Journal of the Polish Section of IVR (ISSN:2082-3304)
Language: English
Published: Number 2(27)/2021, pp. 123-124.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.123
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English abstract: The paper has three sub-topics: legal knowledge, legal norms, and evolutionary systems. The three are interconnected. A reflection on the nature of legal knowledge throws light on the nature of legal norms. Legal knowledge is largely a posteriori and it is so because norms are largely contingent. Being a realm of continual change, law has novelty as a fundamental feature. The process of legal change is not driven by chance but by the attempt to face ever new problems and changing circumstances. This supports a view of legal systems as adaptive and evolutionary, as classical pragmatism suggested. However, inference can give some a priori legal knowledge.
Keywords: inference, legal knowledge, legal norms, novelty, pragmatism
Language: English
Published: Number 2(27)/2021, pp. 108-122.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.108
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Number of downloads: 41
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English abstract: Michael Moore defends an account of scientific, mental, moral, and legal properties, according to which there are not only natural kinds, but also moral and functional kinds; and he maintains, more specifically that: 1) distinctively legal phenomena, such as legal rights, precedent, malice, etc. are functional kinds, in the sense that they have a nature that consists in the function they fulfill in law, 2) the function of a functional kind is that effect, or those effects, of the functional kind that causally contribute more than does any of its other effects to the goal of the larger system within which it occurs, and 3) functional kinds can be reduced to indefinitely large disjunctions of natural properties, 4) the relevant version of naturalism is metaphysically reductionist naturalism, and 5) functional kinds play an indispensable role in the explanation of human behaviour.
I argue, however, 1) that the method for determining the function of a (purported) functional kind proposed by Moore is too indeterminate to be able to pin down the function. I also argue 2) that it turns out to be very difficult to identify the properties that are part of the indefinitely large disjunction of natural properties which, on Moore’s analysis, is identical to a functional kind, 3) that functional kinds cannot be part of the best explanation of human behaviour, because they lack nomological unity, and that they lack such unity because they are necessarily multiply realizable, and 4) that Moore will therefore have to give up: a) the view that functional kinds are identical to indefinitely large disjunctions of natural properties, b) the view that functional kinds are part of the best explanation of human behaviour, or both (a and b). I also argue 5) that the idea of a functional kind should not play a central role in any theory of law or legal reasoning.
Keywords: functional kinds, naturalism, realism, conventionalism, causal theory of meaning, nihilism, skepticism
Language: English
Published: Number 2(27)/2021, pp. 83-107.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.83
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Number of downloads: 38
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English abstract: Animal protection as an emerging field of legislation needs to be constitutionalized as well as comprehensively expounded by legal scholars. As it is a growing body of regulation and accompanying legal theories, it needs to develop a solid conceptual and axiological framework, in particular a set of basic values and principles on which detailed rules are to be founded. Lacking these, the domain of animal law is still in the pre-paradigm stage and remains an assemblage of dispersed ideas, concepts and regulatory measures. It yet has to develop into a coherent whole that may grow to be a mature regulatory and doctrinal domain of the law. In order to reach this stage, it should be founded on clear theoretical and constitutional grounds. Lacking those, its further development, and effective operation may be seriously impeded. There seem to be two basic approaches that may serve as the possible foundations for a viable model of animal protection law. The first may be referred to as the “dignity” approach and the other, as the “sentientist” approach. According to the first of those two approaches, animal protection law should rely on the concept of animal dignity as its philosophical foundation. The second approach rejects the idea that the concept of animal dignity as the basis for the relevant legislation as philosophically dubious and entailing objectionable normative consequences for the scope and content of legal protections of animals. Thus, it aims rather at legal norms and policies being based directly on scientifically informed theories of sentience, evolutionarily developed nervous structures underlying cognitive and emotional capabilities or species-typical biological and psychological needs that condition the subjective well-being of a given creature. The aim of this paper is to analyse and discuss both these approaches and to argue that the former is philosophically, conceptually and practically flawed. The second approach, even despite some serious disadvantages, is therefore deemed to be preferable and more promising.
Keywords: animals, dignity, rights, law, constitution, ethics
Language: English
Published: Number 2(27)/2021, pp. 69-82.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.69
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Number of downloads: 40
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English abstract: A relevant problem in political philosophy and political theory is the distinction between political and utopian arguments. The boundary between these two types of argumentation may be blurred, which leads us to the point when we often deal with contaminations of both ways of thinking in individual positions. This involves, for example, presenting a utopian argument as a political argument and vice versa. The main purpose of the article is to organize these issues by applying the argumentation model developed by Stephen Toulmin to the analysis of both theoretical approaches. The three main problems of this work are: 1) the distinction between political and ethical arguments; 2) identifying the proper structure of political argumentation; 3) evaluation of the coherence of the idea of a realistic utopia (proposed by John Rawls).
