Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVRwww.ivr.org.pl

Search Results for: legal science

Hard to Explain? – Abductive Reasoning in Legal Factual Inferences

mgr Bartosz Wielochowski

Freelance researcher

English abstract: The purpose of the article is to apply the concept of abductive reasoning in the description and evaluation of legal inferences about facts. The reflection is conducted in the field of philosophy of law and methodology of science. Based on a critical analysis of the literature I present both Charles Sanders Peirce’s inferential theory of abduction and Peter Lipton’s ‘inference to the best explanation’ (IBE) theory. In colloquial philosophical discourse those terms are sometimes used interchangeably. I argue that, although it is a significant simplification, IBE in principle fits into the broad meaning of abduction which I adopt in the present article. Using the work of Mariusz Urbański and Atocha Aliseda I apply IBE to the explanatory-deductive model of abduction. I utilize abduction understood in this way in the field of law. Based on the review of Polish philosophical and legal literature and the results obtained from the LEX database I show that the concept of abduction is unpopular in the legal doctrine. The main thesis is that abduction in the broad sense offers a significant value added in the description of non-deductive inferences and provides more precise criteria for assessing the quality of reasoning than concepts existing in Polish legal doctrine regarding non-deductive inferences. In the same time it exhibits essential features of those concepts. The analysis allows to examine and determine the relationship between the theories of abduction, IBE and the concepts found in Polish philosophical literature and legal doctrine. Its conclusions allow to introduce these new concepts into the philosophical and legal debate and – also – to describe and evaluate legal non-deductive inferences about facts in a more plausible way. The result gives hope for the methodological strengthening of both the process of making factual findings and the assessment of evidence.

Keywords: abduction, inference to the best explanation, IBE, legal abduction, abduction in fact finding.

Language: English

Published: nr 2(39) 2024, pp. 81-100.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.81

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Number of downloads: 397

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Metaphysical Vagueness, Identity of Legal Cases, and the Rule of Law

mgr Zdeněk Trávníček

Masaryk University in Brno (Czechia)

English abstract: This paper proposes an approach to scientific biography from the perspective of Pierre Bourdieu’s theoretical project. The choice of Leon Petrażycki (1867–1931), a philosopher and sociologist of law, who might be called an icon of the philosophy of law in Poland, results from the fact that his trajectory gives an insight into the interesting processes taking place in the scientific field, as well as in other social fields at the turn of the century up to the 1930s. Thus, L. Petrażycki is a ‘special case of what is possible’, a ‘product’ of the era. An era marked, on the one hand, by strong geopolitical divisions, corresponding to unequal flows of ideas between national scientific fields, on the other hand, characterized by high fluidity of the boundaries of social fields (science, journalism, politics), between which (up to a certain point) L. Petrażycki adroitly ‘moves’. Petrażycki’s trajectory is also interesting research-wise, as it reveals the influence of social structures on scientific positions occupied and positions takings in discourse. Furthermore, it shows how scientific failure is sublimated. Therefore, the article complements previous perspectives and is programmatic in that it can inspire similar endeavours in the future.

Keywords: rule of law, vagueness, Leibniz law, vague identity, legal indeterminacy, metaphysical vagueness, legal cases.

Language: English

Published: nr 2(39) 2024, pp. 44-58.

DOI: https://doi.org/10.36280/AFPiFS.2024.2.44

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Number of downloads: 268

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Back to the Past? The Evolution of the Legal Mechanisms Influencing the Collective Memories in Spain from the Central European Perspective

Dr Filip Cyuńczyk

SWPS University of Social Sciences and Humanities

English abstract: The article’s primary goal is to conduct case studies of Spanish memory policies introduced after 2007 and its comparison with CEE countries activities in the same field. The primary research hypothesis is: Do several case studies of several memory policies implemented in postcommunist states help examine the Spanish model of dealing with the past reformulation? This paper intends to show similarities and differences between Spanish and Central and Eastern European models of dealing with the past, which both are using legal means. I present some of the specific elements of postcommunist constitutionalisation in CEE, including memory narrations locations in several constitutions in the region. I also show the impact of memory narrations on individual states’ institutional policies from the CEE and the Kingdom of Spain. Finally, I show the hidden potential for Spanish political community reconstruction located in the memory laws.

