Search Results for: constitutional courts

On the Possibility of Administrative Courts Shaping Constitutional Consciousness

Dr Anna Chmielarz-Grochal

University of Lodz

English abstract: The article aims to show how administrative courts (in particular the Supreme Administrative Court) participate in shaping the constitutional consciousness of citizens. The main thesis of the article boils down to the statement that administrative courts shape constitutional consciousness through direct application of the provisions of the fundamental law. This thesis corresponds to the assumption that justifications of the judgments being the effect of the application of the constitution have an educational value. Examples from the practice of judicial application of Article 2, provisions on fundamental rights (including those that have the nature of principles: Article 30 and Article 32), and Article 45 in conjunction with Article 184 of the Polish Constitution show that the justifications may fulfil the role of a carrier of knowledge about the fundamental law, the legal institutions regulated by it, and the essence of fundamental rights, taking into account the role of a court as a guarantor of the protection of individual rights.

Keywords: constitutional consciousness, legal consciousness, constitutional identity, direct application of the constitution, pro-constitutional interpretation, constitutional reasoning, administrative courts

Language: Polish

Published: Number 2(31)/2022, pp. 22-37.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.22

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Number of downloads: 412

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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: 253

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Determining Temporal Limits of Court’s Interpretative Decision (in Light of the Case Law of Administrative Courts)

Dr Tomasz Grzybowski, Dr Marta Sarnowiec-Cisłak

SGH Warsaw School of Economics

Abstract: Subject of consideration in this article remains the problem of changing direction of interpretation in judicial-administrative jurisprudence, which sometimes produces consequences similar to the effects of a legislative change. Against this background, the authors attempt to formulate a description of the practice of application of law, i.e. to present jurisprudential arguments supporting decision on the scope of application of interpreted legal norm, as well as to reconstruct underlying assumptions. Using an example of two groups of selected judgments, authors consider cases in which argumentation of the temporal scope of impact of a particular interpretative direction appears in the justifications of administrative court decisions. The analysis carried out confirms that although courts generally assume the retrospective impact of interpretation, in a situation where the content of the derived legal norm fundamentally deviates from previous interpretative practice, they seek legitimization of their actions by justifying the intertemporal decision with constitutional values. These values provide an essential interpretive framework reflecting the cultural model prevalent in the native legal communication community. If courts perceive a risk of violating the values underlying the prohibition of retroactivity, such as legal certainty or principle of trust in public authorities, they indicate reasons for limiting the temporal scope of interpretation pro futuro, or on the contrary, for its effect ex tunc. Against this background, the retrospective effect of interpretation appears not as a consequence of interpretation being made, but rather as a kind of interpretative presumption that can be rebutted or confirmed if arguments are made that allow the interpretation to apply only to future states, or that give additional suport for retrospective application of new interpretation.

Keywords: change of interpretation, temporal limits, administrative courts, retrospectivity, legal certainty, principle of trust in public authorities, justification.

Language: polish

Opublikowano: nr 2(39) 2024, s. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.5

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Number of downloads: 299

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Issue 2(31)/2022 „Archiwum…”: „The Formation of Constitutional Awareness in Legal and Public Discourse” is available

We invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”, the Journal of the Polish Section of IVR entitled „The Formation of Constitutional Awareness in Legal and Public Discourse”. The issue was edited by Dr Skirgailė ŽALIMIENĖ and prof. UŁ dr hab. Bartosz WOJCIECHOWSKI, and includes the following papers:

Dr Vygantė MILAŠIŪTĖ: Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle
Dr Anna CHMIELARZ‑GROCHAL: On the Possibility of Administrative Courts Shaping Constitutional Consciousness
Dr hab. Anna KALISZ, mgr Dorota PAWLICKA: From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law
Prof. UMK dr hab. Milena KORYCKA‑ZIRK: Types of Judicial Review Tests and the Principle of Proportionality
Prof. AEH dr hab. Małgorzata NIEWIADOMSKA-CUDAK: The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere
Dr Jarosław SUŁKOWSKI: The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases
Prof. UŁ dr hab. Bartosz WOJCIECHOWSKI: The Choice of a Way of Life and the Consciousness of a Fundamental Rights

The issue is available HERE.

Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues

Prof. UMK dr hab. Aleksandra Kustra-Rogatka

Nicolaus Copernicus University in Toruń

English abstract: The dynamic development of judicial review of the constitutionality of laws in the second half of the twentieth century is reflected in contemporary theories of judicial review. They go beyond the original axis of the dispute over the legitimacy of judicial review, which was shaped by the counter-majoritarian dilemma, and often become more nuanced. In addition to arguments related to the conceptions of institutional cooperation and accountability function of judicial review, rights-based theories of judicial review take on more and more importance.

The aim of this article is to outline a wide range of issues related to the protection of fundamental rights, which protection is considered as an argument in the dispute over the legitimacy of constitutional courts. The study presents selected issues that influence the current discourse on judicial review, which include: types of such judicial review; types of arguments used in the analysed discourse; the link between fundamental rights and various concepts of democracy; and judicial review of legislative decisions concerning positive rights guarantees.

Keywords: constitutional courts, fundamental rights, democracy, positive rights

Language: Polish

Published: Number 1(30)/2022, pp. 33-43

DOI: https://doi.org/10.36280/AFPiFS.2022.1.33

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Number of downloads: 438

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Number 4(37)/2023 [PL]

Articles:

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

Mgr Paweł A. BOIKE
On the Different Understanding of the Legislative Intent in the Anglo-Saxon Discourse. Analysis of the Views of Stanley Fish, Larry Alexander, Jeffrey Goldsworthy, Richard Ekins, and Victoria Nourse

Dr Ewa GRZĘDA, dr Maciej JUZASZEK
On the Origin of Legal Interests in a Liberal Criminal Law System. Preliminary Remarks

Mgr Jakub HUDSKÝ
The Outline of Populist Constitutionalism

Mgr Anna JUZASZEK
Religious-Only Marriages in the Case Law of Ordinary Courts in Poland. Qualitative Content Analysis of Judgment Justifications Published Online

Prof. dr hab. Wojciech PATRYAS
The Question of Existence of Norms

Mgr Mikołaj RYŚKIEWICZ
A Statistical Picture of the Difficulty of Law

Mgr Paweł T. SKOCZYKŁODA
Intentional Character of the Interpretation of the Holy Scripture and the Interpretation of Law

In memoriam:

Dr Karolina GMEREK
Professor Agnieszka Choduń (1971–2023)

Number 2(31)/2022 [PL/ENG]

Dr Skirgailė ŽALIMIENĖ, prof. UŁ dr hab. Bartosz WOJCIECHOWSKI
The Formation of Constitutional Awareness in Legal and Public Discourse. Introduction

Articles:

Dr Vygantė MILAŠIŪTĖ
Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle

Dr Anna CHMIELARZ‑GROCHAL
On the Possibility of Administrative Courts Shaping Constitutional Consciousness

Dr hab. Anna KALISZ, mgr Dorota PAWLICKA
From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law

Prof. UMK dr hab. Milena KORYCKA‑ZIRK
Types of Judicial Review Tests and the Principle of Proportionality

Prof. AEH dr hab. Małgorzata NIEWIADOMSKA-CUDAK
The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere

Dr Jarosław SUŁKOWSKI
The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases

Prof. UŁ dr hab. Bartosz WOJCIECHOWSKI
The Choice of a Way of Life and the Consciousness of a Fundamental Rights

