Articles – Page 26

Carl Schmitt Revisited by the United States and the Terrorist

Mgr Karolina Mendecka

English abstract: In the article “Carl Schmitt Revisited by the United States and the Terrorist” it is shown that Carl Schmitt’s morals, standards and views can be noticed in the United States policy in the context of so-called “war on terror”. According to the article, Islamic terrorists are a mirror image of Schmittan revolutionary partisan. It is discussed how terrorists are, as a problem, treated by the USA, which in author’s opinion displays many Schmittan features. Schmitt is one of the few who claim that the sovereign state is above the legal order and can set boundaries. It is therefore shown that the USA seem to have rushed into Schmittan “state of exception”, where norms are suspended in order to achieve security, resembling the thinking of the G.W. Bush administration. It is illustrated how the USA seem to be following Schmitt’s ideology, especially by making exceptions to international rules, but also putting the terrorist outside of the scope of international regulations. Lastly, author tries to answer the question if it is justified to follow Schmitt and obey to the rule of law.

Keywords: Carl Schmitt, war on terror, state of exception

Language: English

Published: Number 1(10)/2015, pp. 69-78

DOI: https://doi.org/10.36280/AFPiFS.2015.1.69

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Number of downloads: 602

Some Comments on Abortion Discourse

Prof. dr hab. Małgorzata Król

University of Łódź

English abstract: The article presents selected problems relevant for the contentious issue of abortion and the related discourses indicating that one of the characteristic features of abortion discourse is its mediatization. The author aims to characterize the constraints on abortion discourses and the varied environments in which the different types of such discourses emerge. Abortion discourses are sociolinguistically diverse and may exhibit different styles and modes of expression. Although they share the scope of the subject matter involved as in all cases they are centred on abortion-related problems, the field of discourse in each case is defined by the nature of the communicative situation in which a particular discourse is embedded. All abortion discourses are underlined by particular assumptions concerning the nature of human life and its beginning, as well as the issues of the dignity and liberty of the human person. The author suggests that what really hampers abortion discourses and prevents their participants from reaching a consensus is the fact that people who engage in such disputes are faced with the incommensurability of the values which translate into decisive factors and the final arguments used by interacting discussants. Another problem is posed by the fact that the two extreme positions in the debate are formulated with the use of different styles and registers, which results in the clash of asymmetric discourses. Finally, it is not insignificant that subjectively important values are much varied and that they must coexist with two main sets or “families” of abortion-oriented fundamental values present in the polarised camps.

Keywords: abortion discourse, dignity, liberty, human person

Language: English

Published: Number 1(10)/2015, pp. 53-68

DOI: https://doi.org/10.36280/AFPiFS.2015.1.53

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Number of downloads: 653

Moral Intuitions in the Moral Luck Discourse

Mgr Maciej Juzaszek

Jagiellonian University

English abstract: The main aim of the author is to analyze the term “moral intuitions”, used in discussions pertaining to moral luck. He presents the contemporary psychological estimation of moral intuitions based on the research of Jonathan Haidt (Social Intuitionist Model) and philosophical moral intuitionism. He claims that these two approaches do not have one subject of interest; hence, psychologists and philosophers study two different phenomena, both of which can serve as grounds for discussion concerning moral luck. However, the author concludes that there are valid reasons to question the normative status of moral intuitions in both psychological and philosophical senses, proving the discussion to be very complicated. On the other hand, he names coherentism as a possible cipher to adequately describe or even solve the problem of moral luck.

Keywords: moral intuition, moral luck, moral judgement

Language: English

Published: Number 1(10)/2015, pp. 41-52

DOI: https://doi.org/10.36280/AFPiFS.2015.1.41

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Number of downloads: 697

Some Remarks on the Application of Bayesian Analysis in Law

Mgr Bartosz Janik, Mgr Paweł Banaś

Jagiellonian University

English abstract: This paper discusses the use of Bayesian analysis in law. It introduces the key concepts of Bayesian analysis by giving some common examples of criminal cases. It focuses on the advantages of Bayesian analysis over some other probability interpretations (mainly the frequentist one). The last part of the text discusses the general notion of truth in legal proceedings and its possible interpretations within the probabilistic framework – given the Bayesian subjectivists-objectivists discussion.

Keywords: Thomas Bayes, Bayes’ theorem, subjectivism, objectivism

Language: English

Published: Number 1(10)/2015, pp. 31-40

DOI: https://doi.org/10.36280/AFPiFS.2015.1.31

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Number of downloads: 904

Why Legal Conventionalism Fails

Dr Adam Dyrda

Jagiellonian University

English abstract: The term “legal conventionalism” covers a set of broadly discussed legal theories explaining the fact of law’s existence by reference to the “conventional rule of recognition”. Some of them are aspiring to be so-called “fully fledged theories of law” and explain the normativity of law by reference to the same fundamental, conventional fact. The article presents some recently discussed views (including the ideas of E. Lagerspetz, A. Marmor, S. Shapiro) alongside with counter-arguments showing why conventionalism fails. Eventually, the basic points of critique can be shaped in terms of the distinction between instrumental and substantial reason.

