Search Results for: concept

Ius and Lex — On the Concept of Law

What is law, really? Is “law” (ius) something different from “statute” (lex)? This collection of the “Archive of Philosophy of Law and Social Philosophy” gathers texts grappling with the oldest question of legal philosophy – the very concept and definition of law. All articles are free to read in open access.

Selected texts

Czym jest prawo? Cele i środki – Dietmar von der Pfordten, No. 1(1)/2010 (in Polish, translation)
Rozróżnienie ius et lex we współczesnej filozofii prawa – Maciej Pichlak, No. 2(15)/2017 (in Polish)
Czy pojęcie prawa jest pojęciem z istoty spornym? – Adam Dyrda, No. 1(6)/2013 (in Polish)

For authors

The “Archive” publishes articles in legal theory and philosophy in Polish and English, in open access with no publication charges and with double-blind peer review; indexed in Scopus, DOAJ and ERIH PLUS (100 points on the Polish ministerial list). See the guidelines for authors.

An editorial collection – extended over time.

3rd Mountain Conference-Hike on the Philosophy of Law – Polish Section of the IVR, entitled “Sawa Frydman’s Concept of Legal Interpretation”, Międzygórze, 15–18 May 2025.

Dr Paulina Łabieniec

University of Łódź

Mgr Paweł Boike

Nicolaus Copernicus University in Toruń

Report language: Polish

Published in: Issue 4(45)/2025, pp. 125–127

DOI: https://doi.org/10.36280/AFPiFS.2025.4.125

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Number of downloads: 209,936

The text is available under the Creative Commons Uznanie autorstwa 4.0 Międzynarodowe.

Freedom of Speech of an Academic Teacher: Some Conceptual Clarifications and a Landscape of Challenges

dr Paweł Jabłoński, prof. dr hab. Przemysław Kaczmarek, dr Mateusz Wojtanowski

University of Wrocław

English abstract: In presenting this special issue of the “Archiwum Filozofii Prawa i Filozofii Społecznej. Journal of the Polish Section of IVR”, we would like not only to briefly introduce the contents of the individual articles that make up this volume but also to attempt to outline the field of research we are entering. We pursue these tasks in the following order. In the introductory section (1) we present the reasons why it is important and necessary today to address the titular issue. Next, we clarify the notion of the “academic teacher” (2). We then discuss the relationship between “freedom of speech” and “academic freedom”, noting that the relation is far less obvious than it might initially appear (3). Subsequently, we propose a division of the spheres of academic expression into three complementary areas, while emphasizing the preliminary and provisional nature of this distinction (4). In the next section (5) we outline one of the core disputes in the field of academic freedom, namely the opposition between activism and passivism. The final section (6) reviews the content of the articles included in this volume.

Keywords: freedom of speech, academic teacher, academic freedom

Language: English

Published: Number 4(2025), pp. 5–20.

DOI: https://doi.org/10.36280/AFPiFS.2025.4.5

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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: 232

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Reconstruction of the Concept of Interpretative Juristic Presumption

mgr Kaja Ptak

Jagiellonian University in Kraków

English abstract: Juridical presumptions, including interpretative juridical presumptions, have not been elaborated on in detail in theoretical and legal terms, although they are an interpretative tool often used in jurisdiction and literature. Recently there has been a revival of the discussion on the presumption of constitutionality (conformity with the constitution) of laws (statutes). Another example of an interpretative juridical presumption is the presumption of rationality of the legislator, based on the assumption of rationality of the legislator elaborated in the 1970s by Leszek Nowak and Jerzy Wróblewski. A comparative analysis of interpretative juridical presumptions with institutions such as legal presumptions and legal fictions allows to reconstruct the most important features of the former in terms of their structure and functions, and this in turn will allow to claim that interpretative juridical presumptions are directly referred to by the authorities applying the law in difficult cases in which it is impossible to complete the interpretation process without taking into account the basic values of the legal system, not directly expressed in this system or only sketched at the level of constitutional standards. Due to the special role that interpretative juridical presumptions play in the process of interpretation, their law-making function may be also discussed.

Keywords: legal presumption, juristic presumption, interpretative juristic presumption, legal interpretation

Language: Polish

Published: Number 1(38)/2024, pp. 34-43

DOI: https://doi.org/10.36280/AFPiFS.2024.2.34

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Number of downloads: 269

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Critical Analysis of the Hypothesis About the Usefulness of the Idea of Conceptual Metaphor in the Interpretation of Law

dr hab. Robert Piszko, prof. US

University of Szczecin

English abstract: Since George Lakoff and Mark Johnson published a book entitled Metaphors We Live By, metaphors and their role in everyday life have been recognised. Metaphor has henceforth ceased to be a means only of poetic imagination and rhetorical embellishment. It began to be seen also as a form of human thinking, a tool of cognition. Metaphor began to be seen in areas of life where it had hitherto been absent. These areas included law. However, the enthusiasm of authors who see the great role of metaphorical imagery in law is not justified. An analysis of the examples of metaphors in legal texts given in scientific studies indicates too much freedom in qualifying certain expressions as metaphors and seeing their role or usefulness where there is none – that is, also in legal texts and in the interpretation of law. Metaphors are mistaken for phraseological compounds and for previously metaphorical expressions that have permanently lost this character as a result of conventionalization or lexicalisation. The potential effect of adopting a cognitivist perspective has previously been otherwise achieved in the legal sciences at the expected level. The results indicated as possible with the tools of cognitive science are nothing new, and the possibility of achieving them is either debatable or impossible. The conceptual metaphor, on the other hand, can play an important role when it comes to the justification of judicial or administrative decisions, the content of law textbooks, statements of doctrinal representatives with regard to the law Using the language of cognitive science, the radial structures of legal and ethical concepts can more promisingly be made the subject of research, which can enable the coexistence of humans and artificial intelligence. The research material was mainly investigated using the method of linguistic analysis.

