Archiwum Filozofii Prawa i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVRwww.ivr.org.pl

Search Results for: legal interpretation

In Search of the Nomos of Law. Classical Interpretations and New Challenges to the Autonomy of Law

Dr hab. Maciej Pichlak, prof. UWr

The University of Wrocław

Dr Mateusz Wojtanowski

The University of Wrocław

English abstract: The aim of this article is to expose the concepts of the autonomy of law and, more primary, the nomos of law, together with the problems that these concepts imply. Contemporary challenges of legal practice and legal science, such as crises of the rule of law or the juridification of successive spheres of social life, call for a re-positioning and rethinking of the question of the autonomy of law. As the article points out, the discussions around these challenges can be read as disputes about the nomos of law – its possibility, nature and location. In this vein, the article analyses the concept of the nomos of law and then, with reference to Carl Schmitt’s interpretation of this notion, addresses the question of the possibility of the autonomy of law. The article also reconstructs the basic theoretical positions on the nature of the nomos of law and the autonomy of the legal order, with particular reference to the output of the Wrocław school of legal theory and philosophy of law in this area. Against this background, selected current challenges to the autonomy of law are considered.

Keywords: Autonomy of law, nomos of law, Wrocław school of legal theory and philosophy of law, Włodzimierz Gromski, crisis of autonomy of law, Carl Schmitt

Language: Polish

Published: nr 4(41)/2024, pp. 5-18.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.5

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Number of downloads: 333

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Critical Analysis of the Hypothesis About the Usefulness of the Idea of Conceptual Metaphor in the Interpretation of Law

dr hab. Robert Piszko, prof. US

University of Szczecin

English abstract: Since George Lakoff and Mark Johnson published a book entitled Metaphors We Live By, metaphors and their role in everyday life have been recognised. Metaphor has henceforth ceased to be a means only of poetic imagination and rhetorical embellishment. It began to be seen also as a form of human thinking, a tool of cognition. Metaphor began to be seen in areas of life where it had hitherto been absent. These areas included law. However, the enthusiasm of authors who see the great role of metaphorical imagery in law is not justified. An analysis of the examples of metaphors in legal texts given in scientific studies indicates too much freedom in qualifying certain expressions as metaphors and seeing their role or usefulness where there is none – that is, also in legal texts and in the interpretation of law. Metaphors are mistaken for phraseological compounds and for previously metaphorical expressions that have permanently lost this character as a result of conventionalization or lexicalisation. The potential effect of adopting a cognitivist perspective has previously been otherwise achieved in the legal sciences at the expected level. The results indicated as possible with the tools of cognitive science are nothing new, and the possibility of achieving them is either debatable or impossible. The conceptual metaphor, on the other hand, can play an important role when it comes to the justification of judicial or administrative decisions, the content of law textbooks, statements of doctrinal representatives with regard to the law Using the language of cognitive science, the radial structures of legal and ethical concepts can more promisingly be made the subject of research, which can enable the coexistence of humans and artificial intelligence. The research material was mainly investigated using the method of linguistic analysis.

Keywords: metaphor, phraseological association, conceptual motivation, radial structures, legal reasoning, legal cognition, interpretation of law

Language: Polish

Published: nr 2(39) 2024, p. 19-33.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.19

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Number of downloads: 347

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Intentional Character of the Interpretation of the Holy Scripture and the Interpretation of Law

Mgr Paweł T. SKOCZYKŁODA

University of Silesia in Katowice

English abstract: The article aims to compare the process of interpreting law with that of interpreting the Holy Scripture. The study focuses on the issue of the interpretative approach adopted for interpretation in both above-mentioned branches of study. An appropriate interpretative approach determines the meaning of the text, which presupposes its correct interpretation. As part of the study, an analysis is undertaken of the interpretative assumptions, expounded in legal scholarship, which assumptions underlie the process of legal interpretation. The concept of interpretation of the sacred text that is recognized in biblical hermeneutics is presented. It turns out that despite the fact that law and the Bible are obviously different from each other, both legal theory and biblical hermeneutics were developed and largely based on the same concept of interpretation – intentionalism – identifying the meaning of utterances with meaning intended by the author of the statement. The conducted analysis enables formulating a general conclusion that only intentionalism makes it possible to discover the full and proper sense of the analyzed utterance.

Keywords: interpretation, statutory interpretation, exegesis, Holy Scripture, intentionalism, textualism

Language: Polish

Published: Number 4(37)/2023, pp. 98-110

DOI: https://doi.org/10.36280/AFPiFS.2023.4.98

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Number of downloads: 416

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Legal Certainty and the Interpretatio Retro Non Agit Principle

