Search Results for: legal science

Religious-Only Marriages in the Case Law of Ordinary Courts in Poland. Qualitative Content Analysis of Judgment Justifications Published Online

Mgr Anna JUZASZEK

Doctoral School of Social Sciences, Faculty of Law and Administration, Jagiellonian University in Kraków

English abstract: In some Western European countries, for a few years now there has been an intense debate concerning the phenomenon of religious-only marriages, solemnized through a religious ceremony. From the perspective of state law, such religious spouses are treated as cohabitees, which places certain limitations on their rights and obligations compared to married couples recognized by state law. In Poland, there is no ongoing discussion on this matter. Furthermore, there are no data regarding the frequency of such relationships, if any. The main objective of this article is to partially address this gap and initiate a discussion. To achieve this, exploratory research was conducted by analysing judgment justifications available online, focusing on cases where the couples were in exclusively religious marriages. Selected justifications underwent qualitative content analysis using MAXQDA software to gain insights into how judges and other participants in the proceedings approach this type of relationship. Another aim of the article is to highlight the legal challenges that religiously married spouses might encounter and to explore potential solutions in this regard. The research indicates that the marriages in question generally did not elicit consternation or negative attitudes in the analysed cases. On the contrary, both judges and participants in the proceedings typically did not question the significance, depth, and permanent character of family bonds formed through religious-only marriages. However, this approach is not reflected in current legislation, which differentiates the rights and obligations of individuals in intimate relationships based on whether a civil marriage has been contracted, often disregarding the actual nature of the relationship.

Keywords: marriages, religious-only marriages, qualitative content analysis, judgment justifications

Language: Polish

Published: Number 4(37)/2023, pp. 54-67.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.54

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Number of downloads: 377

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An Ideal of Scientific Jurisprudence. Józef Nowacki Against Ideological Influences on Jurisprudential Claims

Prof. dr hab. Tomasz PIETRZYKOWSKI

University of Silesia in Katowice

English abstract: Methodological assumptions underpinning Józef Nowacki’s research were one of the most original and intriguing aspects of his approach to legal theory. An extremely rigorous conception of what kind of legal claims may be regarded as scientific can be reconstructed based on his various writings about legal norms, general clauses, dispositive provisions of law, legal principles or the practical application of the constitutional notion of the rule of law. His relentless efforts to uncover and eliminate from scientific discourse any evaluative judgments served to defend legal theory against ideological influences and subjective wishful thinking disguised as scientific claims. In these respects, it not only was an unquestionably valuable position then, but it remains so nowadays. At the same time, it begs numerous questions and doubts that still permeate central methodological debates in jurisprudence.

Keywords: law, methodology, valuing, legal theory, science

Language: Polish

Published: Number 3(36)/2023, s. 22-33.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.22

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Number of downloads: 373

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Epistemology of Application of Law and the Principle of Democratic Rule of Law

Dr Tomasz Raburski

Adam Mickiewicz University in Poznań

English abstract: The paper analyses the institutional epistemology of the process of application of law in Poland. The concept of institutional epistemology is understood as a set of features, epistemic aims, values, and practices, which are intrinsic to the institutional structures. Two aspects of such an institutional epistemology are covered: the positivistic model of cognition and the concept of truth embedded in the judicial practices and legal norms. The philosophical and historical origins of these features are outlined. It is argued that they should be considered relics of previous socio-political system and obsolete philosophies of science, and, in consequence, they do not meet the standards of the constitutional principle of the democratic rule-of-law state (Polish demokratyczne państwo prawne). Evolution towards more deliberative forms of institutional epistemology is advocated.

Keywords: application of law, epistemology of law, truth, legal positivism, neopositivism, deliberative democracy

Language: Polish

Published: Number 4(33)/2022, pp. 39-51

DOI: https://doi.org/10.36280/AFPiFS.2022.4.39

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Number of downloads: 439

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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 hab. Małgorzata Niewiadomska-Cudak

University of Economics and Human Sciences in Warsaw

English abstract: The article analyses the constitutional norm on gender equality referred to in the Constitution of the Republic of Poland of 1997 and the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija) of 1992. The author tries to answer the question of how the principle of gender equality is enshrined in the two most important normative acts for both countries, which have the highest legal force in the system of legal sources. The scope of research interests therefore includes the issue of constitutional regulations and their impact on the participation of women in the governments of both surveyed countries, their national parliaments, and the European Parliament. The current democratic deficit can be viewed from the point of view of underrepresentation of women in political structures. The participation of women increases the legitimacy of democratic institutions and contributes to reducing gender inequalities in public life. Building awareness of the role of public institutions in the field of equal opportunities regardless of gender corresponds to the principle of social justice, according to which women and men should have equal access to high offices, including the national and European parliaments. Equality and justice are the core values and essence of democracy. A feature of particular importance is gender equality. A reliable basis for defining it is provided by the constitution, therefore the article presents how its provisions may have an impact on women’s participation in the political sphere.

Keywords: constitution, the principle of gender equality, political participation of women, underrepresentation, government, parliament

Language: Polish

Published: Number 2(31)/2022, pp. 70-83.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.70

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Number of downloads: 404

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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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Departure from the rule of law as the consolidation of biopower. Example of Polish legislation justified by fighting the Covid-19 pandemic.

