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

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Legal Positivism Social Source Thesis and Metaphysical Grounding: Employing Metaphysical Grounding based on Metaphysical Laws

Mgr Szymon Mazurkiewicz

Jagiellonian University in Kraków

Abstract: The core of legal positivism is the so-called social source thesis, which claims that legal facts are determined only by social facts. I examine an interpretation of this thesis that uses metaphysical grounding as an exact relation between legal facts and social facts. I argue that the current interpretation of the social source thesis in terms of metaphysical grounding has significant drawbacks that stem from it being based on the view that metaphysical grounding is a primitive relation. For that reason, the current interpretation is unintelligible and poses problems with explaining the normativity of legal facts. I present two other views on metaphysical grounding: that it holds due to essences of facts and that it holds due to metaphysical laws. I apply the notion that metaphysical grounding holds due to metaphysical laws and argue that in the case of grounding of legal facts in social facts, this metaphysical law is constituted by instrumental rationality. It provides intelligibility to this grounding relation, is able to explain the normative character of legal facts, and is compatible with the general form of explanation.

Keywords: social source thesis, legal facts, metaphysical grounding, metaphysical laws, instrumental rationality

Language: English

Received: 20.06.2019
Accepted:
06.09.2019

Published: Number 2(20)/2019, pp. 5-19.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.5

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Number of downloads: 360

Filed Under: Articles Tagged With: instrumental rationality, legal facts, metaphysical grounding, metaphysical laws, social source thesis

Communicative rationality as the basis for the legitimacy of good governance

Mgr Mariola Żak

University of Warsaw

English abstract: The main aim of this paper is to demonstrate that the concept of good governance, based on the theoretical description and methodology of the sciences of organization, public management and economy, auxiliary extending to other reconstructive sciences (political science, sociology, psychology), has the cognitive dimension, referring to the practical reasoning of individuals. Through subjection of specific strategies to the communicative rationality, depending on the normative context, the different ways of public sector management may be selected by the public agencies to a specific area of social relations. This choice is made based on the rational consensus, concluded between the stakeholders and the so-called depositary of the law, by which is meant the professionals associated with the performance of the public service: the politicians, the lawyers and the law-applying officials. The article shows the application of the theory of the communicative ethics: the universal pragmatics of J. Habermas and the transcendental pragmatics of K.-O. Apel in order to explain and justify good governance model.

Keywords: good governance, networks, legitimacy, instrumental rationality, communicative rationality, universal pragmatics, transcendental pragmatics

Language: Polish

Received: 25.09.2016
Accepted: Załączniki02.03.2017

Published: Number 2(15)/2017, pp. 98-114.

Download file: Download
Number of downloads: 117

Filed Under: Articles Tagged With: communicative rationality, good governance, instrumental rationality, legitimacy, Mariola Żak, networks, transcendental pragmatics, universal pragmatics

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Keywords

fairness Critical Discourse Analysis Polish law Tomasz Pietrzykowski criminalization of commercialization of trade in organs constitutional consciousness remedy law and ethics judicial reasoning materialism existentialism justification of interpretive claim ethics of never again empiricism self-agency transcendental pragmatics Radbruch’s formula weighing the rightness difference intention CLC liberty post-truth public administration Michał Stambulski autonomy in dubio pro reo accountability political participation of women ideology theory of rational law-making first-order observation state of emergency objectivism Julius Binder cultural relativism judicial review (of constitutionality of statutes) WTO transnational memory of the Holocaust limitation of claims Adam Dyrda liability for damages bartłomiej dębski Michał Dudek Bayes' theorem Foucault Franciszek Strzyszkowski Mateusz Zeifert legal principles law of evidence

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