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1

ON MORAL ARGUMENTATION POSTULATE IN THE LAW (THE BASIC OUTLINE OF THE PROBLEM) (K postulatu moralni argumentace v pravu (zakladni nastin struktury problemu))

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Hanus L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2009
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vol. 92
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issue 6
516-540
EN
This consideration tries to answer the question if and to what extent is the moral argumentation legitimately admissible, necessary and desirable in the rule of law state. According to the author, the execution of legal profession is connected with the obligation to use moral argumentation in all situations in which the nature of thinkable field of argumentation allows it. He tries both to determine these situations in details and to stipulate acceptable rational criteria for the moral judgment reasoning form the point of view of elimination of arbitrariness (rule of law principles). He comes out from the fact that if the morality in the law is deprived of its significance, the idea of law itself is denied. The author also supports the relevant points of his attitude to the resolution of given answer by reference to the constitutionally enshrined values and principles (Art. 1 par. 1 of the CR Constitution, Art. 1 of the Charter of Human Rights and Basic Freedoms).
2

BOTH TO THE MEANING AND OBJECTIVE OF LAW FROM THE POINT OF VIEW OF LEGAL REGULATIONS' INTERPRETATION: METHOD OF ARGUMENTATION BY MEANS OF TELEOLOGICAL INTERPRETATION (BOUNDENESS OF A JUDGE BY LAW) (Czech title - below)

100%
Hanus L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2009
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vol. 92
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issue 2
97-122
EN
(Title in Czech - 'Ke smyslu a ucelu prava z pohledu interpretace pravnich predpisu: argumentaci teleologickym vykladem (vazanosti soudce zakonem)'). The article is corcerned with the interpretation of law with particular reference to the emphasized role played by the teleological interpretation method in the ascertainment of the content of a legal regulation. The autor points to the legitimate posibility and necessity of judge-made completion of law with the reservation that the judicial decision represents the continuation and not the beginning of the lawe-making process. With regard to the substance of codification based on its purpose (ratio legis) as well as such objective factors as particularly overgrown legal system in terms of the number of regulations, intricacy, often also disharmony, vagueness or unintelligibility of regulations, the autor accentuates the role of the quest for the meaning and purpose of the regulation in the legal system as a meaningful whole as the fundamental interpretation directive in the search fo its content. The autor andeavours to present a schematically transparent and generally applicable algorithm of mutual modifiability of the result of interpretation resulting from the linguistic and the teleological interpretation methods and or to outline the situations in which the result of teleological interpretation is capable of modifying, supplementing or fundamentally changing the result of the interpretation of a legal regulation ascertained purely on the basis of linguistic criteria, while outlinig the limits preventing arbitrariness in the application of law.
3

COMMENTS ON THE REACH AND LIMITS OF THE A FORTIORI ARGUMENT (AN ATTEMPT ON A STRUCTURAL INSIGHT) (Glosa k dosahu a mezim argumentace 'a fortiori' (pokus o nahlednuti strukturalni))

100%
Hanus L.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2010
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vol. 93
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issue 5
423-447
EN
The reflection is an attempt on monitoring the structure of the argument field related to the a fortiori argument. In reaction to the no scarcely expressed statement concerning the unreliability of the typified application of this method of argumentation, the author strives to point out relevant structural points of the argument, mostly the inimitable foundation of the teleological background of the interpreted legal rule. By the indicated description he strives to pass from the intuitive application of the given argument to the rationalization, which is expressed by the presentment of preconditions which are usually suppressed if they are considered at all. In this connection, the author also stresses the fact that the a fortiori argument, usually leading to the extensive outcome of the interpretation, has connection with either the condition of normative pressure generation (hypothesis) or a normative result (disposition, sanction). The author also stresses the ambiguity of the application from the point of view of the selection of its alternatives - a minori ad maius and a maiori ad minus arguments. He points out the often related per reductionem ad absurdum argument, as well as the prevention of the application of the given argument resulting from the character of the relevant law and the above mentioned axiological foundation of the argument. After a historical excursus, the interpretation is supported by recent doctrinal opinions, practical examples and judicial practice. The author attempted to interconnect submitted opinions and views and to draw complex conclusions from them, adding the relevant argumentation points which have not been covered, and thus he defined in general features the structure of the field of argumentation of the application of the a fortiori argument.
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