Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Types of Judicial Review Tests and the Principle of Proportionality

Prof. UMK dr hab. Milena Korycka-Zirk

Mikołaj Kopernik University in Toruń

English abstract: Judicial review in the jurisprudence of the US Supreme Court can take the form of one of three formulas for examining an act or action of an authority (strict scrutiny test, intermediate scrutiny test, or rational basis test). In the context of the constitutional review each of these tests requires an analysis, of three essential aspects: what kind of individual interest is limited, what form of public interest legitimation is required, and how the means and the purpose so indicated are related. A detailed analysis of these standards of proportion, jurisprudentially developed and evolutionarily tightened, in confrontation with the principle of proportionality used in European constitutions (and documents on international protection of human rights) allows to formulate theses about which standard is stronger, which one creates a barrier providing better protection of individual autonomy, and which is more resistant to ‘steps backwards’ in this respect.

Keywords: judicial review (of constitutionality of statutes), principle of proportionality, strict scrutiny test, intermediate scrutiny test, rational basis test

Language: Polish

Published: Number 2(31)/2022, pp. 54-69.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.54

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Number of downloads: 369

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From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law

Dr hab. Anna Kalisz, mgr Dorota Pawlicka

Maria Curie-Skłodowska University in Lublin, Supreme Administrative Court

English abstract: The aim of the article is to analyse the possibility and necessity of empowering animals as ‘non-personal’ legal subjects under Polish law, indicating the relevant case law (of ordinary and, mainly, administrative courts). The research assumption is the statement that, although administrative case law contains elements of a fairly progressive approach that results in an interpretation of the applicable provisions on the protection and (rudimentarily regulated) animal rights, the existing provisions are far from sufficient and leave quite a lot of room for a very flexible interpretation. That may lead not solely to an animal-friendly interpretation, but also to abuses against them. Therefore, postulated amendments concerning constitutional protection of animal rights deserve attention, as they would be important for the systemic interpretation of law. The research subject is both philosophical and legal literature, as well as case law. The main method is the logico-linguistic analysis (with some elements of historical and comparative approach) of texts on philosophy, including legal philosophy and ethics, as well as the analysis of case law. The research findings have a mixed, descriptive-and-normative character, while the above combination of ethics, legal theory, and legal practice both manifests the evolution of the approach to the titular matter and makes an original contribution to jurisprudence as a scientific discipline.

Keywords: social consciousness, sentient animals, legal protection of animals, animal rights, constitutional protection, administrative case law

Language: Polish

Published: Number 2(31)/2022, pp. 38-53.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.38

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Number of downloads: 380

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On the Possibility of Administrative Courts Shaping Constitutional Consciousness

Dr Anna Chmielarz-Grochal

University of Lodz

English abstract: The article aims to show how administrative courts (in particular the Supreme Administrative Court) participate in shaping the constitutional consciousness of citizens. The main thesis of the article boils down to the statement that administrative courts shape constitutional consciousness through direct application of the provisions of the fundamental law. This thesis corresponds to the assumption that justifications of the judgments being the effect of the application of the constitution have an educational value. Examples from the practice of judicial application of Article 2, provisions on fundamental rights (including those that have the nature of principles: Article 30 and Article 32), and Article 45 in conjunction with Article 184 of the Polish Constitution show that the justifications may fulfil the role of a carrier of knowledge about the fundamental law, the legal institutions regulated by it, and the essence of fundamental rights, taking into account the role of a court as a guarantor of the protection of individual rights.

Keywords: constitutional consciousness, legal consciousness, constitutional identity, direct application of the constitution, pro-constitutional interpretation, constitutional reasoning, administrative courts

Language: Polish

Published: Number 2(31)/2022, pp. 22-37.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.22

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Number of downloads: 347

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Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle

Dr Vygantė Milašiūtė

Vilnius University

English abstract: The paper focuses on the protection of freedom of expression of judges and  prosecutors who exercise this freedom in their professional capacity to promote the rule of  law, but suffer negative consequences as a result. Starting with the ECtHR Kövesi v. Romania judgment, the issues of whether legal remedy, in this context, should necessarily be judicial  and what quality requirements it should meet are analysed. The paper finds that the ECtHR  requires effective remedies in this field, but does not clearly exclude a possibility of non judicial remedies. The EU law, on the other hand, requires judicial remedies unless there are  very limited EU law-based reasons (notably, constitutional identity arguments) that justify  a possibility of a non-judicial remedy. Theoretical arguments based on substantive conception  of the rule of law support the need for a judicial remedy. The study is an addition to the  research into judicial independence in the light of the rule of law. It connects the ECtHR, EU  law and theoretical perspectives.

