Search Results for: international society

Philosophy of Right for Lay Judges. Hegel’s and Fichte’s Perspective

Prof. dr hab. Ewa Nowak

Adam Mickiewicz University in Poznań

English abstract: The article, following an outline of the historical context, designs a normative justification of citizens’ participation in the public administration of justice on the basis of the philosophy of right of Georg W.F. Hegel and Johann G. Fichte. Their complementary philosophies of right provide solid foundations for a modern philosophy of right for lay judges (also called honorary judges). It is further argued that Hegel’s concept of the honorary judge as a subject who realizes their right to political and legal self-awareness and is integral to the administration of justice has greater and more topical potential than its equivalent in Fichte’s writings. Fichtean honorary judges act outside the legal framework, by virtue of a civic contract on reciprocal judicial support in emergency. All inquiries, documented with sources, due to the novelty of the issue, lead to the following conclusions: 1) lay judges’ activism according to Fichte “invalidates” a wrongful, defective or unjust law. In this way Fichte anticipates Radbruch’s Formula; 2) Hegelian honorary judges have impact on the real transformation of modern, atomistic society of idiotes (individuals with private interests) into a society of polites (as in the ancient Greek politeia or Roman res publica), transform institutions into public bodies in the strong sense of this term; finally, they prevent the alienation of society and law.

Keywords: participatory judiciary, lay judge, honorary judge, Hegel, Fichte, Radbruch, political transformation of society and public institutions, alienation of law and society

Language: Polish

Published: Number 4(33)/2022, pp. 52-69

DOI: https://doi.org/10.36280/AFPiFS.2022.4.52

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Number of downloads: 409

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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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The Crisis of Dialogue and Political Community: Philosophical Reflections on the Relationship Between Pluralism, Difference and Dialogue

Dr hab. Anna Rossmanith

University of Warsaw

English abstract: The aim of this article is to present the relationship between pluralism, difference and dialogue as the foundation of an open society. The fundamental philosophical perspective of the study is centred around unique Levinas’ ethics. According to Levinas, we can see a difference as a creative component of a community and therefore abandon the ontological notion of the world understood as a whole and totality. In the undertaken considerations, the author refers to categories such as polis, deliberative democracy and external morality of law.

Keywords: dialogue, political community, polis, pluralism, difference, communication, open society

Language: Polish

Published: Number 1(30)/2022, pp. 91-99

DOI: https://doi.org/10.36280/AFPiFS.2022.1.91

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Number of downloads: 452

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Introduction to the Fidelity to the Constitution

Szymon A. Gasz, Marek P. Kaczmarczyk

University of Warsaw

English abstract: The time of changes taking place in the constitutional order, both constitutional and fait accompli changes, is undoubtedly an interesting opportunity for in-depth analyses. These analyses can be made from various perspectives. The authors focus on three basic perspectives – that of law, philosophy and political science – in order to investigate what they refer to as constitutional fidelity. The limited framework of the paper only permits providing an introduction to the subject. In this text, the authors indicate the basic categories of constitutional fidelity, reflect on the dimensions of this fidelity, and try to propose a solution to the puzzle of the future of Polish constitutionalism. The entire analysis repeatedly refers to sociological and, to some extent, psychological categories, because constitutional fidelity is, first of all, a proper civic attitude and a relationship, the awareness of which is often only discovered at a moment of crisis.

Keywords: constitution, constitutionalism, fidelity to the constitution, constitutional crisis, legal interpretation, civic society

Language: Polish

Published: Number 1(30)/2022, pp. 17-32

DOI: https://doi.org/10.36280/AFPiFS.2022.1.17

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Number of downloads: 472

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Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution

Dr hab. Maciej Pichlak

Uniwersytet Wrocławski

English abstract: The article aims to analyse legal constitutionalism and populist constitutionalism as two dominant ideological positions in the constitutional discourse of the last decades. The analysis is focused on the exemplifications of these positions in writings of selected Polish legal scholars, in the context of the Polish constitutional crisis of the rule of law, and conducted from the perspective of the philosophy of reflexivity. This theoretical and methodological approach enables demonstrating that the two examined doctrines – despite all the differences between them – share common erroneous assumptions regarding the relationships between law, democracy, and constitutional practice. Both of them strive to shape this practice in a closed-end and monological manner, subjected to one particular type of rationality. For legal constitutionalism, this will be juridical rationality, and for its populist counterpart – political rationality. This shared fallacy makes their ongoing dispute futile. An alternative approach to constitutionalism is to take into account the fundamental reflexivity of constitutional practice (regarded as the practice of creating, applying and interpreting a constitution, and of public debate on its text). In line with the general characteristics of reflexivity, constitutional practice appears as an open and pluralistic process, mediating between different viewpoints in society. Such an alternative is important not only when considering the Polish constitutional disputes, but also in the broader context of the contemporary crisis of liberal-democratic constitutional orders.

Keywords: legal constitutionalism, populist constitutionalism, reflexive constitutionalism, reflexivity of law, constitutional crisis, crisis of the rule-of-law state, crisis of the rule of law

Language: Polish

Published: Number 1(30)/2022, pp. 63-73

DOI: https://doi.org/10.36280/AFPiFS.2022.1.63

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Number of downloads: 476

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Hegel’s Critics on Legal Profession

Mgr Maksymilian Hau

University of Warsaw

English abstract: The aim of the article is a question about the actuality of the Hegelian concept of law, presented in the Principles of the philosophy of law. For Hegel, the law is the most important element in the structure of a capitalist society, because it funds the mutual recognition of individuals, which gives social relationships a foundation not in the dialectic of rule and servitude, but in the submission of all authorities to general legal norms. The analysis of selected contemporary practices that allow for the choice of jurisdiction calls into question the Hegelian concept, since these practices show that the general principle is broken – abstract norms of law no longer have to apply to everyone. The second part of the article is devoted to the analysis of criticism of legal profession to which Hegel accused the responsibility for alienating the law from society and thus blurring the relationship between law and freedom. The question will be asked whether Hegel’s criticism can be applied to contemporary problems in the relationship between law and society. Whether the law continues to be, as Hegel wanted it to be, a rational means of meeting the needs of individuals, or whether, on the contrary, it is increasingly becoming a source of exploitation.

Keywords: Hegel, Principles of philosophy of law, recognition, exploitation, legal profession

Language: Polish

Published: Number 3(28)/2021, pp. 69-81

DOI: https://doi.org/10.36280/AFPiFS.2021.3.69

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Number of downloads: 371

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Maintaining social order and conflict resolution in non human primates

Dr Mateusz Stępień

Jagiellonian University

English abstract: In this article author presents a synthesis of previous primatological studies concerning problem of sociality, social order and conflict resolution in non human primates. First part contains discussion about the advantages and disadvantages of sociality – treated as a one of the many possible form of living together – from an evolutionary perspective. The question is: what are fitness consequences of sociality? An inherent sources of conflicts (which reduce fitness) associated with the social living are discussed in next part. This is a necessary background for an analyze of an existing mechanisms for maintaining social order (including preventing and solving conflicts) in various non human primates societies. This are very nuanced and not easy to notice at the first glance natural mechanisms which enable to benefit from sociality despite the fact of the huge evolutionary cost of it. As author argues, the social sciences can gain many benefits from reflective and critical interest of the wider problem of sociality and social order discussed in primatology. This is clearly not a comprehensive study on these issues, but rather an attempt to draw attention to the basic topics and try to start interdisciplinary discussion over them.

Keywords: sociality, social order, conflict management, primatology, evolution

Language: Polish

Published: Number 2(3)/2011, pp. 76-91.

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Numeber of downloads: 422

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