Language: Polish
Published: Number 4(33)/2022, pp. 98-99
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Number of downloads: 55
Reflections on the Dynamism and Deliberativeness in the Interpretation of Law on the Example of Cases Concerning LGBTQ+ Rights
Prof. UŁ dr hab. Bartosz Wojciechowski
University of Łódź
English abstract: The article illustrates the numerous contexts and the multifaceted nature of the LGBTQ+ persons’ rights to citizenship, to have a correct civil status record, or to benefit from tax reductions or exemptions of on the same terms as other citizens, e.g., those in heterosexual unions. It shows how complicated it has become to adjudicate on matters that, in view of the subject-matter of regulation, should be relatively clear and predictable. Reflective interpretation of law makes it possible to take into account its non-eliminable changeability, as well as the fluidity of meaning of terms and phrases used in legal texts – factors which oblige the interpreter to refer to extra-linguistic contexts of interpretation, i.e., to functional and systemic arguments. The author considers that it is not possible to reach an adequate understanding of the current legal context without analysing the social and cultural context, especially when
considering pluralism of values as the modus vivendi of a democratic society.
Keywords: deliberativeness, LGBTQ+, fundamental rights, identity, hard cases, interpretation of law
Language: Polish
Published: Number 4(33)/2022, pp. 21-38
DOI: https://doi.org/10.36280/AFPiFS.2022.4.21
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Number of downloads: 61
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Epistemology of Application of Law and the Principle of Democratic Rule of Law
Dr Tomasz Raburski
Adam Mickiewicz University in Poznań
English abstract: The paper analyses the institutional epistemology of the process of application of law in Poland. The concept of institutional epistemology is understood as a set of features, epistemic aims, values, and practices, which are intrinsic to the institutional structures. Two aspects of such an institutional epistemology are covered: the positivistic model of cognition and the concept of truth embedded in the judicial practices and legal norms. The philosophical and historical origins of these features are outlined. It is argued that they should be considered relics of previous socio-political system and obsolete philosophies of science, and, in consequence, they do not meet the standards of the constitutional principle of the democratic rule-of-law state (Polish demokratyczne państwo prawne). Evolution towards more deliberative forms of institutional epistemology is advocated.
Keywords: application of law, epistemology of law, truth, legal positivism, neopositivism, deliberative democracy
Language: Polish
Published: Number 4(33)/2022, pp. 39-51
DOI: https://doi.org/10.36280/AFPiFS.2022.4.39
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Number of downloads: 50
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Philosophy of Right for Lay Judges. Hegel’s and Fichte’s Perspective
Prof. dr hab. Ewa Nowak
Adam Mickiewicz University in Poznań
English abstract: The article, following an outline of the historical context, designs a normative justification of citizens’ participation in the public administration of justice on the basis of the philosophy of right of Georg W.F. Hegel and Johann G. Fichte. Their complementary philosophies of right provide solid foundations for a modern philosophy of right for lay judges (also called honorary judges). It is further argued that Hegel’s concept of the honorary judge as a subject who realizes their right to political and legal self-awareness and is integral to the administration of justice has greater and more topical potential than its equivalent in Fichte’s writings. Fichtean honorary judges act outside the legal framework, by virtue of a civic contract on reciprocal judicial support in emergency. All inquiries, documented with sources, due to the novelty of the issue, lead to the following conclusions: 1) lay judges’ activism according to Fichte “invalidates” a wrongful, defective or unjust law. In this way Fichte anticipates Radbruch’s Formula; 2) Hegelian honorary judges have impact on the real transformation of modern, atomistic society of idiotes (individuals with private interests) into a society of polites (as in the ancient Greek politeia or Roman res publica), transform institutions into public bodies in the strong sense of this term; finally, they prevent the alienation of society and law.
Keywords: participatory judiciary, lay judge, honorary judge, Hegel, Fichte, Radbruch, political transformation of society and public institutions, alienation of law and society
Language: Polish
Published: Number 4(33)/2022, pp. 52-69
DOI: https://doi.org/10.36280/AFPiFS.2022.4.52
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Number of downloads: 38
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Remarks on Lay Judges in Polish Criminal Process Passing Moral Judgements
Dr Paweł Mazur
Adam Mickiewicz University in Poznań
English abstract: The article addresses the issue of the participation of lay judges in passing moral judgements during the stage of adjudication. It attempts to realize the postulate of external integration of jurisprudence by combining the achievements of legal studies and moral philosophy as well as public philosophy in research work.
The basic theses of the article are as follows: lay judges-citizens have the moral competence to pass moral judgements during the process of adjudication. There is no reason to consider a professional judge better prepared to pass moral judgements than a lay one. A broadening of the court panels to include citizens can be seen as a remedy for issues such as: conformism, ignorance, intellectual errors in the judicial discourse. Furthermore, citizens are capable of supplementing the judicial process of application of law with Aristotelian category of reasonableness. The article presents also the threats resulting from lay judges’ participation in the process of passing morel assessments in the criminal process.
