Archiwum Filozofii Prawai Filozofii Społecznej

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

IVRwww.ivr.org.pl

Intertextuality in trial

Mgr Karolina Gmerek

University of Szczecin


English abstract: The aim of this article is to present a permanent part a of trial which is a phenomenon of intertextuality. The phenomenon co-creates the model of trial (seen as a complex communication event). The analysis of intertextuality is conducted on the basis of normative sources of the model of trial and the material recorded during field research in the courtroom. The examples of communication acts and events used in the article are: (1) components of the normative model of trial; (2) created due to communication practice; (3) examples of the normative model of trial contravening. The specific aim of this article is to describe structural and functional aspects of these communication acts and events, which are created due to communication practice.

Keywords: intertextuality, trial, courtroom discource

Received: 30.09.2016
Accepted: 15.11.2016

Language: Polish

Published: Number 1(14)/2017, pp. 34-51.

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Number of downloads: 548

Against a local theory of meaning for the legal language – some general remarks

Mgr Paweł Banaś

Jagiellonian University


English abstract: Within philosophy of law as well as philosophy of language one can find a view suggesting that legal and natural languages have two different theories of meaning: meaning externalism and intentionalism accordingly. This view can be interpreted as a metaphysical one, ie. that there are two different kinds of facts that determine that expressions of legal and natural languages mean whatever they mean. For natural language these facts would be intentions of the speaker. Such a view of natural language seem intuitive as the aim of a communication is usually trying to grasp whatever a speaker has in mind. Such a view proves, however, problematic for the legal language. Meaning exteralism for legal language, on the other hand, allows for law to be objective. But it must show how its expressions are meaningful (as content is usually closely related to intentionality). As a result, a satisfactory theory of facts constituting linguistic meaning might require a pressuposition that meaning (also legal or natural) is a social artifact: its content is constituted by some kind of collective intentionality of language users. This solves a numer of problems with both intentionalism and meaning externalism – but also creates new ones that might require further studies.

Keywords: intentionalism, meaning externalism, legal language, natural language, theory of meaning

Language: Polish

Received: 10.10.2016
Accepted: 12.11.2016

Published: Number 1(14)/2017, pp. 7-16.

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Number of downloads: 420

Reflexivity and the Codification of Legal Ethics. Remarks on the Basis of Paul Ricoeur’s “Little Ethics” Theory

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Kraków University


Abstract: Codes of legal ethics encounter constant waves of criticism. It is pointed out that their disadvantage is, on the one hand, the excessive casuistry, limiting the possibility of taking independent decisions in cases of ethical and professional conflicts, and, on the other hand, the exaggerated declarative character of perfectionist ethical and professional virtues. The gap between the abovementioned perspectives, easily perceived in such codes, results in a dysfunctionality of professional ethics in the actions undertaken by members of the legal profession. The article, apart from the critical-comparative part, includes a proposal of reading and interpreting the content of the codes in a way that transgresses the above opposition. The theoretical basis of the presented position is provided by the concept of “little ethics” formulated by Paul Ricoeur in his work Oneself as Another. The ethical theory developed by Ricoeur combines the elements of Aristotelian ethics of virtues with Kantian ethics of duty. For this reason, it sets a uniform perspective for opposing elements, namely: subordination to the norm of the code and pursuit of ethical and professional self-improvement by legal professionals. The proposed solution belongs to the “reflexive” paradigm of the lawyer’s professional ethics proposed on the basis of Ricoeur’s onto-ethical theory.

Language: English

Keywords: legal ethics, codification, reflexivity, Paul Ricoeur, teleological ethics, deontological ethics, “little ethics”

Published: Number 2(13)/2016, pp. 39-50.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.39

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Number of downloads: 649

On Social Rights from an Analytical and Philosophical Perspective

Prof. dr hab. Wojciech Załuski

Jagiellonian University in Kraków


Abstract: The paper examines the concept of social rights from both the analytical and philosophical perspective. In the first part of the paper a distinction is made between social rights in the strict sense (called in the paper “Type 1 social rights”), which can be decomposed into the Hohfeldian incidents, and social rights which resemble norm-goals and therefore cannot be decomposed into the Hohfeldian incidents (these rights are called in the paper “Type 2 social rights”). It is argued that even though Type 1 social rights are rights in the strict sense, they exhibit certain idiosyncrasies distinguishing them from “classical” rights, among which the most striking idiosyncrasy is their double correlation to duties. The second, philosophical part presents various ways in which social rights can be justified. A special emphasis is laid on the justification appealing to the concept of autonomy. Some standard criticisms of social rights are also evaluated.

