Articles – Page 22

Identification of Procedural Acts Performed at the Trial: Considerations in the Context of the Actual Utterances of Non-professional Participants of Court Proceedings

Dr Karolina Gmerek

University of Szczecin

English abstract: The empirical research of the communication process at the trials which were held in common courts indicated, in particular, that the utterances of trial participants, despite their varied verbal forms, were identified as procedural acts. In addition, these verbal forms were often significantly different from the explicit forms where proper legal terms were used. The aforementioned results of the analysis lead the author to pose the following question: what thought processes (mechanisms) allow for the identification of procedural acts based on the utterances which are not explicit for the performance of these acts. The aim of this paper is to describe these types of mechanisms. The utterances of participants of a trial illustrate the issues taken into consideration in this paper.

Keywords: conventional acts, procedural acts, identification of procedural acts, trial, interpretation of procedural statements

Language: Original printed in Polish, English translation available below

Published: Number 1(22)/2020, pp. 21-36.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.21ENG

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Number of downloads: 520

Worldview Controversies in a Workplace: Comments from the Theory of Law Perspective on the Cracow IKEA Employee Case

Dr Wojciech Ciszewski

Jagiellonian University

English abstract: The point of departure of my paper is the case of the IKEA employee who lost his job for criticizing the workplace policy followed by his employer. In the paper I analyse two possible versions of the objection discrimination on the ground of belief that can be raised with respect to the employer’s decision. In my opinion neither of these two versions can withstand scrutiny. Regarding the first of these versions – the allegation of belief harassment – I claim that the employer’s action should not be recognized as a form of belief harassment. The criteria that I propose in the paper suggest that the ‘Inclusion of LGBT+…’ regulation was a permissible workplace policy, within the scope of the employer’s authority. Regarding the second version of the allegation of discrimination – the lack of respect for special needs resulting from beliefs – I argue that in this situation the employer was under no obligation to accommodate the employee’s needs resulting from his beliefs. In the light of the criteria formulated in the paper, the employee’s claim for accommodation was weak and it could be overweighed even by a relatively small burden on the employer’s part.

Keywords: principle of nondiscrimination, freedom of religion, freedom of speech, workplace harassment, cultural exemptions

Language: Polish

Published: Number 1(22)/2020, pp. 5-20.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.5

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Number of downloads: 853

Collaborative Law: Legal Practice Based on Cooperation

Dr hab. Adam Zienkiewicz

University of Warmia and Mazury in Olsztyn

English abstract: The main aim of the paper is to characterize the assumptions of the original legal practice based on cooperation, usually referred to as collaborative law. In order to achieve this goal, the author considers the following issues: 1) the essence, principles and limitations of collaborative law; 2) selected features of collaborative practice; 3) the main differences and similarities between collaborative law and mediation. The conclusion of the article identifies the preferred competences of lawyers who practice collaborative law, the main advantages of such practice, and the important ethical issues (including dilemmas) that may arise during collaborative lawyering.

Keywords: collaborative law, collaborative practice, alternative dispute resolution

Language: Polish

Published: Number 1(22)/2020, pp. 111-120.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.111

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Number of downloads: 619

Judges’ Virtues and Vices: Outline of a Research Agenda for Legal Theory

Prof. UG dr hab. Tomasz Widłak

University of Gdańsk

Abstract: This article focuses on the issue of applicability of virtue theory to legal theory in civil-law (statutory) jurisdictions and suggests research areas and problems in that respect. The author starts with an assumption that the notion of “virtue” and virtue ethics should be used for the purposes of legal theory starting from references to judicial ethics and normative theory of judicial decision-making. This approach looks especially promising for the purpose of systematizing the chaotic moral language that is being currently used in Poland in reference to judges, their skills, and qualities of their character, which in turn may lead to formulating an explanatory and normative theory of the judicial role that better addresses the observable deficiencies of legal deontology. The author suggests research that could proceed from interpretatively uncovering what are believed to be specific judicial virtues and vices, considering different aspects of the wider Polish and European legal culture of civil law countries (included but not limited to legal and ethical standards, public discourse, legal and other literature, historical and fictional examples, and role models). With respect to judicial ethics, existing virtue theories, including non-eudaimonistic ones, may be examined for the purpose of identifying the model of virtue best suited to the particular nature of the judicial profession. The aretaic (rather than deontological or consequentialist) perspective may enable legal scholarship to take a new path in the debate on the status and qualities of the judiciary, including the problems relating to judicial independence and the selection of candidates for judicial offices.

Keywords: virtue, virtue ethics, aretaic theory, judicial virtues, juristic virtues, virtue jurisprudence, judicial character

Language: English

Received: 31.05.2019
Accepted: 02.12.2019

Published: Number 2(20)/2019, pp. 51-62.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.51

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Number of downloads: 846

Dimensions of Legal Ethics in the Light of Paul Ricoeur’s ‘Petite Éthique’

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Krakow University

English abstract: The article investigates the multidimensional phenomenon of legal ethics, whose complexity justifies looking for adequate tools for its systematization in philosophy. An attempt is made to characterize a number of aspects of legal ethics in the perspective of Paul Ricoeur’s “little ethics” (French: la petite éthique). The concept makes it possible to order the reflection on the phenomenon of ethics in, among others, the teleological and deontological dimensions, as well as in the intrapersonal (i.e. within a person), interpersonal, and institutional (corporate) dimensions. The article also refers to the question of the textual dimension of legal ethics, including the co-conditioning of the substance of the codes of ethics and the personal “text of action” of a barrister, legal advisor, etc. This provides context for discussing the question of the dialectic of the prescriptive and descriptive aspects of codes of ethics on the basis of Ricoeur’s narratological considerations against a broader background of the dispute between cognitivism and noncognitivism.

