Probable Law

SMEJKALOVÁ, Terezie. Probable Law. In Quantum Law. 2018.

Basic information

• Original name: Probable Law
• Authors: SMEJKALOVÁ, Terezie (203 Czech Republic, guarantor, belonging to the institution).
• Edition: Quantum Law, 2018.

Other information

• Original language: English
• Type of outcome: Requested lectures
• Field of Study: 50501 Law
• Country of publisher: Czech Republic
• Confidentiality degree: is not subject to a state or trade secret
• RIV identification code: RIV/00216224:14220/18:00108843
• Organization unit: Faculty of Law
• Keywords in English: quantum mechanics; probability; legal certainty; competent observer; measurement; (un)constitutionality
• Tags: International impact

Abstract

Despite the principle of legal certainty being one of the traditional leading legal principles, both in civil law and common law traditions, law, and specifically judicial decision-making, is a rather uncertain enterprise. Although the judicial decision-making should in general be predictable and although there is a specific provision in the Czech Civil Code specifying that a legal subject has the right to have her case decided in a similar fashion as other similar cases have been decided in the past, the outcome of the particular judicial proceedings is always uncertain. This paper will look into this particular instance of uncertainty as a state of quantum superposition. The often-cited Schrödinger’s thought experiment is based on an assumption that only opening the box will determine the quantum state of the cat inside, which until this outside action occurs, is both dead and alive. Similarly, the actual result of a legal case is not only based on the standing law, but also on the context of the case as well as random inference brought to the decision-making by the ways human brain performs decision-making operations. Based on a concrete case of an issue of (un)constitutionality of a specific measure within the legal system of the Czech Republic (the so called aviation regulations), this paper seeks to open a discussion on to what extent may understanding this paradox help understanding the ways judicial decisions determine the nature of law.