Search Results for: legal form

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.

The Formation of Constitutional Awareness in Legal and Public Discourse. Introduction

Dr Skirgailė Žalimienė, prof. UŁ dr hab. Bartosz Wojciechowski

University of Vilnius, University of Lodz

Language: Polish

Published: Number 2(31)/2022, pp. 5-6.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.5

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Number of downloads: 361

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

A few comments on the formalization of legal reasonings under analogy legis and a contrario

Prof. dr hab. Andrzej Malinowski

University of Warsaw

English abstract: The paper shows some of the problems related to the formalization of legal reasonings under analogia legis and a contrario, and discusses some of the specific proposals in this regard. Built formal models are based on the concept of monotonic logic and nonmonotonic logic. These models are mainly illustrative and have limited explanatory power. Their reliability can only be achieved under certain additional conditions.

Keywords: formalization, legal reasoning, analogia legis, a contrario

Language: Polish

Received: 03.04.2017
Accepted: 22.05.2017

Published: Number 2(15)/2017, pp. 26-37.

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Number of downloads: 435

25 Years After the Transformation: Law and Legal Culture in Central and Eastern Europe Between Continuity and Discontinuity”, Brno, Czech Republic, 16-17.04.2015 r.

Mgr Wojciech Zomerski

University of Wrocław

Language: Polish

Published: Number 1(12)/2016, p. 78-83.

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Number of downloads: 326

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.

Finding legal approaches to dealing with the past after the fall of communism from the perspective of legal theory and comparative law

Dr hab. Christoph-Eric Mecke, prof. UZ

University of Zielona Góra

English abstract: The paper deals with the question of legal punishment of crimes, in particular crimes against life and freedom, which were committed in the former socialist states of Central and Eastern Europe in the name of the State or at least with its tacit approval. This question is discussed in the paper from the perspectives of legal theory and comparative law.

After clarifying the concept of “communist crimes”, which in countries such as Poland is even a legal concept of applicable law, the first part of the paper examines the legal-theoretical and legal-philosophical problems of criminal penalties for massive human rights violations committed under the laws of the socialist era. As legal-theoretical polar opposites in this regard, it presents the position of Gustav Radbruch with his two famous formulae and the position of Hans Kelsen’s legal positivism. It points out that in the case of communist crimes only the first of Radbruch’s two formulae, the “intolerability formula” can be applied.

The perspective of comparative law is the subject of the second part of the paper. It shows that the spectrum of criminal-law dealing with the communist past since 1989 ranges from a relatively systematic legal prosecution of at least the most serious human rights violation, for example in the cases of homicides at the former inner German border, to complete non-prosecution by the judiciary of Eastern European states such as Russia, Belarus, Georgia, Bulgaria or Croatia. Where criminal prosecution took place, the question arose not only of the statute of limitations, but also of the nulla poena sine lege principle. This principle, which is based on the rule of law, is not only important with respect to the validity of statutory law during the communist era, but also with regard to the different interpretative practices of courts in the former socialist states.

Keywords: legal reassessment of communist crimes, post-socialist states of Central and Eastern Europe, Kelsen’s legal positivism, Radbruch’s two formulae, rule of law, nulla poena sine lege

Language: English

Published: Number 3(44)/2025, pp. 138-155.

DOI: https://doi.org/10.36280/AFPiFS.2025.3.138

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Number of downloads: 182

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The Constitutive and Conventional Nature of Legal Interpretation Directives

Prof. dr hab. Marek Smolak

Adam Mickiewicz University in Poznań

English abstract: The article’s purpose is to demonstrate that the directives of legal interpretation are constitutive and conventional. The directives of legal interpretation are constitutive because they confer the status of legal interpretive practice on social practice. The directives of legal interpretation are conventional because they are arbitrary in the sense given to them by A. Marmor. The directives of legal interpretation constitute not only the legal interpretive practice, but also the values of this practice. Among these values, I include innovative thinking, reasoning by analogy, intellectual challenges. If constitutive conventions are responsive, i.e., if they respond to various human needs and values, then at the core of legal interpretive practice there are values that are momentous for those who participate in these practices. Two types of values are distinguished: values in a strong sense and in a weak sense. Values in the strong sense are values whose realization is acontextual, i.e., independent of any context of a given legal interpretive practice. I include certainty and uniformity of understanding of legal texts in this category of values. On the other hand, values in the weak sense are contextual values, i.e., ones that depend on the goals that legal interpretive practice is supposed to fulfil. Examples of contextual values are adaptability and stability of law. I considered that there is a special relationship between values in both the strong and weak senses and the directives of legal interpretation. Based on mutual expectations, members of a given community assume that a particular directive of legal interpretation best realizes an important value of legal interpretation. The correctness of the above relationship largely depends on previous legal interpretive practice.

