Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR
  • About us
  • Aim & scope
  • News
  • Issues
    • Current Issue
    • Past Issues
  • Editorial board
    • Board Members
    • Reviewers
  • For authors
  • Ethics
  • Contact
  • Polski

Epistemology of Application of Law and the Principle of Democratic Rule of Law

Dr Tomasz Raburski

Adam Mickiewicz University in Poznań

English abstract: The paper analyses the institutional epistemology of the process of application of law in Poland. The concept of institutional epistemology is understood as a set of features, epistemic aims, values, and practices, which are intrinsic to the institutional structures. Two aspects of such an institutional epistemology are covered: the positivistic model of cognition and the concept of truth embedded in the judicial practices and legal norms. The philosophical and historical origins of these features are outlined. It is argued that they should be considered relics of previous socio-political system and obsolete philosophies of science, and, in consequence, they do not meet the standards of the constitutional principle of the democratic rule-of-law state (Polish demokratyczne państwo prawne). Evolution towards more deliberative forms of institutional epistemology is advocated.

Keywords: application of law, epistemology of law, truth, legal positivism, neopositivism, deliberative democracy

Language: Polish

Published: Number 4(33)/2022, pp. 39-51

DOI: https://doi.org/10.36280/AFPiFS.2022.4.39

Download: Download
Number of downloads: 64

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

Filed Under: Articles Tagged With: application of law, deliberative democracy, epistemology of law, legal positivism, neopositivism

Reflective Legal Positivism

Dr hab. Adam Dyrda

Jagiellonian University in Kraków

English abstract: The argument of theoretical disagreement has been deemed the most serious contemporary challenge to the traditional views of law, not merely for academic legal positivists but for all lawyers and scholars. Although coined by Ronald Dworkin for the specific purpose of opposing conventionalist and positivist theories of law, the argument recognises the general truth that jurisprudence is an inevitably agonistic enterprise. Nowadays, it is one of the most discussed arguments in general jurisprudence. In this paper, I follow Shapiro’s idea that legal positivists have to accept the challenge and accommodate the argument – they simply cannot dismiss it as conceptually irrelevant. I briefly reconstruct the argument and discuss three positivist accounts that accommodate the phenomenon of theoretical disagreement. I also argue that one of the common features of these positivistic responses is a tacit acceptance of a holistic and meta-philosophical perspective that allows theoretical disagreements to fit within the boundaries of the legal‒institutional framework. The holistic turn is no surprise given that Dworkin’s methodology is also in principio holistic. I conclude, however, that holistically pimped legal positivism – being a conscious close neighbour of legal realism – is a more reflective theory of law than the Dworkinian one.

Keywords: legal positivism, reflective methodology, holistic pragmatism, law as planning critical legal positivism, institutional theory of law

Language: English

Published: Number 3(32)/2022, pp. 34-48

DOI: https://doi.org/10.36280/AFPiFS.2022.3.34

Download: Download
Number of downloads: 85

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

Filed Under: Articles Tagged With: critical legal positivism, holistic pragmatism, institutional theory of law, law as planning, legal positivism, reflective methodology

Limits of Interpretive Disagreements in Jurisprudence

Dr hab. Adam Dyrda, prof. dr hab. Tomasz Gizbert-Studnicki

Jagiellonian University

English abstract: Does legal interpretation have borders? Are these borders conventionally established? What makes the given ‘legal reasons’, set forth by certain normative theories of legal interpretation, acceptable in legal discourse (even if the reasons are wrong)? In the present paper, we argue that the notion of the borders of legal interpretation is linked to the general notion of the borders of law. We indicate the scope of ‘interpretive theoretical disagreements’ in law, as discussed by certain new, ‘institutional’ versions of legal positivism. Interpretive borders are not fully determined by the given ‘institutional’ framework. In our view, these borders are also more generally determined inter alia by certain truistic (platitudinous) beliefs related to law and interpretation.

