Archiwum Filozofii Prawa i Filozofii Społecznej

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

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Dialogical Concept of Legal Interpretation

Prof. dr hab. Zygmunt Tobor, mgr Konrad Kobyliński

University of Silesia in Katowice

English abstract: The purpose of this text is to present an outline of the dialogical concept of legal interpretation. It involves the need to establish the relationship between the legislature and courts. In the normative dimension, this concept includes an analysis of assumptions about the mutual roles of the legislature and courts in determining the substance of the law. In the descriptive dimension, the authors present tools that enable communication between the legislature and courts in order to improve the interpretation process. The authors describe the requirements for communication between courts and the legislature, and refer to existing solutions in Poland and the United States. In the text the importance of this issue is only signaled, but the authors believe that it is worth further research.

Keywords: legal interpretation, strategies of interpretation, communication theory of legal interpretation

Language: Original printed in Polish, English translation available below

Published: Number 2(23)/2020, pp. 35-48.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.35ENG

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Number of downloads: 432

Filed Under: Articles Tagged With: communication theory of legal interpretation, legal interpretation, strategies of interpretation

Limits of Interpretive Disagreements in Jurisprudence

Dr hab. Adam Dyrda, prof. dr hab. Tomasz Gizbert-Studnicki

Jagiellonian University

English abstract: Does legal interpretation have borders? Are these borders conventionally established? What makes the given ‘legal reasons’, set forth by certain normative theories of legal interpretation, acceptable in legal discourse (even if the reasons are wrong)? In the present paper, we argue that the notion of the borders of legal interpretation is linked to the general notion of the borders of law. We indicate the scope of ‘interpretive theoretical disagreements’ in law, as discussed by certain new, ‘institutional’ versions of legal positivism. Interpretive borders are not fully determined by the given ‘institutional’ framework. In our view, these borders are also more generally determined inter alia by certain truistic (platitudinous) beliefs related to law and interpretation.

Keywords: interpretive methodology, limits of legal interpretation, legal positivism, second-order rules of legal interpretation, normative theories of legal interpretation

Language: Polish

Published: Number 2(23)/2020, pp. 19-34.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.19

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Number of downloads: 810

Filed Under: Articles Tagged With: interpretive methodology, legal positivism, limits of legal interpretation, normative theories of legal interpretation, second-order rules of legal interpretation

Introduction

Prof. UŚ dr hab. Sławomir Tkacz, Prof. dr hab. Zygmunt Tobor

University of Silesia


Language:
Polish

Published: Number 2(23)/2020, pp. 5-6.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.5

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Number of downloads: 466

Filed Under: Editorial

Regarding Justification of Interpretive Claims

Prof. US dr hab. Agnieszka Choduń, prof. dr hab. Maciej Zieliński

University of Szczecin

English abstract: The duty to provide justification for claims is the realization of the postulate of criticism in the academia. Decisions regarding legal interpretation (regardless of whether they are formulated in the process of applying the law or outside this process) are made in the form of claims about a binding legal norm with a certain content. Validation of such claims requires their justification, just like in the academia. And in the academia, a claim remains theoretical until someone presents an inter-subjectively verified justification for it. The aim of this article is precisely that: to indicate the necessity to justify interpretive claims (both partial and final) in the process of interpretation. As a starting point in the process of demonstrating the need to formulate such a justification, we choose the derivative conception of legal interpretation, which provides for the duty to justify interpretive claims for methodological reasons (and which is an intrinsic element of the content of legal directives in this conception, at least implicitly). We present and discuss the types of justifications for interpretive claims and their variants (weak and strong). Furthermore, we analyse the difference between justifying ordinary and interpretive claims. Finally, we also identify the consequences of failure to provide such justifications.

Keywords: justification of interpretive claim, legal interpretation, postulate of criticism

Language: Polish

Published: Number 2(23)/2020, pp. 7-18.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.7

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Number of downloads: 697

Filed Under: Articles Tagged With: justification of interpretive claim, legal interpretation, postulate of criticism

Aim and scope

The aim of “Archiwum” is to publish original and current research results, to create a forum for academic discussion, as well as to promote science in the manner of social responsibility.

