Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Why Legal Conventionalism Fails

Dr Adam Dyrda

Jagiellonian University

English abstract: The term “legal conventionalism” covers a set of broadly discussed legal theories explaining the fact of law’s existence by reference to the “conventional rule of recognition”. Some of them are aspiring to be so-called “fully fledged theories of law” and explain the normativity of law by reference to the same fundamental, conventional fact. The article presents some recently discussed views (including the ideas of E. Lagerspetz, A. Marmor, S. Shapiro) alongside with counter-arguments showing why conventionalism fails. Eventually, the basic points of critique can be shaped in terms of the distinction between instrumental and substantial reason.

Keywords: legal conventionalism, Andrei Marmor, Scott J. Shapiro, Eemil Lagerspetz

Language: English

Published: Number 1(10)/2015, pp. 14-30

DOI: https://doi.org/10.36280/AFPiFS.2015.1.14

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Number of downloads: 713

Monocentrism and Multicentrism as Legal Theories in the Global Era

Prof. dr hab. Tadeusz Buksiński

Adam Mickiewicz University in Poznań

English abstract: The article describes two opposing theories of legislation and jurisprudence in the global age: multicentrism and monocentrism. The first one claims that a new legal system at the supra-state level is emerging, which must take into consideration varied legal traditions. The second one stresses that certain fundamental principles must be shared today by all people. It seems that the ultimate goal of jurisprudence is to create a system of laws that reconciles multitude and diversity with unity.

Keywords: multicentrism, monocentrism, theory of legislation

Language: English

Published: Number 1(10)/2015, pp. 5-13

DOI: https://doi.org/10.36280/AFPiFS.2015.1.5

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Number of downloads: 556

Does American jurisprudence have any rules of interpretation of Constitution?

Dr Anna Tomza

University of Łódź

English abstract: The most discussed issue in the theory of law is the problem of its interpretation, and main question in this topic is – how to make a proper interpretation? The American common-law, opposite the European theory of law, seems not to have general rules of interpretation, but only the idea of proper interpretation. Also the methodology of statutory interpretation is some kind of the judge-made law. As Henry M. Hart said „The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation”. According to this, currently the question focuses on finding the generally rules of interpretation, which should be some kind of canons of the statutory interpretation. This article tries to give the answer to the question: „if American jurisprudence has any rules of interpretation of law?”.

Keywords: American jurisprudence, legal interpretation, rules of interpretation, Constitution

Language: Polish

Published: Number 2(9)/2014, pp. 125-133

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Number of downloads: 328

Objectivity in law – the institutional approach as an alternative to the dominant theories

Dr Maciej Pichlak

University of Wrocław

English abstract: The aim of the paper is to establish a theoretical elaboration of objectivity in law which would conform exiting linguistic practices in the legal field. It starts from a brief characterization of legal practice in this respect which allows for an exposure of semantic complexity of the term ‘objectivity’ in law. The term is said to take two basic meanings: objectivity as a fact and objectivity as a moral ideal. On this ground requirements towards a reliable theory of legal objectivity are defined: such a theory should not only make o room for both distinct meanings of legal objectivity, but also should consider their mutual relations. These requirements stemming from existing linguistic practice serve as criteria for examination of up to date theoretical concepts of objectivity. The paper discusses realistic, conventionalist, and idealistic theories of objectivity in law subsequently and exposes shortcomings of each of these. Eventually, key assumptions of an institutional theory of objectivity are presented which is claimed to offer a plausible understanding of objectivity in law in both its factual and ideal aspects.

Keywords: objectivity, institutional theory, realism, conventionalism, idealism

Language: Polish

Published: Number 2(9)/2014, pp. 108-124

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Number of downloads: 21

On responsibility, justification of punishment and theory of punishment as communication

Dr Michał Peno

Uniwersytet Szczeciński

English abstract: The article concerns the concept of punishment as an act of communication. Some retributivsts (i.e. ‘positive’ retributivists) believe that punishment communicates a censure. The article’s central proposition is that the act of communication is, in fact, strongly connected with the criminal responsibility. Furthermore, responsibility should not be identified with punishment. The so called positive retributivists claim that in order to fulfill communication purposes, offender have to be punished. However, punishment seems to be conceptually independent of the process of moral communication. It is shown that communication is linked with the very idea of criminal responsibility and the censure should by communicated through responsibility. Therefore, the article offers the view of responsibility as a complex process. Responsibility is an important social practice which in many cases can substitute punishment, particularly in its communicative aspect.

