Prof. dr hab. Beata Polanowska‑Sygulska
Jagiellonian University
Language:Polish
Published: Number 2(7)/2013, pp. 78-84
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Number of downloads: 421
Uniformity of judicature and paradigm of judicial interpretation (in light of clara non sunt interpretanda rule)
Dr Tomasz Grzybowski
Supreme Administrative Court
English abstract: A subject of the article is uniformity of judicial interpretation in the context of two rules of interpretation, namely a clara non sunt interpretanda rule and an omnia sunt interpretanda rule challenging first mentioned method. The author points out that taking into consideration omnia sunt interpretanda rule, i.e. order to perform interpretation in every case, may lead to disintegration of judicial interpretation and as a consequence destabilization of judicature in general. Main thesis of the article is that institutional conceptualization of the clara non sunt interpretanda rule is an answer to this threat, because application of this rule enhances the argument from precedent in judicature. According to abovementioned version of clara non sunt interpretanda rule, legal text is considered as obvious and needs no interpretation if its meaning is certain in previous judicial interpretation, e.g. there is line of precedents or preliminary ruling. However it must be underlined that clara non sunt interpretanda rule is not unquestionable. It is a defeasible argument in judicial discourse; it only changes an argumentation burden which does not rest on the one who refers to this rule, but on the one who challenges the rule (wants to perform interpretation).
Keywords: judicial interpretation, clara non sunt interpretanda, omnia sunt interpretanda
Language:Polish
Published: Number 2(7)/2013, pp. 25-37
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Number of downloads: 411
Why do we consider a use of tortures – a collision of fundamental principles of the legal system
Mgr Paweł Przygucki
University of Łódź
English abstract: The article focuses on the dispute about the possibility of legalizing tortures in certain circumstances, that is so-called ‘ticking bomb scenario’ and ‘innocent hostage scenario’. Those cases occurred in reality, thus they triggered a discussion about moral and legal aspects of tortures. The aim of this publication is to reveal that in fact the aforesaid issue is a question of a collision of fundamental principles of the legal system – on the one hand there are dignity and rights of the defendant, but on the other should be mentioned such worths as public security or protecting innocent people’ lives. This publication also describes methods of solving a collision of law’s principles (on the basis of R. Dworkin and R. Alexy recommendations) as well as attempts to propose a specific penal law reaction to a crime of torture committed by a police officer or any other public investigator.
Keywords: tortures, collision of principles, ticking-bomb scenario, innocent hostage scenario
Language:Polish
Published: Number 2(7)/2013, pp. 63-70
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Number of downloads: 432
Are we all feminists now’’? The Challenge of Feminist Jurisprudence to Traditional Legal Theory
Dr Lidia Rodak
University of Silesia
English abstract: The potential of Feminist Jurisprudence is mainly built on its criticism of Traditional Jurisprudence. Through the deconstruction of the latter’s main categories such as objectivity, justice, equality, and rationality, Feminist Jurisprudence aims to demonstrate that Traditional Jurisprudence tends to mask inequality, exclusion and lack of recognition rather than beingable to bring about change or provide the values under research. What is more, FJ indicates a wide range of topics that are not explored by Traditional Jurisprudence and thus have nochance to be dealt with using traditional tools. As a result, Feminist Jurisprudence provides a separate language, a different epistemology and methodological tools that can broaden access to justice including all subjects by giving them recognition. What follows from thesetwo approaches to jurisprudence and two distinct sets of epistemological assumptions is a different understanding of the subject and a different vision of social relations. As Feminist Jurisprudence convincingly shows, traditional law, with its inclination for objectivity defends legal norms as part of the legal and social order rather than an individual autonomy and integrity of subjects. In this paper I would like to suggest a middle-way solution going beyondthe dualistic categories of objectivity and subjectivity. The proposal calls for a deep structuralchange of the legal discourse as the only one that really matters from the feminist point of view.
Keywords: Feminist Jurisprudence, traditional jurisprudence, objectivity, subjectivity
Language: Polish
Published: Number 1(8)/2014, pp. 67-76
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Number of downloads: 498
What „The Political” Can Bring Into The Polish Theory of Law. Toward a Further Investigations
Dr Michał Paździora, Mgr Michał Stambulski
University of Wrocław
English abstract: The political is a category entirely absent in the Polish theory and philosophy of law. Article presents history of “the political”, category developed by thinkers such as M. Weber, K. Marx, C. Schmitt, Ch. Mouffe and the main assumptions of the practical aims of theory of law present in alternative projects: Poznań-Szczecin methodological school and L. Morawski critical theory. Despite the declared theoretical differences, both projects are characterized by a similar understanding of the theory, which involves the objectivity of knowledge with involvement of universal point of view. Thus, the inclusion of the category of political in both projects, especially in legal education, is ignored.
Keywords: the political, postmodernism, agonism
Language: Polish
Published: Number 1(8)/2014, pp. 55-66
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Number of downloads: 427
The Notion of Ideological Interpellation and Critical Discourse on Law
Mgr Rafał Mańko
University of Amsterdam
English abstract: The present methodological paper aims at answering the question whether the notion of ideological interpellation, put forward by L. Althusser, in the form given to it by S. Žižek,can be operationalised in order to be deployed as a tool for the critical reading of legal texts. The paper gives a positive answer to the question, indicating that the application of the saidmethod may contribute to the opening of legal discourse towards the impact of critical theory. The paper consists of three parts. The first part presents Žižek’s theory of ideology, thesecond part discusses the notion of ideological interpellation, and the third part is devotedto a preliminary attempt at operationalising the said notion.
