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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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The theory of human democracy
Kolář, Rostislav ; Pinz, Jan (advisor) ; Maršálek, Pavel (referee)
Theory of human democracy The purpose of thesis is to analyse the question of human democracy and to find conclusion if this concept is eligible for society here and now. Author uses analytical, synthetical and historical methods in order to catch the goal of the paper. This research is dealed into universal part and specific part as a logical process. First author finds the problems and after that offer solutions. In concrete how to make from partial democracy, i. e. formal democracy, after accentuation her deficiencies process of changes to full, material democracy. The thesis is composed of seven chapters, each of them dealing with different aspects of topic. Chapter One is introductory and defines basic terminology used in the thesis. The chapter two is subdivided into two parts, where author describes genesis and short historical introduction of democracy and humanity. In Chapter Three the most important ideas of human democracy are mentioned, for example idea of humanity, freedom, equality and fraternity. Result of this part is of course fact, that democracy is expression of sovereignty of people. Last chapter in universal part consists of four subchapters, where analyse of relation between democracy and liberalism is. After that special part follows, which is divided into three chapters. First author...
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Legal Culture of the State of Israel
Vitouš, Daniel ; Kühn, Zdeněk (advisor) ; Maršálek, Pavel (referee)
Legal Culture of the State of Israel Keywords: Israel, legal culture The present legal system of the State of Israel is unique because of its mixing of different legal sources. The legal environment is characterized by interfacing of principles arising out of common law and continental law as well as religious law. The object of this thesis is to analyze how these different legal sources are mixing in modern Israeli legal system. The main question to be answered by this analysis is whether the Israeli legal system can be qualified as the member of one from basic legal cultures of the world (i.e. common law or continental law). Eventually whether the combination of legal aspects is specific so much it is necessary to speak about absolutely unique legal culture category. The thesis analyzes the legal system of Israel in basic branches of law. It is focused on constitutional questions, the way how the state power is established and how is enforced in day-to- day experience. There is parliamentary democracy with principles similar to many European countries but there are some distinctions as well. Peculiar for Israeli political system is strong influence of religious political parties. The very specific for Israel is the construction of Basic laws replacing standard constitution. The great part of the...
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Moral arguments in consideration of courts when applying law
Šimek, Jiří ; Wintr, Jan (advisor) ; Maršálek, Pavel (referee)
This thesis deals with relationship of law and morals from the perspective of a judge applying the law. It starts by defining morals as a normative system which determines what is good and what is bad. Bad morals are punished by social sanction. The relationship of content of morals and law can be described as an intersection. There are three possible relationships of the area of law and morals regarding their respective application: (i) area which should be regulated only by moral rules; (ii) area which should be regulated only by law; and (iii) common area for both normative systems. Morals can penetrate reasoning of a judge applying the law at least in three ways: Firstly, Legislator can order the judge to drag a moral norm into his consideration. Such an order is called boni mores (dobré mravy) in Czech legal system (used in Section 3 or Section 39 of Czech Civil Code). Secondly, the school of phenomenology hermeneutics claims that any interpretation, thus interpretation of law as well, is conditioned by existence of so called pre-structures. We cannot get rid of these structures, they create necessary interpretative frame of interpreting individual. Moral feelings or moral attitudes are parts of these pre-structures. Morals can project to the decision-making of judge knowingly or unknowingly through...
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The principle of social state in political theory and the case-law of the Constitutional Court
Kaloč, Otakar ; Wintr, Jan (advisor) ; Maršálek, Pavel (referee)
1 Abstract The principle of the social state in political theory and the case-law of the Constitutional Court The topic of this work is the phenomenon of the welfare state, social rights and their judicial review performed by the Constitutional Court of the Czech Republic. The aim of this paper is to introduce the welfare state in terms of the theoretical, historical and practical implementation of its goals, whether it is a political reality or the decision making practice of the Constitutional Court, which in turn influences political environment. This work is based on theoretical works of political philosophy, findings of constitutional law and the jurisprudence of the Constitutional Court. The thesis points out the different understanding of the social question in basic political theories such as liberalism, socialism or feminism. The historical part of this work comprises of the description of the development of social issues in countries such as the United Kingdom and the USA. It is evident that this was a long-term process beginning in the early seventeenth century and continuing to the period of its greatest expansion after World War II. This work also mentions some aspects of poverty. Another important part is the introduction to the theory of typologies of different "regimes" and types of welfare...
