Search Results for: constitutional protection

About the Pro-Constitutional Interpretative Directive In Dubio Pro Vita Humana

dr Wiktor Krzymowski

Koźmiński University in Warsaw

English abstract: The article discusses the interpretative directive in dubio pro vita humana (Latin: „when in doubt, favour human life”), as well as its popularization, including encouraging public administration bodies and courts to apply it more widely. The article aims to answer the following research problems: What are the main sources of the in dubio pro vita humana directive in the Polish legal system? What is its content and its key assumptions? What are the potential implications of its application in legal practice? What is the object-related scope of its application?
The formal-dogmatic method is used in the study.
The interpretative directive in dubio pro vita humana is rooted in the constitutional protection of human dignity, life and health. It is confirmed in the views expressed by legal scholars, as well as in the case law of the Constitutional Tribunal and administrative courts. However, in order to increase the scale of its application in practice, it should be regulated by law. The content of the directive is such that it requires any possible doubts about the protection of human life to be resolved in favour of this protection. Applying this directive is pivotal for ensuring institutional healthcare in Poland by choosing such a result of interpretation of provisions of law that maximizes the protection of human life and health. Its object-related scope of application is most strongly linked to healthcare law, but it is also applicable to the interpretation of provisions in other branches of law (for example, in criminal or welfare law), even if prima facie they do not seem directly related to the protection of human health and life. The results are important not only for Polish law, but also for the interpretation of foreign laws and EU law. It seems that this directive may also find its application outside the legal system – for solving ethical problems. An offshoot of this study is the possibility of referring at least part of the comments made to the legal protection of animals, which may contribute to its strengthening and to development of legal science in this area (in dubio pro vita animalium).

Keywords: interpretation of law, Constitution, health, life, reimbursement

Language: Polish

Published: nr 3(40)/2024, pp. 27-40.

DOI: https://doi.org/10.36280/AFPiFS.2024.3.27

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Number of downloads: 269

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Issue 2(31)/2022 „Archiwum…”: „The Formation of Constitutional Awareness in Legal and Public Discourse” is available

We invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”, the Journal of the Polish Section of IVR entitled „The Formation of Constitutional Awareness in Legal and Public Discourse”. The issue was edited by Dr Skirgailė ŽALIMIENĖ and prof. UŁ dr hab. Bartosz WOJCIECHOWSKI, and includes the following papers:

Dr Vygantė MILAŠIŪTĖ: Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle
Dr Anna CHMIELARZ‑GROCHAL: On the Possibility of Administrative Courts Shaping Constitutional Consciousness
Dr hab. Anna KALISZ, mgr Dorota PAWLICKA: From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law
Prof. UMK dr hab. Milena KORYCKA‑ZIRK: Types of Judicial Review Tests and the Principle of Proportionality
Prof. AEH dr hab. Małgorzata NIEWIADOMSKA-CUDAK: The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere
Dr Jarosław SUŁKOWSKI: The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases
Prof. UŁ dr hab. Bartosz WOJCIECHOWSKI: The Choice of a Way of Life and the Consciousness of a Fundamental Rights

The issue is available HERE.

The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases

Dr Jarosław Sułkowski

University of Lodz

English abstract: In April 2022 four years passed since the introduction into the Polish legal system of extraordinary appeal – a new instrument for the review of final court judgements. The experience of several years of the functioning of this means of challenge provides an opportunity to analyse it on the basis of the emerging case law of the Supreme Court in the context of not only the effectiveness of this kind of appeal, as seen through the prism of procedural justice in criminal matters, but also in the context of emergence of constitutional awareness. It should be assumed that the legislator wanted to introduce a measure that would strengthen the protection of freedoms and rights, also within the framework of criminal proceedings, and which so far did not exist in such a form – in terms of evaluation of the process of applying the law. A few years after its introduction, the fears that extraordinary appeal would become a politically exploited mechanism have not come true. However, after a few years the first cautious conclusions can be formulated regarding its significance for the reliability of the criminal process. Unfortunately, these conclusions are not optimistic. The extraordinary complaint does not play a significant role in the functioning of the criminal process in the shape outlined by the Polish Constitution.

