Individual and Collective Identity: Factual Givens and Their Legal Reflection in International Law. Words in Commemoration of Krzysztof Skubiszewski

Author(s): Christian Tomuschat / Language(s): English Issue: 37/2017

States and individuals are the essential building blocks of international law. Normally, their identity seems to be solidly established. However, modern international law is widely permeated by the notion of freedom from natural or societal constraints. This notion, embodied for individuals in the concept of human rights, has enabled human beings to overcome most of the traditional ties of dependency and being subjected to dominant social powers. Beyond that, even the natural specificity of a human as determined by birth and gender is being widely challenged. The law has made far­going concessions to this pressure. Te right to leave one’s own country, including renouncing one’s original nationality, epitomizes the struggle for individual freedom. On the other hand, States generally do not act as oppressive powers but provide comprehensive protection to their nationals. Stateless persons live in a status of precarious insecurity. All efforts should be supported which are aimed at doing away with statelessness or non­recognition as a human person through the refusal to issue identity documents. Disputes about the collective identity of States also contain two different aspects. On the one hand, disintegrative tendencies manifest themselves through demands for separate statehood by minority groups. Such secession movements, as currently reflected above all in the Spanish province of Catalonia, have no basis in international law except for situations where a group suffers grave structural discrimination (remedial secession). As the common homeland of its citizens, every State also has the right to take care of its sociological identity. Many controversies focus on the distinction between citizens and aliens. This distinction is well rooted in domestic and international law. Changes in that regard cannot be made lightly. At the universal level international law has not given birth to a right to be granted asylum. At the regional level, the European Union has put into force an extremely generous system that provides a right of asylum not only to persons persecuted individually, but also affords “subsidiary protection” to persons in danger of being harmed by military hostilities. It is open to doubt whether the EU institutions have the competence to assign quotas of refugees to individual Member States. Te relevant judgment of the Court of Justice of the European Union of 6 September 2017 was hasty and avoided the core issue: the compatibility of such decisions with the guarantee of national identity established under Article 4(2) of the EU Treaty.

Past Conflicts, Present Uncertainty: Legal Answers to the Quest for Information on Missing Persons and Victims of Enforced Disappearance. Three Case Studies from the European Context

Author(s): Alessandra La Vaccara / Language(s): English Issue: 37/2017

This article is intended to provide a legally sound explanation of why and how the contemporary International Humanitarian Law and International Human Rights Law legal frameworks offer tools to address the uncertainty, lack of information, and the consequences thereof in relation to missing persons and victims of enforced disappearances in the context of armed conflicts which predated the adoption of such frameworks. To this end, three scenarios will be examined: the contemporary claims of the families of those who were killed in the Katyń massacre in 1940; the claims for information and justice of the families of thousands who were subjected to enforced disappearances during the Spanish Civil War between 1936 and 1939; and the identifcation efforts concerning those reported missing while involved in military operations in the context of the 1944 Kaprolat/Hasselmann incident which took place during the Second World War. The analysis of these scenarios is conducive to the development of more general reflections that would feed into the debate over the legal relevance of the distant past in light of today’s international legal framework.

The Rule of Law Promotion Through Trade in the “Associated” Eastern Neighbourhood

Author(s): Maryna Rabinovych / Language(s): English Issue: 37/2017

This article aims to investigate the phenomenon of the rule of law promotion exercised by the EU through the Deep and Comprehensive Free Trade Agreements (DCFTAs). First, the article emphasizes the unique combination of normative and market power the EU uses to diffuse its norms through trade liberalization. Next, it provides an insight into the particularities of the European Neighbourhood Policy as a policy context for the conclusion and implementation of the Association Agreements, including the DCFTAs with Ukraine, Moldova and Georgia, as well as the conceptual problematic and scope of the rule of law as a value the EU seeks to externalize. Using the DCFTAs with Ukraine, Moldova, and Georgia as a single group case study of the transparency dimension of the rule of law, the central part of the article analyzes the DCFTAs substantive requirements, directed toward promoting transparency in the partner states (while categorizing the requirements into the most general ones; cooperation­related; and discipline­specific) and the legal mechanisms that make these clauses operational (e.g., the institutional framework of the AAs, gradual approximation and monitoring clauses, and the Dispute Settlement Mechanism). In concluding, the article summarizes the state­of­the­art of the rule of law promotion through the DCFTAs, distinguishes the major challenges the respective phenomenon faces, and emphasizes the prospects for and difficulties of using the DCFTAs as an instrument of rule of law promotion.

Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation as a Ground for Prosecution of Crimes against Humanity, War Crimes and Crimes against Peace

Author(s): Karolina Wierczyńska / Language(s): English Issue: 37/2017

This article discusses definitions of crimes included into the Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation, and their usefulness in prosecuting individuals who committed international crimes. It is argued that the provisions of the Act cannot constitute a ground for criminal responsibility of individuals, as they violate the principle of nullum crimen sine lege certa.

