Exempla Iuris

• SUBSTANCE OF COURT PROCESS

  

  “The spirit of times, as it reveals itself to every one of us, is often only the spirit of the group where we happened to find ourselves by coincidence of our birth, education or employment, or friendship. No amount of effort or revolution of the mind will discard totally and forever the empire of these subconscious loyalties (...) We are hopelessly trusting by nature and we instinctively accept verdicts by the group. We are haughty, not only when under the curse of feverish crowd, but we listen everywhere and always to the soft voice of the herd and we are always ready to defend and excuse instructions and warnings and to accept them as mature results of our own considerations. This was not written especially about the judges but about the men and women of all classes. The judge’s training, if involving something referred to as the court temperament, will assist him to a certain degree to free himself from the suggestive power of individual dislikes and prejudices. (...) However, as long as the human nature is the way it is these loyalties will never fully vanish. Sometimes we can wonder how the confluence of all powers of individualism can produce something coherent, something else than chaos and ineffectiveness. These are the moments when we overstate the component of difference. At the end they will give rise to something which has organization, and the truth, and order.”
  
  Author: Benjamin N. Cardozo

• ABOUT THE SOCIAL CONTRACT or about political law principles

  

  “The oldest and the only natural of all societies is the family. However, the children retain their bond with their father only as long as they need him for their lives. As soon as this need no longer exists, the natural bond is broken. The children absolved of the duty to obey their father, the father has no longer the duty to look after the children, and all become equally independent. If the bond remains intact, it is not as a result of natural process, but it is voluntary and the family sustains itself only based on an agreement.
  This common freedom is given by the natural origin of a man. Its first law is to maintain the self-preservation, its first concerns are obligations towards oneself. As soon as we reach the age of reason, we are becoming our own masters and we ourselves evaluate the means suitable for self-realisation.
  Hence, the family is the first example of political societies: the head of state is the image of a father, the population is the image of children, all are born equal and free and they give up their freedoms only for their own benefit. The difference lies only in the fact that in a family the father's love and care of his children is rewarded, but the head of state has no such love towards its people and this love was replaced by indulgence in power.”
  
  Author: Jean-Jacques Rousseau

• INSTITUTIONALISM – New theory of action, law and democracy

  

  “The rules and reality of a chess game are determined equally by certain player obligations (exercised upon entering a game with a partner), as well as the possibilities of the game proceedings, but not the factual features of the game itself. The decision regarding action depends on the judgement of a player, selecting from a range of possible moves. It is important to point out that the move selection (game programme or programme section, for example a 3-move chess problem) are determined by a different type of rules - strategic chess rules. This also applies equally to action under different norm systems. Legal rules and legal institutions represent only the framework for peoples’ actions. Objectives pursued by certain individual, his/her preferences and rules for successful approach (naturally in relation to the objectives and preferences) are determining the decisions and actions.”
  
  Author: Ota Weinberger

• ABOUT CRIMES AND PUNISHMENTS

  

  “If somebody objected that lifelong slavery is equally painful and therefore equally cruel as death, my response is that if I summarise all unfortunate moments of slavery, it is certainly even more painful, but those moments are spread over the whole lifetime, but death bears down with its full force in a single moment. The advantage of slavery is that it frightens more the one who observes rather than the one who has to bear it, because the former examines the whole sum of unfortunate moments, but the latter is detached from the present misfortune by the misfortune of the future. All evil is multiplied in thoughts and the one who suffers finds the means and consolation, impossible to experience and imagine by the spectators, who see only their own sensitivity instead of the stubborn mind of the unfortunate individual.”
  
  Author: Cesare Beccaria

• THE EXPRESSION AND VALIDITY OF LAW

  

  “The subject matter of this book is the relationship between the law and ethics. Legal positivism maintains that these can be separated. According to this philosophy both the law, as well as the validity should be defined independently of ethics. I will attempt to show that this theory is false. Firstly, there are unavoidable linguistic links between the law and ethics, secondly, the prescriptive reasons speak in favour of defining the expressions law and legal validity so that they include ethical elements. As a consequence the legal positivism, as a legal theory, with an ambition to encompass its subject in full, must fail.”
  
  Author: Robert Alexy

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