Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVR

In dubio contra reo? Peter Fechter Case

Dr Justyna Holocher

English abstract: The subject of the present paper is the evaluation of application of the rule in dubio pro reo in one of the so-called Border Guard Cases (Mauerschützenprozesse), known as the case of Peter Fechter. The question posed in the paper is, whether under circumstances of the lack of sufficient evidence, the application of the rule in dubio pro reo to some of the accused ones can result in assuming the rule in dubio contra reo (which is contradictory to the principles of criminal justice) against other accused in the same process. The main thesis of the paper is that the assumption of the rule in dubio contra reo is unacceptable on the ground of the principles of fair judicial proceeding. Such a rule violates principles of procedural and substantive justice and in consequence it also violates personal rights. In the analyzed case, under circumstances of the death of one of the accused border guards, the application of the rule damaged unlawfully the good name of the deceased.

Keywords: Berlin Wall, Petera Fechtera case, in dubio pro reo, in dubio contra reo

Language: Polish

Published: Number 2(15)/2012, pp. 67-76.

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Number of downloads: 292

Aitia – Aristotlelian guilt. Definitional issues

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 the mental capabilities of the actor in respect to the 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 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 related to it 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 2(15)/2012, pp. 51-66.

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Number of downloads: 340

Law of spontaneous order – Hayekian concept of regulation

Mikołaj Firlej

University of Warsaw

English abstract: In the article three general questions were posed as a means of presenting explorative issue: (1) Law as regulation of an order; (2) Law as regulation of a liberty; (3) Controversy of social industry in law. In order to realize the issue thus outlined in the first section it has been shown two different and opposites kinds of orders in widely understanding term ‘sociology of law’ as well as Hayekian criticism of Descartes rationality. The structure of exogenous and endogenous orders has been carefully analysed in relation to their ancient equivalents: taxis and nomos. Special attention has been given to make an explanation of Hayekian understanding of legal frameworks connected with the process of organization and division of power. It has been outlined the rule of law in political system of Austrian economist (concept of demarchy) and his principal arguments for legislature and problem of ‘good regulation’. In the second part of thesis it has been shown a widely connection between spontaneous order and both liberty and the process of progression. In this section the strive was to present mostly values and good points in Hayekian conception, but there is also a critical part concerning both unsymmetrical constraint of freedom and symmetrical. In the third part of this thesis it has been shown the historical background of Hayekian research connected with the controversy of social industry in law. Referring to the intellectual dispute between Spencer’s organicism and Durkheim’s paternalistic conception Hayek has divided between law and law-making (legislation) and he has proved that law is only a spontaneous order notwithstanding good legislation means rules of harmonization and maintenance this kind of abstract social structure. Hayek’s concept of law is in accordance with philosophical, sociological, economical and political research of the general and popular nowadays problem with the new paternalism.

Keywords: Friedrich A. Hayek, regulation of order, regulation of liberty, social industry

Language: Polish

Published: Number 2(15)/2012, pp. 36-50.

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Number of downloads: 317

The Very Idea of Legal Positivism

Prof. dr Stanley L. Paulson

Washington University

English abstract: Much in recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism. As a point of departure in distinguishing them, the separation principle is helpful. The separation principle counts as the contradictory of the morality principle, according to which there is “necessary overlap” between the law and morality. What the legal positivist’s denial of the morality principle comes to can be refined, we are told, by appealing to the distinction between inclusive and exclusive legal positivism. One can acquire a broader perspective by opening up the field in order to cover not only inclusive and exclusive legal positivism but also non-positivism, represented by the defence of the morality principle, that is the view that there is necessary overlap between the law and morality. Say what you will about inclusive versus exclusive legal positivism – some defend the distinction, others dismiss inclusive legal positivism as a non-starter. In any case, I want to argue that a far more fundamental distinction within the positivist camp lies elsewhere. The distinction I have in mind is that between legal positivism qua naturalism (J. Austin) and legal positivism without naturalism (H. Kelsen). For reasons institutional in nature, legal positivism has largely been discussed in a vacuum, there is a standing presumption to the effect that there are ties between legal positivism and ‘positivism writ large’ in the greater philosophical tradition – or, as it would be put in present-day philosophical circles, ties between legal positivism and naturalism.

Keywords: legal positivism, Hans Kelsen, The Separation Thesis, naturalism, normativism

Language: Polish
Translated by: Marcin Romanowicz

Published: Number 2(15)/2012, pp. 20-35.

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Number of downloads: 388

Four puzzles about the rule of law: why, what, where? And who cares? (part 2)

Prof. dr Martin Krygier

UNSW Sydney

English abstract: Central among the many obscurities that attend the rule of law are those named in the title of the article. The first part contains some preliminary remarks and attempt to answer the first question. This attempt is based on distinguishing to ways of understanding what rule of law is. By the first way rule of law is a theological concept, i.e. to know what it is we have to know its aims and by the second, anatomical one, the most important thing to understand it are rules and institutions that are usually conceived as its part. The authors holds a position that only the first way is appropriate and gives his own interpretation of aims of rule of law. This aim is legal reduction of the possibility of arbitrary exercise of power that is connected with four important reductions – of domination, of fear, of indignity, and of confusion.

Keywords: rule of law, arbitrariness, exercise of power, aims of rule of law

Language: Polish
Translated by: Katarzyna Mikołajczyk-Graj

Published: Number 2(15)/2012, pp. 5-19.

