Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Situationist and Normative Concepts of General Clauses. The Context of Differences and Common Grounds

Prof. dr hab. Leszek LESZCZYŃSKI

Maria Curie-Skłodowska University in Lublin

English abstract: The purpose of the study is to analyse the concept of general clause formulated by Józef Nowacki in its basic form in the 1980s. It focuses on several issues that are most important for the shape of the concept. The first is the very notion of a clause as an indeterminate phrase that is part of a legal provision. It corresponds to the crucial components of the situationist concept of the clause – the negation of the referential character of clauses (reference to general norms or values) in favour of treating the clause as an imperative of evaluating, implemented by the law-applying entity in the form of concrete and situational evaluation. The analysis of Nowacki’s concept leads, in the final sections of the study, to a demonstration of its theoretical implications, which, although not within the mainstream, do not prevent the search for common grounds with the normative concept of the clause, negated by the author.

Keywords: general clause, situationist and normativist concepts, reference, imperative of evaluating, situational assessment

Language: Polish

Published: Number 3(36)/2023, s. 66-77.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.66

Download: Download
Number of downloads: 328

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Legal Certainty and the Interpretatio Retro Non Agit Principle

Prof. UŚ dr hab. Agnieszka BIELSKA-BRODZIAK, dr Marek SUSKA

University of Silesia in Katowice

English abstract: Referring to Józef Nowacki’s research on the principle of non-retroactivity of law [lex retro non agit], the authors of this study focus on the relationship between legal certainty and retroactive changes in the prevailing interpretation of legal provisions. The main topic of the study is the expression ‘interpretatio retro non agit‘, which is already well-known in the legal culture, but not widely used. The objectives of the study were: (1) to determine the content related, or potentially related, to the statement above in case law and literature; (2) to examine whether there are grounds to consider this principle as binding in adjudication; and (3) to explain why changes in the prevailing interpretation of legal provisions are perceived as a necessary evil. The research gave the authors a basis to distinguish between two understandings of the interpretatio retro non agit principle: the narrow one and the broad one. Moreover, the broad understanding contains four sub-types of the thus understood principle. The narrow approach prohibits recognizing a change in the prevailing interpretation as a circumstance that would allow legally valid court judgments or final administrative decisions to be challenged. On the other hand, the broad approach introduces a presumption that legal effects should not be ascribed solely because of a change in the prevailing interpretation that occurred after the legal fact took place. Four possible justifications for the interpretatio retro non agit principle were also considered: formal, natural, cultural, and instrumental justification. The authors found that the instrumental justification, which connects the principle with the value of legal certainty, seems to be the most appropriate. However, some elements of the principle can also be convincingly justified formally. Retroactive interpretation changes are only briefly discussed in literature, which the authors regard as an unfavourable state of affairs. However, the fundamental differences between law-making and the application of law allow us to understand that protecting the addressees of the law in practice is much more complicated in cases of applying the law.

Keywords: legal certainty, legal interpretation, consistent line of case law, interpretatio retro non agit, ex post facto laws

Language: Polish

Published: Number 3(36)/2023, s. 51-65.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.51

Download: Download
Number of downloads: 336

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Law and Values Other Than Moral. On Searching for Tropes in Józef Nowacki’s Works

Prof. dr hab. Kamil ZEIDLER

University of Gdańsk

English abstract: In his article, the author asks the question to what extent considerations in the field of axiology regarding the relationship between law and morality can be useful for the development of the legal-philosophical trend known as legal aesthetics, where the subject of interest is, most generally, the relationship between law and beauty. The starting point for reflections is the issue of axiology in the context of the works left by Józef Nowacki, including, first of all, his article “Valuing in the science of law”. Thus, the subject of the article is axiology, but in a sense that covers both ethics and aesthetics. The author distinguishes four types of description used by legal science: normative description, empirical description, theoretical description and – distinguished by the author – axiological description, which can be justified within the framework of axiological subjectivism. It involves evaluating values and either adding or subtracting them, as well as valuing, that is, comparing and weighing values. The author considers what inspiration in this regard can be drawn from axiological inquiries in general, and Nowacki’s works in particular.

Keywords: axiology, values, valuing, law and morality, principles of law, aesthetics, aesthetics of law

Language: Polish

Published: Number 3(36)/2023, s. 44-50.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.44

Download: Download
Number of downloads: 317

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Legality as Compliance with the Intention of the Legislator. The Understanding of Legality in Józef Nowacki’s Works

Prof. dr hab. Zygmunt TOBOR

University of Silesia in Katowice

English abstract: The issue of legality is one of the most important threads in the scientific achievements of Professor Józef Nowacki. He distinguished two ways of understanding legality: a stronger one, which boils down to determining the compliance of behaviour with the contents of a duly enacted provision, and a weaker one, when the only legal basis is an obligation to employ a specific kind of evaluation. In the author’s opinion, Nowacki’s idea does not adequately take into account the fundamental problems with determining the meaning of a legal provision, i.e., problems of interpretation. The proposition that legality means compliance with the contents of a provision transfers the burden of making findings in this respect onto the subject interpreting it. The author discusses two approaches to statutory interpretation, i.e., the eclectic approach, in which there is no universal criterion for the correctness of interpretation, and the categorical approach, in which it is assumed that such a criterion exists. He points out that only a categorical approach can be reconciled with the idea of the rule of law and the role of judges as faithful agents of the legislator. Therefore, he proposes that compliance with the intention of the legislator should be taken as a criterion for the correctness of the interpretation. When legality is approached this way, the need to distinguish its stronger and weaker versions disappears. The qualification of a behaviour as legal or illegal will be based on the criterion of compliance with the intention of the legislator.

