Archiwum Filozofii Prawai Filozofii Społecznej

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

IVRwww.ivr.org.pl

Deliberative Legal Education. Reflection on the Relationship Between the University and Legal Culture

Dr Aneta Jakubiak-Mirończuk

Cardinal Stefan Wyszyński University in Warsaw 

English abstract: The university, as an intellectual community and space of research, education and development, shapes the academic culture. The aim of education is to provide law graduates with knowledge – undoubtedly crucial for practicing the profession, but also with competences and skills enabling them to participate in the legal culture. Deliberation is a process in which, through conscious, responsible and cognitively-oriented action, a rational, but also reflective change is possible, taking into account both the preferences of entities and, at the same time, the dynamics of the changing world around them. An organization of the university based on the philosophy of deliberation is in line with the academic tradition based on cognitive autonomy, understood as the right of researchers and students to freedom of learning and teaching.

Keywords: deliberative philosophy, legal education, legal culture

Language: Polish

Published: Number 4(29)/2021, pp.30-44

DOI: https://doi.org/10.36280/AFPiFS.2021.4.30

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Number of downloads: 699

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From ‘Theophrastus Redivivus’ to Du Marais. Origin of Secularization in the Underground Philosophy of Radical Enlightenment in France

Dr Anna Budzanowska

Nicolaus Copernicus University in Toruń

Cracow University of Economics

English abstract: The article describes the sources of anti-religious conceptions in French philosophical literature of Radical Enlightenment, based on secret symbolic manuscripts: Theophrastus Redivivus, Le Militaire philosophe, Lettre d’Hypocrate à Damagatte, La vie de Mahomed, Le traite sur les trois imposteurs, La Moysade and Le Philosophe, and aims to explore the radical approach to religion and faith of the following little-known French libertine thinkers, who were representatives of the so-called philosophie clandestine: B. Fontenelle, N. Malebranche, Y. de Vallone, Delaube, R. Challe, H. de Boulainvilliers. Discoveries related to French underground philosophical manuscripts attract the interest of researchers, changing the ideological picture of the Enlightenment. As it appears, underground thinkers – through the scope and radicalism of their ideas – made a so far unrecognized contribution to the not-so-distant age of encyclopaedism and the French Revolution. The libertine theories born in reaction to monarchical and clerical absolutism conceal contextual political and anti-Christian explicitness. Therefore, analyses of the approach to religion and faith expressed in underground philosophical texts allow us to classify them as anti-systemic. Undoubtedly, a great number of observations and recommendations of the secret philosophers was related to the search for understanding the entirety of human religiosity or to the need to articulate the universality of natural religion. However, French ideological continuators of the underground amateur philosophers, including eighteenth-century academics and encyclopaedists who referred to the underground anti-religious impulse, did not postulate introducing broadly-understood religious tolerance; on the contrary, they formulated theories that enabled the gradual removal of religiosity from the public sphere (laïcité). The article presents the idea of secularism in the radical underground Enlightenment movement and refers to the delayed consequences of said phenomenon, when this idea, considered politically dangerous, reappeared in political debates in the second half of the 19th century, and eventually became la loi fondatrice of the republican France under the 1905 law.

Keywords: manuscrits philosophiques clandestins, philosophie clandestine, libertinism, French Radical Enlightenment, secularism

Language: Polish

Published: Number 4(29)/2021, pp.18-29

DOI: https://doi.org/10.36280/AFPiFS.2021.4.18

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Number of downloads: 695

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Departure from the rule of law as the consolidation of biopower. Example of Polish legislation justified by fighting the Covid-19 pandemic.

Dr hab. Arkadiusz Barut

University of Wrocław

English abstract: Throughout this article the author interprets the crisis of the rule law in Poland in 2020 caused by the phenomenon described as Covid-19 pandemic as the solidification and consolidation of biopower – the contribution of ideas and practices justified by the findings of natural sciences to the disestablishment of paradigms hitherto recognized as fundamental to the creation and application of law, that is the due process of law or its formal justice.

