Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Issue 2/2020 of „Archiwum Filozofii Prawa i Filozofii Społecznej” is now available

We would like to invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej” (Journal of the Polish Section of IVR) published in Polish, and available in full open access. The issue, which focuses on legal interpretation, was edited by prof. UŚ dr hab. Sławomir Tkacz and prof. dr hab. Zygmunt Tobor.

The issue is dedicated to late Professor Maciej Zieliński. It begins with his last text ever – “Regarding Justification of Interpretive Claims” – written together with prof. US dr hab. Agnieszka Choduń,

The issue also includes following papers:

  • Dr hab. Adam Dyrda, Prof. dr hab. Tomasz Gizbert-Studnicki: „Limits of Interpretive Disagreements in Jurisprudence”,
  • Prof. dr hab. Zygmunt Tobor, Mgr Konrad Kobyliński: „Dialogical Concept of Legal Interpretation”
  • Dr Paweł Jabłoński, Prof. UWr dr hab. Przemysław Kaczmarek: „On an Interpreter’s Game with the Legal Text and Extratextual Factors in the Derivative Concept of Legal Interpretation”,
  • Prof. dr hab. Leszek Leszczyński: „On Legal Interpretation and Its Practical Dimension: The Context of Judicial Application of the Law”
  • Prof. UŚ dr hab. Sławomir Tkacz: „The Principle of Nullum Crimen Sine Lege as a Source for Search for the Limits of Linguistic Interpretation in Criminal Law?”
  • Prof. US dr hab. Olgierd Bogucki: „The Role of Values in Legal Interpretation: The Normative Approach”,
  • Dr Mateusz Zeifert: „A Judgment of the Court of Justice of the European Union from the Perspective of Cognitive Theory of Prototypes: A Case Study”,
  • Prof. UŚ dr hab. Agnieszka Bielska-Brodziak, Mgr Marek Suska: „How Are Symbolic Statutes Created? Two Case Studies”

Apart from an introduction, the issue alse features a report on a Ceremony of Professor Maciej Zieliński’s Doctoral Thesis Renewal, presented by Dr Karolina Gmerek, and a text by prof. US dr hab. Agnieszka Choduń, written in memory of Professor Maciej Zieliński.

The issue can be read HERE.

Call for Papers: Images of Law in Film Art – 30.09.2020

We invite everyone to submit papers to a special issue of the Journal of the Polish Section of IVR (Archiwum Filozofii Prawa i Filozofii Społecznej) concentrating on Images of Law in Film Art. The issue will contain papers both in English and in Polish. All the texts will be available open access at our webpage.

The purpose of the volume is to answer the question whether film, one of the more popular fields of culture today, can serve as a means to express interesting and noteworthy truths about law. The link intended to bind all the papers in the planned issue is therefore a formal one: it is the exposition of important legal problems with reference to selected movies (including television films and/or series). Therefore, the key to a successful submission is a convincing reference to specific film material, rather than the type of legal issue chosen to discuss. Topics discussed may relate to such various areas as: legal theory, legal and/or political philosophy, sociology of law and socio-legal studies, historical studies of law, legal psychology, criminology, forensic science, critical legal studies and others. Legal doctrine (legal dogmatics) is also welcomed, provided that such doctrinal legal analysis is joined with more general and fundamental research, in line with a scientific profile of the Journal. For example, papers limited to a mere analysis whether the presentation of a selected legal institution in a movie is consistent with its actual legal regulation will not be accepted – unless such considerations serve some general, theoretical and/or philosophical purposes.

References to film studies literature are of course more than welcome, yet are not required. The decision on the publication of a paper will be based both on its scientific value and on the assessment whether the reference to the film material forms a substantive element of the presented argumentation (in other words, whether such a reference does not play an ornamental role only, devoid of any substantive meaning).

