Search Results for: analytical legal theory

The Political in the Polish Analytical Legal Theory

Dr Michał Stambulski

University of Wrocław

Abstract: The article examines the concept of the political in the Polish analytical theory of law. This subject was not a direct object of considerations of the authors who worked in this vein. However, the legitimisation of the legal system, sources of law, and the interpretation of the constitution can be considered as problems related to the political. They give rise to the issues surrounding the political within the Polish analytical theory of law. When these problems are considered from the perspective of analytical theory, a vision of the desired society emerges. Frank admission to the problems of the political in analytical theory opens up a new field of research. However, this requires theoreticians of law to change the language they habitually use. Such an opening implies the need to introduce the language of political philosophy within the theory of law and to develop new criteria for validating theoretical statements.

Keywords: theory of law, the political, legitimacy, sources of law, constitutional interpretation

Language: Polish

Received: 25.06.2018
Accepted: 06.09.2018

Published: Number 3(18)/2018, pp. 64-73.

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Number of downloads: 389

Classics of Modern Legal Philosophy and Theory

Scholars from Poland and around the world who shaped legal theory and philosophy – and, with each of them, texts published in the journal that concern their thought or closely related themes. All articles are free to read in open access.

World classics of modern legal philosophy and theory

Jeremy Bentham (1748–1832)

English philosopher, jurist and social reformer, the founder of utilitarianism and a forerunner of modern legal positivism. Themes from this current are gathered in the Legal Positivism collection.

John Austin (1790–1859)

English jurist and legal theorist, the founder of analytical positivism and of the conception of law as the command of a sovereign backed by sanction. Stanley L. Paulson writes on this current in his study The Core of the Idea of Legal Positivism.

Gustav Radbruch (1878–1949)

German legal philosopher and politician, author of the famous formula under which statutory lawlessness yields to supra-statutory justice. Bartosz Szyler devotes a study to the antinomies of his idea of law.

Hans Kelsen (1881–1973)

Austrian jurist and legal philosopher, the creator of the pure theory of law and of normativism. Around the pure theory and the basic norm the journal has published a translation of Stanley L. Paulson and a reconstruction of Kelsen’s discussion with Jerzy Wróblewski; see the Legal Positivism collection.

Adolf Reinach (1883–1917)

German philosopher and jurist, a representative of the phenomenology of law, author of the conception of the a priori foundations of civil law and of the theory of social acts.

Alf Ross (1899–1979)

Danish jurist and legal philosopher, a leading representative of Scandinavian realism and of the predictive account of legal validity. A kindred current of sociological jurisprudence is presented by Aleksander Olaf Szpojankowski in his text on Roscoe Pound.

Lon L. Fuller (1902–1978)

American legal philosopher, a representative of the non-positivist current, author of the conception of the inner morality of law and a participant in the famous debate with H.L.A. Hart on the connection between law and morality. These themes are taken up in the Law and Morality collection.

Herbert L.A. Hart (1907–1992)

British legal philosopher, the leading representative of twentieth-century legal positivism, author of the conception of the rule of recognition and of the union of primary and secondary rules. The journal has published a translation of Hart’s lecture, a study by Andrzej Grabowski and an analysis of the rule of recognition.

John Rawls (1921–2002)

American political and social philosopher, author of the theory of justice as fairness. Wojciech Ciszewski analyses his conception in the journal.

Jürgen Habermas (1929–2026)

German philosopher and sociologist, a representative of social philosophy, the creator of the theory of communicative action and of the conception of deliberative democracy.

Ronald Dworkin (1931–2013)

American legal philosopher, the foremost critic of positivism, author of the conception of legal principles, integrity and law as an interpretive practice. Texts in this current are gathered in the Legal Positivism collection.

Joseph Raz (1939–2022)

British legal philosopher of Israeli origin, a representative of exclusive positivism, author of the service conception of legal authority and of the theory of practical reasons. Beata Polanowska-Sygulska analyses his moral philosophy in a two-part series.

