Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

Issue 1(34)/2023 „Archiwum…” is available

We invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”. The issue includes the following texts: 

  • Prof. UMK dr hab. Marta BARANOWSKA: Liberty – Equality – Fraternity, or Rudolf Steiner’s Concept of Threefold Society
  • Mgr Bartosz BISKUP: Open texture of law and evolution of legal institutions. The case of marriage
  • Dr Karolina GMEREK: ‘Tacit’ Declarations of Intent: Considerations in the Context of the Normative Concept of Omission
  • Dr Paweł LESIŃSKI: Private Property and Its Social Dimension in the Views of Rudolf von Jhering and Otto von Gierke
  • Dr Marek SUSKA: Terminological Consistency in the Legal System. A View at the Problem of Interpretation from the Perspective of Law-making Practice
  • Mgr Jan TURLEJ: Contemporary Debate on John Rawls’s Political Concept of Human Rights. Selected Arguments and Positions
  • Dr Mariola ŻAK: Institutional Critique as a Research Perspective of Jurisprudence in the Context of Jacques Rancière’s Philosophy
  • Prof. KUL dr hab. Jadwiga POTRZESZCZ: Magdalena Najda, Aleksandra Rutkowska, Dariusz Rutkowski, Courtroom Psychology. How communication and emotions affect on the perception of justice, Bielsko-Biala 2021. A Review

The issue is available HERE.

Magdalena Najda, Aleksandra Rutkowska, Dariusz Rutkowski, Courtroom Psychology. How communication and emotions affect on the perception of justice, Bielsko-Biala 2021. A Review

Prof. KUL dr hab. Jadwiga POTRZESZCZ

Catholic University of Lublin

Language: polski

Published: Number 1(34)/2023, pp. 102-107

DOI: https://doi.org/10.36280//AFPiFS.2023.1.102

Download: Download Number of downloads: 208

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

 

Institutional Critique as a Research Perspective of Jurisprudence in the Context of Jacques Rancière’s Philosophy

Dr Mariola ŻAK

University of Warsaw

English abstract: The article reflects on the condition of contemporary critique of law in the light of institutional critique derived from the theory of art. This study aims to verify the thesis that institutional critique is a research perspective formed against the background of various trends of critical legal thought. This critique is affirmative and constructive in character. It focuses on the analysis of the performance of reflexive institutions and it also problematizes cognitive tensions that are inherent in legal institutions. The institutions are analysed in the light of the metaphor of aesthetic play. The article presents the theoretical grounding of the relationship between institutional critique and critical legal thinking in the light of the philosophy of law inspired by Jacques Rancière’s thought. Furthermore, selected examples of this critique and directions for its potential application are shown in the context of modelling patterns of dialogic legal culture as understood by the law and humanities movement.

Keywords: institutional critique, critical legal thinking, aesthetics of law, law and humanities, Jacques Rancière

Language: Polish

Published: Number 1(34)/2023, pp.87-101

DOI: https://doi.org/10.36280//AFPiFS.2023.1.87

Download: Download
Number of downloads: 179

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Contemporary Debate on John Rawls’s Political Concept of Human Rights. Selected Arguments and Positions

Mgr Jan TURLEJ

Jagiellonian University in Kraków, Kraków University of Economics

English abstract: In The Law of Peoples – published in Poland for the first time twenty years ago – John Rawls extended his theory of justice to the field of international relations. The philosopher developed the concept of the law of peoples, or the political concept of justice that applies to the norms and principles of international law and practice. As part of his concept, Rawls proposed a  vision of human rights as rights that define the limits of state sovereignty. In the article, in addition to a synthetic overview of Rawls’s concept of human rights, I present selected critical arguments, formulated by John Tasioulas, Charles Beitz, James Nickel, Allen Buchanan, Martha Nussbaum, and Thomas Pogge. In the second part of the text, I discuss an attempt to defend Rawls’s views, proposed by David Reidy and Samuel Freeman. In conclusion, I summarize both lines of argument, presenting my own position.

