Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

John Gray’s Tree-Part Philosophical Creed

Prof. dr hab. Beata Polanowska-Sygulska

Jagiellonian University in Kraków

English abstract: John Gray’s three controversial, widely discussed books, Straw Dogs: Thoughts on Humans and Other Animals (2002), The Silence of Animals: On Progress and Other Myths (2013) and The Soul of the Marionette: A Short Inquiry into Human Freedom (2015), create a natural trilogy. They all have a similar structure, consisting of a kaleidoscope of ideas, digressions, associations and recurring motifs. This article provides a brief analysis and a thorough critique of this trilogy. The strong and the weak points of the most recent volume are emphasized. A number of objections, reservations and doubts concerning the ideas presented in the three books are formulated. Critical arguments relating to, among other things, Gray’s inconsistent statements on the phenomenon of tragedy, the sources of humanism and its respect for the truth, the issue of freedom and the author’s alleged rejection of traditional morality are put forward.

Keywords: humanism, liberalism, morality, freedom, progress, truth

Language: English

Published: Number 3(32)/2022, pp. 72-87

DOI: https://doi.org/10.36280/AFPiFS.2022.3.72

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Number of downloads: 383

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Ethics of Strategic Voting in Popular Elections

Mgr Łukasz Łyżwa

Jagiellonian University in Kraków

English abstract: Misreporting of preferences is a common behavior among voters but still considered as moral wrongdoing. I propose the conceptual framework of its dilemmas and argue that tactical voting may NOT be regarded as a moral wrong if implemented in a popular election. I examine the relationship between strategic voting and its moral burden in correspondence to particular moral doubts possible to found in respective literature. Thanks to voting paradoxes revealed by mathematicians and economists gathered around a movement called social choice theory I challenge 1) “the consequentialistic argument” and 2) the “express value argument” which eventually is regarded as non-conclusive whereas it presupposes not commonly accepted view on the role of election in democracy itself. In answer to 3) “sincere argument” which suggests manipulation since the agent does not express one’s profound preference, so to say, does not vote naively, I distinguish sincere and insincere manipulations. Then, I challenge five of Sattherwaite’s “transparency arguments”: 4) inequality of skills, 5) inefficiency, 6) non-transparency of voters’ preferences, 7) non-transparency of representatives’ preferences, and 8) randomness, which I treat by and large as a valid with minor comments added. However, I believe that some of the “transparency arguments” can be adopted as a virtue rather than a vice of democracy, because encourage cooperation and induce to actualize ongoing coalitions. Finally, I distinguish a weak and a strong position against treating strategic voting as moral wrongdoing. Former one argues that strategic voting may be “sincere”, therefore morally acceptable according to argument 3). However, the latter rejects the election’s claim to bear any moral burden and persuades that voting itself should be perceived as an ethics-free decision-making device.

Keywords: ethics, moral, elections, social choice theory, strategic voting, Sattherwaite, Arrow’s paradox

Language: English

Published: Number 3(32)/2022, pp. 60-71

DOI: https://doi.org/10.36280/AFPiFS.2022.3.60

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Number of downloads: 360

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Equality of Narrative Inclusion in Decision-Making Processes: A Deliberative Approach

Mgr Marta Zuzanna Huk

Adam Mickiewicz University in Poznań

English abstract: This paper explores the relationship between narrative inclusion and the notion of equality from the perspective of the theory of deliberative democracy. It is based on the assumption that taking into account the diversity of discursive competences influences the constructed justifications constituting the source of legitimacy of political decisions. Moving beyond a purely argumentative discourse towards emphasising pluralism provides a significant enough modification of the theory to claim that it constitutes a separate model of deliberation. At the starting point, the role and purpose of narrative is presented, as well as the conditions under which it can be incorporated into deliberative processes. Then, consideration is given to the transformation of the category of equality that is brought about by introducing narrative to the framework of subject inclusion. The shift in meaning from unconditional equality to equalisation of opportunities is also addressed, in both procedural and substantive terms. Finally, the paper outlines the possible practical problems and risks that the inclusion of narrative in deliberation may raise.

