Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Removing a Spell by Spell? Some Remarks Regarding Rafał Mańko’s Monograph on the Critical Philosophy of Adjudication

Mgr Mateusz Wojtanowski

University of Wrocław

English abstract: The reviewer claims that Rafał Mańko’s monograph ‘Towards a critical philosophy of adjudication. The political, ethics, legitimacy’ (Łódź, 2018) should be connected with the so called essentialist wing of postmodernism, which deals with the issues of traditional philosophy under the veil of cognitive skepticism. The review attempts to convince a reader that the author’s authoritative metaphysical statements translate into too radical program in the field of adjudication. The reviewer do not deny the necessity to ‘open’ the traditional legal domain to external arguments, however, he claim that the proposal presented in this regard by Rafał Mańko is too far-reaching.

Keywords: adjudication, legal interpretation, political, ideology, CLS, postmodernism

Language: Polish

Published: Number 4(25)/2020, pp. 118-126.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.118

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Number of downloads: 558

Natural Law Within the Radical Enlightenment

Prof. UAM dr hab. Michał Wendland

Adam Mickiewicz University in Poznań

English abstract: The main difference between classical (both ancient and medieval) and modern concepts of natural law lies in the assumption of its supernatural (divine) foundation. Early modern philosophical concepts tend to undermine and gradually to deny God or some other metaphysical entity as the source of natural law. Some contemporary scholars (e.g. Habermas, Bobbio) define this process as transition (modernization, rationalization, Positivisierung) of traditional natural law towards the idea of natural rights and human rights.

We can distinguish at least three main schools of natural law during the 17th and 18th centuries, each one more radical than the others: de Groot dares to consider the natural law “as if there were no God”. The philosophers of early Enlightenment (e.g. Hobbes, Locke, Montesquieu, Voltaire) were perhaps more daring, nevertheless they were all deists and the “Supreme Being” still validates natural law in their writings.

The article aims to examine the most radical view on natural law, i.e. partly forgotten and underestimated ideas of French materialists: La Mettrie, Diderot, Holbach, Mably, and Condorcet. For they were all thinkers of the radical Enlightenment (J. Israel), all of them were materialists and atheists, and they perceived the nature and natural law as completely separated from God or other supernatural being. Unlike their older colleagues, these radical philosophers demanded equality (for women and ethnical minorities as well), emancipation, and social justice for all classes.

This papers describes the idea of natural law within the radical Enlightenment movement, and investigates some political consequences of this interpretation during the French Revolution. While strongly materialistic, progressive, and atheist, the ideas of Diderot, Holbach, Mably, and Condorcet were also perceived as politically dangerous. All revolutionary attempts to put these ideas into political and social practice have failed. Finally, these ideas were refuted, but they returned during the 19th- and 20th-century debates on human rights.

Keywords: natural law, radical Enlightenment, modernity, materialism, ethical naturalism

Language: Polish

Published: Number 4(25)/2020, pp. 91-102.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.91

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Number of downloads: 615

In the Margins of the Concept of the Language of Legal Norms

Prof. dr hab. Andrzej Malinowski

University of Warsaw

English abstract: The article presents an attempt at an alternative approach to the scholarly interpretation model, in which statements expressed in the language of norms have been replaced by statements in the language of lawyers. In the proposed approach, the result of the interpretation of a legal text is a set of sentences of the lawyers’ language stating that a specific general legal norm applies at the moment of interpretation due to the validity of the relevant fragment of the legal text. The whole (complete) set of statements in the lawyers’ language whereby legal norms are held to be valid is treated by lawyers as a description of the legal system. It is stated that, considering the law as a system, neither case law nor scholarship in practice refers to the language of norms, but to the results of interpretations described in the lawyers’ language. However, the paradigm of scholarly interpretation using the concept of the language of norms has its undoubted cognitive value and is useful for didactic purposes.

Keywords: scholarly interpretation, legal system, legal language, lawyers’ language, language of norms

Language: Polish

Published: Number 4(25)/2020, pp. 54-64.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.54

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Number of downloads: 522

References to Schools of Legal Thought in the Justifications of Judgments of Polish Courts

Prof. UR dr hab. Grzegorz Maroń

University of Rzeszów

English abstract: The article presents the results of a quantitative and qualitative study of the Polish case law in terms of the presence of direct references to schools of legal thought in the written justifications of judgments. Although these types of references are very rare, their intensification can be observed in the last decade. In justifications of court decisions, references were made to just a few strands of jurisprudence. Most references relate to jusnaturalism and legal positivism. Courts characterize schools of legal thought in a simplified and exaggerated  manner, and sometimes also incorrectly. The judicature usually disregards the authors’ versions of particular strands of jurisprudence, reaching for the claims derived from these strands in their ‘average’ form. The paper posits that legal philosophy is potentially useful for courts, especially in hard cases. It may help judges to perform the explanatory and persuasive functions of justifications of judgments. The condition for this is that references to the tenets of specific schools of legal thought should not be superficial, shallow or slogan-like. Otherwise, they play only an ornamental role, not an argumentative one.