John Finnis

Australian legal philosopher, the leading representative of contemporary natural law theory, author of the conception of basic human goods and practical reasonableness. Michał Sopiński analyses his thought in the journal.

Robert Alexy

German legal philosopher, author of the theory of principles as optimisation requirements, of the weighing formula and of a non-positivist account of law. Milena Korycka reconstructs his conception in the journal.

Polish classics of modern legal philosophy and theory

Leon Petrażycki (1867–1931)

Polish and Russian scholar, the creator of the psychological theory of law, of the conception of intuitive law, imperative-attributive emotions and the policy of law. Hanna Dębska devotes a study to his career.

Jerzy Lande (1886–1954)

Polish legal theorist and philosopher, a pupil and the most important continuator of Leon Petrażycki, author of works in the theory and sociology of law.

Czesław Znamierowski (1888–1967)

Polish philosopher and legal theorist, the creator of the theory of constructive norms and thetic acts, and a forerunner of the analysis of conventional acts in law.

Czesław Martyniak (1906–1939)

Polish legal philosopher, a representative of Thomistic legal philosophy and of the natural-law critique of Kelsen’s normativism. Murdered by the German occupier in 1939.

Stanisław Ehrlich (1907–1997)

Polish theorist of law and politics, a scholar of pluralism, interest groups and group norms.

Grzegorz Leopold Seidler (1913–2004)

Polish scholar of the theory of state and law and of the history of political and legal doctrines.

Kazimierz Opałek (1918–1995)

Polish legal theorist and philosopher, a forerunner of analytical reflection on directives, norms and subjective rights.

Zygmunt Ziembiński (1920–1996)

Polish legal theorist and philosopher, the creator of the Poznań school of legal theory, author of works on the logic of norms, the conception of coupled norms and the analysis of legal language.

Józef Nowacki (1923–2005)

Polish legal theorist, a representative of analytical legal theory, a scholar of the rule of law, general clauses and the „appropriate” application of provisions.

Jerzy Wróblewski (1926–1990)

Polish legal theorist, the creator of an original paradigm of legal interpretation and application (the clarificative theory of interpretation); among his continuators is Marek Zirk-Sadowski.

Wiesław Lang (1928–2016)

Polish legal theorist, a scholar of legal validity and of the relation between law and morality. These themes are gathered in the Law and Morality collection.

Maciej Zieliński (1940–2020)

Polish legal theorist, the creator of the derivational conception of legal interpretation (omnia sunt interpretanda). Agnieszka Choduń presents it in the journal.

Legal Sciences and the Problem of the Political: The Perspective of Critical Jurisprudence

Dr Rafał Mańko

University of Amsterdam

Abstract: The growing interest in the connections between legal phenomena and the political (das Politische, le politique) justifies an analysis of the problem of the relationship of legal sciences towards the political. The article focuses on two juridical sub-disciplines: analytical legal theory and legal dogmatics, and the analysis is conducted from the perspective of critical jurisprudence, a juristic application of critical theory. Towards this end, first the concept of ‘the political’ is defined, along the lines of Chantal Mouffe, as a dimension of antagonism, which lies at the foundation of any society. The political, understood in this way, must be differentiated both from ‘politics’ and from ‘policies’. As far as analytical legal theory is concerned, the article claims that it is programmatically (yet tacitly) political, as it affirms the juridical form as such, abstracting from its concrete content. As far as legal dogmatics is concerned, the article claims, following Sawa Frydman, that the dogmatician, despite his declared apoliticality, when performing a doctrinal interpretation of law, makes in fact decisions which are not only interpretive, but also political ones, setting subsequent stages in the antagonistic struggles within society.

Keywords: legal science, the political, antagonism, analytical legal theory, legal dogmatics, critical legal theory

Language: Polish

Received: 13.06.2018
Accepted: 04.09.2018

Published: Number 3(18)/2018, pp. 38-50.

