On the Social Worker's Respect for Law in His Practice

Introduction

Legal awareness includes not only a general knowledge of the law, but also an awareness of the duty to strictly observe it regardless of circumstances and persons. Legal awareness formulated in this way binds everyone. A social worker is a worker like any other and the same principles apply to him as to anyone else. A social worker may find himself in a professional or ethical "conflict" as to whether, with regard to the client's interests, to proceed according to the law or contrary to it. He most often perceives this dilemma when intervening and resolving the client's situation in connection with the pathological behavior of the client or his close ones.

We understand legal awareness as a reflection of positive law in human consciousness — we speak of individual legal awareness, or in the consciousness of a group or entire society — we speak of group legal awareness. We distinguish legal awareness de lege lata (according to valid law), which determines what is in accordance with valid law and what, on the contrary, is contrary to law and reflects valid law in people's consciousness. In contrast, legal awareness de lege ferenda is legal awareness of what the law should be. The level of legal awareness is important in the application of law, especially in determining and establishing liability for violation of law.

In legal thought and its history, we encounter two basic approaches to the concept of law — the natural law and positive law approaches. While the theory of natural law (ius naturale) is based on the assumption(1) that there is an unwritten and immutable law given by the "natural order of things" and is thus in a certain sense superior to positive law, positive law (sometimes also called valid law) represents law that can be derived from the relevant system of legal norms that are generally in force in the form of written law (ius scriptum) at a given time.

Natural law in the tradition of legal thought is understood as a legal order or system of laws that apply independently of the will of the legislator and have their origin either in the natural nature of man and society, reason, or in divine authority. The human legislator should be guided by principles of natural law, such as justice. The natural law approach is based primarily on the fact that given law is justifiable, and from this principle of legitimacy valid law and human behavior are then evaluated. The positive philosophy of law is, compared to the natural law approach, a later theoretical perspective. In general, it can be characterized as holding that law is a set of rules established by a political sovereign. It is thus primarily law of people, not of God or other non-human instances, established for people. Positive law is law as it actually exists, not as it should be.

In our contribution, we wish to address a matter that is understood entirely unambiguously in the legal community, while elsewhere and in other contexts it may raise certain doubts or even dilemmas. Situations may indeed arise where, with regard to the supposed or real interests of the client, it appears better for the social worker not to proceed in accordance with the law, or even to act contrary to the law, i.e., unlawfully, even at the cost of thereby incurring legal liability. Legal liability, as is known, results in the threat of sanctions or the imposition of sanctions.

In contact with a client, a social worker may find himself in a situation where he learns from the client or from other sources about an impending, ongoing, or already committed criminal offense. From the social worker's perspective, this places him in a difficult situation as to how to proceed further. Moreover, for many criminal offenses, there is a real danger of criminal prosecution for the social worker if he does not proceed in a manner that is uncompromisingly and precisely prescribed by the criminal law.

Only truly seemingly can a social worker — but not only a social worker, but also any citizen or resident of the Czech Republic — find himself in a kind of dilemma as to whether to make the appropriate report in this situation or to remain silent about the information obtained.

If he chooses silence, it is entirely irrelevant what reasoning he uses to justify that silence to himself. The decisive fact is that he remained silent when he should not have, because the law does not permit him to remain silent. Indeed, it even requires him not to remain silent, but to act in a manner unequivocally prescribed by law. In this case, primarily in the Criminal Code and further, for example, in Act No. 359/1999 Sb., on the Social and Legal Protection of Children. Thus, that is what the law says.

Nevertheless, the question may arise as to what law is. There is a whole range of its definitions, and perhaps for this contribution it will suffice to characterize law as a set of rules of behavior by which human society is organized and governed. Law is a concept with multiple meanings, and a distinction is made primarily between objective law and subjective law, where objective law is understood as law in the normative sense, i.e., the sum of legal norms as generally binding rules of behavior established or recognized by the state. Legal norms are characterized by formal validity and are contained in official, state-recognized sources of law. In the continental type of legal culture — to which the Czech Republic also belongs — the decisive sources of law are statutes and other legal regulations.

