Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

On Gustav Radbruch’s Notion of Antinomies of the Idea of Law

Bartosz Szyler

University of Warsaw

English abstract: The main purpose of the paper is to analyse the notion of antinomies of the idea of law developed in Gustav Radbruch’s philosophy. In the first part of the paper, I analyse the most detailed explication of the notion of antinomy contained in part of Radbruch’s Philosophy of Law. I emphasize which elements, according to Radbruch, constitute the idea of law and what are the sources of their antinomianism. I indicate what elements constitute, in Radbruch’s opinion, the idea of law and what, in his opinion, the sources of their antinomianism are. In the second part of the paper, I focus on a general reconstruction of the notion of antinomy. I refer to the use of this notion in the history of philosophy and logic, in particular to one of the most important philosophical uses of antinomy in Immanuel Kant’s Critique of Pure Reason. The analysis carried out allows me to recognize the specificity of the notion of antinomy used by Radbruch and to see its distinctiveness in comparison with Kantian antinomies. Looking at the antinomies of the idea of law from a broader philosophical perspective allows me to criticize the inadequacy of the conceptual net adopted by Radbruch, and to justify their reinterpretation independently of what has been discussed in the literature so far.

Keywords: Radbruch, Kant, philosophy of law, antinomies, justice

Language: Polish

Published: Number 4(29)/2021, pp.82-90

DOI: https://doi.org/10.36280/AFPiFS.2021.4.82

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Number of downloads: 256

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From Tischner’s Critique of the Understanding of Work in Marxism to the Apotheosis of Work as Dialogue

Mgr Michał Stachurski

University of Opole

English abstract: Philosophy, being a field that looks for answers to various questions, does not overlook topics related to human work and technology. Usually, reflection is arranged along two axes: the economic and ethical one. These questions are a tool to attempt to define the value of human work as precisely as possible, also within the framework of axiology. The topic of work and its importance in human life was also taken up by Józef Tischner. He is counted as a representative of such trends as the philosophy of meeting or personalism. The aim of this article is to show what work is in Józef Tischner’s thought, what its goals are, and how Józef Tischner characterized the ‘man of work’ within the philosophy of dialogue, as well as a certain interpretation of Tischner’s thought in the context of contemporary existential philosophy and social ethics.

Keywords: work, Tischner, dialogue, existentialism, social ethics

Language: Polish

Published: Number 4(29)/2021, pp.71-81

DOI: https://doi.org/10.36280/AFPiFS.2021.4.71

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Number of downloads: 213

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A Wisdom of Chinese Aphorisms. A Few Remarks on the Philosophy of Criminal Law between Chinese and European Rudimentals

Dr Tomasz Snarski

University of Gdańsk

English abstract: The article is a study of the philosophy of law, devoted to the concept and significance of aphorisms in legal science as well as in legal education. The author introduces the concept of Chinese aphorisms (wisdoms, maxims, thoughts), confronting it with the role played by Latin maxims in law and legal culture. He also reviews selected Chinese aphorisms, comparing them with some contemporary basic ideas, concepts and principles of Polish criminal law. The author also advocates a wider use of Chinese aphorisms in discussions on contemporary views on the fundamental institutions of criminal law, treating them also a tool for broader reflection on the contents of paradigms, which perhaps even enables their reinterpretation.

Keywords: legal sentences, legal aphorisms, Chinese aphorisms, philosophy of criminal law, concepts of criminal law, ideas of criminal law, principles of criminal law

Language: Polish

Published: Number 4(29)/2021, pp.58-70

DOI: https://doi.org/10.36280/AFPiFS.2021.4.58

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Number of downloads: 241

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Hans Kelsen as Outliner: The Defence of a Radical Norm Theory

Prof. dr Stanley L. Paulson

Washington University in St. Louis,
Christian-Albrecht University of Kiel

English abstract: In his first treatise on legal theory, Hauptprobleme der Staatsrechtslehre (1911), Hans Kelsen seeks to recast legal norm theory in a way that would eliminate from the theory the imperative, with what Kelsen sees as its moral connotations. The result, Kelsen’s sanction theory, is not entirely successful. It leaves in place the imperative vis-à-vis legal officials, with obligations imposed on officials to implement sanctions. In the 1930s, Kelsen returns to the issue, radically recasting legal norm theory by introducing empowerment as the fundamental modality and obligation as merely derivative, a view that prevails in the second edition of the Reine Rechtslehre (1960).

