Articles – Page 10

Separate and Dissenting Judicial Opinions and Their Significance for a Democratic Society. Reflections Against the Background of Polish Law

Joanna Misztal-Konecka

John Paul II Catholic University of Lublin, Poland

English abstract: In most legal systems, the administration of justice in complex and difficult cases is, entrusted to panels composed of multiple judges. In practice, rarely does it happen that this designated group of judges is required to reach a unanimous decision. The subject under scrutiny in the article is the issue of the possibility and significance of disclosing the fact that the judgment was not reached unanimously, along with the rationale that the judge(s) pursued in opposing the majority position. The analysis of this issue requires reaching not only for the legal dogmatic method, but also the legal comparative and axiological methods. The presented research leads to the conclusion that legislators (although not in all countries and not in all international organizations) are increasingly open to allow for the disclosure to the parties and the public of the fact that not all judges voted for a particular decision, along with the reasons for the dissenting position. Despite several objections to the institution of dissenting opinion (votum separatum) connected with undermining the authority of the court and the judgment issued, it turns out that democratic society, which values transparency and the power of substantive arguments, approves of this institution. Dissenting opinion safeguards the judge’s right to express their view, as well as the right of the parties and the public to know the reasons for an alternative solution, including their creative use for the benefit of the judiciary and legal science. Consequently, one can claim that dissenting opinions and the reasons for them constitute a crucial factor in shaping the perceptions of justice.

Keywords: dissenting opinion, democratic society, administration of justice, authority of judicial decisions, justification of the acts of applying the law

Language: English

Published: Number 2(35)/2023, pp. 43-52.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.43

Download: Download
Number of downloads: 289

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Should Judges Be Empathic? The Place of Judges’ Empathy in Therapeutic Jurisprudence

Katarzyna Rużyczka

Jagiellonian University in Kraków, Poland

English abstract: Therapeutic jurisprudence (TJ) has had a influence on the judiciary and legal practice given the emergence of special courts, the so-called problem-solving courts. As understood by David B. Wexler, TJ is an approach that combines experience from many scientific fields, constituting an interdisciplinary field of research that focuses on the therapeutic and antitherapeutic consequences of laws, legal procedures, and the roles and behaviours of legal actors such as lawyers and judges. The role that they play during a trial is particularly emphasized
in this theory in the context of causing both positive and negative consequences for those participating in the trial. The first purpose of this paper is to reconstruct the understanding of empathy and its role in the therapeutic jurisprudence, and to show how the concept of empathy is understood in the context of a judge’s work, particularly in relation to main TJ authors, David B. Wexler and Bruce J. Winick.

Keywords: judicial empathy, therapeutic jurisprudence, judges, empathy

Language: English

Published: Number 3(35)/2023, pp. 53-64.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.53

Download: Download
Number of downloads: 399

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Ascription of Content to Provisions of the Law by Judicial Practice. Theoretical Analysis of the Polish Constitutional Tribunal’s Judgments

Wojciech Rzepiński

Adam Mickiewicz University in Poznań, Poland

English abstract: The article examines the way in which the Polish Constitutional Tribunal operates, which involves replacing its own process of interpreting the provisions under review by accepting the interpretation of another court. The objective of the article is to provide a theoretical account of the Polish Constitutional Tribunal’s conduct to the readers. Therefore, the concepts developed at the Poznan School of Theory of Law are used, namely the distinction between a provision of the law and a legal norm, as well as a distinction between pragmatic and nonpragmatic interpretation. The role of the metatheory used to analyse the Tribunal’s conduct is also played by Robert B. Brandom’s analytic pragmatism. Analytic pragmatism allows the conclusion to be drawn that, through its activity, the Tribunal indicates 1) what an agent must do (within the legal practice) for the vocabulary of normative acts to mean something (PV-sufficiency), and 2) what vocabulary is sufficient to define those practices (VP-sufficiency). The practice of applying the law can be described with the use of the TOTE concept (Test-Operation-Test-Exit). In this case TOTE cycles are open-ended. Therefore, in its further practice, the Tribunal might indicate further practices-or-abilities which are sufficient for the vocabulary of normative acts to mean something.