Keywords: judicial independence, prosecutors, freedom of expression, rule of law, remedy

Language: English

Published: Number 2(31)/2022, pp. 7-21.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.7

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Number of downloads: 324

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Issue 1(30)/2022 „Archiwum…”: „Constitution and Values – Yesterday and Today” 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 “Constitution and Values – Yesterday and Today”. The issue was edited by prof. UW dr hab. Tatiana Chauvin, and includes the following papers: 

  • Prof. Prof. UW dr hab. Tomasz Stawecki: Piotr Winczorek: Researcher, Teacher and Friend 
  • Szymon A. Gasz, Marek P. Kaczmarczyk: Introduction to the Fidelity to the Constitution 
  • Prof. UMK dr hab. Aleksandra Kustra-Rogatka: Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues 
  • Prof. dr hab. Leszek Leszczyński: General Constitutional Clauses: Between the Legislative Construction and Its Implementation 
  • Dr Wojciech Mojski: Analysis of the Constitutional Crisis from the Perspective of the Constitution’s Axiological Function. Outline of Basic Theoretical Issues 
  • Dr hab. Maciej Pichlak: Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution 
  • Dr Marcin Romanowicz: Instrumentalization of Law and the Constitutional Crisis: Reflection on the Basis of Several Topical Findings of Professor Piotr Winczorek 
  • Dr hab. Anna Rossmanith: The Crisis of Dialogue and Political Community: Philosophical Reflections on the Relationship Between Pluralism, Difference and Dialogue 
  • Dr Paweł Skuczyński: Social Reading of the Constitution of the Republic of Poland versus Constitutional Axiology and Constitutional Social Ontology 
  • Prof. UŚ dr hab. Sławomir Tkacz, prof. dr hab. Zygmunt Tobor: Remarks About the Axiological Dimension of the Polish Constitution of 1997 and Its Interpretation in the Light of Works of Professor Piotr Winczorek 

The issue also includes the introduction Constitution and Values – Yesterday and Today: Introduction by prof. UW dr hab. Tatiana Chauvin, and The statement of Presidium of the Association for Philosophy of Law and Social Philosophy – Polish Section of IVR on the aggression of the Russian Federation against Ukraine. 

The issue is available HERE.

Remarks About the Axiological Dimension of the Polish Constitution of 1997 and Its Interpretation in the Light of Works of Professor Piotr Winczorek

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

University of Silesia in Katowice

English abstract: This article is an extended and supplemented version of the address given during the scientific conference dedicated to Professor Piotr Winczorek. The authors made an attempt to reconstruct theory-of-law views based on the statements of Piotr Winczorek. The subject of the research was especially issues related to the axiology of the Constitution of the Republic of Poland. In the course of research such issues as the concept of the legal order in the light of constitutional provisions, constitutional values, constitutional principles, and sources of law were taken up. One of the interesting problems emphasized by Piotr Winczorek was whether the basic law should be frugal in terms of manifesting values. The research is supplemented by an analysis of the problems of legal interpretation in the works of Piotr Winczorek. The conducted analyses enable formulating a general conclusion that many problems raised by Piotr Winczorek are referred to in the current constitutional disputes. Therefore, it is worthwhile to refer to the works of Professor Winczorek, whose statements can be treated as an authentic interpretation of the Polish Constitution of 1997.

