Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

Issue 1(38)/2024 of the „Archiwum…” is now available

Welcome to the issue 1(38)/2024 of the „Archiwum Filozofii Prawa i Filozofii Społecznej”. The issue includes the following texts:

Articles:

Articles:

Prof. dr hab. Andrzej BATOR
Beata Polanowska-Sygulska, Harmonia i dysonans. Wokół rozmów z filozofami oksfordzkimi. Remarks about the Book

Dr Hanna DĘBSKA
A Scholar’s Career and Idea Generation Under Conditions of Fundamental Structural Changes. About Leon Petrażycki Once Again

Prof. dr hab. Jolanta JABŁOŃSKA-BONCA
Changes in the Shell of Legal Culture on the Example of Remote Hearings. An Outline of the Problem

Dr Jędrzej JANICKI
Hermeneutical Elements in the Derivational Model of Legal Interpretation

Dr Michał SŁUŻALEC
State Commission for Counteracting Sexual Abuse of Minors under the Age of 15 as a Form of Satisfying the Sense of Public Justice

Dr hab. Andrzej STOIŃSKI
An Analysis of the Distribution of Rights and Duties in Communities in the Face of Complex Compensatory Correlation

Recenzje:

Mgr Karol STAŚKIEWICZ
Wojciech Zomerski, W kierunku demokratycznej nauki prawa? Dogmatyka, edukacja, postanalityczność [Towards a democratic science of law? Dogmatics, education, postanality], Warszawa 2023, ss. 383

The issue is available HERE.

Intentional Character of the Interpretation of the Holy Scripture and the Interpretation of Law

Mgr Paweł T. SKOCZYKŁODA

University of Silesia in Katowice

English abstract: The article aims to compare the process of interpreting law with that of interpreting the Holy Scripture. The study focuses on the issue of the interpretative approach adopted for interpretation in both above-mentioned branches of study. An appropriate interpretative approach determines the meaning of the text, which presupposes its correct interpretation. As part of the study, an analysis is undertaken of the interpretative assumptions, expounded in legal scholarship, which assumptions underlie the process of legal interpretation. The concept of interpretation of the sacred text that is recognized in biblical hermeneutics is presented. It turns out that despite the fact that law and the Bible are obviously different from each other, both legal theory and biblical hermeneutics were developed and largely based on the same concept of interpretation – intentionalism – identifying the meaning of utterances with meaning intended by the author of the statement. The conducted analysis enables formulating a general conclusion that only intentionalism makes it possible to discover the full and proper sense of the analyzed utterance.

Keywords: interpretation, statutory interpretation, exegesis, Holy Scripture, intentionalism, textualism

Language: Polish

Published: Number 4(37)/2023, pp. 98-110

DOI: https://doi.org/10.36280/AFPiFS.2023.4.98

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A Statistical Picture of the Difficulty of Law

Mgr Mikołaj RYŚKIEWICZ

University of Warsaw

English abstract: The incomprehensibility of law is no secret, but the depth of this incomprehensibility has remained insufficiently explored. Previous studies have supported quantitative aspects either superficially or without delving into their method. This work aims to expand the toolkit for analysing legal language in terms of its comprehensibility and demonstrate the results of using these tools. Dozens of Polish laws selected for the study were fully processed and analysed using the Jasnopis application. The results were then reviewed and analysed in the context of linguistic and social studies. The analyses: (1) confirm the profound incomprehensibility of legal language, regardless of the yardstick used; (2) quantify this incomprehensibility in relation to general Polish, providing a picture of how remote legal language is from reality; (3) point to the intrinsic peculiarity of legal language, as manifested in the variation of intelligibility and morphological parameters depending on the branch of law; (4) reveal the potential in studying legal language with indicators other than those commonly used. The research opens
up the field for a broader-than-before discussion of the communicative quality of legislation and, thanks to the context of general Polish, helps outline the socially relevant consequences in the form of linguistic alienation of law recipients.