The thematic scope of “Archiwum” is broad and includes many different forms of general reflection on law and its environment, primarily: theory and philosophy of law, social philosophy, political philosophy and sociology of law. We encourage authors to publish papers tackling particular branches of law, as long as they provide a significant contribution to the theory and philosophy of law or other aforementioned subdisciplines, or at least apply their methodology.

“Archiwum” is a journal publishing papers and other scientific texts primarily in following fields: law and philosophy. In the Polish Ministry of Education and Science list of scored journals “Archiwum” is further assigned to the following disciplines: international relations, family sciences, ethnology and cultural anthropology, Polish studies (Polonistics).

“Archiwum” is open to various approaches, methodological traditions, perspectives and research trends, both traditional, well established and innovative and pioneering.

“Archiwum” is primarily concerned with publication of original papers describing results of research projects conducted in journal`s thematic scope. Moreover, it is possible to publish an overview, translation, review, polemic and reports. More detailed instructions concerning the subject of selection criteria provided for different kinds of submitted papers are available on the journal`s website.

There is a possibility of publishing thematic issues of “Archiwum”, in which all or a representative majority of papers are devoted to one or a group of interconnected research objectives, or eventually when all published research results are using the same methodology. Thematic issues can be published on Editorial Board’s initiative or upon request by an individual Author or Authors. For such issues, Editorial Board will appoint an Editor or Editors, primarily unrelated to the Board.

“Archiwum” publishes papers in Polish and English.

Filed Under: News

„Archiwum Filozofii Prawa i Filozofii Społecznej” issue No. 1/2020 is now available

We would like to invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”, the journal of the Polish Section of IVR, published in Polish, fully in open access.

The issue includes following papers:

  • dr Wojciech Ciszewski „Worldview Controversies in a Workplace: Comments from the Theory of Law Perspective on the Cracow IKEA Employee Case”,
  • dr Karolina Gmerek „Identification of Procedural Acts Performed at the Trial: Considerations in the Context of the Actual Utterances of Non-professional Participants of Court Proceedings”,
  • mgr Kamil Jesiołowski „Lord Patrick Devlin’s Concept of Public Morality in the Light of Case Law of the European Court of Human Rights”,
  • dr Michał Pełka „David DeGrazia on Animal Rights: A Critical Analysis”,
  • dr Paweł Skuczyński „Narrativity of Legal Language in Law-Making Processes”,
  • mgr Michał Sopiński „Legal Reasoning as Practical Reasoning in John M. Finnis’ New Natural Law Theory”,
  • mgr Marek Suska „Should a Court Be Understanding for the Legislator? On Legislative Error from the Perspective of the Theory of Legal Interpretation”,
  • dr hab. Adam Zienkiewicz „Collaborative Law: Legal Practice Based on Cooperation”.

The issue also features a review of K. Dobrzeniecki book „Law on Emergency Situations. Between Legalism and Necessity” written by dr hab. Arkadiusz Barut, and two reports – „Law and Literature” conference report (31.05.2019) by mgr Wojciech Jankowski and report from IVR Best Philosophy of Law Book Prize 2017-2018 ceremony (10.07.2019) by dr Mateusz Pękala.

The issue can be read here.

Filed Under: News

Legal Reasoning as Practical Reasoning in John M. Finnis’ New Natural Law Theory

Mgr Michał Sopiński

University of Warsaw

English abstract: This paper presents practical reasoning in the light of John M. Finnis’ new natural law theory. Finnis’ views were shaped by Aquinas’ thoughts on natural law but he was also strongly inspired by Germain Grisez’ new approach, so his theory could be named a new natural law theory. The aim of this paper is to analyse the concept of legal reasoning as practical reasoning, which Finnis intended mainly as a strong critique of Ronald Dworkin’s theory of legal reasoning based on the concept of the one right answer. According to the author of this paper, Finnis’ critical approach to Dworkin leads to a gradual extension of the former’s concept of legal reasoning to include positivistic aspects (rapprochement with Joseph Raz’ views) and institutional aspects (rapprochement with Neil MacCormick’s views). Therefore, Finnis’ theory of legal reasoning seems to be a model example of the rapprochement between natural law and legal positivism in contemporary philosophy of law.

