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Formalism in Law
Brezina, Peter ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee) ; Škop, Martin (referee)
The theme of this thesis is "formalism in law" as a concept that permeates an essential part of modern legal thinking. This work shows that it is usually perceived as a critical concept, but without a clear and steady meaning. In recent times, however, the discussion involving this concept changed so that it now includes individuals positively acknowledging themselves as formalists. An overview of this debate (only marginally concerning the Czech environment yet, however) forms the bulk of the thesis. The second essential part of it is a separate rethinking of the place of formalism in law, in all its aspects - in interpretation and application of law, in the creation of law, even in legal education and legal scholarship. This thesis consists of three unequal parts, the first of which is further divided into three sections. The first part deals with the formalism as a topic of discussion in legal philosophy during the entire 20th century, and the intention is to present this debate to Czech readers. Its first section is devoted to a topic typically linked to criticism of formalism in law in Western legal scholarship, as it presents the American legal realism of the interwar period. It shows it as a strong and visible culmination of earlier critical efforts visible on both sides of the Atlantic...
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New approaches to legal reasoning as used in case-law
Peterka, Bohumil ; Kühn, Zdeněk (advisor) ; Wintr, Jan (referee)
New Approaches to Legal Reasoning as Used in Case-Law - Summary The phenomenon of legal interpretation and argumentation theory has become increasingly popular in the Czech Republic. The thesis first aims to summarize theories (or methodologies) of three Anglo-Saxon scholars, Neil MacCormick, Ronald Dworkin and William N. Eskridge. In the thesis, three respective theoretic chapters are dedicated to theories of legal interpretation as presented by each of them. After exploring philosophic backgrounds of the theories briefly, main focus was put on sets of different interpretation methods and interpretive arguments these scholars find most relevant. Subsequently, I tried to analyse the arguments and to examine role different legal arguments play in the process of interpretation as described in works of the three scholars. Each theory is eventually explicated on a convenient law case mentioned in one of its author's books. The second aim of the thesis is to apply the theories as summarised in the theoretical part on Czech law cases to find out whether the theories are successfully applicable considering differences of Czech (continental) legal system and common-law-based legal orders as well as whether such application might prove helpful to a Czech law interpret. For that reason several important Czech "hard"...
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Methodology of legal interpretation in the case law of the Constitutional Court of the CR
Kadlec, Ondřej ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
1 This paper consists of two different parts. The first part is theoretical and descriptive and its three chapters are organized deductively. The second part analyses a methodology of interpretation of the Constitutional court of the Czech Republic. The first chapter concerns with important legal concepts such as law certainty, predictability of courts' decisions, justice and equality. It concludes that a methodology of interpretation plays a crucial role in all of these concepts. Next chapter examines such terms as application of law, interpretation of law, law argumentation and methodology of interpretation. The last chapter of the descriptive part presents two judicial strategies to interpretation. Judges in the first strategy use only internal law arguments (mainly text of the statutes) as opposite to the second strategy where judges do not rely on the text at all, but interpret the law with external law arguments (such as intent, unexpressed law principle, economical argument etc.). This chapter also briefly describes the most common methods of legal interpretation for every judicial strategy. Eventually this part tries to provide modern strategy which combines methods used by both strategies and is based on rational, full and open explanation of court decisions. Afterwards the paper shifts the focus...
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Further education of lawyers in specialist professions
Čech, Jaroslav ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
Further education of lawyers in specialist professions Education isn't finished when we obtain a diploma at high school or university but continues and follows us all, and our professional life. I chose this diploma thesis topic in time when I was working with education specialists on an online learning platform first as a tester and later as part of the team. That platform was developed for needs of further education of teachers. I realized I have not heard much about education of lawyers and tried to examine that topic more. I have first looked at the educational process of Czech lawyers particularly into professions of attorneys, notaries and judges. First analysis was aimed at the primary learning program for young lawyers - trainees. I wanted to see the methods of every profession separately to have a good idea of the concepts in use. After that I have examined the continuing education of lawyers who already passed their bar exams (or other relevant exam). After getting an image of the professional learning programs I started to explore foreign approaches to this topic. Choice for attorneys comparison was Germany and Netherlands and for judges France and Netherlands. In the thesis I was comparing primarily introductory courses for attorneys and judges as all institutions responsible for...
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Linguistic and literary qualities of case briefs
Tranová, Hong Chi ; Kühn, Zdeněk (advisor) ; Tryzna, Jan (referee)
The aim of this thesis is to improve the formal aspects of the Czech case briefs. The formal aspect represents the language, syntax and overall style of writing of case briefs written by lawyers. In the Czech Republic, the legal aspect is neglected. There is no professional literature dealing with this issue. The consequence of such an approach are then very confusing, stylistically poor-quality texts. Since I could not use any legal books when writing my thesis, I had to draw inspiration from other disciplines (linguistic, journalism, psychology and creative writing). I had to then apply this knowledge to the specific environment of legal writing in my thesis, namely on the case briefs. Fortunately, this legal issue is well mapped in the USA, so I also draw my inspiration from the American professional literature dealing with this issue. The thesis is divided into four chapters. In the first chapter, I focused on what do the typical Czech case briefs look like, what are their formal shortcomings and how to correct them. In the second chapter, I tried to figure out the factors that influence the style of the Czech case briefs. The third chapter is inspired by the American briefs. Of course not everything can be applied to the Czech environment. The reason for that is the difference in the legal...