Keywords: interpretive methodology, limits of legal interpretation, legal positivism, second-order rules of legal interpretation, normative theories of legal interpretation

Language: Polish

Published: Number 2(23)/2020, pp. 19-34.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.19

Download: Download
Number of downloads: 372

Filed Under: Articles Tagged With: interpretive methodology, legal positivism, limits of legal interpretation, normative theories of legal interpretation, second-order rules of legal interpretation

On Possible Applications of Paul Ricoeur’s Thought in Legal Theory

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Krakow University

English abstract: The paradigm of legal positivism, historically the most important attempt at turning law into science, has been subject to thorough criticism in past decades. The criticism has concerned the most important features of legal positivism, and especially the assumption of separation of law and morality, the dogma of statue being the only source of law, and the linguistic methods of interpreting legal texts. With a crisis of the positive paradigms, the demand for new, humanistic grounds for analysing philosophical and legal questions is intensifying. This is the reason for this article’s attempt to point to the application of Paul Ricoeur’s achievements to the key questions of the philosophy of law. It must be emphasised that his works, and especially Soimême comme un autre, may serve as a foundation for a philosophy of law rejecting the problematic claims about the dualism of being and obligation, the distinction of descriptive and prescriptive languages, and also the separation of law and morality. Thanks to this, the legal topos pacta sunt servanda (agreements must be kept) finds a reinforcement in the ontology of the subject applying law and can be understood as an ethically significant pattern of identity of the self. Equally fruitful seems the possibility of combining the questions of the ontology of the subject applying law with the question of a legal text and its interpretation. The assumption of Ricoeur’s perspective leads to a reduction in the distance between the legal text and its addressee, emphasised by the critics of legal positivism. This rapprochement becomes possible thanks to the connection of the question of the narrative that a legal text is with the question of narrativisation of the subject (i.e. the interpreter of a legal text), being itself in the ipse sense, i.e. applying the law.

Keywords: Paul Ricoeur, legal positivism, legal interpretation

Language: English

Published: Number 1(10)/2015, pp. 79-88

DOI: https://doi.org/10.36280/AFPiFS.2015.1.79

Download: Download
Number of downloads:
244

Filed Under: Articles Tagged With: legal interpretation, legal positivism, Paul Ricoeur

A Prequel to Hart’s ‘Postscript’ – the Missing Link in the Hart-Dworkin Debate

Dr hab. Andrzej Grabowski

Jagiellonian University

English abstract: In his translator’s note to the H.L.A Hart’s paper New Challenge to Legal Positivism, Andrzej Grabowski describes the historical details of Hart’s Madrid lecture and the changes of the original Spanish text, introduced in the translation. He argues that Hart’s paper can be regarded as the prequel to the ‘Postscript’ from 1994, since the lecture deals with the criticism of Dworkin against the Hartian version of legal positivism and some important parts of them (from Section II) were in extenso included in the ‘Postscript’. The translator also emphasises the importance of Hart’s lecture as a text-source of information, which can be used in the contemporary debate on the inclusive legal positivism and for the critical reconstruction of Hart’s theoretical position.

Keywords: Herbert L. A. Hart, Ronald Dworkin, legal positivism, Hart-Dworkin debate

Language: Polish

Published: Numer 2(9)/2014, pp. 21-25

Download: Download

Number of downloads: 139

Filed Under: Articles Tagged With: Hart-Dworkin debate, Herbert L. A. Hart, legal positivism, Ronald Dworkin

New Challenge to Legal Positivism

Prof. Herbert L.A. Hart

University of Oxford

Abstract in English: In his lecture, delivered at the Department of the Philosophy of Law of the Autonomous University of Madrid on 29 October 1979, H.L.A. Hart directly responds to Ronald Dworkin’s attack on Legal Positivism, launched in Taking Rights Seriously. In the Sections I–II, Hart explicates his version of Legal Positivism by means of three central positivist theses: the Thesis of the Conceptual Separation of Law and Morals, the Thesis of the Social Sources of Law, and the Thesis of Judicial Discretion. Next, in Section III, he discusses Dworkin’s fundamental objections against the positivist theory of judicial discretion and claims that none of them seem convincing. Finally, in Sections IV–V, Hart analyses a new, herculean theory of adjudication, proposed by Dworkin as a „middle way theory” between the classic theories of Natural Law and Legal Positivism. In his answer to the criticism of the positivist Rule of Recognition, Hart claims that there is no reason why this rule, in certain jurisdictions, would not predict the use of the herculean procedure among the criteria that it provides for the identification of the law. He also states that the use of the herculean method of adjudication is unacceptable for the lawyers and that an impracticable character of this method is easy to demonstrate by referring to the case of the wicked legal systems, in which the principles underlying the law are morally bad. Thus, Hart concludes that instead of a sound vía media between Natural Law and Legal Positivism, the theory of Dworkin seems to offer the confusion of them.

