Philosophy of Right for Lay Judges. Hegel’s and Fichte’s Perspective

Mikołaj Ryśkiewicz — Mon, 28 Nov 2022 17:40:15 +0000

Prof. dr hab. Ewa Nowak

Adam Mickiewicz University in Poznań

English abstract: The article, following an outline of the historical context, designs a normative justification of citizens’ participation in the public administration of justice on the basis of the philosophy of right of Georg W.F. Hegel and Johann G. Fichte. Their complementary philosophies of right provide solid foundations for a modern philosophy of right for lay judges (also called honorary judges). It is further argued that Hegel’s concept of the honorary judge as a subject who realizes their right to political and legal self-awareness and is integral to the administration of justice has greater and more topical potential than its equivalent in Fichte’s writings. Fichtean honorary judges act outside the legal framework, by virtue of a civic contract on reciprocal judicial support in emergency. All inquiries, documented with sources, due to the novelty of the issue, lead to the following conclusions: 1) lay judges’ activism according to Fichte “invalidates” a wrongful, defective or unjust law. In this way Fichte anticipates Radbruch’s Formula; 2) Hegelian honorary judges have impact on the real transformation of modern, atomistic society of idiotes (individuals with private interests) into a society of polites (as in the ancient Greek politeia or Roman res publica), transform institutions into public bodies in the strong sense of this term; finally, they prevent the alienation of society and law.

Keywords: participatory judiciary, lay judge, honorary judge, Hegel, Fichte, Radbruch, political transformation of society and public institutions, alienation of law and society

Language: Polish

Published: Number 4(33)/2022, pp. 52-69

DOI: https://doi.org/10.36280/AFPiFS.2022.4.52

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

On Gustav Radbruch’s Notion of Antinomies of the Idea of Law

Redakcja (Mateusz Mońka) — Tue, 30 Nov 2021 19:27:44 +0000

Bartosz Szyler

University of Warsaw

English abstract: The main purpose of the paper is to analyse the notion of antinomies of the idea of law developed in Gustav Radbruch’s philosophy. In the first part of the paper, I analyse the most detailed explication of the notion of antinomy contained in part of Radbruch’s Philosophy of Law. I emphasize which elements, according to Radbruch, constitute the idea of law and what are the sources of their antinomianism. I indicate what elements constitute, in Radbruch’s opinion, the idea of law and what, in his opinion, the sources of their antinomianism are. In the second part of the paper, I focus on a general reconstruction of the notion of antinomy. I refer to the use of this notion in the history of philosophy and logic, in particular to one of the most important philosophical uses of antinomy in Immanuel Kant’s Critique of Pure Reason. The analysis carried out allows me to recognize the specificity of the notion of antinomy used by Radbruch and to see its distinctiveness in comparison with Kantian antinomies. Looking at the antinomies of the idea of law from a broader philosophical perspective allows me to criticize the inadequacy of the conceptual net adopted by Radbruch, and to justify their reinterpretation independently of what has been discussed in the literature so far.

Keywords: Radbruch, Kant, philosophy of law, antinomies, justice

Language: Polish

Published: Number 4(29)/2021, pp.82-90

DOI: https://doi.org/10.36280/AFPiFS.2021.4.82

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Number of downloads: 646