Keywords: schools of legal thought, justifications of judgments, Polish courts, judicial argumentation

Language: Polish

Published: Number 4(25)/2020, pp. 65-79.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.65

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Number of downloads: 549

Linguistic Corpora as a Tool of Statutory Interpretation: American Theory and Practice

Prof. dr hab. Zygmunt Tobor, dr Mateusz Zeifert

University of Silesia in Katowice

English abstract: In American adjudicating practice and theory of statutory interpretation, great attention is paid to the notion of ordinary meaning of legal text. In order to determine the ordinary meaning, judges usually refer to their own linguistic intuition or dictionaries – both these methods give rise to a number of reservations that have been expressed in legal literature for years. In the last few years, courts have also started using linguistic corpora for this purpose. Linguistic corpora are electronic collections of authentic texts in a given language which can be analyzed using IT tools (e.g. searches, frequency lists, concordances, collocations). Corpus research requires considerable linguistic knowledge and technical skills, and in return it offers statistical data that can reveal a lot about the semantic layer of language. The use of corpora by judges – first in state courts, later also in the federal Supreme Court – sparked lively academic discussion. In Polish literature, this issue has not been discussed so far, which is why the article is essentially of a reporting nature. First, an outline of corpus linguistics is presented. Then the history of the use of linguistic corpora by US courts is reconstructed. Finally, the legal discussion about corpora in the US is presented, with particular emphasis on voices approving their use and on critical voices.

Keywords: statutory interpretation, corpus linguistics, linguistic corpora, US case law

Language: Polish

Published: Number 4(25)/2020, pp. 80-90.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.80

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Number of downloads: 577

Legal Status of Animals in the Context of Their Biological Categorization

Mgr Michał Janowski

University of Łódź

English abstract: Polish legal regulations protecting animals are inconsistent. The Act of 21 August 1997 on Animal Protection and the Act of 15 January 2015 on the Protection of Animals Used for Scientific or Educational Purposes accord protection to different categories of animals. These regulations should be harmonized due to the underlying values. In addition, the current model of animal protection in Poland requires consideration. Polish regulations protecting animals have not been preceded by a reflection on the special features of some groups of animals. In particular, Polish law does not take account of the fact that some animals have higher cognitive functions, including non-linguistic ability to recognize themselves – awareness of self. The article characterizes the phenomenon of animal self-awareness, which should be relevant in discussions on the legal status of some animals.

Keywords: legal status of animals, awareness of self, animal protection

Language: Polish

Published: Number 4(25)/2020, pp. 29-41.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.29

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Number of downloads: 577

A Judge Between the Reality of the Political and Ethical Imperatives: A Reply to the Review by M. Wojtanowski

Dr hab. Rafał Mańko

University of Wrocław

English abstract: The project of a critical philosophy of adjudication – the application of the presuppositions of critical jurisprudence to the area of judicial application of law – is, to a large extent, a polemic with Artur Kozak’s project of juriscentrism. Whereas the critical philosophy of adjudication accepts, by and large, juriscentrism’s claims concerning especially the social construction of legal reality, it does not accept the views concerning the determination of judicial decisions by institutional imperatives. Adopting Duncan Kennedy’s conception of the moderate indeterminacy thesis, critical philosophy of adjudication claims that the imperatives following from so-called traditional legal methods cannot be seen as limiting the judge when she needs to decide an intepretive dilemma. What the judge may perceive as resistance, are in fact ideological, political and economic imperatives, only cloaked in legal form. This leads to the conclusion that, in essence, a judicial decision has a political character, because it is never fully determined in an unequivocal manner by legal materials (provisions, precedents, intepretive habits), but it always remains, to a certain extent, open. In consequence, the judge, acting under the reality of the political (i.e. structural social conflicts) should not only follow the imperatives of the lex (legislation) and the ius (legal tradition), but also should abide by moral imperatives. The latter include, on the one hand, the requirement of transparency of legal reasoning (e.g. not concealing the extra-legal factors behind a decision), and, on the other hand, a conscious choice of the ideological premises of the decision. Critical philosophy of adjudication, as an emancipatory project, prefers in this respect a pro-emancipatory stance of the judge, i.e. that she strives to make decisions maximising the actual scope of freedom of the individual and liberating her from any form of domination.

Keywords: critical philosophy of adjudication, critical legal theory, adjudication, ideology, the political

Language: Polish

Published: Number 4(25)/2020, pp. 127-132.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.127

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Number of downloads: 511

God’s Monism: A Further Reply to Beata Polanowska-Sygulska

Dr Henry Hardy

University of Oxford

English abstract: Against Beata Polanowksa-Sygulska (BP-S), I insist on the incompatibility between the pluralism of comprehensive world-views and belief in the monist, universalist tenets of the principal world religions, noting that God the Father and God the Son were both monists. I argue that my position is entailed by Isaiah Berlin’s rejection of the unique truth of any one comprehensive outlook, and that both Berlin and BP-S confuse toleration with acceptance. I reject the charges that my position is monistic, and that I give insufficient attention to conflict within individual values, which can in any case be treated as conflict between values.

Keywords: God, monism, pluralism, religion, Isaiah Berlin

Language: English

Published: Number 3(24)/2020, pp. 130-132.

DOI: https://doi.org/10.36280/AFPiFS.2020.3.130

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Number of downloads: 497

Pluralism and Religion Again: Reply to Henry Hardy

Prof. dr hab. Beata Polanowska-Sygulska

Jagiellonian University in Kraków

English abstract: The article constitutes a continuation of the discussion between Henry Hardy and myself, which was initiated in AFPiFS in 2019 as a result of my publishing a review of Hardy’s book: In Search of Isaiah Berlin: A Literary Adventure (2018). In the present commentary I address again the nub of our disagreement, that is the relationship between Berlin’s pluralism and universalist religions, like Christianity and Islam. According to Hardy pluralism undermines universalist religions. I distance myself from his standpoint and argue that it is possible to reconcile adherence to pluralist perspective in ethics with religious belief. Besides, I return to the objection raised in my review of Hardy’s book and take up the thread of conflicts within values. I sustain my charge that Hardy does not take seriously enough the implications of conflicts within single values.

Keywords: value pluralism, universalist religions, religious pluralism, conflicts within values

Language: English

Published: Number 3(24)/2020, pp. 127-129.

DOI: https://doi.org/10.36280/AFPiFS.2020.3.127

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Number of downloads: 609