Keywords: Louis Althusser, Slavoj Žižek, ideological interpellation, theory of ideology
Language: Polish
Published: Number 1(8)/2014, pp. 41-54
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Number of downloads: 391
Why Edward Abramowski’s cooperativism may be not the utopia?
Dr Karol Kuźmicz
University of Białystok
English abstract: Edward Abramowski (1868–1918) was a famous Polish theorist of cooperativism. He wasa socialist but critical assumptions of Marxism theory, which dominated at the turn of 19thand 20th century. The author thesis is that Abramowski’s ideas were not utopian. His ideaare confirm in reality since nowadays cooperatives and cooperative movement are part ofsocio-economic reality. According to Abramowski cooperative possess following features:1) is a cell of the future society; 2) is a voluntary association for the common interestsof people with equal rights; 3) is a co-own and jointly govern; 4) law without coercion isthe service of all man and who voluntarily accept it; 5) protects individual freedom; 6) theprinciple of majority does not infringe the freedom of individuals; 7) cooperative is part ofthe creation of a new world. Abramowski did not accepted idea of revolutionary struggle. He believed in the essence of cooperativism is the idea of human brotherhood. This is notonly the social message, but first of all the moral message for change the human relations.
Keywords: Edward Abramowski, cooperativisim, utopia
Language: Polish
Published: Number 1(8)/2014, pp. 29-40
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Number of downloads: 411
Shackled by the legal sensus communis. On the difficulties of critically oriented sociology of law
Dr Hanna Dębska
Pedagogical University of Cracow
English abstract: The Polish sociology of law is unfamiliar with the critical sociology of law as proposedby P. Bourdieu – one of the most acclaimed contemporary sociologists. Therefore the mainaim of the paper is to indicate the causes of this neglection. The text also points out waysin which Bourdieu’s approach can assist in describing and explaining the social functioningof the legal universe. There are several reasons for the lack of reception of Bourdieu’stheory. The lack of critical debates in the field of law is caused by the assumptions of thetheory. Its main goal is to uncover the mechanisms of domination. Bourdieu’s project givesan opportunity not only to disclose the mechanisms by which the law preserves existingsocial relations, but also to discredit its universality by showing that it favours dominantgroups and agents. As such, Bourdieu’s theory threatens the foundations of the field oflaw. Another reason for this negligence among the Polish sociologists of law is structuralin nature. Firstly, the problem lies in the location of the field of law in the field of power.Secondly, in a specific position that sociology of law holds at faculties of law: academicswho are working on that field are mostly lawyers entangled in legal thinking schemata (legaldoxa), legal sensus communis which is considered as indisputable in the field of law.
Keywords: legal sociology, Pierre Bourdieu, legal doxa
Language: Polish
Published: Number 1(8)/2014, pp. 18-28
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Number of downloads: 428
A short history of the British Critical Legal Conference or the responsibility of the critic
Prof. dr Costas Douzinas
Birkbeck, University of London
English abstract: General jurisprudence is a type of thinking about law and the social bond developed by British critical legal scholars. Returning to the classical concerns of (legal) philosophy, it examines the legal aspects of social reproduction both inside and outside state law, treating posited law as a part of wider legality. It brings back to the centre the aesthetic, ethical and material aspects of legality, as well as includes the political economy of law, the legal constructions of subjectivity and the ways in which gender, race or sexuality create forms of identity both disciplining bodies and offering sites of resistance. The British Critical Legal Conference (CLC) is a school of thought committed to a plurality of theoretical approaches to law and to radical politics. The first CLC took place in 1985 and has taken place annually without interruption since. The CLC has introduced a number of themes, approaches and strategies unknown or dismissed by mainstream scholarship, including semiotics, rhetoric, literature, aesthetics and psychoanalysis. A variety of critical schools, such as postmodernism, phenomenology, postcolonialism, critical race, feminism, queer theory, art theory and history, the ethics of otherness, the ontology of plural singularity, the critique of biopolitics and post–politics have been pioneered in the CLC.
Keywords: Critical Legal Studies, aesthetics, ethics, British Critical Legal Conference
Language: Polish
Translated by: Rafał Mańko
Published: Number 1(8)/2014, pp. 5-17
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Number of downloads: 440
The justification system of John Rawls’s theory of justice
Mgr Wojciech Ciszewski
Jagiellonian University
English abstract: The paper considers a fundamental issue set against the backcloth of John Rawls’s theory of justice, namely the structure of its justification system. The issue is so significant, because justification fulfills a key role in the Rawlsian conception. J. Rawls offers a sophisticated system consisting of different arguments aimed at reaching full justification. In the author’s opinion, there are five elements that relate to each other: 1) original position with the idea of the veil of ignorance, 2) reflective equilibrium, 3) public reason, 4) overlapping consensus, and 5) fundamental constructivist ideas. The five above mentioned arguments seem to be based on four different argumentative strategies: 1) a coherentist strategy – referring to the general and internal coherence of the system; 2) a contractualist strategy – based on the notion of social contract; 3) a pragmatic strategy – referring to the connection with effective social practices; and 4) a constructivist strategy which is founded in the particular view of reasonableness. The justification system evolves from A Theory of Justice to Political Liberalism. However, though the system develops, it is always aimed at the same goal – to gather our considered beliefs and facts about a modern society into a coherent set of judgments which may claim to be valid.
Keywords: John Rawls, justice as fairness, veil of ignorance, original position
Language: Polish
Published: Number 1(6)/2013, pp. 34-53.
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Number of downloads: 471