Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVRwww.ivr.org.pl

Search Results for: Autonomy of law

Instrumentalization and the Autonomy of Law

A thematic collection of the “Archive of Philosophy of Law and Social Philosophy”. Texts on the tension between treating law as an instrument of politics and its autonomy. All articles are available free of charge in open access.

Between instrument and autonomy

Law is often used as an instrument for pursuing political goals – from social engineering to politics of memory – while at the same time its claim to autonomy from current politics belongs to the core of the ideal of the rule of law. The boundary between the legitimate instrumentality of law and an instrumentalization that undermines trust and predictability has become one of the central themes of legal theory – discussed in Poland with particular intensity in the context of the constitutional crisis.

Selected texts

See also

Law and Morality · Classics of Modern Legal Philosophy and Theory · Legal Interpretation.

For authors

The “Archive” publishes articles in legal theory and philosophy – including the rule of law and the relations between law and politics – in Polish and English, in open access with no publication charges and with double-blind peer review. The journal is indexed in Scopus, DOAJ and ERIH PLUS (100 points on the Polish ministerial list). See the guidelines for authors.

An editorial collection, to be extended as older texts are tagged. Last updated: July 2026.

The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr hab. Rafał Mańko

Central European University, Democracy Institute (Budapest, Hungary)

English abstract: The purpose of this article is to examine the position of Evgeny B. Pašukanis regarding the problem of autonomy of law. The source material for the research is his monograph entitled The General Theory of Law and Marxism (1924), in which he laid down the framework of his hylomorphic theory of law, also described as materialist or realist. The article begins with a reconstruction of the basic assumptions of Pašukanis’s hylomorphic theory of law and then moves on to the key issue of his views on the genesis of juridical form. In the light of the analysis, the article shows that the essence of law in J Pašukanis’s view is that it is a form that shapes and makes possible the relations of economic exchange that constitute its proper matter. Against this background, the article addresses the issue of the autonomy of law, indicating that it should be considered in two dimensions: the internal autonomy of law, i.e. the autonomy of juridical form in relation to its content, and the external autonomy of law, i.e. the autonomy of law in relation to the state, politics and ideology. When it comes to the internal autonomy of law, the paper points out that the relationship of the form of law to its matter is – in Pašukanis’s view – of a dialectical nature, which results in his rejection of Marx’s conception of law as a ‘superstructure’ reflecting economic relations in the ‘base.’  When it comes to the external autonomy of law, Pašukanis is firmly on the side of a hard ontology of law, based on its hylemorphic substance (the composite of the matter of acts of exchange and its legal form), which makes law primary vis-à-vis the state and politics and essentially distinct from ideology. This does not, of course, exclude the ideological nature of law, but – again contrary to Marxists – Pašukanis does not allow for the recognition of law as an essentially ideological phenomenon.

Keywords: autonomy of law, ideology, hylomorphism, juriscentrism, juridical form, legal form, Pašukanis

Language: Polish

Published: nr 4(41)/2024, pp. 91-103

DOI: https://doi.org/10.36280/AFPiFS.2024.4.91

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Number of downloads: 309

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Autonomy of Law in the Face of Bioethical Problems

Dr hab. Martyna Łaszewska-Hellriegel, prof. UZ

The University of Zielona Góra

English abstract: The article deals with the issue of the autonomy of law in bioethics. The first part of the text briefly presents the concepts of the autonomy of law developed by the doctrine, which are then juxtaposed with the specifics of bioethics. In epistemological terms, bioethics is a kind of hybrid, which will consist of both scientific claims and ethical arguments. The article asks whether we can speak at all about the concept of autonomy of law in bioethical issues? Or will legal arguments always depend on ethical principals? Finally, in which cases of bioethical argumentation can autonomy of law be seen? In this context, first of all, it draws the attention to the main task of bioethics, namely, the search for pragmatic solutions.

Keywords: Autonomy of law, bioethics, specificity of bioethics, postulate of moral autonomy of law, neutrality of law.

Language: Polish

Published: nr 4(41)/2024, pp. 81-90.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.81

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Number of downloads: 261

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In Search of the Nomos of Law. Classical Interpretations and New Challenges to the Autonomy of Law

Dr hab. Maciej Pichlak, prof. UWr

The University of Wrocław

Dr Mateusz Wojtanowski

The University of Wrocław

English abstract: The aim of this article is to expose the concepts of the autonomy of law and, more primary, the nomos of law, together with the problems that these concepts imply. Contemporary challenges of legal practice and legal science, such as crises of the rule of law or the juridification of successive spheres of social life, call for a re-positioning and rethinking of the question of the autonomy of law. As the article points out, the discussions around these challenges can be read as disputes about the nomos of law – its possibility, nature and location. In this vein, the article analyses the concept of the nomos of law and then, with reference to Carl Schmitt’s interpretation of this notion, addresses the question of the possibility of the autonomy of law. The article also reconstructs the basic theoretical positions on the nature of the nomos of law and the autonomy of the legal order, with particular reference to the output of the Wrocław school of legal theory and philosophy of law in this area. Against this background, selected current challenges to the autonomy of law are considered.

