Search Results for: fundamental rights

The Choice of a Way of Life and the Consciousness of a Fundamental Rights

Prof. UŁ dr hab. Bartosz Wojciechowski

University of Lodz

English abstract: The article deals with the need for acceptance of pluralism of ways of life in modern legal orders, which should allow each individual to find his or her own modus vivendi in a diverse world. Such an attitude is particularly important in the discussion on LGBTQ rights, for which the starting point is the case law of the Supreme Administrative Court in these matters. The author points out that proper exercise of rights and tolerance for pluralism of values, beliefs and ways of life is not possible without legal consciousness of the entities belonging to certain minorities, which is built by a sensitive and pluralistic attitude of judges, reflected in their judgments.

Keywords: equality, (non)discrimination, identity, legal consciousness, axiological pluralism, human dignity, recognition

Language: Polish

Published: Number 2(31)/2022, pp. 97-108.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.97

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Number of downloads: 494

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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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Reflections on the Dynamism and Deliberativeness in the Interpretation of Law on the Example of Cases Concerning LGBTQ+ Rights

Prof. UŁ dr hab. Bartosz Wojciechowski

University of Łódź

English abstract: The article illustrates the numerous contexts and the multifaceted nature of the LGBTQ+ persons’ rights to citizenship, to have a correct civil status record, or to benefit from tax reductions or exemptions of on the same terms as other citizens, e.g., those in heterosexual unions. It shows how complicated it has become to adjudicate on matters that, in view of the subject-matter of regulation, should be relatively clear and predictable. Reflective interpretation of law makes it possible to take into account its non-eliminable changeability, as well as the fluidity of meaning of terms and phrases used in legal texts – factors which oblige the interpreter to refer to extra-linguistic contexts of interpretation, i.e., to functional and systemic arguments. The author considers that it is not possible to reach an adequate understanding of the current legal context without analysing the social and cultural context, especially when
considering pluralism of values as the modus vivendi of a democratic society.

Keywords: deliberativeness, LGBTQ+, fundamental rights, identity, hard cases, interpretation of law

Language: Polish

Published: Number 4(33)/2022, pp. 21-38

DOI: https://doi.org/10.36280/AFPiFS.2022.4.21

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Number of downloads: 501

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Truth Revelation Procedures as a Rights-based Alternative to the Politics of (Non-)Memory

Mgr Emilia Kowalewska

Polish Academy of Sciences

English abstract: This article offers a socio-legal reflection on the relation between law, state obligation, and attempts to institutionalize collective memory. As the question of memory institutionalization becomes most pertinent in the context of regime change that imposes on an incumbent government certain expectations for addressing the past, the article considers this research problem from the perspective of transitional justice theory. The transitional justice paradigm allows for an interdisciplinary consideration of the topic. Special attention is paid to legal norms and mechanisms directed towards establishing authoritative knowledge about the past. The emerging principle of the right to truth is presented as an integrating and rights-based perspective from which to approach societal demands for acknowledging injustices of the past. Measured against the fundamental rights that lie at the heart of transitional justice theory, three types of truth revelation procedures are presented. The article shows that the relationship between law and memory – which is often reduced to one of political instrumentalization – should, in accordance with the values of a liberal democracy, be reframed from the perspective of individual and collective rights. The article seeks to contribute to the field of memory studies in the social sciences by exposing functions of legal norms and mechanisms that are often overlooked when discussed from the perspective of the politics of memory.

Keywords: collective memory, truth revelation procedures, transitional justice, right to truth, politics of memory, post-communist Poland

Language: English

Published: Number 3(21)/2019, pp. 51-66.

