Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

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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Number of downloads: 25

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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Number of downloads: 22

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: 18

Neil McCormick’s Theory of Legal Reasoning and Its Evolution

Mgr Michał Sopiński

University of Warsaw

Abstract: This paper traces, examines, and demonstrates Neil MacCormick’s theory of legal reasoning and its evolution. MacCormick’s views were shaped gradually so his theory could be divided into two main stages. Therefore, the use of the diachronic approach is justified. The aim of this paper is to analyse the difference between the theses of the theory of legal reasoning explained in Legal Reasoning and Legal Theory (1978) and general revisions to this theory marked in Rhetoric and the Rule of Law (2005). According to the author, the most important change in MacCormick’s theory of legal reasoning is an examination of the role of deductive reasoning in the process of judicial reasoning. This change leads to an extension of the logical aspects of MacCormick’s theory of legal reasoning (legal syllogism) to include rhetorical aspects (argumentative character of law) and ethical aspects (the idea of the rule of law). The evolution of the MacCormick’s theory of legal reasoning seems to be a model example of the changes in contemporary philosophy of law.

Keywords: legal reasoning, MacCormick, legal syllogism, rhetoric, rule of law

Language: Polish

Published: Number 1(19)/2019, pp. 63-78

DOI: https://doi.org/10.36280/AFPiFS.2019.1.63

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Number of downloads: 22

Polish Penal Law and Ethical Issues Relating to Transplantation

Prof. UŚ dr hab. Olga Sitarz

University of Silesia

Abstract: The purpose of this publication is to systematize the present ethical problems relating to transplantation and to confront them with penal legislation, from which norms prohibiting certain types of conduct with regard to transplantations may be derived. The starting point for the analysis is a consideration of the fundamental ethical values required both in the treatment process as such and in transplantation in particular (principle of respect for autonomy, nonmaleficence, benevolence, and justice). Therefore, the problem of admissibility of transplantology as such must be touched upon, along with its tenets and preconditions and, most importantly, with commercialization of the organs intended for transplantation. In the Polish legal system, transplantation is regulated by the 2005 Act on the Removal, Storage and Transplantation of Cells, Tissues and Organs. The Act is a specific Polish response to the doubts and dilemmas relating to transplantation. In this context, special significance attaches to the penal provisions which impose liability for transplantation-related crimes. It is noteworthy that criminalization of paid activities relating to transplantation has a rather complex and specific history. It follows from the evolving evaluation of the social harmfulness of prohibited acts, which in itself gives rise to certain controversies. There are also doubts as regards the object of protection of some crime definitions and the scope of criminalization.

Keywords: transplantation, organ trade, criminalization of commercialization of trade in organs

Language: Polish

Published: Number 1(19)/2019, pp. 51-62

DOI: https://doi.org/10.36280/AFPiFS.2019.1.51

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Number of downloads: 16

Legislative Materials in the Light of Polish and Spanish Law, Judicial Practice and Theoretical Literature

Mgr Paulina Konca

University of Silesia

Abstract: The purpose of the paper is to present a comparative analysis of the use of legislative materials in the process of statutory interpretation in Poland and Spain, by referring to statutes, theoretical literature and case law. The paper is divided into three parts. The first part shows that in difficult cases, when the text is not clear enough as an evidence of the legislator’s intention, other evidence should be sought, including the legislative materials. The second part delivers an analysis of the term ‘legislative materials’, followed by a study of particular examples of legislative materials, including bills and their justifications. It focuses especially on the issue of the Spanish exposiciones de motivos. Moreover, there is a reference to interpretative guidance contained in the legal regulations and to the ways in which legislative materials are used in case law. The third part of the paper responds, on the basis of Polish and Spanish theoretical literature, to some of the objections against the use of legislative materials, underlining its importance for the interpreting the law.

Keywords: legislative materials, legislative history, interpretation, intention, Spanish law, Polish law, ratio legis

Language: Polish

Published: Number 1(19)/2019, pp. 38-50

DOI: https://doi.org/10.36280/AFPiFS.2019.1.38

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Number of downloads: 11

Rights – Person – Death. Part II: Daniel Sperling’s Theory and the Polish Legal System

Maksymilian Hau, Stanisław Jędrczak

University of Warsaw

Abstract: This article is divided into two parts. In the first part, which was published in 2018, we presented arguments in support of the concept of posthumous interests. Posthumous interests are understood as events that constitute a benefit or a harm to the deceased person, who no longer exists. A right is the interest of a person, which is recognized and protected by law. In the second part, we examine the possibility of applying the theory of posthumous interests in the Polish legal system. We address the following issues: medical confidentiality, protection of medical data after the death of a patient, author’s moral rights, protection of the memory of the deceased, the law on orders and decorations, and the legal status of human corpses. The theoretical background for this article was the book by Daniel Sperling Posthumous Interest, in which the author outlined the problem in point from the perspective of the common law regime.

