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Judical law-making
Homolková, Barbora ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
This thesis aims to describe a phenomenon of judicial law-making in 21st century. The thesis is concerned with two main issues, specifically the binding effect of prior judicial decisions and the boundaries of judicial authority in law-making. The thesis begins with a description of essential terms and it focuses especially on a type of judicial decisions-making, which results in not following plain and clear language of the applicable statute. A judge is not free in his choice when to avoid the language of the statute. He is limited by values embedded in law by legislator, which he cannot exceed and extend. Therefore this activity is deemed to be a method of selecting an applicable legal norm, not creation of new law. The thesis further explains when not following plain and clear language of the applicable statute can be in reasonable cases justifiable. This part is followed by specific parts dealing with the particular forms of the judicial law-making within the bounds of two legal systems - common law and civil law. In the conclusion the paper draws a comparison between the judicial law- making in mentioned legal systems. The thesis concludes that there is a difference between the systems in the concept of bindingness of prior judicial decisions. Yet, both systems reach the stability of court...
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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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The Possibilities of Using Analogy in Public Law
Zima, Marek ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
The Possibilities of Using Analogy in Public Law Argument by analogy plays an important role in the law. It enables to complete legal system so that it presents system that is uniform and as to its values internally coherent. One of the basic knowledge of law faculty student is that statutory interpretation and application of law by analogy counts among logical methods of interpretation. However, this finding is being ever more frequently questioned in the recent literature. Rather than logical structure of an argument by analogy it is its logical nature that is being emphasized. The main aim of this thesis is to describe the structure of analogy as a general method of reasoning. So defined, analogy will be subsequently applied to the options of using analogy in public law as it is not possible to use analogy to the same extent in all fields of law. Generally speaking, the use of analogy in public law is more restricted than it is in private law and in particular fields of public law the restriction of the use of analogy are even stricter. Throughout the thesis I also attempt to support my theoretical conclusions with the relevant case law. The text is divided into four main chapters. In the introductory chapter I define analogy as a general method and further address its use in law into three...
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Does Political Ideology Influence the Czech Counstitutional Court's Decision-making?
Chmel, Jan ; Wintr, Jan (advisor) ; Kühn, Zdeněk (referee)
In the presented thesis the author analyses the possible influence of judges' ideolog-ical beliefs on the Czech Constitutional court decision making. The thesis is divided into two parts, theoretical and analytical one. The first part emphasizes the need to distin-guish between the fact that courts' decisions have political consequences and the suspi-cion that those decisions are made in a political way. The theoretical part thus focuses on the discussions on the judicialization of politics, constitutional interpretation, judicial legitimacy and the attitudinal model of judicial decision making. Since the judge can no longer be seen only as "the mouth that pronounces the words of the law", other factors than the text of law (or the Constitution) that determine their decisions should be taken into account. Political beliefs could be one of such factors. Nevertheless, the author ar-gues, that judges lack democratic legitimacy for making purely political decisions and so it is important that they suppress the conscious or subconscious tendency to decide the constitutional cases according to their ideological beliefs. It is thus useful to test the sceptical hypothesis, that what judges do is actually pure politics. It is argued that the analysis of the decision making can be enriched by employing the...
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Profiling and Legal Regulation of Privacy Protection
Marečková, Dana ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
The purpose of this thesis is to elucidate what online profiling is, what happens with users' or customers' personal data during this process, how these activities interfere with the individuals' right to privacy, what the legal regulation in this field is, whether the privacy interests of individuals are sufficiently protected and if not, how the situation might be improved. The thesis starts with description of todays' business practices that are based on collecting data about customers, analyzing it and creating profiles suggesting the most profitable behaviour of businesses towards customers. It is followed by explanation of the technological tools enabling data collection and the method of data mining that is the key enabler of creating profiles. The text continues with description of risks of profiling in relation to privacy, i.e. the issues of discrimination, de-individualisation, restriction of individual autonomy, information asymmetries and possible misuse of profiles. The notion of right to privacy is explained and other interests that have to be balanced with privacy are mentioned as well. After that follows a critical description of the current legal framework in the European Union. It consists of Data Protection Directive, ePrivacy Directive and since 2018 of the General Data...
