Transcript | 3. lecture: Two lawyers, three legal opinions or how law is created (Lucia Žitňanská) - University for modern Slovakia

A favourite aphorism, which has settled into a folk form of truth says, where there are two lawyers, there are at least three legal opinions. Why is that so? Because lawyers simply have fun from complicating peoples lives or is it the fault of the legislation, because the regulations aren't written so that everyone could understand them and they were clear?

A legislation is a rule of behaviour, it allows, orders or forbids something. However from the nature of things, each legislation is and has to be abstract, general. Because a legislation is relating to a non-specific amount of cases of similar behaviour in similar situations. It doesn't set the behaviour of a concrete person in a concrete situation. We subordinate (subsume) the behaviour of a concrete person in a concrete situation to a legal norm. And then there's the question, how to apply this general legal norm to this one concrete case. Lawyers have an instrument for this, this instrument, those are interpretation methods (literal or grammatical interpretation, teleological interpretation etc.). And in the concrete case is their use dependant from the point of view, from the interests of the party the lawyer is representing. And just a side note, in this lecture I'm assuming that both sides show legitimate interest and their defence in good faith.

For a better understanding, let's give an example: under § 123 of the Civil Code reads, 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. While under § 124 of the Civil Code, all owners have the same rights and responsibilities and are provided with the same legal protection. And at the same time § 127 paragraph 1 of the Civil Code applies. 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.

So much for the legal norm. And now concrete examples. From life, not made up.

First case

Neighbours land, gardens. The owner of one land has in his garden a hive with bees. Naturally, the bees also fly over to the neighbours land. The owner of the second land is trying to claim the removal of the hive in court, because he can't go to his garden, because he is allergic to bee sting. Where is the law in the concrete case?

Another example

Neighbouring land 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?

In a concrete case will a respective organ, in our concrete case a court, decide, who is rightful,  so decide about the application of a general legal norm to a concrete case. That's why it's sometimes said, that the organs of law protection are the organs of search after the rights for a given concrete case. The quality of a decision and clarity of a decision and its reasoning in a concrete thing has an effect on the perception of law and justice of the conflicting parties in the concrete case. The speed of settlement of the relationship between the parties in real time in the concrete case influences the legal security of parties of the concrete case, so the parties know who is right and how they should behave in that concrete case.

Sometimes are the parties satisfied with the decision of the District court, sometimes they appeal and the court of appeal has to make a decision. Sometimes it happens that in similar cases the courts make different decisions, even the courts of appeal. Then it comes to the Supreme court and its competency in the area of unification of court decisions, eventually the constitutional court and its competency. In Slovakia we don't have a precedent system. But it goes, that the decisions of the higher courts, the legal opinion proposed in the decision of the court of a higher degree is in a concrete case binding for the decision of  a lower degree court. At the same time it holds, that courts and lawyers study and work with the decisions of the highest court and constitutional court, use their legal argumentation in their legal argumentation.  The legal opinion of the highest judicial institutions is therefore becoming a part of the legal doctrine, a recognised interpretation of law. The foreseeability of the decisions of the whole system of law protection institutions is dependent on the quality of decisions of the Supreme Court and constitutional court, on how the Supreme court fulfils its competencies during the unification of judicial decisions. 

Bad and incomprehensible decisions, long-lasting lawsuits, disagreeing decisions create the feeling, that there is no law.

This feeling creates a pressure on solution. Often a solution for a change in the legislation. And so the legislation is changed on the basis of court decisions. There are cases, situations, when it is legitimate. If the decision practice in some area of relationships is in the long term developing in a different direction, than the society considers to be right and just, it is a legitimate reason for the legislator to step in.

However if the pressure on the solution of the situation of the "wrong" is a pressure to make the legislation more concrete, less general and less abstract and the result is a legislation reacting again and again to concrete cases, the problem has no solution. Legislation, even if it is accepted with the best intentions, cannot substitute functioning institutions. Because in the end effect, every norm will always be only an abstraction, which has to be applied to a concrete case by organs, which have this in their competency.

Austria has this year celebrated 200 years of the codification of the civil code. That same basic legal transcript of the private law has been valid in Austria for 200 years. Naturally, that is has been amended in those two hundred years. But the basis is the same. The basic values of the civil together-living haven't changed so much, that it would be necessary to issue a new civil code in Austria . This doesn't mean, that in 200 years has the view on human behaviour, what is right and what is just, not changed. But this means, that the principles and general norms of the civil code at their application to concrete live situations, exactly thanks to their abstractness, are usable today, just as they were in the past, if the organs of law application function in all their functions.