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Effective Strategies of Forming Legal Consciousness of Upper-Secondary School Students
Urban, Michal ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee) ; Večeřa, Miloš (referee)
The presented PhD. thesis deals with effective strategies of forming legal consciousness of upper-secondary school students, and with methods that can be used for developing it. So far, legal scholars have paid only insufficient attention to this topic, even though many law experts have repeatedly pointed out its importance. Moreover, they stress the fact that a more detailed understanding of legal consciousness of citizens and of ways of influencing it can help us better understand how law works within the society. The thesis opens with the theoretical part, which defines the concept of legal consciousness, describes its level captured by the available empirical research and identifies effective strategies, which possess the potential to cultivate legal consciousness of the youth. In the following practical part, the author seeks to verify effectiveness of these strategies by means of student questionnaires, interviews with teachers and observations of their lessons. The theoretical part firstly introduces legal consciousness as the basic concept of the whole thesis. The first chapter presents the understanding of legal consciousness as one of the key terms of every law because it connects the world of law in books with the world of law actually experienced by people on day to day basis. Legal...
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Axiological aspects of the effectiveness of law application
Čechák, Petr ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee) ; Večeřa, Miloš (referee)
I. Values and value judgment represent phenomena influencing effectiveness and efficacy of law. More precisely the fact whether definite values are reflected in a content of law influences (or at least has a capacity to influence) efficacy of law. A value judgment relating to law, i.e. question whether law is believed by valuing subject (addressee of legal norms as commands of holder of authority) to reflect definite values influences (or at least has capacity to influence) effectiveness of law. Effectiveness as well as efficacy of law represents measure in which purposes relating to law are fulfilled as an effect of law. Effectiveness represents a measure in which behavior of addresses of legal norms complies with a content of law. The purpose that is to be fulfilled there is a reduction of entropy of social relations so that law could create an order. Efficacy of law is itself conditioned by effectiveness of law (achievement of decent level of effectiveness of law as a purpose represents a means in relation to achievement of efficacy of law as well). In case of efficacy of law the purpose that is to be realized is achieving a common good or in other words providing such a setting of social relations that enables a "social reproduction", i.e. not just biological reproduction but also reproduction...
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The question is, what law applies
Krzyžanková, Katarzyna ; Gerloch, Aleš (advisor) ; Maršálek, Pavel (referee)
The aim of this paper is to provide the identification and the analysis of the major factors which affect the answer to the question: What is found legal [i.e. according to law] in the particular case? Primarily analytical - descriptive method in association with the multidisciplinary approach is chosen to illuminate the complex nature of this issue. In other words, the diverse pieces of knowledge stemming from the various social science sub- disciplines such as psychology, sociology, jurisprudence, ethnology and anthropology are brought together to reveal frequently hidden constituents of the response to the question 'quid iuris?' The paper consists of 6 chapters. The introductory chapter, which offers a preliminary insight into the problem, is followed by the four major parts that gradually, as a whole, give a steadily more accurate picture of different variables reflecting in the answer, what is legal. More precisely, in Chapter 2 the mutual relation between the law on the one side and human culture and human instincts on the other side is investigated. A dissection of an extensive body of the anthropologically oriented literature leads to the deduction that the appearance of law is mostly influenced by the human culture and that universal instincts have an effect just on the resemblance of...
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Presumption of illegitimacy of the state power
Gregárek, Matěj ; Kysela, Jan (advisor) ; Maršálek, Pavel (referee)
The thesis challenges the established "myth of easy legitimacy" and argues for more cautious attitude toward involuntary social arrangements by shifting the burden of proof in favour of the rigorous individual rights. Any State action shall be held for impermissible unless it is shown to be unavoidable - beyond reasonable doubts. With the assumption of existence of individual rights as a starting point, the thesis inquires into the attempts to derive State's legitimacy from individual rights. Finding this task virtually impossible, it comes to the conclusion that the only way how to legitimize the State is to compromise the individual rights somehow. Yet, to maintain some meaning of the rights, this compromise need to be restricted in scope, so the thesis analyses further the meaningfulness of "necessary and proper" provisos and the notion of "ideology" as a factor driving collective action and as the ultimate check of the State's power.
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