Archiwum Filozofii Prawai Filozofii Społecznej

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

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Search Results for: legal science

On Methodological Unity and Diversity of Legal Sciences: A Contribution to Basic Methodological Research

Prof. KUL dr hab. Tomasz Barankiewicz, Prof. UJD dr hab. Bogusław Przywora

The John Paul II Catholic University of Lublin, The Interdisciplinary Research Centre on Deradicalization at Jan Długosz University in Częstochowa

English abstract: The paper is an attempt to argue for the methodological distinctiveness of legal sciences. The methodological distinctiveness (specificity) of legal sciences has been presented in three dimensions: 1) the subject; 2) methods and 3) purpose of scientific research. The analysis can be used both for the argument against the lack of a methodological identity of the legal sciences and positively for the comprehensive research and the integrative model of the legal sciences. In view of the complexity of the subject and the aims of legal science should be used various research methods. In further research, it would be advisable to establish their possible systems in a specific research problem.

Keywords: methodology of legal sciences, the subject matter of legal sciences, the methods of legal sciences, the research objectives in the legal sciences

Language: English

Published: Number 3(32)/2022, pp. 5-18

DOI: https://doi.org/10.36280/AFPiFS.2022.3.5

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Number of downloads: 530

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Legal Sciences and the Problem of the Political: The Perspective of Critical Jurisprudence

Dr Rafał Mańko

University of Amsterdam

Abstract: The growing interest in the connections between legal phenomena and the political (das Politische, le politique) justifies an analysis of the problem of the relationship of legal sciences towards the political. The article focuses on two juridical sub-disciplines: analytical legal theory and legal dogmatics, and the analysis is conducted from the perspective of critical jurisprudence, a juristic application of critical theory. Towards this end, first the concept of ‘the political’ is defined, along the lines of Chantal Mouffe, as a dimension of antagonism, which lies at the foundation of any society. The political, understood in this way, must be differentiated both from ‘politics’ and from ‘policies’. As far as analytical legal theory is concerned, the article claims that it is programmatically (yet tacitly) political, as it affirms the juridical form as such, abstracting from its concrete content. As far as legal dogmatics is concerned, the article claims, following Sawa Frydman, that the dogmatician, despite his declared apoliticality, when performing a doctrinal interpretation of law, makes in fact decisions which are not only interpretive, but also political ones, setting subsequent stages in the antagonistic struggles within society.

Keywords: legal science, the political, antagonism, analytical legal theory, legal dogmatics, critical legal theory

Language: Polish

Received: 13.06.2018
Accepted: 04.09.2018

Published: Number 3(18)/2018, pp. 38-50.

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Number of downloads: 511

The ius et lex distinction in the contemporary legal science

Dr Maciej Pichlak

University of Wroclaw

English abstract: The aim of the paper is to clarify the concepts of ius and lex, as well as to indicate main interpretations of these concepts in the contemporary jurisprudence. For the concepts of ius and lex are not only of historical significance (as used in the legal discourse of the ancient Rome), but they are present in the entire history of the Western legal culture – since ancient times until today. Owing to this rich historical heritage, as well as to the very nature of the discussed concepts, it is impossible to offer classical definitions of ius and/or lex. Therefore, a proper analysis of their meaning will lead to determination of their ‘connotative field’: a map of associations and theories related to these concepts.

In order to realize this task, the paper offers three basic typologies that allow to order mutual relations between existing theoretical standpoints in this field. The first typology concerns a practical function of ius in the legal order. We can distinguish here theories which perceive such a function as mainly negative, positive, or mediating (optimalising). The second typology treats on the sources of binding force of ius. One can indicate positivistic, legalnaturalistic and hermeneutic intepretation of this problem. Finally, the third typology regards mutual relations between ius and lex, which may be described either as hierarchical, or as functionally differentiated. These considerations allow to conclude that the usefulness of such a dualistic way of thinking about the law is ever persisting. Within this perspective the legal order is conceived as containing statutory law (lex) as well as nonwritten binding standards, independent from law–making authorities (ius).

Keywrods: ius et lex, legal culture, law beyond statutory law, dualism of law

Language: Polish

Received: 09.03.2017
Accepted: Załączniki03.05.2017

Published: Number 2(15)/2017, pp. 49-59.

