Archiwum Filozofii Prawai Filozofii Społecznej

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

IVRwww.ivr.org.pl

Search Results for: legal culture

Changes in the Shell of Legal Culture on the Example of Remote Hearings. An Outline of the Problem

Prof. dr hab. Jolanta Jabłońska-Bonca

Kozminski University in Warsaw

English abstract: The aim of the article is to demonstrate that the new form (‘shell’) of legal culture in courts, which is currently taking shape during remote hearings (i.e., hearings held via electronic devices with simultaneous transmission of image and sound), has an impact on the operation of legal and extralegal rules of court proceedings. The article uses some of the results of empirical research on remote civil hearings in Poland (participant observation method).

Keywords: shell of legal culture, judicial culture, remote hearings

Language: Polish

Published: Number 1(38)/2024, pp. 34-47.

DOI: https://doi.org/10.36280/AFPiFS.2024.1.34

Download: Download
Number of downloads: 303

This text is licensed under a Creative Commons Attribution 4.0 International License.

Deliberative Legal Education. Reflection on the Relationship Between the University and Legal Culture

Dr Aneta Jakubiak-Mirończuk

Cardinal Stefan Wyszyński University in Warsaw 

English abstract: The university, as an intellectual community and space of research, education and development, shapes the academic culture. The aim of education is to provide law graduates with knowledge – undoubtedly crucial for practicing the profession, but also with competences and skills enabling them to participate in the legal culture. Deliberation is a process in which, through conscious, responsible and cognitively-oriented action, a rational, but also reflective change is possible, taking into account both the preferences of entities and, at the same time, the dynamics of the changing world around them. An organization of the university based on the philosophy of deliberation is in line with the academic tradition based on cognitive autonomy, understood as the right of researchers and students to freedom of learning and teaching.

Keywords: deliberative philosophy, legal education, legal culture

Language: Polish

Published: Number 4(29)/2021, pp.30-44

DOI: https://doi.org/10.36280/AFPiFS.2021.4.30

Download: Download
Number of downloads: 703

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Systems Theory and Puzzles of Legal Culture

Dr Jan Winczorek

University of Warsaw


English abstract: Legal culture is a concept as central to legal studies and sociology of law as difficult to define. It aims to serve important theoretical needs but it is also responsible for some puzzles that trouble legal and socio-legal scholars. Some of them are quite famous: the puzzle of the nature of Japanese litigiousness, the puzzle of differing German and Dutch legal cultures, or, recently, the issue of cultural defence. Some are lesser known, like the multitude of courts’ adjudicating strategies in Poland’s allegedly unitary legal culture. The paper argues that the problems of such nature are a conceptual artefact, a result of objectifying understanding of legal culture as a phenomenon. It is stressed that in such studies more weight should be put on the immediate, procesual nature of investigated phenomena. In order to support these claims, conceptual machinery of systems theory is utilised. First, a general view of N. Luhmann regarding the notion of culture is accepted and applied to the idea of legal culture. Further it is demonstrated how the aims served by the notion of legal culture can be achieved by appealing to such theoretical concepts as structural coupling, first- and second- order observation, and above all – temporal nature of social systems. A general conclusion of the paper is that in the study of “legal culture” an evolutionary perspective is unavoidable.

Keywords: Niklas Luhmann, Systems Theory, legal culture, structural coupling, first-order observation, second-order observation, temporal nature of social systems

Language: English

Published: Number 1(4)/2012, pp. 106-125.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.106

Download: Download

Number of Downloads: 655

Academic Freedom on the Frontlines of Culture Wars: Stanley Fish and the Freedom of Expression of a University Teacher

Dr Jakub Łakomy

University of Wrocław

English abstract:Academic freedom of expression today is caught in the crossfire of many intense culture wars. Traditional liberal defences of free expression and freedom of speech seem to be insufficient. This paper argues that we need a fresh theoretical lens to understand and solve these conflictual situations in which university teachers often find themselves. Adopting an analytical and philosophical approach grounded in legal theory, my paper uses Stanley Fish’s neopragmatist, anti-foundationalist framework to reconceptualize academic freedom of expression. The central thesis of my article is that academic freedom is not an absolute individual right to say anything one pleases but a context-bound freedom defined by academia’s internal norms and purposes. In contrast to liberal theories that invoke universal principles, such as Mill’s “marketplace of ideas” or broad “First Amendment” rights, Fish’s perspective insists that all speech is constrained by its interpretive community. This paper critically evaluates liberal justifications for free academic expression, showing how these rely on abstract foundations that Fish’s neopragmatism calls into question; it reconstructs a Fishian account of academic freedom based on “professional correctness,” the idea that scholars are free only to the extent that their different forms of expression are coherent with the specific professional objectives and standards of scholarly inquiry.

