Archiwum Filozofii Prawa i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVR

Autonomy of Law in the Face of Bioethical Problems

Dr hab. Martyna Łaszewska-Hellriegel, prof. UZ

The University of Zielona Góra

English abstract: The article deals with the issue of the autonomy of law in bioethics. The first part of the text briefly presents the concepts of the autonomy of law developed by the doctrine, which are then juxtaposed with the specifics of bioethics. In epistemological terms, bioethics is a kind of hybrid, which will consist of both scientific claims and ethical arguments. The article asks whether we can speak at all about the concept of autonomy of law in bioethical issues? Or will legal arguments always depend on ethical principals? Finally, in which cases of bioethical argumentation can autonomy of law be seen? In this context, first of all, it draws the attention to the main task of bioethics, namely, the search for pragmatic solutions.

Keywords: Autonomy of law, bioethics, specificity of bioethics, postulate of moral autonomy of law, neutrality of law.

Language: Polish

Published: nr 4(41)/2024, pp. 81-90.

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

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Number of downloads: 166

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The Structural Determinants of Attitudes of Distrust in the Practice of Professional Roles by Representatives of Selected Legal Public Trust Professions

Dr hab. Maciej Wojciechowski, prof. UG

The University of Gdańsk

English abstract: In the article, I try to show that legal dualism provides a conceptual grid for the analysis of the crisis of the rule of law. In demonstrating this, I first introduce the concept of legal dualism and then present autocratic legalism and abusive judicial review in its light. Two variants of the conceptual framework of legal dualism are suitable for describing and explaining these forms of governance. They present legal dualism as a) an instrumental action of „the main actors” in public life, and b) a social attitude that lacks a cultural imperative that allows citizens to identify with the law. Two main conclusions can be drawn from the article’s findings. First, autocratic legalism and abusive judicial review are based on the instrumentalization of the rule of law as a political ideal. Second, legal dualism as a social stance indicates that insufficient consideration of the social dimension of law has made it easier for political centres to challenge the liberal vision of the rule of law, presented by its opponents as the rule of lawyers, the social elite. A response to the charge of alienating the law in different configurations (political constitutionalism versus legal constitutionalism) is the idea of inclusivity, which can be expressed in different theoretical languages. The context for the conclusions of the article is the constitutional crisis, which is also present in the Polish legal order The empirical documentation does not determine the research methodology in the presented article. I pursue in it an approach that can be attributed to the social theory of law (B.Z. Tamanaha).  

Keywords: trust, distrust, legal practice, lawyers, judges, legal formalism

Language: Polish

Published: nr 4(41)/2024, pp. 66-80.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.66

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Number of downloads: 174

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Goodbye, Rule of Law? Diagnosis and Perspective

Prof. dr hab. Przemysław Kaczmarek

The University of Wrocław

English abstract: In the article, I try to show that legal dualism provides a conceptual grid for the analysis of the crisis of the rule of law. In demonstrating this, I first introduce the concept of legal dualism and then present autocratic legalism and abusive judicial review in its light. Two variants of the conceptual framework of legal dualism are suitable for describing and explaining these forms of governance. They present legal dualism as a) an instrumental action of „the main actors” in public life, and b) a social attitude that lacks a cultural imperative that allows citizens to identify with the law. Two main conclusions can be drawn from the article’s findings. First, autocratic legalism and abusive judicial review are based on the instrumentalization of the rule of law as a political ideal. Second, legal dualism as a social stance indicates that insufficient consideration of the social dimension of law has made it easier for political centres to challenge the liberal vision of the rule of law, presented by its opponents as the rule of lawyers, the social elite. A response to the charge of alienating the law in different configurations (political constitutionalism versus legal constitutionalism) is the idea of inclusivity, which can be expressed in different theoretical languages. The context for the conclusions of the article is the constitutional crisis, which is also present in the Polish legal order The empirical documentation does not determine the research methodology in the presented article. I pursue in it an approach that can be attributed to the social theory of law (B.Z. Tamanaha).  

Keywords: rule of law, legal dualism, autocratic legalism, the role of judges

Language: Polish

Published: nr 4(41)/2024, pp. 53-65.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.53

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Number of downloads: 249

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„Back and forth” – The Rule of Law from its Origins to its Application in the Adjudication of the CJEU

Dr hab. Karolina M. Cern, prof. UAM

Adam Mickiewicz University

Dr hab. Barbara Janusz-Pohl, prof. UAM

Adam Mickiewicz University

English abstract: In this paper, we set forth three research theses. In order to justify them, we summarily recall and discuss the theses regarding the origins of the emergence of the concept of the Rule of Law (hereafter RoL) in the 12th century in common law, as formulated by the American historian of constitutionalism Charles Howard McIlwain. Since his thesis on the medieval distinction between jurisdictio and gubernaculum has been taken up in the works of Gianluigi Palombelli, so we recall the main elements and points of the argumentation of this contemporary Italian philosopher and legal theorist regarding RoL as different from Rechtsstaat (hereafter RS). Taking into account the features of the historically shaped concept of RoL, we analyze the process of operationalisation of RoL by the CJEU, followed by the legal definition of RoL in the European Parliament’s Regulation (EU, Euratom) 202/2092 of December 16, 2020.

Keywords: The rule of law (RoL), common law, jurisdictio and gubernaculum, Rechtsstaat (RS), Court of Justice of the European Union (CJEU).