Keywords: legal positivism, herculean method of adjudication, three central positivist theses

Language: Polish

Translation: Andrzej Grabowski

Published: Number 2(9)/2014, pp. 5-20

Download: Download


Number of downloads:
192

Filed Under: Articles Tagged With: herculean method of adjudication, legal positivism, three central positivist theses

The Very Idea of Legal Positivism

Prof. dr Stanley L. Paulson

Washington University

English abstract: Much in recent discussions on legal positivism suggests that the controversy surrounding the notion turns on the distinction between inclusive and exclusive legal positivism. As a point of departure in distinguishing them, the separation principle is helpful. The separation principle counts as the contradictory of the morality principle, according to which there is “necessary overlap” between the law and morality. What the legal positivist’s denial of the morality principle comes to can be refined, we are told, by appealing to the distinction between inclusive and exclusive legal positivism. One can acquire a broader perspective by opening up the field in order to cover not only inclusive and exclusive legal positivism but also non-positivism, represented by the defence of the morality principle, that is the view that there is necessary overlap between the law and morality. Say what you will about inclusive versus exclusive legal positivism – some defend the distinction, others dismiss inclusive legal positivism as a non-starter. In any case, I want to argue that a far more fundamental distinction within the positivist camp lies elsewhere. The distinction I have in mind is that between legal positivism qua naturalism (J. Austin) and legal positivism without naturalism (H. Kelsen). For reasons institutional in nature, legal positivism has largely been discussed in a vacuum, there is a standing presumption to the effect that there are ties between legal positivism and ‘positivism writ large’ in the greater philosophical tradition – or, as it would be put in present-day philosophical circles, ties between legal positivism and naturalism.

Keywords: legal positivism, Hans Kelsen, The Separation Thesis, naturalism, normativism

Language: Polish
Translated by: Marcin Romanowicz

Published: Number 2(15)/2012, pp. 20-35.

Download: Download
Number of downloads:
165

Filed Under: Articles Tagged With: Hans Kelsen, legal positivism, naturalism, normativism, The Separation Thesis

Legal Databases and Their Functions in the Process of Interpreting and Applying the Law

Dr Wiesław Staśkiewicz, Prof. dr hab. Tomasz Stawecki

University of Warsaw

English abstract: This article deals with the implications of the widespread practice of use of legal databases in Polish judicial practice. Apart from the undeniable positive effects of development of an electronic civilization, the article deals with the negative effects of use of databases. This is because a conflict arises between the possibilities offered by the latest technology in the form of easy access to legal texts, commentaries and thousands of judicial rulings, and the unique historical experience of the judiciary in a former communist country, methods of legal interpretation sustained by legal positivism, and domination by a syllogistic model for application of the law. All results in dysfunction of legal databases. A kind of “hybrid interpretation of law” is formed, which is a combination of a legacy, the effects of transformation of the economy and the system, as well as the new rules of law, on the one hand, and the ideology of bound judicial decision on the other. The nature of the “hybrid interpretation of law” is the infinite scope for citing judicial rulings and commentaries available in the databases without taking a broader theoretical view – without supporting arguments, and so the citing of a ruling has become the basis for adjudication. The question of whether the possibilities that electronic databases offer will cause interpretation of this kind to turn into a new form of legal rhetoric, or whether it will remain merely a means of adaptation of the discretionary power of judges to legal positivism doctrine, and thus the sophism of the period of transformation, remains an open one.

Keywords: legal database, legal interpretation, hybrid interpretation of law, legal positivism, syllogistic model for application of the law

Language: English

Published: Number 1(4)/2012, pp. 84-105.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.84

Download: Download
Number of downloads:
243

Filed Under: Articles Tagged With: hybrid interpretation of law, legal database, legal interpretation, legal positivism, syllogistic model for application of the law

“The Semantic Sting” Argument and Jerzy Wróblewski’s Theory of Law

Mgr Adam Dyrda

Jagiellonian University


English abstract:
Ronald Dworkin once criticized legal positivists for that their theories are founded on a mistake called “the semantic sting”, which claims that legal philosophy, as a silent prologue to every decision of law, cannot be only a semantic account to the word ‘law’. The article presents Dworkinean argument (and its most influential critique of Herbert Hart) and examines whether Jerzy Wróblewski’s legal theory (in its descriptive layer similar to the theory of Herbert Hart) is susceptible to “the semantic sting”. Finally, the answer given is based on a particular solution: Jerzy Wróblewski’s concept of rationality of legal decision appliance. The answer is in accoradance with argumentation of soft positivists, such as Herbert Hart or Jules Coleman, and is based on the acceptance that, even if Dworkin’s argument is meaningfull, it still does not apply to the theories presented by the soft positivists. The controversy whether a particular theory is “semantically stung” is de facto a dispute over a proper methodological approach to legal theory and a relation in which such a theory remains to interpretative jurisprudence of Ronald Dworkin. In this case we can treat Jerzy Wróblewski’s theory as a metatheory, which deals with theoretic disagreement over the grounds of the law, while deciding the case.

