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Filozofii Prawa
i Filozofii Społecznej

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

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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: 35

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

Filed Under: Articles Tagged With: deliberativeness, fundamental rights, hard cases, identity, interpretation of law, LGBTQ

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: 73

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

Filed Under: Articles Tagged With: constitutional courts, democracy, fundamental rights, positive rights

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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Keywords

protection of the memory of the deceased direct application of the constitution person Bible justice as fairness politicisation liberalism institutions adjudication Maciej Kłodawski narratology institutionalization of collective memory narration liquid modernity security service manner of taking into account the expiration of the limitation period resentment regional ontologies Agnieszka Bielska-Brodziak cognitive dissonance reduction judicial proceedings ought-statements international legal theory social choice theory rationalism abortion discourse sociological jurisprudence popular constitutionalism egology realistic utopia Legal Construction collaborative practice Maurice Hauriou public morality Unfinished Dialogue professional self-governments Functional kinds virtue teleological ethics God Legal ontology constitutionalization of international law Aleksander Olaf Szpojankowski public interest advocate public interest post-theology axiology Russian jurisprudence Marcin Romanowicz Republican Party of Minnesota v. White

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