Keywords: metaphor, phraseological association, conceptual motivation, radial structures, legal reasoning, legal cognition, interpretation of law

Language: Polish

Published: nr 2(39) 2024, p. 19-33.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.19

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Number of downloads: 330

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Friedrich A. Hayek’s Evolutionary Concept of Law: Essence and Topicality

Jakub AUGUSTYNIAK

University of Warsaw

English abstract: The paper aims to present the concept of law proposed by F.A. Hayek in Law, Legislation and Liberty. Hayek’s theory is subsequently compared to G. Radbruch philosophy of law, mainly because of the significant difference in both thinkers’ intellectual backgrounds (i.e., liberalism and socialism). The Austrian philosopher’s theory is identified as a so-called third way proposal, an attempt to demonstrate lack of antagonism between positivism and legal naturalism. This thesis results from the fact that this theory is based on the dichotomy
between two sources of law in the form of established social practice subsequently sanctioned by the sovereign, referred to as nomos, and thesis in the form of legal instruments adopted by competent authorities. The first kind are correlated with private law in the broad sense, which law emerged from the activity of individual members of the society. The second kind should only establish norms to enable the state to operate and to safeguard nomos.

Keywords: nomos, thesis, philosophy, law, justice, society

Language: Polish

Published: Number 4(37)/2023, pp. 5-14.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.5

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Number of downloads: 418

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Normative and Situationist Conception of General Clause of the Principles of Community Coexistence

Prof. dr hab. Józef NOWACKI (1923–2005)

University of Silesia in Katowice

English abstract: Polish law uses the general clause of the principles of community coexistence. In the legal literature, the concept of principles of social coexistence is understood in various ways. Some people understand the principles of social coexistence in a normative way, associating with them a set of norms to which these clauses refer. Others perceive them situationistically, which means the right to make an assessment in a particular case under consideration. The author argues that the source of controversy in this regard is the unconscious adoption of different understandings of morality. Due to this, the use of each of these understandings (normative and situationist) is legitimate in equall way. For this reason, disputes about the normative and situationist understanding of the principles of social coexistence are empirically unsolvable.

Keywords: Józef Nowacki, general clause, situationalist and normativist conception, the principles of community co-existence

Language: Polish

Published: Number 3(36)/2023, s. 9-21.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.9

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Number of downloads: 388

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Situationist and Normative Concepts of General Clauses. Disputes About the Accuracy of Two Approaches to General Clauses in the Light of Józef Nowacki’s Views

Prof. UŚ dr hab. Sławomir TKACZ

University of Silesia in Katowice

English abstract: The aim of the study is to analyse Józef Nowacki’s views on the characteristics of general clauses. The author focuses on the most important issues that are the subject of disputes in legal scholarship. In particular, the subject of considerations is the situationist and normative concepts of general clauses as these concepts are understood by Józef Nowacki. In the first part of considerations, the author addresses the issue of vagueness (fuzziness) of general clauses. The main part of the considerations relates to the understanding of general clauses as references in the light of their situationist and normative understanding. In the last part of the considerations, the author analyses the problem of the objects to which general clauses refer. In the light of the presented considerations, the general conclusion is that each general clause may be applied in a situationist or normative manner. In the latter case, we can speak of a reference to a certain set of norms. It is also appropriate to speak about nontextual references. The proposed terminology is the result of the convention adopted by each individual author.

Keywords: Józef Nowacki, general clause, situationalist concept of general clauses, normative concept of general clauses, reference, legal requirement of evaluating

Language: Polish

Published: Number 3(36)/2023, s. 78-92.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.78

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Number of downloads: 360

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Situationist and Normative Concepts of General Clauses. The Context of Differences and Common Grounds

Prof. dr hab. Leszek LESZCZYŃSKI

Maria Curie-Skłodowska University in Lublin

English abstract: The purpose of the study is to analyse the concept of general clause formulated by Józef Nowacki in its basic form in the 1980s. It focuses on several issues that are most important for the shape of the concept. The first is the very notion of a clause as an indeterminate phrase that is part of a legal provision. It corresponds to the crucial components of the situationist concept of the clause – the negation of the referential character of clauses (reference to general norms or values) in favour of treating the clause as an imperative of evaluating, implemented by the law-applying entity in the form of concrete and situational evaluation. The analysis of Nowacki’s concept leads, in the final sections of the study, to a demonstration of its theoretical implications, which, although not within the mainstream, do not prevent the search for common grounds with the normative concept of the clause, negated by the author.

Keywords: general clause, situationist and normativist concepts, reference, imperative of evaluating, situational assessment

Language: Polish

Published: Number 3(36)/2023, s. 66-77.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.66

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Number of downloads: 353

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