Keywords: Ronald Dworkin, Herbert Hart, Jerzy Wróblewski, semantic sting, legal positivism, rational application of law

Language: Polish

Published: Number 1(1)/2010, pp. 39-47.

Download file: Download
Number of downloads:
173

References:

  1. Coleman J. (red.), Hart’s Postscript: Essays on the Postscript to the Concept of Law, Oxford 2001.
  2. Coleman J., Methodology, w: Coleman J., Shapiro S. (red.), The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford 2002.
  3. Coleman J., The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory, Oxford 2001.
  4. Coleman J., Shapiro S. (red.), The Oxford Handbook of Jurisprudence and Philosophy of Law, Oxford 2002.
  5. Davidson D., Preface, w: LePore E., McLaughlin B.P., Actions and Events. Perspectives on the Philosophy of Donald Davidson, Oxford 1985.
  6. Dworkin R., Imperium prawa, Warszawa 2006.
  7. Gizbert-Studnicki T., Zasady i reguły prawne, „Państwo i Prawo” 1988/3.
  8. Hart H.L.A., Definition and Theory in Jurisprudence, Oxford 1953.
  9. Hart H.L.A., Pojęcie prawa, Warszawa 1998.
  10. LePore E., McLaughlin B.P., Actions and Events. Perspectives on the Philosophy of Donald Davidson, Oxford 1985.
  11. MacCormick N., Legal Reasoning and Legal Theory, Oxford 1978.
  12. Raz J., Two Views of the Nature of the Theory of Law: A Partial Comparison, w: Coleman J. (red.), Hart’s Postscript: Essays on the Postscript to the Concept of Law, Oxford 2001.
  13. Shapiro S., What is Law? (And Why Should We Care?), 1st Conference On Philosophy And Law Neutrality And Theory Of Law, Girona, 20-22.05.2010
  14. Wróblewski J., Ronald Dworkin Law’s Empire, „Państwo i Prawo” 1988/3.
  15. Wróblewski J., Rozumienie prawa i jego wykładnia, Wrocław 1990.
  16. Wróblewski J., Sądowe stosowanie prawa, Warszawa 1972.
  17. Wróblewski J., Zagadnienia teorii wykładni prawa ludowego, Warszawa 1959.
  18. Zabala S., The hermeneutic nature of analytic philosophy: a study of Ernst Tugendhat, New York 2008.
  19. Zirk-Sadowski M., Wprowadzenie, w: Dworkin R., Imperium prawa, Warszawa 2006.

Filed Under: Articles Tagged With: Adam Dyrda, Herbert Hart, Jerzy Wróblewski, legal positivism, rational application of law, Ronald Dworkin, semantic sting

Szukaj

Categories

  • Articles
  • Bez kategorii
  • Editorial
  • In Memoriam
  • News
  • Reports
  • Reviews and discussions

Keywords

general legal theories legal principles Chinese law normative standard human dignity deliberative public philosophy homosexuality Piyel Haldar political transformation of society and public institutions principles of criminal law Tischner the criminal process and citizens self-agency personalistic dialogue Franciszek Strzyszkowski authoritarianism ordoliberalism religious pluralism Neil MacCormick abortion discourse legal security close relationships public philosophy ideology civic society Dawid Bunikowski Russian jurisprudence institutions Jarosław Wyrembak Paul Grice law of evidence intellectual property legal narrative conflicts within values human nature conservatism individual and political freedom legal sociology the subject matter of legal sciences legal disagreement Legendre reflective equilibrium strict scrutiny test CLS second-order rules of legal interpretation transmission easement public reason interpretationism Carlos Cossio truth

Copyright © 2023 Polska Sekcja Międzynarodowego Stowarzyszenia Filozofii Prawa i Filozofii Społecznej IVR | Administrator strony: Karolina Gmerek

Ta strona używa plików cookies. Zakładamy, że wyrażają Państwo na to zgodę, ale mogą Państwo także wyłączyć pliki cookies w Ustawieniach. //
This website uses cookies to improve your experience. We'll assume you're ok with this, but you can opt-out if you wish. (Zob. więcej // Read more) Ustawienia // SettingsZGODA // ACCEPT

Privacy Overview

This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary
Always Enabled
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Non-necessary
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
SAVE & ACCEPT