I proceed from the assumption that the creation and application of law must be grounded in phronesis — the Aristotelian prudence, that is the intellectual process of assessment of not only the means but also the goals. Thanks to the discernment of both the goals and the means in the same cognitive act, one gains the opportunity to distinguish individual cases and insight into specific situations. I assume the phronetics of law to justify and at once enable its acquisition of the property referred to as justice in its formal sense — predictability, non-retroactivity, generality of regulation, and so on. If, on the other hand, the law becomes subordinated to paradigms justified with the use of natural sciences, it ceases to fulfil its function. Biopower invades the legal sphere as a discourse of necessity, such a necessity is in itself the very opposite of the fine art of balancing the various competing interests, appreciating the importance of form and ritual, distinguishing the various individual cases.

The purpose of this article is to analyse the impact of the crisis referred to as the Covid-19 pandemic on law and in no way to pronounce on the medical aspects of its proliferation or express a moral or political judgement of the actions justified by the need to contain it.

Keywords: Covid – 19, pandemic, biopower, rule of law, Foucault, Legendre, Agamben

Language: English

Published: Number 3(28)/2021, pp.5-21

DOI: https://doi.org/10.36280/AFPiFS.2021.3.5

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Number of downloads: 555

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Back to the Past? The Evolution of the Legal Mechanisms Influencing the Collective Memories in Spain from the Central European Perspective

Dr Filip Cyuńczyk

SWPS University of Social Sciences and Humanities

English abstract: The article’s primary goal is to conduct case studies of Spanish memory policies introduced after 2007 and its comparison with CEE countries activities in the same field. The primary research hypothesis is: Do several case studies of several memory policies implemented in postcommunist states help examine the Spanish model of dealing with the past reformulation? This paper intends to show similarities and differences between Spanish and Central and Eastern European models of dealing with the past, which both are using legal means. I present some of the specific elements of postcommunist constitutionalisation in CEE, including memory narrations locations in several constitutions in the region. I also show the impact of memory narrations on individual states’ institutional policies from the CEE and the Kingdom of Spain. Finally, I show the hidden potential for Spanish political community reconstruction located in the memory laws.

Keywords: memory laws, juridification of the memory, collective memory, constitutionalism, democratic transtion

Language: Polish

Published: Number 3(28)/2021, pp. 22-38

DOI: https://doi.org/10.36280/AFPiFS.2021.3.22

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Number of downloads: 390

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The Systematization of Legal Values around Justice

Prof. M. Isabel Garrido Gómez

University of Alcalá

English abstract: This article underlines the centrality of justice when understanding it as an overarching value that globalizes and systematizes all the others. In particular, it analyzes what happens with legal security as a formal enshrinement of justice, and freedom and equality as its material manifestations. From this point of view, it becomes clear that the resulting systematization depends on the type of State currently in force. This is joined the diverse ways of understanding justice and the evaluation of the validity-justice relationship depending on the different ways of understanding it. Likewise, the ways of understanding the justice-law connection are linked to the concept of the Law that we uphold. Finally, it is concluded that legal operators are called to administer justice in a complementary regime, with legal security serving to reinforce freedom, as is the case with regard to equality.

Keywords: Systematization, legal values, justice, complementarity of values, legal operators

Language: English

Published: Number 3(28)/2021, pp. 39-53

DOI: https://doi.org/10.36280/AFPiFS.2021.3.39

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Number of downloads: 479

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Identification of Conventional Acts in Law as a Process of Recognizing Their Sense: An Introduction

Dr Karolina Gmerek

University of Szczecin

English abstract: From the very beginning, reflection on the sense of conventional acts (in law) accompanies theoretical considerations on conventional acts. On the one hand, that discussion can be considered developed and multi-threaded, and on the other hand, it is still open. This study is a voice in that discussion. The main aim of the article is to preliminary elaborate the identification process of conventional acts in law. The article also seeks to meet complementary research objectives which concern: 1) identifying the ways of understanding the meaning of conventional acts in the general theory of law, paying attention to the relationship between the definitions of the term “conventional act” and the understanding of the meaning of this type of acts, 2) considering problems of meaning levels of the conventional acts in law, and 3) describing the basic methodological assumptions of the conventional acts in law identification process. Particular attention is paid to the relationship between the way of defining the term “conventional act” and the identification process of this type of acts. Showing importance of this relationship allows to establish the proper place of the identification process within the concept of conventional acts in law and somehow “opens” the concept to issues which have not been, in the concept, the subject of systematic considerations.

