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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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Values, legal consciousness and law
Moravec, Lukáš ; Wintr, Jan (advisor) ; Maršálek, Pavel (referee)
Values, legal consciousness and law This thesis deals with legal values and their importance for the decision making of legal subjects. First it introduces a general model of a world, which can be used for any world with consistent effects. From that it deduces what can be considered an individual person and how such individuals behave. Who we consider an individual is dependent on our subjective choice. While choosing a particular individual we can express their relationship to their environment with a certain attitude of thought. If mutually corresponding thought attitudes can be shared by different individuals in such a way that the conveyance of them would correspond to a certain thought of a different individual, we use the term institution. Institutions are not considered to be existing objectively, however they help us interpret objective facts. Institutions include natural and artificial persons, the state and the law. The state emerges in a power struggle, although under the influence of morality. Morality is a type of institution, which is created by an interaction among individuals and through a compromise between their aspirations. This thesis decides for a consequentialist approach to morality, while objections against consequentialism are either refuted or shown to be able to be...
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Idea of humanity in the modern legal order (in chosen stages of Czechoslovakian and Czech statehood)
Kolář, Rostislav ; Pinz, Jan (advisor) ; Maršálek, Pavel (referee)
Idea of humanity in the modern legal order (in chosen stages of Czechoslovakian and Czech statehood) Abstract This thesis is focused on the idea of humanity in the modern legal order (in chosen stages of Czechoslovakian and Czech statehood). The main purpose of thesis is to analyse how would be useful change the Constitution of the Czech republic from the humanitarian point of view and after that make a proposal of concrete changes according the Legislative rules of government. Author uses analytical, synthetical and historical methods in order to catch the goal of the paper. This thesis is dealed into universal part and specific part as a logical process. The thesis is composed of six chapters, each of them dealing with different aspects of topic. Chapter one is introductory and defines some of the basic terminology used in the thesis. The most important terms are idea of humanity, democracy, state, constitution and people. In the chapter two author describes genesis and short historical introduction of idea of humanity. Crucial historical times for the idea of humanity is Antics, Middle Ages and the Age of Enlightenment. Amongst the most importants humanists mentioned in this thesis are Sókratés, Aristotelés, Panaitios from Rhodos, Seneca, Confucius, Gautama, Lao-c', Marsilius from Padova, Hus, Rousseau,...
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The development and differentiation of Islamic law in Near East countries
Janoušková, Tereza ; Maršálek, Pavel (advisor) ; Wintr, Jan (referee)
Resumé Development and differentiation islamic law in countries of the Middle East Islamic law influences to a greater or lesser extent the nature of the system of governance in every Muslim country, the legal system and the social order in general. The aim of my work was to make an introduction to Islamic law, as seen from the angle of its historical evolution, sources and differentiation in evidence in every Muslim country in the Middle East. In the first chapter I defined the term the Middle East. This term is frequently used in the media but it is not always correctly interpreted. This is followed by a chapter devoted to the development of Islamic law, where I examined the main periods in its genesis, from the first appearance of Prophet Muhammad and the rule of the first four orthodox Caliphs, the dynasties of the Umayyads and Abbasids, to the advent of the Ottoman Empire. To the character of Islamic law I dedicated the fourth chapter, which describes its dominant features, so that the reader can put together a picture of how Islamic law should be approached. In the chapter on the sources of Islamic law I focused my attention on the four principal sources, i.e. the Qur'an, the Sunnah, and the consensus of scholars and analogies. I equally paid attention to some supplementary sources and methods that...
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Distinction between the Civil Law and Anglo-Saxon Systems of Legal Culture and a Tendency towards their Convergence
Nop, Michal ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee) ; Večeřa, Miloš (referee)
1 Abstract Distinction between the Civil Law and Anglo-Saxon Systems of Legal Culture and a Tendency towards their Convergence In the presented dissertation, it is assessed whether it is still relevant to consider the Anglo- Saxon and civil law types of legal culture as two specific, different socio-cultural systems. Therefore, the paper is focused on the comparison of the Anglo-Saxon and civil law types of legal cultures. In the work, it is hypothesized that in the Anglo-Saxon and civil law cultures, there is a long-term tendency to converge. The work seeks to find key factors that affect the relationship between the observed legal cultures. The fundamental method of this paper is the comparative method in its sociological form. Typically, the multilateral comparative approach is employed. The historical comparison also has its place herein. The sociological conception is connected with the consideration of dominant currents of thought in both types of legal culture. The different way of writing court decisions or different methods of interpreting legal regulations are also reflected. The dissertation examines the issue of scientific comparison and its possibilities, the essence of legal cultures, methodological approach and historical changes in the civil law and Anglo-Saxon types of legal culture. The...
