reflexivity

Reflexivity and the Codification of Legal Ethics. Remarks on the Basis of Paul Ricoeur’s “Little Ethics” Theory

Dr Marcin Pieniążek

Andrzej Frycz Modrzewski Kraków University

Abstract: Codes of legal ethics encounter constant waves of criticism. It is pointed out that their disadvantage is, on the one hand, the excessive casuistry, limiting the possibility of taking independent decisions in cases of ethical and professional conflicts, and, on the other hand, the exaggerated declarative character of perfectionist ethical and professional virtues. The gap between the abovementioned perspectives, easily perceived in such codes, results in a dysfunctionality of professional ethics in the actions undertaken by members of the legal profession. The article, apart from the critical-comparative part, includes a proposal of reading and interpreting the content of the codes in a way that transgresses the above opposition. The theoretical basis of the presented position is provided by the concept of “little ethics” formulated by Paul Ricoeur in his work Oneself as Another. The ethical theory developed by Ricoeur combines the elements of Aristotelian ethics of virtues with Kantian ethics of duty. For this reason, it sets a uniform perspective for opposing elements, namely: subordination to the norm of the code and pursuit of ethical and professional self-improvement by legal professionals. The proposed solution belongs to the “reflexive” paradigm of the lawyer’s professional ethics proposed on the basis of Ricoeur’s onto-ethical theory.

Language: English

Keywords: legal ethics, codification, reflexivity, Paul Ricoeur, teleological ethics, deontological ethics, “little ethics”

Published: Number 2(13)/2016, pp. 39-50.

DOI: https://doi.org/10.36280/AFPiFS.2016.2.39

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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: 282

Reflexivity and transitional justice research

Mgr Michał Krotoszyński

Adam Mickiewicz University in Poznań

English abstract: The article explores ways in which the notion of reflexivity can apply to the research on transitional justice. First, the article describes reflexive considerations concerning the state of the field itself. Then, the reflections on transitional justice measures are characterized, focusing primarily on the discussion on the use of criminal trials. Finally, the article portrays how collective and individual identity can be reshaped during the transition. The article argues that research on dealing with the past is par excellence reflexive, as the debate challenges even the most basic ideas connected with transitional justice.

Keywords: cultural relativism, dealing with the past, human rights, political transition, reflexive law, reflexivity, transitional justice, universalism

Language: Polish

Published: Number 2(11)/2015, p. 59-68.

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Number of downloads: 291