Search Results for: Autonomy of law

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

Dr Paweł Jabłoński

The University of Wrocław

English abstract: This article aims to theoretically expose the claim that the choice between framing the activity of courts in hard cases as “purely political” or “purely juridical” activity is a false choice. I achieve this goal in the following way. First, I introduce the notion of an epistemic account of the internal point of view, which is linked to the conditions of legal cognition. Then I propose a distinction between a strong and weak account of the internal point of view so understood. Such criteria as the autonomy of the law, the relevance of the subject factor in the application of the law, or the arguability of the content of the law play a fundamental role here. Next, I provide a more detailed characterization of the strong view of the internal point of view and the weak one. I try to show that a sharp line between what is legal and what is political is possible only with the adoption of a strong account of the internal point of view. At the same time, I give reasons why such an account of the internal point of view should be rejected. In the concluding section, I briefly summarize the most important findings.

Keywords: internal point of view, legal cognition, Hart

Language: Polish

Published: nr 4(41)/2024, pp. 19-35.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.19

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Number of downloads: 326

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Call for Papers – 31.03.2025

All interested researchers are invited to submit proposals for articles to be included in the thematic issue of “Archiwum Filozofii Prawa i Filozofii Społecznej”. The provisional title of the issue is “Freedom of speech of a university teacher: Between the known and the unknown”. It will consist of English and Polish-language texts.

The aim of the volume is to take a multifaceted look at the above-mentioned problem area. The issues addressed may cover fields such as: freedom to conduct scientific research and to communicate the results obtained; freedom of expression in academic teaching; autonomy and self-governance of higher education institutions. The framework of the volume includes analyses of relevant laws (from Polish or any other jurisdiction), historical-legal research and philosophical reconstructions of the idea of the university and the academic ethos, as well as socio-cultural diagnoses of the specific situation of the contemporary academy in Poland and worldwide.

As an invitation to collectively identify what we know about the scope of academic freedom of expression, and what remains unclear and thus requires further research and discussion, we present the following sample questions for consideration:

What expectations are formulated in the broadly understood public debate about academic research and teaching practice? To what extent do values such as truth, the development of knowledge, and the practical usefulness of results inform these expectations?
What are the limits of academic freedom of expression? Should its scope be different from the freedom of expression of those who do not have such a role? Does the role in question affect the scope of the freedom of expression he or she expresses outside the purely professional sphere (research and teaching), for example in public debate or in the private sphere?
What factors determine the limits of a university teacher’s freedom of expression? To what extent does the scope of this freedom depend on the context of a given society (historical, cultural, etc.)?
How do the changes in the structure of social communication brought about by the development of new technologies, in particular the Internet, affect the freedom of expression of an academic teacher?
To what extent is academic discourse responsible for the state of the public sphere? With regard to this question, is it possible to make a generalisation about people in the academy, or does the specific field they represent have an impact on the answer?
Should the academy maintain neutrality in relation to ongoing political disputes at the domestic and global levels? If so, what precisely constitutes such neutrality? If not, what are the limits and requirements for the academy and its individual representatives to engage in such disputes?

The volume will be edited by Dr Paweł Jabłoński (UWr), Prof Przemysław Kaczmarek (UWr) and Dr Mateusz Wojtanowski (UWr) as the fourth issue of the “Archiwum” in 2025. Article proposals should be sent to mateusz.wojtanowski2@uwr.edu.pl by 31 March 2025. Texts have to be prepared according to the editorial standards used by the “Archiwum” (detailed guidelines for authors are available at: https://archiwum.ivr.org.pl/wp-content/uploads/2021/06/Editorial-standards-ENG-zm.1.docx, with a maximum of 35,000 characters, including spaces and footnotes). For any further information, please contact the editors of the volume: pawel.jablonski@uwr.edu.pl, przemyslaw.kaczmarek@uwr.edu.pl, mateusz.wojtanowski2@uwr.edu.pl

Deliberative Philosophy of Administrative Sciences

Prof. UAM dr hab. Karolina M. Cern

Adam Mickiewicz University in Poznań

English abstract: This article formulates the thesis that research is needed in the field of deliberative philosophy of administrative sciences. First of all, three general premises for the formulation of this thesis are indicated, namely: 1) the principle of sovereignty, understood in deliberative democracy as co-original with the rule of law; 2) a deliberative public philosophy which, from a contextual and particularistic point of view, considers the addressee of law as a full participant in the debate on law; and 3) the abstract principle of autonomy of will, according to which the addressee of law should also be able to understand themselves as an author of law. In the following steps, these general premises are analysed in the context of the triad of administrative sciences in order to provide more detail and context for the main thesis.

