Prof. dr hab. Zygmunt TOBOR
University of Silesia in Katowice
English abstract: The issue of legality is one of the most important threads in the scientific achievements of Professor Józef Nowacki. He distinguished two ways of understanding legality: a stronger one, which boils down to determining the compliance of behaviour with the contents of a duly enacted provision, and a weaker one, when the only legal basis is an obligation to employ a specific kind of evaluation. In the author’s opinion, Nowacki’s idea does not adequately take into account the fundamental problems with determining the meaning of a legal provision, i.e., problems of interpretation. The proposition that legality means compliance with the contents of a provision transfers the burden of making findings in this respect onto the subject interpreting it. The author discusses two approaches to statutory interpretation, i.e., the eclectic approach, in which there is no universal criterion for the correctness of interpretation, and the categorical approach, in which it is assumed that such a criterion exists. He points out that only a categorical approach can be reconciled with the idea of the rule of law and the role of judges as faithful agents of the legislator. Therefore, he proposes that compliance with the intention of the legislator should be taken as a criterion for the correctness of the interpretation. When legality is approached this way, the need to distinguish its stronger and weaker versions disappears. The qualification of a behaviour as legal or illegal will be based on the criterion of compliance with the intention of the legislator.
Keywords: legality, rule of law, statutory interpretation, intention of the legislator
Published: Number 3(36)/2023, s. 34-43.
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