Search Results for: democracy

On the threats to democracy and the rule of law: The philosophy of total states in the views of Szymon Rundstein and Maciej Starzewski

Dr hab. Sławomir Tkacz, prof. UŚ

Dr hab. Aleksandra Wentkowska, prof. UŚ

University of Silesia in Katowice

English abstract: One of the most important issues recently addressed in literature is the threats to democracy and the rule of law. It is pointed out that the need to verify the role and tasks of key political institutions, primarily the state, is determined by the nature and dynamics of changes in the modern world. The issue of threats to democracy and the crisis of the rule of law has frequently been discussed in Polish theoretical and doctrinal legal works produced after 1926. Authors such as Szymon Rundstein and Maciej Starzewski often raised concerns about the dangers associated with phenomena referred to as “anti-constitutional tendencies”. The studies they published addressed both internal threats and the dangers arising from the formation of fascist states and the Soviet state. The findings made back then remain highly relevant in the present day. Therefore, in the context of the challenges faced by legal practice and legal science today, it seems justified to recall the conclusions formulated nearly 100 years ago.

Keywords: Fascism, democracy, rule of law, total state, authoritarianism, civil rights, Nazi and Soviet totalisms

Language: English

Published: Number 3(44)/2025, pp. 38-54.

DOI: https://doi.org/10.36280/AFPiFS.2025.3.38

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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.

The Academic Teacher in Times of Rule of Law Crisis. The Dynamics and Prospects, on the Example of Academic Lawyer Teachers

Dr hab. Sławomir Tkacz, prof. UŚ, Dr hab. Aleksandra Wentkowska, prof. UŚ

University of Silesia in Katowice

English abstract: One of the most important issues recently addressed in the literature is the threat to democracy and the rule of law. It is pointed out that the necessity of verifying the role and tasks of key political institutions, primarily the state, is determined by the nature and dynamics of changes occurring in the modern world. The issue of threats to democracy and the crisis of the rule of law has frequently been discussed in Polish theoretical and doctrinal legal works produced after 1926. Authors such as Sz. Rundstein and Sz. Starzewski often raised concerns about the dangers associated with phenomena referred to as “anti-constitutional tendencies.” Their published studies addressed both internal threats and the dangers arising from the formation of fascist states and the Soviet state. The findings made at that time remain highly relevant today. Therefore, in the context of the challenges faced by legal practice and legal science today, it seems justified to recall the conclusions formulated nearly 100 years ago.

Key words: Fascism, democracy, rule of law, total state, authoritarianism, civil rights, Nazi and Soviet totalism

Language: polish

Published:Number 4(2025), pp. 58–76.

DOI: https://doi.org/10.36280/AFPiFS.2025.4.58

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Number of downloads: 209,936

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Number 3(44)/2025 [PL/ENG]

I. MARXIST APPROACHES TO LAW IN TIMES OF THE POLISH PEOPLE’S REPUBLIC AND THE GERMAN DEMOCRATIC REPUBLIC AND PHILOSOPHY OF LAW IN THE FACE OF TOTALITARIANISM

Dr hab. Joanna Helios, prof. UWr
Dr hab. Wioletta Jedlecka, prof. UWr
The influence of Marxism on the interpretation of law in Poland (some remarks concerning the theory of legal interpretation by Jerzy Wroblewski)

Dr hab. Martyna Łaszewska-Hellriegel, prof. UZ
Animal welfare under socialism: Anthropocentrism, instrumentalization, and ideology in the GDR

Dr hab. Sławomir Tkacz, prof. UŚ
Dr hab. Aleksandra Wentkowska, prof. UŚ
On the threats to democracy and the rule of law: The philosophy of total states in the views of Szymon Rundstein and Maciej Starzewski

II. CRIMINAL-LAW SETTLING OF ACCOUNTS WITH COMMUNISM

Mgr Przemysław Pasierb
The establishment of the Institute of National Remembrance as the authority responsible for prosecuting communist and Nazi crimes: An analysis of the efficiency of the IPN Act

Prof. dr hab. Adam Bosiacki
Attempts to punish communist crimes throughout history: Failures and successes

Dr hab. Dominik Bierecki, prof. UP w Słupsku
The notion of activities for the independent existence of the Polish State on the basis of the so-called February Act

