Archiwum
Filozofii Prawa
i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVR

Judges’ Virtues and Vices: Outline of a Research Agenda for Legal Theory

Prof. UG dr hab. Tomasz Widłak

University of Gdańsk

Abstract: This article focuses on the issue of applicability of virtue theory to legal theory in civil-law (statutory) jurisdictions and suggests research areas and problems in that respect. The author starts with an assumption that the notion of “virtue” and virtue ethics should be used for the purposes of legal theory starting from references to judicial ethics and normative theory of judicial decision-making. This approach looks especially promising for the purpose of systematizing the chaotic moral language that is being currently used in Poland in reference to judges, their skills, and qualities of their character, which in turn may lead to formulating an explanatory and normative theory of the judicial role that better addresses the observable deficiencies of legal deontology. The author suggests research that could proceed from interpretatively uncovering what are believed to be specific judicial virtues and vices, considering different aspects of the wider Polish and European legal culture of civil law countries (included but not limited to legal and ethical standards, public discourse, legal and other literature, historical and fictional examples, and role models). With respect to judicial ethics, existing virtue theories, including non-eudaimonistic ones, may be examined for the purpose of identifying the model of virtue best suited to the particular nature of the judicial profession. The aretaic (rather than deontological or consequentialist) perspective may enable legal scholarship to take a new path in the debate on the status and qualities of the judiciary, including the problems relating to judicial independence and the selection of candidates for judicial offices.

Keywords: virtue, virtue ethics, aretaic theory, judicial virtues, juristic virtues, virtue jurisprudence, judicial character

Language: English

Published: Number 2(20)/2019, pp. 51-62.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.51

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Legal Positivism Social Source Thesis and Metaphysical Grounding: Employing Metaphysical Grounding based on Metaphysical Laws

Mgr Szymon Mazurkiewicz

Jagiellonian University in Kraków

Abstract: The core of legal positivism is the so-called social source thesis, which claims that legal facts are determined only by social facts. I examine an interpretation of this thesis that uses metaphysical grounding as an exact relation between legal facts and social facts. I argue that the current interpretation of the social source thesis in terms of metaphysical grounding has significant drawbacks that stem from it being based on the view that metaphysical grounding is a primitive relation. For that reason, the current interpretation is unintelligible and poses problems with explaining the normativity of legal facts. I present two other views on metaphysical grounding: that it holds due to essences of facts and that it holds due to metaphysical laws. I apply the notion that metaphysical grounding holds due to metaphysical laws and argue that in the case of grounding of legal facts in social facts, this metaphysical law is constituted by instrumental rationality. It provides intelligibility to this grounding relation, is able to explain the normative character of legal facts, and is compatible with the general form of explanation.

Keywords: social source thesis, legal facts, metaphysical grounding, metaphysical laws, instrumental rationality

Language: English

Published: Number 2(20)/2019, pp. 5-19.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.5

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Dimensions of Legal Ethics in the Light of Paul Ricoeur’s ‘Petite Éthique’

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Krakow University

English abstract: The article investigates the multidimensional phenomenon of legal ethics, whose complexity justifies looking for adequate tools for its systematization in philosophy. An attempt is made to characterize a number of aspects of legal ethics in the perspective of Paul Ricoeur’s “little ethics” (French: la petite éthique). The concept makes it possible to order the reflection on the phenomenon of ethics in, among others, the teleological and deontological dimensions, as well as in the intrapersonal (i.e. within a person), interpersonal, and institutional (corporate) dimensions. The article also refers to the question of the textual dimension of legal ethics, including the co-conditioning of the substance of the codes of ethics and the personal “text of action” of a barrister, legal advisor, etc. This provides context for discussing the question of the dialectic of the prescriptive and descriptive aspects of codes of ethics on the basis of Ricoeur’s narratological considerations against a broader background of the dispute between cognitivism and noncognitivism.

