Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

Normative and Situationist Conception of General Clause of the Principles of Community Coexistence

Prof. dr hab. Józef NOWACKI (1923–2005)

University of Silesia in Katowice

English abstract: Polish law uses the general clause of the principles of community coexistence. In the legal literature, the concept of principles of social coexistence is understood in various ways. Some people understand the principles of social coexistence in a normative way, associating with them a set of norms to which these clauses refer. Others perceive them situationistically, which means the right to make an assessment in a particular case under consideration. The author argues that the source of controversy in this regard is the unconscious adoption of different understandings of morality. Due to this, the use of each of these understandings (normative and situationist) is legitimate in equall way. For this reason, disputes about the normative and situationist understanding of the principles of social coexistence are empirically unsolvable.

Keywords: Józef Nowacki, general clause, situationalist and normativist conception, the principles of community co-existence

Language: Polish

Published: Number 3(36)/2023, s. 9-21.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.9

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

Situationist and Normative Concepts of General Clauses. Disputes About the Accuracy of Two Approaches to General Clauses in the Light of Józef Nowacki’s Views

Prof. UŚ dr hab. Sławomir TKACZ

University of Silesia in Katowice

English abstract: The aim of the study is to analyse Józef Nowacki’s views on the characteristics of general clauses. The author focuses on the most important issues that are the subject of disputes in legal scholarship. In particular, the subject of considerations is the situationist and normative concepts of general clauses as these concepts are understood by Józef Nowacki. In the first part of considerations, the author addresses the issue of vagueness (fuzziness) of general clauses. The main part of the considerations relates to the understanding of general clauses as references in the light of their situationist and normative understanding. In the last part of the considerations, the author analyses the problem of the objects to which general clauses refer. In the light of the presented considerations, the general conclusion is that each general clause may be applied in a situationist or normative manner. In the latter case, we can speak of a reference to a certain set of norms. It is also appropriate to speak about nontextual references. The proposed terminology is the result of the convention adopted by each individual author.

Keywords: Józef Nowacki, general clause, situationalist concept of general clauses, normative concept of general clauses, reference, legal requirement of evaluating

Language: Polish

Published: Number 3(36)/2023, s. 78-92.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.78

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