Keywords: narration, theory of deliberative democracy, substantive inclusion, equalisation of opportunities, public legitimacy, mutual justifications

Language: English

Published: Number 3(32)/2022, pp. 49-59

DOI: https://doi.org/10.36280/AFPiFS.2022.3.49

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Number of downloads: 366

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Reflective Legal Positivism

Dr hab. Adam Dyrda

Jagiellonian University in Kraków

English abstract: The argument of theoretical disagreement has been deemed the most serious contemporary challenge to the traditional views of law, not merely for academic legal positivists but for all lawyers and scholars. Although coined by Ronald Dworkin for the specific purpose of opposing conventionalist and positivist theories of law, the argument recognises the general truth that jurisprudence is an inevitably agonistic enterprise. Nowadays, it is one of the most discussed arguments in general jurisprudence. In this paper, I follow Shapiro’s idea that legal positivists have to accept the challenge and accommodate the argument – they simply cannot dismiss it as conceptually irrelevant. I briefly reconstruct the argument and discuss three positivist accounts that accommodate the phenomenon of theoretical disagreement. I also argue that one of the common features of these positivistic responses is a tacit acceptance of a holistic and meta-philosophical perspective that allows theoretical disagreements to fit within the boundaries of the legal‒institutional framework. The holistic turn is no surprise given that Dworkin’s methodology is also in principio holistic. I conclude, however, that holistically pimped legal positivism – being a conscious close neighbour of legal realism – is a more reflective theory of law than the Dworkinian one.

Keywords: legal positivism, reflective methodology, holistic pragmatism, law as planning critical legal positivism, institutional theory of law

Language: English

Published: Number 3(32)/2022, pp. 34-48

DOI: https://doi.org/10.36280/AFPiFS.2022.3.34

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Number of downloads: 448

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Argument from Precedent in Legal Interpretation of Texts of Legal Acts from the Perspective of a Derivative Concept of Legal Interpretation

Prof. US dr hab. Agnieszka Choduń

University of Szczecin

English abstract: The aim of this article is to ascertain whether in the Polish legal culture in which precedent is not a legislative fact, it can become an argument in the process of judicial interpretation. The article posits that an analysis of precedent as an argument in judicial interpretation must be carried out in relation to a particular concept (or theory) of legal interpretation. Hence, it adopts the Maciej Zieliński’s (derivative) concept of legal interpretation as a point of reference for understanding “legal interpretation”. The choice is based on the following reasons: 1) this concept offers a complex approach to legal interpretation (which assumes that interpretation can be concluded if three directives have been applied by an interpreter: linguistic, systemic and functional); 2) this concept considers the realistic elements of legal interpretation in the form of directives linked to the interpretative findings achieved in judicial practice; 3) this concept stipulates that legal interpretation has certain roles, which allow establishing whether the outcome of legal reasoning is within the scope of the interpretation or whether it constitutes a “normative novelty”. As a result of this analysis, it can be concluded that depending on the content of the directives of interpretation adopted in a given legal culture, the proceedings of the entity applying a law will have either an interpretative or a legislative character and will consequently determine how invoking earlier court judgments in legal interpretation will be classified.

Keywords: precedent, legal interpretation, roles of interpretation

Language: English

Published: Number 3(32)/2022, pp. 19-33

DOI: https://doi.org/10.36280/AFPiFS.2022.3.19

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Number of downloads: 408

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On Methodological Unity and Diversity of Legal Sciences: A Contribution to Basic Methodological Research

Prof. KUL dr hab. Tomasz Barankiewicz, Prof. UJD dr hab. Bogusław Przywora

The John Paul II Catholic University of Lublin, The Interdisciplinary Research Centre on Deradicalization at Jan Długosz University in Częstochowa

English abstract: The paper is an attempt to argue for the methodological distinctiveness of legal sciences. The methodological distinctiveness (specificity) of legal sciences has been presented in three dimensions: 1) the subject; 2) methods and 3) purpose of scientific research. The analysis can be used both for the argument against the lack of a methodological identity of the legal sciences and positively for the comprehensive research and the integrative model of the legal sciences. In view of the complexity of the subject and the aims of legal science should be used various research methods. In further research, it would be advisable to establish their possible systems in a specific research problem.