Key words: academic freedom, freedom of expression, culture wars, Stanley Fish, university teacher

Language: English.

Published: Number 4(2025), pp. 77–95.

DOI: https://doi.org/10.36280/AFPiFS.2025.4.77

Download

Number of downloads: 209,936

This text is licensed under a Creative Commons Attribution 4.0 International License.

Legal Certainty and the Interpretatio Retro Non Agit Principle

Prof. UŚ dr hab. Agnieszka BIELSKA-BRODZIAK, dr Marek SUSKA

University of Silesia in Katowice

English abstract: Referring to Józef Nowacki’s research on the principle of non-retroactivity of law [lex retro non agit], the authors of this study focus on the relationship between legal certainty and retroactive changes in the prevailing interpretation of legal provisions. The main topic of the study is the expression ‘interpretatio retro non agit‘, which is already well-known in the legal culture, but not widely used. The objectives of the study were: (1) to determine the content related, or potentially related, to the statement above in case law and literature; (2) to examine whether there are grounds to consider this principle as binding in adjudication; and (3) to explain why changes in the prevailing interpretation of legal provisions are perceived as a necessary evil. The research gave the authors a basis to distinguish between two understandings of the interpretatio retro non agit principle: the narrow one and the broad one. Moreover, the broad understanding contains four sub-types of the thus understood principle. The narrow approach prohibits recognizing a change in the prevailing interpretation as a circumstance that would allow legally valid court judgments or final administrative decisions to be challenged. On the other hand, the broad approach introduces a presumption that legal effects should not be ascribed solely because of a change in the prevailing interpretation that occurred after the legal fact took place. Four possible justifications for the interpretatio retro non agit principle were also considered: formal, natural, cultural, and instrumental justification. The authors found that the instrumental justification, which connects the principle with the value of legal certainty, seems to be the most appropriate. However, some elements of the principle can also be convincingly justified formally. Retroactive interpretation changes are only briefly discussed in literature, which the authors regard as an unfavourable state of affairs. However, the fundamental differences between law-making and the application of law allow us to understand that protecting the addressees of the law in practice is much more complicated in cases of applying the law.

Keywords: legal certainty, legal interpretation, consistent line of case law, interpretatio retro non agit, ex post facto laws

Language: Polish

Published: Number 3(36)/2023, s. 51-65.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.51

Download: Download
Number of downloads: 366

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Argument from Precedent in Legal Interpretation of Texts of Legal Acts from the Perspective of a Derivative Concept of Legal Interpretation

Prof. US dr hab. Agnieszka Choduń

University of Szczecin

English abstract: The aim of this article is to ascertain whether in the Polish legal culture in which precedent is not a legislative fact, it can become an argument in the process of judicial interpretation. The article posits that an analysis of precedent as an argument in judicial interpretation must be carried out in relation to a particular concept (or theory) of legal interpretation. Hence, it adopts the Maciej Zieliński’s (derivative) concept of legal interpretation as a point of reference for understanding “legal interpretation”. The choice is based on the following reasons: 1) this concept offers a complex approach to legal interpretation (which assumes that interpretation can be concluded if three directives have been applied by an interpreter: linguistic, systemic and functional); 2) this concept considers the realistic elements of legal interpretation in the form of directives linked to the interpretative findings achieved in judicial practice; 3) this concept stipulates that legal interpretation has certain roles, which allow establishing whether the outcome of legal reasoning is within the scope of the interpretation or whether it constitutes a “normative novelty”. As a result of this analysis, it can be concluded that depending on the content of the directives of interpretation adopted in a given legal culture, the proceedings of the entity applying a law will have either an interpretative or a legislative character and will consequently determine how invoking earlier court judgments in legal interpretation will be classified.

Keywords: precedent, legal interpretation, roles of interpretation

Language: English

Published: Number 3(32)/2022, pp. 19-33

DOI: https://doi.org/10.36280/AFPiFS.2022.3.19

Download: Download
Number of downloads: 524

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Issue 3/2020 of „Archiwum Filozofii Prawa i Filozofii Społecznej”: „Public Interest in Current Legal Discourse”

We invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej” (Journal of the Polish Section of IVR) published in English, and available in full open access. The issue „Public Interest in Current Legal Discourse” was edited by prof. UZ dr hab. Martyna Łaszewska-Hellriegel.