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Number of downloads: 995

Maurice Hauriou’s Theory of the Institution: Legal Institutionalism and the Science of the State

Mgr Cezary Węgliński

University of Warsaw

English abstract: The aim of this paper aims is to reconstruct the original context,  the characteristics and the main assumptions of M. Hauriou’s theory of the institution as one of the most coherent and comprehensive examples of legal institutionalism. By means of critical source analysis, the paper presents the basic elements of the notion of the institution together with its ontological and epistemological assumptions concerning both the very concept of law and legal methodology. The second part of the paper presents the critical approach expressed in Hauriou’s theory towards some core concepts of public and constitutional law by opposition to traditional, normativist and positivist approaches to constitutionalism. Hauriou’s work, despite its importance as indirect inspiration for contemporary doctrines of constitutional pluralism, is nowadays barely present in European legal science discourse. The last part of the paper is therefore dedicated to some closing remarks on current relevance of the theory of the institution with particular focus on the challenges of increasing pluralism of legal orders.

Keywords: legal institutionalism, theory of the institution, Maurice Hauriou, constitutional pluralism, supra-constitutionality, legal theory, sociology of law

Language: English

Published: Number 3(32)/2022, pp. 88-102

DOI: https://doi.org/10.36280/AFPiFS.2022.3.88

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Number of downloads: 524

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Metaphors, law and artefacts, or a few remarks on legal concepts from the perspective of cognitive science

Mgr Marek Jakubiec

Jagiellonian University / Copernicus Center for Interdisciplinary
Studies in Cracow


English abstract: The issue of artefactual character of law is an interesting subject of discussion among the philosophers of law. Although it may seem to be just one of the typical disputes about words, it serves an interesting point of reference for the analyses devoted to the nature of legal concepts from the perspective of cognitive sciences, which in turn leads to a more general reflection on the origins and nature of law. In the paper I explore, firstly, some aspects of philosophical discussions concerning artefacts and, secondly, I outline the theory of conceptual metaphors (including the character of mapping and embodiment). Then I point out how the analysis of legal concepts from the perspective of selected aspects of cognitive science matters for the theorizing about ontology of law.

Keywords: conceptual metaphor, legal concepts, embodied cognition, artefact

Language: Polish

Received: 03.10.2016
Accepted: 26.10.2016

Published: Number 1(14)/2017, pp. 52-65.

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Number of downloads: 498

Legal Positivism

Legal positivism holds that the validity of law depends on its social sources, not on its moral merits. Yet that single label covers deeply different positions – from Austin and Kelsen to Hart and Joseph Raz’s exclusive positivism – as well as a lasting argument with the tradition’s critics. This collection gathers texts on positivism and on that debate. Every article is free to read in open access.

Hans Kelsen and the Pure Theory of Law

Hans Kelsen (1881–1973) is among the most influential legal theorists of the twentieth century. His Pure Theory of Law (Reine Rechtslehre, 1934; 2nd ed. 1960) is a programme for a science of law purified of sociological, psychological and moral elements: law is a hierarchical order of norms (Stufenbau, a conception developed with Adolf Julius Merkl) whose unity is grounded in the basic norm (Grundnorm). Kelsen co-drafted the Austrian Constitution of 1920 and fathered the European model of centralised constitutional review.

The “Archive” published – in Tomasz Gizbert-Studnicki’s translation – a text by Stanley L. Paulson, the leading contemporary Kelsen scholar: Kelsen jako odmieniec. The Polish reception of Kelsen is documented by Monika Zalewska’s reconstruction of his discussion with Jerzy Wróblewski.

Disputes within legal positivism

Legal positivists share the conviction that the validity of law depends on its social sources rather than its moral merits (the separation thesis). Beneath that common label lie deeply different positions: Austin’s naturalistic positivism, Kelsen’s anti-naturalistic normativism, Hart’s rule of recognition, and contemporary inclusive, exclusive and conventionalist variants – all documented in the texts below.

Selected texts

See also

Classics of Modern Legal Philosophy and Theory · Ronald Dworkin i debata z pozytywizmem. Profiles: Herbert L.A. Hart · Joseph Raz · Gustav Radbruch.

The debate with Dworkin

The most famous dispute in contemporary legal theory – between positivism and Ronald Dworkin’s critique of it.

For authors

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

An editorial collection. Last updated: July 2026.

