidských práv?

Author(s): Martin Hapla / Language(s): Czech Issue: 4/2021

The paper responds to Marek Káčer’s text „Why Should We Bother with the Question of Existence of Human Rights?“ It criticizes him for not distinguishing sufficiently between various kinds of rights (for example legal and moral rights, institutional and critical moral rights), which in turn leads to some confusions. It further criticizes him for focusing on a question that contemporary human rights philosophers do not ask. Indeed, in contemporary philosophy, human rights are not understood as bizarre objects existing in some analogy of the Platonic realm of ideas, but as norms that are valid on the basis of moral reasons. It is this position that is more thoroughly presented and analyzed in the paper (including the identification some of its advantages over the pragmatic thought framework, in which Marek Káčer recommends thinking about human rights).

Ospravedlnění, nebo ontologie? Aneb proč je filosofování o pojmu lidských práv užitečné

Author(s): Pavel Dufek / Language(s): Czech Issue: 4/2021

This is a critical response to Marek Káčer’s article Why Should we Bother with the Question of Existence of Human Rights? (this journal, No. 4/2020). I argue that the author’s attempt to set philosophical controversies about the concept of human rights aside will encounter the same set of problems that have occupied the approaches he wishes to supersede with his pragmatic turn. Related, I do not find convincing the justificatory bedding of his pragmatism in the supposed global overlapping consensus on the practice of human rights. By explaining the incompleteness of legal-centralistic view of human rights and highlighting the social-moral prerequisites of legal rules, I also cast doubt over the claim that “we” as humanity have already “decided” for human rights, which supposedly renders any deeper justification unnecessary.

Pragmatismus bez metafyziky?

Author(s): Tomáš Sobek / Language(s): Czech Issue: 4/2021

This article has two parts that are closely related. Both concern the relationship between metaphysics and pragmatism in a moral context. The first responds to Marek Káčer’s text „Why bother with the question of the existence of human rights?“ which advocates pragmatism in opposition to the ontological approach. Káčer, inspired by Rudolf Carnap, argues that the ontological question of whether X exists should be replaced by the practical question of whether it is useful to accept a language framework that allows to talk about X. In my reaction I will try to show that the opposition between the ontological and pragmatic approach is not as sharp as the author presents it. The very idea of what could and should be creates ontological commitments. I will try to illustrate this fact on the desire for fairness in relation to the moral concept of potential person. Ontological commitments are an integral part of human’s practical orientation in the world, and in this sense the ontological approach is compatible with pragmatism. The second part responds to another text by the same author, which also deals with the role of metaphysics in the justification of human rights. Káčer here uses Hume’s dictum to show the limited relevance of metaphysics to the justification of human rights. I am trying to show that Hume’s dictum, in its non-trivial version, is a metaphysical thesis rather than a logical law. However, I propose a way to deal with this problem in terms of Káčer’s pragmatism.

Pseudospor o ľudských právach

Author(s): Marek Káčer / Language(s): Slovak Issue: 4/2021

This rejoinder addresses the texts of three authors who criticize my suggestion according to which human rights should be defended by pragmatic arguments instead of ontological ones. Even though most of the critical objections do not directly dispute this proposal, I arrive at its slight modification: If the task of ontology is to broaden the system of beliefs that justify our pragmatic attitudes, then ontology can also provide good arguments in defending human rights. Pragmatism does not replace ontology but precedes it.