Dr Tomasz Bekrycht
University of Łódź
Language: Polish
Published: Number 1(2)/2011, pp. 116-118.
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Archiwum Filozofii Prawai Filozofii Społecznej
Journal of the Polish Section of IVR (ISSN:2082-3304)
Language: Polish
Published: Number 1(2)/2011, pp. 116-118.
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Number of downloads: 289
Language: Polish
Published: Number 1(2)/2011, pp. 111-115.
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Number of downloads: 319
Language: Polish
Published: Number 1(2)/2011, pp. 108-110.
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Number of downloads: 330
Language: Polish
Pubished: Number 1(2)/2011, pp. 103-107.
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Number of downloads: 443
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Language: Polish
Published: Number 1(2)/2011, pp. 86-102.
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English abstract: Article is an attempt to provide reconstruction of the discourse between Hans Kelsen and Jerzy Wróblewski. The main motive of the article are three footnotes from Hans Kelsen’s General Theory of Norms where he considers such issues as the meaning of the legal norm, and legal interpretation. Reconstruction leads to conclusion that if one treats H. Kelsen’s argumentation as a critique of Jerzy Wróblewski’s theory, this critique doesn’t have sound basis, because it’s essence is not to point contradictions and weakness of the theory, but it is led from the point of view of pure theory of law which itself at some points suffers from the lack of coherency. Thus the other approach of the interpretation of footnotes is offered, to treat them as an some kind of scientific testimony, and as a tool which has on scope to make improvement in pure theory of law. Additionally it has been pointed out, that Hans Kelsen didn’t put the main interest on Marxist issues which occurred in Jerzy Wróblewski’s theory, but on those elements which have it’s importance and are discussed till present day.
Keywords: Hans Kelsen, Jerzy Wroblewski, legal interpretation, normativism
Language: Polish
Published: Number 1(2)/2011, pp. 75-85.
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Number of downloads: 381
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English abstract: Within the framework of legal positivism on the ground of Polish legal theory there was founded, in the scope of the issue of legal interpretation, the ‘clarification’ theory, formulated by J. Wróblewski. Adopting psycholinguistic perspective for the analysis of above mentioned theory allows to take the knowledge about human linguistic cognition into consideration and compare it with the vision of achieving understanding of legal text as understood by J. Wróblewski. Thus conducted “mental experiment” – moving from the level of the legal theory to the level of psycholinguistics – reveals “hidden” properties of J. Wróblewski theory of legal interpretation. First of all, as far as the question about the status of his theory is concerned, it allows to formulate a conclusion that it is neither a descriptive nor a normative theory of legal interpretation. It is possible to accept only as a normative theory of justification of interpretation decisions in the process of law application.
Keywords: Jerzy Wróblewski, ‘clarification’ theory of legal interpretation, psycholinguistics (keywords supplied by the editors)
Language: Polish
Published: Number 1(2)/2011, pp. 55-74.
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Number of downloads: 677
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English abstract: This paper addresses the issue of whether the justification concerning the principles of justice adopted by Rawls allows for modifying morally significant differentiations found in the basic social structure. The idea of basic social structure as understood by Rawls is explained, and the requirements for justification assumed by Rawls are characterized. Theses requirements are determined by intuitive beliefs concerning justice; whereas such beliefs stipulate certain factors as being morally significant. The analysis of Rawls’s argument indicates that his justification with respect to the principles of justice is based on the criterion of benefit. This leads to privileging these conditions which according to the intuitive beliefs concerning justice should not be privileged. The original position of social groups, however, is not included within the framework of the justification mechanism, and so it requires revaluation for the same reasons as the previously mentioned issue.
Keywords: John Rawls, theory of justice, basic social structure, requirements for justification (keywords supplied by the editors)
Language: Polish
Published: Number 1(2)/2011, pp. 46-54.
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Number of downloads: 459
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English abstract: The aim of the paper is to reconstruct the critique of the concept of “external integration of jurisprudence”, which has been widely discussed in polish jurisprudence in the past decades. I base my critique on an analysis of the concept put forward in Polish literature by Jerzy Wróblewski and Kazimierz Opałek. I also consider the postmodern critique of the views on interdisciplinarity held by classical jurisprudence.
The first part of the article consists of: a) general remarks on some doubts and ambiguites concerning understanding of “postmodernism” and common misunderstandings of this term and b) some remarks on the relations between law and postmodernism. In the second part of the article, I provide a sketch reconstruction of the basic traits of postmodernism, especially those characteristics, which determine the postmodern attitude towards interdisciplinarity.
In the third, main part of my article I show how the positivist, modern concept of “external integration of jurisprudence” is incompatibile with postmodern views on science, research, knowledge, epistemology and disciplinarity. I provide an in-depth critique of the presumptions and presuppositions underlying this concept. Finally, I ask: “Quo vadis, interdisciplinarity’’? What about the future of interdisciplinary research in the field of law, when the postmodern methodological storm has swept away the old instruments? Here I introduce the concept of “postdisciplinarity”.
Keywords: interdisciplinarity, postmodernism, disciplinarity, postdisciplinarity, poststructuralism, methodology, legal positivism
Language: Polish
Published: Number 1(2)/2011, pp. 29-45.
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Number of downloads: 489
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English abstract: Law & economics scholars have claimed, from the very beginning of the movement, that their ambition has been to make studies of law more scientific. The neoclassical approach in economic analysis of law is based on the assumption that rationality of people acting in legal contexts can be characterized in the same ways as rationality of homines economici. However, emergence of behavioral economics and attempts to apply it to analysis of law by some law & economics scholars resulted in critical revising the achievements of neoclassical approach. The so called behavioral law & economics criticizes the neoclassical approach on the basis of experiments, which test hypotheses derived from neoclassical theories. Outcomes of those experiments allow to draw conclusion that in many (legal) contexts people don’t behave in accordance with predictions based on neoclassical models. Behavioral law & economics scholars argue that neoclassical theories are grounded on so highly unrealistic assumptions that in many situations they cannot offer predictions of human behavior. I distinguish three main issues that are discussed: philosophical, methodological and normative ones. I formulate critical comments on the raised arguments and final general remarks concerning possibility of making legal studies more scientific, as well as application of economics to studies on law.
Keywords: behavioural law & economics, scientific study of law, legal theory, normative and methodological debate
Language: Polish
Published: Number 1(2)/2011, pp. 15-28.
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Number of downloads: 494
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