Dr Marek Derlatka
Denying communist crimes: Selected problems

Mgr Kamil Słomiński
Criminalization of communist propaganda in the jurisprudence of the Supreme Court of the Second Republic of Poland

III. SYSTEMIC CRIME FROM THE POINTS OF VIEW OF INTERNATIONAL LAW AND PHILOSOPHY AND THEORY OF LAW

Prof. dr hab. Jacek Sobczak
Dr hab. Ksenia Kakareko, prof. UW
Dr hab. Maria Gołda-Sobczak, prof. UAM
The forgotten genocide: Extermination of the Crimean Tatars

Dr hab. Christoph-Eric Mecke, prof. UZ
Finding legal approaches to dealing with the past after the fall of communism from the perspective of legal theory and comparative law

Dr Kajetan Górny
Evaluation of the protests in Radom in 1976 from the perspective of Law & Economics

The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr hab. Rafał Mańko

Central European University, Democracy Institute (Budapest, Hungary)

English abstract: The purpose of this article is to examine the position of Evgeny B. Pašukanis regarding the problem of autonomy of law. The source material for the research is his monograph entitled The General Theory of Law and Marxism (1924), in which he laid down the framework of his hylomorphic theory of law, also described as materialist or realist. The article begins with a reconstruction of the basic assumptions of Pašukanis’s hylomorphic theory of law and then moves on to the key issue of his views on the genesis of juridical form. In the light of the analysis, the article shows that the essence of law in J Pašukanis’s view is that it is a form that shapes and makes possible the relations of economic exchange that constitute its proper matter. Against this background, the article addresses the issue of the autonomy of law, indicating that it should be considered in two dimensions: the internal autonomy of law, i.e. the autonomy of juridical form in relation to its content, and the external autonomy of law, i.e. the autonomy of law in relation to the state, politics and ideology. When it comes to the internal autonomy of law, the paper points out that the relationship of the form of law to its matter is – in Pašukanis’s view – of a dialectical nature, which results in his rejection of Marx’s conception of law as a ‘superstructure’ reflecting economic relations in the ‘base.’ When it comes to the external autonomy of law, Pašukanis is firmly on the side of a hard ontology of law, based on its hylemorphic substance (the composite of the matter of acts of exchange and its legal form), which makes law primary vis-à-vis the state and politics and essentially distinct from ideology. This does not, of course, exclude the ideological nature of law, but – again contrary to Marxists – Pašukanis does not allow for the recognition of law as an essentially ideological phenomenon.

Keywords: autonomy of law, ideology, hylomorphism, juriscentrism, juridical form, legal form, Pašukanis

Language: Polish

Published: nr 4(41)/2024, pp. 91-103

DOI: https://doi.org/10.36280/AFPiFS.2024.4.91

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Number of downloads: 286

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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: 225

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The Outline of Populist Constitutionalism

Mgr Jakub HUDSKÝ

University of Wroclaw

English abstract: The aim of this article is to present the assumptions of the populist constitutionalism in view of the unwavering support for populist groups and the related beliefs, resulting in irreversible changes in the perception of democratic reality. The starting point is an attempt to grasp the essence of populism and describe its elementary features. Populism is often defined in opposition to liberal thought and is analysed on two plans – the ideological and pragmatic one. An analysis of both of these elements makes it possible to indicate the political concept of populist democracy, the implementation of which is the goal of populists who achieve power. The assumptions of populist democracy are based on the implementation of the unfettered and current will of the people; at the same time, this concept perceives reality in an agonistic way – it is aware of the political necessity of all elements of public space, which make up the arena for the constantly clashing opposing interests. The above theses create a perspective through which one should look at the phenomenon of populist constitutionalism. There is no doubt that its starting point will be putting into practice populist beliefs and assumptions of populist democracy. Populist constitutional discourse, striving to implement the will of the people, does not reject the liberal institutions that have been in force so far. On the contrary, this phenomenon takes advantage of the hitherto achievements of constitutionalism and strives to transform them in such a way that – at least in principle – the will of the people can be implemented in the most unrestricted way possible. The final part of the reflections concerns the approach of populism to the constituent power, i.e., the power that enables the adoption and amendment of the constitution. It might seem that ‘legalizing’ the constituent power (e.g., in the form of an imperative mandate or popular referenda) would lead to the expansion of the power of the people, but populists do not seem to share this position. They point out that establishing a procedure which allows for additional expression of the will by citizens actually constrains their movements. Formal restrictions (e.g., the minimum number of signatures required) can often thwart the popular initiative.