Keywords: legal interpretation directives, constitutive rule, conventional rule, values in legal interpretive practice

Language: Polish

Published: Number 2(43)/2025, pp. 80-96.

DOI: https://doi.org/10.36280/AFPiFS.2025.2.80

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Number of downloads: 247

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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: 231

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The Structural Determinants of Attitudes of Distrust in the Practice of Professional Roles by Representatives of Selected Legal Public Trust Professions

Dr hab. Maciej Wojciechowski, prof. UG

The University of Gdańsk

English abstract: In the article, I try to show that legal dualism provides a conceptual grid for the analysis of the crisis of the rule of law. In demonstrating this, I first introduce the concept of legal dualism and then present autocratic legalism and abusive judicial review in its light. Two variants of the conceptual framework of legal dualism are suitable for describing and explaining these forms of governance. They present legal dualism as a) an instrumental action of „the main actors” in public life, and b) a social attitude that lacks a cultural imperative that allows citizens to identify with the law. Two main conclusions can be drawn from the article’s findings. First, autocratic legalism and abusive judicial review are based on the instrumentalization of the rule of law as a political ideal. Second, legal dualism as a social stance indicates that insufficient consideration of the social dimension of law has made it easier for political centres to challenge the liberal vision of the rule of law, presented by its opponents as the rule of lawyers, the social elite. A response to the charge of alienating the law in different configurations (political constitutionalism versus legal constitutionalism) is the idea of inclusivity, which can be expressed in different theoretical languages. The context for the conclusions of the article is the constitutional crisis, which is also present in the Polish legal order The empirical documentation does not determine the research methodology in the presented article. I pursue in it an approach that can be attributed to the social theory of law (B.Z. Tamanaha).

Keywords: trust, distrust, legal practice, lawyers, judges, legal formalism

Language: Polish

Published: nr 4(41)/2024, pp. 66-80.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.66

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Number of downloads: 286

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Formulating the Provisions on Entry into Force of a Generally Applicable Normative Act: Critical Analysis Engendered by the 2023 Act Amending the Electoral Code

Mikołaj Truszkowski

Lodz University

English abstract: This article critically analyses the provisions on entry into force, based on the provisions of the 2023 Act Amending the Electoral Code, which made the entry into force of certain normative solutions dependent on a deadline specified in the announcement of the competent centralnauthority of state administration. However, this construction is not found in the directives for the construction of legal acts, specified in the Principles of Legislative Technique of 2002. Additionally, the article also draws attention to legal problems resulting from the use of such blameworthy legislative practice, including in the context of the presumption of widespread familiarity with the law. Moreover, this announcement, in accordance with statutory regulations, was subject to promulgation in the Journal of Laws of the Republic of Poland, although this is not reflected in the Act on the Promulgation of Normative Acts and Certain Other Legal Acts. Therefore, this legislative maneouvre should be considered unacceptable and, consequently, in some cases, inconsistent with Article 2 of the Constitution of the Republic of Poland, which establishes the principle of a democratic rule-of-law state. In order to justify the presented thesis statement, the author analyses the provisions of the Act Amending the Electoral Code, discusses the conceptual apparatus and theoretical constructs in the context of law-making practice, using the hermeneutical and formal-dogmatic methods. The research opens up the field for broader considerations on compliance with the Principles of Legislative Technique in the law-making process.

Keywords: legislative technique, legislation, statute, legislative process, the Sejm (lower chamber of the Polish Parliament)

Language: Polish

Published: nr 3(40)/2024, pp. 68-77.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.68

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Number of downloads: 230

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