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Judiciary and the Right to a Fair Trial in Communist Czechoslovakia 1948 - 1989
Guckler, Daniel ; Wintr, Jan (advisor) ; Kühn, Zdeněk (referee)
The aim of the study is to map and judge the level of the right to a fair trial in Czechoslovakia after the communist revolution in relation to the minimum requirements imposed by the European Convention on Human Rights. Czechoslovakia did not ratified this Convention and therefore it is not regarded in terms of the applicable law, but in terms of timeless principles of fair trial as expressed in the Convention. Even present case law speaks about the need to comply with the timeless principles of a fair trial, namely the decision of the Supreme Court in the case Ludmila Brožová-Polednová, file number 7 Tdo 549/2008, and the decision of the Supreme Court in the case of Pavel Vítek, file number 7 TZ 179/99, which was also analysed by the author. The Convention is useful for comparing with regard to the time of its creation when there was in Czechoslovakia "intensification of the struggle against the class enemy" as Communist terminology justified escalating process of violations of the right to a fair trial. The starting point will be not only in classification of cases of violations of the right to a fair trial under Article 6 or other rights and freedoms of the Convention as it took place in Czechoslovak judiciary from 1948 to 1989 but also an understanding the situation in the legal environment at...
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Social contract as a rational choice
Froněk, Martin ; Wintr, Jan (advisor) ; Kühn, Zdeněk (referee)
Social contract as a rational choice The thesis is intended to be an introduction into contemporary social contract theories which are elaborated within the methodological framework of the rational choice theory. John Rawls' book A Theory of Justice is a seminal work in this field. The thesis, however, does focus not only on the approach adopted by Rawls, but on the theories of other authors as well - that of J. Buchanan, D. Gauthier, T. Scanlon and R. Nozick. These remain quite unknown in the Czech context. The structure of the thesis should allow for a comparison between the respective theories as the author starts with the object of the social contract, proceeds to the parties to the contract and, finally, to its content. Special attention is devoted to the game theory which models some of the typical interpersonal interactions and, using its theoretical apparatus, can illustrate problems of social cooperation - the key theme of virtually all social contract theories. Following Schelling's theory of focal points an expressive theory of law is discussed. In the next part of the thesis the author illustrates mechanisms of maintaining of social order with the help of latest empirical studies. Eventually, the author tries to outline the way analytic philosophy views the social contract as a system...
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How facticity influences normativity: conventions in law
Rygl, Vojtěch ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
How facticity influences normativity: conventions in law This thesis is about social practice and its influence on the legal system. We examine the basic philosophical approaches to law and use them to challenge the very existence of conventions in law. After we derive the basic notion of convention we develop the three-step test to guarantee that we are able to identify conventions within the legal system and distinguish them from other categories of legal notions. The three-step test presented in chapter two is slightly modifying Andrei Mamor's test. The first criterion of the test is the existence of certain social group that maintains in certain situation specific conventional rule. The second criterion is build around the idea that conventions exist when there are people who have certain reasons to comply with this rule. Final criterion represents the existence of an alternative rule that could be upheld by those people as well. Nevertheless, those people rather comply with the conventional rule. If those three criterions are met, it is probable that we are dealing with conventions. We conclude that the conventions are present within every system of social norms although its importance within various legal cultures and systems varies dramatically. The value of social practice for legal practice shall...
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An Austrian Critique of the Traditional Chicago Approach to Law and Economics
Sztefek, Martin ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
An Austrian Critique of the Traditional Chicago Approach to Law and Economics Although the economic analysis of law has been recently on the rise, many authors seem to question the possibility of its application in the field of judicial decision-making or legislative lawmaking. The main goal of this thesis is therefore, besides the descriptive part, to present a coherent critique of the theoretical foundations of the traditional economic approach to law, represented by the Chicago school of economics, from the perspective of the Austrian school of economics. Given the complexity of the topic, the analysis is focused only on the basic concepts of the economic analysis of law. Chapter one deals with the Austrian school and its economic method. The development and basic characteristic of this school of thought are presented in this chapter as well. The key part consists in the introduction of the basic principles of Austrian economics, which are further used in analysing significant assumptions and concepts of the economic analysis of law. Chapter two is focused on law and economics as such. Basic concepts are introduced as well as confronted with the teachings of the Austrian School. Also, some of the implications which the economic analysis has for law are presented in this chapter, namely...
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Race and Equality from the Perspective of Law
Šipkovská, Silvie ; Kühn, Zdeněk (advisor) ; Wintr, Jan (referee)
Race and Equality from the Perspective of Law In this thesis, the author deals with the phenomenon of racial discrimination from the perspective of law. In order to understand the issue, it is necessary to set discrimination in a broader socio-scientific context. Therefore, the author draws not only from legal sources, but also from other social sciences. Other important sources of information were the reports and recommendations of non-governmental organisations, which play an important and irreplaceable role in the area of anti-discrimination policy and its implementation. The main focus of this thesis, therefore, is comprehensive treatment of the issue, taking into account its interdisciplinary context. The content of the thesis is divided into four parts. The purpose of the first part is to introduce the reader to the issue of discrimination and explain the basic concepts of the theory of race, equality and discrimination. The second part details the international mechanisms of protection against racial discrimination - in the framework of the United Nations organization, International Labour Organization, Council of Europe and the European Union. The third part describes the national system of protection against racial discrimination according to the hierarchy of national sources of law, i.e....
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