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The possibility of using law and economics as a tool for application and interpretation in the field of right to privacy and peronality rights
Monček, Vladimír ; Wintr, Jan (advisor) ; Ondřejek, Pavel (referee)
The possibility of using law & economics as a tool for application and interpretation in the field of right to privacy and personality rights Abstract This thesis is focused on the area of economic analysis of law (law & economics) and it is based on an assumption that law & economics is a suitable addition to other methods of interpretation, especially as a part of purposive interpretation. We apply economic analysis to the field of privacy and personality rights, especially intrusion into privacy by libel, or slander. In other words, we use law & economics to help solve conflict between privacy rights and free speech rights. The thesis has six main parts. In introduction (part 1) we discuss reasons for the choice of this topic and formulate hypothesis, which is: (i) that law & economics can help distinguish which situations are covered by privacy rights protections, (ii) that using law & economics one can valuate privacy and therefore estimate damages for infringement of privacy rights and (iii) law & economics is capable of estimating pecuniary damages for infringement of personality rights. In the second part we focus on history of privacy rights in the United States from its humble beginnings in an academic paper by Samuel Warren and Louis Brandeis to its modern iterations, such as reproductive rights...
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Meta as a Digital Sovereign: Digital Aspects of non-state normative system in 21st century
Valenta, Tomáš ; Ondřejek, Pavel (advisor) ; Koloušek, Martin (referee)
Meta as a Digital Sovereign: Digital Aspects of non-state normative system in 21st century Abstract: This thesis examines the normative system appliccable at Meta platforms through the lens of the theory of legal pluralism and by analysing the decisions of the Oversight Board and attempts to answer the question of whether there is such a thing as Facebook law. In the second chapter, I describe the development of legal pluralism and its transition from a descriptive analysis of the plurality of legal orders to a normative theory of how to deal with this plurality. Within this chapter, I confront traditional views and understandings of the concept of law with alternative definitions and conceptions penned by the authors of legal pluralism, along with alternative views of the concept of authority. I conclude this chapter with three main strands of critique of legal pluralism that I have identified in the literature. In Chapter Three, I describe the phenomenon of digital platforms from four different perspectives. First as online services, second as a public space that is now absolutely essential to the exercise of fundamental rights, especially freedom of expression, third as an infrastructure on which a good deal of both ordinary interactions and economic operations are beginning to be built, and fourth as a...
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Law, Progress, and the Temporality of Politics
Géryk, Jan ; Kysela, Jan (advisor) ; Bárány, Eduard (referee) ; Bělohradský, Václav (referee) ; Ondřejek, Pavel (referee)
Law, Progress, and the Temporality of Politics Abstract The present work is an interdisciplinary contribution to the study of late-modern temporality. Following the tradition of critical theory, it comes up with both functional and normative critique of contemporary society, which it frames with the term "anxiety society". The materialization of "anxiety society" is the experience of what Hartmut Rosa calls "frenetic standstill" in which "nothing remains the same, but nothing essentially changes". We begin our analysis with the statistics of the increasing prevalence of psychiatric patients with anxiety and depression and the related critique of how the "privatisation of stress" ignores the societal context of mental disorders. Next, the thesis will focus on the systemic causes of mental health changes in the population. We will identify the fact that the sources of mental distress are increasingly abstract as the anxiety- creating specificity of contemporary society. We live in a post-disciplinary society that is not based on the dichotomy of forbidden/allowed, but on the division of the possible and the impossible, and in which subjects increasingly control themselves in accordance with the demands of the system, so that coercion and freedom merge. However, the social pathology of the present emerges...