From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law

Dr hab. Anna Kalisz, mgr Dorota Pawlicka

Maria Curie-Skłodowska University in Lublin, Supreme Administrative Court

English abstract: The aim of the article is to analyse the possibility and necessity of empowering animals as ‘non-personal’ legal subjects under Polish law, indicating the relevant case law (of ordinary and, mainly, administrative courts). The research assumption is the statement that, although administrative case law contains elements of a fairly progressive approach that results in an interpretation of the applicable provisions on the protection and (rudimentarily regulated) animal rights, the existing provisions are far from sufficient and leave quite a lot of room for a very flexible interpretation. That may lead not solely to an animal-friendly interpretation, but also to abuses against them. Therefore, postulated amendments concerning constitutional protection of animal rights deserve attention, as they would be important for the systemic interpretation of law. The research subject is both philosophical and legal literature, as well as case law. The main method is the logico-linguistic analysis (with some elements of historical and comparative approach) of texts on philosophy, including legal philosophy and ethics, as well as the analysis of case law. The research findings have a mixed, descriptive-and-normative character, while the above combination of ethics, legal theory, and legal practice both manifests the evolution of the approach to the titular matter and makes an original contribution to jurisprudence as a scientific discipline.

Keywords: social consciousness, sentient animals, legal protection of animals, animal rights, constitutional protection, administrative case law

Language: Polish

Published: Number 2(31)/2022, pp. 38-53.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.38

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Number of downloads: 455

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

Dr Jacek Srokosz

University of Opole

Abstract: The article presents the US Supreme Court judgment issued in 2002 in case Republican Party of Minnesota v. White, in which the Court held unconstitutional the clauses which introduced restrictions in presenting the candidates’ views on controversial legal and social issues during the judicial election campaign in Minnesota. The article discusses the essence of the judicial election, the limitations for the candidates during electoral campaigns, and the general dispute about how judges are selected in the US. Against this background, the facts of the case, the decisions of the courts of first and second instances and of the Supreme Court are presented, as well as Antonin Scalia’s argumentation justifying the ruling and the dissenting opinions. The author’s goal is to analyse the Supreme Court’s ruling in the context of its critics’ forecasts that it would result in politicisation of the judicial election process leading to a lowering of the authority of the judiciary and the emergence of doubts about the impartiality and independence of judges.

Keywords: judicial election, politicisation, Republican Party of Minnesota v. White, impartiality and independence of judges, accountability of judges, freedom of speech, electoral campaign

Language: Polish

Received: 13.06.2018
Accepted: 10.09.2018

Published: Number 3(18)/2018, pp. 51-63.

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Number of downloads: 373

Critical analysis of a judicial discourse on the legal situation of homosexuals in the light of Article 18 of the Constitution of the Republic of Poland

Mgr Wojciech Zomerski

University of Wroclaw

English abstract: In this paper, I make an attempt to conduct a critical analysis of judicial discourse devoted to the situation of homosexual persons in the light of Article 18 of the Constitution of the Republic of Poland. In order to show how unequal treatment of homosexuals is being reproduced, I analyze selected rulings of the Polish Constitutional Tribunal, Supreme Court and administrative courts. On the methodological level I refer to the Critical Discourse Analysis. In the result, the analysis of chosen rulings is conducted in the attempt to spot linguistic maneuvers leading to the reproduction of unequal treatment of homosexuals. Thus, in the course of this analysis I apply such notions as interpellation (Althusser), ideology (Žižek), doxa and habitus (Bourdieu). On the whole, I argue that the flawed interpretation of Article 18 is the result of referring to established judicial standpoint, illegitimate departures from linguistic interpretation, or many kinds of concealment and counterfactual premises. The origins of doxa that is the basis of such practice, might be seen in the Catholic doctrine which is based on the assumption of unnatural character of homosexuality and subordination of human sexuality to aims of procreation. In the end, I come to the conclusion that unmasking of axiological presuppositions underlying interpretation of the analyzed provision would fundamentally change the character of discussion devoted to the legal situation of homosexuals, satisfying Habermasian standards of deliberative democracy, and it might eventually lead to recognition of one-sex relations by legislator.

Keywords: homosexuality, article 18 of the Constitution, Critical Discourse Analysis, discrimination, ideology, doxa, interpellation

Language: Polish

Received: 13.03.2017
Accepted: 03.05.2017

Published: Number 2(15)/2017, pp. 80-97.

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Number of downloads: 495