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Number of downloads: 519

The Political Character of the (Theory of) Interpretation of Law. Stanley Fish’s Neo-pragmatist Perspective

Mgr Jakub Łakomy

University of Wrocław

Abstract: In this paper, I analyse the political character of the interpretation of law and the political nature of the theory of legal interpretation from Stanley Fish’s neo-pragmatist perspective. In the first part of the text, I define the concept of politics and the political, borrowing from Chantal Mouffe. I clearly distinguish between the political, politics, and policy; this article uses the first concept (the political). In the second part of the article, I characterize hermeneutic universalism as one of the approaches to the problem of legal interpretation.

In the third part, following the characteristics of the concepts of interpretive communities as defined by Stanley Fish, I draw conclusions about the political nature of the interpretation of law and the theory of the interpretation of law. In conclusion, I analyse the possibilities of building a theory of legal interpretation that internalises the inherently political character of knowledge by analyzing the concept of post-analytical philosophy proposed in literature by Andrzej Bator.

Keywords: jurisprudence, the political, neopragmatism, interpretive community, hermeneutic universalism, interpretation

Language: Polish

Received: 13.06.2018
Accepted: 13.08.2018

Published: Number 3(18)/2018, pp. 24-37.

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Number of downloads: 600

On the Analytical Importance of the National Interest in Theoretical Exploration of the European Integration Process

Dr Franciszek Strzyczkowski

University of Łódź

Abstract: This article seeks to elaborate the theoretical discourse on different, competing explanations of the European integration, invoking the notion of the national interest that plays an essential role in the process. Despite increasing integration, the European interest remains quite different from the sum of the national interests of all Member States, and different theories, by presenting explanations of the integration process, raise or diminish its importance. The major premise of the intergovernmental theory is that the integration progress can be analyzed as an intergovernmental regime designed to coordinate the economic and political interdependence negotiated through bargaining. This implies that Member States’ behavior reflects actions taken by their governments based on rational choice, limited only by the domestic social demands and external strategic international environment. According to intergovernmentalism this process, within which states’ preferences are shaped, is in fact the process of national interest formation. In contrast, a second school of thought on integration, affiliated with supranationalism, has a more normative ambition, providing not only a description of the role of the national interest, but also bringing the ideas of its limitation, proposing changes on the mode of European governance aimed at shaping Europe in a more republican manner. Despite the dominant position of the national agents at almost every level of the European governance, for the supranational approaches, due to the multi-level structure of the European Union, controversy between national interest and European common good is rarely invoked. The assumption that one theoretical understanding and the assessment of the level of influence of the national interest as applied to the European integration can have profound legal and political implications, leads us to the conclusion that depicting the five most prominent attempts at capturing it theoretically remains essential for further analysis of the European structure and European legal order. Paradoxically, an unstable economic situation and its overreaching and predominant negative influence on all the Member States, might catalyze a redefinition of Europe and reinvigorate the discourse on both European common good and national interests.

Language: English

Keywords: theory of European integration, national interest, European Union

Published: Number 2(13)/2016, pp. 59-75.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.59

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Number of downloads: 632

Why Publish in the „Archive”

The „Archive of Philosophy of Law and Social Philosophy” is the journal of the Polish Section of the International Association for Philosophy of Law and Social Philosophy (IVR). We publish work in legal philosophy, legal theory and social philosophy, in Polish and in English.

Rating and indexing

100 points in the Polish Ministry of Science list of scholarly journals.
Indexed in Scopus, ERIH PLUS and DOAJ.
Every article receives a DOI registered with Crossref (ISSN 2082-3304).

Terms of publication

No fees. We charge nothing for submission, review or publication (no APC).
Open access from the day of publication, with no embargo.
CC BY 4.0 licence – authors retain copyright.
Double anonymous peer review and plagiarism screening of every text.