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Constitutional Rights: An Internal Critique
Abel, Martin ; Ondřejek, Pavel (advisor) ; Tryzna, Jan (referee) ; Káčer, Marek (referee) ; Kyritsis, Dimitrios (referee)
Constitutional Rights: An Internal Critique Martin Abel Abstract Proportionality test is a core instrument of human rights law. In one of its steps, governments must convince the courts that limiting the right pursued a legitimate aim. The right-holders, however, are saved the effort. Without obvious reasons why, the courts take legitimacy of individual action for granted. Due to this asymmetry, even malicious or hateful conduct enjoys at least prima facie protection, as long as it is subsumable under one of the listed rights. The thesis explains the proportionality test asymmetry by its relation to one particular conception of rights, called the I-conception. Under the I-conception, rights are abstract principles that ought to be realised to the highest degree. It is based on the philosophy of Thomas Hobbes or Immanuel Kant who insisted that all limits of natural rights must be the product of will. The thesis presents an alternative conception of rights, one that anchors rights in critical morality, making them subject to limits from natural law, too. It argues that such was the conception of rights among famous Christian-Aristotelian philosophers and that even John Locke properly understood is the heir of this tradition. The thesis sources heavily from the works of intellectual historians in order to show...
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The separation of powers between the judiciary and the executive in the Anglo-American legal culture
Blažek, Oskar ; Kühn, Zdeněk (advisor) ; Ondřejek, Pavel (referee)
83 The separation of powers between the judiciary and the executive in the Anglo-American legal culture Abstract The thesis elaborates on the Anglo-American model of review of executive action. The aim of the thesis was to determine whether the Anglo-American model, or its individual attributes, are compatible with the Czech constitutional order. In other words, whether Czech administrative law could be inspired by the Anglo-American model. To this end, the thesis describes the organisation of executive review in the United Kingdom and the USA. On this basis, the thesis presents both the form of the Anglo-American model as a whole and its individual features. Emphasis is placed on an examination of the nature of quasi-judicial or quasi-administrative tribunals and on the issue of review by the ordinary courts, judicial review. In the final part of the thesis, an assessment of the compatibility of the Anglo-American model with the requirements of the Czech constitutional order on the form of administrative justice is made. In addition to this analysis, the thesis offers a view on a possible concept of Czech administrative justice inspired by the Anglo-American model. This corresponds to the primary motivation for writing the present thesis. This was an effort to find out whether it is possible to draw...
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The Fight against Doping in Sport in Interaction with European Union Law: Proportionality of Ineligibility and Anti-Doping Education
Exner, Jan ; Tomášek, Michal (advisor) ; Ondřejek, Pavel (referee) ; Kornbeck, Klaus Jacob (referee) ; Viret, Marjolaine (referee)
Dissertation: The Fight against Doping in Sport in Interaction with European Union Law: Proportionality of Ineligibility and Anti-Doping Education Author: JUDr. Jan Exner This dissertation researches the interaction between the fight against doping in sport and the law of the European Union. It particularly analyses whether the World Anti-Doping Agency and other anti-doping organizations respect the proportionality of ineligibility for doping and related role of anti-doping education. The findings of this dissertation demonstrate that anti-doping organizations have crossed the borders of their conditional autonomy and good governance under European Union law through breach of the proportionality of ineligibility in interaction with anti-doping education. In particular, it concludes that they underestimate the role of education as an anti-doping element, which interacts with proportionality of ineligibility. Anti-doping education raises awareness, informs, communicates, instills values, and develops life skills and decision-making capability to prevent intentional and unintentional doping and its consequences, including a potentially disproportionate ineligibility. As such, it also enables the deterrence effect of anti-doping rules and sanctions. On top of that, the level of anti-doping education is...
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The legal nature of a trust (legal and comparative analysis)
Urban, Ondřej ; Beran, Karel (advisor) ; Ondřejek, Pavel (referee)
59 ENGLISH ABSTRACT The purpose of this thesis is an interpretation of English trust law, including historical context and comparative application of the acquired knowledge on the Czech legal institute of "svěřenský fond". A critical assessment of the legal regulations governing "svěřenský fond" is followed by theoretical consideration of its legal nature. The work, except the introduction and conclusion, is divided into four main chapters, with the first chapter dealing with the historical roots of the trust. The reader will become familiar with the Roman fideicomissum, the English legal institute called "use" and its influence on the emergence of the law of equity. She will also learn how use turned into trust and what the economic reasons for such a change were. The second part defines the English trust, describes it and clarifies the three main conditions for its creation under applicable law - the three certainties. Further, it will explain who the settlor, trustee and beneficiary are, along with their rights and obligations. It also focuses on the three main types of trusts. Express trusts, created by an act of the settlor and the resulting and constructive trusts, which are created by decision of the courts. The third chapter concerns itself with the "svěřenský fond", as stipulated by the Czech Civil...