Language: Polish

Published: nr 4(41)/2024, pp. 36-52.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.36

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Number of downloads: 267

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On the Difference Between a Strong and Weak Version of the Idea of an Internal Point of View

Dr Paweł Jabłoński

The University of Wrocław

English abstract: This article aims to theoretically expose the claim that the choice between framing the activity of courts in hard cases as “purely political” or “purely juridical” activity is a false choice. I achieve this goal in the following way. First, I introduce the notion of an epistemic account of the internal point of view, which is linked to the conditions of legal cognition. Then I propose a distinction between a strong and weak account of the internal point of view so understood. Such criteria as the autonomy of the law, the relevance of the subject factor in the application of the law, or the arguability of the content of the law play a fundamental role here. Next, I provide a more detailed characterization of the strong view of the internal point of view and the weak one. I try to show that a sharp line between what is legal and what is political is possible only with the adoption of a strong account of the internal point of view. At the same time, I give reasons why such an account of the internal point of view should be rejected. In the concluding section, I briefly summarize the most important findings.

Keywords: internal point of view, legal cognition, Hart

Language: Polish

Published: nr 4(41)/2024, pp. 19-35.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.19

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Number of downloads: 243

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In Search of the Nomos of Law. Classical Interpretations and New Challenges to the Autonomy of Law

Dr hab. Maciej Pichlak, prof. UWr

The University of Wrocław

Dr Mateusz Wojtanowski

The University of Wrocław

English abstract: The aim of this article is to expose the concepts of the autonomy of law and, more primary, the nomos of law, together with the problems that these concepts imply. Contemporary challenges of legal practice and legal science, such as crises of the rule of law or the juridification of successive spheres of social life, call for a re-positioning and rethinking of the question of the autonomy of law. As the article points out, the discussions around these challenges can be read as disputes about the nomos of law – its possibility, nature and location. In this vein, the article analyses the concept of the nomos of law and then, with reference to Carl Schmitt’s interpretation of this notion, addresses the question of the possibility of the autonomy of law. The article also reconstructs the basic theoretical positions on the nature of the nomos of law and the autonomy of the legal order, with particular reference to the output of the Wrocław school of legal theory and philosophy of law in this area. Against this background, selected current challenges to the autonomy of law are considered.

Keywords: Autonomy of law, nomos of law, Wrocław school of legal theory and philosophy of law, Włodzimierz Gromski, crisis of autonomy of law, Carl Schmitt

Language: Polish

Published: nr 4(41)/2024, pp. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.5

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Number of downloads: 241

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Formulating the Provisions on Entry into Force of a Generally Applicable Normative Act: Critical Analysis Engendered by the 2023 Act Amending the Electoral Code

Mikołaj Truszkowski

Lodz University 

English abstract: This article critically analyses the provisions on entry into force, based on the provisions of the 2023 Act Amending the Electoral Code, which made the entry into force of certain normative solutions dependent on a deadline specified in the announcement of the competent centralnauthority of state administration. However, this construction is not found in the directives for the construction of legal acts, specified in the Principles of Legislative Technique of 2002. Additionally, the article also draws attention to legal problems resulting from the use of such blameworthy legislative practice, including in the context of the presumption of widespread familiarity with the law. Moreover, this announcement, in accordance with statutory regulations, was subject to promulgation in the Journal of Laws of the Republic of Poland, although this is not reflected in the Act on the Promulgation of Normative Acts and Certain Other Legal Acts. Therefore, this legislative maneouvre should be considered unacceptable and, consequently, in some cases, inconsistent with Article 2 of the Constitution of the Republic of Poland, which establishes the principle of a democratic rule-of-law state. In order to justify the presented thesis statement, the author analyses the provisions of the Act Amending the Electoral Code, discusses the conceptual apparatus and theoretical constructs in the context of law-making practice, using the hermeneutical and formal-dogmatic methods. The research opens up the field for broader considerations on compliance with the Principles of Legislative Technique in the law-making process.

Keywords: legislative technique, legislation, statute, legislative process, the Sejm (lower chamber of the Polish Parliament)

Language: Polish

Published: nr 3(40)/2024, pp. 68-77.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.68

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Number of downloads: 165

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The Understanding of Principles in Criminal Procedural Law

mgr Grzegorz Lipiński

University of Szczecin

English abstract: The aim of this article is to present various ways of defining the principles of law in criminal procedural law and to examine whether the science of the Polish criminal procedure draws on the achievements of general theory of law or whether it attempts to create its own concept in this regard. In this study, in order to answer the research question, an analysis is conducted of both current and historical perception of principles in the criminal procedure and an assessment is made of the extent to which individual authors rely on the traditional model of perception of the principles of law, or whether they apply their own viewpoint in this regard due to what they see as particularities of the criminal procedure or the incompatibility of general concepts. The result of the presented work is an answer to the question how the principles of law are perceived in the Polish criminal procedure, taking into account the division into the principles of criminal procedure, the main principles of criminal procedure in an abstract or concrete understanding, the principles of criminal proceedings as defined or undefined principles, codified or uncodified ones, or as codified and defined principles, codified and undefined ones, or uncodified ones, as well as lists of these principles and their systems.

Keywords: criminal proceedings, theory of law, principles of law

Language: Polish

Published: nr 3(40)/2024, pp. 54-67.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.54

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Number of downloads: 164

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