Keywords: conventional acts, conventional acts in law, sense of conventional acts in law, conventional acts in law identification process

Language: Polish

Published: Number 3(28)/2021, pp. 54-68

DOI: https://doi.org/10.36280/AFPiFS.2021.3.54

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Number of downloads: 525

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Hegel’s Critics on Legal Profession

Mgr Maksymilian Hau

University of Warsaw

English abstract: The aim of the article is a question about the actuality of the Hegelian concept of law, presented in the Principles of the philosophy of law. For Hegel, the law is the most important element in the structure of a capitalist society, because it funds the mutual recognition of individuals, which gives social relationships a foundation not in the dialectic of rule and servitude, but in the submission of all authorities to general legal norms. The analysis of selected contemporary practices that allow for the choice of jurisdiction calls into question the Hegelian concept, since these practices show that the general principle is broken – abstract norms of law no longer have to apply to everyone. The second part of the article is devoted to the analysis of criticism of legal profession to which Hegel accused the responsibility for alienating the law from society and thus blurring the relationship between law and freedom. The question will be asked whether Hegel’s criticism can be applied to contemporary problems in the relationship between law and society. Whether the law continues to be, as Hegel wanted it to be, a rational means of meeting the needs of individuals, or whether, on the contrary, it is increasingly becoming a source of exploitation.

Keywords: Hegel, Principles of philosophy of law, recognition, exploitation, legal profession

Language: Polish

Published: Number 3(28)/2021, pp. 69-81

DOI: https://doi.org/10.36280/AFPiFS.2021.3.69

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Number of downloads: 345

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The Concept of Rationality and the Rationalization of Law in the Works of Max Weber

Mgr Konstanty Kuryłowicz

University of Bialystok

English abstract: The magnitude of Max Weber’s work is overwhelming. However, with it, comes its great insight into the social reality. Reinhard Bendix has called Weber the magical name of the modern social sciences. Agreeing with this claim, The Author of this article takes on one of the fundamental problems of the social sciences – the problematic concept of rationality. This concept remains a key element of the works of Max Weber. Therefore, the purpose of this work is to analyze the intricacies of its definition by the famous German scholar. First comes the analysis of the multiplicity of contexts in which Weber makes the use of the term rationality and the rationalization. Then, after the realization of the impossibility of a precise definition of the rationalization without taking the context into account, the transition to the rationalization of law follows. The look at the division of rationalization of law into various planes on which it can manifest its rationality or irrationality (be it the material or formal aspect) is concluded with the summary, where The Author poses questions about certain issues that require further research.

Keywords: disenchantment, irrational, law, rationalism, rationality, rationalization, Weber

Language: Polish

Published: Number 3(28)/2021, pp. 82-94

DOI: https://doi.org/10.36280/AFPiFS.2021.3.82

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Number of downloads: 526

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Harmony and Dissonance. Isaiah Berlin’s and Leszek Kołakowski’s Visions of Ethical Life

Prof. dr hab. Beata Polanowska-Sygulska

Jagiellonian University in Kraków

English abstract: The aim of the article is to carry out a parallel analysis of Isaiah Berlin’s and Leszek Kołakowski’s ethical visions. Special attention is given to the ideas developed by both thinkers in their early two essays, both published in 1958, though their later works are also taken into account. Juxtaposition of several threads inherent in their essays, backed by appropriate excerpts from their work, leads to the following conclusions. Both philosophers draw stunningly similar visions of moral life. Both of them dissociate themselves from ethical monism and from ethical relativism. However, Berlin’s standpoint, named by him value pluralism, is of strictly empiricist and thus anti-metaphysical character, while Kołakowski claims that in ethics there is no escape from metaphysics.

Keywords: Isaiah Berlin, Leszek Kołakowski, value pluralism, ethical monism, ethical relativism, empiricism, myth

Language: Polish

Published: Number 3(28)/2021, pp. 95-106

DOI: https://doi.org/10.36280/AFPiFS.2021.3.95

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Number of downloads: 582

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