Dr hab. Arkadiusz Barut

University of Wrocław

English abstract: Throughout this article the author interprets the crisis of the rule law in Poland in 2020 caused by the phenomenon described as Covid-19 pandemic as the solidification and consolidation of biopower – the contribution of ideas and practices justified by the findings of natural sciences to the disestablishment of paradigms hitherto recognized as fundamental to the creation and application of law, that is the due process of law or its formal justice.

I proceed from the assumption that the creation and application of law must be grounded in phronesis — the Aristotelian prudence, that is the intellectual process of assessment of not only the means but also the goals. Thanks to the discernment of both the goals and the means in the same cognitive act, one gains the opportunity to distinguish individual cases and insight into specific situations. I assume the phronetics of law to justify and at once enable its acquisition of the property referred to as justice in its formal sense — predictability, non-retroactivity, generality of regulation, and so on. If, on the other hand, the law becomes subordinated to paradigms justified with the use of natural sciences, it ceases to fulfil its function. Biopower invades the legal sphere as a discourse of necessity, such a necessity is in itself the very opposite of the fine art of balancing the various competing interests, appreciating the importance of form and ritual, distinguishing the various individual cases.

The purpose of this article is to analyse the impact of the crisis referred to as the Covid-19 pandemic on law and in no way to pronounce on the medical aspects of its proliferation or express a moral or political judgement of the actions justified by the need to contain it.

Keywords: Covid – 19, pandemic, biopower, rule of law, Foucault, Legendre, Agamben

Language: English

Published: Number 3(28)/2021, pp.5-21

DOI: https://doi.org/10.36280/AFPiFS.2021.3.5

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Number of downloads: 581

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State of Exception in the Philosophy of Law. An Attempt at a Definition

Mgr Weronika Adamska

École des hautes études en sciences sociales

English abstract: The aim of this paper is to propose a definition of the state of exception within the framework of the philosophy of law. The nature of the state of exception is both a legal and a political one. For this reason, it is a subject of inquiry in various disciplines. As a consequence of its hybrid character, state of exception is hard to define, which leads to definitional scepticism. As a criterial definition is impossible to reach, I believe that it should be replaced with a paradigmatic one. Such a definition should take into account the acquis of, among others, philosophy, history or political science, so that it may apply to different methodological approaches. In order to do so, I present the main definitional groups (state of exception as a normative fact, as a constitutional dictatorship, as a political fact, and as a legal void). Next, using the criteria that are common to all those definitions, I propose and analyse three constitutive elements of the state of emergency: a crisis, a suspension of ordinary laws, and a temporary character of this suspension. The definition I propose can help to assess whether a given state is a form of a state of exception. This is of a particular relevance as emergency laws are nowadays widely discussed in the context of terrorist threats.

Keywords: state of exception, emergency laws, constitutional dictatorship, political crisis, philosophy of law, political theory

Language: Polish

Published: Number 4(25)/2020, pp. 5-16.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.5

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Number of downloads: 656

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

Call for Papers: Images of Law in Film Art – 30.09.2020

We invite everyone to submit papers to a special issue of the Journal of the Polish Section of IVR (Archiwum Filozofii Prawa i Filozofii Społecznej) concentrating on Images of Law in Film Art. The issue will contain papers both in English and in Polish. All the texts will be available open access at our webpage.

The purpose of the volume is to answer the question whether film, one of the more popular fields of culture today, can serve as a means to express interesting and noteworthy truths about law. The link intended to bind all the papers in the planned issue is therefore a formal one: it is the exposition of important legal problems with reference to selected movies (including television films and/or series). Therefore, the key to a successful submission is a convincing reference to specific film material, rather than the type of legal issue chosen to discuss. Topics discussed may relate to such various areas as: legal theory, legal and/or political philosophy, sociology of law and socio-legal studies, historical studies of law, legal psychology, criminology, forensic science, critical legal studies and others. Legal doctrine (legal dogmatics) is also welcomed, provided that such doctrinal legal analysis is joined with more general and fundamental research, in line with a scientific profile of the Journal. For example, papers limited to a mere analysis whether the presentation of a selected legal institution in a movie is consistent with its actual legal regulation will not be accepted – unless such considerations serve some general, theoretical and/or philosophical purposes.

References to film studies literature are of course more than welcome, yet are not required. The decision on the publication of a paper will be based both on its scientific value and on the assessment whether the reference to the film material forms a substantive element of the presented argumentation (in other words, whether such a reference does not play an ornamental role only, devoid of any substantive meaning).

The deadline for submitting a paper is September 30, 2020. We plan to publish the volume as a second issue of the Journal in 2021. Proposals should be sent on the email address of the Editorial Board of the Journal (archiwum@ivr.org.pl). The text should be edited according to the editorial standards for the Journal, available HERE. Further information is available from the editors of the volume: Dr Paweł Jabłoński (pawel.jablonski@uwr.edu.pl) and Dr Maciej Pichlak (maciej.pichlak@uwr.edu.pl), both from University of Wrocław.

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: 847

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