Archiwum Filozofii Prawai Filozofii Społecznej

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

IVRwww.ivr.org.pl

General Constitutional Clauses: Between the Legislative Construction and Its Implementation

Prof. dr hab. Leszek Leszczyński

Maria Curie-Skłodowska University in Lublin

English abstract: The aim of this paper is to present and analyse in terms of theory of law the general reference clauses, which, as a normative construction, are also formulated in the provisions of constitutional law. Within the framework of these analyses, apart from conceptual issues, the constructions used in three 20th-century Polish Constitutions (of 1921, of 1935, of 1952), created in different political conditions, are presented. All of them were rather restrained as regards the number of extra-legal references, although the 1952 Constitution added to this practice an ideologized language of a legal text. It is not possible to compare it – either in the context of the number of clauses or the breadth of references – with the Constitution of 1997. The main parts of this paper include a linguistic, normative and systematizing analysis of the references contained in the current Polish Constitution, as well as an indication of their implementation effects. On this basis, selected aspects of the titular relation between the enactment and application of constitutional reference clauses are determined.   

Keywords: general clauses, legislative construction, enactment and application of clauses

Language: Polish

Published: Number 1(30)/2022, pp. 44-54

DOI: https://doi.org/10.36280/AFPiFS.2022.1.44

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Number of downloads: 450

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Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues

Prof. UMK dr hab. Aleksandra Kustra-Rogatka

Nicolaus Copernicus University in Toruń

English abstract: The dynamic development of judicial review of the constitutionality of laws in the second half of the twentieth century is reflected in contemporary theories of judicial review. They go beyond the original axis of the dispute over the legitimacy of judicial review, which was shaped by the counter-majoritarian dilemma, and often become more nuanced. In addition to arguments related to the conceptions of institutional cooperation and accountability function of judicial review, rights-based theories of judicial review take on more and more importance.

The aim of this article is to outline a wide range of issues related to the protection of fundamental rights, which protection is considered as an argument in the dispute over the legitimacy of constitutional courts. The study presents selected issues that influence the current discourse on judicial review, which include: types of such judicial review; types of arguments used in the analysed discourse; the link between fundamental rights and various concepts of democracy; and judicial review of legislative decisions concerning positive rights guarantees.

Keywords: constitutional courts, fundamental rights, democracy, positive rights

Language: Polish

Published: Number 1(30)/2022, pp. 33-43

DOI: https://doi.org/10.36280/AFPiFS.2022.1.33

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Number of downloads: 435

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Introduction to the Fidelity to the Constitution

Szymon A. Gasz, Marek P. Kaczmarczyk

University of Warsaw

English abstract: The time of changes taking place in the constitutional order, both constitutional and fait accompli changes, is undoubtedly an interesting opportunity for in-depth analyses. These analyses can be made from various perspectives. The authors focus on three basic perspectives – that of law, philosophy and political science – in order to investigate what they refer to as constitutional fidelity. The limited framework of the paper only permits providing an introduction to the subject. In this text, the authors indicate the basic categories of constitutional fidelity, reflect on the dimensions of this fidelity, and try to propose a solution to the puzzle of the future of Polish constitutionalism. The entire analysis repeatedly refers to sociological and, to some extent, psychological categories, because constitutional fidelity is, first of all, a proper civic attitude and a relationship, the awareness of which is often only discovered at a moment of crisis.

Keywords: constitution, constitutionalism, fidelity to the constitution, constitutional crisis, legal interpretation, civic society

Language: Polish

Published: Number 1(30)/2022, pp. 17-32

DOI: https://doi.org/10.36280/AFPiFS.2022.1.17

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Number of downloads: 430

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Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution