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Comparative analysis of the role of judges in international judicial bodies
Mikoláš, Alexander ; Kühn, Zdeněk (advisor) ; Wintr, Jan (referee)
Comparative analysis of the role of judges in international judicial bodies Abstract The proximate topic of this thesis are two of the most prominent international judicial bodies: The Court of Justice of the European Union, in the narrow sense of the term, and the Dispute Settlement Body of the WTO. The actual interest of the work however lies not in the history, normative underpinnings or operation of these institution per se, but rather in the general insights on judicial partiality, bias and relevant preventive mechanisms which can be gleaned from these two concrete examples. The thesis does initially provide a brief overview of the actual workings of both systems, in order to establish a factual background on which to base its subsequent theoretical analysis. The second segment of the work then predominantly focuses on two phenomena - the distribution of representation in the relevant bodies of the judicial institutions from the perspective of individual member entities of both organizations, and the related issue of partiality of judges and other judicial or quasi-judicial figures in these systems; in particular their propensity towards championing national interest of their home countries, in lieu of a disinterested due performance of their duties. The analysis initially examines the factual state of...
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The Concept of Autonomy : (conditions of modern subjectivity and historicity of the concept of law)
Janoščík, Václav ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee)
of the diploma thesis Janoščík Václav The Concept of Autonomy (Conditions of modern subjectivity, of the concept of law and of historicity) Submitted thesis aims at articulation of the concept of autonomy in its complexity. At first it pursues specific contexts of the notion to arrive at its structure. At first we try to explore prospective of analytical philosophy of law to situate the concept of autonomy to the heart of the idea of law. This efforts unfolds itself by an unorthodox interpretation of natural right theory of Herbert Hart's early work. Second chapter discusses the framework of the philosophy of history, that are based on the idea of an autonomous subject. Seemingly paradoxical linkage of Heidegger's fundamental ontology and Kosík's dialectics of the particular articulates the historical function of the autonomy. Next chapter connects Kosík with Cornelius Castoriadis in the perspective of social theories. Also in their normative core we can identify our notion of autonomy. Fourth chapter follows the theory of disenchantment of the world of Marcel Gauchet. We reformulate it as a realization of the ideal of autonomous subject in order to contextualize the concept historically. Last topic of the first part is the framework of the intellectual history. Here we situate Dieter Henrich and...
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The Case Law Publication
Králík, Lukáš ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee) ; Masopust, Zdeněk (referee)
The phenomenon of the case law and publication of the case law reports has been present in our legal culture at least since the 13th century, as well as in some other European countries. Court decisions in writing occurred through several types of documents and sources. We can trace the case law documents in the public royal records ("the plates"), the law books and the first constitutional codifications of law. There is even particular group of the law collections which we can actually name as the original case law reports. The case law reports were designed even before this period of time. Unfortunately, no such original law reports survived up to the present day. We can strongly state the sustainable tradition of typical case law collections in the Czech legal culture since the medieval times. The very first case law reports in modern sense of meaning came in late 1850`s. But the periodicals case law reports in the Czech language eventually appeared with the year of 1918 when the Czech state was restored. Creating the case law reports and its headnotes falls within the process of court decisions publication. The courts, which constitute the top of the judicial pyramid, operate with their special individual instruments on their case law publication. The official law reports have been established...
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The principle of primacy of EU law in the theory and practice of the courts of the European Union Member States
Ondřejková, Jana ; Gerloch, Aleš (advisor) ; Kühn, Zdeněk (referee) ; Masopust, Zdeněk (referee)
The submitted dissertation thesis analyses the principle of primacy of EU law from the basic point of view of legal theory. It points out different approaches to the primacy principle and examines the arguments on which these approaches are based. The fist part of the thesis deals with the examination of the primacy principle related to its legal basis, using the sources most frequently listed in the literature: the founding treaties, the case law of the Court of Justice, legal theory (Kelsen's basic norm, Hart's rule of recognition and the legal sociology approaches), and international and national law. I have focused on the historical documents (Treaty Establishing the European Coal and Steel Community, Treaty Establishing the European Economic Community), the concepts based on them (doctrine of the conferred powers and the principle of subsidiarity), and the non-ratified Treaty Establishing a Constitution for Europe and legally non-binding Declaration No. 17 attached to the Lisbon Treaty. I have applied a critical approach to the argumentation of the Court of Justice in the decisions establishing the principle of primacy: Van Gend en Loos, Costa, Internationale Handelsgesellschaft, Simmenthal. Taking into account the existing objections against the arguments used by the Court of Justice, I have...
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The Applications by a Court from the Legally-Sociological Perspective
Kučerová, Pavla ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee) ; Šejvl, Michal (referee)
JUDr. Pavla Kučerová Aplikace práva soudem z právně-sociologické perspektivy Résumé The thesis - The Applications by a Court from the Legally- Sociological Perspective -deals partly with an individual who applies law within the frame of justice, partly with justice as such. An individual who lives and works within such a complicated organisation as modern justice appears to be, is influenced by the organization, and so his work is influenced - thereby the application of law itself. Various judicial systems as they have been developed over the years, aim at the same targets in the rough. However, they choose different means for target achievement. The position of judges in meritocratic and career justice is also different. The differences can be seen in the way judge candidates are chosen, in what way judges are appointed and in the posibility to remove judges from their office. Two different systems have been analysed in detail - the US federal judicial system as an example of meritocratic justice and the Czech judicial system as a typical example of career justice. Regarding the USA, there is a mention of judicial elections that do not refer to the federal judicial system and seem to be a domain only in several US states. The elections are considered to be such a unique way of judge appointment so that is...
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