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Ideology and Law
Kerndl, Robert ; Maršálek, Pavel (advisor) ; Wintr, Jan (referee)
Ideology and Law Abstract In the presented work, I examine in depth the concept of ideology in its historical changes. Afterward, I relate these various forms to law. My work aims to analyze how law and ideology interact and whether there is an inherent relationship between them. I am therefore concerned with answering the question whether law is ideological, or under what conditions law and the application of law are influenced by ideology. The work is divided into three parts. In the first part, I address the notion of ideology. Here I examine how Karl Marx and his followers grasped and elaborated on this notion. I show the transformation of the Marxist conception of ideology in the works of Lenin, Gramsci and Althusser. In the second chapter of the first part, I present a different, historically relevant tradition of understanding ideology that I call, for the purposes of this work, conservative-democratic. In the second discussed tradition, I describe the ideas of Arendt, Popper, Scruton, and Pithart. Subsequently, I compare the two negative concepts of ideology to each other. The second part is devoted to how these negative concepts of ideology can be applied in legal theory. In the first chapter, I focus on the Critical Legal Studies movement, whose proponents were inspired by the previously mentioned...
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Free law-finding (causes and consequences)
Henčeková, Slavomíra ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee) ; Bröstl, Alexander (referee)
Free law-finding (causes and consequences) Abstract This dissertation deals with the phenomenon of free law-finding and analyses its causes and consequences. The introduction outlines the aim of the dissertation, reasons for choosing this topic, the current state of research, especially in the Czech-Slovak legal environment, methodology and also briefly the issue of causality in general. The main part of the dissertation is divided in two parts. The first part contains description and analysis of the German Free Law Movement (Freirechtsschule) from the turn of the 19th and 20th centuries led by the German legal scholar Hermann Kantorowicz and his manifesto The Battle for Legal Science (Der Kampf um die Rechtswissenschaft), which formed the theoretical basis of the Free Law Movement and, thus, also of this dissertation. In this part, the lives and works of the main representatives of the Free Law Movement are discussed (Hermann Kantorowicz, Ernst Fuchs, Eugen Ehrlich), but also some others are mentioned including Gustav Radbruch. At the end of the first part, the analysis of the free law in the theory of the Free Law Movement is provided, as well es of the causes and consequences which have led to the emergence and existence of the Free Law Movement; finally, the analysis of the consequences of the Free Law...
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Biological substance of law and its (dis)harmony with recent conception of law
Rychtera, Jaroslav ; Maršálek, Pavel (referee)
The point of the paper is to compare the provision and some basic principals of the legal code accounting for human as a biological entity and a bunch of molecules assembled and functioning according to certain laws as a chemical entity, with biological rules. Laws as a social phenomenon affecting human by written and spoken language through the second signal system and sensory organs serves like certain chemical substances, e.g. pheromones, to coordinate specimen in their interactions with one another and with the society as a whole. For this reason it appears as a part of a biological signaling principal on the highest level. According to hierarchy principal should be this signalization in harmony with the lower level signalization or the level of individual organs, tissues and cells. Should it be otherwise, an unbalance occurs with all the results it implies. Should the law be a part of the hierarchy of biological signalization, the natural law theory, saying human is born with rights, that can only be recognized and described, can hardly be accepted. This recognizing and describing can is actually not only purely subjective opinion of the descriptor depending on the creation functional brain paths. Moreover, this ability is determined by the genetics and as such is very individual and is also...
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Acculturation of the Islamic law sharia in the context of European legal systems
Kostelecká, Barbora ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee)
Acculturation of Islamic Sharia law in the context of European legal systems Abstract The aim of this advanced Master's ("rigorózní") thesis is to analyze the ways of acculturation of Islamic Sharia law in the context of European legal systems from a legal point of view. The first chapter deals with Islam, as well as the historical, political and geographical context that influenced the emerging religion. For the purposes of deeper understanding of Islam, the main pillars of Islam and the sources of Islamic creed are also discussed. The second chapter focuses on a more detailed specification of classical Islamic law - Sharia. The key is to define the content of Sharia law, including the identification of individual subjects of law, and to define the scope of the law. Furthermore, the individual primary and secondary sources of classical Islamic law are discussed. For the purpose of understanding the differences in the interpretation of classical law, the individual law schools of Islam and their differences are also described. Furthermore, the work aims to outline selected institutes of Islamic law, with emphasis primarily on legal institutes that are a frequent part of the life of ordinary Muslims. The third chapter focuses on the topic of religious freedom in the context of Europe. The concept of religion...
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