Articles – Page 4

William David Ross’s prima facie duties vis-à-vis Ronald Dworkin’s principles of law

Dr hab. Milena Korycka-Zirk, prof. UMK

Nicolaus Copernicus University in Toruń

English abstract: Prima facie duties central to W.D. Ross’s concept of ethical conflict and principles of law, which are, in turn, central to R. Dworkin’s individualistic conception of law as interpretation, show similarities in the process of their application. A comparative analysis of prima facie duties and principles of law leads to the conclusion that there is a shared essence underlying the notion of normative conflict (collision of prima facie duties or legal principles in so-called “hard cases”). This essence consists in the assumed importance of the factual situation as a factor determining an ethical and legal choice from among conflicting duties or principles, and the importance of the decision-making subject in resolving the conflict. Factuality and the unique subject (whether the “plain man” or “Judge Hercules”) are the factors that condition the possibility of identifying the proper duty and nonabstract right. Simultaneously, these are the factors that establish normative conflicts as disputes not determinable by an abstractly assumed moral principle; they open normativity to new narratives, to development, and to evolution. They individualize the conflict through the individualized nature of facts and the decision-making subject. Thus, a comparative analysis may lead to the conclusion that the assumption of openness to collisions of principles and duties is an expression of liberal thought, as it is not a narrative that imposes or excludes. Any abstract approach to conflict resolution is inherently oppressive, as it disregards the importance of the decision-making subject and the complexity of factual situations. Individualism opens up the conflict rather than closing it. This is the nature of declarations of individual rights and freedoms – when conceptualized as legal principles, they inevitably expose rights and freedoms to conflict.

Keywords: prima facie duties, principles of law, hard case, collision of principles, pluralism, individualism

Language: Polish

Published: Number 2(43)/2025, pp. 22-41.

DOI: https://doi.org/10.36280/AFPiFS.2025.2.22

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Number of downloads: 155

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Incoherence of Judges’ Decisions on Punishments

Dr Michał Janowski

University of Łódź

English abstract: The author conducted empirical research on the coherence of actual decisions on the type and severity of punishments imposed by judges. The empirical analysis undertaken by the author had a dual structure. It consisted of an examination of court files of actual criminal cases and a questionnaire study conducted among professional criminal judges. The results of the questionnaire study are presented in this article. The questionnaire study was based on an empirical experimental model. Decisions made by judges during a laboratory simulation differ widely even though the facts and legal rules are the same. Judges do not coherently translate sentencing factors into specific criminal penalties. There is no common translation factor. What is more, judges’ decisions differ depending on whether they are made in isolation or by comparison to cases belonging to another category.

Keywords: empirical research, incommensurability of values, incoherence of punishments, criminal law

Language: Polish

Published: Number 2(43)/2025, pp. 7-21.

DOI: https://doi.org/10.36280/AFPiFS.2025.2.7

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Number of downloads: 160

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Pygmalion’s Digital Dream: An Outline of Philosophical and Legal Issues of Human Digital Twins on the Example of Medical Applications

Dr hab. Tomasz Widłak, prof. UG

University of Gdańsk

English abstract: The aim of the article is to present a synthesis of the technological and social framework of the new, disruptive technology of human digital twins (HDT) and to outline the most important philosophical and legal issues related to it. The latter include ontological and phenomenological aspects in relation to the problem of legal personality and the status of HDT. Due to the universality of the technology and the breadth of issues related to it, the scope of the discussion was limited to examples of the use of technology in health care and medicine. The article presents the possibilities and threats of using HDTs in this area. Selected, most important examples of potential ethical and legal problems posing a challenge to future and current regulations in areas such as privacy and data protection, data quality and ownership, and patient autonomy were also analyzed. The conclusions of the article, point that the changes resulting from this disruptive technology go beyond purely practical aspects and touch the philosophical foundations of the legal order. HDT technology itself, at its early stage of development, does not clearly determine the direction of evolution of legal humanism paradigm towards inclusive posthumanism or technological transhumanism. The need to consider the phenomenological perspective of the HDT experience was emphasized. It may become the most important factor determining possible conceptual changes in law and jurisprudence. In addition to the discussion, the article provides an extensive review of the existing computer science literature on HDT. There have been no studies on the issue of HDT from the perspective of jurisprudence in the legal literature so far.

Key words: Human digital twin, personalized medicine, artificial intelligence, new technology law, medical law, transhumanism, digital clone.

