legal theory

An Ideal of Scientific Jurisprudence. Józef Nowacki Against Ideological Influences on Jurisprudential Claims

Prof. dr hab. Tomasz PIETRZYKOWSKI

University of Silesia in Katowice

English abstract: Methodological assumptions underpinning Józef Nowacki’s research were one of the most original and intriguing aspects of his approach to legal theory. An extremely rigorous conception of what kind of legal claims may be regarded as scientific can be reconstructed based on his various writings about legal norms, general clauses, dispositive provisions of law, legal principles or the practical application of the constitutional notion of the rule of law. His relentless efforts to uncover and eliminate from scientific discourse any evaluative judgments served to defend legal theory against ideological influences and subjective wishful thinking disguised as scientific claims. In these respects, it not only was an unquestionably valuable position then, but it remains so nowadays. At the same time, it begs numerous questions and doubts that still permeate central methodological debates in jurisprudence.

Keywords: law, methodology, valuing, legal theory, science

Language: Polish

Published: Number 3(36)/2023, s. 22-33.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.22

Download: Download Number of downloads: 151

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

Maurice Hauriou’s Theory of the Institution: Legal Institutionalism and the Science of the State

Mgr Cezary Węgliński

University of Warsaw

English abstract: The aim of this paper aims is to reconstruct the original context, the characteristics and the main assumptions of M. Hauriou’s theory of the institution as one of the most coherent and comprehensive examples of legal institutionalism. By means of critical source analysis, the paper presents the basic elements of the notion of the institution together with its ontological and epistemological assumptions concerning both the very concept of law and legal methodology. The second part of the paper presents the critical approach expressed in Hauriou’s theory towards some core concepts of public and constitutional law by opposition to traditional, normativist and positivist approaches to constitutionalism. Hauriou’s work, despite its importance as indirect inspiration for contemporary doctrines of constitutional pluralism, is nowadays barely present in European legal science discourse. The last part of the paper is therefore dedicated to some closing remarks on current relevance of the theory of the institution with particular focus on the challenges of increasing pluralism of legal orders.

Keywords: legal institutionalism, theory of the institution, Maurice Hauriou, constitutional pluralism, supra-constitutionality, legal theory, sociology of law

Language: English

Published: Number 3(32)/2022, pp. 88-102

DOI: https://doi.org/10.36280/AFPiFS.2022.3.88

Download: Download
Number of downloads: 204

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

Piotr Winczorek: Researcher, Teacher and Friend

Prof. UW dr hab. Tomasz Stawecki

University of Warsaw

English abstract: This article was written to commemorate Professor Piotr Winczorek, who passed away on 9 February 2015. He was associated with the Faculty of Law and Administration of the University of Warsaw for over 50 years. However, the article focuses on three dimensions of Professor’s academic activity: those of a researcher, teacher and friend. Piotr Winczorek’s scientific interests evolved. Initially, he studied the functioning of political parties, especially in Poland during the communist regime. In this context, he tried to study various forms of social and political pluralism. In the 1980s, Piotr Winczorek concentrated on the issues of legal theory, developing his own approach to legal realism. After 1989, Professor focused on issues of public law, especially on axiological assumptions and the practice of constitutionalism, particularly the primacy of the constitution in the legal order, the rule of law, the separation of powers, and equality before the law. Piotr Winczorek was also an extraordinary teacher. He conducted classes with students, initiated new subjects and new curricula. He wrote several textbooks and coursebooks for students, including the textbook Introduction to Jurisprudence, which had 14 editions published over the past 30 years. Professor was also known for his many articles and commentaries on constitutional issues. For his younger colleagues, Piotr Winczorek was a true friend. He would invite them on a daily basis to cooperate, do joint research, and publish together. He also showed great civil courage in defending us against bureaucratic or political attacks. His honesty and wisdom is still remembered well beyond the walls of the University of Warsaw.