Dr hab. Maciej Pichlak

Uniwersytet Wrocławski

English abstract: The article aims to analyse legal constitutionalism and populist constitutionalism as two dominant ideological positions in the constitutional discourse of the last decades. The analysis is focused on the exemplifications of these positions in writings of selected Polish legal scholars, in the context of the Polish constitutional crisis of the rule of law, and conducted from the perspective of the philosophy of reflexivity. This theoretical and methodological approach enables demonstrating that the two examined doctrines – despite all the differences between them – share common erroneous assumptions regarding the relationships between law, democracy, and constitutional practice. Both of them strive to shape this practice in a closed-end and monological manner, subjected to one particular type of rationality. For legal constitutionalism, this will be juridical rationality, and for its populist counterpart – political rationality. This shared fallacy makes their ongoing dispute futile. An alternative approach to constitutionalism is to take into account the fundamental reflexivity of constitutional practice (regarded as the practice of creating, applying and interpreting a constitution, and of public debate on its text). In line with the general characteristics of reflexivity, constitutional practice appears as an open and pluralistic process, mediating between different viewpoints in society. Such an alternative is important not only when considering the Polish constitutional disputes, but also in the broader context of the contemporary crisis of liberal-democratic constitutional orders.

Keywords: legal constitutionalism, populist constitutionalism, reflexive constitutionalism, reflexivity of law, constitutional crisis, crisis of the rule-of-law state, crisis of the rule of law

Language: Polish

Published: Number 1(30)/2022, pp. 63-73

DOI: https://doi.org/10.36280/AFPiFS.2022.1.63

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Number of downloads: 446

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On Gustav Radbruch’s Notion of Antinomies of the Idea of Law

Bartosz Szyler

University of Warsaw

English abstract: The main purpose of the paper is to analyse the notion of antinomies of the idea of law developed in Gustav Radbruch’s philosophy. In the first part of the paper, I analyse the most detailed explication of the notion of antinomy contained in part of Radbruch’s Philosophy of Law. I emphasize which elements, according to Radbruch, constitute the idea of law and what are the sources of their antinomianism. I indicate what elements constitute, in Radbruch’s opinion, the idea of law and what, in his opinion, the sources of their antinomianism are. In the second part of the paper, I focus on a general reconstruction of the notion of antinomy. I refer to the use of this notion in the history of philosophy and logic, in particular to one of the most important philosophical uses of antinomy in Immanuel Kant’s Critique of Pure Reason. The analysis carried out allows me to recognize the specificity of the notion of antinomy used by Radbruch and to see its distinctiveness in comparison with Kantian antinomies. Looking at the antinomies of the idea of law from a broader philosophical perspective allows me to criticize the inadequacy of the conceptual net adopted by Radbruch, and to justify their reinterpretation independently of what has been discussed in the literature so far.

Keywords: Radbruch, Kant, philosophy of law, antinomies, justice

Language: Polish

Published: Number 4(29)/2021, pp.82-90

DOI: https://doi.org/10.36280/AFPiFS.2021.4.82

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Number of downloads: 687

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From Tischner’s Critique of the Understanding of Work in Marxism to the Apotheosis of Work as Dialogue

Mgr Michał Stachurski

University of Opole

English abstract: Philosophy, being a field that looks for answers to various questions, does not overlook topics related to human work and technology. Usually, reflection is arranged along two axes: the economic and ethical one. These questions are a tool to attempt to define the value of human work as precisely as possible, also within the framework of axiology. The topic of work and its importance in human life was also taken up by Józef Tischner. He is counted as a representative of such trends as the philosophy of meeting or personalism. The aim of this article is to show what work is in Józef Tischner’s thought, what its goals are, and how Józef Tischner characterized the ‘man of work’ within the philosophy of dialogue, as well as a certain interpretation of Tischner’s thought in the context of contemporary existential philosophy and social ethics.