Keywords: memory laws, juridification of the memory, collective memory, constitutionalism, democratic transtion

Language: Polish

Published: Number 3(28)/2021, pp. 22-38

DOI: https://doi.org/10.36280/AFPiFS.2021.3.22

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Number of downloads: 422

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On Possible Applications of Paul Ricoeur’s Thought in Legal Theory

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Krakow University

English abstract: The paradigm of legal positivism, historically the most important attempt at turning law into science, has been subject to thorough criticism in past decades. The criticism has concerned the most important features of legal positivism, and especially the assumption of separation of law and morality, the dogma of statue being the only source of law, and the linguistic methods of interpreting legal texts. With a crisis of the positive paradigms, the demand for new, humanistic grounds for analysing philosophical and legal questions is intensifying. This is the reason for this article’s attempt to point to the application of Paul Ricoeur’s achievements to the key questions of the philosophy of law. It must be emphasised that his works, and especially Soimême comme un autre, may serve as a foundation for a philosophy of law rejecting the problematic claims about the dualism of being and obligation, the distinction of descriptive and prescriptive languages, and also the separation of law and morality. Thanks to this, the legal topos pacta sunt servanda (agreements must be kept) finds a reinforcement in the ontology of the subject applying law and can be understood as an ethically significant pattern of identity of the self. Equally fruitful seems the possibility of combining the questions of the ontology of the subject applying law with the question of a legal text and its interpretation. The assumption of Ricoeur’s perspective leads to a reduction in the distance between the legal text and its addressee, emphasised by the critics of legal positivism. This rapprochement becomes possible thanks to the connection of the question of the narrative that a legal text is with the question of narrativisation of the subject (i.e. the interpreter of a legal text), being itself in the ipse sense, i.e. applying the law.

Keywords: Paul Ricoeur, legal positivism, legal interpretation

Language: English

Published: Number 1(10)/2015, pp. 79-88

DOI: https://doi.org/10.36280/AFPiFS.2015.1.79

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Number of downloads: 654

Law & Economics as a Theory of Decision Making in Legal Contexts – Decision Theoretical Foundations, Their Misinterpretations and Excessive Claims of Economic Analysis of Law

Mgr Magdalena Małecka

Polish Academy of Sciences

English abstract: The article treats law & economics as a proposal of a theory of decision making in legal settings. It is emphasized that the distinction between two approaches in economic analysis of law: the neoclassical and the behavioral one, is made with reference to two different theories of decision making applied in the realm of each approach. The neoclassical approach is based on the theory of expected utility, whereas the behavioral one – on prospect theory. According to the scholars on both sides, application of decision theory might be helpful in influencing behavior by legal norms in a more sophisticated way. The claim of the article is that law & economics scholars misinterpret the assumptions and propositions of the theories and/or formulate excessive claims, if they argue that decision theoretical findings provide knowledge about the way in which people’s decisions are influenced by law.

Keywords: law & economics, theory of decision making, legal norm

Language: English

Published: Number 1(4)/2012, pp. 34-50.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.34

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Number of downloads: 640

Coherence Model of Legal Reasoning

Dr Michał Araszkiewicz

Jagiellonian University


English abstract: The aim of the article is to present a model of legal reasoning based of the concept of coherence, as this concept is understood in recent developments of cognitive science. More precisely, the model, hereafter referred to as CMLR (Coherence Model of Legal Reasoning) is based on the constraint satisfaction theory of coherence, elaborated and defended by Paul Thagard. The claim of the author is that CMLR appears very satisfactory when assessed against criteria typically employed for evaluation of legal-theoretical models of argumentation. It is able to represent legal reasoning either as a neural network or, more traditionally, as a formal dialogue game. In consequence, CMLR offers a plausible “third road” between traditional deductive and non-deductive models of legal thinking.

Keywords: legal argumentation, legal reasoning, coherence, cohesion

Language: Polish

Published: Number 1(1)/2010, pp. 19-38.

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Number of downloads: 519

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The influence of the conscience clause and cultural defense on the appraisal of the structure of crime

Prof. UŚ dr hab. Olga Sitarz, Dr Dominika Bek, Mgr Jakub Hanc

University of Silesia

English abstract: The submitted study is devoted to the clause of conscience and cultural defense. The initial arguments are focused on explaining the indicated terms, by referring to current doctrinal positions. The basic course of considerations – devoted to primary and secondary legality, legislative and non-legislative lawful excuses, circumstances reducing or excluding guilt – is an attempt to answer the question of where in the structure of crime is a place for conscience clause and cultural defense.