Legal norms determine, by means of commands, prohibitions, and permissions, which behavior is considered desirable and which undesirable. In the interest of objectivity, it must be added that other rules of behavior, such as religious, ethical, and social rules, may also have this character, but with the fundamental difference that a legal norm has general validity, its observance is enforceable, and for violation of the law or for behavior undesirable from the perspective of legal norms, the legal subject is threatened with a sanction. That sanction is, of course, enforceable by institutions of public authority — to be specific, in extreme cases, by bodies active in criminal proceedings.

Nevertheless, these extra-legal systems influence the motivation of social behavior, and quite often the regulation of a particular social relationship by a legal norm and by an extra-legal norm differs. For example, artificial termination of pregnancy (abortion) is permitted by a legal norm, which regulates its implementation quite precisely; a moral norm sometimes condemns it, and a religious norm always prohibits it.

Subjective law represents a possibility of behavior guaranteed by objective law, i.e., by legal norms. The structure of subjective law includes, among other things, the possibility of behaving in a manner defined by a legal norm. Of course, this structure also includes the opposite possibility, i.e., not behaving in a manner defined by a legal norm. In that case, however, it is unlawful conduct; in connection with unlawful conduct, legal liability arises for the subject, and the necessary consequence of this legal liability is a sanction and the obligation to submit to that sanction.

Law as justice is conceived by the natural law approach; law as a set of legal norms is conceived by the positivist approach.

The source of natural law is alternately God, human reason, or human nature. This school has found its application in the institutes of fundamental human rights and freedoms. In contrast, critics of the natural law approach reject the existence of universally binding ideals that do not change. According to them, such a starting point makes law inflexible, incapable of adapting to a changing society.

According to the positivist approach to law, law is a set of rules established by a political sovereign. It is thus — figuratively speaking — law of people, not of God, for people. Positive law concerns law as it is, not as it should be. Positive law is contained in a valid and effective legal norm and is the law that is binding and enforceable.

A legal norm is an intangible product of human thought and as such is part of social consciousness. The character of a legal norm implies that it must be communicable, it must be addressed to someone, and it must be cognizable by its addressee. Its external expression and, at the same time, the material carrier that makes it communicable is, in our context, legislation.(2)

A legal norm is defined by formal and material characteristics, and of its material defining characteristics, the most important are its generality and its enforceability by state power. According to Radbruch, ever since the supporters of natural law died out among jurists about a hundred years ago, a lawyer recognizes no exceptions to the validity of the law and to the obedience of those subject to the law. The law is valid because it is the law, and it is law if it ordinarily has the power to assert itself.(3)

After this, perhaps somewhat lengthy introduction, allow us to proceed to the interpretation of the elements of two criminal offenses mentioned in the title of the lecture. Since approximately two and a half months from now, Act No. 40/2009 Sb., the Criminal Code, which will replace the current Criminal Law, comes into effect, I will address this new legislation. A criminal offense is an unlawful act that the criminal law designates as criminal and that exhibits the characteristics specified in such law. Criminal liability for a criminal offense requires intentional fault, unless the criminal law expressly provides that negligence is sufficient.(4)

In the case of failure to prevent a criminal offense under Section 367 of the Criminal Code, the objective element consists in the fact that the perpetrator, who has credible knowledge of the preparation or commission of any of the criminal offenses exhaustively listed therein, does not prevent such activity. The Code does not specify the manner in which prevention is to occur. It merely provides that a criminal offense can also be prevented by timely notification to the public prosecutor or the police authority, and a soldier may instead notify a superior. The duty to prevent a criminal offense knows no exception, unlike the failure to report an already committed criminal offense. Thus, for example, even a clergyman has this duty if he learns of an impending or ongoing criminal offense in connection with the seal of confession.

Considering the provision of Can. 1388 § 1, according to which a confessor who directly violates the sacramental seal incurs excommunication latae sententiae reserved to the Apostolic See, while one who does so only indirectly shall be punished according to the gravity of the offense, the so-called dilemma of the social worker or anyone else appears rather amusing than otherwise.(5)

The absolute and unconditional duty to prevent an impending or ongoing criminal offense is based on the fact that it concerns a stage of the perpetrator's act at which the harmful consequence of the criminal offense can still be averted or at least mitigated.

This differs from the failure to report a criminal offense under Section 368 of the Criminal Code, which penalizes the conduct of a person who learns in a credible manner that another has committed any of the criminal offenses exhaustively listed therein.

