Transcript | 7. lecture: Right is the art of goodness and equality, Celsus (Lucia Žitňanská) - University for modern Slovakia

Court disputes are about the search of right in a concrete case. But at the same time they are many times mainly peoples stories. Stories of disputing parties, where each is convinced of their right, and when they lose in the dispute, they can often feel injustice, unfairness. Let's leave possible illegal decisions aside. The unsuccessful party in dispute can have, and many times also has, a feeling of injustice, even in case of a lawful decision.

Let's go back to an example from the previous lecture. It was about two neighbouring lands. One has had tall trees on its border for years. The owner of the second land will later build a house on his land. He is claiming to cut the trees of fear that if there is a strong wind the trees could fall on his roof. Where is the law in the concrete case?

We also read a regulation. Under §123 of the Civil code it applies that: "The owner is within his legal authority rightful to hold the subject of his property, to enjoy, use its fruits and benefits and deal with them." Furthermore, under § 127 paragraph 1 of the Civil code "The owner must refrain from all, that would beyond reasonable circumstances harass others, or which would seriously threaten the execution of his rights. Thus, in particular one should not endanger the neighbour's building or land by adjustments to this land or modifications to the building on this land without having made satisfactory arrangements of consolidation of the building or land, annoy neighbours beyond reasonable rate by noise, dust, ash, smoke, gases, vapours, odours , solid and liquid waste, light, shading and vibration, mustn't let bred animals to intrude on adjacent land and carelessly or at an unsuitable time of year remove from ones land  tree roots or remove tree branches reaching over to ones land."

Law (material law) is, as it seems, just. It protects the property law of every owner and at the same time links responsibilities with the freedom of ownership (same as there are responsibilities with any kind of freedom). Individual decisions in this concrete case, no matter what they will be, with a high probability will cause, that the owner of land, which won't succeed, will feel injustice, compared to the owner who will succeeded.

The example points to the abstract perception of justice and the individual perception of the application of (rightful) law to an individual act. A possible dispute between abstract and individual understanding of justice.

What sets the rightfulness of a decision in a concrete case (with the assumption, that the decision on its own is according to law)?

Has the impartial judge decided? Did both of the parties have the possibility to present the judge with all proofs and arguments? Or, as Seneca said: "He who decides a case without hearing the other side, even if he decides justly, cannot be considered just." That's why are these the rules of verdicts of disputes, law (proceedings law), which decide the rightful search for law in an individual case.

We used an example, where the law(material law) seems to be just. A law (material) doesn't always have to manifest as just. The law sets the rules of behaviour, while it has to account for multiple law protected interests, justice (perception of justice) of law (material) depends on the degree of guarantee of the balance between various interests, which deserve law protection.

An example of the search of balance between various interests is the legislation of expropriation.

Under Art. 20 paragraph 4 of the Statute, Expropriation or a forced limitation of property law is possible only to the necessary degree in the public interest, and that on the basis of the law and for an adequate compensation.

The follow-up legislation of the Civil Code § 128 states:

"§ 128,

(1) The owner is obliged to tolerate, that in an emergency or urgent public interest,was  his thing used for the necessary time to the necessary extent and for a replacement, if the purpose could not be achieved otherwise.

(2) It is possible to expropriate a thing or limit the property law in public interest, if the purpose cannot be achieved otherwise, only based on the law, only for this purpose and for a compensation."

The adequacy of the compensation for the expropriated land, for example for the building of a highway, is from the perspective of the public interest (state) and from the perspective of private interest (of the expropriated person) usually radically different. The perspective of justice of the legislation, which sets the compensation, differs. It is also about the dispute between the abstract justice and individual justice, of which solution (legal compensation for the expropriated land) expresses the values of society.

A society cannot exist without rules. Perceptions of the rightfulness of the normative system of the society by the public is given by the amount, to which the law sets the balance between the individual interest, interests under lawful protection, in accordance with the values of the society. Individual perception of the rightfulness/unfairness can be different than the abstract perception of the rightfulness and is not a reason to break the law.

But where is the limit? This has been answered after the second world was by the Law philosopher Radbruch:

"The conflict between justice and legal certainty should be able to be solved because positive law secured by statutes and power even takes priority when its contents are unjust and inappropriate, unless the contradiction between positive law and justice reaches such an extent that law as "unjust legislation" gives way to justice." (Radbruch: Gesetzliches Unrecht und übersetzliches Recht. 1946 In: Holländer, P.: Filipika proti redukcionalizmu, Kalligram . Bratislava 2009, ISBN 978-80-8101-244-0, p. 42 -43)