Archiwum Filozofii Prawai Filozofii Społecznej

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

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What is Law? Aims and Means

Prof. Dr. Dietmar von der Pfordten

University of Göttingen


English abstract:
This article is an attempt at delimiting the area of philosophical research in order to define the conditions for an adequate definition of the law. This writer believes that this definition is achieved by identifying the particular aims and means which are set for the law and through which the social phenomenon of the law is realized. Assumedly, the definition is to be a response to the so-called normativism in the theory of law, that is, an attempt to explain the notion through the particular means (norms) used by the law. The writer tries to justify not only that his approach characterizes the law more fully, but also that it contributes to better understanding of the links between law and ethics, morality, politics or the remaining conventional social facts.

Keywords: definition of the law, aims and means of the law, law and ethics, law and conventional social facts (keywords supplied by the editors)

Language: Polish
Translatad by: Mateusz Klinowski

Published: Number 1(1)/2010, pp. 7-18.

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Number of downloads:
726

References:

  1. Arystoteles, Etyka Nikomachejska.
  2. Arystoteles, Polityka.
  3. Austin J., The Province of Jurisprudence Determined. Cambridge 1995.
  4. Bentham J., The Principles of Morals and Legislation, Buffalo (N.Y.) 1988.
  5. Cicero, De Legibus.
  6. Dworkin R., Taking Rights Seriously, London 1977.
  7. Dworkin R., Law’s Empire, Cambridge 1986
  8. Hart H.L.A., The Concept of Law, Oxford 1961.
  9. Hegel G.W.F., Grundlinien der Philosophie des Rechts. W: E. Moldenhauer, K.M. Michel (red.), Werke, Vol. 7, Frankfurt am Main 1970.
  10. Hobbes T., Lewiatan, Cambridge 1991.
  11. von Jhering R., Der Zweck im Recht, Leipzig 1893.
  12. Kant I., Kritik der reinen Vernunft, Edited by the Prussian Akademie, Vol. III, Berlin 1904.
  13. Kant I., Metaphysik der Sitten, Metaphysische Anfangsgründe der Rechtslehre, Berlin 1907.
  14. Kelsen H., Reine Rechtslehre. Wiedeń 1960.
  15. Locke J., Second Treatise on Government, Raleigh (N.C.) 1991.
  16. von der Pfordten D., Deskription, Evaluation, Präskription, Berlin 1993.
  17. von der Pfordten D., Rechtsethik, München 2001.
  18. von der Pfordten D., Was ist und Wozu Rechtsphilosophie?. “Juristenzeitung” 2004/59, 157-166.
  19. Platon, Laches.
  20. Platon, Państwo.
  21. Radbruch G., Rechtsphilosophie, Heidelberg 2003.
  22. Raz J., Legal Positivism and the Sources of Law, w: Raz J., The Authority of Law, Oxford 1979.
  23. Ross A., Tû-Tû, “Harvard Law Review” 1956-57/70, 812-825.
  24. Schopenhauer A., Die Welt als Wille und Vorstellung, Darmstadt 1961.
  25. Tomasz z Akwinu, Summa Theologiae.
  26. Wittgenstein L., Tractatus logico-philsophicus, Frankfurt am Main 1995.

Filed Under: Articles Tagged With: aims means of the law, definition of the law, Dietmar von der Pfordten, law and conventional social facts, law and ethics

The influence of the conscience clause and cultural defense on the appraisal of the structure of crime

Prof. UŚ dr hab. Olga Sitarz, Dr Dominika Bek, Mgr Jakub Hanc

University of Silesia

English abstract: The submitted study is devoted to the clause of conscience and cultural defense. The initial arguments are focused on explaining the indicated terms, by referring to current doctrinal positions. The basic course of considerations – devoted to primary and secondary legality, legislative and non-legislative lawful excuses, circumstances reducing or excluding guilt – is an attempt to answer the question of where in the structure of crime is a place for conscience clause and cultural defense.

Keywords: conscience clause, cultural defense, crime, legislative lawful excuse (justification), non-legislative lawful excuse, circumstances excluding guilt

Language: Polish

Received: 28.03.2017
Accepted: Załączniki07.08.2017

Published: Number 2(15)/2017, pp. 60-79.

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Number of downloads:
496

Filed Under: Articles Tagged With: circumstances excluding guilt, conscience clause, crime, cultural defense, Dominika Bek, Jakub Hanc, legislative lawful excuse (justification), non-legislative lawful excuse, Olga Sitarz

Critical analysis of a judicial discourse on the legal situation of homosexuals in the light of Article 18 of the Constitution of the Republic of Poland

Mgr Wojciech Zomerski

University of Wroclaw

English abstract: In this paper, I make an attempt to conduct a critical analysis of judicial discourse devoted to the situation of homosexual persons in the light of Article 18 of the Constitution of the Republic of Poland. In order to show how unequal treatment of homosexuals is being reproduced, I analyze selected rulings of the Polish Constitutional Tribunal, Supreme Court and administrative courts. On the methodological level I refer to the Critical Discourse Analysis. In the result, the analysis of chosen rulings is conducted in the attempt to spot linguistic maneuvers leading to the reproduction of unequal treatment of homosexuals. Thus, in the course of this analysis I apply such notions as interpellation (Althusser), ideology (Žižek), doxa and habitus (Bourdieu). On the whole, I argue that the flawed interpretation of Article 18 is the result of referring to established judicial standpoint, illegitimate departures from linguistic interpretation, or many kinds of concealment and counterfactual premises. The origins of doxa that is the basis of such practice, might be seen in the Catholic doctrine which is based on the assumption of unnatural character of homosexuality and subordination of human sexuality to aims of procreation. In the end, I come to the conclusion that unmasking of axiological presuppositions underlying interpretation of the analyzed provision would fundamentally change the character of discussion devoted to the legal situation of homosexuals, satisfying Habermasian standards of deliberative democracy, and it might eventually lead to recognition of one-sex relations by legislator.