Keywords: Piotr Winczorek, theory of law, legal interpretation, Constitution of the Republic of Poland, legal values, legal principles

Language: Polish

Published: Number 1(30)/2022, pp. 113-125

DOI: https://doi.org/10.36280/AFPiFS.2022.1.113

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Number of downloads: 345

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Social Reading of the Constitution of the Republic of Poland versus Constitutional Axiology and Constitutional Social Ontology

Dr Paweł Skuczyński

University of Warsaw

English abstract: The paper aims to propose a social reading of the Constitution of the Republic of Poland as an alternative to liberal and republican interpretations. It was developed with the use of an interdisciplinary methodology, including the use of societal constitutionalism as its theoretical basis, as well as its formal-dogmatic justification and its characterisation in the perspective of the theory of law as relating to the social ontology expressed in the Constitution of the Republic of Poland. A thesis is put forward that the social reading of the Constitution consists in recognizing some social entities as constitutional entities, next to individuals and the State. Consequently, the norms concerning them should be interpreted as obliging the state authorities to ensure their influence on public policies and the law-making, and to take into account the bottom-up creation of norms and broadly understood self-regulation. Four arguments for the social reading of the Constitution of the Republic of Poland are presented, which are based on: 1) the scope of the constitutional regulation (extensive regulation in Chapter 1 of social and public entities such as local and professional self-government bodies, trade unions, and employers’ organizations, civil society organisations, churches, and religious unions); 2) the way they are regulated (despite the identity of the designatum, regulating these entities alongside the concept of a sovereign nation and imposing certain obligations on the State authorities towards them); 3) the historical context of the making of the Polish Constitution (building the autonomy of society in relation to the state as a strategy of resistance from the 1970s); 4) the work on drafting the Polish Constitution (the gradual addition of provisions on social entities, often due to pressure exerted by, which was an expression of far-reaching self-constitutionalisation).

Keywords: societal constitutionalism, social ontology, constitutional values

Language: Polish

Published: Number 1(30)/2022, pp. 100-112

DOI: https://doi.org/10.36280/AFPiFS.2022.1.100

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Number of downloads: 409

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The Crisis of Dialogue and Political Community: Philosophical Reflections on the Relationship Between Pluralism, Difference and Dialogue

Dr hab. Anna Rossmanith

University of Warsaw

English abstract: The aim of this article is to present the relationship between pluralism, difference and dialogue as the foundation of an open society. The fundamental philosophical perspective of the study is centred around unique Levinas’ ethics. According to Levinas, we can see a difference as a creative component of a community and therefore abandon the ontological notion of the world understood as a whole and totality. In the undertaken considerations, the author refers to categories such as polis, deliberative democracy and external morality of law.

Keywords: dialogue, political community, polis, pluralism, difference, communication, open society

Language: Polish

Published: Number 1(30)/2022, pp. 91-99

DOI: https://doi.org/10.36280/AFPiFS.2022.1.91

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Number of downloads: 377

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Instrumentalization of Law and the Constitutional Crisis: Reflection on the Basis of Several Topical Findings of Professor Piotr Winczorek

Dr Marcin Romanowicz

University of Warsaw

English abstract: The instrumentalization of law is one of the most important research issues that belong to the achievements of Professor Piotr Winczorek. Combining the problem of the limits of permissible instrumentalization of law with the issue of the axiology of law, he adopted a non-reductionist position and indicated the autotelic values of law, as well as non-legal values implemented by the legal system as the criteria for assessing acts of instrumentalization of law. Based on careful observation of the legal practice, primarily the actions of the legislature, he proposed a typology of various cases of pathological instrumentalization of law.

A list of individual acts of enacting and applying the law that can be distinguished in the ongoing constitutional crisis in Poland, broken down by the types indicated by Prof. Winczorek, leads to the conclusion that not only is his typology still valid, but it also can be used as an adequate tool for an in-depth description of the ongoing crisis. Moreover, it enables the indication of yet another threat to the legal order, i.e. attempts to instrumentalize constitutional values. In the face of this danger, it is justified to formulate the postulate of giving the constitution an axiological interpretation, the aim of which would be to read a given legal principle in the hermeneutic context of the axiological system from which said legal principle derives genealogically.

Keywords: instrumentalization of law, typology of instrumentalization acts, legal axiology, legal values, constitutional values, legal principles, axiological interpretation of law

Language: Polish

Published: Number 1(30)/2022, pp. 74-90

DOI: https://doi.org/10.36280/AFPiFS.2022.1.74

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Number of downloads: 396

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