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Legal theoretical and philosophical aspects of formal and material truth in judicial proceedings
Ondřejek, Pavel ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee)
Ve své práci se pokusím nastínit některé aspekty problematiky zjišťování skutkového stavu, konkrétně problematiku různého pojetí formální a materiální pravdy. Téma je to podle mého názoru aktuální, neboť v současném rychle se měnícím právním řádu České republiky se snaha po urychleném návratu mezi vyspělé právní kultury mnohdy nesetkala se stejným úsilím po teoretickém zdůvodnění té či oné právní úpravy. V zásadě stejný závěr lze učinit podle mého názoru o procesu sbližování českého práva s právem Evropské Unie. Otázkami pojetí formální a materiální pravdy se ve své judikatuře zabýval několikrát i český Ústavní soud, přičemž ne všechny jeho závěry lze bez kritických připomínek přijmout. Jako příklad uvedu nález Ústavního soudu v kauze navrácení zámku Opočno, kde základem odůvodnění ÚS bylo tvrzení, že česká právní úprava občanského soudního řízení neopouští ani ve sporném řízení tzv. zásadu materiální pravdy, jejíž dodržování je předpokladem pro dosažení účelu soudního řízení, totiž zajistit spravedlivou ochranu práv a oprávněných zájmů účastníků řízení.4 Pojetí formální a materiální pravdy s sebou nese přirozeně řadu filosofických aspektů. Samotný pojem pravdy je předmětem zkoumání filosofie, konkrétně filosofické disciplíny ontologie. Problematikou poznatelnosti se zabývá teorií poznání, nazývaná též...
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Positive and negative conceptions of human rights
Blažková, Kristina ; Kühn, Zdeněk (advisor) ; Ondřejek, Pavel (referee)
The aim of this thesis is to analyse the protective function of constitutional rights as compared to the traditional defensive function. Whereas the defensive function of constitutional rights requires that the state does not interfere with and respect the constitutional rights of the individual, the protective function requires the state to act to promote and protect constitutional rights. The problematic is examined primarily through the case-law of three foreign supreme jurisdictions, i.e. the Supreme Court of the United States of America, the Federal Constitutional Court of the Federal Republic of Germany and the European Court of Human Rights. In the broader perspective the thesis aims to assess the approach taken by the Czech Constitutional Court in relation to this problematic. The protective function of constitutional rights is explored through the perspective of the individual and through the perspective of the system. The thesis is divided into four chapters. In the first chapter, the author clarifies fundamental theoretical concepts used in the thesis. The positive and negative concept of constitutional rights is closely connected to the two concepts of freedom as developed by I. Berlin in his famous essay Two Concepts of Freedom. The protective function also represents a specific legal...
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Human Rights in Private Law
Ondřejek, Pavel ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee)
121 Summary Shrnutí v anglickém jazyce The presented work challenges traditional view on human rights as rights guaranteed only against the state. In contemporary world, in which states delegate powers either on supranational structures or on private entities, it is hardly acceptable for the individual to remain unprotected against comparable interferences with his constitutional rights caused by private persons. The classical doctrines of human rights protection lead in this situation to the decrease of level of protection of individuals. Therefore certain models of application of human rights norms in private law are to be scrutinized. How public and private law intertwine in contemporary law was shown on the examples of private military contractors that accompany modern armies in wars as well as transnational corporations operating in the Third World and exploiting indigenous peoples there. Notwithstanding the aforementioned it is clear that it was primarily private law that determined various areas of the "constitutional" status of individuals before modern constitutions of states came into force. From various models of application of human rights norms in private law, the example of models of direct and indirect horizontal application as well as non-application of human rights norms was described and...
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