Keywords: methodology of legal sciences, the subject matter of legal sciences, the methods of legal sciences, the research objectives in the legal sciences

Language: English

Published: Number 3(32)/2022, pp. 5-18

DOI: https://doi.org/10.36280/AFPiFS.2022.3.5

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Number of downloads: 448

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Issue 2(31)/2022 „Archiwum…”: „The Formation of Constitutional Awareness in Legal and Public Discourse” 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 „The Formation of Constitutional Awareness in Legal and Public Discourse”. The issue was edited by Dr Skirgailė ŽALIMIENĖ and prof. UŁ dr hab. Bartosz WOJCIECHOWSKI, and includes the following papers: 

  • Dr Vygantė MILAŠIŪTĖ: Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle
  • Dr Anna CHMIELARZ‑GROCHAL: On the Possibility of Administrative Courts Shaping Constitutional Consciousness
  • Dr hab. Anna KALISZ, mgr Dorota PAWLICKA: From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law
  • Prof. UMK dr hab. Milena KORYCKA‑ZIRK: Types of Judicial Review Tests and the Principle of Proportionality
  • Prof. AEH dr hab. Małgorzata NIEWIADOMSKA-CUDAK: The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere
  • Dr Jarosław SUŁKOWSKI: The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases
  • Prof. UŁ dr hab. Bartosz WOJCIECHOWSKI: The Choice of a Way of Life and the Consciousness of a Fundamental Rights

The issue is available HERE.

The Choice of a Way of Life and the Consciousness of a Fundamental Rights

Prof. UŁ dr hab. Bartosz Wojciechowski

University of Lodz

English abstract: The article deals with the need for acceptance of pluralism of ways of life in modern legal orders, which should allow each individual to find his or her own modus vivendi in a diverse world. Such an attitude is particularly important in the discussion on LGBTQ rights, for which the starting point is the case law of the Supreme Administrative Court in these matters. The author points out that proper exercise of rights and tolerance for pluralism of values, beliefs and ways of life is not possible without legal consciousness of the entities belonging to certain minorities, which is built by a sensitive and pluralistic attitude of judges, reflected in their judgments.

Keywords:  equality, (non)discrimination, identity, legal consciousness, axiological pluralism, human dignity, recognition

Language: Polish

Published: Number 2(31)/2022, pp. 97-108.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.97

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Number of downloads: 392

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The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases

Dr Jarosław Sułkowski

University of Lodz

English abstract: In April 2022 four years passed since the introduction into the Polish legal system of extraordinary appeal – a new instrument for the review of final court judgements. The experience of several years of the functioning of this means of challenge provides an opportunity to analyse it on the basis of the emerging case law of the Supreme Court in the context of not only the effectiveness of this kind of appeal, as seen through the prism of procedural justice in criminal matters, but also in the context of emergence of constitutional awareness. It should be assumed that the legislator wanted to introduce a measure that would strengthen the protection of freedoms and rights, also within the framework of criminal proceedings, and which so far did not exist in such a form – in terms of evaluation of the process of applying the law. A few years after its introduction, the fears that extraordinary appeal would become a politically exploited mechanism have not come true. However, after a few years the first cautious conclusions can be formulated regarding its significance for the reliability of the criminal process. Unfortunately, these conclusions are not optimistic. The extraordinary complaint does not play a significant role in the functioning of the criminal process in the shape outlined by the Polish Constitution.

Keywords: extraordinary appeal, Supreme Court, judicial review (of constitutionality of statutes), constitutional awareness

Language: Polish

Published: Number 2(31)/2022, pp. 84-96.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.84

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Number of downloads: 326

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The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere

Dr hab. Małgorzata Niewiadomska-Cudak

University of Economics and Human Sciences in Warsaw

English abstract: The article analyses the constitutional norm on gender equality referred to in the Constitution of the Republic of Poland of 1997 and the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija) of 1992. The author tries to answer the question of how the principle of gender equality is enshrined in the two most important normative acts for both countries, which have the highest legal force in the system of legal sources. The scope of research interests therefore includes the issue of constitutional regulations and their impact on the participation of women in the governments of both surveyed countries, their national parliaments, and the European Parliament. The current democratic deficit can be viewed from the point of view of underrepresentation of women in political structures. The participation of women increases the legitimacy of democratic institutions and contributes to reducing gender inequalities in public life. Building awareness of the role of public institutions in the field of equal opportunities regardless of gender corresponds to the principle of social justice, according to which women and men should have equal access to high offices, including the national and European parliaments. Equality and justice are the core values and essence of democracy. A feature of particular importance is gender equality. A reliable basis for defining it is provided by the constitution, therefore the article presents how its provisions may have an impact on women’s participation in the political sphere.

Keywords: constitution, the principle of gender equality, political participation of women, underrepresentation, government, parliament

Language: Polish

Published: Number 2(31)/2022, pp. 70-83.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.70

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Number of downloads: 290

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