Keywords: Julius Binder, Karl Binding, Hans Kelsen, Adolf Julius Merkl, empowerment, imperative, legal norm theory, obligation, sanction theory, Stufenbau

Language: Polish [translated by: prof. dr hab. Tomasz Gizbert-Studnicki]

Published: Number 4(29)/2021, pp.5-17

DOI: https://doi.org/10.36280/AFPiFS.2021.4.5

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Number of downloads: 282

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The Account of the ‘Nature of Things’ in Gustav Radbruch’s Method of ‘Legal Construction’ in the Context of Assumptions of Legal Positivism

Mgr Zuzanna Krzykalska

Jagiellonian University

English abstract: In his work titled Natur der Sache als juristishe Denkform, Gustav Radbruch develops his account of the nature of things as an objective essence of social reality, which serves as a foundation for the construction of legal institutions. The main objective of this paper is to refute two serious objections against the account, namely, the alleged contradiction between the account of the nature of things and the 1) assumption of relativism of values as well as the 2) assumption of the ontological is-ought dichotomy. To show that Radbruch’s account is consistent with those two assumptions of legal positivism, firstly, I invoke the conceptual distinction between ontological and epistemological objectivity. Secondly, I specify the understanding of the term ’nature‘ not as implying natural origin, but rather an object’s having an essence in ontological terms. With those conceptual distinctions, it is possible to understand Radbruch’s theory as a version of essentialism towards social artifacts (those important form the legal point of view), which does not imply any iusnaturalistic commitments.

Keywords: Gustav Radbruch, Nature of Things, Legal Construction, Legal ontology, Legal institution, Law as Artifact

Language: polish

Published: Number 4(29)/2021, pp.45-57

DOI: https://doi.org/10.36280/AFPiFS.2021.4.45

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Number of downloads: 257

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International Scientific Conference: Professionalization of the Profession of Mediator: Current State and Perspectives of Changes in the Legal Systems of Poland and Ukraine, Lublin–Łuck–Odessa, 20 May 2021

Dr Paweł Kłos

Maria Curie-Skłodowska University

Language: Polish

Published: Number 4(29)/2021, pp.91-92

DOI: https://doi.org/10.36280/AFPiFS.2021.4.91

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Number of downloads: 99

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Deliberative Legal Education. Reflection on the Relationship Between the University and Legal Culture

Dr Aneta Jakubiak-Mirończuk

Cardinal Stefan Wyszyński University in Warsaw 

English abstract: The university, as an intellectual community and space of research, education and development, shapes the academic culture. The aim of education is to provide law graduates with knowledge – undoubtedly crucial for practicing the profession, but also with competences and skills enabling them to participate in the legal culture. Deliberation is a process in which, through conscious, responsible and cognitively-oriented action, a rational, but also reflective change is possible, taking into account both the preferences of entities and, at the same time, the dynamics of the changing world around them. An organization of the university based on the philosophy of deliberation is in line with the academic tradition based on cognitive autonomy, understood as the right of researchers and students to freedom of learning and teaching.

Keywords: deliberative philosophy, legal education, legal culture

Language: Polish

Published: Number 4(29)/2021, pp.30-44

DOI: https://doi.org/10.36280/AFPiFS.2021.4.30

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Number of downloads: 260

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From ‘Theophrastus Redivivus’ to Du Marais. Origin of Secularization in the Underground Philosophy of Radical Enlightenment in France

Dr Anna Budzanowska

Nicolaus Copernicus University in Toruń

Cracow University of Economics

English abstract: The article describes the sources of anti-religious conceptions in French philosophical literature of Radical Enlightenment, based on secret symbolic manuscripts: Theophrastus Redivivus, Le Militaire philosophe, Lettre d’Hypocrate à Damagatte, La vie de Mahomed, Le traite sur les trois imposteurs, La Moysade and Le Philosophe, and aims to explore the radical approach to religion and faith of the following little-known French libertine thinkers, who were representatives of the so-called philosophie clandestine: B. Fontenelle, N. Malebranche, Y. de Vallone, Delaube, R. Challe, H. de Boulainvilliers. Discoveries related to French underground philosophical manuscripts attract the interest of researchers, changing the ideological picture of the Enlightenment. As it appears, underground thinkers – through the scope and radicalism of their ideas – made a so far unrecognized contribution to the not-so-distant age of encyclopaedism and the French Revolution. The libertine theories born in reaction to monarchical and clerical absolutism conceal contextual political and anti-Christian explicitness. Therefore, analyses of the approach to religion and faith expressed in underground philosophical texts allow us to classify them as anti-systemic. Undoubtedly, a great number of observations and recommendations of the secret philosophers was related to the search for understanding the entirety of human religiosity or to the need to articulate the universality of natural religion. However, French ideological continuators of the underground amateur philosophers, including eighteenth-century academics and encyclopaedists who referred to the underground anti-religious impulse, did not postulate introducing broadly-understood religious tolerance; on the contrary, they formulated theories that enabled the gradual removal of religiosity from the public sphere (laïcité). The article presents the idea of secularism in the radical underground Enlightenment movement and refers to the delayed consequences of said phenomenon, when this idea, considered politically dangerous, reappeared in political debates in the second half of the 19th century, and eventually became la loi fondatrice of the republican France under the 1905 law.

