Search Results for: jurisprudence Language: English

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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Around Selected Themes in the Moral Philosophy of Joseph Raz: Part I

Prof. dr hab. Beata Polanowska-Sygulska

Jagiellonian University, Kraków

English abstract: One of the most eminent contemporary legal philosophers, Joseph Raz, made significant contributions not only to the aforementioned discipline, but also to political philosophy and moral philosophy, the three branches of which, in his view, contribute to practical philosophy. J. Raz’s achievements in the latter two areas are less familiar to the Polish reader than his concepts in the field of jurisprudence, all the more so because none of his works, which are part of the aforementioned, more general fields, has been translated into Polish. The present essay is devoted to the key threads of the thinker’s inquiries in the field of moral philosophy. The reconstruction made of J. Raz’s views takes into account the following ideas: his original version of ethical pluralism, the concept of constitutive incommensurability, a specific understanding of the universality of values, the thesis of their social dependence and the concepts of personal sense and personal attachment. The interpretation of the Oxford philosopher’s reflections is enriched by two digressions, referring in turn – to Charles Taylor’s critique of the instrumental way of life and to Ronald Dworkin’s underlying jurisprudence of ethical monism. This is because arguments can be derived from the reflections of the protagonist of the essay, which call into question the theses of the two aforementioned thinkers.

The presentation and analysis of the key themes of J. Raz’s moral philosophy is complemented by the author’s reminiscences of her meetings and conversations with the Oxford scholar.

Key words: Joseph Raz, ethical pluralism, constitutive incommensurability, social dependence thesis, personal meaning, personal attachment, universality of values.

Language: Polish

Published: no. 1(42)/2025, pp. 60-76.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.60

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Number of downloads: 360

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Remarks on Lay Judges in Polish Criminal Process Passing Moral Judgements

Dr Paweł Mazur

Adam Mickiewicz University in Poznań

English abstract: The article addresses the issue of the participation of lay judges in passing moral judgements during the stage of adjudication. It attempts to realize the postulate of external integration of jurisprudence by combining the achievements of legal studies and moral philosophy as well as public philosophy in research work.

The basic theses of the article are as follows: lay judges-citizens have the moral competence to pass moral judgements during the process of adjudication. There is no reason to consider a professional judge better prepared to pass moral judgements than a lay one. A broadening of the court panels to include citizens can be seen as a remedy for issues such as: conformism, ignorance, intellectual errors in the judicial discourse. Furthermore, citizens are capable of supplementing the judicial process of application of law with Aristotelian category of reasonableness. The article presents also the threats resulting from lay judges’ participation in the process of passing morel assessments in the criminal process.

Keywords: moral competence, professional judges, lay judges, moral reasoning

Language: Polish

Published: Number 4(33)/2022, pp. 86-97

DOI: https://doi.org/10.36280/AFPiFS.2022.4.86

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Number of downloads: 421

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

Reflective Legal Positivism

Dr hab. Adam Dyrda

Jagiellonian University in Kraków

English abstract: The argument of theoretical disagreement has been deemed the most serious contemporary challenge to the traditional views of law, not merely for academic legal positivists but for all lawyers and scholars. Although coined by Ronald Dworkin for the specific purpose of opposing conventionalist and positivist theories of law, the argument recognises the general truth that jurisprudence is an inevitably agonistic enterprise. Nowadays, it is one of the most discussed arguments in general jurisprudence. In this paper, I follow Shapiro’s idea that legal positivists have to accept the challenge and accommodate the argument – they simply cannot dismiss it as conceptually irrelevant. I briefly reconstruct the argument and discuss three positivist accounts that accommodate the phenomenon of theoretical disagreement. I also argue that one of the common features of these positivistic responses is a tacit acceptance of a holistic and meta-philosophical perspective that allows theoretical disagreements to fit within the boundaries of the legal‒institutional framework. The holistic turn is no surprise given that Dworkin’s methodology is also in principio holistic. I conclude, however, that holistically pimped legal positivism – being a conscious close neighbour of legal realism – is a more reflective theory of law than the Dworkinian one.

Keywords: legal positivism, reflective methodology, holistic pragmatism, law as planning critical legal positivism, institutional theory of law

Language: English

Published: Number 3(32)/2022, pp. 34-48

DOI: https://doi.org/10.36280/AFPiFS.2022.3.34

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Number of downloads: 550

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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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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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Piotr Winczorek: Researcher, Teacher and Friend

Prof. UW dr hab. Tomasz Stawecki

University of Warsaw

English abstract: This article was written to commemorate Professor Piotr Winczorek, who passed away on 9 February 2015. He was associated with the Faculty of Law and Administration of the University of Warsaw for over 50 years. However, the article focuses on three dimensions of Professor’s academic activity: those of a researcher, teacher and friend. Piotr Winczorek’s scientific interests evolved. Initially, he studied the functioning of political parties, especially in Poland during the communist regime. In this context, he tried to study various forms of social and political pluralism. In the 1980s, Piotr Winczorek concentrated on the issues of legal theory, developing his own approach to legal realism. After 1989, Professor focused on issues of public law, especially on axiological assumptions and the practice of constitutionalism, particularly the primacy of the constitution in the legal order, the rule of law, the separation of powers, and equality before the law. Piotr Winczorek was also an extraordinary teacher. He conducted classes with students, initiated new subjects and new curricula. He wrote several textbooks and coursebooks for students, including the textbook Introduction to Jurisprudence, which had 14 editions published over the past 30 years. Professor was also known for his many articles and commentaries on constitutional issues. For his younger colleagues, Piotr Winczorek was a true friend. He would invite them on a daily basis to cooperate, do joint research, and publish together. He also showed great civil courage in defending us against bureaucratic or political attacks. His honesty and wisdom is still remembered well beyond the walls of the University of Warsaw.