The deadline for submitting a paper is September 30, 2020. We plan to publish the volume as a second issue of the Journal in 2021. Proposals should be sent on the email address of the Editorial Board of the Journal (archiwum@ivr.org.pl). The text should be edited according to the editorial standards for the Journal, available HERE. Further information is available from the editors of the volume: Dr Paweł Jabłoński (pawel.jablonski@uwr.edu.pl) and Dr Maciej Pichlak (maciej.pichlak@uwr.edu.pl), both from University of Wrocław.

How Are Symbolic Statutes Created? Two Case Studies

Prof. UŚ dr hab. Agnieszka Bielska-Brodziak, mgr Marek Suska

University of Silesia in Katowice

English abstract: Symbolic provisions of law lack effectiveness in the classic sense; moreover, the legislature using this instrument either accepts this lack of effectiveness or even intends it. Such provisions are adopted for the realization of either secret political goals or explicit goals – not by enforcing certain behaviours, but rather by shaping appropriate attitudes in the society. The aim of the study is to analyse the circumstances that may lead to the adoption of symbolic legal instruments. To implement this task, two examples from Polish legislation were selected, and then the circumstances of their adoption were analysed. In this way, several factors have been identified that may justify the fact that the legislature sought to establish: (1) symbolic provisions and (2) symbolic provisions intended primarily to attain secret political goals.

Keywords: symbolic law, law-making, effectiveness of law, law and politics

Language: Polish

Published: Number 2(23)/2020, pp. 121-134.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.121

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Number of downloads: 571

A Judgment of the Court of Justice of the European Union from the Perspective of Cognitive Theory of Prototypes: A Case Study

Dr Mateusz Zeifert

University of Silesia in Katowice

English abstract: Interpretative doubts in the application of law are usually born of discrepancies between the statutory language and the non-linguistic reality. Therefore, they pose the problem of categorization. The theory of law and legal practice have for centuries been dominated by the classical theory of categorization, according to which conceptual categories can be described by a set of sufficient and necessary features. In the 1970s, an American researcher Eleanor Rosch conducted a series of psychological experiments that led her to question the classical theory and lay the foundations for an alternative one, known as the prototype theory. According to this approach, conceptual categories are organized around the most typical exemplars (prototypes), and membership of a category is measured by similarity to the prototype. Some of the consequences of such view are that category membership is a gradable feature and that the borderlines of categories are fuzzy. The article presents an outline of the prototype theory in the version used in cognitive linguistics. Its usefulness for the theory and practice of statutory interpretation is tested on the basis of the judgment of the Court of Justice of the European Union regarding the concept of beer. In this judgment, the CJEU refused to define the concept of beer by setting requirements as to its raw material composition and ruled that beer is a product that has organoleptic characteristics of beer. This definition on the basis of classical theory appears to be tautological, however, it finds theoretical justification in the prototype theory. In conclusions, the author indicates research problems that must be taken up in order for the prototype theory to be reliably used in jurisprudence.

Keywords: categorization, semantics, prototype theory, statutory interpretation

Language: Polish

Published: Number 2(23)/2020, pp. 109-120.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.109

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Number of downloads: 597

The Role of Values in Legal Interpretation: The Normative Approach

Prof. US dr hab. Olgierd Bogucki

University of Szczecin

English abstract: The article presents and analyses a certain theory of values and their role in legal interpretation. The article calls it a ‘componential’ theory of values. According to the theory, values in law create structures based on global assessments: comprehensive axiological judgements that consider all the relevant values and degrees of their realization. The basic theorem of the theory is the theorem on isomorphy between the global assessment and the content of the legal norm. This ‘componential’ theory is the basis of the normative model of legal interpretation. According to this model, the interpreter should reconstruct the global assessment and choose the one possible result of interpretation – the one norm of conduct – which will be the most consistent with this judgement. In order to reconstruct the aforementioned global assessment, the interpreter should consider the legal text, case law and legal literature, legislative materials and interpretative presumption.

The article reconstructs the philosophical presumptions behind the aforementioned theory and model. The article points out that the fundamental value behind the normative model is the intersubjectivity of legal interpretation as an element of the rule of law. The article also indicates that the theory and model described above are based on legal positivism, but with significant connections with legal hermeneutics, Dworkin’s theory of law, and argumentative approaches to law. In addition, the theory seems to presume weak commensurability of values.