Keywords: work, Tischner, dialogue, existentialism, social ethics

Language: Polish

Published: Number 4(29)/2021, pp.71-81

DOI: https://doi.org/10.36280/AFPiFS.2021.4.71

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Number of downloads: 614

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A Wisdom of Chinese Aphorisms. A Few Remarks on the Philosophy of Criminal Law between Chinese and European Rudimentals

Dr Tomasz Snarski

University of Gdańsk

English abstract: The article is a study of the philosophy of law, devoted to the concept and significance of aphorisms in legal science as well as in legal education. The author introduces the concept of Chinese aphorisms (wisdoms, maxims, thoughts), confronting it with the role played by Latin maxims in law and legal culture. He also reviews selected Chinese aphorisms, comparing them with some contemporary basic ideas, concepts and principles of Polish criminal law. The author also advocates a wider use of Chinese aphorisms in discussions on contemporary views on the fundamental institutions of criminal law, treating them also a tool for broader reflection on the contents of paradigms, which perhaps even enables their reinterpretation.

Keywords: legal sentences, legal aphorisms, Chinese aphorisms, philosophy of criminal law, concepts of criminal law, ideas of criminal law, principles of criminal law

Language: Polish

Published: Number 4(29)/2021, pp.58-70

DOI: https://doi.org/10.36280/AFPiFS.2021.4.58

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Number of downloads: 722

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Hans Kelsen as Outliner: The Defence of a Radical Norm Theory

Prof. dr Stanley L. Paulson

Washington University in St. Louis,
Christian-Albrecht University of Kiel

English abstract: In his first treatise on legal theory, Hauptprobleme der Staatsrechtslehre (1911), Hans Kelsen seeks to recast legal norm theory in a way that would eliminate from the theory the imperative, with what Kelsen sees as its moral connotations. The result, Kelsen’s sanction theory, is not entirely successful. It leaves in place the imperative vis-à-vis legal officials, with obligations imposed on officials to implement sanctions. In the 1930s, Kelsen returns to the issue, radically recasting legal norm theory by introducing empowerment as the fundamental modality and obligation as merely derivative, a view that prevails in the second edition of the Reine Rechtslehre (1960).

Keywords: Julius Binder, Karl Binding, Hans Kelsen, Adolf Julius Merkl, empowerment, imperative, legal norm theory, obligation, sanction theory, Stufenbau

Language: Polish [translated by: prof. dr hab. Tomasz Gizbert-Studnicki]

Published: Number 4(29)/2021, pp.5-17

DOI: https://doi.org/10.36280/AFPiFS.2021.4.5

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Number of downloads: 948

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The Account of the ‘Nature of Things’ in Gustav Radbruch’s Method of ‘Legal Construction’ in the Context of Assumptions of Legal Positivism

Mgr Zuzanna Krzykalska

Jagiellonian University

English abstract: In his work titled Natur der Sache als juristishe Denkform, Gustav Radbruch develops his account of the nature of things as an objective essence of social reality, which serves as a foundation for the construction of legal institutions. The main objective of this paper is to refute two serious objections against the account, namely, the alleged contradiction between the account of the nature of things and the 1) assumption of relativism of values as well as the 2) assumption of the ontological is-ought dichotomy. To show that Radbruch’s account is consistent with those two assumptions of legal positivism, firstly, I invoke the conceptual distinction between ontological and epistemological objectivity. Secondly, I specify the understanding of the term ’nature‘ not as implying natural origin, but rather an object’s having an essence in ontological terms. With those conceptual distinctions, it is possible to understand Radbruch’s theory as a version of essentialism towards social artifacts (those important form the legal point of view), which does not imply any iusnaturalistic commitments.

Keywords: Gustav Radbruch, Nature of Things, Legal Construction, Legal ontology, Legal institution, Law as Artifact

Language: polish

Published: Number 4(29)/2021, pp.45-57

DOI: https://doi.org/10.36280/AFPiFS.2021.4.45

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Number of downloads: 742

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International Scientific Conference: Professionalization of the Profession of Mediator: Current State and Perspectives of Changes in the Legal Systems of Poland and Ukraine, Lublin–Łuck–Odessa, 20 May 2021

Dr Paweł Kłos

Maria Curie-Skłodowska University

Language: Polish

Published: Number 4(29)/2021, pp.91-92

DOI: https://doi.org/10.36280/AFPiFS.2021.4.91

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Number of downloads: 312

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