Keywords: manuscrits philosophiques clandestins, philosophie clandestine, libertinism, French Radical Enlightenment, secularism

Language: Polish

Published: Number 4(29)/2021, pp.18-29

DOI: https://doi.org/10.36280/AFPiFS.2021.4.18

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Number of downloads: 229

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Issue 3(28)/2021 of „Archiwum Filozofii Prawa i Filozofii Społecznej” is now available

We invite you to read the latest English issue of “Archiwum Filozofii Prawa i Filozofii Społecznej”, the Journal of the Polish Section of IVR. The issue includes the following papers:

  • Dr hab. Arkadiusz Barut: Departure from the Rule of Law as Consolidation of Biopower: Example of Polish Legislation Justified by Fighting the COVID-19 Pandemic
  • Dr Filip Cyuńczyk: Powrót do przeszłości? O przemianach prawnych mechanizmów regulacji pamięci zbiorowej w Hiszpanii z perspektywy Europy Środkowej
  • Prof. M. Isabel Garrido Gómez: The Systematization of Legal Values around Justice
  • Dr Karolina Gmerek: Identyfikowanie czynności konwencjonalnych w prawie jako proces rozpoznawania ich sensu – wstęp do problematyki
  • Mgr Maksymilian Hau: Heglowska krytyka stanu prawniczego
  • Mgr Konstanty Kuryłowicz: Pojęcie racjonalności i racjonalizacja prawa w pracach Maxa Webera
  • Prof. dr hab. Beata Polanowska-Sygulska: Harmonia i dysonans. Wizje życia etycznego Isaiaha Berlina i Leszka Kołakowskiego.

The issue also includes the text In Memoriam of prof. Tomasz Bekrycht by prof. UŁ dr hab. Mariusz Golecki and report from a X Conference of Young Legal Theorists and Philosophers by dr. Karolina Gmerek.

The issue is available HERE.

Departure from the rule of law as the consolidation of biopower. Example of Polish legislation justified by fighting the Covid-19 pandemic.

Dr hab. Arkadiusz Barut

University of Wrocław

English abstract: Throughout this article the author interprets the crisis of the rule law in Poland in 2020 caused by the phenomenon described as Covid-19 pandemic as the solidification and consolidation of biopower – the contribution of ideas and practices justified by the findings of natural sciences to the disestablishment of paradigms hitherto recognized as fundamental to the creation and application of law, that is the due process of law or its formal justice.

I proceed from the assumption that the creation and application of law must be grounded in phronesis — the Aristotelian prudence, that is the intellectual process of assessment of not only the means but also the goals. Thanks to the discernment of both the goals and the means in the same cognitive act, one gains the opportunity to distinguish individual cases and insight into specific situations. I assume the phronetics of law to justify and at once enable its acquisition of the property referred to as justice in its formal sense — predictability, non-retroactivity, generality of regulation, and so on. If, on the other hand, the law becomes subordinated to paradigms justified with the use of natural sciences, it ceases to fulfil its function. Biopower invades the legal sphere as a discourse of necessity, such a necessity is in itself the very opposite of the fine art of balancing the various competing interests, appreciating the importance of form and ritual, distinguishing the various individual cases.

The purpose of this article is to analyse the impact of the crisis referred to as the Covid-19 pandemic on law and in no way to pronounce on the medical aspects of its proliferation or express a moral or political judgement of the actions justified by the need to contain it.

Keywords: Covid – 19, pandemic, biopower, rule of law, Foucault, Legendre, Agamben

Language: English

Published: Number 3(28)/2021, pp.5-21

DOI: https://doi.org/10.36280/AFPiFS.2021.3.5

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Number of downloads: 226

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