Thesis (Selection of subject)Thesis (Selection of subject)(version: 368)
Thesis details
   Login via CAS
Vliv fakticity na normativitu: zvyklosti v právu
Thesis title in Czech: Vliv fakticity na normativitu: zvyklosti v právu
Thesis title in English: How facticity influences normativity: conventions in law
Key words: Právní zvyklost, konvence, právní obyčej
English key words: Legal usance, convention, legal custom
Academic year of topic announcement: 2012/2013
Thesis type: diploma thesis
Thesis language: čeština
Department: Department of Legal Theory and Legal Doctrines (22-KTPPU)
Supervisor: prof. JUDr. Zdeněk Kühn, Ph.D., LL.M.
Author: hidden - assigned and confirmed by the Study Dept.
Date of registration: 05.12.2012
Date of assignment: 14.01.2014
Confirmed by Study dept. on: 30.09.2014
Date and time of defence: 29.09.2014 15:00
Venue of defence: kancelář č. 240
Date of electronic submission:21.08.2014
Date of proceeded defence: 29.09.2014
Opponents: doc. JUDr. Jan Tryzna, Ph.D.
Preliminary scope of work in English
This thesis is about social practice and its influence on the legal system. We examine the basic philosophical approaches to law and use them to challenge the very existence of conventions in law. After we derive the basic notion of convention we develop the three-step test to guarantee that we are able to identify conventions within the legal system and distinguish them from other categories of legal notions.
The three-step test presented in chapter two is slightly modifying Andrei Mamor’s test. The first criterion of the test is the existence of certain social group that maintains in certain situation specific conventional rule. The second criterion is build around the idea that conventions exist when there are people who have certain reasons to comply with this rule. Final criterion represents the existence of an alternative rule that could be upheld by those people as well. Nevertheless, those people rather comply with the conventional rule. If those three criterions are met, it is probable that we are dealing with conventions.
We conclude that the conventions are present within every system of social norms although its importance within various legal cultures and systems varies dramatically. The value of social practice for legal practice shall not be underestimated. Thus, judges and legislators should take conventions into account when shaping the legal system.
In chapter three we use our theoretical foundations to challenge prevailing approach to sources of law within the Czech legal discourse. The prevailing understanding of sources of law is rather restrictive one. Nevertheless, due to numerous rulings of the Czech Constitutional Court and the Supreme Administrative Court, there are foundations for wider recognition of conventions within the Czech legal system. We do vigorously support those efforts and our hope is that other courts will recognize and further develop full potential of conventions in law as well.
Charles University | Information system of Charles University |