Keywords: Piotr Winczorek, researcher, teacher, friend, legal theory, constitutionalism

Language: Polish

Published: Number 1(30)/2022, pp. 8-16

DOI: https://doi.org/10.36280/AFPiFS.2022.1.8

Download: Download
Number of downloads: 229

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

Law, economics, human behavior. Discussion about application of behavioral economics to analysis of law

Mgr Magdalena Małecka

Polish Academy of Sciences

English abstract: Law & economics scholars have claimed, from the very beginning of the movement, that their ambition has been to make studies of law more scientific. The neoclassical approach in economic analysis of law is based on the assumption that rationality of people acting in legal contexts can be characterized in the same ways as rationality of homines economici. However, emergence of behavioral economics and attempts to apply it to analysis of law by some law & economics scholars resulted in critical revising the achievements of neoclassical approach. The so called behavioral law & economics criticizes the neoclassical approach on the basis of experiments, which test hypotheses derived from neoclassical theories. Outcomes of those experiments allow to draw conclusion that in many (legal) contexts people don’t behave in accordance with predictions based on neoclassical models. Behavioral law & economics scholars argue that neoclassical theories are grounded on so highly unrealistic assumptions that in many situations they cannot offer predictions of human behavior. I distinguish three main issues that are discussed: philosophical, methodological and normative ones. I formulate critical comments on the raised arguments and final general remarks concerning possibility of making legal studies more scientific, as well as application of economics to studies on law.

Keywords: behavioural law & economics, scientific study of law, legal theory, normative and methodological debate

Language: Polish

Published: Number 1(2)/2011, pp. 15-28.

Download file: Download
Number of downloads: 333

References:

Arlen J., Comment: The future of behavioral economic analysis of law, “Vanderbilt Law Review” 1998/51.

Bar-Gill O., The behavioral economics of consumer contracts, “Minnesota Law Review” 2007–2008/92.

Blaug M., Metodologia ekonomii, Warszawa 1995.

Faure M., van den Bergh R., Essays in law and economics, Antwerpen 1989.

Friedman M., Essays in Positive Economics, Chicago 1953

Friedman M., Essay on the Methodology of Positive Economics w: Friedman M., Essays in Positive Economics, Chicago 1953.

Gigerenzer G., Adaptive thinking. Rationality in the real world, New York 2000.

Guthrie Ch., Framing Frivolous Litigation: A Psychological Theory, “The University of Chicago Law Review” 2000/67.

Issacharoff S., Can there be a behavioral law and economics?, “Vanderbilt Law Review” 1998/51.

Jolls Ch., Sunstein C., Thaler R., A behavioral approach to law and economics, “Stanford Law Review” 1998/5.

Jolls Ch., Sunstein C., Thaler R. , Theories and tropes: A reply to Posner and Kelman, “Stanford Law Review” 1997–1998/50.

Kahneman D., Knetsch J.L., Thaler R., The Endowment Effects, Loss Aversion and Status Quo Bias, “Journal of Economic Perspectives” 1991/5.

Langevoort D.C., Organized Illusions: A Behavioral Theory of Why Corporations Mislead Stock Market Investors (and Cause Other Social Harms), “University of Pennsylvania Law Review” 1997–1998/146.

Meier S., Sprenger Ch., Impatience and Credit Behavior: Evidence from a Field Experiment, Fed. Reserve Bank of Boston, Working Paper No. 07–03, 2007.

Nowak L., Wstęp do idealizacyjnej teorii nauki, Warszawa 1977.

Posner R., Frontiers of Legal Theory, Cambridge (Mass.)-London 2001.

Rabin M., Incorporating Fairness into Game Theory and Economics, “American Economic Review” 1993/83.

Rachlinski J.J., A Positive Psychological Theory of Judging in Hindsight, “The University of Chicago Law Review” 1998/2.

Simon H., Models of bounded rationality, MIT Press 1982.

Tversky A., Kahneman D., Prospect theory: an analysis of decision under risk, „Econometrica” 1979/47.

Ulen T., The growing pains of behavioral law and economics, “Vanderbilt Law Review” 1998/51.

In search of the hidden nature – natural kinds and legal language

Mgr Bartosz Janik

Jagiellonian University

English abstract: In the theoretical legal literature there are views that consistently want to combine natural kinds with semantics of legal language (M. Moore, D. Brink, N. Stavropoulos). The motivation for creating such a theories is the desire to get the semantics of the legal language to be realistic. This semantics should enable the formulation of an objective theory of legal determination. Very often, the obvious objection to such theories is that the legal terms do not correspond to any objects in the world. The purpose of this article is to examine these ideas and attempt to show that the nature of the legal terms directly shows the impossibility of building an objective discourse for such terms (where objectivity is understood as objectivity in the scientific sense). Regardless, such theories can be formulated and treated as objective but the objectivity of those theories will come from methods of construction of the objects and not from their nature.

Keywords: natural kinds, essentialism, legal theory, realism

Language: Polish

Received: 02.10.2016
Accepted: 13.11.2016

Published: Number 1(14)/2017, pp. 66-73.

Download file: Download
Number of downloads: 264