Articles – Page 29

Evidence (or proof?) as law’s gaping wound: a persistent false aporia?

Prof. dr José Manuel Aroso Linhares

University of Coimbra

English abstract: In the paper I would like to allude to the possibilities that at last seem recognisable (and can be explored) when, expressly refuting the scission postulate (either in its luminous positive version or in its deconstructive aporetic reproduction), an internally relevant thesis for methodological unity between evidentiary adjudication and adjudication tout court (between judicial reasoning with proof and adjudicative reasoning as the realisation of Law) is advocated – with the certainty that the defence of this claim does not deny (or dilute) the specificity of the evidence problem, but instead provides this specificity with new opportunities for being understood and experienced in direct connection with the (increasing!) need to identify law’s specific project and its autonomous practical world as an unmistakable cultural acquisition. To condense the argument, I would say that methodological unity has to do with the priority of controversy – as a specific practical structure demanding judgment and the constitutive entrance of the comparing Third – whereas the specificity of evidential judgment corresponds to the irradiance of the referential claim and the narrative intelligibility that identifies it.

Keywords: law of evidence, Piyel Haldar, judicial reasoning, realisation of Law

Language: Polish
Translated by: Bartosz Wojciechowski

Published: Number 1(6)/2013, pp. 5-20.

Download: Download

Number of downloads: 491

On three limitations of the lawyers’ power

Dr Paweł Jabłoński, Dr Przemysław Kaczmarek

University of Wrocław

English abstract: According to the initially assumed concept of limitations of lawyers’ power the most important elements of those limitations are: legal text, legal culture, and ethics. This structure is characterized by the relations where the anterior element defines the framework of the latter, i. e. text affects legal culture and ethics, while legal culture affects ethics. However, exceptions apply where the latter element might lead to the collapse of the framework of the primary factor (for instance, interpretation contra legem based on axiological argumentation). The aforementioned structure of limitations of legal power is complemented by interaction of various other elements, such as social expectations, political entanglement (depending on the extent to which it is not consumed by ethics) and non-judicial expertise.

Keywords: limitations of the lawyers’ power, legal text, legal culture, ethics

Language: Polish

Published: Number 1(6)/2013, pp. 93-108.

Download: Download

Number of downloads: 441

The ways of understanding creative (constructive) interpretation

Dr Olgierd Bogucki

University of Szczecin

English abstract: The purpose of this paper is to analyse the notion of creative interpretation (of any text, especially creative interpretation of a legal text). The author points out that there are two different meanings of the expression “creative interpretation”. The first one can be called “ontological” and the second one – “methodological”. A given interpretation is ontologically creative when it creates a new object (which is a new meaning of some sort) and it is methodologically creative when it is established without applying any rules. Different theoretic approaches to legal interpretation presuppose different relations between ontological creativeness and methodological creativeness. The article explores some of them. The main thesis of the article is that when we say that a given interpretation is ontologically creative, we do not need to say it is methodologically creative (and vice versa).

Keywords: legal interpretation, interpretation ontologically creative, interpretation methodologically creative

Language: Polish

Published: Number 1(6)/2013, pp. 21-33.

Download: Download

Number of downloads: 455

A few rare remarks on legal gaps

Dr Maciej Koszowski

WSB Dąbrowa Górnicza

English abstract: The article addresses the issue of legal gaps (lacunas). Specifically, the author puts forward the general definition of legal gap which uses the concept of ‘automatically applicable’ legal rule as well as presupposes specific understanding of law – namely, that it is consisted solely of the rules of the mentioned type. Next, basing upon that definition, he defines three kinds of lacunas that are commonly distinguished in Polish and international scholarly literature, i.e. extra, intra and contra legem. As it is demonstrated, the merits of proffered definitions are manifold. First of all, they reduce the dependence of the notion of legal gap on value judgment. Secondly, they fairly well fit into the structure of contemporary legal orders. Thirdly, owing to them, the filling of legal gaps is not pointless. And lastly, the other kinds of lacunas one may encounter in academic literature are not at odds with the proffered theory, at least not by definition. At the end of the article, in the light of the main idea of the author’s conception, the Anglo -Saxon notion of the case of first impression is discussed, taking into account different models of (approaches to) the phenomenon of a binding judicial precedent.

Keywords: legal gap, extra legem gap, intra legem gap, contra legem gap

Language: Polish

Published: Number 1(6)/2013, pp. 109-122.

Download: Download

Number of downloads: 1,458

Is the concept of law an essentially contested concept?

Dr Adam Dyrda

Jagiellonian University

English abstract: Some legal thinkers (R. Dworkin amongst them) suppose that the concept of law is an essentially contested concept. This article firstly introduces the idea of essentially contested concepts, developed by W.B. Gallie. Secondly, it is argued that the concept of law cannot be perceived as an essentially contested concept, though some related concepts (such as “the rule of law”, according to J. Waldron’s analysis) can. Finally, I propose some arguments, in which I partly follow K. Ehrenberg’s recent analysis, showing that in Dworkinean terms, calling law an essentially contested concept may raise doubts and controversy.

Keywords: contestation, concept, conception, essentially contested concepts

Language: Polish

Published: Number 1(6)/2013, pp. 54-67.

