Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

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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Number of downloads: 328

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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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Number of downloads: 323

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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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Number of downloads: 340

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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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Number of downloads: 253

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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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Number of downloads: 282

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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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Number of downloads: 387

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Issue 3(36)/2023 „Archiwum…” is now available

Welcome to the English-language issue 3(36)/2023 of the „Archiwum Filozofii Prawa i Filozofii Społecznej”. The issue is titled: „Between Legal Theory and Ideology” and is dedicated to the thought of Prof. Józef Nowacki on the centenary of his birth and on the twentieth anniversary of the publication of a collection of his writings titled „Studies in the Theory of Law”. The issue includes the following texts:

  • Prof. UŚ dr hab. Sławomir TKACZ: Between Legal Theory and Ideology. Introduction
  • Prof. dr hab. Józef NOWACKI: Normative and Situationist Conception of General Clause of the Principles of Community Coexistence
  • Prof. dr hab. Tomasz PIETRZYKOWSKI: An Ideal of Scientific Jurisprudence. Józef Nowacki Against Ideological Influences on Jurisprudential Claims
  • Prof. dr hab. Zygmunt TOBOR: Legality as Compliance with the Intention of the Legislator. The Understanding of Legality in Józef Nowacki’s Works
  • Prof. dr hab. Kamil ZEIDLER: Law and Values Other Than Moral. On Searching for Inspiration in Józef Nowacki’s Works
  • Prof. UŚ dr hab. Agnieszka BIELSKA-BRODZIAK, dr Marek SUSKA: Legal Certainty and the Interpretatio Retro Non Agit Principle
  • Prof. dr hab. Leszek LESZCZYŃSKI: Situationist and Normative Concepts of General Clauses. The Context of Differences and Common Grounds
  • Prof. UŚ dr hab. Sławomir TKACZ: Situationist and Normative Concepts of General Clauses. Disputes About the Accuracy of Two Approaches to General Clauses in the Light of Józef Nowacki’s Views

The issue is available HERE.

Normative and Situationist Conception of General Clause of the Principles of Community Coexistence

Prof. dr hab. Józef NOWACKI (1923–2005)

University of Silesia in Katowice

English abstract: Polish law uses the general clause of the principles of community coexistence. In the legal literature, the concept of principles of social coexistence is understood in various ways. Some people understand the principles of social coexistence in a normative way, associating with them a set of norms to which these clauses refer. Others perceive them situationistically, which means the right to make an assessment in a particular case under consideration. The author argues that the source of controversy in this regard is the unconscious adoption of different understandings of morality. Due to this, the use of each of these understandings (normative and situationist) is legitimate in equall way. For this reason, disputes about the normative and situationist understanding of the principles of social coexistence are empirically unsolvable.

Keywords: Józef Nowacki, general clause, situationalist and normativist conception, the principles of community co-existence

Language: Polish

Published: Number 3(36)/2023, s. 9-21.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.9

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Number of downloads: 365

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Situationist and Normative Concepts of General Clauses. Disputes About the Accuracy of Two Approaches to General Clauses in the Light of Józef Nowacki’s Views

Prof. UŚ dr hab. Sławomir TKACZ

University of Silesia in Katowice

English abstract: The aim of the study is to analyse Józef Nowacki’s views on the characteristics of general clauses. The author focuses on the most important issues that are the subject of disputes in legal scholarship. In particular, the subject of considerations is the situationist and normative concepts of general clauses as these concepts are understood by Józef Nowacki. In the first part of considerations, the author addresses the issue of vagueness (fuzziness) of general clauses. The main part of the considerations relates to the understanding of general clauses as references in the light of their situationist and normative understanding. In the last part of the considerations, the author analyses the problem of the objects to which general clauses refer. In the light of the presented considerations, the general conclusion is that each general clause may be applied in a situationist or normative manner. In the latter case, we can speak of a reference to a certain set of norms. It is also appropriate to speak about nontextual references. The proposed terminology is the result of the convention adopted by each individual author.

Keywords: Józef Nowacki, general clause, situationalist concept of general clauses, normative concept of general clauses, reference, legal requirement of evaluating

Language: Polish

Published: Number 3(36)/2023, s. 78-92.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.78

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Number of downloads: 336

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