Keywords: legal language, incomprehensibility of law, nominal style, jurislinguistics

Language: Polish

Published: Number 4(37)/2023, pp. 79-97.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.79

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The Question of Existence of Norms

Prof. dr hab. Wojciech PATRYAS

University of Szczecin

English abstract: First of all, the subject of deliberation are norms understood as expression-types. Such a norm exists, because its quotational proper name is not an empty name. This means that the said norm belongs to the universe of appropriate metalanguage. In other words, this norm is a value of a bound variable of that language. Therefore, there exist not only norms understood as expression-types, but also norms understood as expression-tokens, norms understood as the meanings of expressions, and norms understood as ordered pairs. Moreover, norms understood as expression-tokens exist spatiotemporally because they are things. Meanwhile neither norms understood as expression-types nor norms understood as meanings of expressions, nor norms understood as ordered pairs exist in space or in time, because they are abstract objects. Besides, no norm exists intentionally.

Keywords: norm, to exist, to exist spatiotemporally, to exist intentionally

Language: Polish

Published: Number 4(37)/2023, pp. 68-78.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.68

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Religious-Only Marriages in the Case Law of Ordinary Courts in Poland. Qualitative Content Analysis of Judgment Justifications Published Online

Mgr Anna JUZASZEK

Doctoral School of Social Sciences, Faculty of Law and Administration, Jagiellonian University in Kraków

English abstract: In some Western European countries, for a few years now there has been an intense debate concerning the phenomenon of religious-only marriages, solemnized through a religious ceremony. From the perspective of state law, such religious spouses are treated as cohabitees, which places certain limitations on their rights and obligations compared to married couples recognized by state law. In Poland, there is no ongoing discussion on this matter. Furthermore, there are no data regarding the frequency of such relationships, if any. The main objective of this article is to partially address this gap and initiate a discussion. To achieve this, exploratory research was conducted by analysing judgment justifications available online, focusing on cases where the couples were in exclusively religious marriages. Selected justifications underwent qualitative content analysis using MAXQDA software to gain insights into how judges and other participants in the proceedings approach this type of relationship. Another aim of the article is to highlight the legal challenges that religiously married spouses might encounter and to explore potential solutions in this regard. The research indicates that the marriages in question generally did not elicit consternation or negative attitudes in the analysed cases. On the contrary, both judges and participants in the proceedings typically did not question the significance, depth, and permanent character of family bonds formed through religious-only marriages. However, this approach is not reflected in current legislation, which differentiates the rights and obligations of individuals in intimate relationships based on whether a civil marriage has been contracted, often disregarding the actual nature of the relationship.

Keywords: marriages, religious-only marriages, qualitative content analysis, judgment justifications

Language: Polish

Published: Number 4(37)/2023, pp. 54-67.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.54

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The Outline of Populist Constitutionalism

Mgr Jakub HUDSKÝ

University of Wroclaw

English abstract: The aim of this article is to present the assumptions of the populist constitutionalism in view of the unwavering support for populist groups and the related beliefs, resulting in irreversible changes in the perception of democratic reality. The starting point is an attempt to grasp the essence of populism and describe its elementary features. Populism is often defined in opposition to liberal thought and is analysed on two plans – the ideological and pragmatic one. An analysis of both of these elements makes it possible to indicate the political concept of populist democracy, the implementation of which is the goal of populists who achieve power. The assumptions of populist democracy are based on the implementation of the unfettered and current will of the people; at the same time, this concept perceives reality in an agonistic way – it is aware of the political necessity of all elements of public space, which make up the arena for the constantly clashing opposing interests. The above theses create a perspective through which one should look at the phenomenon of populist constitutionalism. There is no doubt that its starting point will be putting into practice populist beliefs and assumptions of populist democracy. Populist constitutional discourse, striving to implement the will of the people, does not reject the liberal institutions that have been in force so far. On the contrary, this phenomenon takes advantage of the hitherto achievements of constitutionalism and strives to transform them in such a way that – at least in principle – the will of the people can be implemented in the most unrestricted way possible. The final part of the reflections concerns the approach of populism to the constituent power, i.e., the power that enables the adoption and amendment of the constitution. It might seem that ‘legalizing’ the constituent power (e.g., in the form of an imperative mandate or popular referenda) would lead to the expansion of the power of the people, but populists do not seem to share this position. They point out that establishing a procedure which allows for additional expression of the will by citizens actually constrains their movements. Formal restrictions (e.g., the minimum number of signatures required) can often thwart the popular initiative.

