PrF:CORE017 Legal Thinking - Course Information

CORE017 Legal Thinking

Extent and Intensity

2/0/0. 3 credit(s). Type of Completion: k (colloquium).
Taught in person.

Teacher(s)

prof. JUDr. Radim Polčák, Ph.D. (lecturer)
doc. JUDr. David Sehnálek, Ph.D. (lecturer)
JUDr. Bc. Terezie Smejkalová, Ph.D. (lecturer)
doc. JUDr. Mgr. Martin Škop, Ph.D. (lecturer)
JUDr. Bc. Markéta Štěpáníková, Ph.D. (lecturer)
JUDr. Ladislav Vyhnánek, Ph.D., LL.M. (lecturer)

Guaranteed by

doc. JUDr. Mgr. Martin Škop, Ph.D.
Department of Legal Theory – Faculty of Law
Contact Person: Tereza Buchalová
Supplier department: Department of Legal Theory – Faculty of Law

Timetable

Mon 25. 9. to Fri 22. 12. Wed 16:00–17:40 133

Prerequisites (in Czech)

! FAKULTA ( PrF )

Course Enrolment Limitations

The course is offered to students of any study field.
The capacity limit for the course is 100 student(s).
Current registration and enrolment status: enrolled: 31/100, only registered: 1/100, only registered with preference (fields directly associated with the programme): 0/100

Course objectives

The course „Legal Thinking“ is aimed at introducing the specifics of legal thinking. It introduces the different thought-forms in which law is expressed and shows what is essential for legal evaluation and the existence of law in society. The focus of the course is not on the particulars of legal disciplines but the overall understanding of law as a particular form of thought and a particular social system. The course introduces students to the peculiarities of legal reasoning. It will introduce them to areas usually conceptualized differently in society or ordinary discourse than in the sphere of law. Students will learn about legal reasoning, its principles and elements that are relevant to them. The aim of the course, on the other hand, is not to create definitions and classifications (which we cannot do without here either), but to show through problems that even legal reasoning, which at first sight seems inappropriate, has its meaning. Therefore, students will not be able to decide on legal cases and fully understand the legal system, but they will gain insight into its peculiarities. It also involves learning that legal thinking is not different from ordinary human thinking. It just happens in a different context.

Learning outcomes

Graduate of the course: - knows the specifics of legal reasoning; - is oriented in legal thinking and can identify its peculiarities; - can name the individual components of the general legal methodology; - understands the structure of the legal system and legal rules.

