Archiwum Filozofii Prawai Filozofii Społecznej

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

IVRwww.ivr.org.pl

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: 303

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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: 299

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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: 224

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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: 220

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Political Agonism and Thinking About Law and Jurisprudence

prof. UŁ dr hab. Jerzy Leszczyński

Lodz University

English abstract: The article contains a polemic with the thesis that populism and the unveiling of the hitherto hidden political nature of law have resulted in a crisis of legal discourses. In addition, it argues against recognizing democratic/liberal hegemony as the main cause of these phenomena. Criticism of democratic liberalism from a political point of view provides little basis for announcing that jurisprudence has lost its credibility and its reconstruction should mean the overt politicization of legal discourses. Such a position is not an element of Ch. Mouffe’s agonistic theory. On the contrary, the project of agonistic democracy assumes maintaining legal democratic institutions that require political neutrality. The rule of law and the law meeting the requirements of the normative idea of law should be considered as political demands. Only then can law as normativity be contrasted with the factuality of law as the sovereign’s decision. This duality is visible in the concept of the state of emergency (C. Schmitt). To a large extent, the article is a polemic with the works of A. Sulikowski.

Keywords: agonism, Mouffe, politicalness, law, rule of law, Sulikowski

Language: Polish

Published: nr 3(40)/2024, pp. 41-53.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.41

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Number of downloads: 213

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About the Pro-Constitutional Interpretative Directive In Dubio Pro Vita Humana

dr Wiktor Krzymowski

Koźmiński University in Warsaw

English abstract: The article discusses the interpretative directive in dubio pro vita humana (Latin: „when in doubt, favour human life”), as well as its popularization, including encouraging public administration bodies and courts to apply it more widely. The article aims to answer the following research problems: What are the main sources of the in dubio pro vita humana directive in the Polish legal system? What is its content and its key assumptions? What are the potential implications of its application in legal practice? What is the object-related scope of its application?
The formal-dogmatic method is used in the study.
The interpretative directive in dubio pro vita humana is rooted in the constitutional protection of human dignity, life and health. It is confirmed in the views expressed by legal scholars, as well as in the case law of the Constitutional Tribunal and administrative courts. However, in order to increase the scale of its application in practice, it should be regulated by law. The content of the directive is such that it requires any possible doubts about the protection of human life to be resolved in favour of this protection. Applying this directive is pivotal for ensuring institutional healthcare in Poland by choosing such a result of interpretation of provisions of law that maximizes the protection of human life and health. Its object-related scope of application is most strongly linked to healthcare law, but it is also applicable to the interpretation of provisions in other branches of law (for example, in criminal or welfare law), even if prima facie they do not seem directly related to the protection of human health and life. The results are important not only for Polish law, but also for the interpretation of foreign laws and EU law. It seems that this directive may also find its application outside the legal system – for solving ethical problems. An offshoot of this study is the possibility of referring at least part of the comments made to the legal protection of animals, which may contribute to its strengthening and to development of legal science in this area (in dubio pro vita animalium).

Keywords: interpretation of law, Constitution, health, life, reimbursement

Language: Polish

Published: nr 3(40)/2024, pp. 27-40.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.27

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Number of downloads: 249

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The European Union as a Community of Well-Ordered Peoples? Object-Oriented Interpretation of John Rawls’ Law of Peoples. A Contribution to Future Research

Michał Kordziński

Adam Mickiewicz University in Poznań

English abstract: This article aims to present an interpretative perspective on the concept of the law of peoples, enabling its contemporary conceptualization. According to the main research thesis of the article, the concepts of the object-oriented programming paradigm provide an effective conceptual apparatus for reinterpreting philosophical claims, which, in particular, can be applied to contemporary conceptualization of John Rawls’ law of peoples. In the first part of the article, the relationships between the object-oriented programming paradigm and philosophy in three areas are specified and described: the philosophy of computer science, the philosophy of science, and computational philosophy. The next part presents the key mechanisms of the object-oriented programming paradigm, such as class-object and inheritance. In turn, the third part shows how selected articles of the Treaty on European Union, the Treaty on the Functioning of the European Union, the North Atlantic Treaty, and the Geneva Conventions flesh out the principles of justice specified in the law of peoples. On this basis, the conclusion is drawn that they are related to each other by the relationship of inheritance. In the fourth part, the emergent structure is subjected to object-oriented interpretation, resulting in the recognition of the law of peoples as an unspecified class.

Keywords: law of peoples, object-oriented programming paradigm, object-oriented interpretation

Language: Polish

Published: nr 3(40)/2024, pp. 16-26.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.16

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Number of downloads: 211

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Libertarianism, Jusnaturalist Skepticism, and the Argument from the Legitimate Use of Force

prof. UMK dr hab. Łukasz Dominiak

Nicolaus Copernicus University in Toruń

English abstract: The article analyses the argument from the justified use of force, put forward against jusnaturalist skepticism by Stephan Kinsella. This argument is intended to show that skepticism about natural rights has become entangled in a performative contradiction, because in order to prove that no natural rights exist, it must assume the existence of such rights. The defeat of jusnaturalist skepticism, in turn, is to prove apagogically the existence of natural rights, including the libertarian private property rights. The article shows, using Hohfeld’s analysis method, that the anti-skeptical argument from the justified use of force does not achieve its goals.

Keywords: libertarianism, jusnaturalism, skepticism, natural rights, Hohfeld, Kinsella

Language: Polish

Published: nr 3(40)/2024, pp. 5-15.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.5

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Number of downloads: 225

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