Articles

The Political in the Polish Analytical Legal Theory

Dr Michał Stambulski

University of Wrocław

Abstract: The article examines the concept of the political in the Polish analytical theory of law. This subject was not a direct object of considerations of the authors who worked in this vein. However, the legitimisation of the legal system, sources of law, and the interpretation of the constitution can be considered as problems related to the political. They give rise to the issues surrounding the political within the Polish analytical theory of law. When these problems are considered from the perspective of analytical theory, a vision of the desired society emerges. Frank admission to the problems of the political in analytical theory opens up a new field of research. However, this requires theoreticians of law to change the language they habitually use. Such an opening implies the need to introduce the language of political philosophy within the theory of law and to develop new criteria for validating theoretical statements.

Keywords: theory of law, the political, legitimacy, sources of law, constitutional interpretation

Language: Polish

Received: 25.06.2018
Accepted: 06.09.2018

Published: Number 3(18)/2018, pp. 64-73.

Normative Indication the Method of Taking into Account the Expiration of the Period of Limitation of Claims as a Choice motivated by Social Policy Considerations

Dr hab. Joanna Kuźmicka-Sulikowska

University of Wrocław

Abstract: The article presents an important aspect of the civil law limitation period of claims, namely whether – and if so, how – the expiration of the limitation period for a claim brought before a court is taken into consideration by the court. This issue is presented in such a way as to show the relationship between the motivation which the legislator is guided by – social
policy considerations – and its choice of the method of taking into account the expiration of the limitation period. The reflections start with a presentation of the subject matter, followed by an indication of the arguments presented in legal literature in support of each of the two competing ways of taking into account the expiration of the limitation period, that is, ex officio or only when the person against whom the claim is due raises an objection. This is done while demonstrating the connections between views in this area and the acceptance of socialist or liberal concepts. Against this background, there are shown changes in solutions in the discussed area related to unwanted social phenomena that appeared in the practice of the use of electronic enforcement procedure provided for by the Polish Code of Civil Procedure. The author also describes the construction, which is strongly motivated by social considerations (presented in the text), introduced by the Act of 13 April 2018 amending the Civil Code, which brings significant changes in the manner of taking into account the expiration of the period of limitation of claims, with the resulting particular dualism in this area of Polish civil law. Among other things, the text discusses the flexibility of the introduced regulation (e.g. stipulating as a rule for the court to take into account the expiration of limitation of claim claimed from the consumers, but with a possibility of departing from the rule). Furthermore, the assumptions indicated in the justification for the aforementioned Act are confronted with the possibility of achieving the desired state thanks to the wording of the provisions introduced by said Act.

Keywords: limitation of claims, social policy, manner of taking into account the expiration of the limitation period, consumer protection

Language: Polish

Received: 04.07.2018
Accepted: 25.08.2018

Published: Number 3(18)/2018, pp. 10-23.

Political Character of the Copyright on the Example of its Inconsistency with the Indigenous People’s Vision of the World

Mgr Mateusz Wojtanowski

University of Wrocław

Abstract: The article deals with an inconsistency between the indigenous vision of the world and copyright. The author refers to the category of the political as the proper one to reflect this friction. The work embraces influential intuition of Carl Schmitt on the relationship between politicality and conflict. The author assumes that what can be treated as an expression of political vision (i.e. as something which is not neutral) is political. This approach does not require direct link with the traditionally understood sphere of politics to discern the realm of political.

Keywords: indigenous people, copyright, the political, conflict

Language: Polish

Received: 13.06.2018
Accepted: 07.09.2018

Published: Number 3(18)/2018, pp. 86-96.

Republican Party of Minnesota v. White as a Step Towards Greater Politicisation of the Judicial Election in the USA?

Dr Jacek Srokosz

University of Opole

Abstract: The article presents the US Supreme Court judgment issued in 2002 in case Republican Party of Minnesota v. White, in which the Court held unconstitutional the clauses which introduced restrictions in presenting the candidates’ views on controversial legal and social issues during the judicial election campaign in Minnesota. The article discusses the essence of the judicial election, the limitations for the candidates during electoral campaigns, and the general dispute about how judges are selected in the US. Against this background, the facts of the case, the decisions of the courts of first and second instances and of the Supreme Court are presented, as well as Antonin Scalia’s argumentation justifying the ruling and the dissenting opinions. The author’s goal is to analyse the Supreme Court’s ruling in the context of its critics’ forecasts that it would result in politicisation of the judicial election process leading to a lowering of the authority of the judiciary and the emergence of doubts about the impartiality and independence of judges.

Keywords: judicial election, politicisation, Republican Party of Minnesota v. White, impartiality and independence of judges, accountability of judges, freedom of speech, electoral campaign

Language: Polish

Received: 13.06.2018
Accepted: 10.09.2018

Published: Number 3(18)/2018, pp. 51-63.