Keywords: judicial practice, Constitutional Tribunal, analytic pragmatism, provision of the law, legal norm, application of the law

Language: English

Published: Number 2(35)/2023, pp. 65-76.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.65

Download: Download
Number of downloads: 377

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Non-textual Elements in Judicial Opinions: Overview

Magdalena Wojdala

Jagiellonian University in Kraków, Poland

English abstract: The objective of the article is to present the practice of using non-textual elements in judicial opinions, as well as to explain the need for a new term and the way in which it was created. In order to do so, several questions have been addressed. First, the elements actually used in judicial opinions are specified. Next, the reasons why terms such as image or visual material cannot adequately describe the phenomenon in question are presented and reasons are offered for the creation of a new term. What the elements have in common is then outlined and the concept of non-textual elements in judicial opinions is introduced. An examination of whether distinguishing this category means that these elements can be treated as a homogeneous group is then presented. Finally, whether the presence of such elements in judicial opinions is new in legal reality is considered and, if so, what their significance is to the functioning of judicial opinions.

Keywords: judicial opinion, non-textual elements, images

Language: English

Published: Number 2(35)/2023, pp. 77-87.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.77

Download: Download
Number of downloads: 469

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

The ‘Theatrical’ in Public Participation: How Can Theatre Contribute to Citizens’ Engagement in Legislative Development?

Bartłomiej Bodziński-Guzik

Jagiellonian University in Kraków, Poland

English abstract: The paper is devoted to the notion of public participation and an attempt to propose a slightly different understanding and approach to this than usual. The author acknowledges the potential of theatrical methods, especially the proposal of A. Boal, the Legislative Theatre, whereby the theatre is used to create proposals for legislation, bringing additional value to the participation process. The LT is a point of reference, but the following reflections refer to theatre and performance in a more general sense. The article focuses on the corelations between theatre and different relevant fields of social activity to determine and present potential benefits of using theatre in the process of participation. It is to present a preliminary review of relevant ideas that can stimulate future reflection about theatricalizing participation, rather than presenting a direct and comprehensive proposal.

Keywords: public participation, law, community, politics, legislative theatre, therapy, protest

Language: English

Published: Number 2(35)/2023, pp. 5-19.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.5

Download: Download
Number of downloads: 399

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Institutional Critique as a Research Perspective of Jurisprudence in the Context of Jacques Rancière’s Philosophy

Dr Mariola ŻAK

University of Warsaw

English abstract: The article reflects on the condition of contemporary critique of law in the light of institutional critique derived from the theory of art. This study aims to verify the thesis that institutional critique is a research perspective formed against the background of various trends of critical legal thought. This critique is affirmative and constructive in character. It focuses on the analysis of the performance of reflexive institutions and it also problematizes cognitive tensions that are inherent in legal institutions. The institutions are analysed in the light of the metaphor of aesthetic play. The article presents the theoretical grounding of the relationship between institutional critique and critical legal thinking in the light of the philosophy of law inspired by Jacques Rancière’s thought. Furthermore, selected examples of this critique and directions for its potential application are shown in the context of modelling patterns of dialogic legal culture as understood by the law and humanities movement.

Keywords: institutional critique, critical legal thinking, aesthetics of law, law and humanities, Jacques Rancière

Language: Polish

Published: Number 1(34)/2023, pp.87-101

DOI: https://doi.org/10.36280//AFPiFS.2023.1.87

Download: Download
Number of downloads: 343

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Contemporary Debate on John Rawls’s Political Concept of Human Rights. Selected Arguments and Positions

Mgr Jan TURLEJ

Jagiellonian University in Kraków, Kraków University of Economics

English abstract: In The Law of Peoples – published in Poland for the first time twenty years ago – John Rawls extended his theory of justice to the field of international relations. The philosopher developed the concept of the law of peoples, or the political concept of justice that applies to the norms and principles of international law and practice. As part of his concept, Rawls proposed a vision of human rights as rights that define the limits of state sovereignty. In the article, in addition to a synthetic overview of Rawls’s concept of human rights, I present selected critical arguments, formulated by John Tasioulas, Charles Beitz, James Nickel, Allen Buchanan, Martha Nussbaum, and Thomas Pogge. In the second part of the text, I discuss an attempt to defend Rawls’s views, proposed by David Reidy and Samuel Freeman. In conclusion, I summarize both lines of argument, presenting my own position.