The issue includes following papers:

  • Dr Mateusz Klinowski: Public Truths and Their Legal Protection
  • Dr Jan Winczorek: Public Interest and Access to Justice: A Liminal Analysis
  • Prof. UwB dr hab. Anetta Breczko: “Interest of the Individual” versus “Common Good” and “Public Interest” in the Context of Technological Progress in Medicine
  • Prof. UZ dr hab. Martyna Łaszewska-Hellriegel: Is Post-Mortem Organ Donation a Duty Towards Society and Can It Be Justified by Public Interest? Recent Bills to Amend the German Transplantation Law
  • Prof. UG dr hab. Maciej Barczewski, Prof. UG dr hab. Sebastian Sykuna: Improving Global Public Health: Responsiveness to Public Interest Considerations in Intellectual Property Law
  • Dr Magdalena Łągiewska, Prof. dr hab. Kamil Zeidler: Bruce Lee’s Case: Intellectual Property vs. Free Access to Culture and Protection of Public Interest
  • Prof. dr hab. Hanna Paluszkiewicz: Is “Public Interest” a Conceptual Category of Contemporary Polish Procedural Criminal Law?
  • Prof. UR dr hab. Beata Stępień-Załucka: Amendments to the Law on Assemblies Against the Background of the Constitutional Freedom of Assembly in Poland
  • Dr Dobrochna Ossowska-Salamonowicz: Public and Social Interest in Journalistic Activity

Apart from the introduction, the issue also includes a further discussion on works of Isaiah Berlin between prof. Beata Polanowska-Sygulska and dr Henry Hardy.

The issue is available HERE.

Bruce Lee’s Case: Intellectual Property vs. Free Access to Culture and Protection of Public Interest

Dr Magdalena Łągiewska, prof. dr hab. Kamil Zeidler

University of Gdańsk

English abstract: This article provides a comprehensive analysis of Bruce Lee’s case by presenting the intellectual property rights mechanisms in the People’s Republic of China. The aim of this paper is to bring attention to the trademark law as well as to shed new light on infringements of personality rights, in particular portrait rights, in trademarks. This begs the question as to what kind of legal action should be undertaken by Bruce Lee’s heiress to protect her rights. Moreover, the article touches upon the conflict between the public interest and trademarks and tries to answer the question how to balance private holders’ rights with the public interest. In order to provide some hypothetical scenarios, the study focuses primarily on Bruce Lee’s case background and the new amendments to trademark law in China, bringing the authors to final deliberations on Bruce Lee as part of modern culture belonging to mankind as a whole. Therefore, our research aims to find a solution to the challenging problem of reconciling intellectual property rights protection mechanisms with the common cultural heritage.

Keywords: Bruce Lee’s case, intellectual property infringement, trademark law, Chinese law, public interest, cultural heritage

Language: English

Published: Number 3(24)/2020, pp. 79-92.

DOI: https://doi.org/10.36280/AFPiFS.2020.3.79

Download: Download
Number of downloads: 645

On an Interpreter’s Game with the Legal Text and Extratextual Factors in the Derivative Concept of Legal Interpretation

Dr Paweł Jabłoński, prof. UWr dr hab. Przemysław Kaczmarek

University of Wrocław

English abstract: The aim of this paper is to show the derivative concept of legal interpretation from the point of view of the structure of limits of the juridical power. This structure includes the politico-legal culture, the legal text, the juridical culture, and personal factors, such as ethical and aesthetic judgements.

These days, the derivative concept is the most influential Polish theory of legal interpretation. According to this concept the process of interpreting the law is a kind of a game between the legal text and extratextual factors, which are treated as extratextual limits of juridical power. On the one hand, the legal text does not determine the full meaning of the law, although it has great importance for it. On the other hand, the derivative concept precisely identifies certain others factors that are relevant for the content of law.

Keywords: derivative concept of legal interpretation, limits of juristic power, legal text

Language: Original printed in Polish, English translation available below

Published: Number 2(23)/2020, pp. 49-65.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.49ENG

Download: Download
Number of downloads: 482

Journal infrastructureISSN 2082-3304Open accessCC BY 4.0Crossref DOIDOAJ