Archiwum Filozofii Prawai Filozofii Społecznej

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

IVRwww.ivr.org.pl

Court as the incarnation of the People. Deconstruction of the idea of popular constitutionalism

Dr Arkadiusz Barut

University of Wrocław

English abstract: The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities
of the criticism of its lawmaking.

Keywords: philosophy of law, theory of democracy, popular constitutionalism, Bruce Ackerman

Language: Polish

Received: 22.05.2017
Accepted: 08.08.2017

Published: Number 2(15)/2017, pp. 13-25.

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Number of downloads: 409

Personalistic dialogue and cognition of natural law

Dr Michał Barański

English abstract: The article concerns cognition of natural law in the process of personalistic introspection and personalistic dialogue. The author points out that the negation of metaphysics that was established in modernity, achieving its zenith in the post-modern thought, leads as a result to alienation of a human being, not only in the sphere of his work, but in his whole spiritual sphere. In this context dialogical philosophy was only a partial answer to these problems, being born out of religious (Buber, Rosenzweig) or anti-totalitarian inspirations (Levinas). This philosophy is not based upon personalistic anthropology which would enable to go from being to obligation, i.e. from cognition of a human being to specifying his ethical vocation and his natural law aims.

In the author’s opinion it was Karol Wojtyła in the middle of the 20th century who built the foundations of the new personalistic concept of ethics and natural law through a modern phenomenological and psychological approach of human experience. This concept was rooted in the classical tradition, but it exceeded this tradition at the same time.

In the author’s opinion only the full approach of human experience which means spiritual, axiological, ethical and natural law experience through self cognition (personalistic introspection) and cognition of other people (personalistic dialogue) in all spheres of a person (intellectual – spiritual, somatic and emotional) gives a possibility for human cooperation in building a common good.

Keywords: personalistic introspection, personalistic dialogue

Language: Polish

Received: 06.06.2016
Accepted: 30.01.2017

Published: Number 2(15)/2017, pp. 5-12.

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Number of downloads: 362

Theory of law and the challenges of analytical pragmatism

Dr Maciej Dybowski

Adam Mickiewicz University in Poznań


English abstract: The article is a metaphilosophical and metatheoretical discussion relating to the theory of law pursued in the mainstream of the classical project of analysis. The purpose of these remarks is to show the challenges which philosophical pragmatism, and especially analytical pragmatism, poses to classical analysis. The first part of the text is devoted to the presentation of the mainstream of postwar Polish law theory as the implementation of the analysis program, with the conception of Z. Ziembinski serving as an example. The next part characterizes analytical pragmatism of R. Brandom and the challenges addressed to such research programs as classical analysis. The last part examines philosophical benefits that classical analysis could obtain by embracing the challenges of analytical pragmatism. These include the ability to overcome the cognitive dualism, better justification of rationality and extending the anthropological perspective.

Keywords: pragmatism, Robert Brandom, Zygmunt Ziembiński, analytical philosophy

Language: Polish

Received: 05.01.2017
Accepted: 22.01.2017

Published: Number 1(14)/2017, pp. 17-33.

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Number of downloads: 794

Some remarks about the application of the cognitive linguistics’ tools for the differentiation between extensive interpretation and analogy

Prof. UŁ dr hab. Sylwia Wojtczak

University of Łódź


English abstract: The paper is the proposal of the discussion upon the utility of the cognitive linguistics’ tools for legal application, especially within the field of legal interpretation and legal reasoning. Cognitive linguistics is the school of linguistics and cognitive science, developing from 1970s of the XX century, researching on language and mind and their intersection. The analysis of the instances originating in the Polish law in force, made by the means of different concepts of cognitive linguistics (prototypes, radial categories, idealized cognitive models, conceptual metaphors) is here the basis to formulate some postulates concerning the way of understanding and differentiation between extensive interpretation and analogy. The instances and postulates simultaneously let one distinguish those linguistic changes, which inevitably occur in time, and which should be recognised as the domain of linguistic interpretation.

Keywords: cognitive linguistics, interpretation, extensive interpretation, legal reasoning, analogy

Language: Polish

Received: 29.09.2016
Accepted: 31.10.2016

Published: Number 1(14)/2017, pp. 125-140.

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Number of downloads: 576

Metaphysical realism in the face of challenges from contextualism and nonfactualism – considerations against the background of Michael Moore’s natural law theory

Dr Michał Pełka

University of Warsaw


English abstract The article tackles with the problem of truth-conditional theory of meaning for sentences, which are usually connected with the doctrine of metaphysical realism. It consists basically of two parts. The first part describes several arguments aimed at rejecting realism. The conclusion of this part is a claim that even if Moore’s defense in this regard is successful there are two additional attempts to undermine his theory, namely the argument from contextualism and the argument from nonfactualism that are described and developed in the second part of the paper.

Keywords: contextualism, Saul Kripke, metaphysical realism, Michael Moore, nonfactualism, Ludwig Wittgenstein

Language: Polish

Received: 25.10.2016
Accepted: 08.02.2017

Published: Number 1(14)/2017, pp. 74-89.