Keywords: John Rawls, human rights, political concept of human rights, rights, state sovereignty

Language: Polish

Published: Number 1(34)/2023, pp.72-86

DOI: https://doi.org/10.36280//AFPiFS.2023.1.72

Download: Download
Number of downloads: 385

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Terminological Consistency in the Legal System. A View at the Problem of Interpretation from the Perspective of Law-making Practice

Dr Marek SUSKA

Silesian University in Katowice

English abstract: The goal of the article is to determine whether the legal interpretation should be made with the assumption of consistency of terminology at the level of a branch of law or at the global level. The question is therefore whether the interpreter should presume that the legislator ‘by default’ refers those who apply the law only to the legal definitions contained in a certain, most general act within one branch of law, or whether, regardless of the branch, the legislator always uses a uniform terminology. An analysis of the law-making practice may be a source of useful cues to answer this question. First, the article reconstructs the requirements imposed on the drafters by the Principles of Legislative Technique. Secondly, several dozen acts passed by the Sejm of the 7th and 8th term of office are examined in terms of the presence of ‘definitional’ references to acts from the same branch of law and acts from another branch of law. In this way, it is established that only the presumption of a legal act maintain terminological consistency with legal definitions set out in the basic act for a given branch of law seems to be legitimate. The basic act should not be understood in an institutional way, but as one relating to a quasi-branch. The article also identifies at least some cases where it is justified or unjustified to use ‘explicit’ references to point out branch-level or global terminological consistency. The results of the analyses may find application in the discussion on the meaning of the directive of legal language in the theory and practice of interpretation, as well as in the theory and practice of legislation – in determining when it is necessary to use a provision referring to a legal definition.

Keywords: terminological consistency, provisions referring to other provisions, legal language, law-making, legal interpretation, system of law

Language: Polish

Published: Number 1(34)/2023, pp.58-71

DOI: https://doi.org/10.36280//AFPiFS.2023.1.58

Download: Download
Number of downloads: 435

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

‘Tacit’ Declarations of Intent: Considerations in the Context of the Normative Concept of Omission

Dr Karolina GMEREK

University of Szczecin

English abstract: From the point of view of the problems of dogmatics of civil law, this article aims to present a certain philosophical concept of omission and apply it to the development of the basic aspects of making declarations of will by omission. From the perspective of the general theory of law, this article is a part of a broader project aiming at theoretical elaboration of the problem of making conventional acts by omission using the achievements of the philosophy of action. This article proposes a way to conceptualize the declarations of will made by omission. The normative conception of omissions in the version proposed by Katarzyna Paprzycka-Hausman within the philosophy of action has been chosen for this task. Using the above conception allows putting in order, to some extent, the problem of making declarations of will by omission. It should be noted that some elements included in the normative concept of omission have been present in reflections on declarations of will made by omission for a long time. It is primarily about the role of the context of omission and the “should and could have spoken” argument used in the doctrine and the case law in the context of identifying declarations of will made by way of omission.

Keywords: declaration of will, omission, conventional act in law, philosophy of action

Language: Polish

Published: Number 1(34)/2023, pp.32-45

DOI: https://doi.org/10.36280//AFPiFS.2023.1.32

Download: Download
Number of downloads: 388

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

« Previous Page

Joanna Misztal-Konecka

John Paul II Catholic University of Lublin, Poland

Katarzyna Rużyczka

Jagiellonian University in Kraków, Poland

Wojciech Rzepiński

Adam Mickiewicz University in Poznań, Poland

Magdalena Wojdala

Jagiellonian University in Kraków, Poland

Bartłomiej Bodziński-Guzik

Jagiellonian University in Kraków, Poland

Dr Mariola ŻAK

University of Warsaw

Mgr Jan TURLEJ

Jagiellonian University in Kraków, Kraków University of Economics

Dr Marek SUSKA

Silesian University in Katowice

Dr Paweł LESIŃSKI

Maria Curie-Skłodowska University in Lublin

Dr Karolina GMEREK

University of Szczecin