Keywords: Piotr Winczorek, researcher, teacher, friend, legal theory, constitutionalism

Language: Polish

Published: Number 1(30)/2022, pp. 8-16

DOI: https://doi.org/10.36280/AFPiFS.2022.1.8

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Number of downloads: 435

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References to Schools of Legal Thought in the Justifications of Judgments of Polish Courts

Prof. UR dr hab. Grzegorz Maroń

University of Rzeszów

English abstract: The article presents the results of a quantitative and qualitative study of the Polish case law in terms of the presence of direct references to schools of legal thought in the written justifications of judgments. Although these types of references are very rare, their intensification can be observed in the last decade. In justifications of court decisions, references were made to just a few strands of jurisprudence. Most references relate to jusnaturalism and legal positivism. Courts characterize schools of legal thought in a simplified and exaggerated manner, and sometimes also incorrectly. The judicature usually disregards the authors’ versions of particular strands of jurisprudence, reaching for the claims derived from these strands in their ‘average’ form. The paper posits that legal philosophy is potentially useful for courts, especially in hard cases. It may help judges to perform the explanatory and persuasive functions of justifications of judgments. The condition for this is that references to the tenets of specific schools of legal thought should not be superficial, shallow or slogan-like. Otherwise, they play only an ornamental role, not an argumentative one.

Keywords: schools of legal thought, justifications of judgments, Polish courts, judicial argumentation

Language: Polish

Published: Number 4(25)/2020, pp. 65-79.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.65

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Number of downloads: 654

A Judge Between the Reality of the Political and Ethical Imperatives: A Reply to the Review by M. Wojtanowski

Dr hab. Rafał Mańko

University of Wrocław

English abstract: The project of a critical philosophy of adjudication – the application of the presuppositions of critical jurisprudence to the area of judicial application of law – is, to a large extent, a polemic with Artur Kozak’s project of juriscentrism. Whereas the critical philosophy of adjudication accepts, by and large, juriscentrism’s claims concerning especially the social construction of legal reality, it does not accept the views concerning the determination of judicial decisions by institutional imperatives. Adopting Duncan Kennedy’s conception of the moderate indeterminacy thesis, critical philosophy of adjudication claims that the imperatives following from so-called traditional legal methods cannot be seen as limiting the judge when she needs to decide an intepretive dilemma. What the judge may perceive as resistance, are in fact ideological, political and economic imperatives, only cloaked in legal form. This leads to the conclusion that, in essence, a judicial decision has a political character, because it is never fully determined in an unequivocal manner by legal materials (provisions, precedents, intepretive habits), but it always remains, to a certain extent, open. In consequence, the judge, acting under the reality of the political (i.e. structural social conflicts) should not only follow the imperatives of the lex (legislation) and the ius (legal tradition), but also should abide by moral imperatives. The latter include, on the one hand, the requirement of transparency of legal reasoning (e.g. not concealing the extra-legal factors behind a decision), and, on the other hand, a conscious choice of the ideological premises of the decision. Critical philosophy of adjudication, as an emancipatory project, prefers in this respect a pro-emancipatory stance of the judge, i.e. that she strives to make decisions maximising the actual scope of freedom of the individual and liberating her from any form of domination.

Keywords: critical philosophy of adjudication, critical legal theory, adjudication, ideology, the political

Language: Polish

Published: Number 4(25)/2020, pp. 127-132.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.127

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Number of downloads: 582

A Judgment of the Court of Justice of the European Union from the Perspective of Cognitive Theory of Prototypes: A Case Study

Dr Mateusz Zeifert

University of Silesia in Katowice

English abstract: Interpretative doubts in the application of law are usually born of discrepancies between the statutory language and the non-linguistic reality. Therefore, they pose the problem of categorization. The theory of law and legal practice have for centuries been dominated by the classical theory of categorization, according to which conceptual categories can be described by a set of sufficient and necessary features. In the 1970s, an American researcher Eleanor Rosch conducted a series of psychological experiments that led her to question the classical theory and lay the foundations for an alternative one, known as the prototype theory. According to this approach, conceptual categories are organized around the most typical exemplars (prototypes), and membership of a category is measured by similarity to the prototype. Some of the consequences of such view are that category membership is a gradable feature and that the borderlines of categories are fuzzy. The article presents an outline of the prototype theory in the version used in cognitive linguistics. Its usefulness for the theory and practice of statutory interpretation is tested on the basis of the judgment of the Court of Justice of the European Union regarding the concept of beer. In this judgment, the CJEU refused to define the concept of beer by setting requirements as to its raw material composition and ruled that beer is a product that has organoleptic characteristics of beer. This definition on the basis of classical theory appears to be tautological, however, it finds theoretical justification in the prototype theory. In conclusions, the author indicates research problems that must be taken up in order for the prototype theory to be reliably used in jurisprudence.

Keywords: categorization, semantics, prototype theory, statutory interpretation

Language: Polish

Published: Number 2(23)/2020, pp. 109-120.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.109

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Number of downloads: 667

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