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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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Postmodern phenomena in law
Pokorný, Jan ; Maršálek, Pavel (advisor) ; Ondřejek, Pavel (referee)
Postmodern phenomena in law Abstract This thesis examines postmodernity and its manifestation in law and legal science. The first part is dedicated to achieving as precise definition of the term postmodernity as possible, as there is no general consensus, due to the fragmentary nature and instability of postmodern philosophy. Because of a limited quantity of comprehensive resources, describing postmodernity, available the historical perspective was applied in order to build a clear and compact narrative. The modernity movement is defined as it precedes postmodernity historically and philosophically. Postmodernity arose in reaction to the historical events which shaped the world of the twentieth century. From the detailed historical narrative are then synthesized the main defining characteristics of postmodernity. Those characteristics are: erosion, plurality, globalization, the fragmentary and liquid nature of society. The second part is predominantly dedicated to the topic of plurality as it is the basic element of postmodern thought. The comparative approach was chosen due to the ongoing globalization. Plurality as a postmodern phenomenon manifests itself significantly in the form of legal pluralism. The emphasis is put on defining legal pluralism, the additional meta-questions that head towards pondering...
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Flat and formalistic approach in law
Pavlíček, Libor ; Maršálek, Pavel (referee)
Flat and formalistic approach in law Many processes in law take place automatically and through inertial force, without admitting one's free will and without encompassing values important to man (freedom, dignity, justice). The bearers of the process of automation in law are Machines (or Automats), i.e. tools ensuring primary legal certainty. However, in addition to the subpage of legal certainty, law also consists of the subpage of justice and effectiveness, which is not controlled by Automats, because their algorithms do not often reflect this subjective dimension in law. The trend of automation in law undoubtedly contributes to a number of improvements, however, there appear risks as well. Since the human soul cannot be programmed by Automats, it cannot be assumed that their decision-making, i.e. their output, will be fair and effective in all circumstances. However, in traditional approach in law this output is considered equal to a binding legal norm. As an example of Automat in the field of mobility the traffic lights may serve, in the field of state administration there are automatic forms or formulas, in the judiciary Automat is represented by a judge acting as a robot (subsumption automat), and artificial intelligence may be seen as the most sophisticated Automat of all. Automats are tools...
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The issue of legal pluralism in contemporary society. A weakening role of state in the context of legal pluralism.
Orletová, Julie ; Žák Krzyžanková, Katarzyna (advisor) ; Maršálek, Pavel (referee)
The issue of legal pluralism in contemporary society Abstract This work aims to describe the phenomenon of legal pluralism, its expressions and functioning in contemporary society and evaluate the findings in connection with the weakening role of the state. The role of law is changing more and more in today's global world, especially in an increasingly less homogeneous society. The plurality of contemporary society is increasingly penetrating normative systems, which in turn affects the very functioning of the state as an authority. Legal pluralism reflects the life of contemporary society. From the perspective of legal pluralism, we gain a new understanding of law. The concept of legal pluralism enables the law to respond in a more flexible way to the plurality of contemporary society, as law increasingly faces difficulties in reflecting the social reality of contemporary society. Related to laws that do not reflect this plurality is a growing distrust of people in the state and its institutions, which contributes to the weakening role of the state. One of the possibilities for the state to strengthen its role is to restore confidence of the citizens in the state and its institutions. This can be also achieved by creating good written law. State law should take into account the phenomenon of legal...
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Legal Consciousness
Beran, Filip ; Maršálek, Pavel (referee)
Diploma thesis aims to present different conceptions of legal consciousness, to highlight their historical and socio-cultural contexts and to outline their possible progress in selected directions. First chapter presents several textbook definitions of legal consciousness, including a comparison of "European" and "American" conceptions. Chapter 2 introduces and compares other expressions usually used in connection with legal consciousness - sometimes as synonyms, sometimes emphasizing some of its components or specific author's approach. Chapter 3 then accentuates historical dimension of legal consciousness, with examples of its ideological conceptions "with attributes" (socialist, revolutionary, popular legal consciousness). These three chapters constitute descriptive, overviewing part; possible synthesis is then concluded in Chapter 4. At first, it identifies three "inner" dimensions which arise from presented conceptual field and which need to be clarified if we want to talk about legal consciousness with sufficient precision: which component we focus on, which part of law and whose legal consciousness are concerned. After that we distinguish three kinds of discourse, that is, how the legal consciousness is talked about: lawyers, sociologists and educators or "users of law" approach it with different...
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Theoretical and legal analysis of the lay element in judiciary
Lajsek, Vladimír ; Maršálek, Pavel (referee)
Theoretical and Legal Analysis of Lay Element in Judiciary Abstract This work is dealing with the lay element in judiciary. The main emphasis in laid on the institute of lay judges in the Czech legal order. The main goal of the work is to answer the questions whether the lay element in judiciary is still a democratizing component, further if there are fulfilled enough the constitutional conditions of an independent, impartial and statutory judge principle in case of lay judges, whether the democratic or the expert legitimacy may prevail and at last, if the lay element should be preserved in the Czech legal order. In the first chapter, there is described a historical development of the lay element in judiciary. In modern times, it has appeared firstly in the form of jury courts in the Czech lands, more precisely in the Austrian monarchy, after the revolutionary year 1848. Its functioning is illustrated on two famous cases, which were the process with K. H. Borovský and with Leopold Hilsner. On the one hand, these cases show the advantage of participation of lay people into judiciary, as it can serve as correction of the state's despotism. On the other hand, there should come to wrong decisions in the consequence of an easy suggestibility of the public. At the age of the so called First Czechoslovak Republic,...
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