Language: English

Keywords: social rights, Hohfeldian incidents, autonomy, paternalism, subsidiarity principle

Published: Number 2(13)/2016, pp. 76-84.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.76

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Number of downloads: 853

On the Analytical Importance of the National Interest in Theoretical Exploration of the European Integration Process

Dr Franciszek Strzyczkowski

University of Łódź


Abstract: This article seeks to elaborate the theoretical discourse on different, competing explanations of the European integration, invoking the notion of the national interest that plays an essential role in the process. Despite increasing integration, the European interest remains quite different from the sum of the national interests of all Member States, and different theories, by presenting explanations of the integration process, raise or diminish its importance. The major premise of the intergovernmental theory is that the integration progress can be analyzed as an intergovernmental regime designed to coordinate the economic and political interdependence negotiated through bargaining. This implies that Member States’ behavior reflects actions taken by their governments based on rational choice, limited only by the domestic social demands and external strategic international environment. According to intergovernmentalism this process, within which states’ preferences are shaped, is in fact the process of national interest formation. In contrast, a second school of thought on integration, affiliated with supranationalism, has a more normative ambition, providing not only a description of the role of the national interest, but also bringing the ideas of its limitation, proposing changes on the mode of European governance aimed at shaping Europe in a more republican manner. Despite the dominant position of the national agents at almost every level of the European governance, for the supranational approaches, due to the multi-level structure of the European Union, controversy between national interest and European common good is rarely invoked. The assumption that one theoretical understanding and the assessment of the level of influence of the national interest as applied to the European integration can have profound legal and political implications, leads us to the conclusion that depicting the five most prominent attempts at capturing it theoretically remains essential for further analysis of the European structure and European legal order. Paradoxically, an unstable economic situation and its overreaching and predominant negative influence on all the Member States, might catalyze a redefinition of Europe and reinvigorate the discourse on both European common good and national interests.

Language: English

Keywords: theory of European integration, national interest, European Union

Published: Number 2(13)/2016, pp. 59-75.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.59

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Number of downloads: 609

 

Philosophical Roots of the Dialogical Concept of Law

Dr Anna Rossmanith

University of Warsaw


Abstract: The main task which I pose for myself is to indicate the philosophical roots of the dialogical concept of law. First and foremost, I would like to present dialogue in the context of ancient Greek philosophy and in the context of the classicists of the philosophy of dialogue. Furthermore, I seek phenomenological bases for constructing the dialogical concept of law. The phenomenological method, starting with its classical Husserlian form, has undergone many changes. Thanks to the indication of new horizons of phenomenology by Emmanuel Levinas, discovering dialogical consciousness and the subject constituted in being with the Other are possible. The reference point of reflections on the concept of law is the relationship with the Other as an ethical relationship. Philosophy of dialogue is a certain possible prism of thinking about the social, public, and institutional space. It is thinking through the prism of dialogue (speaking), but also through the third who contributes discourse relevant to what is said. Law as the third, as the mediating element, is a co-constituting element of the entire legal world.