Keywords: lawyers’ ethics, Paul Ricoeur, la petite éthique, teleological ethics, deontological ethics, narratology

Language: English

Received: 19.06.2019
Accepted: 02.11.2019

Published: Number 2(20)/2019, pp. 20-28.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.20

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Number of downloads: 682

Why Moral Norms Cannot be Reduced to Facts: On a Trilemma in Derivations of Moral “Ought” from “Is”

Prof. dr hab. Wojciech Załuski

Jagiellonian University in Kraków

Abstract: The paper aims at formulating a certain trilemma that applies to justifying moral norms. The trilemma can be succinctly stated as follows: any attempt to derive a “moral-ought-statement” from an “is-statement” with a justificatory goal (i.e. to justify the “moral-ought-statement”), even if it were successful in its “derivation” part (i.e. logically correct), would be unsuccessful in its “justificatory” part for one of the following three reasons: (1) it would consider each human action of which a factual statement can be made as morally obligatory, thus “justifying” a large number of implausible moral norms; or (2) it would presuppose a moral norm not derivable from facts; or (3) it would not explain why the distinction – made based on extra-moral criteria – between those factual statements about human actions from which moral norms can be derived and those from which they cannot be derived should count as morally relevant. The trilemma is illustrated in the paper by an analysis of Searle’s well-known attempt at deriving “ought” from “is”. Some further implications of the trilemma regarding the proper way of justifying moral norms are also examined.

Keywords: ought-statements, is-statements, logical derivation, ethical justification, Searle, Anscombe, naturalistic ethics, divine ethics

Language: English

Received: 11.03.2019
Accepted: 11.11.2019

Published: Number 2(20)/2019, pp. 63-74.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.63

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Number of downloads: 676

Against the Input View of Legal Gaps

Mgr Tomasz Zyglewicz

University of Warsaw

Abstract: The goal of this paper is to identify and criticize an intuitive way of thinking about gaps in the law, which I dub “the input view”. In this approach, legal gaps play the role of premises in legal reasoning in the sense that they trigger the application of, otherwise impermissible, methods of interpretation. The input view thus rests on a sharp distinction between the following two stages of legal interpretation: identification of a legal gap and filling it. The central motivation for embracing this view is to limit the scope of judicial discretion. I argue that the input view fails by its own lights by showing a class of cases in which it actually increases the scope of judicial discretion. My argument exploits the observation that, on any account of legal gaps available to the proponent of the input view, there will be cases in which a judge has discretion to say whether it involves a legal gap or not.

Keywords: legal gaps, discretion, the input view, judicial formalism

Language: English

Received: 06.12.2018
Accepted: 25.01.2019

Published: Number 2(20)/2019, pp. 75-88.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.75

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Number of downloads: 733

Paulus Vladimiri and His Forgotten Concept of the Just War

Prof. UŁ dr hab. Tomasz Tulejski

University of Łódź

Abstract: The theoretical reflection formulated in the neo-scholastic School of Salamanca has been regarded as the source of the contemporary concept of international relations: going beyond the paradigm of the time – determined, on the one hand, by the idea of the holy war and, on the other, by the doctrine of the just war – the Salamanca scholars laid down foundations for the edifice of modern international law. In this article the author argues that similar ideas preceding the reflection of the school of Salamanca, and often going even further, had appeared a hundred years earlier in the Cracow Academia in the context of a dispute between the Kingdom of Poland and the Teutonic Order. The culmination of this dispute was the Council of Constance. The Polish argument after the battle of Grunwald was based on law, and its unique feature was the return to the universalistic (Augustinian) nature of the just war. What is the most important element in Augustinian theology of war is Christianity’s universalism and recognition of moral equality of those engaged in military operations.

Keywords: just war, holy war, Paulus Vladimiri, international law

Language: English

Received: 11.08.2019
Accepted: 28.10.2019

Published: Number 2(20)/2019, pp. 39-50.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.39

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Number of downloads: 1,068

The Culture of Justification and Public Reason: Comments on the Motion of Members of the Polish Parliament to the Constitutional Tribunal

Prof. dr hab. Marek Smolak

Adam Mickiewicz University in Poznań

English abstract: The aim of the paper is to demonstrate how the culture of justification and the public reason can serve as legitimacy device in legal justifications. The idea of the culture of justification, proposed by David Dyzenhaus, makes an interesting contribution to the discussion on how to make headway with the problem of determining the limits of public authority. Applying Ron den Otter’ test of a reasonable sceptic, the author argues that the culture of justification becomes a good political and moral tool for limiting the exercise of public authority, if such a culture is understood and explained in light of the idea of public reason.

Keywords: culture of authority, culture of justification, public reason, test of a reasonable sceptic

Language: English

Received: 21.02.2019
Accepted: 04.05.2019

Published: Number 2(20)/2019, pp. 29-38.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.29

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Number of downloads: 824

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Dr Karolina Gmerek

University of Szczecin

Dr Wojciech Ciszewski

Jagiellonian University

Dr hab. Adam Zienkiewicz

University of Warmia and Mazury in Olsztyn

Prof. UG dr hab. Tomasz Widłak

University of Gdańsk

Mgr Szymon Mazurkiewicz

Jagiellonian University in Kraków

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Krakow University

Prof. dr hab. Wojciech Załuski

Jagiellonian University in Kraków

Mgr Tomasz Zyglewicz

University of Warsaw

Prof. UŁ dr hab. Tomasz Tulejski

University of Łódź

Prof. dr hab. Marek Smolak

Adam Mickiewicz University in Poznań