Keywords: legality, rule of law, statutory interpretation, intention of the legislator

Language: Polish

Published: Number 3(36)/2023, s. 34-43.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.34

Download: Download
Number of downloads: 306

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

An Ideal of Scientific Jurisprudence. Józef Nowacki Against Ideological Influences on Jurisprudential Claims

Prof. dr hab. Tomasz PIETRZYKOWSKI

University of Silesia in Katowice

English abstract: Methodological assumptions underpinning Józef Nowacki’s research were one of the most original and intriguing aspects of his approach to legal theory. An extremely rigorous conception of what kind of legal claims may be regarded as scientific can be reconstructed based on his various writings about legal norms, general clauses, dispositive provisions of law, legal principles or the practical application of the constitutional notion of the rule of law. His relentless efforts to uncover and eliminate from scientific discourse any evaluative judgments served to defend legal theory against ideological influences and subjective wishful thinking disguised as scientific claims. In these respects, it not only was an unquestionably valuable position then, but it remains so nowadays. At the same time, it begs numerous questions and doubts that still permeate central methodological debates in jurisprudence.

Keywords: law, methodology, valuing, legal theory, science

Language: Polish

Published: Number 3(36)/2023, s. 22-33.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.22

Download: Download
Number of downloads: 327

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Issue 2(35)/2023 „Archiwum…” is now available

We invite you to read the latest English issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”. The issue includes the following texts:

  • Mgr Bartłomiej BODZIŃSKI-GUZIK: The ‘Theatrical’ in Public Participation: How Can Theatre Contribute to Citizens’ Engagement in Legislative Development?
  • Prof. UMK dr hab. Łukasz DOMINIAK: Proceeds of Crime, Punishment, and Libertarianism
  • Dr Bartosz JANIK: An explanatory framework for legal grounding
  • Prof. dr hab. Joanna MISZTAL-KONECKA: Separate and Dissenting Judicial Opinions and Their Significance for a Democratic Society. Reflections Against the Background of Polish Law
  • Mgr Katarzyna RUŻYCZKA: Should Judges Be Empathic? The Place of Judges’ Empathy in Therapeutic Jurisprudence
  • Mgr Wojciech RZEPIŃSKI: Ascription of content to provisions of the law by judicial practice. Theoretical analysis of the Polish Constitutional Tribunal’s judgments
  • Dr Magdalena WOJDALA: Non-textual elements in judicial opinions: overview

The issue is available HERE.

Call for Papers: General English Issue – 30.11.2023

“Archiwum Filozofii Prawa i Filozofii Społecznej”, Journal of the Polish Section of the IVR, is open for submissions for its forthcoming general English issue, which will be published as one of issues during 2024 year. Submitted papers may cover all topics falling within the scope of the journal, including legal theory, philosophy of law, sociology of law, social philosophy, political philosophy and legal ethics. However, the subject of the text should be of interest to an international reader.
Papers should be written in English and should not be longer than 45.000 characters (spaces and footnotes included). Together with the paper please send us the author form and author declaration form. The forms, together with important information on the editing and the review process, can be found HERE. We encourage non-native English speakers to proofread the text before submitting it to the journal. The papers should be sent to archiwum@ivr.org.pl. The deadline for the submission is November 30, 2023.

Proceeds of Crime, Punishment, and Libertarianism

Łukasz Dominiak

Nicolaus Copernicus University in Toruń, Poland

English abstract: In his recent publication, Walter Block claims that disgorgement of indirect proceeds of crime is incompatible with libertarianism. The present paper argues that Block’s claim is incorrect. In support of this position two general arguments are offered. The first one builds on the distinction between restitution and punishment, showing that forfeiture of assets derived indirectly from crime would not – contra Block – result in unequal punishment under retributive justice. The second one refers to libertarian principles of distributive justice and demonstrates that indirect proceeds of crime are owned by the aggrieved parties. Put together, these arguments conclusively show that the idea that indirect proceeds of crime should be forfeited is compatible with libertarianism.

Keywords: proceeds of crime, libertarianism, restitution, punishment

Language: English

Published: Number 2(35)/2023, pp. 20-33.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.20

Download: Download
Number of downloads: 271

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

An Explanatory Framework for Legal Grounding

Bartosz Janik

University of Silesia in Katowice, Poland

English abstract: The objective of this article is to provide an explanatory framework for legal grounding. Grounding, understood in recent years as a metaphysical determination, has proved to be a fruitful object of inquiry for legal theorists trying to explain the thesis about the relationship between social facts and legal facts in metaphysical terms. However, the debate on the use of the notion of grounding in the philosophy of law lacks a concise and precise differentiation of the various assumptions behind grounding that philosophers have recently discussed. This article offers a prospect for analysis of a debate about grounding of legal facts and an interpretation of focal terms in light of recent metaphysical debates.

Keywords: grounding, explanation, philosophy of law, legal facts, social facts

Language: English

Published: Number 2(35)/2023, pp. 34-42.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.34

Download: Download
Number of downloads: 307

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.