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

Redakcja (Mateusz Pękala) — Mon, 09 Oct 2023 10:40:33 +0000

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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Number of downloads: 284

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. The Context of Differences and Common Grounds

Redakcja (Mateusz Pękala) — Mon, 09 Oct 2023 10:40:13 +0000

Prof. dr hab. Leszek LESZCZYŃSKI

Maria Curie-Skłodowska University in Lublin

English abstract: The purpose of the study is to analyse the concept of general clause formulated by Józef Nowacki in its basic form in the 1980s. It focuses on several issues that are most important for the shape of the concept. The first is the very notion of a clause as an indeterminate phrase that is part of a legal provision. It corresponds to the crucial components of the situationist concept of the clause – the negation of the referential character of clauses (reference to general norms or values) in favour of treating the clause as an imperative of evaluating, implemented by the law-applying entity in the form of concrete and situational evaluation. The analysis of Nowacki’s concept leads, in the final sections of the study, to a demonstration of its theoretical implications, which, although not within the mainstream, do not prevent the search for common grounds with the normative concept of the clause, negated by the author.

Keywords: general clause, situationist and normativist concepts, reference, imperative of evaluating, situational assessment

Language: Polish

Published: Number 3(36)/2023, s. 66-77.

DOI: https://doi.org/10.36280/AFPiFS.2023.3.66

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Number of downloads: 261