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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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Formalism in Law
Brezina, Peter
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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A theoretical conception of liability in private law
Janeček, Václav ; Beran, Karel (advisor) ; Holländer, Pavol (referee) ; Elischer, David (referee)
(English) What is liability?1 This "big" question has proven to be too tough for many private law theorists during the past 60 years. A dominant Czech approach to liability is the so-called theory of sanction: liability is a secondary duty imposed due to breach of a primary duty. At the same time, however, liability is conceptualized as an active institute, i.e. as liability to fulfil an obligation. This implies a specific "Czech" problem of liability: a paradoxical situation where a man can be liable because he was sanctioned, and also be sanctioned because he was liable. Liability in this sense seems to be an inherently flawed and meaningless concept, since both theories aspire to describe liability to the same extent (co-extensively). The most recent trend in Czech legal theory is thus a sceptical approach that completely eliminates the concept of liability from legal discourse. This is contrary to an ongoing and presumably meaningful debate on liability in foreign non-Czech literature that supports the most recent analytical and normative approaches to European legal regulation and its developments. Unlike in Czech language, this literature treats liability (Haftung) and responsibility (Verantwortung) as two discrete concepts. But why is this so? Wher does the "Czech" problem of liability come...
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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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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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