Pub Date : 1900-01-01DOI: 10.5817/cz.muni.p210-9972-2021-5
Lukáš Hlouch
This contribution is dedicated to the concept of gap (lacuna in Latin, Lücke in German), more precisely to the theory of gaps and its role in legal thought, particularly in the Czech Republic. The starting point to this analysis is the notion of vagueness. For the beginning, different meanings of vagueness shall be presented and explained. Then the focus shall be laid on the relation between the ‘theory of gaps’ and vagueness. Therefore main attention is paid to the theoretical distinctions between various types of legal gaps and their usage in the legal practice. As a conclusion I will try to resolve the question whether or not the notion of ‘gap’ shall apply for instances of vague terms (uncertainty) of normative text.
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Pub Date : 1900-01-01DOI: 10.5817/cz.muni.p210-9972-2021-4
A. Molnár
This paper is an attempt at a ‘law and literature’ analysis of Ian McDonald’s Luna trilogy. It claims that operating with a science fiction setting, the trilogy invites the reader to reflect on how and in what form a legal system may contribute to the proper functioning of a human community. The law of the moon rests on consent and antagonism at the same time. The ‘consent’ principle reflects law and economics’ conception that a person should be left to freely negotiate for their interests and rights, and that unless the transaction costs transcend the benefits, such free negotiation is the most effective way to regulate social relationships and increase common wealth. The Moon’s legal system, in this respect, is taken to the extreme, because even though courts do exist, there is no state apparatus to enforce judicial decisions. The system operates on fully individualistic and voluntary compliance to judicial decisions, which means that abiding by a pact is salvaged only by the individual interests of the participants. This reliance on individual interests – a pivotal point of law and economics – seemingly warrants cooperation, but also carries in itself the germ of antagonism. Antagonism, in my opinion, can be traced on two levels of the workings of the Moon’s so-called legal system. First, it places significant emphasis on fight: substantial truth matters little, if at all, in the moon’s legal system; what matters is pure bargaining power, tactical sense, and sometimes even bluffing, and this feature is even ideologised. One’s rights are constituted as a result of struggle. Second, however, the novel also deconstructs this notion of the law by centring on a more general level of antagonism, the armed conflicts of the various families to ground their own interests. Such conflicts demonstrate the inherent instability of the system that is not backed by a normative structure above pure partial interests.
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Pub Date : 1900-01-01DOI: 10.5817/cz.muni.p210-9972-2021-1
Terezie Smejkalová, Markéta Štěpáníková
In this paper, we report the findings of a part of a wider complex research related to social representations approach in understanding vague legal concepts. In the course of our research, we have explored our participants’ understanding of public order in a very similar setting to the one presented in this case. Their understanding seems to suggest that although public order points towards basic values of a given society, some of our participants suggest that it is a concept whose interpretation remains strictly legal, confining the judge to – sometimes incomplete – information provided by formal legal sources or legal doctrine. While such a confinement may result in weak argumentation, we believe it may also be explainable in terms of normativist and formalistic tendencies present in the Czech legal culture.
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Pub Date : 1900-01-01DOI: 10.5817/cz.muni.p210-9972-2021-3
Ondřej Glogar
This paper deals with the metaphor ‘law is language’ coined by James Boyd White and how it can be useful to understand the concept of legal language, connections between law and language and how the term language is used in the legal realm. In the beginning, the article aims to give an overview of possible approaches to legal language and continues with further analysis of one of them (the above-mentioned White’s proposition). By applying a semiotic approach to this concept, namely Saussure’s theory of distinguishing between langue (language) and parole (speaking), the paper helps to understand that language (and even legal language) can be understood in two different forms. It can be either considered an abstract system of signs, or it can be comprehended as individual speech acts – langue and parole, respectively. White’s metaphor is usually used in the meaning of texts, way of reading, writing and speaking. However, such conception corresponds to language in the sense of parole. These considerations lead at the end of the article towards the communicative theory of law and its merits to jurisprudence. According to a given doctrine, in some instances it can be more accurate to consider law as communication rather than language (and vice versa). Nevertheless, in either case, it is essential to bear in mind the distinction between both of the concepts.
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Pub Date : 1900-01-01DOI: 10.5817/cz.muni.p210-9972-2021-2
Linda Tvrdíková
If we look at the literature about judicial decision-making and interpretation of law, we can find many texts which are dedicated to legal arguments, logic and legal reasoning – in those texts the rationality, analytical and logical thinking is glorified and an interpretation seems ‘just’ as a logical operation where judges subsume certain facts under general legal norm or norms, those norms are formulated linguistically, so it seems that the whole job of judges is to analyze texts. What we can see more rarely are discussions and texts exploring the role of intuitions, feelings and emotions and their role in judicial decision-making – at least in the Czech Republic. Those of our faculties are seen as the source of bias and distortion. Even if we look to the past, those themes are not so common among legal theorists and philosophers – especially in our tradition where we are still influenced by Hans Kelsen and František Weyr and their normative theory – but we can find exceptions and those are the American legal realists. In this paper, we will show that their observations and insights seem to be right. How can we know it? Because in last decades cognitive scientists have made big progress in the area of decision-making and it seems that we are not so rational as we thought us to be. They have explored that our thinking does not take place only through the deliberative system but, surprisingly, there is also another one system which influences our decisions. This system is automatic, fast, and intuitive – some call this system S1, Seymour Epstein an experiential system. This automatic system is more influential than our deliberative system because it is always heard – we can use Jonathan Haidt’s metaphor of an elephant and a rider. S1, the intuitive, experiential system, is an elephant and S2, the deliberative, analytical system is the rider – in legal theory, we have talked about the rider a lot but we do not explore the elephant sufficiently. This paper will try to uncover the nature of the elephant.
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