Archiwum Filozofii Prawa i Filozofii Społecznej

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

IVRwww.ivr.org.pl

Search Results for: legal theory

Legal Interpretation

A thematic collection of the “Archive of Philosophy of Law and Social Philosophy”. Texts on legal interpretation – its theories, directives and limits, and its role in adjudication. All articles are available free of charge in open access.

Theories of legal interpretation

Polish legal theory contributed two classic conceptions to the analysis of interpretation: Jerzy Wróblewski’s clarificative theory, on which interpretation is called for when doubt arises as to the meaning of a provision, and Maciej Zieliński’s derivational conception, on which every legal text requires full interpretive reconstruction of norms of conduct (omnia sunt interpretanda). The dispute between the two approaches – including the status of the maxim clara non sunt interpretanda – remains among the liveliest strands of Polish jurisprudence, alongside research on interpretive directives, the linguistic limits of interpretation, legislative materials and new empirical tools.

Selected texts

See also

Classics of Modern Legal Philosophy and Theory · Legal Positivism. Profiles: Jerzy Wróblewski · Maciej Zieliński.

For authors

The “Archive” publishes articles in legal theory and philosophy – including work on interpretation and legal argumentation – in Polish and English, in open access with no publication charges and with double-blind peer review. The journal is indexed in Scopus, DOAJ and ERIH PLUS (100 points on the Polish ministerial list). See the guidelines for authors.

An editorial collection. Last updated: July 2026.

Legal Positivism

Legal positivism holds that the validity of law depends on its social sources, not on its moral merits. Yet that single label covers deeply different positions – from Austin and Kelsen to Hart and Joseph Raz’s exclusive positivism – as well as a lasting argument with the tradition’s critics. This collection gathers texts on positivism and on that debate. Every article is free to read in open access.

Hans Kelsen and the Pure Theory of Law

Hans Kelsen (1881–1973) is among the most influential legal theorists of the twentieth century. His Pure Theory of Law (Reine Rechtslehre, 1934; 2nd ed. 1960) is a programme for a science of law purified of sociological, psychological and moral elements: law is a hierarchical order of norms (Stufenbau, a conception developed with Adolf Julius Merkl) whose unity is grounded in the basic norm (Grundnorm). Kelsen co-drafted the Austrian Constitution of 1920 and fathered the European model of centralised constitutional review.

The “Archive” published – in Tomasz Gizbert-Studnicki’s translation – a text by Stanley L. Paulson, the leading contemporary Kelsen scholar: Kelsen jako odmieniec. The Polish reception of Kelsen is documented by Monika Zalewska’s reconstruction of his discussion with Jerzy Wróblewski.

Disputes within legal positivism

Legal positivists share the conviction that the validity of law depends on its social sources rather than its moral merits (the separation thesis). Beneath that common label lie deeply different positions: Austin’s naturalistic positivism, Kelsen’s anti-naturalistic normativism, Hart’s rule of recognition, and contemporary inclusive, exclusive and conventionalist variants – all documented in the texts below.

Selected texts

See also

Classics of Modern Legal Philosophy and Theory · Ronald Dworkin i debata z pozytywizmem. Profiles: Herbert L.A. Hart · Joseph Raz · Gustav Radbruch.

The debate with Dworkin

The most famous dispute in contemporary legal theory – between positivism and Ronald Dworkin’s critique of it.

For authors

The “Archive” publishes articles in legal theory and philosophy – including work on Kelsen and legal positivism – in Polish and English, in open access with no publication charges and with double-blind peer review. The journal is indexed in Scopus, DOAJ and ERIH PLUS (100 points on the Polish ministerial list). See the guidelines for authors.

An editorial collection. Last updated: July 2026.