Keywords: legal conventionalism, Andrei Marmor, Scott J. Shapiro, Eemil Lagerspetz

Language: English

Published: Number 1(10)/2015, pp. 14-30

DOI: https://doi.org/10.36280/AFPiFS.2015.1.14

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Number of downloads: 860

Monocentrism and Multicentrism as Legal Theories in the Global Era

Prof. dr hab. Tadeusz Buksiński

Adam Mickiewicz University in Poznań

English abstract: The article describes two opposing theories of legislation and jurisprudence in the global age: multicentrism and monocentrism. The first one claims that a new legal system at the supra-state level is emerging, which must take into consideration varied legal traditions. The second one stresses that certain fundamental principles must be shared today by all people. It seems that the ultimate goal of jurisprudence is to create a system of laws that reconciles multitude and diversity with unity.

Keywords: multicentrism, monocentrism, theory of legislation

Language: English

Published: Number 1(10)/2015, pp. 5-13

DOI: https://doi.org/10.36280/AFPiFS.2015.1.5

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Number of downloads: 701

Does American jurisprudence have any rules of interpretation of Constitution?

Dr Anna Tomza

University of Łódź

English abstract: The most discussed issue in the theory of law is the problem of its interpretation, and main question in this topic is – how to make a proper interpretation? The American common-law, opposite the European theory of law, seems not to have general rules of interpretation, but only the idea of proper interpretation. Also the methodology of statutory interpretation is some kind of the judge-made law. As Henry M. Hart said „The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation”. According to this, currently the question focuses on finding the generally rules of interpretation, which should be some kind of canons of the statutory interpretation. This article tries to give the answer to the question: „if American jurisprudence has any rules of interpretation of law?”.

Keywords: American jurisprudence, legal interpretation, rules of interpretation, Constitution

Language: Polish

Published: Number 2(9)/2014, pp. 125-133

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Number of downloads: 388

Objectivity in law – the institutional approach as an alternative to the dominant theories

Dr Maciej Pichlak

University of Wrocław

English abstract: The aim of the paper is to establish a theoretical elaboration of objectivity in law which would conform exiting linguistic practices in the legal field. It starts from a brief characterization of legal practice in this respect which allows for an exposure of semantic complexity of the term ‘objectivity’ in law. The term is said to take two basic meanings: objectivity as a fact and objectivity as a moral ideal. On this ground requirements towards a reliable theory of legal objectivity are defined: such a theory should not only make o room for both distinct meanings of legal objectivity, but also should consider their mutual relations. These requirements stemming from existing linguistic practice serve as criteria for examination of up to date theoretical concepts of objectivity. The paper discusses realistic, conventionalist, and idealistic theories of objectivity in law subsequently and exposes shortcomings of each of these. Eventually, key assumptions of an institutional theory of objectivity are presented which is claimed to offer a plausible understanding of objectivity in law in both its factual and ideal aspects.

Keywords: objectivity, institutional theory, realism, conventionalism, idealism

Language: Polish

Published: Number 2(9)/2014, pp. 108-124

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Number of downloads: 431

On responsibility, justification of punishment and theory of punishment as communication

Dr Michał Peno

Uniwersytet Szczeciński

English abstract: The article concerns the concept of punishment as an act of communication. Some retributivsts (i.e. ‘positive’ retributivists) believe that punishment communicates a censure. The article’s central proposition is that the act of communication is, in fact, strongly connected with the criminal responsibility. Furthermore, responsibility should not be identified with punishment. The so called positive retributivists claim that in order to fulfill communication purposes, offender have to be punished. However, punishment seems to be conceptually independent of the process of moral communication. It is shown that communication is linked with the very idea of criminal responsibility and the censure should by communicated through responsibility. Therefore, the article offers the view of responsibility as a complex process. Responsibility is an important social practice which in many cases can substitute punishment, particularly in its communicative aspect.

Keywords: responsibility, justification of punishment, theory of punishment as communication

Language: Polish

Published: Number 2(9)/2014, pp. 95-107

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Number of downloads: 366

Rule of law, public philosophy and moral responsibility of scientists

Prof. dr hab. Lech Morawski

Uniwersytet Mikołaja Kopernika w Toruniu

English abstract: The paper discusses some relationships between the rule of law and the public philosophy. It is unquestionable that nowadays the scientism has become one of the dominant ideologies of industrial and post-industrial societies. Scientists and researchers take an active part in public life, are advisors to governments and corporations, comment in the media important public events. Thus, the problem arises of their moral and legal responsibility for what they say and do in public life. In my opinion, we may distinguish two different models of responsibility, which I call a model of scientist as an ordinary citizen and model of scientist always on duty. To put it another way, we may ask, whether the scientist in public life like an ordinary citizen can act in accordance with his political, economic or religious sympathies and preferences or just like a judge, priest or a physician is always „on duty” and always must follow all the rules of his profession. I defend the view that the adoption of the second model is one of the necessary preconditions of the existence of informed and rational public opinion and thus, the informed and rational rule of law.

Keywords: rule of law, moral responsibility, legal responsibility, public philosophy

Language: Polish

Published: Number 2(9)/2014, pp. 85-94

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Number of downloads: 397

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