The influence of Marxism on the interpretation of law in Poland (some remarks concerning the theory of legal interpretation by Jerzy Wróblewski)

Dr hab. Joanna Helios, prof. UWr

Dr hab. Wioletta Jedlecka, prof. UWr

University of Wrocław

English abstract: The aim of this article is an attempt to conceptualize Jerzy Wroblewski’s theory of legal interpretation in the context of examining the influence of Marxism on interpretative practices. One of the legal theorists who undertook the task of demonstrating that Jerzy Wroblewski’s theory of interpretation is characterized by a philosophical stance rooted in the adoption of Marxist premises as the foundational philosophical assumptions underlying theoretical activities in legal science is Zbigniew Pulka. This article discusses three topics: (1) the Marxist philosophical stance – Marxist axiology, (2) people’s legal interpretation, (3) the clarificatory concept of interpretation.

Keywords: interpretation, Marxism, communism, J. Wróblewski, clarificatory concept of interpretation

Language: English

Published: Number 3(44)/2025, pp. 7-19.

DOI: https://doi.org/10.36280/AFPiFS.2025.3.7

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Number of downloads: 225

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Pygmalion’s Digital Dream: An Outline of Philosophical and Legal Issues of Human Digital Twins on the Example of Medical Applications

Dr hab. Tomasz Widłak, prof. UG

University of Gdańsk

English abstract: The aim of the article is to present a synthesis of the technological and social framework of the new, disruptive technology of human digital twins (HDT) and to outline the most important philosophical and legal issues related to it. The latter include ontological and phenomenological aspects in relation to the problem of legal personality and the status of HDT. Due to the universality of the technology and the breadth of issues related to it, the scope of the discussion was limited to examples of the use of technology in health care and medicine. The article presents the possibilities and threats of using HDTs in this area. Selected, most important examples of potential ethical and legal problems posing a challenge to future and current regulations in areas such as privacy and data protection, data quality and ownership, and patient autonomy were also analyzed. The conclusions of the article, point that the changes resulting from this disruptive technology go beyond purely practical aspects and touch the philosophical foundations of the legal order. HDT technology itself, at its early stage of development, does not clearly determine the direction of evolution of legal humanism paradigm towards inclusive posthumanism or technological transhumanism. The need to consider the phenomenological perspective of the HDT experience was emphasized. It may become the most important factor determining possible conceptual changes in law and jurisprudence. In addition to the discussion, the article provides an extensive review of the existing computer science literature on HDT. There have been no studies on the issue of HDT from the perspective of jurisprudence in the legal literature so far.

Key words: Human digital twin, personalized medicine, artificial intelligence, new technology law, medical law, transhumanism, digital clone.

Language: Polish.

Published: no. 1(42)/2025, pp. 93-111.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.93

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Number of downloads: 243

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Judicial Update of the Meaning of a Legal Text in Three Questions

Dr Paulina Konca

University of Silesia, Katowice

English abstract: The aim is to illustrate the complexity of the process of judicial updating of the meaning of a  legal text in changing circumstances (e.g. developments in technology and science, social  changes) and to answer the question of the role of courts and the legislator in making updates.  On the basis of an analysis of literature, legislation and judicial practice, the basic problems of  updating a legal text and their selected solutions were presented. The topic has been widely  discussed in the context of the Constitution, while the literature on updating statutes is still  relatively rare. Meanwhile, the dynamics of diverse external changes is intense. It has become  urgent to develop a theoretical framework for this issue. Courts, when updating, must ask themselves three questions. First, has there been a change? Second, what is the impact of the  change on the meaning? Third, is the judiciary allowed to update? Within each of them, the  question arises as to who is entitled to make a binding conclusion: the courts or the legislature.  Ad 1. The determination of a change is often not difficult, but in doubtful cases where there is  no general agreement that circumstances have changed, the courts would be well advised not to  update on their own, but to rely on the legislature’s assessment of the extent in dispute. Ad 2. Courts determine the updated meaning, primarily guided by the purpose of the regulation.  However, even when updating the same provisions, two different courts may come to different  conclusions. Ad 3. Courts update, inter alia, when they conclude that the failure to update is an  omission on the part of the legislature and consider themselves entitled to correct this error.  Significantly, in some countries, the ability of the courts to update arises from legislation: the  Irish and Spanish provisions governing the issue is set out in the text. 

Key words: Interpretation, construction in changing circumstanceseparation of powers, courts, dynamic interpretation, lawmaker.

Language: Polish

Published: no. 1(42)/2025, pp. 40-59.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.40

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Number of downloads: 327

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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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