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1. lecture:When rules don’t apply any more (Lucia Žitňanská)

Lecturer: UPMS | Thursday, 27. 9. 2012

We all are under the obligation to follow rules. In order for us to follow them, we have to, or should know them. In the statute there is nearly every day a legal law published.  According to the law, which modifies the statute, there is a valid assumption, that at the moment of publication is this law known to everyone.

If I asked you to lay down your novels, stories, poems off of your night stands and to go and read the statute before you went to sleep, because ignorance of the law does not excuse, you will tell me that it's nonsense, that it is sufficient for us to know the laws which we need for example to work. No, no normal person reads the statute as a bed time story, and there is no one who would know the whole legal system.

The majority of us will never even come to a dispute with the laws that one does not read. None of us need to read the Criminal law, to know the crime charges to know that one shouldn't steal. The majority of us will also never do it (and I'm not talking about the sins of childhood in the form of stealing cherries from your neighbours garden, accompanied by fear and parent punishment, if they found out). And those, who steal know that their doing is against the law.

Most of us (those, who didn't read the Criminal law and don't steal), without any remorse tried a drive at over 130km/h on a highway.  Even though all of us read the traffic rules, otherwise we wouldn't have a driver's license.

If you borrow from your neighbour, you know u have to give the money back. This, also without reading the Civil code.

Where there's a person, there is a society, where there's society, there is law ("Ubi homo, ibi societas; ubi societas, ibi ius"), said Cicero.

Rules follow us from birth till death. I'm using the word rules, because it's not only about written rules, laws, orders, declarations, but also about rules of morals, ethics, decency, which the society creates.  Rules express a value system of a society. Rules lay down how we should behave, what we can't, what we have to or what we can. The following of these rules is the basis of a functional society. That's why the following of rules is enforced.

A rule, which is not followed by anyone, of which following isn't enforced by anyone or of which disobedience to is tolerated by the society, ceases to be a rule. This goes for written rules (laws, orders, declarations, and such), but also for other normative and non-normative systems, which set the frame of behaviour for individuals within a society. Only the tools of enforcement are different. The enforcement of rules in the broadest sense is a subsystem of a society, which supports the following of rules and reveals and punishes people, who break the rules and norms, which are followed in the society (so much for WIKIPEDIA).

Theft is a criminal act. The punishment for a criminal act is prison, in a milder case a probation, fine. It can also come to a social failure to acknowledgement. For exceeding the speed limit there is a fine. For breeching of an agreement you go to a court and call after an execution. If someone is behaving in a rude manner, doesn't follow rules of etiquette, the society, the community enforces the following of the rules of etiquette by expelling, crowding the individual out.  However if a sanction doesn't occur, on the contrary, if it will become a rule that a sanction doesn't come, then the rules cease to be valid. Even though we know them, but as if we didn't.

Rudolf von Ihering (1818 - 1892) in his book The Struggle for Law wrote:

"A principle of law never applied in practice, or which has lost its force, no longer deserves the name. But while the realization in practice of public law and of criminal law is assured, because it is imposed as a duty on public officials, the realization in practice of private law is presented to individuals under the form of their legal rights; that is, it is left exclusively to them to take the initiative in its realization, left exclusively to their action. In the former case, its practical realization depends on the performance of their duty by the authorities and public officials, and, in this latter case, on the assertion by individuals of their legal rights." (p. 65)

According to von Ihering is the struggle for law an obligation of the entitled person towards themselves, but also an obligation towards society. "When the master can no longer insist that the servant shall do his duty, when the creditor cannot enforce payment by his debtor, when the public attach no great importance to the correctness of weights and measures^ can it be said that nothing is imperilled but the authority of the law.^ When these things come to pass, the order of civil life is sacrificed in one direction, and it is not easy to say how far the disastrous consequences produced may reach; whether, for instance, the whole system of credit may not be seriously affected thereby." (p. 69)

In the ancient Rome the robbed chased and prosecuted the thief. Today is the role of prosecutor in the hands of the country. It is its obligation. We move more and more rights in the sphere of enforcement from individuals to country. It's not only the area of national and criminal law, including infringement law. We create various supervisor authorities, inspectorates. It's not only the police and public prosecution, it's a whole sphere or national organs. We have moved our consumer rights to the STI, our private appeals are carried out by consumer organisations. Even an individual, while claiming his or her rights, can practically never do so by him/herself, but has to seek the rights through a court and then initiate an enforcement. Even the enforcement of our individual rights is so dependent for a major part on the country and its authorities. During the enforcement of rights is our society as well as an individual dependent on the country and its institutions, on their quality and effectiveness.

That's why, if the institutions of law protection - police, public prosecution, courts, but also other national organs- don't operate effectively, it is as if the legal norms wouldn't exist.  If we add tolerance towards rudeness, then not rights nor politeness is valid any more.

I will add one more quote from Ihering: "The end of the law is peace. The means to that end is war.  So long as the law is compelled to hold itself in readiness to resist the attacks of wrong — and this it will be compelled to do until the end of time — it cannot dispense with war.  The life of the law is a struggle, a struggle of nations, of the state power, of classes, of individuals." (p. 1)

The enforceability of law and effective functioning of the law protection authorities, mainly the justice, is the subject of these lectures. In the following lectures I will deal with questions like:

What things affect the enforceability of law?

What role does the legislation have in all this and why can the Civil code operate in Austria for over 200 years?

How does the Slovak judicial system really look like?

What does the term independent justice comprise and why is it important?

What problems of justice are there in transitive countries?

And lastly, before the conclusion, we will talk a little bit about the relationship between law, enforcement of law and justice.

The citation in the lecture was from the book of Rudoph von Ihering Struggle for Law, in translation from John J. Lalor, 1879.


15 comment(s). Display all comments.

Marian Kulich

Test ma velmi sklamal.

16.05.2014 | 16:59:46
Lenka Bodnárová

Prednáška ako úvod do problematiky bola dobrá, ale test s ňou mal len málo spoločné. Je smutné, ak prednášajúci považuje za dôležitejšie zistiť a zabezpečiť informovanosť poslucháčov o jeho vlastnej osobe ako o obsahu samotnej prednášky.

17.04.2013 | 21:13:56
Pavol Chlebana

Nesúhlasím s CTIRAD HORKEL, lebo táto univerzita nie je len o ekonomike, a nikde to neni ani napísané, že to tak bude. Fungujúci právny systém je tiež podmienkou, aby krajina bola moderná. Ale musím priznať, že ten test bol naozaj divný, lebo nepovažujem za podstatné napr. poznať všetky tie funkcie p. Žitňanskej

17.04.2013 | 18:11:13
Peter Morvay

Celý tento projekt sa začal uberať veľmi podivným smerom. Aktuálny test je čistý PR marketing. Važení uvedomte si, že túto univerzitu neštudujú voliči Smeru. A tak rýchlo ako vystrelila jej popularita hore, môže spadnúť rýchlo aj dole. Presne ako preferencie a mandáty SDKU.

06.02.2013 | 16:52:28
Lucia Vojtková

tak toto si snad len robite srandu s tymto testom….este ze ste bezplatny, lebo jednu platenu “skolu” uz mam za sebou a vysledky su zalostne…

20.01.2013 | 11:26:06