The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr hab. Rafał Mańko

Central European University, Democracy Institute (Budapest, Hungary)

English abstract: The purpose of this article is to examine the position of Evgeny B. Pašukanis regarding the problem of autonomy of law. The source material for the research is his monograph entitled The General Theory of Law and Marxism (1924), in which he laid down the framework of his hylomorphic theory of law, also described as materialist or realist. The article begins with a reconstruction of the basic assumptions of Pašukanis’s hylomorphic theory of law and then moves on to the key issue of his views on the genesis of juridical form. In the light of the analysis, the article shows that the essence of law in J Pašukanis’s view is that it is a form that shapes and makes possible the relations of economic exchange that constitute its proper matter. Against this background, the article addresses the issue of the autonomy of law, indicating that it should be considered in two dimensions: the internal autonomy of law, i.e. the autonomy of juridical form in relation to its content, and the external autonomy of law, i.e. the autonomy of law in relation to the state, politics and ideology. When it comes to the internal autonomy of law, the paper points out that the relationship of the form of law to its matter is – in Pašukanis’s view – of a dialectical nature, which results in his rejection of Marx’s conception of law as a ‘superstructure’ reflecting economic relations in the ‘base.’  When it comes to the external autonomy of law, Pašukanis is firmly on the side of a hard ontology of law, based on its hylemorphic substance (the composite of the matter of acts of exchange and its legal form), which makes law primary vis-à-vis the state and politics and essentially distinct from ideology. This does not, of course, exclude the ideological nature of law, but – again contrary to Marxists – Pašukanis does not allow for the recognition of law as an essentially ideological phenomenon.

Keywords: autonomy of law, ideology, hylomorphism, juriscentrism, juridical form, legal form, Pašukanis

Language: Polish

Published: nr 4(41)/2024, pp. 91-103

DOI: https://doi.org/10.36280/AFPiFS.2024.4.91

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Number of downloads: 312

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The Structural Determinants of Attitudes of Distrust in the Practice of Professional Roles by Representatives of Selected Legal Public Trust Professions

Dr hab. Maciej Wojciechowski, prof. UG

The University of Gdańsk

English abstract: In the article, I try to show that legal dualism provides a conceptual grid for the analysis of the crisis of the rule of law. In demonstrating this, I first introduce the concept of legal dualism and then present autocratic legalism and abusive judicial review in its light. Two variants of the conceptual framework of legal dualism are suitable for describing and explaining these forms of governance. They present legal dualism as a) an instrumental action of „the main actors” in public life, and b) a social attitude that lacks a cultural imperative that allows citizens to identify with the law. Two main conclusions can be drawn from the article’s findings. First, autocratic legalism and abusive judicial review are based on the instrumentalization of the rule of law as a political ideal. Second, legal dualism as a social stance indicates that insufficient consideration of the social dimension of law has made it easier for political centres to challenge the liberal vision of the rule of law, presented by its opponents as the rule of lawyers, the social elite. A response to the charge of alienating the law in different configurations (political constitutionalism versus legal constitutionalism) is the idea of inclusivity, which can be expressed in different theoretical languages. The context for the conclusions of the article is the constitutional crisis, which is also present in the Polish legal order The empirical documentation does not determine the research methodology in the presented article. I pursue in it an approach that can be attributed to the social theory of law (B.Z. Tamanaha).  

Keywords: trust, distrust, legal practice, lawyers, judges, legal formalism

Language: Polish

Published: nr 4(41)/2024, pp. 66-80.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.66

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Number of downloads: 309

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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: 401

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Hermeneutical Elements in the Derivational Model of Legal Interpretation

Dr Jędrzej Janicki

University of Łódź

English abstract: The aim of this article is to demonstrate the possibility of presenting the derivational theory of legal interpretation as a theory of a hermeneutical nature. In order to achieve this goal, I distinguish five elements that can be found both in the derivational model of legal interpretation and in the hermeneutical way of thinking. These elements are: (1) a specific way of treating dis-cretion in interpreting cultural products; (2) the linguistic nature of understanding; (3) the histo-ricity of understanding; (4) the circularity of understanding, and (5) the problem of pre-understanding. In the article, I try to show that the five hermeneutic elements can be found with-in the derivational model of legal interpretation. The aim of the article is not to unambiguously determine whether the derivational model of legal interpretation is a hermeneutical one (this would require the construction of a precise definition of hermeneutics, which I do not undertake in this article), but only to mark certain elements of this theory of interpretation which can also be found in hermeneutic thinking.

Keywords: derivational model of legal interpretation, hermeneutics, circularity of understanding, historicity of understanding, problem of pre-understanding

Language: Polish

Published: Number 1(38)/2024, pp. 48-59.