Keywords: homosexuality, article 18 of the Constitution, Critical Discourse Analysis, discrimination, ideology, doxa, interpellation

Language: Polish

Received: 13.03.2017
Accepted: 03.05.2017

Published: Number 2(15)/2017, pp. 80-97.

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Number of downloads:
485

Filed Under: Articles Tagged With: article 18 of the Constitution, Critical Discourse Analysis, discrimination, doxa, homosexuality, ideology, interpellation, Wojciech Zomerski

XXII Zjazd Katedr Teorii i Filozofii Prawa Prawo – polityka – sfera publiczna, Wrocław, 18–21 września 2016 r.

Mgr Filip Rakoczy

University of Wroclaw


Language:
Polish

Published: Number 2(15)/2017, pp. 123-124.

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Number of downloads: 273

Filed Under: Reports

XXXI Krytyczna Konferencja Prawnicza, Canterbury, Wielka Brytania, 1–3 września 2016 r.

Mgr Konrad Kobyliński, Dr Rafał Mańko

University of Silesia / University of Amsterdam


Language:
Polish

Published: Number 2(15)/2017, pp. 119-122.

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Number of downloads: 373

Filed Under: Reports Tagged With: CLC, CLS, Konrad Kobyliński, Rafał Mańko

III Międzynarodowe Warsztaty o Prawie i Ideologii Rządy prawa a polityka konfliktu, Tbilisi, Gruzja, 23–24 maja 2016 r.

Dr Rafał Mańko

University of Amsterdam


Language:
Polish

Published: Number 2(15)/2017, pp. 115-118.

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Number of downloads:
302

Filed Under: Reports Tagged With: law and ideology, Rafał Mańko, Tbilisi

Communicative rationality as the basis for the legitimacy of good governance

Mgr Mariola Żak

University of Warsaw

English abstract: The main aim of this paper is to demonstrate that the concept of good governance, based on the theoretical description and methodology of the sciences of organization, public management and economy, auxiliary extending to other reconstructive sciences (political science, sociology, psychology), has the cognitive dimension, referring to the practical reasoning of individuals. Through subjection of specific strategies to the communicative rationality, depending on the normative context, the different ways of public sector management may be selected by the public agencies to a specific area of social relations. This choice is made based on the rational consensus, concluded between the stakeholders and the so-called depositary of the law, by which is meant the professionals associated with the performance of the public service: the politicians, the lawyers and the law-applying officials. The article shows the application of the theory of the communicative ethics: the universal pragmatics of J. Habermas and the transcendental pragmatics of K.-O. Apel in order to explain and justify good governance model.

Keywords: good governance, networks, legitimacy, instrumental rationality, communicative rationality, universal pragmatics, transcendental pragmatics

Language: Polish

Received: 25.09.2016
Accepted: Załączniki02.03.2017

Published: Number 2(15)/2017, pp. 98-114.

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Number of downloads: 395

Filed Under: Articles Tagged With: communicative rationality, good governance, instrumental rationality, legitimacy, Mariola Żak, networks, transcendental pragmatics, universal pragmatics

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: 985

Filed Under: Articles Tagged With: dualism of law, ius et lex, law beyond statutory law, legal culture, Maciej Pichlak

The limits of religious argumentation in the public sphere. Between participation and coercion

Dr Łukasz Mirocha

Nicolaus Copernicus University in Toruń

English abstract: The article is devoted to the question of the presence of religious argumentation in the public sphere. The crucial problem is whether the religious argument should be completely accepted in the public discussion as sufficient basis for e.g. law-making or not, and – if so – what are necessary conditions of the presence of such factor. The author writes about course and results of the debate on pointed issue which has started in The United States in the late 80s of XX century. He also wonders why issues which are rather obvious for the great majority of other liberal and democratic countries involves such emotional discussions in American humanities. One of the author’s observations is that historical examples neither with the positive or negative influence of religion on social life are too weak ground for building any position to the considered problem. In the last part of the article, the philosophical conclusions are compared with the case law of the European Court of Human Rights in regards to the freedom of religion.

Keywords: religious argumentation, public sphere, religious freedom, state neutrality, Robert Audi, civic participation

Language: Polish

Received: 05.10.2016
Accepted: 18.02.2017

Published: Number 2(15)/2017, pp. 38-48.

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Number od downloads: 427

Filed Under: Articles Tagged With: civic participation, Łukasz Mirocha, public sphere, religious argumentation, religious freedom, Robert Audi, state neutrality

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:
427

Filed Under: Articles Tagged With: a contrario, analogia legis, Andrzej Malinowski, formalization, legal reasoning

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