Keywords: moral competence, professional judges, lay judges, moral reasoning
Language: Polish
Published: Number 4(33)/2022, pp. 86-97
DOI: https://doi.org/10.36280/AFPiFS.2022.4.86
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Number of downloads: 35
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The Principle of Citizens’ Participation in Criminal Trials and Legitimization of the Justice System
Prof. UAM dr hab. Barbara Janusz-Pohl
Adam Mickiewicz University in Poznań
English abstract: This article deals with the principle of social factor participation in criminal proceedings. In particular, the directival approach to this principle is emphasized, and in that sense, the article seeks to argue about its interpretative role in interpreting the provisions of the Code of Criminal Procedure (CCP). The analysis covers subjective, substantive and temporal scope of the principle of social participation in criminal proceedings. First of all, the concept of sensu stricto, sensu largo and sensu largissimo approaches to the principle of social participation in the criminal trial are distinguished. However, the sensu stricto perspective includes the exercising by citizens of a judicial function in trials, currently carried out in ordinary courts in the form of the participation of lay judges in the panel; the sensu largo approach also includes the implementation of other procedural roles by citizens than the judicial function, while the sensu largissimo aspect approach incorporates participation of non-individualized citizens as audience of the court hearings, as well as implementation of the denunciation function in the criminal trial. The detailed considerations concern implementation of the judicial function. In this respect, Article 28 of the CCP is interpreted, the main research question being whether the participation of the social factor in criminal proceedings under the law in force authorizes the criminal justice system.
Keywords: citizens’ participation in criminal justice, deliberative democracy, principle of social participation, criminal process and citizens
Language: Polish
Published: Number 4(33)/2022, pp. 70-85
DOI: https://doi.org/10.36280/AFPiFS.2022.4.70
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Number of downloads: 28
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Deliberative Philosophy of Administrative Sciences
Prof. UAM dr hab. Karolina M. Cern
Adam Mickiewicz University in Poznań
English abstract: This article formulates the thesis that research is needed in the field of deliberative philosophy of administrative sciences. First of all, three general premises for the formulation of this thesis are indicated, namely: 1) the principle of sovereignty, understood in deliberative democracy as co-original with the rule of law; 2) a deliberative public philosophy which, from a contextual and particularistic point of view, considers the addressee of law as a full participant in the debate on law; and 3) the abstract principle of autonomy of will, according to which the addressee of law should also be able to understand themselves as an author of law. In the following steps, these general premises are analysed in the context of the triad of administrative sciences in order to provide more detail and context for the main thesis.
Keywords: administrative sciences, deliberative democracy, co-originarity of the rule of law and the principle of sovereignty, deliberative public philosophy, public rights
Language: Polish
Published: Number 4(33)/2022, pp. 6-20
DOI: https://doi.org/10.36280/AFPiFS.2022.4.6
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Number of downloads: 47
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Judicial Disobedience, Justice Lemuel Shaw and Commonwealth v. Aves
Prof. dr hab. Jerzy Zajadło
University of Gdańsk
English abstract: The main purpose of this paper is the analysis of the notion “judicial disobedience”. The author describes two aspects (individual and institutional) and compare them with civil disobedience. The problem is presented in a paradigmatic manner upon the example of case law of American courts relating to slavery in the period of half of the century preceding the outbreak of the Civil War. Based on this, the author constructs a typology assuming four possible opinions of an adjudicating judge based on provisions of law, which are contrary to the judge’s conscience and morality.
In this paper the problem is described upon the example of Justice Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court from 1830 to 1860. However special attention is paid to his judgment in case Commonwealth v. Aves., but his another verdicts have been mentioned as well.
Keywords: judicial disobedience, slavery, American courts, Lemuel Shaw, Commonwealth v. Aves
Language: English
Published: Number 3(32)/2022, pp. 103-113
DOI: https://doi.org/10.36280/AFPiFS.2022.3.103
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Number of downloads: 43
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Maurice Hauriou’s Theory of the Institution: Legal Institutionalism and the Science of the State
Mgr Cezary Węgliński
University of Warsaw
English abstract: The aim of this paper aims is to reconstruct the original context, the characteristics and the main assumptions of M. Hauriou’s theory of the institution as one of the most coherent and comprehensive examples of legal institutionalism. By means of critical source analysis, the paper presents the basic elements of the notion of the institution together with its ontological and epistemological assumptions concerning both the very concept of law and legal methodology. The second part of the paper presents the critical approach expressed in Hauriou’s theory towards some core concepts of public and constitutional law by opposition to traditional, normativist and positivist approaches to constitutionalism. Hauriou’s work, despite its importance as indirect inspiration for contemporary doctrines of constitutional pluralism, is nowadays barely present in European legal science discourse. The last part of the paper is therefore dedicated to some closing remarks on current relevance of the theory of the institution with particular focus on the challenges of increasing pluralism of legal orders.
Keywords: legal institutionalism, theory of the institution, Maurice Hauriou, constitutional pluralism, supra-constitutionality, legal theory, sociology of law
Language: English
Published: Number 3(32)/2022, pp. 88-102
DOI: https://doi.org/10.36280/AFPiFS.2022.3.88
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Number of downloads: 42
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John Gray’s Tree-Part Philosophical Creed
Prof. dr hab. Beata Polanowska-Sygulska
Jagiellonian University in Kraków
English abstract: John Gray’s three controversial, widely discussed books, Straw Dogs: Thoughts on Humans and Other Animals (2002), The Silence of Animals: On Progress and Other Myths (2013) and The Soul of the Marionette: A Short Inquiry into Human Freedom (2015), create a natural trilogy. They all have a similar structure, consisting of a kaleidoscope of ideas, digressions, associations and recurring motifs. This article provides a brief analysis and a thorough critique of this trilogy. The strong and the weak points of the most recent volume are emphasized. A number of objections, reservations and doubts concerning the ideas presented in the three books are formulated. Critical arguments relating to, among other things, Gray’s inconsistent statements on the phenomenon of tragedy, the sources of humanism and its respect for the truth, the issue of freedom and the author’s alleged rejection of traditional morality are put forward.
Keywords: humanism, liberalism, morality, freedom, progress, truth
Language: English
Published: Number 3(32)/2022, pp. 72-87
DOI: https://doi.org/10.36280/AFPiFS.2022.3.72
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Number of downloads: 39
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