Archiwum
Filozofii Prawa
i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVR

Public Interest and Access to Justice: A Liminal Analysis

Dr Jan Winczorek

University of Warsaw

English abstract: The paper argues that there exists a contradiction between access to justice and public interest. It substantiates this claim by reviewing selected arguments for access to justice and by referring to empirical evidence. The contradiction is then interpreted using a sociological theory of law, which enables establishing the structural reasons for such a clash. In order to reconcile access to justice with the public interest, the legal system must develop the semantics allowing for a better understanding of social inclusion conditions. In particular, the legal system must finally do away with pre-modern charity-oriented concept of access to justice, be able to grasp access to justice in its totality and reflect on conditions of legal inclusion. If it fails to do that, it is doomed to reproduce the conflict. The concept of access to justice developed by Cappelletti and others in the 1970s is a good point of departure here, but it is by far insufficient.

Keywords: access to justice, public interest, systems theory

Language: English

Published: Number 3(24)/2020, pp. 24-40.

DOI: https://doi.org/10.36280/AFPiFS.2020.3.24

Download: Download
Number of downloads: 341

Systems Theory and Puzzles of Legal Culture

Dr Jan Winczorek

University of Warsaw


English abstract: Legal culture is a concept as central to legal studies and sociology of law as difficult to define. It aims to serve important theoretical needs but it is also responsible for some puzzles that trouble legal and socio-legal scholars. Some of them are quite famous: the puzzle of the nature of Japanese litigiousness, the puzzle of differing German and Dutch legal cultures, or, recently, the issue of cultural defence. Some are lesser known, like the multitude of courts’ adjudicating strategies in Poland’s allegedly unitary legal culture. The paper argues that the problems of such nature are a conceptual artefact, a result of objectifying understanding of legal culture as a phenomenon. It is stressed that in such studies more weight should be put on the immediate, procesual nature of investigated phenomena. In order to support these claims, conceptual machinery of systems theory is utilised. First, a general view of N. Luhmann regarding the notion of culture is accepted and applied to the idea of legal culture. Further it is demonstrated how the aims served by the notion of legal culture can be achieved by appealing to such theoretical concepts as structural coupling, first- and second- order observation, and above all – temporal nature of social systems. A general conclusion of the paper is that in the study of “legal culture” an evolutionary perspective is unavoidable.

Keywords: Niklas Luhmann, Systems Theory, legal culture, structural coupling, first-order observation, second-order observation, temporal nature of social systems

Language: English

Published: Number 1(4)/2012, pp. 106-125.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.106

Download: Download
Number of Downloads: 362