Syllabus

• 1. Law as a social phenomenon: explaining what law is and explaining that even if we don't know what it is, we can work with it quite well. The nature of law as a social (artificial) phenomenon that takes abstract and conceptual form. An introduction to the basic principles that guide legal thinking and are based on general human thought. The relationship between society and the individual, the limits of freedom and constraints. The individual at the mercy of the legal system. Relationship between the written (sources) and the thought (norm): when something is written, it does not mean that it is so. Relationship between theory and practice: influence of social practice on law and necessary connection to society (if it is not implemented, it is not law). International and European view of the law - is there only one law? The relationship between the outside (international space) and the inside (national space). What is meant by the principle that ignorance of the law does not excuse or suffer? 2. Principles of the modern state: what are the principles of the modern state? How have they developed over the last 250 years? The modern state principles are essential in that they determine how the state may (may) treat the individual (elaborating on the basic thesis of the first lecture) and vice versa. The concept of constitutionalism: a constitution binds the modern state, and the constitution is a kind of (approximate) realistic representation of the social contract. A basic definition of the concepts of democracy, the rule of law, separation of powers and fundamental rights and an explanation of the relationships between them (synergies and tensions) using real examples from recent times (pandemics, LGBTQ rights, abortion). 3. The rule of law: Philosophical roots of the rule of law (limitations on the power of the governed, guarantee of liberty). The evolution of the rule of law. Analysis of the individual features of the rule of law: the binding of public authority by law, claims to the "quality" of law (legal certainty in general, accessibility, intelligibility, prohibition of retroactivity, stability, enforceability, etc.). What practical limits does the rule of law encounter, and how to deal with them? Can a person know the law, even if it is theoretically available to him? What impact, for example, does the instability of law (frequent amendments) and overregulation have on the rule of law? 4. The basic definition of the separation of powers and its meaning. Is it specialisation, another guarantee of individual freedom or both? Explanation of the separation of functions on the one hand and the system of checks and balances on the other. Introductory overview and characteristics of the organs of the state. What all has to happen in terms of the separation of powers for the state to be able to interfere in the rights of the individual: demonstration by an example from the field of criminal law (explanation of the "chain of the exercise of state power" from the legislative initiative through the enactment of the law, the role of the executive, the judicial procedure to the eventual conviction and execution of the sentence). Self-government as vertical separation of powers? European and international law and powers of international bodies (especially within the EU). 5. The system of law: the basic structure of the legal system, the interconnection of the different parts, public and private law: the basic principles of these branches (standard and additional features, what is possible in private law may not be self-evident in public law). Fundamental views on the division between public and private law. The sources of law, its structure and variation - what are the sources, where to look and what are their relationships to each other. What must a judge be guided by in making his or her decision? What are the people to be driven by? 6. Normativity as a fundamental feature of law: the legal norm. What is a legal norm, how does a legal norm behave? Why are rules so important? Regulating only what can be met and what can be enforced. What must all be observed to be a legal norm? Principles and rules. Modes of normativity and how to work with them: command, prohibition, permission, their relationship to each other and what does it imply. The existence of a legal norm (especially concerning time): how does the law operate over time? When does it come into existence? Does it disappear spontaneously, or does it always need a power impulse? Can it perform in the past? 7. Legal liability, legal punishment: what is a legal liability, and why is it necessary to be very careful in determining it? What are the principles of punishment? The law can do things. We say something, and it happens: it has a consequence, which is typically at the level of the virtual (I have some intangible right) but also at the level of the real (I have to stay in a closed building for a long time, I have to give/return something to someone, etc.). For these purposes, law constructs some facts as "legal". The law also responds to situations where I do not behave as it expects me to. I am "responsible" for some facts that happened, sometimes directly caused by me, sometimes not. And sometimes, I may not have intended to do so at all. How does the law construct this responsibility? Why can I be liable even if I did nothing? Can we condemn even someone we are not entirely sure if he did it? What doubts are permissible, and why is it better to release a criminal than lock up an innocent person? How is it possible for a person to be set free if everyone knows he is a criminal? 8. How is law made? Why is it such a problem to write the law well and clearly? Is there a difference between a good idea and the ability to express it when the villains are against it? What is clarity anyway? What are the requirements for lawmaking? What are all the things that must be taken into account when making law? Who all interferes, and who should interfere? Can we (should we) regulate everything, or is it unnecessary? The most common mistakes in lawmaking. Why such a long lawmaking process makes sense? 9. How do we find meaning in law? Is the law just what we see and read in the law? Why can two lawyers have two to four different views of a sentence? Is this wrong? Can't something be done about it? What is legal interpretation anyway, and what are its secrets? Does persuasion play a role in the process of interpreting the law? How does all of the above play out in interpretation, and why is it a fundamental legal discipline? What are the primary methods of interpreting the law, and why are there so many contradictions between them? Is there anything strange about legal thinking, or is it just a schematization of the usual human thinking when reading any text? 10. How is the law applied? How do legal proceedings work, why can they be so long, who all intervenes, and why do they take so many different forms? Fact-finding - why it is crucial to find out what happened. What is the role of truth when we sometimes hear that everyone is lying? Evidence and its peculiarities. What is a fair trial? Does the court create new facts, or does it just tell it like it thinks it was? What are the parts of a judgment or how to read a decision? Where does case law come from, and what is it? What about precedent? 11. Natural and positive law: relationships, ratios, conflicts. What is natural law, and why does it make sense to look at it? Is the law just a form, or can we sometimes expect goodness and justice from it? Where does natural law come from? Can we see it, and does it have anything to do with natural law? What is positive law concerning natural law? How does natural law behave, and when can it be taken into account? Are there any values in law at all? Can anything be done when the law is disgusting? And how do we know if it is repugnant? How do we behave when the legal system is breaking down, and why do we prefer not to imagine it at all? Can marriage endure when the legal system breaks down? 12. Justice: what is justice, and does it have any place in law? What are all the things to take into account when trying to decide fairly? Why is injustice sometimes permissible? How is it possible for a decision to be unfair but still right: do courts decide fairly or rightly? Doesn't justice make the law too complicated for us? How is it possible that we may not see a just solution at first sight?

Teaching methods

Lectures with a vital element of dialogue with the active involvement of students, discussions of experts. "Legal Thinking" will be taught mainly in lectures, led by several lecturers who will complement each other or discuss some topics together. The course supervisor will always be present at the lecture. Students should also be involved in the class either by answering or asking questions, voting on the correct options or finding problems in legal thinking.

Assessment methods

A multiple-choice test measures whether students can work correctly with legal information, know which facts are relevant to legal reasoning, and how the processes of thinking, evaluating and applying for the law work.

Language of instruction

Czech

Further Comments

Study Materials
The course is taught annually.

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