Keywords: Autonomy of law, nomos of law, Wrocław school of legal theory and philosophy of law, Włodzimierz Gromski, crisis of autonomy of law, Carl Schmitt

Language: Polish

Published: nr 4(41)/2024, pp. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.5

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Number of downloads: 333

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Polish Penal Law and Ethical Issues Relating to Transplantation

Prof. UŚ dr hab. Olga Sitarz

University of Silesia

Abstract: The purpose of this publication is to systematize the present ethical problems relating to transplantation and to confront them with penal legislation, from which norms prohibiting certain types of conduct with regard to transplantations may be derived. The starting point for the analysis is a consideration of the fundamental ethical values required both in the treatment process as such and in transplantation in particular (principle of respect for autonomy, nonmaleficence, benevolence, and justice). Therefore, the problem of admissibility of transplantology as such must be touched upon, along with its tenets and preconditions and, most importantly, with commercialization of the organs intended for transplantation. In the Polish legal system, transplantation is regulated by the 2005 Act on the Removal, Storage and Transplantation of Cells, Tissues and Organs. The Act is a specific Polish response to the doubts and dilemmas relating to transplantation. In this context, special significance attaches to the penal provisions which impose liability for transplantation-related crimes. It is noteworthy that criminalization of paid activities relating to transplantation has a rather complex and specific history. It follows from the evolving evaluation of the social harmfulness of prohibited acts, which in itself gives rise to certain controversies. There are also doubts as regards the object of protection of some crime definitions and the scope of criminalization.

Keywords: transplantation, organ trade, criminalization of commercialization of trade in organs

Language: Polish

Received: 17.08.2018
Accepted: 31.12.2018

Published: Number 1(19)/2019, pp. 51-62

DOI: https://doi.org/10.36280/AFPiFS.2019.1.51

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Number of downloads: 734

Thematic Collections

The thematic collections of the “Archive of Philosophy of Law and Social Philosophy” organise our output around the great questions of legal theory and philosophy. Each joins a substantive introduction with a selection of texts published in the journal; all are available free of charge in open access.

Guide to the classics

Currents and positions

  • Legal Positivism – We show how Austin, Kelsen, Hart and Raz argue about the nature of law – and how their critics reply.
  • Natural Law – We trace the oldest tradition of legal philosophy and its contemporary readings.
  • Conventionalism and Constitutive Rules – We ask how rules constitute conventional acts in law and whether law rests on social convention.
  • Principles of Law – We ask what the notion of a legal principle means and what role principles play in the legal system and in legal argument.
  • Ius and Lex – On the Concept of Law – We take on the oldest question of legal philosophy: what law actually is, and how ius differs from lex.

Interpretation, values and practice

  • Legal Interpretation – We show how the meaning of a legal text is established and where interpretation reaches its limits.
  • Aesthetics of Law – We explore the links between law and beauty – a recognisable Polish speciality.
  • Law and Morality – We ask how law is bound up with morality and with the ethics of the legal profession.
  • Instrumentalization and the Autonomy of Law – We weigh the tension between law as an instrument of politics and its autonomy.
  • Rationality – We ask what lies behind the assumption of a rational legislator and how rationality in law is to be understood.

For authors

Planning a text within one of these areas? The “Archive” publishes articles in legal theory and philosophy in Polish and English, in open access with no publication charges and with double-blind peer review; indexed in Scopus, DOAJ and ERIH PLUS (100 points on the Polish ministerial list). See the guidelines for authors.

Issue 4(41)/2024 of the „Archiwum…” is now available

Welcome to the issue 4(41)/2024 of the „Archiwum Filozofii Prawa i Filozofii Społecznej”. It is a thematic issue entitled: „Autonomy of Law: Classical Interpretations and New Challenges”, edited by Prof. UWr Dr. Maciej Pichlak and Dr. Mateusz Wojtanowski. The issue includes the following texts:

Articles:

Prof. UWr dr hab. Maciej PICHLAK, Dr Mateusz WOJTANOWSKI

In Search of the Nomos of Law. Classical Interpretations and New Challenges to the Autonomy of Law

Dr Paweł JABŁOŃSKI

On the Difference Between a Strong and Weak Version of the Idea of an Internal Point of View

Prof. UAM dr hab. Karolina M. CERN, Prof. UAM dr hab. Barbara JANUSZ-POHL

„Back and forth” – The Rule of Law from its Origins to its Application in the Adjudication of the CJEU

Prof. dr hab. Przemysław KACZMAREK

Goodbye, Rule of Law? Diagnosis and Perspective

Prof. UG dr hab. Maciej WOJCIECHOWSKI

The Structural Determinants of Attitudes of Distrust in the Practice of Professional Roles by Representatives of Selected Legal Public Trust Professions

Prof. UZ dr hab. Martyna ŁASZEWSKA-HELLRIEGEL

Autonomy of Law in the Face of Bioethical Problems

Dr hab. Rafał MAŃKO

The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr Karol GREGORCZUK

Legal and Political Positivism – Uberto Scarpelli’s Concept

From the life of the Polish Section of IVR:

The Results of the Competition of the Association of Philosophy of Law and Social Philosophy – Polish Section of IVR for the Best Doctoral Thesis in the Field of Theory and Philosophy of Law

The issue is available HERE.