Keywords: legal interpretation, theory of law, philosophy of law, axiology, ‘componential’ theory of values

Language: Polish

Published: Number 2(23)/2020, pp. 96-108.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.96

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Number of downloads: 830

The Principle of Nullum Crimen Sine Lege as a Source for Search for the Limits of Linguistic Interpretation in Criminal Law?

Prof. UŚ dr hab. Sławomir Tkacz

University of Silesia in Katowice

English abstract: The principle of nullum crimen sine lege is nowadays recognized as the standard of the rule of law. This doctrine prohibits the use of analogies and extensive interpretation of legal provisions to the disadvantage of the perpetrator. The starting point of these considerations is that texts of criminal provisions vary in nature. Therefore a question should be asked about the nature of these prohibitions in relation to various provisions. A separate problem is to distinguish inference by analogy from legal interpretation. The presented considerations are aimed at answering the question whether the nullum crimen sine lege principle allows determining the linguistic limits for the interpretation of criminal law. The analyses are illustrated by examples from the field of criminal case law. The article aims to provide reflection on the acceptable limits of interpretation of criminal law, if such limits can be defined. The considerations end with general conclusions.

Keywords: nullum crimen sine lege, limits of legal interpretation, legal interpretation, criminal law, theory of law

Language: Polish

Published: Number 2(23)/2020, pp. 81-95.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.81

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Number of downloads: 724

On Legal Interpretation and Its Practical Dimension: The Context of Judicial Application of the Law

Prof. dr hab. Leszek Leszczyński

Maria Curie-Skłodowska University

English abstract: The aim of the study is to identify those aspects of legal interpretation which may strengthen its practical dimension. The operative interpretation, distinguished in the theory of law, needs to be developed, inter alia, in order to strengthen the legal discourse as a whole and to contribute to better communication and deeper integration between dogmatic and theoretical legal studies. As a result, the theory of interpretation itself would become more complete. Three most important aspects of giving a practical dimension to various interpretive approaches are analysed in the paper. The first of them is the use of the so-called decision-making character of the operative interpretation, when such interpretation is made in connection with the findings of fact, which limits its scope, while at the same time broadening the number of the established normative bases for decisions, and also in the context of the subsequently-formulated justification of the interpretative decision. The second one is its validation-derivative approach, indicating the phases of operative interpretation, the multiplicity of carriers of law taken into account and the distinction of roles played at particular phases by the each type of rules of interpretation. Finally, the third aspect points to the need to include operative interpretation in the comparative approach, the main determinant of which are the differences of interpretation in particular branches of law.

Keywords: operative legal interpretation, decision-making character of interpretation, validation-derivative approach, comparative approach

Language: Polish

Published: Number 2(23)/2020, pp. 66-80.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.66

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Number of downloads: 709

On an Interpreter’s Game with the Legal Text and Extratextual Factors in the Derivative Concept of Legal Interpretation

Dr Paweł Jabłoński, prof. UWr dr hab. Przemysław Kaczmarek

University of Wrocław

English abstract: The aim of this paper is to show the derivative concept of legal interpretation from the point of view of the structure of limits of the juridical power. This structure includes the politico-legal culture, the legal text, the juridical culture, and personal factors, such as ethical and aesthetic judgements.

These days, the derivative concept is the most influential Polish theory of legal interpretation. According to this concept the process of interpreting the law is a kind of a game between the legal text and extratextual factors, which are treated as extratextual limits of juridical power. On the one hand, the legal text does not determine the full meaning of the law, although it has great importance for it. On the other hand, the derivative concept precisely identifies certain others factors that are relevant for the content of law.

Keywords: derivative concept of legal interpretation, limits of juristic power, legal text

Language: Original printed in Polish, English translation available below

Published: Number 2(23)/2020, pp. 49-65.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.49ENG

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Number of downloads: 402