Keywords: populist constitutionalism, populism, law, illiberalism, constituent power

Language: Polish

Published: Number 4(37)/2023, pp. 40-53.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.40

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On the Origin of Legal Interests in a Liberal Criminal Law System. Preliminary Remarks

Dr Ewa GRZĘDA

Institute of Law, Economics and Administration of the University of the Commission of National Education in Kraków

Dr Maciej JUZASZEK

Center for Legal Education and Social Theory of the University of Wrocław

English abstract: The article tries to answer the legal-philosophical problem underlying the continental theories of criminalization, i.e., what the reasons are for the legislator establishing a specific catalogue of interests protected by law. To answer this question, the authors first outline what characterizes continental criminalization theories (as opposed to common law ones), and then present two basic types of theories justifying the legislator’s choice of legal interests: systemicinherent and system-transcendent theories. Within the systemic-transcendent type, the authors distinguish three potential theories: a systemic-transcendent social theory, a systemictranscendent moralistic theory, and a systemic-transcendent disintegrative theory. Against each of them, however, the authors find serious disqualifying arguments, which eventually makes them argue that the answers to the research question posed above should be sought among system-inherent theories.

Keywords: legal interests, criminalization, philosophy of criminal law

Language: Polish

Published: Number 4(37)/2023, pp. 27-39.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.27

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On the Different Understanding of the Legislative Intent in the Anglo-Saxon Discourse. Analysis of the Views of Stanley Fish, Larry Alexander, Jeffrey Goldsworthy, Richard Ekins, and Victoria Nourse

Mgr Paweł A. BOIKE

“Rerum Socialium” Interdisciplinary Doctoral School of Social Sciences,
Nicolaus Copernicus University in Torun

English abstract: The intention of the legislature, as a constitutive concept for intentionalism, is understood very differently by representatives of this trend and not only by them. The aim of this study is to familiarize the Polish reader with how intentions are understood by five authors: Stanley Fish, Larry Alexander, Jeffrey Goldsworthy, Richard Ekins, and Victoria Nourse, as well as to conduct a comparative analysis of their views. This involves the use of a theoretical method consisting in the description of concepts and an attempt to compare them. In the light of the findings, it should be emphasized that Victoria Nourse’s views are more in line with the assumptions of purposivism than intentionalism. Stanley Fish and Larry Alexander represent a radical variety of intentionalism, on whose basis, due to radical ontological assumptions, it is not possible to build any methods of interpretation capable of practical application. Not so with Jeffrey Goldsworthy and Richard Ekins, who assume that the legislature acts in accordance with “simple common sense”.

Keywords: interpretation, intention, intentionalism, purposivism, originalism

Language: Polish

Published: Number 4(37)/2023, pp. 15-26.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.15

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Friedrich A. Hayek’s Evolutionary Concept of Law: Essence and Topicality

Jakub AUGUSTYNIAK

University of Warsaw

English abstract: The paper aims to present the concept of law proposed by F.A. Hayek in Law, Legislation and Liberty. Hayek’s theory is subsequently compared to G. Radbruch philosophy of law, mainly because of the significant difference in both thinkers’ intellectual backgrounds (i.e., liberalism and socialism). The Austrian philosopher’s theory is identified as a so-called third way proposal, an attempt to demonstrate lack of antagonism between positivism and legal naturalism. This thesis results from the fact that this theory is based on the dichotomy
between two sources of law in the form of established social practice subsequently sanctioned by the sovereign, referred to as nomos, and thesis in the form of legal instruments adopted by competent authorities. The first kind are correlated with private law in the broad sense, which law emerged from the activity of individual members of the society. The second kind should only establish norms to enable the state to operate and to safeguard nomos.

Keywords: nomos, thesis, philosophy, law, justice, society

Language: Polish

Published: Number 4(37)/2023, pp. 5-14.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.5

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