Download: Download

Number of downloads: 423

Aitia – Aristotelian guilt. Definitional issues (part 2)

Dr Waldemar Gontarski

European School of Law and Administration

English abstract: When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to mental capabilities of the actor in respect to a particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between the actor’s behavior and the resulting damage). Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and the related subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.

Keywords: Aristotle, the triad of causes, the triad of consequences, justice

Language: Polish

Published: Number 1(6)/2013, pp. 68-92.

Download: Download

Number of downloads: 398

The cultural grounds of Japanese criminal law in action

Prof. dr hab. Jacek Izydorczyk

University of Łódź

English abstract: The author describes the Japanese way of criminal justice in practice (law in action). But he shows the Japanese law in action as a ‘product’ of a quite different culture then the culture of Western World. First, presents in a glance history and religion of Japan. Next, shows development of new laws for Japan during XIX century when Japanese decided to ‘escape from Asia’ and join the Western World. Third part of the paper, explains the criminal justice system in contemporary Japan. The main part of the article focuses on Japanese criminal law as an everyday law in action (the law in action quite often very difficult to understand for Westerners). According to the author there are five main examples of those cultural grounds of Japanese criminal law in action. First – the Japanese way of preventing crimes; second – the Japanese idea what is (and what for actually is) criminal law; third – problem of so-called the opportunism principle which really dominates the criminal procedure in Japan; fourth – phenomenon of Boryokudan (Yakuza) in Japan; and last (fifth) – question what actually means the principle of fair trial (i.e. protection of defendants rights) in Japan in real life. The author’s conclusion is simple: law in action always depends from the culture of a country. That is why – when we talk on Japan – much more important is to understand such cultural grounds than just to know the legal system described by official ‘paper laws’.

Keywords: Japanese criminal law, justice, legal culture, prevention

Language: Polish

Published: Number 2(15)/2012, pp. 77-91.

Download: Download

Number of downloads: 420

In dubio contra reo? Peter Fechter Case

Dr Justyna Holocher

English abstract: The subject of the present paper is the evaluation of application of the rule in dubio pro reo in one of the so-called Border Guard Cases (Mauerschützenprozesse), known as the case of Peter Fechter. The question posed in the paper is, whether under circumstances of the lack of sufficient evidence, the application of the rule in dubio pro reo to some of the accused ones can result in assuming the rule in dubio contra reo (which is contradictory to the principles of criminal justice) against other accused in the same process. The main thesis of the paper is that the assumption of the rule in dubio contra reo is unacceptable on the ground of the principles of fair judicial proceeding. Such a rule violates principles of procedural and substantive justice and in consequence it also violates personal rights. In the analyzed case, under circumstances of the death of one of the accused border guards, the application of the rule damaged unlawfully the good name of the deceased.

Keywords: Berlin Wall, Petera Fechtera case, in dubio pro reo, in dubio contra reo

Language: Polish

Published: Number 2(15)/2012, pp. 67-76.

Download: Download

Number of downloads: 371

Aitia – Aristotlelian guilt. Definitional issues

Dr Waldemar Gontarski

European School of Law and Administration

English abstract: When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to the mental capabilities of the actor in respect to the particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between actor’s behavior and the resulting damage. Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and related to it subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.

Keywords: Aristotle, the triad of causes, the triad of consequences, justice

Language: Polish

Published: Number 2(15)/2012, pp. 51-66.

Download: Download

Number of downloads: 445

Law of spontaneous order – Hayekian concept of regulation

Mikołaj Firlej

University of Warsaw

English abstract: In the article three general questions were posed as a means of presenting explorative issue: (1) Law as regulation of an order; (2) Law as regulation of a liberty; (3) Controversy of social industry in law. In order to realize the issue thus outlined in the first section it has been shown two different and opposites kinds of orders in widely understanding term ‘sociology of law’ as well as Hayekian criticism of Descartes rationality. The structure of exogenous and endogenous orders has been carefully analysed in relation to their ancient equivalents: taxis and nomos. Special attention has been given to make an explanation of Hayekian understanding of legal frameworks connected with the process of organization and division of power. It has been outlined the rule of law in political system of Austrian economist (concept of demarchy) and his principal arguments for legislature and problem of ‘good regulation’. In the second part of thesis it has been shown a widely connection between spontaneous order and both liberty and the process of progression. In this section the strive was to present mostly values and good points in Hayekian conception, but there is also a critical part concerning both unsymmetrical constraint of freedom and symmetrical. In the third part of this thesis it has been shown the historical background of Hayekian research connected with the controversy of social industry in law. Referring to the intellectual dispute between Spencer’s organicism and Durkheim’s paternalistic conception Hayek has divided between law and law-making (legislation) and he has proved that law is only a spontaneous order notwithstanding good legislation means rules of harmonization and maintenance this kind of abstract social structure. Hayek’s concept of law is in accordance with philosophical, sociological, economical and political research of the general and popular nowadays problem with the new paternalism.

Keywords: Friedrich A. Hayek, regulation of order, regulation of liberty, social industry

Language: Polish

Published: Number 2(15)/2012, pp. 36-50.

Download: Download

Number of downloads: 417

« Previous Page