Search Results for: positive rights Language: Polish

An Analysis of the Distribution of Rights and Duties in Communities in the Face of Complex Compensatory Correlation

Dr hab. Andrzej Stoiński

University of Warmia and Mazury in Olsztyn

English abstract: The article examines the distribution of rights and duties of justice among entities of unequal status in their mutual relations in communities. The analyses are performed from the perspective of complex compensatory correlation, which is a dicaiological modification of the Hohfeldian legal rights correlation model. The first thesis of the article asserts that alignment of the rights and duties of entities in accordance with the compensatory correlation scheme is a necessary condition for justice in community relations. The second thesis states that an increase in the welfarist positive rights of some citizens is accompanied by an increase in the rights of the government. These proposals are juxtaposed with the image of rights and duties within the family and political community. In the case of entities in family relationships and in some political community relations, one can observe a balance between the rights and duties assigned to them. However, there are also interactions in which some entities have double duties and others have double rights, and therefore, we cannot find there a pattern suitable for a complex compensatory correlation. In such cases, there are deficiencies in the sphere of justice.

Keywords: justice, rights, duties, community, Hohfeld, complex compensatory correlation

Language: Polish

Published: Number 1(38)/2024, pp. 71-82.

DOI: https://doi.org/10.36280/AFPiFS.2024.1.71

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Number of downloads: 334

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Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues

Prof. UMK dr hab. Aleksandra Kustra-Rogatka

Nicolaus Copernicus University in Toruń

English abstract: The dynamic development of judicial review of the constitutionality of laws in the second half of the twentieth century is reflected in contemporary theories of judicial review. They go beyond the original axis of the dispute over the legitimacy of judicial review, which was shaped by the counter-majoritarian dilemma, and often become more nuanced. In addition to arguments related to the conceptions of institutional cooperation and accountability function of judicial review, rights-based theories of judicial review take on more and more importance.

The aim of this article is to outline a wide range of issues related to the protection of fundamental rights, which protection is considered as an argument in the dispute over the legitimacy of constitutional courts. The study presents selected issues that influence the current discourse on judicial review, which include: types of such judicial review; types of arguments used in the analysed discourse; the link between fundamental rights and various concepts of democracy; and judicial review of legislative decisions concerning positive rights guarantees.

Keywords: constitutional courts, fundamental rights, democracy, positive rights

Language: Polish

Published: Number 1(30)/2022, pp. 33-43

DOI: https://doi.org/10.36280/AFPiFS.2022.1.33

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Number of downloads: 454

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

The limits of religious argumentation in the public sphere. Between participation and coercion

Dr Łukasz Mirocha

Nicolaus Copernicus University in Toruń

English abstract: The article is devoted to the question of the presence of religious argumentation in the public sphere. The crucial problem is whether the religious argument should be completely accepted in the public discussion as sufficient basis for e.g. law-making or not, and – if so – what are necessary conditions of the presence of such factor. The author writes about course and results of the debate on pointed issue which has started in The United States in the late 80s of XX century. He also wonders why issues which are rather obvious for the great majority of other liberal and democratic countries involves such emotional discussions in American humanities. One of the author’s observations is that historical examples neither with the positive or negative influence of religion on social life are too weak ground for building any position to the considered problem. In the last part of the article, the philosophical conclusions are compared with the case law of the European Court of Human Rights in regards to the freedom of religion.

Keywords: religious argumentation, public sphere, religious freedom, state neutrality, Robert Audi, civic participation

Language: Polish

Received: 05.10.2016
Accepted: 18.02.2017

Published: Number 2(15)/2017, pp. 38-48.

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Number od downloads: 459

Court as the incarnation of the People. Deconstruction of the idea of popular constitutionalism

Dr Arkadiusz Barut

University of Wrocław

English abstract: The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities
of the criticism of its lawmaking.

Keywords: philosophy of law, theory of democracy, popular constitutionalism, Bruce Ackerman

Language: Polish

Received: 22.05.2017
Accepted: 08.08.2017

Published: Number 2(15)/2017, pp. 13-25.

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Number of downloads: 439