Scope

We publish work across the whole breadth of the philosophy of law – from the ontology and epistemology of law, through axiology, ethics and the aesthetics of law, to social philosophy and the sociology of law. We are equally interested in legal hermeneutics and phenomenology, the natural-law tradition, critical currents in jurisprudence, the philosophy of criminal and international law, and the history of legal thought. Analytical legal theory is strongly represented: the theory of norms, legal validity, interpretation, conventional acts and constitutive rules, principles of law and disputes over the concept of law. What this means in practice is best shown by our thematic collections and by the page on classics of modern legal philosophy and theory.

The journal has published work on Kelsen, Hart, Dworkin, Raz, Alexy and Finnis, and – from the Polish analytical tradition – on Petrażycki, Ziembiński, Wróblewski, Nowacki and Zieliński.

Visibility after publication

Full Google Scholar metadata – articles are indexed and citable.
Metadata deposited with Crossref, including author ORCID identifiers.
Polish and English versions are linked to each other and indexed separately.
Each article page carries a ready citation and BibTeX / RIS export.

How to submit

Formal requirements, the review procedure and publication ethics are set out in the guidelines for authors. Submissions and enquiries: archiwum@ivr.org.pl.

Zygmunt Ziembiński

Zygmunt Ziembiński (1920–1996) – Polish legal theorist and philosopher, co-founder of the Poznań school of analytical legal theory. He laid the foundations of the Polish theory of norms of conduct, the logic of norms and the methodology of legal science; his work still shapes the language in which Polish legal theory speaks about norms and rules.

Texts in the „Archive”

Theory of Law and the Challenges of Analytical Pragmatism

Maciej Dybowski · Issue 1(14)/2016

A metatheoretical reflection on the practice of legal theory within the classical project of analysis – a tradition of which Ziembiński was one of the pillars.

Postpositivism on the Trail of the Holy Grail? A Reply to Tomasz Pietrzykowski’s Criticism

Andrzej Grabowski · Issue 1(1)/2010 (in Polish)

A polemic on the limits of positivism and „postpositivism” in Polish legal theory – a continuation of disputes growing out of the analytical tradition Ziembiński helped to create.

See also the Principles of Law and Legal Interpretation collections.

Józef Nowacki

Józef Nowacki (1923–2005) – Polish legal theorist, professor at the University of Silesia and one of the foremost representatives of analytical legal theory in Poland. A consistent positivist, he studied the notion of legality, general clauses and the methodological foundations of jurisprudence, defending conceptual rigour against ideologisation.

Texts in the „Archive”

An Ideal of Scientific Jurisprudence: Józef Nowacki Against Ideological Influences on Jurisprudential Claims

Tomasz Pietrzykowski · Issue 3(36)/2023

On Nowacki’s methodological assumptions and his opposition to the ideologisation of jurisprudential claims – a defence of the scientific ideal in legal scholarship.

Legality as Compliance with the Intention of the Legislator: The Understanding of Legality in Józef Nowacki’s Works

Zygmunt Tobor · Issue 3(36)/2023

A reconstruction of the two senses of legality in Nowacki’s work and their significance for today’s disputes over the rule of law.

Situationist and Normative Concepts of General Clauses

Sławomir Tkacz · Issue 3(36)/2023

An analysis of Nowacki’s distinction between the situationist and the normative conception of general clauses, and of the dispute over which is the more accurate.

Law and Values Other than Moral: On Searching for Inspiration in Józef Nowacki’s Works

Kamil Zeidler · Issue 3(36)/2023

Kamil Zeidler examines in Nowacki’s writings the theme of the relation of law to values other than moral ones – aesthetic, cognitive and practical.

See also the Principles of Law and Legal Positivism collections.