Language: English

Keywords: dialogue, philosophy of dialogue, encounter, phenomenology, the Other, existentialism, subject, ethical relationship, difference, logos

Published: Number 2(13)/2016, pp. 51-58.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.51

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Number of downloads: 660

 

Punishing (Non-)Citizens

Dr Michał Peno

University of Szczecin


Abstract: If sociologists are to be trusted, reflexivity, focused on itself and devoid of any religious or at least ideological framework, leads to the weakening of control mechanisms. Such changes are accompanied by the polarization of social classes and by the exclusion of the so-called underclass (which certainly includes a vast majority of criminals) from the civil society. In the doctrine of criminal law of “mature modernism”, within the framework of a liberal-democratic state, the civil society, together with the idea of communication, is supposed to constitute a central reference point in the research on criminal liability. Reflexivity brings up new problems. New citizen-oriented criminal law is being shaped, based upon mediation and communication (e.g. restorative justice, Expressive Theory). The civil society does not include the area of politics or political nature of things, where the problem is not the justification of the punishment but the effectiveness of mere spatial isolation. In this sense, it is difficult to talk about the merits of the emancipation of an individual from the limitations imposed by the society. The weakening of any external authority and of political duties owed to the state is replaced by self-control proper to reflexive modernity only in cases where the individuals have adequate intellectual and ethical predispositions. Disappearance of the influence of external rules and values together with the mechanism of exclusion from the civil society results in the weakening of self-control and in selfish care only about one’s own perspective (but also in repressive subordination by the state). Such a state of affairs creates favourable conditions for objectifying criminal liability, abandoning the concept of guilt, and for attempts to provide an ethical justification of penalty – which are concepts taken from the “world of citizens”.

Language: English

Keywords: reflexivity, criminal law, philosophy of law, restorative justice, resentment, CLS

Published: Number 2(13)/2016, pp. 28-38.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.28

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Number of downloads: 604

 

A Note on Legal Education, Its Specific Features and Related Myths

Prof. dr hab. Małgorzata Król

University of Łódź


Abstract: The question of legal education is recognised as important along various dimensions and thus has been in the focus of attention of numerous distinguished legal scholars and practitioners all over the world. The problem of legal education includes not just methodological issues, but also the issues that are par excellence philosophical in nature. Legal education has a specificity that arises from the nature of law and its complexity, and is related to the personal dimension of this education. The process of education should be organised in such a way that students should be in contact with members of the legal community whose authority, moral and subject matter-related attributes play a vital, formative role in legal education. The author tries to confront the didactics-related reality with ideals and postulates present within this field. Yet, it is revealed that such a reality is hidden below a “thick layer” of myths, which have grown around legal education. These myths blur the real picture of lawyers’ education, creating a kind of legal education mythology. Two types of systemic legal myths are indicated. The first one is built on the paradigm of university legal education. The other type is based on the paradigm of university studies.

Language: English

Keywords: legal education, nature and complexity of law, personal dimension in legal education, legal community, myths

Published: Number 2(13)/2016, pp. 14-27.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.14

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Number of downloads: 608

 

Chaïm Perelman and Lucie Olbrechts-Tyteca’s Account of Analogy Applied to Law: the Proportional Model of Analogical Legal Reasoning

Dr Maciej Koszowski

Jan Długosz University in Częstochowa


English abstract: In this paper, the author has undertaken an attempt to adjust Chaïm Perelman and Lucie Olbrechts-Tyteca’s conception of analogy to the province of law. He thus sketches out a pertinent scheme of legal analogy based upon the similarity of proportions and indulges in a consideration of the merits and demerits of such a proposition. To this aim, as the proportions that are compared in such an account of analogy, the relations between the facts of the cases and their legal outcomes were chosen: one such outcome already known and one tentatively posited. Finally, however, the author’s analyses lead to the conclusion that despite its considerable theoretical attractiveness and some mystical charm, legal analogy consisting of the comparison of two proportions is either quite similar to orthodox approaches to analogical reasoning in law or too obscure for one to employ it credibly in the legal setting. In consequence, until its proponents have elucidated the workings of proportional analogy in more detail, the potential use of such a form of analogy in the province of law does not seem promising and cannot be recommended.

Language: English

Keywords: proportion, proportional, proportionality, analogy, legal, Chaïm Perelman, Lucie Olbrechts-Tyteca, account, law, reasoning, approach, logic, apply, analogically

Published: Number 2(13)/2016, pp. 5-13.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.5

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Number of downloads: 1,692

 

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