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Number of downloads: 491

Systems Theory and Puzzles of Legal Culture

Dr Jan Winczorek

University of Warsaw


English abstract: Legal culture is a concept as central to legal studies and sociology of law as difficult to define. It aims to serve important theoretical needs but it is also responsible for some puzzles that trouble legal and socio-legal scholars. Some of them are quite famous: the puzzle of the nature of Japanese litigiousness, the puzzle of differing German and Dutch legal cultures, or, recently, the issue of cultural defence. Some are lesser known, like the multitude of courts’ adjudicating strategies in Poland’s allegedly unitary legal culture. The paper argues that the problems of such nature are a conceptual artefact, a result of objectifying understanding of legal culture as a phenomenon. It is stressed that in such studies more weight should be put on the immediate, procesual nature of investigated phenomena. In order to support these claims, conceptual machinery of systems theory is utilised. First, a general view of N. Luhmann regarding the notion of culture is accepted and applied to the idea of legal culture. Further it is demonstrated how the aims served by the notion of legal culture can be achieved by appealing to such theoretical concepts as structural coupling, first- and second- order observation, and above all – temporal nature of social systems. A general conclusion of the paper is that in the study of “legal culture” an evolutionary perspective is unavoidable.

Keywords: Niklas Luhmann, Systems Theory, legal culture, structural coupling, first-order observation, second-order observation, temporal nature of social systems

Language: English

Published: Number 1(4)/2012, pp. 106-125.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.106

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Number of Downloads: 578

Legal Databases and Their Functions in the Process of Interpreting and Applying the Law

Dr Wiesław Staśkiewicz, Prof. dr hab. Tomasz Stawecki

University of Warsaw

English abstract: This article deals with the implications of the widespread practice of use of legal databases in Polish judicial practice. Apart from the undeniable positive effects of development of an electronic civilization, the article deals with the negative effects of use of databases. This is because a conflict arises between the possibilities offered by the latest technology in the form of easy access to legal texts, commentaries and thousands of judicial rulings, and the unique historical experience of the judiciary in a former communist country, methods of legal interpretation sustained by legal positivism, and domination by a syllogistic model for application of the law. All results in dysfunction of legal databases. A kind of “hybrid interpretation of law” is formed, which is a combination of a legacy, the effects of transformation of the economy and the system, as well as the new rules of law, on the one hand, and the ideology of bound judicial decision on the other. The nature of the “hybrid interpretation of law” is the infinite scope for citing judicial rulings and commentaries available in the databases without taking a broader theoretical view – without supporting arguments, and so the citing of a ruling has become the basis for adjudication. The question of whether the possibilities that electronic databases offer will cause interpretation of this kind to turn into a new form of legal rhetoric, or whether it will remain merely a means of adaptation of the discretionary power of judges to legal positivism doctrine, and thus the sophism of the period of transformation, remains an open one.

Keywords: legal database, legal interpretation, hybrid interpretation of law, legal positivism, syllogistic model for application of the law

Language: English

Published: Number 1(4)/2012, pp. 84-105.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.84

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Number of downloads: 576

The Phenomenological Basis of Lawyers’ Professional Ethics

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Cracow University

English abstract: The thesis of the paper is connected with the statement that the casuistic, quasi-legal model of legal ethics should be abandoned. What should be broadened instead, is individual and collective, namely corporate one, awareness of the specificity of legal experiencing of the values relevant from ethical-professional perspective and based on firm methodological basis. The conception of legal ethics presented in the paper gives up the attempts of describing it from the perspective which is forced by categories connected with legal positivism. This suggestion refers to the following: (1) phenomenological “thinking according to ethical-professional values”, (2) the notion of ethical-professional intuition and (3) the concept of a lawyer’s and legal corporation’s field of axiological awareness. The 20th century phenomenological philosophy and, closely connected with it, informal ethics of values, as presented mainly by M. Scheler and N. Hartmann, serves as the basis of the suggested ethical-professional concept. Phenomenological ethics, relying on individual experience of ethical values, based on individual acts of value preference in case of moral conflict, gives a chance to distance itself from a quasi-legal, casuistic perception of legal ethics. It, then, creates the possibility of necessary methodological independence of legal ethics from law.

Keywords: Lawyers’ Professional Ethics, phenomenological philosophy, ethical-professional values, ethical-professional intuition, field of axiological awareness

Language: English

Published: Number 1(4)/2012, pp. 69-83.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.69

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Number of downloads: 608

Intertemporal Issues in Administrative Law and Concept of Retroactivity in Law

Prof. UAM dr hab. Jarosław Mikołajewicz, Prof. UAM dr hab. Andrzej Skoczylas

Adam Mickiewicz University

English abstract: In essence, this study aims at presenting basic intertemporal problems of administrative law. These problems are extremely complex and, despite a commonly held view on the alleged poorer theoretical issues in the field of administrative law, intertemporal issues in administrative law demonstrate an even greater level of complexity compared with such a well-developed discipline as civil law. This state of affairs stems from the very nature of this branch of law. Presumably, this is why within the field of administrative law we may encounter application of not only all basic descriptive principles of administrative law, but also of those principles that are particular in a certain aspect (e.g. the principle of validity, the principle of lex mitior retro agit). It is equally important to mention that intertemporal decisions are made also in the field of administrative law; the content of these decisions is only partially (if at all) determined by positive law.

Keywords: intertemporal problems of law, principle of law, administrative law, principle of validity, principle of lex mitior retro agit, intertemporal decision

Language: English

Published: Number 1(4)/2012, pp. 51-68.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.51

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Number of downloads: 708