Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

A few rare remarks on legal gaps

Dr Maciej Koszowski

WSB Dąbrowa Górnicza

English abstract: The article addresses the issue of legal gaps (lacunas). Specifically, the author puts forward the general definition of legal gap which uses the concept of ‘automatically applicable’ legal rule as well as presupposes specific understanding of law – namely, that it is consisted solely of the rules of the mentioned type. Next, basing upon that definition, he defines three kinds of lacunas that are commonly distinguished in Polish and international scholarly literature, i.e. extra, intra and contra legem. As it is demonstrated, the merits of proffered definitions are manifold. First of all, they reduce the dependence of the notion of legal gap on value judgment. Secondly, they fairly well fit into the structure of contemporary legal orders. Thirdly, owing to them, the filling of legal gaps is not pointless. And lastly, the other kinds of lacunas one may encounter in academic literature are not at odds with the proffered theory, at least not by definition. At the end of the article, in the light of the main idea of the author’s conception, the Anglo -Saxon notion of the case of first impression is discussed, taking into account different models of (approaches to) the phenomenon of a binding judicial precedent.

Keywords: legal gap, extra legem gap, intra legem gap, contra legem gap

Language: Polish

Published: Number 1(6)/2013, pp. 109-122.

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Number of downloads: 1,374

Is the concept of law an essentially contested concept?

Dr Adam Dyrda

Jagiellonian University

English abstract: Some legal thinkers (R. Dworkin amongst them) suppose that the concept of law is an essentially contested concept. This article firstly introduces the idea of essentially contested concepts, developed by W.B. Gallie. Secondly, it is argued that the concept of law cannot be perceived as an essentially contested concept, though some related concepts (such as “the rule of law”, according to J. Waldron’s analysis) can. Finally, I propose some arguments, in which I partly follow K. Ehrenberg’s recent analysis, showing that in Dworkinean terms, calling law an essentially contested concept may raise doubts and controversy.

Keywords: contestation, concept, conception, essentially contested concepts

Language: Polish

Published: Number 1(6)/2013, pp. 54-67.

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Number of downloads: 359

Aitia – Aristotelian guilt. Definitional issues (part 2)

Dr Waldemar Gontarski

European School of Law and Administration 

English abstract: When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to mental capabilities of the actor in respect to a particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between the actor’s behavior and the resulting damage). Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and the related subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.

Keywords: Aristotle, the triad of causes, the triad of consequences, justice

Language: Polish

Published: Number 1(6)/2013, pp. 68-92.

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Number of downloads: 326

Antoni Kość (1949-2011)

Dr Tomasz Barankiewicz, Dr Jadwiga Potrzeszcz

John Paul II Catholic University of Lublin

 

Language: Polish

Published: Number 2(15)/2012, pp. 101-104.

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Number of downloads: 321

The cultural grounds of Japanese criminal law in action

Prof. dr hab. Jacek Izydorczyk

University of Łódź

English abstract: The author describes the Japanese way of criminal justice in practice (law in action). But he shows the Japanese law in action as a ‘product’ of a quite different culture then the culture of Western World. First, presents in a glance history and religion of Japan. Next, shows development of new laws for Japan during XIX century when Japanese decided to ‘escape from Asia’ and join the Western World. Third part of the paper, explains the criminal justice system in contemporary Japan. The main part of the article focuses on Japanese criminal law as an everyday law in action (the law in action quite often very difficult to understand for Westerners). According to the author there are five main examples of those cultural grounds of Japanese criminal law in action. First – the Japanese way of preventing crimes; second – the Japanese idea what is (and what for actually is) criminal law; third – problem of so-called the opportunism principle which really dominates the criminal procedure in Japan; fourth – phenomenon of Boryokudan (Yakuza) in Japan; and last (fifth) – question what actually means the principle of fair trial (i.e. protection of defendants rights) in Japan in real life. The author’s conclusion is simple: law in action always depends from the culture of a country. That is why – when we talk on Japan – much more important is to understand such cultural grounds than just to know the legal system described by official ‘paper laws’.

Keywords: Japanese criminal law, justice, legal culture, prevention

Language: Polish

Published: Number 2(15)/2012, pp. 77-91.

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Number of downloads: 347