Notification must be made without undue delay. The duty to report an (already committed) criminal offense does not depend on whether the person who has credible knowledge of its commission knows or does not know the perpetrator. In this case, however, the reporting duty does not apply to a lawyer or his employee who learns of the commission of a criminal offense in connection with the practice of law or legal practice. Nor does the reporting duty apply to a clergyman of a registered church or religious society authorized to exercise special rights, if he learns of the commission of a criminal offense in connection with the exercise of the seal of confession or in connection with the exercise of a right analogous to the seal of confession. Thus, no one else by virtue of their activity, profession, or employment is exempt from the reporting duty. This also applies in cases where a state-recognized duty of confidentiality otherwise applies. A person is not required to prevent or report the criminal offenses listed in Sections 367 and 368 of the Criminal Code if doing so would cause danger of death, bodily harm, other serious harm, or criminal prosecution to themselves or persons close to them.

However, exposing a close person to the danger of criminal prosecution does not relieve the perpetrator (of failure to prevent a criminal offense) of the duty to report especially serious criminal offenses exhaustively listed in Section 367(2) of the Criminal Code. From the perspective of the objective element, failure to report a criminal offense of which the perpetrator learns after its commission is presumed. If the criminal offense had not yet been completed, qualification as failure to prevent a criminal offense (argument "is committing") under Section 367 of the Criminal Code would come into consideration.(6) At the conclusion of our presentation, allow us to give a piece of free — good advice: We can debate, you may disagree with me, adamantly insist on your position. You may, however, also end up in the dock.

Conclusion

This year, the Institute of Social Work of the University of Hradec Králové is conducting specific research focused on the level of legal awareness of social workers in 40 diverse social work facilities in the Hradec Králové and Central Bohemian Regions. Although this research has not yet been concluded and its results fully evaluated, some partial outputs are interesting and have a non-negligible informative value.

In conclusion of our presentation, we wish to share the following results. Workers were asked whether the legal norms with which they regularly work are a help or an obstacle in their work. The vast majority of respondents answered that they unequivocally constrain them — they do not understand them as a help. Despite the understandable anonymity of respondents, a large majority of those questioned refused to answer questions about whether, with what, and how they had knowingly violated legal regulations, whether in favor or to the detriment of the client — surely this too is an answer with its own informative value. Naturally, after evaluation of the entire research, we will inform about its conclusions at a professional forum on social work.

Authors: Miroslav MITLÖHNER, Zuzana TRUHLÁŘOVÁ List of Bibliographic References

[1.] Codex Iuris Canonici, Praha: Zvon, 1994, p. 1208 ISBN 80-7113-082-6 Gerloch. A. Teorie práva. Plzeň 2007. [2.] HANUŠ, L. Spravedlnost a právní jistota. Právní rozhledy No. 16, Vol. 2009, p. 582 ISSN [3.] KNAPP, V. Vědecká propedeutika pro právníky. Praha: Eurolex Bohemia, 2003, p. 138 ISBN 80-86432-54-8 [4.] MITLÖHNER, M. Právo v pedagogickém prostředí, Hradec Králové: Gaudeamus, 2008, p. 128, ISBN 978-80-7041-071-4

(1) GERLOCH, A. Teorie práva., p. 230 (2) KNAPP, V. Vědecká propedeutika pro právníky. Praha: Eurolex Bohemia, 2003, p. 47 ISBN80-86432-54-8 (3) HANUŠ, L. Spravedlnost a právní jistota. Právní rozhledy No. 16, Vol. 2009, p. 582 ISSN (4) § 13 of the Criminal Code (5) Codex Iuris Canonici, Praha:, Zvon, 1994, p. 609 ISBN 80-7113-082-6 (6) MITLÖHNER, M. Právo v pedagogickém prostředí, Hradec Králové: Gaudeamus, 2008, p. 15 ISBN 978-80-7041-071-4

MITLÖHNER M., TRUHLÁŘOVÁ Z. 2011 K respektování práva sociálním pracovníkem v jeho praxi. In MÁTEL, A. – JANECHOVÁ, L. – ROMAN, L. (eds.) 2011. Sociálna patológia a intervencia sociálnej práce. Zborník z medzinárodnej vedeckej konferencie. Bratislava : VŠ ZaSP sv. Alžbety. ISBN 978-80-8132-018-7, pp. 9 - 15.