Keywords: John M. Finnis, natural law, legal reasoning, practical reasoning, Ronald Dworkin, one right answer

Language: Polish

Published: Number 1(21)/2020, pp. 84-98.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.84

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Number of downloads: 742

Filed Under: Articles Tagged With: John M. Finnis, legal reasoning, natural law, one right answer, practical reasoning, Ronald Dworkin

Should a Court Be Understanding for the Legislator? On Legislative Error from the Perspective of the Theory of Legal Interpretation

Mgr Marek Suska

University of Silesia in Katowice

English abstract: In the actual legislative processes, errors are often made: the legislator’s intentions are not always properly expressed in the legal provisions or there is insufficient clarity. The discrepancy between what the legislator said and what they meant to say poses a serious challenge to the theory and practice of legal interpretation. In this paper, the author analyses two possible reactions to a legislative error: correcting it or applying the provision in its literal meaning. The considerations are based on two decisions of the Criminal Chamber of the Polish Supreme Court, because in criminal law the protection of the prima facie understanding of the text is a very important value. In the final part of the paper, the author indicates factors which can affect the court’s attitude towards a legislative error in a specific case.

Keywords: legislative error, scrivener’s error, legal interpretation, law-making

Language: Polish

Published: Number 1(22)/2020, pp. 99-110.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.99

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Number of downloads: 677

Filed Under: Articles Tagged With: lawmaking, legal interpretation, legislative error, scrivener’s error

Narrativity of Legal Language in Law-Making Processes

Dr Paweł Skuczyński

University of Warsaw

English abstract: The paper concerns the relation between argumentative and narrative features of legal texts and the question whether legal texts can be perceived as narrative texts. A narrative text is understood as transferring a story to the recipient through a given medium. The story, being the content of a narrative text, constitutes a specific way of manifesting the plot. The latter is a sort of internal logic of the story. The very same plot might be told in many different ways. Hence, the narrative text does not depict events directly, but through a story that requires a storytelling agent – the narrator. Certainly, there are different kinds of narrators, who can be more or less exposed within the text. In consequence, there are at least five positions concerning the relation between argumentation and narration in law: 1) sceptic – narration is a negation of the reasonableness of law; 2) narration is a structure of presentation of facts; 3) narration is a means of rhetoric persuasion; 4) narration is a meta-argumentative structure; 5) narration is a subject of critical analysis as it reveals the identity of an author. The theory of narration is applied to a particular problem of participation of professional self-governments in law-making.

Keywords: legal narrative, legal argumentation, legal language, law-making, professional self-governments

Language: Original printed in Polish, English translation available below

Published: Number 1(22)/2020, pp. 66-83.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.66ENG

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Number of downloads: 332

Filed Under: Articles Tagged With: law-maiking, legal argumentation, legal lenguage, legal narrative, professional self-governments

David DeGrazia on Animal Rights: A Critical Analysis

Dr Michał Pełka

University of Warsaw

English abstract: The article aims to critically discuss the theory of animal rights developed by American social philosopher David DeGrazia. It consists of two parts. The first one describes the main elements of DeGrazia’s approach, namely his views on animal minds, the principle of equal consideration, the idea of unequal moral status, the concept of border persons, and practical remarks concerning improving the treatment of animals by humans. The second part presents remarks about the points where DeGrazia’s proposals should be supplemented and corrected so as to make them more convincing and widely accepted. The conclusion of the essay is the proposal of a cultural revolution for the benefit of animals, which should be initiated by famous people, like actresses, actors, sportswomen and sportsmen, because of their influential position in contemporary societies.

Keywords: border persons, animal rights, cultural revolution, moral status, equal consideration principle, David DeGrazia

Language: Original printed in Polish, English translation available below

Published: Number 1(22)/2020, pp. 52-65.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.52ENG

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Number of downloads: 450

Filed Under: Articles Tagged With: animal rights, border persons, cultural revolution, David DeGrazia, equal consideration principle, moral status

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