Legal Sciences and the Problem of the Political: The Perspective of Critical Jurisprudence

Dr Rafał Mańko

University of Amsterdam

Abstract: The growing interest in the connections between legal phenomena and the political (das Politische, le politique) justifies an analysis of the problem of the relationship of legal sciences towards the political. The article focuses on two juridical sub-disciplines: analytical legal theory and legal dogmatics, and the analysis is conducted from the perspective of critical jurisprudence, a juristic application of critical theory. Towards this end, first the concept of ‘the political’ is defined, along the lines of Chantal Mouffe, as a dimension of antagonism, which lies at the foundation of any society. The political, understood in this way, must be differentiated both from ‘politics’ and from ‘policies’. As far as analytical legal theory is concerned, the article claims that it is programmatically (yet tacitly) political, as it affirms the juridical form as such, abstracting from its concrete content. As far as legal dogmatics is concerned, the article claims, following Sawa Frydman, that the dogmatician, despite his declared apoliticality, when performing a doctrinal interpretation of law, makes in fact decisions which are not only interpretive, but also political ones, setting subsequent stages in the antagonistic struggles within society.

Keywords: legal science, the political, antagonism, analytical legal theory, legal dogmatics, critical legal theory

Language: Polish

Received: 13.06.2018
Accepted: 04.09.2018

Published: Number 3(18)/2018, pp. 38-50.

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Apoliticality in Jurisprudence. The Crisis of the Idea and the Phenomenon of Populism

Prof. dr hab. Adam Sulikowski

University of Wrocław

Abstract: The topic of the article is the current crisis of the idea of the apolitical nature of jurisprudence and the relationship between this crisis and the phenomenon of populism. In the first part of the study, the author puts forward a thesis on the post-theological and liberal character of the idea, reconstructing its genealogy. The next part discusses the impact of first-wave populism (1930s and 1940s) on the status of the title idea, focusing primarily on authoritarian – Nazi and Stalinist – populisms. In the next part, the author diagnoses the causes of the current crisis of the title idea after the period of its demo-liberal reappointment.

Keywords: apoliticality, jurisprudence, discourse, populism, crisis, post-theology, liberalism

Language: Polish

Received: 13.06.2018
Accepted: 17.08.2018

Published: Number 3(18)/2018, pp. 74-85.

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The Political Character of the (Theory of) Interpretation of Law. Stanley Fish’s Neo-pragmatist Perspective

Mgr Jakub Łakomy

University of Wrocław

Abstract: In this paper, I analyse the political character of the interpretation of law and the political nature of the theory of legal interpretation from Stanley Fish’s neo-pragmatist perspective. In the first part of the text, I define the concept of politics and the political, borrowing from Chantal Mouffe. I clearly distinguish between the political, politics, and policy; this article uses the first concept (the political). In the second part of the article, I characterize hermeneutic universalism as one of the approaches to the problem of legal interpretation.

In the third part, following the characteristics of the concepts of interpretive communities as defined by Stanley Fish, I draw conclusions about the political nature of the interpretation of law and the theory of the interpretation of law. In conclusion, I analyse the possibilities of building a theory of legal interpretation that internalises the inherently political character of knowledge by analyzing the concept of post-analytical philosophy proposed in literature by Andrzej Bator.

Keywords: jurisprudence, the political, neopragmatism, interpretive community, hermeneutic universalism, interpretation

Language: Polish

Received: 13.06.2018
Accepted: 13.08.2018

Published: Number 3(18)/2018, pp. 24-37.

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Scientific Conference ‘Application of Jarosław Mikołajewicz’s theoretical concept of intertemporality’, Poznań, 8 June 2018

Dr Paweł Kokot

Adam Mickiewicz University in Poznań

Language: Polish

Published: Number 2(17)/2018, pp. 123-124.

Liberal and Conservative Ideas in Ordoliberalist Thought

Michał Pawłowski

University of Warsaw

Abstract: This article presents the main characteristics of a group of German economists called ordoliberals. In the proposed economic solutions, they show strong inclinations towards liberal movements, however, many conservative ideas are visible, too. An assessment of the impact of these two currents is the main aim of this article. Following a discussion of ordoliberal ideas, they are investigated in detail in order to find the conservative and liberal elements. Scientific methods applied here involve comparing the s olutions to selected problems proposed by ordoliberals and by other orthodox conservative and liberal movements. The analysis leads to the conclusion that ordoliberals are much closer to conservatism than liberalism. It mostly results from their axiology and the foundations of their system. However, it is not ‘pure’ conservatism – liberalism also matters here, but from this point of view, it is only of secondary importance.

Keywords: ordoliberalism, spiritual crisis, order, liberty, market economy

Language: Polish

Received: 12.05.2017
Accepted: 27.07.2017

Published: Number 2(17)/2018, pp. 102-111.

Political, Moral or Criminal? Reflections on Guilt Based on Karl Jaspers’ Theory

Mgr Justyna Jezierska

University of Wrocław

Abstract: This article concerns guilt as a concept which lies at the intersection of law and philosophy. My reflections are founded on Karl Jaspers’ lectures entitled The Question of German Guilt. Jaspers distinguished four types of guilt: criminal, political, moral, and metaphysical. This distinction was made immediately after the Second World War, during the Nuremberg trials, when the problem of the German guilt was widely debated – both by the Allies, the victors, and in the German society. What is superimposed on this distinction is the issues of collective and individual guilt. A clear demarcation was intended (according to the philosopher himself) to clarify these issues and to come to the truth. My task in this text was to present Karl Jaspers’ guilt theory, to explain its ambiguous fragments, to challenge the objections against this theory, and to attempt to apply it to the Polish discussion about lustration.

Keywords: guilt, political responsibility, collective guilt, individual guilt, lustration, memory studies

Language: Polish

Received: 17.09.2017
Accepted: 10.10.2017

Published: Number 2(17)/2018, pp. 90-101.