Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

Legal Reasoning as Practical Reasoning in John M. Finnis’ New Natural Law Theory

Mgr Michał Sopiński

University of Warsaw

English abstract: This paper presents practical reasoning in the light of John M. Finnis’ new natural law theory. Finnis’ views were shaped by Aquinas’ thoughts on natural law but he was also strongly inspired by Germain Grisez’ new approach, so his theory could be named a new natural law theory. The aim of this paper is to analyse the concept of legal reasoning as practical reasoning, which Finnis intended mainly as a strong critique of Ronald Dworkin’s theory of legal reasoning based on the concept of the one right answer. According to the author of this paper, Finnis’ critical approach to Dworkin leads to a gradual extension of the former’s concept of legal reasoning to include positivistic aspects (rapprochement with Joseph Raz’ views) and institutional aspects (rapprochement with Neil MacCormick’s views). Therefore, Finnis’ theory of legal reasoning seems to be a model example of the rapprochement between natural law and legal positivism in contemporary philosophy of law.

Keywords: John M. Finnis, natural law, legal reasoning, practical reasoning, Ronald Dworkin, one right answer

Language: Polish

Published: Number 1(21)/2020, pp. 84-98.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.84

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Narrativity of Legal Language in Law-Making Processes

Dr Paweł Skuczyński

University of Warsaw

English abstract: The paper concerns the relation between argumentative and narrative features of legal texts and the question whether legal texts can be perceived as narrative texts. A narrative text is understood as transferring a story to the recipient through a given medium. The story, being the content of a narrative text, constitutes a specific way of manifesting the plot. The latter is a sort of internal logic of the story. The very same plot might be told in many different ways. Hence, the narrative text does not depict events directly, but through a story that requires a storytelling agent – the narrator. Certainly, there are different kinds of narrators, who can be more or less exposed within the text. In consequence, there are at least five positions concerning the relation between argumentation and narration in law: 1) sceptic – narration is a negation of the reasonableness of law; 2) narration is a structure of presentation of facts; 3) narration is a means of rhetoric persuasion; 4) narration is a meta-argumentative structure; 5) narration is a subject of critical analysis as it reveals the identity of an author. The theory of narration is applied to a particular problem of participation of professional self-governments in law-making.

Keywords: legal narrative, legal argumentation, legal language, law-making, professional self-governments

Language: Polish

Published: Number 1(22)/2020, pp. 66-83.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.66

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David DeGrazia on Animal Rights: A Critical Analysis

Dr Michał Pełka

University of Warsaw

English abstract: The article aims to critically discuss the theory of animal rights developed by American social philosopher David DeGrazia. It consists of two parts. The first one describes the main elements of DeGrazia’s approach, namely his views on animal minds, the principle of equal consideration, the idea of unequal moral status, the concept of border persons, and practical remarks concerning improving the treatment of animals by humans. The second part presents remarks about the points where DeGrazia’s proposals should be supplemented and corrected so as to make them more convincing and widely accepted. The conclusion of the essay is the proposal of a cultural revolution for the benefit of animals, which should be initiated by famous people, like actresses, actors, sportswomen and sportsmen, because of their influential position in contemporary societies.

Keywords: border persons, animal rights, cultural revolution, moral status, equal consideration principle, David DeGrazia

Language: Polish

Published: Number 1(22)/2020, pp. 52-65.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.52

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Lord Patrick Devlin’s Concept of Public Morality in the Light of Case Law of the European Court of Human Rights

Mgr Kamil Jesiołowski

University of Business and Administration in Gdynia

English abstract: The aim of this article is to present the case law of the European Court of Human Rights (ECtHR), in cases concerning public morality, in the context of one of the most important debates in 20th century legal philosophy: the dispute between Patrick Devlin and Herbert L.A. Hart. In order to achieve this aim, I first describe the key theses defended by these scholars and explain the historical circumstances in which the debate arose. Then I analyse the most salient judgements passed by the ECtHR, which defined rules of the acceptable limitation of individual rights guaranteed by the European Human Rights Convention due to the moral norms existing in a society. I conclude that the reasoning adopted by the ECtHR in these cases resembles Devlin’s propositions to some extent. Furthermore, I claim that a reference to inherent and inalienable human dignity might be considered a sound solution in some doubtful cases in which moral problems or rights restrictions appear. Finally, I show that legal moralism, as a vein in the philosophy of law, has its adherents in contemporary science, too. However, the views presented by new legal moralists fundamentally differ from those postulated by Patrick Devlin in his time.

Keywords: Devlin, Hart, legal moralism, ECtHR judgments

Language: Polish

Published: Number 1(22)/2020, pp. 37-51.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.37

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Identification of Procedural Acts Performed at the Trial: Considerations in the Context of the Actual Utterances of Non-professional Participants of Court Proceedings

Dr Karolina Gmerek

University of Szczecin

English abstract: The empirical research of the communication process at the trials which were held in common courts indicated, in particular, that the utterances of trial participants, despite their varied verbal forms, were identified as procedural acts. In addition, these verbal forms were often significantly different from the explicit forms where proper legal terms were used. The aforementioned results of the analysis lead the author to pose the following question: what thought processes (mechanisms) allow for the identification of procedural acts based on the utterances which are not explicit for the performance of these acts. The aim of this paper is to describe these types of mechanisms. The utterances of participants of a trial illustrate the issues taken into consideration in this paper.

Keywords: conventional acts, procedural acts, identification of procedural acts, trial, interpretation of procedural statements

Language: Polish

Published: Number 1(22)/2020, pp. 21-36.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.21

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Worldview Controversies in a Workplace: Comments from the Theory of Law Perspective on the Cracow IKEA Employee Case

Dr Wojciech Ciszewski

Jagiellonian University

English abstract: The point of departure of my paper is the case of the IKEA employee who lost his job for criticizing the workplace policy followed by his employer. In the paper I analyse two possible versions of the objection discrimination on the ground of belief that can be raised with respect to the employer’s decision. In my opinion neither of these two versions can withstand scrutiny. Regarding the first of these versions – the allegation of belief harassment – I claim that the employer’s action should not be recognized as a form of belief harassment. The criteria that I propose in the paper suggest that the ‘Inclusion of LGBT+…’ regulation was a permissible workplace policy, within the scope of the employer’s authority. Regarding the second version of the allegation of discrimination – the lack of respect for special needs resulting from beliefs – I argue that in this situation the employer was under no obligation to accommodate the employee’s needs resulting from his beliefs. In the light of the criteria formulated in the paper, the employee’s claim for accommodation was weak and it could be overweighed even by a relatively small burden on the employer’s part.

Keywords: principle of nondiscrimination, freedom of religion, freedom of speech, workplace harassment, cultural exemptions

Language: Polish

Published: Number 1(22)/2020, pp. 5-20.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.5

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Collaborative Law: Legal Practice Based on Cooperation

Dr hab. Adam Zienkiewicz

University of Warmia and Mazury in Olsztyn

English abstract: The main aim of the paper is to characterize the assumptions of the original legal practice based on cooperation, usually referred to as collaborative law. In order to achieve this goal, the author considers the following issues: 1) the essence, principles and limitations of collaborative law; 2) selected features of collaborative practice; 3) the main differences and similarities between collaborative law and mediation. The conclusion of the article identifies the preferred competences of lawyers who practice collaborative law, the main advantages of such practice, and the important ethical issues (including dilemmas) that may arise during collaborative lawyering.

Keywords: collaborative law, collaborative practice, alternative dispute resolution

Language: Polish

Published: Number 1(22)/2020, pp. 111-120.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.111

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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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Number of downloads: 23