Keywords: death, person, interests of the deceased, human being, protection of the memory of the deceased

Language: Polish

Published: Number 1(19)/2019, pp. 27-37

DOI: https://doi.org/10.36280/AFPiFS.2019.1.27

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Number of downloads: 15

State of Emergency and State without a Name in Carl Schmitt’s Thought. Suggestion of a Separation

Mgr Wojciech Engelking

University of Warsaw

Abstract: The concept of a state of emergency is one of the most frequently cited elements of the thought of the German philosopher of the law and political theorist Carl Schmitt. In its discussions, however, the conceptualization of the state of emergency, which Schmitt proposed in 1924 in his juridical comments on Article 48 of the Weimar Republic’s constitution, is often linked with the theory of Ausnahmezustand from Political Theology (1922). Such a juxtaposition is a mistake, because Schmitt was not a consistent thinker and his texts can be mutually contradictory. I propose, therefore, to separate the state of emergency from Ausnahmezustand – translated from German literally as a state without a name. The main difference between them consists in the different types of legitimacy. The state of emergency from the Constitution of the Weimar Republic finds its legitimacy in this document from 1919, however, read by Schmitt in a way that in his Constitutional Theory (1928) he referred to as relativization of the constitution. For the state without a name, as not being included in the legal order and the equivalent of a miracle in theology, such legitimacy is impossible. In order to find it, one must refer to other Schmitt’s works than the strictly judicial ones. I believe that the state without a name may be legally valid – in a word: not a coup d’état – if we acknowledge that Schmitt’s political theology is not just a methodological project that translates theological notions into political and legal ones, but a wider proposal rooted in the faith in Revelation. Therefore, this figure from the work of the German thinker in which the state of emergency finds its legitimacy is taken from St. Paul’s letters; it is the figure of a katechon: the one who comes and stops the world from disintegration. The use of such legitimacy emphasizes the reluctance to accept modernity, which Schmitt did exhibit, and presents him as a thinker who continued the medieval way of thinking, which is completely incompatible with the strictly modern concept of a state of emergency.

Keywords: Carl Schmitt, state of emergency, state without a name, katechon, political theology

Language: Polish

Published: Number 1(19)/2019, pp. 15-26

DOI: https://doi.org/10.36280/AFPiFS.2019.1.15

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Number of downloads: 17

Application of the Transmission Easement Regulations as an Example of the ‘State of Exception’ Law

Dr hab. Arkadiusz Barut

University of Wroclaw

Abstract: The subject of the article is an analysis of civil courts’ case law in terms formulated by Giorgio Agamben and Judith Butler, that is, in terms of law as a ‘state of exception’, a purely arbitrary practice that appears to be a parody of law. The author indicates aspects of such ‘law’: the blurring of the boundaries between the law and purely factual activities (in Agamben’s terminology: ‘life’), which may take the form of violence that no longer cares for its legitimacy or which reduces the law to ‘pure form’, that is, the creation and application of rules completely in abstract from their ethical evaluation and social consequences. In Foucault’s terminology, both these processes can be represented as a rebirth of sovereignty in the field of governmentality, the parody of the law being justified by the needs of population management, but in reality it is the result of a power’s strive for self-preservation. There are, as Butler defines, petty sovereigns who allegedly only quasi-technically apply the law articulated in full in the statute, and in fact act fully arbitrarily. One of their methods is to simulate the creation or application of law by taking away a particular meaning from words, in particular from legal concepts. The result is a departure from the idea of separation of powers and the postulate of empowerment of the addressee of legal norms, sometimes preserving the fiction of the latter’s agency as a kind of Agamben’s ‘pure form of law’. The author states that an example of such a process is the case law of the Polish Supreme Court and general courts regarding the possibility of acquisitive prescription of transmission easement by transmission companies. He indicates that the position that won in this case law completely deviates from the contents of the statute and the well-established understanding of civil law concepts, with the result of depriving property owners of their legal rights.

Keywords: state of exception, Agamben, Butler, transmission easement

Language: Polish

Published: Number 1(19)/2019, pp. 5-14

DOI: https://doi.org/10.36280/AFPiFS.2019.1.5

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Number of downloads: 20

Affirmative amnesia and conservative crits. Some remarks on the condition of critical legal thought in Central and Eastern Europe

Prof. dr hab. Adam Sulikowski

University of Wrocław

Abstract: The purpose of this article is to analyze the causes and effects of two phenomena, which can be considered as characteristic of the critical legal discourse in Central and Eastern Europe. The first phenomenon is sometimes termed as „affirmative amnesia”. It consists of the abandonment of critical methodology by legal scholars who have dealt with the Marxist critique of the neoliberal law for the major period of their careers. The author tries to diagnose the cause of this phenomenon. The second of these trends lies in the fact that the critical tools that are used on the West mostly by left-wing thinkers, in Central and Eastern Europe are applied by conservative rightists.

Keywords: affirmative amnesia, critical legal thought, conservatism

Language: Polish

Published: Number 1(8)/2014, pp. 77-87

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Number of downloads: 29