Language: Polish.

Published: no. 1(42)/2025, pp. 93-111.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.93

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Number of downloads: 186

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Psychological Competences of Mediators. Selected Aspects of Creative Thinking in the Process of Mediated Conflict Resolution

Dr Martyna Płudowska, Prof. dr hab. Andrzej Sękowski

The John Paul II Catholic University of Lublin

English abstract: In Poland, recent years have seen a significant increase in interest in alternative methods of resolving conflicts and disputes, including mediation. This is not surprising, since treating conflict work as a creative process during which the parties work out a mutually satisfactory solution makes it an attractive alternative to taking a dispute to court. Assuming that for effective mediation, the mediator’s personal predispositions are as important as the knowledge and skills acquired in courses and training, we analyze selected psychological competencies of mediators, taking into account the specifics of the conflict resolution process they support. The article emphasizes the importance of creative thinking and behavior in the mediation process, taking into account the various stages of the process.

Key words: ADR, mediation, conflict, psychological competence of mediators.

Language: Polish

Published: no. 1(42)/2025, pp. 77-92.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.77

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Number of downloads: 190

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Around Selected Themes in the Moral Philosophy of Joseph Raz: Part I

Prof. dr hab. Beata Polanowska-Sygulska

Jagiellonian University, Kraków

English abstract: One of the most eminent contemporary legal philosophers, Joseph Raz, made significant contributions not only to the aforementioned discipline, but also to political philosophy and moral philosophy, the three branches of which, in his view, contribute to practical philosophy. J. Raz’s achievements in the latter two areas are less familiar to the Polish reader than his concepts in the field of jurisprudence, all the more so because none of his works, which are part of the aforementioned, more general fields, has been translated into Polish. The present essay is devoted to the key threads of the thinker’s inquiries in the field of moral philosophy. The reconstruction made of J. Raz’s views takes into account the following ideas: his original version of ethical pluralism, the concept of constitutive incommensurability, a specific understanding of the universality of values, the thesis of their social dependence and the concepts of personal sense and personal attachment. The interpretation of the Oxford philosopher’s reflections is enriched by two digressions, referring in turn – to Charles Taylor’s critique of the instrumental way of life and to Ronald Dworkin’s underlying jurisprudence of ethical monism. This is because arguments can be derived from the reflections of the protagonist of the essay, which call into question the theses of the two aforementioned thinkers.

The presentation and analysis of the key themes of J. Raz’s moral philosophy is complemented by the author’s reminiscences of her meetings and conversations with the Oxford scholar.

Key words: Joseph Raz, ethical pluralism, constitutive incommensurability, social dependence thesis, personal meaning, personal attachment, universality of values.

Language: Polish

Published: no. 1(42)/2025, pp. 60-76.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.60

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Number of downloads: 211

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Judicial Update of the Meaning of a Legal Text in Three Questions

Dr Paulina Konca

University of Silesia, Katowice

English abstract: The aim is to illustrate the complexity of the process of judicial updating of the meaning of a legal text in changing circumstances (e.g. developments in technology and science, social changes) and to answer the question of the role of courts and the legislator in making updates. On the basis of an analysis of literature, legislation and judicial practice, the basic problems of updating a legal text and their selected solutions were presented. The topic has been widely discussed in the context of the Constitution, while the literature on updating statutes is still relatively rare. Meanwhile, the dynamics of diverse external changes is intense. It has become urgent to develop a theoretical framework for this issue. Courts, when updating, must ask themselves three questions. First, has there been a change? Second, what is the impact of the change on the meaning? Third, is the judiciary allowed to update? Within each of them, the question arises as to who is entitled to make a binding conclusion: the courts or the legislature. Ad 1. The determination of a change is often not difficult, but in doubtful cases where there is no general agreement that circumstances have changed, the courts would be well advised not to update on their own, but to rely on the legislature’s assessment of the extent in dispute. Ad 2. Courts determine the updated meaning, primarily guided by the purpose of the regulation. However, even when updating the same provisions, two different courts may come to different conclusions. Ad 3. Courts update, inter alia, when they conclude that the failure to update is an omission on the part of the legislature and consider themselves entitled to correct this error. Significantly, in some countries, the ability of the courts to update arises from legislation: the Irish and Spanish provisions governing the issue is set out in the text.

Key words: Interpretation, construction in changing circumstanceseparation of powers, courts, dynamic interpretation, lawmaker.