Amendments of January 2018 to the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation in Light of International Law

Author(s): Patrycja Grzebyk / Language(s): English Issue: 37/2017

This article analyses the amendments of January 2018 to the Act on the Institute of National Remembrance (INR) of 1998, which has raised doubts in light of international law and provoked diplomatic tensions between Poland on one side and Germany, Ukraine, United States of America and Israel on the other. The INR is a national institution whose role is, among others, to prosecute perpetrators of international crimes committed between 1917­1990. The article proves that the wording of the amendments is inconsistent with international law, as it ignores the principles of international responsibility, definitions of international crimes, and disproportionately limits freedom of expression. In consequence, it cannot be expected that third states will cooperate with Poland in the execution of responsibility for violation of the newly adopted norms.

Book review: Cheryl Lawther, Luke Moffett and Dov Jacobs (eds.), Research Handbook on Transitional Justice, Edward Elgar Publishing, Cheltenham: 2017

Author(s): Karolina Wierczyńska / Language(s): English Issue: 37/2017

Book review of Cheryl Lawther, Luke Moffett and Dov Jacobs (eds.), Research Handbook on Transitional Justice, Edward Elgar Publishing, Cheltenham: 2017

СИНТAКСИЧКЕ ОДЛИКЕ СТАРОСРПСКЕ ПОСЛОВНОПРАВНE ПИСМЕНОСТИ

Author(s): Slobodan Pavlović / Language(s): Serbian Issue: 2/2006

Предмет истраживања насловљеног као Синтаксичке одлике старосрпске пословноправне писмености мора се нужно двојако посматрати. По свом корпусу то је рад из историје српског језика, а по приступу том корпусу из синтаксе, и то синтаксе која је дефинисана, с једне стране, синтаксичким капацитетом једног средњевековног функционалног стила каква је старосрпска пословноправна писменост и, с друге стране, на- стојањем да се теоријско-методолошки приступ синтаксичких истражи- вања једног историјског корпуса колико-толико приближи савременој синтаксичкој теорији и методологији уз нужно уважавање специфичности историјске синтаксе. Чинило се просто корисним презентовати синтаксичко-семантичке системе језика старосрпске пословноправне писмености тако да они буду сравњиви с подацима којима располаже синтак- са савременог српског језика, а све то у циљу доприноса сагледавању дијахроне перспективе одговарајућих синтаксичко-семантичких система и њихових елементарних јединица, што је и смисао дијахроних синтак- сичких, па и лингвистичких истраживања уопште.

Prawo jako przedmiot kulturowy w filozofii prawa Carlosa Cossio

Author(s): Krzysztof Goździalski / Language(s): Polish Issue: 1/2016

The main purpose of this article is to present the view of an Argentinian legal philosopher Carlos Cossio on the issue of law. He called his philosophy “egology”. The originality of Cossio’s works is expressed by a strong relationship between philosophy of law and his philosophical assumptions. The starting point for deliberating on law are widely recognized onthological and epistomological contentions. Cossio justifies his legal theses basing them on his philosophical views. Egology derives from Edmund Husserl’s phenomenology which is related to some elements of William Dilthey’s philosophy of culture. Martin Heiddeger’s and Immanuel Kant’s philosophies are the basis too. I described Cossio’s ontologies of subjects otherwise known as regional ontologies. I also presented methods for examining the above subjects and gnoseological acts which those methods comprise. I presented the characteristics of law as a cultural subject. The text is not only a report. Its aim is to show that Carlos Cossio’s legal philosophy is also semantic in character.

Konflikt pomiędzy lekarzem i pacjentem: próba diagnozy, propozycje „leczenia”

Author(s): Błażej Kmieciak / Language(s): Polish Issue: 1/2016

Patients’ rights have become in recent years a particular element of the discussion on health care. They refer to a special relationship. It is often associated with situations in which the medical expert must step into the intimate sphere of life of the sick person. This person also often experience physical or mental suffering. In debates on medicine appeared, however, a new element. It refers to information on conflicts between patients and doctors. These conflicts have a special character. They occur between the person needing help, and an expert who can give it. It is worth to think about: What is the source of that conflict? Does this conflict deepens? Are there systemic forms of assistance in resolving the dispute? Are the mediation procedures may be supported in similar difficult situations? The proposed text is attempt to answers to the above questions.

Wpływ redukcji dysonansu poznawczego na treść prawa pozytywnego. Eufemizmy

Author(s): Sławomir Piekarczyk / Language(s): Polish Issue: 1/2016

The written law is a result of collective normative decision. It is enacted by competent members of legislative body being people which aren’t free from their experiences and motives in the process of the enactment. Therefore the following question appears – what occurring processes at these persons can affect contents of the law. To find an answers (explanations), there is a need to go beyond classical law research, to the direction of outside integration theory of law and derive them from such a disciplines as psychology, sociology, political science, cognitive science and the other. Presented paper uses a theory of cognitive dissonance, derived from social psychology and developed by Leon Festinger (1957’) to formulate a hypotheses about the influence of cognitive dissonance reduction on the content of written law, which expressions may be euphemisms used by legislator.