Keywords: John Rawls, human rights, political concept of human rights, rights, state sovereignty

Language: Polish

Published: Number 1(34)/2023, pp.72-86

DOI: https://doi.org/10.36280//AFPiFS.2023.1.72

Download: Download
Number of downloads: 199

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Terminological Consistency in the Legal System. A View at the Problem of Interpretation from the Perspective of Law-making Practice

Dr Marek SUSKA

Silesian University in Katowice

English abstract: The goal of the article is to determine whether the legal interpretation should be made with the assumption of consistency of terminology at the level of a branch of law or at the global level. The question is therefore whether the interpreter should presume that the legislator ‘by default’ refers those who apply the law only to the legal definitions contained in a certain, most general act within one branch of law, or whether, regardless of the branch, the legislator always uses a  uniform terminology. An analysis of the law-making practice may be a  source of useful cues to answer this question. First, the article reconstructs the requirements imposed on the drafters by the Principles of Legislative Technique. Secondly, several dozen acts passed by the Sejm of the 7th and 8th term of office are examined in terms of the presence of ‘definitional’ references to acts from the same branch of law and acts from another branch of law. In this way, it is established that only the presumption of a legal act maintain terminological consistency with legal definitions set out in the basic act for a given branch of law seems to be legitimate. The basic act should not be understood in an institutional way, but as one relating to a quasi-branch. The article also identifies at least some cases where it is justified or unjustified to use ‘explicit’ references to point out branch-level or global terminological consistency. The results of the analyses may find application in the discussion on the meaning of the directive of legal language in the theory and practice of interpretation, as well as in the theory and practice of legislation – in determining when it is necessary to use a provision referring to a legal definition.

Keywords: terminological consistency, provisions referring to other provisions, legal language, law-making, legal interpretation, system of law

Language: Polish

Published: Number 1(34)/2023, pp.58-71

DOI: https://doi.org/10.36280//AFPiFS.2023.1.58

Download: Download
Number of downloads: 207

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Private Property and Its Social Dimension in the Views of Rudolf von Jhering and Otto von Gierke

Dr Paweł LESIŃSKI

Maria Curie-Skłodowska University in Lublin

English abstract: The article is an attempt to analyse the views of Rudolf von Jhering and Otto von Gierke views on the question of social dimension of private property. These two German lawyers formulated their ideas during the period of search for the solutions to socio-economic problems regarding private property and its scope. They both represented essentially identical views on the importance of private property in the context of its existence in the community. In order to fulfill the research task described above, the article firstly analyses the historical and ideological background for solutions to the problems of private property in Germany in 19th century. Secondly, the article examines the question of the individual’s position within the community in the thought of Jhering and Gierke. The third part of the article analyses the views of these scholars on the essence of the legal order in the context of private property. The last part of the article refers to their views on private property perceived as a  phenomenon which by definition includes limitations and results in both rights and obligations for the owner.

Keywords:  private property, Rudolf von Jhering, Otto von Gierke, community, social obligation

Language: Polish

Published: Number 1(34)/2023, pp.46-57

DOI: https://doi.org/10.36280//AFPiFS.2023.1.46

Download: Download
Number of downloads: 197

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

‘Tacit’ Declarations of Intent: Considerations in the Context of the Normative Concept of Omission

Dr Karolina GMEREK

University of Szczecin

English abstract: From the point of view of the problems of dogmatics of civil law, this article aims to present a certain philosophical concept of omission and apply it to the development of the basic aspects of making declarations of will by omission. From the perspective of the general theory of law, this article is a part of a broader project aiming at theoretical elaboration of the problem of making conventional acts by omission using the achievements of the philosophy of action. This article proposes a way to conceptualize the declarations of will made by omission. The normative conception of omissions in the version proposed by Katarzyna Paprzycka-Hausman within the philosophy of action has been chosen for this task. Using the above conception allows putting in order, to some extent, the problem of making declarations of will by omission. It should be noted that some elements included in the normative concept of omission have been present in reflections on declarations of will made by omission for a long time. It is primarily about the role of the context of omission and the “should and could have spoken” argument used in the doctrine and the case law in the context of identifying declarations of will made by way of omission.