Keywords: political philosophy, theory of argumentation, Toulmin’s model, utopia, John Rawls, realistic utopia
Language: English
Published: Number 2(27)/2021, pp. 54-68.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.54
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Number of downloads: 35
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English abstract: The article deals with justification of generally binding legal acts as part of a state governed by the rule of law. The “state of exception” caused by the COVID-19 pandemic adds a new dimension to the issue of justification. The practice prevailing in the Czech Republic in 2020 did not reflect even the minimum requirements for justifying emergency measures, which brought on problems both in the practical application of the adopted measures and in their subsequent judicial review. The article attempts to find an appropriate level of justification, referred to as the threshold of justification and based on the coherentist theory of epistemic justification. The basis of such justification lies in the idea that individual grounds for justification can be found in the explanatory reports of the legislation, on the one hand, and in various pieces of relevant information available to the addressees, on the other hand. All these reasons should form a coherent whole and they should ultimately legitimize restrictions on the freedom of individuals. The final part of the article describes the importance of the threshold of justification for the review of proportionality and even reasonableness of the law.
Keywords: public justification, public reason, coherentism, theory of rational law-making, state of exception, proportionality, reasonableness of the law
Language: English
Published: Number 2(27)/2021, pp. 41-53.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.41
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Number of downloads: 35
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English abstract: The development of modern civilization associated with the digital revolution poses entirely new challenges in terms of ethics for public administration. Whereas practical ethical instruments in the form of codes of best practice have already been developed for the profession of a lawyer or a doctor, the internal diversification of the profession of a public official (public authority officials, territorial self-government officials) as well as the transformation of public administration have not been conducive to the development of appropriate ethical standards. The author aims at providing an answer to the following question: on which axiological foundation should the code of a public official be based? On the one hand, historical background seems to be providing a definite answer, on the other, however, current depreciation of the profession of a public official as well as technological progress shed a new light on ethical reflections.
Models used in public administration until now, i.e. the model of ideal bureaucracy, the accountability model, and the new public manager model, have not proven to be effective. Nevertheless, according to the author, the organizational culture within the frame of the good governance model constitutes a unique solution which can prove successful in public administration. At this point, the process of restitution of public officials’ ethos can be a relevant factor. It is so especially due to the fact that public officials’ ethos embodies a development area for educating professional public officials and constitutes a premise for a good functioning of public administration at the same time.
Enumerating the drivers of growth for the public officials’ ethos in connection with a unique idea of the code of best practice based on the triad of integrity, benevolence, and accountability constitutes an axiological suggestion which is noteworthy for the deontology of the profession of a public official.
Keywords: ethics, public administration, ethos, axiology, values, good governance
Language: English
Published: Number 2(27)/2021, pp. 26-40.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.26
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Number of downloads: 41
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English abstract: This paper analyses Robert Alexy’s explicative-existential justification of human rights. The author identifies several problems that are associated with it. An analysis of Alexy’s explicative argument suggests that it cannot cope with the transition from facts to norms. Notably, this argument does not explain why its requirements cannot be overruled by some other moral reason (for example, the utility principle). The answer that Alexy offers in his existential argument is not considered sufficient by the author of this paper. Although this argument complements the necessary normative premises, the existential decision preferred by Alexy is not the only one necessary. It can be admitted that for many people such a decision is attractive. However, even if we accept that explicative-existential justification is credible in some context, it is correct to apply it only to the rights of persons and not to the rights of human beings. In the final part, the author shows that the claim that this theory can justify even the rights of human beings who are not persons is indefensible.
Keywords: human rights, justification, explicative-existential justification, is-ought problem, universality of human rights
Language: English
Published: Number 2(27)/2021, pp. 5-15.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.5
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Number of downloads: 35
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English abstract: The paper presents some preliminary results of a philosophical analysis of the concept of legal responsibility, including its nature and types. It draws upon Anglo-American metaethical discussions of moral responsibility, which have abounded in philosophy after Peter F. Strawson’s landmark paper Freedom and Resentment. The author reconstructs two views on the nature of moral responsibility, the Strawsonian view and the ledger view (coming from Michael J. Zimmerman) and applies them to the concept of legal responsibility. The result is a distinction between two types of legal responsibility: attributability and accountability, which are characterized in the paper, which is an introduction to further research on legal responsibility (or liability) and its conditions.
Keywords: legal responsibility, legal liability, attributability, accountability, reactive attitudes
Language: English
Published: Number 2(27)/2021, pp. 16-25.
DOI: https://doi.org/10.36280/AFPiFS.2021.2.16
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Number of downloads: 45
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English abstract: The text considers why certain types of close relationships are “invisible” in the legal system. Visibility can mean public recognition, status recognition, social acceptance. What is “visible to the law” is the closeness that the law recognizes, accepts, supports, and with which it links certain obligations and rights, e.g. marriage. However, the main subject of this study will be those close relationships that are invisible in the legal system (obscurus). Two people, remaining in an actually close relationship, may not be recognized as such in the legal system. The purpose of this paper is to understand why these kinds of differences arise between law and life, and, more specifically, what the “invisibility” of individual close relationships in the legal system results from. In my reflection, I will use references to the film Call Me by Your Name.
Keywords: close relationships, law and emotions, the attitudes of the legislator
Language: Polish
Published: Number 1(26)/2021, pp. 112-127.
DOI: https://doi.org/10.36280/AFPiFS.2021.1.112
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Number of downloads: 62