Keywords: extraordinary appeal, Supreme Court, judicial review (of constitutionality of statutes), constitutional awareness

Language: Polish

Published: Number 2(31)/2022, pp. 84-96.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.84

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Number of downloads: 411

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From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law

Dr hab. Anna Kalisz, mgr Dorota Pawlicka

Maria Curie-Skłodowska University in Lublin, Supreme Administrative Court

English abstract: The aim of the article is to analyse the possibility and necessity of empowering animals as ‘non-personal’ legal subjects under Polish law, indicating the relevant case law (of ordinary and, mainly, administrative courts). The research assumption is the statement that, although administrative case law contains elements of a fairly progressive approach that results in an interpretation of the applicable provisions on the protection and (rudimentarily regulated) animal rights, the existing provisions are far from sufficient and leave quite a lot of room for a very flexible interpretation. That may lead not solely to an animal-friendly interpretation, but also to abuses against them. Therefore, postulated amendments concerning constitutional protection of animal rights deserve attention, as they would be important for the systemic interpretation of law. The research subject is both philosophical and legal literature, as well as case law. The main method is the logico-linguistic analysis (with some elements of historical and comparative approach) of texts on philosophy, including legal philosophy and ethics, as well as the analysis of case law. The research findings have a mixed, descriptive-and-normative character, while the above combination of ethics, legal theory, and legal practice both manifests the evolution of the approach to the titular matter and makes an original contribution to jurisprudence as a scientific discipline.

Keywords: social consciousness, sentient animals, legal protection of animals, animal rights, constitutional protection, administrative case law

Language: Polish

Published: Number 2(31)/2022, pp. 38-53.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.38

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Number of downloads: 476

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On the Possibility of Administrative Courts Shaping Constitutional Consciousness

Dr Anna Chmielarz-Grochal

University of Lodz

English abstract: The article aims to show how administrative courts (in particular the Supreme Administrative Court) participate in shaping the constitutional consciousness of citizens. The main thesis of the article boils down to the statement that administrative courts shape constitutional consciousness through direct application of the provisions of the fundamental law. This thesis corresponds to the assumption that justifications of the judgments being the effect of the application of the constitution have an educational value. Examples from the practice of judicial application of Article 2, provisions on fundamental rights (including those that have the nature of principles: Article 30 and Article 32), and Article 45 in conjunction with Article 184 of the Polish Constitution show that the justifications may fulfil the role of a carrier of knowledge about the fundamental law, the legal institutions regulated by it, and the essence of fundamental rights, taking into account the role of a court as a guarantor of the protection of individual rights.

Keywords: constitutional consciousness, legal consciousness, constitutional identity, direct application of the constitution, pro-constitutional interpretation, constitutional reasoning, administrative courts

Language: Polish

Published: Number 2(31)/2022, pp. 22-37.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.22

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Number of downloads: 435

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Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues

Prof. UMK dr hab. Aleksandra Kustra-Rogatka

Nicolaus Copernicus University in Toruń

English abstract: The dynamic development of judicial review of the constitutionality of laws in the second half of the twentieth century is reflected in contemporary theories of judicial review. They go beyond the original axis of the dispute over the legitimacy of judicial review, which was shaped by the counter-majoritarian dilemma, and often become more nuanced. In addition to arguments related to the conceptions of institutional cooperation and accountability function of judicial review, rights-based theories of judicial review take on more and more importance.

The aim of this article is to outline a wide range of issues related to the protection of fundamental rights, which protection is considered as an argument in the dispute over the legitimacy of constitutional courts. The study presents selected issues that influence the current discourse on judicial review, which include: types of such judicial review; types of arguments used in the analysed discourse; the link between fundamental rights and various concepts of democracy; and judicial review of legislative decisions concerning positive rights guarantees.