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Number of downloads: 467

The strategic principle and the maxim of selectivity – a new insight on Gricean implicatures in the law

Mgr Izabela Skoczeń

Jagiellonian University


English abstract In the present paper, I attempt to answer three questions. First, whether the classical Gricean version of the implicature theory can be applied to describe legal discourse. Second, I provide an outline of one of the most popular theories of the pragmatics of legal language. Namely, Andrei Marmor’s theory of strategic speech. Strategic speech occurs mostly in indeterminate contexts, which contain elements that license even contradictory pragmatic inferences. Next, I attempt to flesh out the problematic points of this account. Third, I attempt to formulate a descriptive model of the strategic selectivity of pragmatic elements in the law, that could face the objections to Marmor’s ideas.

Keywords: conversational implicature, Paul Grice, pragmatics, interpretation, strategic speech

Language: Polish

Received: 06.10.2016
Accepted: 10.12.2016

Published: Number 1(14)/2017, pp. 115-124.

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Number of downloads: 519

On the structure of normative intuitions: universal moral grammar

Mgr Maciej Próchnicki

Jagiellonian University


English abstract: The aim of the article is to critically characterize the new, interdisciplinary research program on morality: universal moral grammar, and to describe its meaning for jurisprudence. Its proponents, such as John Mikhail and Marc Hauser, refer to John Rawls’ linguistic analogy, i.e. comparison of morality to language and suggestion to study it similarly to Noam Chomsky’s generative linguistics paradigm.

According to moral grammarians morality, like language, settles on innate, universal cognitive capacities, common to all people. Some evidence supporting these claim, come from various scientific disciplines, such as developmental psychology, neuroscience, anthropology or logic, but they are criticised as weak and inconclusive.

The article tries to assess to what extent the linguistic analogy is accurate and useful, analyzing some of the most important N. Chomsky’s claims and their adaptations to the systems of social norms, such as morality and law. The first argument is so called poverty of the stimulus, assuming that the classic learning mechanisms cannot explain the phenomenon of acquisition of language and morals. Other elements of N. Chomsky’s theories adapted to analyze morality include characterizing morality as a system of principles and parameters, divisions between I-morality/E-morality and competence/performance, and also an assumption that the specialized mental module for it exists.

Research conducted in universal moral grammar program may have substantial influence on jurisprudence. Firstly, assumptions made by moral grammarians can be seen as a construction of a modern, naturalized theory of natural law, based on empirical study. Moreover, the goal of the program is to fully describe concepts such as guilt, act, obligation or damage, and as an effect to schematize it as an advanced deontic logic, and also to discover sources of intuitions regarding them not only through research on their biopsychological foundations, but also through legal anthropology and comparative legal studies.

Keywords ethics, legal philosophy, generative linguistics, moral psychology, philosophy of mind, cognitive science, Noam Chomsky

Language: Polish

Received: 02.10.2016
Accepted: 28.11.2016

Published: Numer 1(14)/2017, pp. 102-114.

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Number of downloads: 422

The sorites paradox and vagueness phenomena in the language of law

Mgr Sławomir Piekarczyk

University of Silesia


English abstract: In order to make a legal text more flexible, the lawmaker is enacting in its content the vague predicates. Provisions with such predicates are applied by the courts that are forming their content in every specific case depending on the case facts. This paper’s purpose is to explain an issue of the vagueness, point out and compare the varieties of vagueness in legal texts specified by A. Marmor and T. Gizbert-Studnicki and at last try to apply law’s vague predicates – anchored and not anchored in definite numbers – to the sorites paradox which is immanently associated with the vagueness phenomena.

Keywords: vagueness, language of law, sorites paradox, weighing the rightness

Language: Polish

Received: 10.05.2016
Accepted: 23.12.2016

Published: Number 1(14)/2017, pp. 90-101.

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Number of downloads: 442

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: 486

In search of the hidden nature – natural kinds and legal language

Mgr Bartosz Janik

Jagiellonian University


English abstract: In the theoretical legal literature there are views that consistently want to combine natural kinds with semantics of legal language (M. Moore, D. Brink, N. Stavropoulos). The motivation for creating such a theories is the desire to get the semantics of the legal language to be realistic. This semantics should enable the formulation of an objective theory of legal determination. Very often, the obvious objection to such theories is that the legal terms do not correspond to any objects in the world. The purpose of this article is to examine these ideas and attempt to show that the nature of the legal terms directly shows the impossibility of building an objective discourse for such terms (where objectivity is understood as objectivity in the scientific sense). Regardless, such theories can be formulated and treated as objective but the objectivity of those theories will come from methods of construction of the objects and not from their nature.

Keywords: natural kinds, essentialism, legal theory, realism

Language: Polish

Received: 02.10.2016
Accepted: 13.11.2016

Published: Number 1(14)/2017, pp. 66-73.

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Number of downloads: 398

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