Keywords: responsibility, justification of punishment, theory of punishment as communication

Language: Polish

Published: Number 2(9)/2014, pp. 95-107

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Number of downloads: 307

Rule of law, public philosophy and moral responsibility of scientists

Prof. dr hab. Lech Morawski

Uniwersytet Mikołaja Kopernika w Toruniu

English abstract: The paper discusses some relationships between the rule of law and the public philosophy. It is unquestionable that nowadays the scientism has become one of the dominant ideologies of industrial and post-industrial societies. Scientists and researchers take an active part in public life, are advisors to governments and corporations, comment in the media important public events. Thus, the problem arises of their moral and legal responsibility for what they say and do in public life. In my opinion, we may distinguish two different models of responsibility, which I call a model of scientist as an ordinary citizen and model of scientist always on duty. To put it another way, we may ask, whether the scientist in public life like an ordinary citizen can act in accordance with his political, economic or religious sympathies and preferences or just like a judge, priest or a physician is always „on duty” and always must follow all the rules of his profession. I defend the view that the adoption of the second model is one of the necessary preconditions of the existence of informed and rational public opinion and thus, the informed and rational rule of law.

Keywords: rule of law, moral responsibility, legal responsibility, public philosophy

Language: Polish

Published: Number 2(9)/2014, pp. 85-94

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Number of downloads: 330

The idea of legal security of Polish inheritance law

Paweł Mącik

The John Paul II Catholic University of Lublin

English abstract: The purpose of this paper is to present the issues of legal protection within inheritance law. A court decision made in the case of the ascertainment of inheritance, acquisition, or registered deed of succession, constitute the only proofs of legal succession, so their amendment or revocation is permissible only in the special cases indicated in the Act. Time and procedure limitations on amendments in respect of succession can potentially affect the accepted principle of justice. However, the State protects inheritance law and at the same time upholds legal protection. The fact that the legislator facilitated such a mode of procedure attests to the fact that legal stability and security of transactions are valued more than the protection of legal succession. However, this does not mean that the principle of justice and the protection of legal succession are not applied. Au contraire a person who is not a successor has the possibility to assert the protection of his/her rights at a particular time. On the other hand, the person who is a successor has to invoke the statutory presumption and has to have the sense of legal security guaranteed by the legislator which is required of him/her. As a consequence the conflict between the protection of legal succession and legal security arises. This presents the opportunity for reflection on the status of Polish inheritance law which will be provided in this article.

Keywords: inheritance law, legal security, legal certainty

Language: Polish

Published: Number 2(9)/2014, pp. 66-84

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Number of downloads: 298

The Model of Precedent Based upon Analogical Reasoning

Dr Maciej Koszowski

Silesian University of Technology

English abstract: Apart from the concise presentation of the rule-based model of binding judicial precedent, this article describes two basic accounts of analogical reasoning in precedential law. The first account has been named: the factual model and the second: the rational model. This terminology was adopted due to the fact that the judgment of similarity within the factual model is deemed to be a direct result of the very facts of the cases being compared, or of the unfathomed mystical workings of human intuition (emotions), or the outcome desired for the case at hand. The rational model, in turn, is based upon the notion of precedential reasons and casual facts, i.e. the facts that are relevant in the light of such reasons. Dependence upon these two notions makes the rational model more predictable and explicable. In certain circumstances, however, analogy to proceeds needs therein some additional factors which do not stem from the gist of that model. The factual model, unpredictable though it may seem to be, is faster and apt to generate just, or socially desirable, conclusions, especially when utilized by a person of a great legal knowledge and experience.

Keywords: judicial precedent, analogical reasoning, factual model, rational model

Language: Polish

Published: Number 2(9)/2014, pp. 43-65

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Number of downloads: 299