Transcript | 8. lecture: The enforceability of law, effective functioning of the law protection organs: conclusion (Lucia Žitňanská) - University for modern Slovakia

The enforceability of law and effective functioning of the law protection authorities, mainly the justice was the subject of these lectures. In the lectures, we tried to deal with the questions: what can 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 on the example of Slovakia? And in the previous lecture we talked about the relationship between law, enforcement of law and justice.

My goal was, exactly at this time, when the critical perspective is dominated by the enforceability of law and functioning of the justice in Slovakia, to introduce the complexity of the functioning not only of the justice system, but also the relationships between an effective enforcement of the law, the possibilities of legislation and its quality, effectiveness of the law application organs, but also the perception of justice. I have considered it to be important, because only the understanding of the complexity of the system can help to solve the problems. Because expecting a miracle solution, of which results would be seen quickly, can be tempting, but ineffective.

We have defined the term enforcement of law in the broadest sense as a subsystem of a society, which supports the following of rules and uncovers and punishes people, who break the rules and norms, which are followed in the society.

We have come to the conclusion, that the enforcement of law works, when the sanction, punishment as it is, is sensible and at the same time there has to be a real risk, that it will be given. This is, what sets the relationship between legislation (which sets sanctions, which can be given) and the functioning of institutions (which give and enforce the sanctions given by law). In this relationship it holds, that the level of enforceability of law depends on the quality and effectiveness of the functioning of the institutions, police, public prosecutors office and courts. And at the same time is the motivation of the individuals to follow law dependant on this.

We have explained, how the application of law (legal norm) works in concrete cases.

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. 

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.

We have also said, that a low level of law enforceability creates a barrier for business, because it increases the expenses of businessmen. And in the worst case it causes insolvency.

The numbers show, that the average duration of court proceedings of crucial agendas in Slovakia has has been shortening each year since 2005 (with the exception of criminal acts, where this breaking point happened in 2008). From the perspective of business environment are important mainly the data in commercial disputes. In seven years has the average duration shortened by 9 months, the median by less than 8 months.

However even despite of that, there was no change in the businessmen perception, as it is annually shown by research between businessmen. Where is the problem?

Surely, every businessman has their own personal experience with a long-lasting dispute, with low effectiveness and excessive formality during the process. The speed up of court proceedings, mainly the speed up of court proceedings in courts, which decide in a time limit a few times longer than the average in Slovakia, can unquestionably help, and what is important, it reduces the space for corruption in courts. Because it stands, that in a working system the space for corruption is smaller than in non-functioning one. However, the speed of process does not fully explain the high degree of distrust in the justice system. From this perspective, we have to repeat, that institutional independence of justice is not purposeless. It should guarantee impartial verdicts of courts without political influence. Just as important as the political influence on verdicts is, that other than political interests don't influence decisions. Independence of justice as a premise of impartial verdicts is not a privilege of justice, is not a privilege of judges, it is a privilege of people who come before court.