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

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Other information

Language

English

Type of outcome

Vyžádané přednášky

Field of Study

50501 Law

Country of publisher

Czech Republic

Confidentiality degree

není předmětem státního či obchodního tajemství

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

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Abstract

V originále

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.