Language: Polish

Published: no. 1(42)/2025, pp. 40-59.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.40

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Number of downloads: 265

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Information Civilization and the Law: Significance of Limiting Factors. Introductory Insights

Dr Paweł Kłos

Maria Curie-Skłodowska University, Lublin

English abstract: The primary aim of this text is to show the specificity of Central European constitutionalisation after the fall of communism. Its peculiarity lies in the systemic search for the legitimacy of new communities in the experience of the past. This specificity will be examined within the framework of a consideration of the contemporary understanding of the Central Europe concept. This is particularly necessary in the light of attempts to combine (in this area) the universal values of the Western world with references to communitarian elements, usually national. The main idea of the following text is to identify the hybrid character of Central European political communities. This is because, at the moment of constitutionalisation, they decided to merge national and liberal-democratic values.

Key words: Information civilization, information society, law, logic, communication.

Language: English

Published: no. 1(42)/2025, pp. 23-39.

DOI: https://doi.org/10.36280/AFPiFS.2025.1.23

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Number of downloads: 166

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Constitutionalized by the Past. The Role of National Identity and Collective Sense of Experience in Central European Constitutionalization

Dr Filip Cyuńczyk

SWPS University

Key words: Central Europe, Constitutionalisation, Law and Memory, Memory Politics.

Language: English

Published: no. 1(42)/2025, pp. 7-22.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.81

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Number of downloads: 179

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Legal and Political Positivism – Uberto Scarpelli’s Concept

Dr Karol Gregorczuk

The University of Gdańsk

English abstract: Unlike most representatives of legal positivism, one of Scarpelli’s main assumptions was to transfer reflection on positivism from the sphere of science to the sphere of politics. The legal system is a human activity, and as such it must be considered through norms, assessments and values. Normative statements are formulated from an internal point of view (according to Hart), which requires prior involvement of a given person and the adoption of a specific critical and reflective attitude towards legal rules. Legal activity consisting in the reconstruction, systematization and interpretation of norms essentially serves to express the political will of society organized into a modern state. This political will expressed through positive law is understood as shaped by values, choices, programs and orders of behavior which, expressed in a certain way, can, under certain conditions, be attributed to the entire society, can be considered as the general will of a politically organized society. Law is the result of purposeful activity of entities equipped with legislative competences, which thus pursue specific political goals.

Keywords: Scarpelli, positivism, political, legal, norms

Language: Polish

Published: nr 4(41)/2024, pp. 104-112.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.104

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Number of downloads: 172

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The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr hab. Rafał Mańko

Central European University, Democracy Institute (Budapest, Hungary)

English abstract: The purpose of this article is to examine the position of Evgeny B. Pašukanis regarding the problem of autonomy of law. The source material for the research is his monograph entitled The General Theory of Law and Marxism (1924), in which he laid down the framework of his hylomorphic theory of law, also described as materialist or realist. The article begins with a reconstruction of the basic assumptions of Pašukanis’s hylomorphic theory of law and then moves on to the key issue of his views on the genesis of juridical form. In the light of the analysis, the article shows that the essence of law in J Pašukanis’s view is that it is a form that shapes and makes possible the relations of economic exchange that constitute its proper matter. Against this background, the article addresses the issue of the autonomy of law, indicating that it should be considered in two dimensions: the internal autonomy of law, i.e. the autonomy of juridical form in relation to its content, and the external autonomy of law, i.e. the autonomy of law in relation to the state, politics and ideology. When it comes to the internal autonomy of law, the paper points out that the relationship of the form of law to its matter is – in Pašukanis’s view – of a dialectical nature, which results in his rejection of Marx’s conception of law as a ‘superstructure’ reflecting economic relations in the ‘base.’ When it comes to the external autonomy of law, Pašukanis is firmly on the side of a hard ontology of law, based on its hylemorphic substance (the composite of the matter of acts of exchange and its legal form), which makes law primary vis-à-vis the state and politics and essentially distinct from ideology. This does not, of course, exclude the ideological nature of law, but – again contrary to Marxists – Pašukanis does not allow for the recognition of law as an essentially ideological phenomenon.

Keywords: autonomy of law, ideology, hylomorphism, juriscentrism, juridical form, legal form, Pašukanis

Language: Polish

Published: nr 4(41)/2024, pp. 91-103

DOI: https://doi.org/10.36280/AFPiFS.2024.4.91

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Number of downloads: 203

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