DOI: https://doi.org/10.36280/AFPiFS.2024.1.48

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Number of downloads: 359

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On the Origin of Legal Interests in a Liberal Criminal Law System. Preliminary Remarks

Dr Ewa GRZĘDA

Institute of Law, Economics and Administration of the University of the Commission of National Education in Kraków

Dr Maciej JUZASZEK

Center for Legal Education and Social Theory of the University of Wrocław

English abstract: The article tries to answer the legal-philosophical problem underlying the continental theories of criminalization, i.e., what the reasons are for the legislator establishing a specific catalogue of interests protected by law. To answer this question, the authors first outline what characterizes continental criminalization theories (as opposed to common law ones), and then present two basic types of theories justifying the legislator’s choice of legal interests: systemicinherent and system-transcendent theories. Within the systemic-transcendent type, the authors distinguish three potential theories: a systemic-transcendent social theory, a systemictranscendent moralistic theory, and a systemic-transcendent disintegrative theory. Against each of them, however, the authors find serious disqualifying arguments, which eventually makes them argue that the answers to the research question posed above should be sought among system-inherent theories.

Keywords: legal interests, criminalization, philosophy of criminal law

Language: Polish

Published: Number 4(37)/2023, pp. 27-39.

DOI: https://doi.org/10.36280/AFPiFS.2023.4.27

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Number of downloads: 302

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Terminological Consistency in the Legal System. A View at the Problem of Interpretation from the Perspective of Law-making Practice

Dr Marek SUSKA

Silesian University in Katowice

English abstract: The goal of the article is to determine whether the legal interpretation should be made with the assumption of consistency of terminology at the level of a branch of law or at the global level. The question is therefore whether the interpreter should presume that the legislator ‘by default’ refers those who apply the law only to the legal definitions contained in a certain, most general act within one branch of law, or whether, regardless of the branch, the legislator always uses a  uniform terminology. An analysis of the law-making practice may be a  source of useful cues to answer this question. First, the article reconstructs the requirements imposed on the drafters by the Principles of Legislative Technique. Secondly, several dozen acts passed by the Sejm of the 7th and 8th term of office are examined in terms of the presence of ‘definitional’ references to acts from the same branch of law and acts from another branch of law. In this way, it is established that only the presumption of a legal act maintain terminological consistency with legal definitions set out in the basic act for a given branch of law seems to be legitimate. The basic act should not be understood in an institutional way, but as one relating to a quasi-branch. The article also identifies at least some cases where it is justified or unjustified to use ‘explicit’ references to point out branch-level or global terminological consistency. The results of the analyses may find application in the discussion on the meaning of the directive of legal language in the theory and practice of interpretation, as well as in the theory and practice of legislation – in determining when it is necessary to use a provision referring to a legal definition.

Keywords: terminological consistency, provisions referring to other provisions, legal language, law-making, legal interpretation, system of law

Language: Polish

Published: Number 1(34)/2023, pp.58-71

DOI: https://doi.org/10.36280//AFPiFS.2023.1.58

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Number of downloads: 470

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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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Argument from Precedent in Legal Interpretation of Texts of Legal Acts from the Perspective of a Derivative Concept of Legal Interpretation

Prof. US dr hab. Agnieszka Choduń

University of Szczecin

English abstract: The aim of this article is to ascertain whether in the Polish legal culture in which precedent is not a legislative fact, it can become an argument in the process of judicial interpretation. The article posits that an analysis of precedent as an argument in judicial interpretation must be carried out in relation to a particular concept (or theory) of legal interpretation. Hence, it adopts the Maciej Zieliński’s (derivative) concept of legal interpretation as a point of reference for understanding “legal interpretation”. The choice is based on the following reasons: 1) this concept offers a complex approach to legal interpretation (which assumes that interpretation can be concluded if three directives have been applied by an interpreter: linguistic, systemic and functional); 2) this concept considers the realistic elements of legal interpretation in the form of directives linked to the interpretative findings achieved in judicial practice; 3) this concept stipulates that legal interpretation has certain roles, which allow establishing whether the outcome of legal reasoning is within the scope of the interpretation or whether it constitutes a “normative novelty”. As a result of this analysis, it can be concluded that depending on the content of the directives of interpretation adopted in a given legal culture, the proceedings of the entity applying a law will have either an interpretative or a legislative character and will consequently determine how invoking earlier court judgments in legal interpretation will be classified.

Keywords: precedent, legal interpretation, roles of interpretation

Language: English

Published: Number 3(32)/2022, pp. 19-33

DOI: https://doi.org/10.36280/AFPiFS.2022.3.19

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Number of downloads: 545

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