Number 4(41)/2024 [PL]

Articles:

Prof. UWr dr hab. Maciej PICHLAK, Dr Mateusz WOJTANOWSKI

In Search of the Nomos of Law. Classical Interpretations and New Challenges to the Autonomy of Law

Dr Paweł JABŁOŃSKI

On the Difference Between a Strong and Weak Version of the Idea of an Internal Point of View

Prof. UAM dr hab. Karolina M. CERN, Prof. UAM dr hab. Barbara JANUSZ-POHL

„Back and forth” – The Rule of Law from its Origins to its Application in the Adjudication of the CJEU

Prof. dr hab. Przemysław KACZMAREK

Goodbye, Rule of Law? Diagnosis and Perspective

Prof. UG dr hab. Maciej WOJCIECHOWSKI

The Structural Determinants of Attitudes of Distrust in the Practice of Professional Roles by Representatives of Selected Legal Public Trust Professions

Prof. UZ dr hab. Martyna ŁASZEWSKA-HELLRIEGEL

Autonomy of Law in the Face of Bioethical Problems

Dr hab. Rafał MAŃKO

The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr Karol GREGORCZUK

Legal and Political Positivism – Uberto Scarpelli’s Concept

 

From the life of the Polish Section of IVR:

The Results of the Competition of the Association of Philosophy of Law and Social Philosophy – Polish Section of IVR for the Best Doctoral Thesis in the Field of Theory and Philosophy of Law

 

Around Selected Themes in the Moral Philosophy of Joseph Raz. Part II

Prof. dr hab. Beata Polanowska-Sygulska

Jagiellonian University in Kraków

English abstract: Prima facie duties central to W.D. Ross’s concept of ethical conflict and principles of law, which are, in turn, central to R. Dworkin’s individualistic conception of law as interpretation, show similarities in the process of their application. A comparative analysis of prima facie duties and principles of law leads to the conclusion that there is a shared essence underlying the notion of normative conflict (collision of prima facie duties or legal principles in so-called “hard cases”). This essence consists in the assumed importance of the factual situation as a factor determining an ethical and legal choice from among conflicting duties or principles, and the importance of the decision-making subject in resolving the conflict. Factuality and the unique subject (whether the “plain man” or “Judge Hercules”) are the factors that condition the possibility of identifying the proper duty and nonabstract right. Simultaneously, these are the factors that establish normative conflicts as disputes not determinable by an abstractly assumed moral principle; they open normativity to new narratives, to development, and to evolution. They individualize the conflict through the individualized nature of facts and the decision-making subject. Thus, a comparative analysis may lead to the conclusion that the assumption of openness to collisions of principles and duties is an expression of liberal thought, as it is not a narrative that imposes or excludes. Any abstract approach to conflict resolution is inherently oppressive, as it disregards the importance of the decision-making subject and the complexity of factual situations. Individualism opens up the conflict rather than closing it. This is the nature of declarations of individual rights and freedoms – when conceptualized as legal principles, they inevitably expose rights and freedoms to conflict.

Keywords: Joseph Raz, perfectionist liberalism, personal autonomy, group rights as a category, political conception of human rights, Ronald Dworkin, ethical monism

Language: Polish

Published: Number 2(43)/2025, pp. 42-57.

DOI: https://doi.org/10.36280/AFPiFS.2025.2.42

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Number of downloads: 234

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Pygmalion’s Digital Dream: An Outline of Philosophical and Legal Issues of Human Digital Twins on the Example of Medical Applications

Dr hab. Tomasz Widłak, prof. UG

University of Gdańsk

English abstract: The aim of the article is to present a synthesis of the technological and social framework of the new, disruptive technology of human digital twins (HDT) and to outline the most important philosophical and legal issues related to it. The latter include ontological and phenomenological aspects in relation to the problem of legal personality and the status of HDT. Due to the universality of the technology and the breadth of issues related to it, the scope of the discussion was limited to examples of the use of technology in health care and medicine. The article presents the possibilities and threats of using HDTs in this area. Selected, most important examples of potential ethical and legal problems posing a challenge to future and current regulations in areas such as privacy and data protection, data quality and ownership, and patient autonomy were also analyzed. The conclusions of the article, point that the changes resulting from this disruptive technology go beyond purely practical aspects and touch the philosophical foundations of the legal order. HDT technology itself, at its early stage of development, does not clearly determine the direction of evolution of legal humanism paradigm towards inclusive posthumanism or technological transhumanism. The need to consider the phenomenological perspective of the HDT experience was emphasized. It may become the most important factor determining possible conceptual changes in law and jurisprudence. In addition to the discussion, the article provides an extensive review of the existing computer science literature on HDT. There have been no studies on the issue of HDT from the perspective of jurisprudence in the legal literature so far.

Key words: Human digital twin, personalized medicine, artificial intelligence, new technology law, medical law, transhumanism, digital clone.

Language: Polish.

Published: no. 1(42)/2025, pp. 93-111.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.93

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Number of downloads: 267

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