Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

Passion’ resumption? Emotions and impartiality

Dr Maciej Wojciechowski

University of Gdańsk

English abstract: Traditional philosophical tension between a reason and emotions has been a subject of increasing objections. As a result emotions are defended by pointing their connections with beliefs, value judgments to name just a few strategies. This paper also takes up an attempt of this sort showing that traditional definition of emotions with features of the process of application of law makes a threat from the emotions for the impartiality of a judge much less warranted than it might seem. What is more, an attempt is taken up to argue that feeling can be a chance for impartiality conceived as argumentative openness.

Keywords: reason, emotions, impartiality, judicial decision

Language:Polish

Published: Number 2(7)/2013, pp. 71-77

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Number of downloads: 337

Law as a discourse on life – Pierre Legendre’s dogmatic anthropology

Dr Tatiana Chauvin

University of Warsaw

English abstract: In the present text the author introduces the concept of dogmatic anthropology – the original idea of French philosopher, lawyer and psychoanalyst Pierre Legendre. In this conception the positive order of law should be completed by „another scene”, i.e. human unconscious. The law and namely the justification of normativity is profoundly dependent of Freudian constructions of Totem and Taboo and Lacanian conception of mirror and the role of the father as big Other. Psychoanalytic categories serve to explain the sense of legitimacy of the normative order. Our time must acknowledge his uncertain and terrifying condition and recognize that the basic reflection focuses on question: why have the law? The role of the law refers to the establishment of a zone of Prohibition and principle of filiation. This allows a subject might be born in the institutional order and be protected by it. In this sense, the subject is captured by the institution and the law become the creator of life. P. Legendre stresses the importance of the Legal Text as a source of normativity establishing identity through words.

Keywords: Pierre Legendre, dogmatic anthropology, psychoanalysis

Language:Polish

Published: Number 2(7)/2013, pp. 5-24

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Number of downloads: 379

Uniformity of judicature and paradigm of judicial interpretation (in light of clara non sunt interpretanda rule)

Dr Tomasz Grzybowski

Supreme Administrative Court

English abstract: A subject of the article is uniformity of judicial interpretation in the context of two rules of interpretation, namely a clara non sunt interpretanda rule and an omnia sunt interpretanda rule challenging first mentioned method. The author points out that taking into consideration omnia sunt interpretanda rule, i.e. order to perform interpretation in every case, may lead to disintegration of judicial interpretation and as a consequence destabilization of judicature in general. Main thesis of the article is that institutional conceptualization of the clara non sunt interpretanda rule is an answer to this threat, because application of this rule enhances the argument from precedent in judicature. According to abovementioned version of clara non sunt interpretanda rule, legal text is considered as obvious and needs no interpretation if its meaning is certain in previous judicial interpretation, e.g. there is line of precedents or preliminary ruling. However it must be underlined that clara non sunt interpretanda rule is not unquestionable. It is a defeasible argument in judicial discourse; it only changes an argumentation burden which does not rest on the one who refers to this rule, but on the one who challenges the rule (wants to perform interpretation).

Keywords: judicial interpretation, clara non sunt interpretanda, omnia sunt interpretanda

Language:Polish

Published: Number 2(7)/2013, pp. 25-37

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Number of downloads: 340

Why do we consider a use of tortures – a collision of fundamental principles of the legal system

Mgr Paweł Przygucki

University of Łódź

English abstract: The article focuses on the dispute about the possibility of legalizing tortures in certain circumstances, that is so-called ‘ticking bomb scenario’ and ‘innocent hostage scenario’. Those cases occurred in reality, thus they triggered a discussion about moral and legal aspects of tortures. The aim of this publication is to reveal that in fact the aforesaid issue is a question of a collision of fundamental principles of the legal system – on the one hand there are dignity and rights of the defendant, but on the other should be mentioned such worths as public security or protecting innocent people’ lives. This publication also describes methods of solving a collision of law’s principles (on the basis of R. Dworkin and R. Alexy recommendations) as well as attempts to propose a specific penal law reaction to a crime of torture committed by a police officer or any other public investigator.

Keywords: tortures, collision of principles, ticking-bomb scenario, innocent hostage scenario

Language:Polish

Published: Number 2(7)/2013, pp. 63-70

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Number of downloads: 335

Are we all feminists now’’? The Challenge of Feminist Jurisprudence to Traditional Legal Theory

Dr Lidia Rodak

University of Silesia

English abstract: The potential of Feminist Jurisprudence is mainly built on its criticism of Traditional Jurisprudence. Through the deconstruction of the latter’s main categories such as objectivity, justice, equality, and rationality, Feminist Jurisprudence aims to demonstrate that Traditional Jurisprudence tends to mask inequality, exclusion and lack of recognition rather than beingable to bring about change or provide the values under research. What is more, FJ indicates a wide range of topics that are not explored by Traditional Jurisprudence and thus have nochance to be dealt with using traditional tools. As a result, Feminist Jurisprudence provides a separate language, a different epistemology and methodological tools that can broaden access to justice including all subjects by giving them recognition. What follows from thesetwo approaches to jurisprudence and two distinct sets of epistemological assumptions is a different understanding of the subject and a different vision of social relations. As Feminist Jurisprudence convincingly shows, traditional law, with its inclination for objectivity defends legal norms as part of the legal and social order rather than an individual autonomy and integrity of subjects. In this paper I would like to suggest a middle-way solution going beyondthe dualistic categories of objectivity and subjectivity. The proposal calls for a deep structuralchange of the legal discourse as the only one that really matters from the feminist point of view.

Keywords: Feminist Jurisprudence, traditional jurisprudence, objectivity, subjectivity

Language: Polish

Published: Number 1(8)/2014, pp. 67-76

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Number of downloads: 411

What „The Political” Can Bring Into The Polish Theory of Law. Toward a Further Investigations

Dr Michał Paździora, Mgr Michał Stambulski

University of Wrocław

English abstract: The political is a category entirely absent in the Polish theory and philosophy of law. Article presents history of “the political”, category developed by thinkers such as M. Weber, K. Marx, C. Schmitt, Ch. Mouffe and the main assumptions of the practical aims of theory of law present in alternative projects: Poznań-Szczecin methodological school and L. Morawski critical theory. Despite the declared theoretical differences, both projects are characterized by a similar understanding of the theory, which involves the objectivity of knowledge with involvement of universal point of view. Thus, the inclusion of the category of political in both projects, especially in legal education, is ignored.

Keywords: the political, postmodernism, agonism

Language: Polish

Published: Number 1(8)/2014, pp. 55-66

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Number of downloads: 340

The Notion of Ideological Interpellation and Critical Discourse on Law

Mgr Rafał Mańko

University of Amsterdam

English abstract: The present methodological paper aims at answering the question whether the notion of ideological interpellation, put forward by L. Althusser, in the form given to it by S. Žižek,can be operationalised in order to be deployed as a tool for the critical reading of legal texts. The paper gives a positive answer to the question, indicating that the application of the saidmethod may contribute to the opening of legal discourse towards the impact of critical theory. The paper consists of three parts. The first part presents Žižek’s theory of ideology, thesecond part discusses the notion of ideological interpellation, and the third part is devotedto a preliminary attempt at operationalising the said notion.

Keywords: Louis Althusser, Slavoj Žižek, ideological interpellation, theory of ideology

Language: Polish

Published: Number 1(8)/2014, pp. 41-54

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Number of downloads: 309