Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Cultural evidence

Mgr Anna Koropczuk

University of Wrocław

English abstract: This article concisely presents the question of cultural evidence and the way it is conducted on the basis of judicial proceedings. It also highlights the distinction in the manner cultural evidence is considered on the basis of common and continental law. The author assumes that modern society is a multicultural society. It is a society in which role models and patterns of conduct are only created within the contact and conflict of different cultures. Solutions proposed in the article refer to the cases based on the cultural defense, where the culture is treated as a factor determining the actions of individuals. Cultural evidence has to be – in the authors’ opinion – a mean to demonstrate the clearance of the individual to take action subjected to the proceeding. Hence, the author outlines the procedure in case of the necessity of conducting such evidence.

Keywords: cultural evidence, cultural defence, judicial proceedings

Language: Polish

Published: Number 2(9)/2014, s. 35-42

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Number of downloads: 309

The concept of fairness in the exercise of the profession of advocate

Mgr Tomasz Cyrol

Jagiellonian University

English abstract: How to understand fairness in the profession of advocate? It is obvious that the concept of fairness includes the lawful behavior. Lawful understood as comply with the „letter of law”. But the concept of fairness consists of other elements. Those are the compliance with the „spirit of law” and simply with the interests of client. The article describes different actions and influence exerting theories as examples of situations where conflicts between lawful actions and the interest of the client may appear. The conclusion of the article is that advocates have to work in a „fair” way. They are allowed to bend this rule under some circumstances but in those cases they are obliged to prove that they didn’t behave in an unlawful way and that their not fair behavior was in the interest of their clients. It is probably easier to behave in a fair way than to find justification for unfair such behavior.

Keywords: fairness, profession of advocate, letter of law, spirit of law

Language: Polish

Published: Number 2(9)/2014, pp. 26-34

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Number of downloads: 335

A Prequel to Hart’s ‘Postscript’ – the Missing Link in the Hart-Dworkin Debate

Dr hab. Andrzej Grabowski

Jagiellonian University

English abstract: In his translator’s note to the H.L.A Hart’s paper New Challenge to Legal Positivism, Andrzej Grabowski describes the historical details of Hart’s Madrid lecture and the changes of the original Spanish text, introduced in the translation. He argues that Hart’s paper can be regarded as the prequel to the ‘Postscript’ from 1994, since the lecture deals with the criticism of Dworkin against the Hartian version of legal positivism and some important parts of them (from Section II) were in extenso included in the ‘Postscript’. The translator also emphasises the importance of Hart’s lecture as a text-source of information, which can be used in the contemporary debate on the inclusive legal positivism and for the critical reconstruction of Hart’s theoretical position.

Keywords: Herbert L. A. Hart, Ronald Dworkin, legal positivism, Hart-Dworkin debate

Language: Polish

Published: Numer 2(9)/2014, pp. 21-25

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Number of downloads: 358

New Challenge to Legal Positivism

Prof. Herbert L.A. Hart

University of Oxford

Abstract in English: In his lecture, delivered at the Department of the Philosophy of Law of the Autonomous University of Madrid on 29 October 1979, H.L.A. Hart directly responds to Ronald Dworkin’s attack on Legal Positivism, launched in Taking Rights Seriously. In the Sections I–II, Hart explicates his version of Legal Positivism by means of three central positivist theses: the Thesis of the Conceptual Separation of Law and Morals, the Thesis of the Social Sources of Law, and the Thesis of Judicial Discretion. Next, in Section III, he discusses Dworkin’s fundamental objections against the positivist theory of judicial discretion and claims that none of them seem convincing. Finally, in Sections IV–V, Hart analyses a new, herculean theory of adjudication, proposed by Dworkin as a „middle way theory” between the classic theories of Natural Law and Legal Positivism. In his answer to the criticism of the positivist Rule of Recognition, Hart claims that there is no reason why this rule, in certain jurisdictions, would not predict the use of the herculean procedure among the criteria that it provides for the identification of the law. He also states that the use of the herculean method of adjudication is unacceptable for the lawyers and that an impracticable character of this method is easy to demonstrate by referring to the case of the wicked legal systems, in which the principles underlying the law are morally bad. Thus, Hart concludes that instead of a sound vía media between Natural Law and Legal Positivism, the theory of Dworkin seems to offer the confusion of them.

Keywords: legal positivism, herculean method of adjudication, three central positivist theses

Language: Polish

Translation: Andrzej Grabowski

Published: Number 2(9)/2014, pp. 5-20

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Number of downloads: 433

Application of artificial neural networks for modeling legal reasoning. On legal reasoning specific problems

Mgr Rafał Michalczak

Jagiellonian University

English abstract: The purpose of this paper is to describe the application of artificial neural networks in modeling legal reasoning. In particular, the paper will be focused on specific problems which may occur only on the ground of legal reasoning and are difficult from the artificial intelligence perspective. The focal point of the paper is not to provide technical details of analyzed systems but to point out parts of legal conceptual framework which are inconsistent with classical techniques of designing of expert system. Paper consists description of a few legal expert systems based on artificial neural networks. Each of them is the basis for presentation of particular feature of legal reasoning which are considered difficult from the AI point of view e.g. vague concepts, open-texture, analogy.

Keywords: artificial neural networks, SplitUp programme, liability for damages, legal reasoning 

Language:Polish

Published: Number 2(7)/2013, pp. 52-62

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Number of downloads: 280

Superfluum and surpluses of meaning as examples of redundancy of the text of law

Mgr Maciej Kłodawski

Jagiellonian University

English abstract: The subject of the paper is the notion of redundancy, which in the text of law may be perceived both from systemic point of view and linguistic perspective. Within systemic
standpoint, the paper focuses on superfluum issue, which occurs when one provision is repeated by another legal provision (full superfluum) and when part of one provision becomes „new” provision (or its part) in the same or another legal text (partial superfluum). These manifestations of systemic redundancy are not always results of legislative mistakes (as might be noticed during analysis of selected examples of superfluum derived from Polish legal texts), but the evaluation of each case of superfluum depends on criterions, which in Polish legal system are incomplete and imprecise. In the second part, the paper discusses one kind of linguistic redundancy – semantic redundancy, which appears in pleonasms, tautologies and pleonastic analytisms. It is argued here, in contrary to majority of previous descriptions of semantic redundancy phenomenon presented in linguistics and legal theory, that some redundant expressions may be useful during interpretation of legal provisions, because in certain circumstances they may have pragmatic values. These values are: enhancing meaning, specifying meaning and explicating meaning. Furthermore, in some cases aforementioned pragmatic values may be reached by context-independent redundant expressions, what has been shown basing on examples from Polish legal texts.

Keywords: superfluum, meaning of the legal text, surpluses of meaning, intentionality

Language:Polish

Published: Number 2(7)/2013, pp. 38-51

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Number of downloads: 323