Keywords: administrative sciences, deliberative democracy, co-originarity of the rule of law and the principle of sovereignty, deliberative public philosophy, public rights

Language: Polish

Published: Number 4(33)/2022, pp. 6-20

DOI: https://doi.org/10.36280/AFPiFS.2022.4.6

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Number of downloads: 415

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Social Reading of the Constitution of the Republic of Poland versus Constitutional Axiology and Constitutional Social Ontology

Dr Paweł Skuczyński

University of Warsaw

English abstract: The paper aims to propose a social reading of the Constitution of the Republic of Poland as an alternative to liberal and republican interpretations. It was developed with the use of an interdisciplinary methodology, including the use of societal constitutionalism as its theoretical basis, as well as its formal-dogmatic justification and its characterisation in the perspective of the theory of law as relating to the social ontology expressed in the Constitution of the Republic of Poland. A thesis is put forward that the social reading of the Constitution consists in recognizing some social entities as constitutional entities, next to individuals and the State. Consequently, the norms concerning them should be interpreted as obliging the state authorities to ensure their influence on public policies and the law-making, and to take into account the bottom-up creation of norms and broadly understood self-regulation. Four arguments for the social reading of the Constitution of the Republic of Poland are presented, which are based on: 1) the scope of the constitutional regulation (extensive regulation in Chapter 1 of social and public entities such as local and professional self-government bodies, trade unions, and employers’ organizations, civil society organisations, churches, and religious unions); 2) the way they are regulated (despite the identity of the designatum, regulating these entities alongside the concept of a sovereign nation and imposing certain obligations on the State authorities towards them); 3) the historical context of the making of the Polish Constitution (building the autonomy of society in relation to the state as a strategy of resistance from the 1970s); 4) the work on drafting the Polish Constitution (the gradual addition of provisions on social entities, often due to pressure exerted by, which was an expression of far-reaching self-constitutionalisation).

Keywords: societal constitutionalism, social ontology, constitutional values

Language: Polish

Published: Number 1(30)/2022, pp. 100-112

DOI: https://doi.org/10.36280/AFPiFS.2022.1.100

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Number of downloads: 491

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Deliberative Legal Education. Reflection on the Relationship Between the University and Legal Culture

Dr Aneta Jakubiak-Mirończuk

Cardinal Stefan Wyszyński University in Warsaw

English abstract: The university, as an intellectual community and space of research, education and development, shapes the academic culture. The aim of education is to provide law graduates with knowledge – undoubtedly crucial for practicing the profession, but also with competences and skills enabling them to participate in the legal culture. Deliberation is a process in which, through conscious, responsible and cognitively-oriented action, a rational, but also reflective change is possible, taking into account both the preferences of entities and, at the same time, the dynamics of the changing world around them. An organization of the university based on the philosophy of deliberation is in line with the academic tradition based on cognitive autonomy, understood as the right of researchers and students to freedom of learning and teaching.

Keywords: deliberative philosophy, legal education, legal culture

Language: Polish

Published: Number 4(29)/2021, pp.30-44

DOI: https://doi.org/10.36280/AFPiFS.2021.4.30

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Number of downloads: 729

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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: 484

David J. Luban’s legal ethics: moral evaluations of acts, subjectivity, responsibility

Dr hab. Przemysław Kaczmarek

University of Wrocław

English abstract: The purpose of this paper is to present the theory of legal ethics by David J. Luban. The reading of this American philosopher’s project I would like to propose focuses around the three pillars mentioned in the title: the moral evaluation of acts, subjectivity, and moral responsibility. Luban’s theory postulates maintaining the autonomy of an individual performing a lawyer’s role in relation to the institutional structure. Therefore, a lawyer’s activity should be characterised by anxiety and questions ‘what should I do?’ The main axis of Luban’s project is criticism of the standard view supporting the principle that institutional morality is independent of social or individual morality. The principle of neutrality assumes that the morality of a professional role should be limited to the institutional dimension. Such an approach is supposed to prevent (especially in case of an attorney) any individual assessments of the client’s behaviour, or – in a broader sense – performing the professional role at one’s own discretion.

Keywords: legal culture, legal ethics, professional role, subjectivity/structure, moral responsibility

Language: Polish

Received: 06.06.2017
Accepted: 16.08.2017

Published: Number 1(16)/2018, pp. 21-33.

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Number of downloads: 497

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