Czy modny i sprawiedliwy mogą mieć ze sobą coś wspólnego? – czyli kilka słów o thick terms, thick concepts oraz thick properties

Author(s): Izabela Skoczeń / Language(s): Polish Issue: 1/2016

In the present article I explore two questions. First, what are the theoretical relations between thick terms, concepts and properties? I try to depict that the answer is dependent upon a choice of philosophical assumptions. Second, I explore what are the possible bonds between descriptive and evaluative components of thick expressions. I concentrate on the nature of the evaluative component and contrast the semantic and pragmatic approaches. Finally, I conclude that terms such as ‘legal’ are par excellence thick. Therefore, we should be aware of all the theoretical intricacies of the evaluative content when building a coherent theory of the legal realm.

25 Years After the Transformation: Law and Legal Culture in Central and Eastern Europe Between Continuity and Discontinuity”, Brno, Republika Czeska, 16-17.04.2015 r.

Author(s): Wojciech Zomerski / Language(s): Polish Issue: 1/2016

VII Zjazd Młodych Teoretyków i Filozofów Prawa „Wymiary prawa”, Poznań, 6-9.09.2015 r.

Author(s): Michał Krotoszyński / Language(s): Polish Issue: 1/2016

„Macieja Zielińskiego koncepcja wykładni prawa” – Ogólnopolska Konferencja Naukowa Dedykowana Profesorowi Maciejowi Zielińskiemu, Uczonemu i Nauczycielowi, Poznań, 19.10.2015 r.

Author(s): Krzysztof Janas / Language(s): Polish Issue: 1/2016

A-podmiotowość władzy – mit i rzeczywistość, czyli Zakład Ubezpieczeń Społecznych jako władza „suwerenna”

Author(s): Arkadiusz Barut / Language(s): Polish Issue: 2/2015

The subject of the article is the analysis of a specific feature of contemporary political and administrative power. As analytic categories the author uses Foucaultian concepts of power discourses: sovereignty: the type of individualized power which strives for self-conservation (pre-modern type of power) and governmentality – the type of non-individualized power the aims of which are control and management of the population (modern type of power). Contemporary power – the bureaucratic power described by M. Weber etc. – seems to be the type of governmentality. But in this field emerges a new type of sovereign power legitimized by the discourse of governmentality – management and protection of the population. Its examples are analysed by G. Agemben i J. Butler indefinite detention in Guantanamo. In this articles, the author focuses on symptoms of the new type of sovereignty in day-to day government action – the practice of the polish organ of compulsory social insurance – Social Insurance Institution (Zakład Ubezpieczeń Społecznych).

Postulat jasności prawa w odniesieniu do prawa Unii Europejskiej

Author(s): Jakub Karczewski / Language(s): Polish Issue: 2/2015

Clarity is one of the basic traits of good law. So far, theory of law has focused on the clarity of law requirement only with reference to national legal orders. The article tries to apply this requirement to multilingual and multicultural European Union legal order. Clear law is understandable and precise. Although it is not possible to make law completely clear, the legislator should try to make it as clear as possible since such law protects important values and enables to achieve important goals, for instance it makes law more efficient and certain. One of the crucial prerequisites for clear law is appropriate language of the texts of legal acts. It concerns both vocabulary and syntax of these texts. Therefore, in order to make law clear, the legislator should follow specific rules regarding linguistic aspects of lawmaking. European Union law should be clear as well. Since European Union multilingual and multicultural legal order is different from national legal orders, including the multilingual ones, the methods of making European Union law clear are partly different from those applied in national legal orders. It concerns, above all, the language of texts of European Union legal acts. The use of new, European, legal terms is justified and helps make European Union law clear, even though this does not have to seem evident. In contrast to the new vocabulary, the new, European, syntax of texts of European Union legal acts is not justified. In order to make law clear, the European Union legislator should follow the same syntactic rules as the national legislator.

Debata Fish – Dworkin jako przykład sporu o praktykę interpretacji prawa

Author(s): Michał Pełka / Language(s): Polish Issue: 2/2015

The aim of the article is to critically asses the theories of interpretation developed by two prominent philosophers, namely Stanley Fish and Ronald Dworkin. After first describing and reconstructing their ideas the paper then identifies problems concerning the stance according to which everything in applying law depends on interpretation. The critic is based on the Ludwig’s Wittgenstein remark that there must be grasping the rule (or more broadly a meaning of any word) which is not interpretation, otherwise we end up in regressus ad infinitum fallacy. Paper’s main claim is that although the theory of R. Dworkin is not fully free from defects it has nevertheless more explanation power than the opponent’s propositions.

Interpretacyjny park jurajski: odpowiedź Agnieszce Choduń

Author(s): Tomasz Grzybowski / Language(s): Polish Issue: 2/2015

Critical Legal Conference 2014 Power, Capital Chaos, University of Sussex, Brighton, Wielka Brytania, 4-6 września 2014

Author(s): Paweł Snopek / Language(s): Polish Issue: 2/2015

2nd International Workshop On Law And Ideology Memories Of Struggles, Struggles Of Memories, Sarajevo, 28-29 maja 2015

Author(s): Filip Rakoczy / Language(s): Polish Issue: 2/2015