Keywords: conscience clause, cultural defense, crime, legislative lawful excuse (justification), non-legislative lawful excuse, circumstances excluding guilt

Language: Polish

Received: 28.03.2017
Accepted: Załączniki07.08.2017

Published: Number 2(15)/2017, pp. 60-79.

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Number of downloads: 530

Zygmunt Ziembiński

Zygmunt Ziembiński (1920–1996) – Polish legal theorist and philosopher, co-founder of the Poznań school of analytical legal theory. He laid the foundations of the Polish theory of norms of conduct, the logic of norms and the methodology of legal science; his work still shapes the language in which Polish legal theory speaks about norms and rules.

Texts in the „Archive”

Theory of Law and the Challenges of Analytical Pragmatism

Maciej Dybowski · Issue 1(14)/2016

A metatheoretical reflection on the practice of legal theory within the classical project of analysis – a tradition of which Ziembiński was one of the pillars.

Postpositivism on the Trail of the Holy Grail? A Reply to Tomasz Pietrzykowski’s Criticism

Andrzej Grabowski · Issue 1(1)/2010 (in Polish)

A polemic on the limits of positivism and „postpositivism” in Polish legal theory – a continuation of disputes growing out of the analytical tradition Ziembiński helped to create.

See also the Principles of Law and Legal Interpretation collections.

The Academic Teacher in Times of Rule of Law Crisis. The Dynamics and Prospects, on the Example of Academic Lawyer Teachers

Dr hab. Sławomir Tkacz, prof. UŚ, Dr hab. Aleksandra Wentkowska, prof. UŚ

University of Silesia in Katowice

English abstract: One of the most important issues recently addressed in the literature is the threat to democracy and the rule of law. It is pointed out that the necessity of verifying the role and tasks of key political institutions, primarily the state, is determined by the nature and dynamics of changes occurring in the modern world. The issue of threats to democracy and the crisis of the rule of law has frequently been discussed in Polish theoretical and doctrinal legal works produced after 1926. Authors such as Sz. Rundstein and Sz. Starzewski often raised concerns about the dangers associated with phenomena referred to as “anti-constitutional tendencies.” Their published studies addressed both internal threats and the dangers arising from the formation of fascist states and the Soviet state. The findings made at that time remain highly relevant today. Therefore, in the context of the challenges faced by legal practice and legal science today, it seems justified to recall the conclusions formulated nearly 100 years ago.

Key words: Fascism, democracy, rule of law, total state, authoritarianism, civil rights, Nazi and Soviet totalism

Language: polish

Published:Number 4(2025), pp. 58–76.

DOI: https://doi.org/10.36280/AFPiFS.2025.4.58

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Number of downloads: 220,181

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On the threats to democracy and the rule of law: The philosophy of total states in the views of Szymon Rundstein and Maciej Starzewski

Dr hab. Sławomir Tkacz, prof. UŚ

Dr hab. Aleksandra Wentkowska, prof. UŚ

University of Silesia in Katowice

English abstract: One of the most important issues recently addressed in literature is the threats to democracy and the rule of law. It is pointed out that the need to verify the role and tasks of key political institutions, primarily the state, is determined by the nature and dynamics of changes in the modern world. The issue of threats to democracy and the crisis of the rule of law has frequently been discussed in Polish theoretical and doctrinal legal works produced after 1926. Authors such as Szymon Rundstein and Maciej Starzewski often raised concerns about the dangers associated with phenomena referred to as “anti-constitutional tendencies”. The studies they published addressed both internal threats and the dangers arising from the formation of fascist states and the Soviet state. The findings made back then remain highly relevant in the present day. Therefore, in the context of the challenges faced by legal practice and legal science today, it seems justified to recall the conclusions formulated nearly 100 years ago.

Keywords: Fascism, democracy, rule of law, total state, authoritarianism, civil rights, Nazi and Soviet totalisms

Language: English

Published: Number 3(44)/2025, pp. 38-54.

DOI: https://doi.org/10.36280/AFPiFS.2025.3.38

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Number of downloads: 237

This text is licensed under a Creative Commons Attribution 4.0 International License.

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