Prof. UŚ dr hab. Agnieszka BIELSKA-BRODZIAK, dr Marek SUSKA

University of Silesia in Katowice

English abstract: Referring to Józef Nowacki’s research on the principle of non-retroactivity of law [lex retro non agit], the authors of this study focus on the relationship between legal certainty and retroactive changes in the prevailing interpretation of legal provisions. The main topic of the study is the expression ‘interpretatio retro non agit‘, which is already well-known in the legal culture, but not widely used. The objectives of the study were: (1) to determine the content related, or potentially related, to the statement above in case law and literature; (2) to examine whether there are grounds to consider this principle as binding in adjudication; and (3) to explain why changes in the prevailing interpretation of legal provisions are perceived as a necessary evil. The research gave the authors a basis to distinguish between two understandings of the interpretatio retro non agit principle: the narrow one and the broad one. Moreover, the broad understanding contains four sub-types of the thus understood principle. The narrow approach prohibits recognizing a change in the prevailing interpretation as a circumstance that would allow legally valid court judgments or final administrative decisions to be challenged. On the other hand, the broad approach introduces a presumption that legal effects should not be ascribed solely because of a change in the prevailing interpretation that occurred after the legal fact took place. Four possible justifications for the interpretatio retro non agit principle were also considered: formal, natural, cultural, and instrumental justification. The authors found that the instrumental justification, which connects the principle with the value of legal certainty, seems to be the most appropriate. However, some elements of the principle can also be convincingly justified formally. Retroactive interpretation changes are only briefly discussed in literature, which the authors regard as an unfavourable state of affairs. However, the fundamental differences between law-making and the application of law allow us to understand that protecting the addressees of the law in practice is much more complicated in cases of applying the law.

Keywords: legal certainty, legal interpretation, consistent line of case law, interpretatio retro non agit, ex post facto laws

Language: Polish

Published: Number 3(36)/2023, s. 51-65.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.51

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Number of downloads: 380

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Legality as Compliance with the Intention of the Legislator. The Understanding of Legality in Józef Nowacki’s Works

Prof. dr hab. Zygmunt TOBOR

University of Silesia in Katowice

English abstract: The issue of legality is one of the most important threads in the scientific achievements of Professor Józef Nowacki. He distinguished two ways of understanding legality: a stronger one, which boils down to determining the compliance of behaviour with the contents of a duly enacted provision, and a weaker one, when the only legal basis is an obligation to employ a specific kind of evaluation. In the author’s opinion, Nowacki’s idea does not adequately take into account the fundamental problems with determining the meaning of a legal provision, i.e., problems of interpretation. The proposition that legality means compliance with the contents of a provision transfers the burden of making findings in this respect onto the subject interpreting it. The author discusses two approaches to statutory interpretation, i.e., the eclectic approach, in which there is no universal criterion for the correctness of interpretation, and the categorical approach, in which it is assumed that such a criterion exists. He points out that only a categorical approach can be reconciled with the idea of the rule of law and the role of judges as faithful agents of the legislator. Therefore, he proposes that compliance with the intention of the legislator should be taken as a criterion for the correctness of the interpretation. When legality is approached this way, the need to distinguish its stronger and weaker versions disappears. The qualification of a behaviour as legal or illegal will be based on the criterion of compliance with the intention of the legislator.

Keywords: legality, rule of law, statutory interpretation, intention of the legislator

Language: Polish

Published: Number 3(36)/2023, s. 34-43.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.34

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Number of downloads: 346

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An Explanatory Framework for Legal Grounding

Bartosz Janik

University of Silesia in Katowice, Poland

English abstract: The objective of this article is to provide an explanatory framework for legal grounding. Grounding, understood in recent years as a metaphysical determination, has proved to be a fruitful object of inquiry for legal theorists trying to explain the thesis about the relationship between social facts and legal facts in metaphysical terms. However, the debate on the use of the notion of grounding in the philosophy of law lacks a concise and precise differentiation of the various assumptions behind grounding that philosophers have recently discussed. This article offers a prospect for analysis of a debate about grounding of legal facts and an interpretation of focal terms in light of recent metaphysical debates.

Keywords: grounding, explanation, philosophy of law, legal facts, social facts

Language: English

Published: Number 2(35)/2023, pp. 34-42.

DOI: https://doi.org/10.36280//AFPiFS.2023.2.34

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Number of downloads: 349

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Open texture of law and evolution of legal institutions. The case of marriage

Mgr Bartosz BISKUP

Jagiellonian University

English abstract: This paper outlines how we can use Hart’s conception of the open texture of law for a  theoretical reflection on the phenomenon of evolving legal institutions. The first part of the paper reflects on the concept of ‘open texture’. It presents the so-called prescriptive interpretation of the open texture, initially proposed by Brian Bix. The prescriptive interpretation does not aim to prove the existence of open texture. It indicates that we should interpret legal provisions ‘as if’ there was an open texture. In the second part, I present how the open structure of law explains judicial activism or legislative amendments. As an example, the concept of marriage is of primary concern. One of the main pitfalls is the so-called ‘semantic argument’, which highlights the linguistic boundaries for making certain legal changes (e.g., introducing same-sex marriages and granting legal personhood to rivers). The problem of semantic boundaries is placed in the context of the division between concepts relating to social and legal kinds. Finally, the above considerations are tentatively applied to the discussion about contents of Article 18 of the Polish Constitution.

Keywords: open texture, marriage, legal kinds

Language: Polish

Published: Number 1(34)/2023, pp.18-31

DOI: https://doi.org/10.36280//AFPiFS.2023.1.18

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Number of downloads: 502

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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: 500

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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.

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: 475

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