Keywords: populist constitutionalism, populism, law, illiberalism, constituent power

Language: Polish

Published: Number 4(37)/2023, pp. 40-53.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.40

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Number of downloads: 369

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Epistemology of Application of Law and the Principle of Democratic Rule of Law

Dr Tomasz Raburski

Adam Mickiewicz University in Poznań

English abstract: The paper analyses the institutional epistemology of the process of application of law in Poland. The concept of institutional epistemology is understood as a set of features, epistemic aims, values, and practices, which are intrinsic to the institutional structures. Two aspects of such an institutional epistemology are covered: the positivistic model of cognition and the concept of truth embedded in the judicial practices and legal norms. The philosophical and historical origins of these features are outlined. It is argued that they should be considered relics of previous socio-political system and obsolete philosophies of science, and, in consequence, they do not meet the standards of the constitutional principle of the democratic rule-of-law state (Polish demokratyczne państwo prawne). Evolution towards more deliberative forms of institutional epistemology is advocated.

Keywords: application of law, epistemology of law, truth, legal positivism, neopositivism, deliberative democracy

Language: Polish

Published: Number 4(33)/2022, pp. 39-51

DOI: https://doi.org/10.36280/AFPiFS.2022.4.39

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Number of downloads: 417

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The Principle of Citizens’ Participation in Criminal Trials and Legitimization of the Justice System

Prof. UAM dr hab. Barbara Janusz-Pohl

Adam Mickiewicz University in Poznań

English abstract: This article deals with the principle of social factor participation in criminal proceedings. In particular, the directival approach to this principle is emphasized, and in that sense, the article seeks to argue about its interpretative role in interpreting the provisions of the Code of Criminal Procedure (CCP). The analysis covers subjective, substantive and temporal scope of the principle of social participation in criminal proceedings. First of all, the concept of sensu stricto, sensu largo and sensu largissimo approaches to the principle of social participation in the criminal trial are distinguished. However, the sensu stricto perspective includes the exercising by citizens of a judicial function in trials, currently carried out in ordinary courts in the form of the participation of lay judges in the panel; the sensu largo approach also includes the implementation of other procedural roles by citizens than the judicial function, while the sensu largissimo aspect approach incorporates participation of non-individualized citizens as audience of the court hearings, as well as implementation of the denunciation function in the criminal trial. The detailed considerations concern implementation of the judicial function. In this respect, Article 28 of the CCP is interpreted, the main research question being whether the participation of the social factor in criminal proceedings under the law in force authorizes the criminal justice system.

Keywords: citizens’ participation in criminal justice, deliberative democracy, principle of social participation, criminal process and citizens

Language: Polish

Published: Number 4(33)/2022, pp. 70-85

DOI: https://doi.org/10.36280/AFPiFS.2022.4.70

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Number of downloads: 307

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Deliberative Philosophy of Administrative Sciences

Prof. UAM dr hab. Karolina M. Cern

Adam Mickiewicz University in Poznań

English abstract: This article formulates the thesis that research is needed in the field of deliberative philosophy of administrative sciences. First of all, three general premises for the formulation of this thesis are indicated, namely: 1) the principle of sovereignty, understood in deliberative democracy as co-original with the rule of law; 2) a deliberative public philosophy which, from a contextual and particularistic point of view, considers the addressee of law as a full participant in the debate on law; and 3) the abstract principle of autonomy of will, according to which the addressee of law should also be able to understand themselves as an author of law. In the following steps, these general premises are analysed in the context of the triad of administrative sciences in order to provide more detail and context for the main thesis.

Keywords: administrative sciences, deliberative democracy, co-originarity of the rule of law and the principle of sovereignty, deliberative public philosophy, public rights

Language: Polish

Published: Number 4(33)/2022, pp. 6-20

DOI: https://doi.org/10.36280/AFPiFS.2022.4.6

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Number of downloads: 392

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