Keywords: lawyers’ ethics, Paul Ricoeur, la petite éthique, teleological ethics, deontological ethics, narratology

Language: English

Published: Number 2(20)/2019, pp. 20-28.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.20

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Why Moral Norms Cannot be Reduced to Facts: On a Trilemma in Derivations of Moral “Ought” from “Is”

Prof. dr hab. Wojciech Załuski

Jagiellonian University in Kraków

Abstract: The paper aims at formulating a certain trilemma that applies to justifying moral norms. The trilemma can be succinctly stated as follows: any attempt to derive a “moral-ought-statement” from an “is-statement” with a justificatory goal (i.e. to justify the “moral-ought-statement”), even if it were successful in its “derivation” part (i.e. logically correct), would be unsuccessful in its “justificatory” part for one of the following three reasons: (1) it would consider each human action of which a factual statement can be made as morally obligatory, thus “justifying” a large number of implausible moral norms; or (2) it would presuppose a moral norm not derivable from facts; or (3) it would not explain why the distinction – made based on extra-moral criteria – between those factual statements about human actions from which moral norms can be derived and those from which they cannot be derived should count as morally relevant. The trilemma is illustrated in the paper by an analysis of Searle’s well-known attempt at deriving “ought” from “is”. Some further implications of the trilemma regarding the proper way of justifying moral norms are also examined.

Keywords: ought-statements, is-statements, logical derivation, ethical justification, Searle, Anscombe, naturalistic ethics, divine ethics

Language: English

Published: Number 2(20)/2019, pp. 63-74.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.63

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Against the Input View of Legal Gaps

Mgr Tomasz Zyglewicz

University of Warsaw

Abstract: The goal of this paper is to identify and criticize an intuitive way of thinking about gaps in the law, which I dub “the input view”. In this approach, legal gaps play the role of premises in legal reasoning in the sense that they trigger the application of, otherwise impermissible, methods of interpretation. The input view thus rests on a sharp distinction between the following two stages of legal interpretation: identification of a legal gap and filling it. The central motivation for embracing this view is to limit the scope of judicial discretion. I argue that the input view fails by its own lights by showing a class of cases in which it actually increases the scope of judicial discretion. My argument exploits the observation that, on any account of legal gaps available to the proponent of the input view, there will be cases in which a judge has discretion to say whether it involves a legal gap or not.

Keywords: legal gaps, discretion, the input view, judicial formalism

Language: English

Published: Number 2(20)/2019, pp. 75-88.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.75

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Paulus Vladimiri and His Forgotten Concept of the Just War

Prof. UŁ dr hab. Tomasz Tulejski

University of Łódź

Abstract: The theoretical reflection formulated in the neo-scholastic School of Salamanca has been regarded as the source of the contemporary concept of international relations: going beyond the paradigm of the time – determined, on the one hand, by the idea of the holy war and, on the other, by the doctrine of the just war – the Salamanca scholars laid down foundations for the edifice of modern international law. In this article the author argues that similar ideas preceding the reflection of the school of Salamanca, and often going even further, had appeared a hundred years earlier in the Cracow Academia in the context of a dispute between the Kingdom of Poland and the Teutonic Order. The culmination of this dispute was the Council of Constance. The Polish argument after the battle of Grunwald was based on law, and its unique feature was the return to the universalistic (Augustinian) nature of the just war. What is the most important element in Augustinian theology of war is Christianity’s universalism and recognition of moral equality of those engaged in military operations.

Keywords: just war, holy war, Paulus Vladimiri, international law

Language: English

Published: Number 2(20)/2019, pp. 39-50.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.39

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The Culture of Justification and Public Reason: Comments on the Motion of Members of the Polish Parliament to the Constitutional Tribunal

Prof. dr hab. Marek Smolak

Adam Mickiewicz University in Poznań

English abstract: The aim of the paper is to demonstrate how the culture of justification and the public reason can serve as legitimacy device in legal justifications. The idea of the culture of justification, proposed by David Dyzenhaus, makes an interesting contribution to the discussion on how to make headway with the problem of determining the limits of public authority. Applying Ron den Otter’ test of a reasonable sceptic, the author argues that the culture of justification becomes a good political and moral tool for limiting the exercise of public authority, if such a culture is understood and explained in light of the idea of public reason.