Keywords: constitutional courts, fundamental rights, democracy, positive rights

Language: Polish

Published: Number 1(30)/2022, pp. 33-43

DOI: https://doi.org/10.36280/AFPiFS.2022.1.33

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Number of downloads: 454

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Court as the incarnation of the People. Deconstruction of the idea of popular constitutionalism

Dr Arkadiusz Barut

University of Wrocław

English abstract: The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities
of the criticism of its lawmaking.

Keywords: philosophy of law, theory of democracy, popular constitutionalism, Bruce Ackerman

Language: Polish

Received: 22.05.2017
Accepted: 08.08.2017

Published: Number 2(15)/2017, pp. 13-25.

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Number of downloads: 438

Number 2(31)/2022 [PL/ENG]

Dr Skirgailė ŽALIMIENĖ, prof. UŁ dr hab. Bartosz WOJCIECHOWSKI
The Formation of Constitutional Awareness in Legal and Public Discourse. Introduction

Articles:

Dr Vygantė MILAŠIŪTĖ
Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle

Dr Anna CHMIELARZ‑GROCHAL
On the Possibility of Administrative Courts Shaping Constitutional Consciousness

Dr hab. Anna KALISZ, mgr Dorota PAWLICKA
From Legal Protection Towards Animal Rights: Between Moral and Legal Consciousness. Evolution of Approach on the Example of Administrative Case Law

Prof. UMK dr hab. Milena KORYCKA‑ZIRK
Types of Judicial Review Tests and the Principle of Proportionality

Prof. AEH dr hab. Małgorzata NIEWIADOMSKA-CUDAK
The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere

Dr Jarosław SUŁKOWSKI
The Impact of Extraordinary Appeal on an Individual’s Constitutional Awareness. Considerations Against the Background of Extraordinary Appeal Proceedings in Criminal Cases

Prof. UŁ dr hab. Bartosz WOJCIECHOWSKI
The Choice of a Way of Life and the Consciousness of a Fundamental Rights

Types of Judicial Review Tests and the Principle of Proportionality

Prof. UMK dr hab. Milena Korycka-Zirk

Mikołaj Kopernik University in Toruń

English abstract: Judicial review in the jurisprudence of the US Supreme Court can take the form of one of three formulas for examining an act or action of an authority (strict scrutiny test, intermediate scrutiny test, or rational basis test). In the context of the constitutional review each of these tests requires an analysis, of three essential aspects: what kind of individual interest is limited, what form of public interest legitimation is required, and how the means and the purpose so indicated are related. A detailed analysis of these standards of proportion, jurisprudentially developed and evolutionarily tightened, in confrontation with the principle of proportionality used in European constitutions (and documents on international protection of human rights) allows to formulate theses about which standard is stronger, which one creates a barrier providing better protection of individual autonomy, and which is more resistant to ‘steps backwards’ in this respect.

Keywords: judicial review (of constitutionality of statutes), principle of proportionality, strict scrutiny test, intermediate scrutiny test, rational basis test

Language: Polish

Published: Number 2(31)/2022, pp. 54-69.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.54

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Number of downloads: 460

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Interpretation of the Right to an Effective Remedy in Freedom of Expression Cases in the Light of the Rule of Law Principle

Dr Vygantė Milašiūtė

Vilnius University

English abstract: The paper focuses on the protection of freedom of expression of judges and prosecutors who exercise this freedom in their professional capacity to promote the rule of law, but suffer negative consequences as a result. Starting with the ECtHR Kövesi v. Romania judgment, the issues of whether legal remedy, in this context, should necessarily be judicial and what quality requirements it should meet are analysed. The paper finds that the ECtHR requires effective remedies in this field, but does not clearly exclude a possibility of non judicial remedies. The EU law, on the other hand, requires judicial remedies unless there are very limited EU law-based reasons (notably, constitutional identity arguments) that justify a possibility of a non-judicial remedy. Theoretical arguments based on substantive conception of the rule of law support the need for a judicial remedy. The study is an addition to the research into judicial independence in the light of the rule of law. It connects the ECtHR, EU law and theoretical perspectives.

Keywords: judicial independence, prosecutors, freedom of expression, rule of law, remedy

Language: English

Published: Number 2(31)/2022, pp. 7-21.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.7

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Number of downloads: 424

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