The lecture aims to bring
students to an understanding of the system of contemporary positive law, the
basic organizing mechanisms and rules in the legal system and the ability to
understand and use the basic concepts on which the legal system (legal order)
is built. The lecture offers general background, schemes and rules representing
a general framework for further progress in the sub-disciplines of law. The aim
is not for students to be able to use all the basic concepts and to operate
within (and beyond) the legal system but to try to think "like
lawyers" about particular topics.
Czech Legal Theory
Legal theory (the topic of the
first lecture) looks at law as a specific normative system (i.e., a system
composed of rules of human conduct, rules that tell us how to behave). This
system is human-made (artificial), although there are elements in it that we consider
immutable (this is usually called positive law and is distinct from natural
law, which are the rules on which the world, or its ordering, is supposed to be
based). Rules are essential for human society: people make and follow the rules,
and this feature is - perhaps - specific to them. People can evaluate what has
happened and predict or shape what will happen, thanks to rules. This way,
rules allow people to move in society, plan for the future, and create a
protected sphere. In contrast to other normative systems, in the case of law,
the state comes into play, guaranteeing through its authority that legal rules
will be followed under threat of punishment.
Any normative system, to work,
must be organized in some way. It is good to know how to proceed in complex
cases where (for example) a particular problem is solved by several rules, and
it is not easy to determine which is the right one or the correct one or how to
apply the valid law. Imagine that a rule (standard) in one act tells us to
drive on the left, and a rule in another tells us to drive on the right. What
to do then? Which side to drive on? We can say that it doesn't matter. From a
factual point of view, it does not matter whether it is left or right - there
are countries where it differs from the Czech Republic. So, factual correctness
does not help us. But if no guidelines ensure uniformity, we can expect cars to
collide. Such a situation is not only unpleasant and chaotic. Besides the fact
that we may not get anywhere, it can lead to injuries, damage, etc. No matter whether
we travel by car, bike or on foot, there will always be danger. It is,
therefore, essential to find a rule that tells us which of the two conflicting
standards to apply: which of the two incompatible standards to choose (left x
right). These rules of choice are partly explicitly stated in the system, partially
follow from its structure, and partly may be due to the necessity of finding a
rational solution (and also a solution that can be used in every similar case)
that preserves at least elementary justice.
It is also good to consider that the
law regulates human conduct (under the threat of significant sanctions - punishments)
and limits public authority's action. One can even say that law must regulate -
it must manifest in reality. Therefore, high demands are placed on legal rules
and the law system. It is essential to know what conditions must be met for regulations
to be considered legal and what conditions must be met for them to apply. These
are mostly (but not exclusively) formal requirements intended to ensure that the
legal system is as clear and understandable, orderly and predictable as
possible. And that the rule-maker (the one who makes the legal rules) knows
what he can and cannot afford.
Man makes legal rules to correct what people do and
will do (if it is necessary to regulate it) and also so that everyone can
predict what will happen. Imagine a situation where a fruit tree grows in one
garden, but its fruit also falls in a neighbour's garden. Whose fruits are
these? The owner of the neighbouring property on which they fall or the owner
of the tree (i.e. the owner of the property on which the tree grows)? It
doesn't matter. Only a tiny part of the rules are related to factual
correctness (if we can't behave otherwise, we don't need artificial rules to do
so). But to avoid disputes and be clear in each case how things will be, we
need a rule for that. So, in our terms, fruit falling on a neighbouring garden
will be the property not of the tree owner but of the neighbouring property.
Simple. That's what the law is for. In more complicated cases, of course, it
gets more complicated. Regulation of capital markets, banks, intellectual
property, health care, and energy are just a few of the many categories that
require complex and extensive regulation because of the many interactions
between people that occur in them. To apply the rules, it is essential to know
what conditions must be met to find the one whose actions will be protected,
the case of the one who must do something. Moreover, this is in a field that is
often forced to find the right solution when the interests of the whole society
and the protection of the individual collide.
Therefore,
the theory of law is a set of rules and procedures devoted to understanding the
legal system as a whole. It seeks the appropriate arrangement of the individual
rules so that the system works without contradiction, is predictable, and
allows - with a little reason and fairness - to be understood. This is the task
of law and especially the discipline, somewhat oddly named legal theory.