Number 3(18)/2018 [PL]

The Idea of Apolitical Character of Legal Science and Its Crisis

Law, Jurisprudence and the Political: Introduction [PL]
(prof. dr hab. Adam Sulikowski, dr Rafał Mańko, mgr Jakub Łakomy)

Articles:

Dr hab. Joanna KUŹMICKA-SULIKOWSKA
Normative Indication the Method of Taking into Account the Expiration of the Period of Limitation of Claims as a Choice motivated by Social Policy Considerations

Mgr Jakub ŁAKOMY
The Political Character of the (Theory of) Interpretation of Law. Stanley Fish’s Neo-pragmatist Perspective

Dr Rafał MAŃKO
Legal Sciences and the Problem of the Political: The Perspective of Critical Jurisprudence

Dr Jacek SROKOSZ
Republican Party of Minnesota v. White as a Step Towards Greater Politicisation of the Judicial Election in the USA?

Dr Michał STAMBULSKI
The Political in the Polish Analytical Legal Theory

Prof. dr hab. Adam SULIKOWSKI
Apoliticality in Jurisprudence. The Crisis of the Idea and the Phenomenon of Populism

Mgr Mateusz WOJTANOWSKI
Political Character of the Copyright on the Example of its Inconsistency with the Indigenous People’s Vision of the World

Reports:

Dr Rafał MAŃKO
XII Conference of Central and Eastern European Network of Jurisprudence (CEENJ), Riga, Latvia, 14–16 September 2017

Dr Rafał MAŃKO
XXXIII Critical Legal Conference, Milton Keynes, Great Britain, 6–8 September 2018

Editorial board

General Editor:

Prof. dr hab. Marek Zirk-Sadowski (University of Łódź)

Marek Zirk-Sadowski is a full professor in law and a philosopher at University of Lodz, Faculty of Law and Administration. He is interested in analytical legal theory and philosophy, legal hermeneutics and philosophy of European integration. He published i.a. Understanding Values in Legal Language (in Polish 1984), Law and Cultural Participation (in Polish, 1998) and Introduction to Legal Philosophy (in Polish, 2011). In 2016-2022 he was the President of the Supreme Administrative Court. ORCID: 0000-0003-1740-0863.

Deputy General Editors:

Prof. dr hab. Bartosz Wojciechowski (University of Łódź)

Bartosz Wojciechowski is a full professor in law at University of Lodz, Faculty of Law and Administration. He is interested in legal and moral philosophy, minority groups rights and economic theory of law. He published i.a. Judicial discretion. The legal-theoretical study (in Polish, 2004), Philosophical Approach to the Interculturality of Criminal Law (in English, 2010) and Narrative Identity as a Condition for Authentic Legal Subjectivity (in English, 2024). Since 2015 he is the judge of the Supreme Administrative Court in the Financial Chamber. ORCID: 0000-0002-4271-7056.

Dr Joanna Kamień (University of Gdańsk)

Joanna Kamień holds a doctorate in legal studies. She is Editor-in-Chief and Director of the University of Gdańsk Press. Her interests include: the philosophy of law, particularly the aesthetics of law, with a special focus on the role of law and literature in the education of jurists and in the understanding of the law; and relations between the theory and the philosophy of law. Her publications include: Prawo i literatura jako kierunek filozoficznoprawny (Law and literature as movement in legal philosophy) (2024). She is also co-editor of studies on the aesthetics of law: Aesthetics of Law: From Methodology to Manifestations, 2024, co-editor Kamil Zeidler, and Prawo i literatura. Parerga (Law and literature: Parerga), coedited with Jerzy Zajadło and Kamil Zeidler. ORCID: 0000-0003-2163-9754.

Managing Editor:

Dr Karolina Gmerek (University of Szczecin)

Karolina Gmerek, Ph.D. is an assistant professor in law at the University of Szczecin, Faculty of Law and Administration. She is interested in legal theory, especially concepts of legal interpretation and conventional acts in law, legal communication, legal education and methodology of interdisciplinary studies. She published i.a. Trial as a Social Communication Occurrence (in Polish, 2019) and Trial as a Social Communication Occurrence: Interactions Between Professional and Non-Professional Participants (in English, 2023). Since 2019 she is the Secretary of the Legal Language Commission of the Polish Language Council at the Presidium of the Polish Academy of Science. ORCID: 0000-0002-4724-7612.

