Redakcja (Mateusz Pękala)

Separate and Dissenting Judicial Opinions and Their Significance for a Democratic Society. Reflections Against the Background of Polish Law

Joanna Misztal-Konecka

John Paul II Catholic University of Lublin, Poland

English abstract: In most legal systems, the administration of justice in complex and difficult cases is, entrusted to panels composed of multiple judges. In practice, rarely does it happen that this designated group of judges is required to reach a unanimous decision. The subject under scrutiny in the article is the issue of the possibility and significance of disclosing the fact that the judgment was not reached unanimously, along with the rationale that the judge(s) pursued in opposing the majority position. The analysis of this issue requires reaching not only for the legal dogmatic method, but also the legal comparative and axiological methods. The presented research leads to the conclusion that legislators (although not in all countries and not in all international organizations) are increasingly open to allow for the disclosure to the parties and the public of the fact that not all judges voted for a particular decision, along with the reasons for the dissenting position. Despite several objections to the institution of dissenting opinion (votum separatum) connected with undermining the authority of the court and the judgment issued, it turns out that democratic society, which values transparency and the power of substantive arguments, approves of this institution. Dissenting opinion safeguards the judge’s right to express their view, as well as the right of the parties and the public to know the reasons for an alternative solution, including their creative use for the benefit of the judiciary and legal science. Consequently, one can claim that dissenting opinions and the reasons for them constitute a crucial factor in shaping the perceptions of justice.

Keywords: dissenting opinion, democratic society, administration of justice, authority of judicial decisions, justification of the acts of applying the law

Language: English

Published: Number 2(35)/2023, pp. 43-52.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.43

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Number of downloads: 270

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

Should Judges Be Empathic? The Place of Judges’ Empathy in Therapeutic Jurisprudence

Katarzyna Rużyczka

Jagiellonian University in Kraków, Poland

English abstract: Therapeutic jurisprudence (TJ) has had a influence on the judiciary and legal practice given the emergence of special courts, the so-called problem-solving courts. As understood by David B. Wexler, TJ is an approach that combines experience from many scientific fields, constituting an interdisciplinary field of research that focuses on the therapeutic and antitherapeutic consequences of laws, legal procedures, and the roles and behaviours of legal actors such as lawyers and judges. The role that they play during a trial is particularly emphasized
in this theory in the context of causing both positive and negative consequences for those participating in the trial. The first purpose of this paper is to reconstruct the understanding of empathy and its role in the therapeutic jurisprudence, and to show how the concept of empathy is understood in the context of a judge’s work, particularly in relation to main TJ authors, David B. Wexler and Bruce J. Winick.

Keywords: judicial empathy, therapeutic jurisprudence, judges, empathy

Language: English

Published: Number 3(35)/2023, pp. 53-64.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.53

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Number of downloads: 369

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Ascription of Content to Provisions of the Law by Judicial Practice. Theoretical Analysis of the Polish Constitutional Tribunal’s Judgments

Wojciech Rzepiński

Adam Mickiewicz University in Poznań, Poland

English abstract: The article examines the way in which the Polish Constitutional Tribunal operates, which involves replacing its own process of interpreting the provisions under review by accepting the interpretation of another court. The objective of the article is to provide a theoretical account of the Polish Constitutional Tribunal’s conduct to the readers. Therefore, the concepts developed at the Poznan School of Theory of Law are used, namely the distinction between a provision of the law and a legal norm, as well as a distinction between pragmatic and nonpragmatic interpretation. The role of the metatheory used to analyse the Tribunal’s conduct is also played by Robert B. Brandom’s analytic pragmatism. Analytic pragmatism allows the conclusion to be drawn that, through its activity, the Tribunal indicates 1) what an agent must do (within the legal practice) for the vocabulary of normative acts to mean something (PV-sufficiency), and 2) what vocabulary is sufficient to define those practices (VP-sufficiency). The practice of applying the law can be described with the use of the TOTE concept (Test-Operation-Test-Exit). In this case TOTE cycles are open-ended. Therefore, in its further practice, the Tribunal might indicate further practices-or-abilities which are sufficient for the vocabulary of normative acts to mean something.

Keywords: judicial practice, Constitutional Tribunal, analytic pragmatism, provision of the law, legal norm, application of the law

Language: English

Published: Number 2(35)/2023, pp. 65-76.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.65

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Number of downloads: 356

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Non-textual Elements in Judicial Opinions: Overview

Magdalena Wojdala

Jagiellonian University in Kraków, Poland

English abstract: The objective of the article is to present the practice of using non-textual elements in judicial opinions, as well as to explain the need for a new term and the way in which it was created. In order to do so, several questions have been addressed. First, the elements actually used in judicial opinions are specified. Next, the reasons why terms such as image or visual material cannot adequately describe the phenomenon in question are presented and reasons are offered for the creation of a new term. What the elements have in common is then outlined and the concept of non-textual elements in judicial opinions is introduced. An examination of whether distinguishing this category means that these elements can be treated as a homogeneous group is then presented. Finally, whether the presence of such elements in judicial opinions is new in legal reality is considered and, if so, what their significance is to the functioning of judicial opinions.

Keywords: judicial opinion, non-textual elements, images

Language: English

Published: Number 2(35)/2023, pp. 77-87.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.77

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Number of downloads: 439

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The ‘Theatrical’ in Public Participation: How Can Theatre Contribute to Citizens’ Engagement in Legislative Development?

Bartłomiej Bodziński-Guzik

Jagiellonian University in Kraków, Poland

English abstract: The paper is devoted to the notion of public participation and an attempt to propose a slightly different understanding and approach to this than usual. The author acknowledges the potential of theatrical methods, especially the proposal of A. Boal, the Legislative Theatre, whereby the theatre is used to create proposals for legislation, bringing additional value to the participation process. The LT is a point of reference, but the following reflections refer to theatre and performance in a more general sense. The article focuses on the corelations between theatre and different relevant fields of social activity to determine and present potential benefits of using theatre in the process of participation. It is to present a preliminary review of relevant ideas that can stimulate future reflection about theatricalizing participation, rather than presenting a direct and comprehensive proposal.

Keywords: public participation, law, community, politics, legislative theatre, therapy, protest

Language: English

Published: Number 2(35)/2023, pp. 5-19.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.5

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Number of downloads: 377

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