philosophy of law

State of Exception in the Philosophy of Law. An Attempt at a Definition

Mgr Weronika Adamska

École des hautes études en sciences sociales

English abstract: The aim of this paper is to propose a definition of the state of exception within the framework of the philosophy of law. The nature of the state of exception is both a legal and a political one. For this reason, it is a subject of inquiry in various disciplines. As a consequence of its hybrid character, state of exception is hard to define, which leads to definitional scepticism. As a criterial definition is impossible to reach, I believe that it should be replaced with a paradigmatic one. Such a definition should take into account the acquis of, among others, philosophy, history or political science, so that it may apply to different methodological approaches. In order to do so, I present the main definitional groups (state of exception as a normative fact, as a constitutional dictatorship, as a political fact, and as a legal void). Next, using the criteria that are common to all those definitions, I propose and analyse three constitutive elements of the state of emergency: a crisis, a suspension of ordinary laws, and a temporary character of this suspension. The definition I propose can help to assess whether a given state is a form of a state of exception. This is of a particular relevance as emergency laws are nowadays widely discussed in the context of terrorist threats.

Keywords: state of exception, emergency laws, constitutional dictatorship, political crisis, philosophy of law, political theory

Language: Polish

Published: Number 4(25)/2020, pp. 5-16.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.5

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The Role of Values in Legal Interpretation: The Normative Approach

Prof. US dr hab. Olgierd Bogucki

University of Szczecin

English abstract: The article presents and analyses a certain theory of values and their role in legal interpretation. The article calls it a ‘componential’ theory of values. According to the theory, values in law create structures based on global assessments: comprehensive axiological judgements that consider all the relevant values and degrees of their realization. The basic theorem of the theory is the theorem on isomorphy between the global assessment and the content of the legal norm. This ‘componential’ theory is the basis of the normative model of legal interpretation. According to this model, the interpreter should reconstruct the global assessment and choose the one possible result of interpretation – the one norm of conduct – which will be the most consistent with this judgement. In order to reconstruct the aforementioned global assessment, the interpreter should consider the legal text, case law and legal literature, legislative materials and interpretative presumption.

The article reconstructs the philosophical presumptions behind the aforementioned theory and model. The article points out that the fundamental value behind the normative model is the intersubjectivity of legal interpretation as an element of the rule of law. The article also indicates that the theory and model described above are based on legal positivism, but with significant connections with legal hermeneutics, Dworkin’s theory of law, and argumentative approaches to law. In addition, the theory seems to presume weak commensurability of values.

Keywords: legal interpretation, theory of law, philosophy of law, axiology, ‘componential’ theory of values

Language: Polish

Published: Number 2(23)/2020, pp. 96-108.

DOI: https://doi.org/10.36280/AFPiFS.2020.2.96

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Number of downloads: 100

Court as the incarnation of the People. Deconstruction of the idea of popular constitutionalism

Dr Arkadiusz Barut

University of Wrocław

English abstract: The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities
of the criticism of its lawmaking.

Keywords: philosophy of law, theory of democracy, popular constitutionalism, Bruce Ackerman

Language: Polish

Received: 22.05.2017
Accepted: 08.08.2017

Published: Number 2(15)/2017, pp. 13-25.

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Punishing (Non-)Citizens

Dr Michał Peno

University of Szczecin

Abstract: If sociologists are to be trusted, reflexivity, focused on itself and devoid of any religious or at least ideological framework, leads to the weakening of control mechanisms. Such changes are accompanied by the polarization of social classes and by the exclusion of the so-called underclass (which certainly includes a vast majority of criminals) from the civil society. In the doctrine of criminal law of “mature modernism”, within the framework of a liberal-democratic state, the civil society, together with the idea of communication, is supposed to constitute a central reference point in the research on criminal liability. Reflexivity brings up new problems. New citizen-oriented criminal law is being shaped, based upon mediation and communication (e.g. restorative justice, Expressive Theory). The civil society does not include the area of politics or political nature of things, where the problem is not the justification of the punishment but the effectiveness of mere spatial isolation. In this sense, it is difficult to talk about the merits of the emancipation of an individual from the limitations imposed by the society. The weakening of any external authority and of political duties owed to the state is replaced by self-control proper to reflexive modernity only in cases where the individuals have adequate intellectual and ethical predispositions. Disappearance of the influence of external rules and values together with the mechanism of exclusion from the civil society results in the weakening of self-control and in selfish care only about one’s own perspective (but also in repressive subordination by the state). Such a state of affairs creates favourable conditions for objectifying criminal liability, abandoning the concept of guilt, and for attempts to provide an ethical justification of penalty – which are concepts taken from the “world of citizens”.

Language: English

Keywords: reflexivity, criminal law, philosophy of law, restorative justice, resentment, CLS

Published: Number 2(13)/2016, pp. 28-38.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.28

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Number of downloads: 100