On the Difference Between a Strong and Weak Version of the Idea of an Internal Point of View

Dr Paweł Jabłoński

The University of Wrocław

English abstract: This article aims to theoretically expose the claim that the choice between framing the activity of courts in hard cases as “purely political” or “purely juridical” activity is a false choice. I achieve this goal in the following way. First, I introduce the notion of an epistemic account of the internal point of view, which is linked to the conditions of legal cognition. Then I propose a distinction between a strong and weak account of the internal point of view so understood. Such criteria as the autonomy of the law, the relevance of the subject factor in the application of the law, or the arguability of the content of the law play a fundamental role here. Next, I provide a more detailed characterization of the strong view of the internal point of view and the weak one. I try to show that a sharp line between what is legal and what is political is possible only with the adoption of a strong account of the internal point of view. At the same time, I give reasons why such an account of the internal point of view should be rejected. In the concluding section, I briefly summarize the most important findings.

Keywords: internal point of view, legal cognition, Hart

Language: Polish

Published: nr 4(41)/2024, pp. 19-35.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.19

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Number of downloads: 246

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In Search of the Nomos of Law. Classical Interpretations and New Challenges to the Autonomy of Law

Dr hab. Maciej Pichlak, prof. UWr

The University of Wrocław

Dr Mateusz Wojtanowski

The University of Wrocław

English abstract: The aim of this article is to expose the concepts of the autonomy of law and, more primary, the nomos of law, together with the problems that these concepts imply. Contemporary challenges of legal practice and legal science, such as crises of the rule of law or the juridification of successive spheres of social life, call for a re-positioning and rethinking of the question of the autonomy of law. As the article points out, the discussions around these challenges can be read as disputes about the nomos of law – its possibility, nature and location. In this vein, the article analyses the concept of the nomos of law and then, with reference to Carl Schmitt’s interpretation of this notion, addresses the question of the possibility of the autonomy of law. The article also reconstructs the basic theoretical positions on the nature of the nomos of law and the autonomy of the legal order, with particular reference to the output of the Wrocław school of legal theory and philosophy of law in this area. Against this background, selected current challenges to the autonomy of law are considered.

Keywords: Autonomy of law, nomos of law, Wrocław school of legal theory and philosophy of law, Włodzimierz Gromski, crisis of autonomy of law, Carl Schmitt

Language: Polish

Published: nr 4(41)/2024, pp. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.5

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Number of downloads: 245

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Emmanuel Jeuland, Theories of Legal Relations, Cheltenham, Northampton 2023. A Review

dr hab. Marzena Kordela, prof. UAM

Adam Mickiewicz University, Poznań

Keywords: review, Emmanuel Jeuland, Marzena Kordela.

Language: English

Published: 2(39)/2024, pp. 101-108.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.101

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Number of downloads: 176

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Hard to Explain? – Abductive Reasoning in Legal Factual Inferences

mgr Bartosz Wielochowski

Freelance researcher

English abstract: The purpose of the article is to apply the concept of abductive reasoning in the description and evaluation of legal inferences about facts. The reflection is conducted in the field of philosophy of law and methodology of science. Based on a critical analysis of the literature I present both Charles Sanders Peirce’s inferential theory of abduction and Peter Lipton’s ‘inference to the best explanation’ (IBE) theory. In colloquial philosophical discourse those terms are sometimes used interchangeably. I argue that, although it is a significant simplification, IBE in principle fits into the broad meaning of abduction which I adopt in the present article. Using the work of Mariusz Urbański and Atocha Aliseda I apply IBE to the explanatory-deductive model of abduction. I utilize abduction understood in this way in the field of law. Based on the review of Polish philosophical and legal literature and the results obtained from the LEX database I show that the concept of abduction is unpopular in the legal doctrine. The main thesis is that abduction in the broad sense offers a significant value added in the description of non-deductive inferences and provides more precise criteria for assessing the quality of reasoning than concepts existing in Polish legal doctrine regarding non-deductive inferences. In the same time it exhibits essential features of those concepts. The analysis allows to examine and determine the relationship between the theories of abduction, IBE and the concepts found in Polish philosophical literature and legal doctrine. Its conclusions allow to introduce these new concepts into the philosophical and legal debate and – also – to describe and evaluate legal non-deductive inferences about facts in a more plausible way. The result gives hope for the methodological strengthening of both the process of making factual findings and the assessment of evidence.