Editor:

Dr Mateusz Pękala (Jesuit University Ignatianum in Kraków)

Mateusz Pękala, Ph.D. is an assistant professor in Jesuit University Ignatianum in Kraków, Institute of Political and Andministrative Sciences. He is interested in sociology of law, especially theoretical concepts of law-making, alternative dispute resolution, public management and methods of empirical research on law. He published i.a. Decision-Making Purview of Legislators (2016), he was also co-editor and co-author of scientific monographs Mediation. Theory, norms, practice (2017) and The faces of mediation. Selected issues (2021). Since 2012 he is the mediator in civil cases. ORCID: 0000-0002-1389-2664.

Assistant Editors:

Mgr Agata Dąbrowska (University of Łódź)
Mgr Patryk Kupis (University of Szczecin)
Mgr Martyna Sowa (University of Szczecin)

SCIENTIFIC COMMITTEE

Prof. dr hab. Kamil Zeidler (University of Gdańsk) – chairman of the Committee

International Scientific Committee:

Prof. dr Ana Dimishkovska (Cyryl Metody University in Skopje, Macedonia)
Prof. dr Peter Goodrich (Benjamin N. Cardozo School of Law, Yeshiva University)
Prof. dr Martin Krygier (University of New South Wales, Australia)
Prof. dr Stefan Larsson (Lund University, Sweeden)
Prof. dr Jose M. A. Linhares (University in Coimbra, Portugal)
Prof. dr Martin Skop (Masaryk University in Brno, Czech Republic)
Prof. dr Gülriz Uygur (Ankara University, Turky)
Prof. dr Antal Visegrady (University in Pecs, Hungary)
Prof. dr Anne Wagner (Lille University, France)

Domestic Scientific Committee:

Prof. dr hab. Bartosz Brożek (Jagiellonian University)
Prof. dr hab. Andrzej Grabowski (Jagiellonian University)
Prof. dr hab. Marek Smolak (Adam Mickiewicz University in Poznań)
Prof. dr hab. Sylwia Wojtczak (Lodz University)
Prof. dr hab. Kamil Zeidler (Gdańsk University)
Ks. dr hab. Tomasz Barankiewicz SVD, prof. KUL (The John Paul II Catholic University in Lublin)
Dr hab. Olgierd Bogucki, prof. US (Szczecin University)
Dr hab. Karol Dobrzeniecki, prof. UMK (Mikołaj Kopernik University in Toruń)
Dr hab. Bartosz Liżewski, prof. UMCS (Maria Curie-Skłodowska University in Lublin)
Dr hab. Martyna Łaszewska-Hellriegel, prof. UZ (University in Zielona Góra)
Dr hab. Jan Winczorek, prof. UW (Warsaw University)
Dr hab. Adam Zienkiewicz, prof. UWM (Warmia and Mazury University in Olsztyn)

Honorary members of the Scientific Committee:

Prof. dr hab. Andrzej Bator (Wrocław University)
Prof. dr hab. Jolanta Jabłońska-Bonca (Leon Koźmiński University in Warsaw)
Prof. dr hab. Zygmunt Tobor (Silesia Uniwersytet in Katowice)
Prof. dr hab. Stanisław Kaźmierczyk (Wrocław University)
Prof. dr hab. Małgorzata Król (Lodz University)
Prof. dr hab. Leszek Leszczyński (Maria Curie-Skłodowska University in Lublin)
Prof. dr hab. Krzysztof Pałecki (Jagiellonian University)
Dr hab. Tomasz Stawecki, prof. UW (Warsaw University)
Prof. dr hab. Jerzy Stelmach (Jagiellonian University)
Prof. dr hab. Sławomira Wronkowska (Adam Mickiewicz University in Poznań)
Prof. dr hab. Jerzy Zajadło (Gdańsk University)