Keywords: culture of authority, culture of justification, public reason, test of a reasonable sceptic

Language: English

Published: Number 2(20)/2019, pp. 29-38.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.29

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The Rule of Law in Immanuel Kant’s Political Philosophy: Two Interpretations

Mgr Michał Wieczorkowski

Adam Mickiewicz University in Poznań

Abstrakt w języku polskim: The purpose of this article is to discuss Kant’s concept of juridical state as the foundation of the contemporary rule of law. Therefore, the article tries to answer two questions: (1) what character can be attributed to Kant’s concept of juridical state taking into account the obligations arising from it; (2) can the analysis of the Kantian juridical state have any impact on the contemporary understanding of the rule of law and if so, what can this impact be. In order to accomplish this task, moral presuppositions of Kant’s juridical state are discussed, according to the commonly accepted view that Kant’s political philosophy is closely linked with his moral and ethical reflection. Then, two interpretations of Kant’s juridical state – the liberal one and the authoritarian one – are analysed. The crucial difference between these interpretations lies in establishing the circumstances in which the duty of obedience to state power should be carried out. Then, Kantian juridical state is compared with two ways of understanding the rule of law – the material one and the formal one – in order to evaluate whether the rule of law should be considered as continuity of or rupture with the Kantian concept.

Keywords: Kant, juridical state, rule of law, liberalism, authoritarianism

Language: Polish

Published: Number 1(19)/2019, pp. 108-124

DOI: https://doi.org/10.36280/AFPiFS.2019.1.108

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Law as a Social Engineering Tool in the Legal Philosophy of Roscoe Pound

Mgr Aleksander Olaf Szpojankowski

Cardinal Wyszyński University in Warsaw

Abstract: The article discusses the subject of Roscoe Pound’s sociological jurisprudence with particular emphasis on the concept of social engineering, as well as the use of law as a tool through which the assumptions of this concept are implemented. The article also presents the key concepts of social engineering, specifically the theory of social interests, defined by R. Pound, and the theory of social development stages, which theories form the basis which enables the assumptions of social engineering to be implemented. The article also presents the sources of inspiration that R. Pound was guided by in the process of developing his theories. The concept of social engineering is compared to the theories of Leon Petrażycki, Alf Ross, and Karl Popper. The benefits and threats of social engineering are also indicated. The conclusions touch upon the subject of the topicality of R. Pound’s philosophy in the context of contemporary democracy and the potential threats to civil liberties that could flow from the implementation of the assumptions of R. Pound’s philosophy.

Keywords: sociological jurisprudence, Roscoe Pound, social engineering, social interest, American legal realism, legal realism

Language: Polish

Published: Number 1(19)/2019, pp. 94-107

DOI: https://doi.org/10.36280/AFPiFS.2019.1.94

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The Three Sources of Juriscentrism: Artur Kozak’s Philosophy of Law

Mgr Karol Staśkiewicz

University of Warsaw

Abstract: The main aim of this article is to reconstruct the theoretical project of the Polish legal philosopher Artur Kozak, while focusing on its core philosophical and sociological assumptions. In his writings A. Kozak laid the foundations for a unique philosophical standpoint called juriscentrism. Despite the sudden death of A. Kozak in 2009, with his flagship project left incomplete, juriscentrism still possesses great potential, mainly because of its innovative reception of Hans Lenk’s interpretationism, Herbert L.A. Hart’s internal point of view concept, and Peter Berger’s and Thomas Luckmann’s sociological theory. In the first section of this article I provide a general reconstruction of A. Kozak’s project, in accordance to his intentions which were laid down in his text entitled The Limits of Judicial Discretion (juriscentrism as a cultural fact and an ethical postulate), and afterwards, in the second section, I analyse the three important sources of this project to show what distinguishes juriscentrism from other concepts in the Polish legal theory and philosophy.

Keywords: juriscentrism, Artur Kozak, interpretationism, judicial discretion

Language: Polish

Published: Number 1(19)/2019, s. 79-93

DOI: https://doi.org/10.36280/AFPiFS.2019.1.79

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Number of downloads: 44