Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

On the Difference Between a Strong and Weak Version of the Idea of an Internal Point of View

Dr Paweł Jabłoński

The University of Wrocław

English abstract: This article aims to theoretically expose the claim that the choice between framing the activity of courts in hard cases as “purely political” or “purely juridical” activity is a false choice. I achieve this goal in the following way. First, I introduce the notion of an epistemic account of the internal point of view, which is linked to the conditions of legal cognition. Then I propose a distinction between a strong and weak account of the internal point of view so understood. Such criteria as the autonomy of the law, the relevance of the subject factor in the application of the law, or the arguability of the content of the law play a fundamental role here. Next, I provide a more detailed characterization of the strong view of the internal point of view and the weak one. I try to show that a sharp line between what is legal and what is political is possible only with the adoption of a strong account of the internal point of view. At the same time, I give reasons why such an account of the internal point of view should be rejected. In the concluding section, I briefly summarize the most important findings.

Keywords: internal point of view, legal cognition, Hart

Language: Polish

Published: nr 4(41)/2024, pp. 19-35.

DOI: https://doi.org/10.36280/AFPiFS.2024.4.19

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Number of downloads: 108

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

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: 473