Keywords: abduction, inference to the best explanation, IBE, legal abduction, abduction in fact finding.

Language: English

Published: nr 2(39) 2024, pp. 81-100.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.81

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Number of downloads: 289

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The Scale and Diversity of References to Emotion in Polish Case Law on Personal Injury

dr Julia Wesołowska

Jagiellonian University in Krakow

English abstract: This article is intended as a systematic, quantitative study of the occurrence of emotion-related terms in the discourse of Polish case law on personal injury. My purpose is to show the scale (prevalence) and range (variety) of references to terms related to feelings and affect in the decisions of Polish courts, and to compare this data with rudimentary psychological nomenclature. I am interested not only in how often Polish courts refer to affective phenomena in general, but also how they distinguish various kinds of emotions and, to some extent, what role they assign to them in their reasoning about personal injury. This data is placed in the context of basic psychological models. This is supplemented by preliminary remarks on what roles most notable emotions fulfill, aiming at creating a rudimentary taxonomy of emotions in Polish case law on personal injury. In this way the study aims to answer the questions whether Polish courts notice emotions while adjudicating on non-pecuniary harm, what range of emotions they refer to, and how this data shows the perceived function of affect-related terms in case law. In short, the aim of this article may be described as drawing up a tentative “map” of the affective legal terrain, as well as a taxonomy of functions that emotions may play in personal injury law.

Keywords: Law and Emotion, civil law, emotions, tort law, Polish law, non-pecuniary harm, damages.

Language: English

Published: nr 2(39) 2024, pp. 59-80.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.59

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Number of downloads: 186

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Metaphysical Vagueness, Identity of Legal Cases, and the Rule of Law

mgr Zdeněk Trávníček

Masaryk University in Brno (Czechia)

English abstract: This paper proposes an approach to scientific biography from the perspective of Pierre Bourdieu’s theoretical project. The choice of Leon Petrażycki (1867–1931), a philosopher and sociologist of law, who might be called an icon of the philosophy of law in Poland, results from the fact that his trajectory gives an insight into the interesting processes taking place in the scientific field, as well as in other social fields at the turn of the century up to the 1930s. Thus, L. Petrażycki is a ‘special case of what is possible’, a ‘product’ of the era. An era marked, on the one hand, by strong geopolitical divisions, corresponding to unequal flows of ideas between national scientific fields, on the other hand, characterized by high fluidity of the boundaries of social fields (science, journalism, politics), between which (up to a certain point) L. Petrażycki adroitly ‘moves’. Petrażycki’s trajectory is also interesting research-wise, as it reveals the influence of social structures on scientific positions occupied and positions takings in discourse. Furthermore, it shows how scientific failure is sublimated. Therefore, the article complements previous perspectives and is programmatic in that it can inspire similar endeavours in the future.

Keywords: rule of law, vagueness, Leibniz law, vague identity, legal indeterminacy, metaphysical vagueness, legal cases.

Language: English

Published: nr 2(39) 2024, pp. 44-58.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.44

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Number of downloads: 178

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Reconstruction of the Concept of Interpretative Juristic Presumption

mgr Kaja Ptak

Jagiellonian University in Kraków

English abstract: Juridical presumptions, including interpretative juridical presumptions, have not been elaborated on in detail in theoretical and legal terms, although they are an interpretative tool often used in jurisdiction and literature. Recently there has been a revival of the discussion on the presumption of constitutionality (conformity with the constitution) of laws (statutes). Another example of an interpretative juridical presumption is the presumption of rationality of the legislator, based on the assumption of rationality of the legislator elaborated in the 1970s by Leszek Nowak and Jerzy Wróblewski. A comparative analysis of interpretative juridical presumptions with institutions such as legal presumptions and legal fictions allows to reconstruct the most important features of the former in terms of their structure and functions, and this in turn will allow to claim that interpretative juridical presumptions are directly referred to by the authorities applying the law in difficult cases in which it is impossible to complete the interpretation process without taking into account the basic values of the legal system, not directly expressed in this system or only sketched at the level of constitutional standards. Due to the special role that interpretative juridical presumptions play in the process of interpretation, their law-making function may be also discussed.