Keywords: declaration of will, omission, conventional act in law, philosophy of action

Language: Polish

Published: Number 1(34)/2023, pp.32-45

DOI: https://doi.org/10.36280//AFPiFS.2023.1.32

Download: Download
Number of downloads: 210

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Open texture of law and evolution of legal institutions. The case of marriage

Mgr Bartosz BISKUP

Jagiellonian University

English abstract: This paper outlines how we can use Hart’s conception of the open texture of law for a  theoretical reflection on the phenomenon of evolving legal institutions. The first part of the paper reflects on the concept of ‘open texture’. It presents the so-called prescriptive interpretation of the open texture, initially proposed by Brian Bix. The prescriptive interpretation does not aim to prove the existence of open texture. It indicates that we should interpret legal provisions ‘as if’ there was an open texture. In the second part, I present how the open structure of law explains judicial activism or legislative amendments. As an example, the concept of marriage is of primary concern. One of the main pitfalls is the so-called ‘semantic argument’, which highlights the linguistic boundaries for making certain legal changes (e.g., introducing same-sex marriages and granting legal personhood to rivers). The problem of semantic boundaries is placed in the context of the division between concepts relating to social and legal kinds. Finally, the above considerations are tentatively applied to the discussion about contents of Article 18 of the Polish Constitution.

Keywords: open texture, marriage, legal kinds

Language: Polish

Published: Number 1(34)/2023, pp.18-31

DOI: https://doi.org/10.36280//AFPiFS.2023.1.18

Download: Download
Number of downloads: 286

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Liberty – Equality – Fraternity, or Rudolf Steiner’s Concept of Threefold Society

Prof. UMK dr hab. Marta BARANOWSKA

Mikołaj Kopernik University in Toruń

English abstract: The research objective of the article is to present Rudolf Steiner’s concept of threefold society, as well as to attempt to indicate whether the ideas he raised have a place in the contemporary discourse in social and political philosophy. The research questions to be asked in this context are: is it possible to include Steiner’s views in a specific ideology? Did he consider it possible to realize the ideas of liberty, equality, and fraternity in social life? How did he perceive the relationship between the individual and the community? Achieving the research goal requires analysing and interpreting Steiner’s writings and analysing the scientific literature devoted to this issue. First of all, he believed that the three ideas: liberty, equality, fraternity, are impossible to implement when the social organism is treated as an integral whole. The original solution to this problem was to suggest dividing the social organism into three parts. Each part would implement one of these ideas. The spiritual sphere would be based on freedom from influence of the state and the economy, while the economic sphere would be based on brotherhood and not on the liberal egoistic desire to get rich or on the socialist pursuit of equality. In this context, he also presented a concept that resembles basic income, an idea raised more and more often in contemporary social philosophy. Finally, the political sphere would be based on democratic equality. Steiner emphasized that he was not creating a new ideology because a permanent social order would never be possible. He also introduced an original solution to social philosophy, pointing out that life is not an integral whole and has different aspects. Different priorities can be considered in each of them, which will result in an optimal solution to the individual-community paradox.

Keywords: Rudolf Steiner, threefold social order, anthroposophy, liberty, social philosophy, unconditional basic income, law

Language: Polish

Published: Number 1(34)/2023, pp.5-17

DOI: https://doi.org/10.36280//AFPiFS.2023.1.5

Download: Download
Number of downloads: 231

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Issue 4(33)/2022 „Archiwum…”: „Democratically Legitimized Law: Deliberation and Empowerment of Citizens. Introduction” is available

We invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”, the Journal of the Polish Section of IVR entitled „Democratically Legitimized Law: Deliberation and Empowerment of Citizens. Introduction”. The issue was edited by Prof. UAM dr hab. Piotr W. JUCHACZ, and includes the following texts: 

  • Prof. UAM dr hab. Piotr W. JUCHACZ: Democratically Legitimized Law: Deliberation and Empowerment of Citizens. Introduction
  • Prof. UAM dr hab. Karolina M. CERN: Deliberative Philosophy of Administrative Sciences
  • Prof. UŁ dr hab. Bartosz WOJCIECHOWSKI: Reflections on the Dynamism and Deliberativeness in the Interpretation of Law on the Example of Cases Concerning LGBTQ+ Rights
  • Dr Tomasz RABURSKI: Epistemology of Application of Law and the Principle of Democratic Rule of Law
  • Prof. dr hab. Ewa NOWAK: Philosophy of Right for Lay Judges. Hegel’s and Fichte’s Perspective
  • Prof. UAM dr hab. Barbara JANUSZ‑POHL: The Principle of Citizens’ Participation in Criminal Trials and Legitimization of the Justice System
  • Dr Paweł MAZUR: Remarks on Lay Judges in Polish Criminal Process Passing Moral Judgements

The issue also includes The Results of the Competition of the Association of Philosophy of Law and Social Philosophy – Polish Section of IVR for the Best Doctoral Thesis in the field of Theory and Philosophy of Law. 

The issue is available HERE.