DOI: https://doi.org/10.36280/AFPiFS.2019.3.51

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Number of downloads: 669

Lord Patrick Devlin’s Concept of Public Morality in the Light of Case Law of the European Court of Human Rights

Mgr Kamil Jesiołowski

University of Business and Administration in Gdynia

English abstract: The aim of this article is to present the case law of the European Court of Human Rights (ECtHR), in cases concerning public morality, in the context of one of the most important debates in 20th century legal philosophy: the dispute between Patrick Devlin and Herbert L.A. Hart. In order to achieve this aim, I first describe the key theses defended by these scholars and explain the historical circumstances in which the debate arose. Then I analyse the most salient judgements passed by the ECtHR, which defined rules of the acceptable limitation of individual rights guaranteed by the European Human Rights Convention due to the moral norms existing in a society. I conclude that the reasoning adopted by the ECtHR in these cases resembles Devlin’s propositions to some extent. Furthermore, I claim that a reference to inherent and inalienable human dignity might be considered a sound solution in some doubtful cases in which moral problems or rights restrictions appear. Finally, I show that legal moralism, as a vein in the philosophy of law, has its adherents in contemporary science, too. However, the views presented by new legal moralists fundamentally differ from those postulated by Patrick Devlin in his time.

Keywords: Devlin, Hart, legal moralism, ECtHR judgments

Language: Polish

Published: Number 1(22)/2020, pp. 37-51.

DOI: https://doi.org/10.36280/AFPiFS.2020.1.37

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Number of downloads: 849

Why do we consider a use of tortures – a collision of fundamental principles of the legal system

Mgr Paweł Przygucki

University of Łódź

English abstract: The article focuses on the dispute about the possibility of legalizing tortures in certain circumstances, that is so-called ‘ticking bomb scenario’ and ‘innocent hostage scenario’. Those cases occurred in reality, thus they triggered a discussion about moral and legal aspects of tortures. The aim of this publication is to reveal that in fact the aforesaid issue is a question of a collision of fundamental principles of the legal system – on the one hand there are dignity and rights of the defendant, but on the other should be mentioned such worths as public security or protecting innocent people’ lives. This publication also describes methods of solving a collision of law’s principles (on the basis of R. Dworkin and R. Alexy recommendations) as well as attempts to propose a specific penal law reaction to a crime of torture committed by a police officer or any other public investigator.

Keywords: tortures, collision of principles, ticking-bomb scenario, innocent hostage scenario

Language:Polish

Published: Number 2(7)/2013, pp. 63-70

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Number of downloads: 410

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.

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

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: 436

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Issue 1(30)/2022 „Archiwum…”: „Constitution and Values – Yesterday and Today” 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 “Constitution and Values – Yesterday and Today”. The issue was edited by prof. UW dr hab. Tatiana Chauvin, and includes the following papers:

Prof. Prof. UW dr hab. Tomasz Stawecki: Piotr Winczorek: Researcher, Teacher and Friend
Szymon A. Gasz, Marek P. Kaczmarczyk: Introduction to the Fidelity to the Constitution
Prof. UMK dr hab. Aleksandra Kustra-Rogatka: Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues
Prof. dr hab. Leszek Leszczyński: General Constitutional Clauses: Between the Legislative Construction and Its Implementation
Dr Wojciech Mojski: Analysis of the Constitutional Crisis from the Perspective of the Constitution’s Axiological Function. Outline of Basic Theoretical Issues
Dr hab. Maciej Pichlak: Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution
Dr Marcin Romanowicz: Instrumentalization of Law and the Constitutional Crisis: Reflection on the Basis of Several Topical Findings of Professor Piotr Winczorek
Dr hab. Anna Rossmanith: The Crisis of Dialogue and Political Community: Philosophical Reflections on the Relationship Between Pluralism, Difference and Dialogue
Dr Paweł Skuczyński: Social Reading of the Constitution of the Republic of Poland versus Constitutional Axiology and Constitutional Social Ontology
Prof. UŚ dr hab. Sławomir Tkacz, prof. dr hab. Zygmunt Tobor: Remarks About the Axiological Dimension of the Polish Constitution of 1997 and Its Interpretation in the Light of Works of Professor Piotr Winczorek

The issue also includes the introduction Constitution and Values – Yesterday and Today: Introduction by prof. UW dr hab. Tatiana Chauvin, and The statement of Presidium of the Association for Philosophy of Law and Social Philosophy – Polish Section of IVR on the aggression of the Russian Federation against Ukraine.

The issue is available HERE.