Keywords: legal presumption, juristic presumption, interpretative juristic presumption, legal interpretation

Language: Polish

Published: Number 1(38)/2024, pp. 34-43

DOI: https://doi.org/10.36280/AFPiFS.2024.2.34

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Number of downloads: 196

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Critical Analysis of the Hypothesis About the Usefulness of the Idea of Conceptual Metaphor in the Interpretation of Law

dr hab. Robert Piszko, prof. US

University of Szczecin

English abstract: Since George Lakoff and Mark Johnson published a book entitled Metaphors We Live By, metaphors and their role in everyday life have been recognised. Metaphor has henceforth ceased to be a means only of poetic imagination and rhetorical embellishment. It began to be seen also as a form of human thinking, a tool of cognition. Metaphor began to be seen in areas of life where it had hitherto been absent. These areas included law. However, the enthusiasm of authors who see the great role of metaphorical imagery in law is not justified. An analysis of the examples of metaphors in legal texts given in scientific studies indicates too much freedom in qualifying certain expressions as metaphors and seeing their role or usefulness where there is none – that is, also in legal texts and in the interpretation of law. Metaphors are mistaken for phraseological compounds and for previously metaphorical expressions that have permanently lost this character as a result of conventionalization or lexicalisation. The potential effect of adopting a cognitivist perspective has previously been otherwise achieved in the legal sciences at the expected level. The results indicated as possible with the tools of cognitive science are nothing new, and the possibility of achieving them is either debatable or impossible. The conceptual metaphor, on the other hand, can play an important role when it comes to the justification of judicial or administrative decisions, the content of law textbooks, statements of doctrinal representatives with regard to the law Using the language of cognitive science, the radial structures of legal and ethical concepts can more promisingly be made the subject of research, which can enable the coexistence of humans and artificial intelligence. The research material was mainly investigated using the method of linguistic analysis.

Keywords: metaphor, phraseological association, conceptual motivation, radial structures, legal reasoning, legal cognition, interpretation of law

Language: Polish

Published: nr 2(39) 2024, p. 19-33.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.19

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Number of downloads: 252

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Determining Temporal Limits of Court’s Interpretative Decision (in Light of the Case Law of Administrative Courts)

Dr Tomasz Grzybowski, Dr Marta Sarnowiec-Cisłak

SGH Warsaw School of Economics

Abstract: Subject of consideration in this article remains the problem of changing direction of interpretation in judicial-administrative jurisprudence, which sometimes produces consequences similar to the effects of a legislative change. Against this background, the authors attempt to formulate a description of the practice of application of law, i.e. to present jurisprudential arguments supporting decision on the scope of application of interpreted legal norm, as well as to reconstruct underlying assumptions. Using an example of two groups of selected judgments, authors consider cases in which argumentation of the temporal scope of impact of a particular interpretative direction appears in the justifications of administrative court decisions. The analysis carried out confirms that although courts generally assume the retrospective impact of interpretation, in a situation where the content of the derived legal norm fundamentally deviates from previous interpretative practice, they seek legitimization of their actions by justifying the intertemporal decision with constitutional values. These values provide an essential interpretive framework reflecting the cultural model prevalent in the native legal communication community. If courts perceive a risk of violating the values underlying the prohibition of retroactivity, such as legal certainty or principle of trust in public authorities, they indicate reasons for limiting the temporal scope of interpretation pro futuro, or on the contrary, for its effect ex tunc. Against this background, the retrospective effect of interpretation appears not as a consequence of interpretation being made, but rather as a kind of interpretative presumption that can be rebutted or confirmed if arguments are made that allow the interpretation to apply only to future states, or that give additional suport for retrospective application of new interpretation.

Keywords: change of interpretation, temporal limits, administrative courts, retrospectivity, legal certainty, principle of trust in public authorities, justification.

Language: polish

Opublikowano: nr 2(39) 2024, s. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.5

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Number of downloads: 240

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