(META)ETYKA A FILOZOFIA PRAWA

Author(s): Monika Zalewska / Language(s): Polish / Issue: 26/2014

In this paper I have focused on methodological problems of ethics and legal philosophy. My main goal was to determine relation between meta-ethics and legal philosophy. In the first part I tried to describe historical context, how jurisprudence become independent form ethics. Then in second part I examined relations between main disciplines of ethics and legal philosophy pointing out that although there are some similarities, there is even more differences. Finally in the third part I explored relation between meta-ethics and legal philosophy. My conclusion was that the problems of meta-ethics also exists in legal philosophy but the level of significance is lower. The reason for it lays in the specific character of legal norms which existence depends on the will of competent authority in contrast to moral norms which need other, meta-ethical justification.

Abuso del diritto ed autonomia negoziale. Nuovi approcci giurisprudenziali e profili comparatistici.

Author(s): Marco Farina,Demetrio Maltese / Language(s): Italian / Issue: 3/2012

Ajhman u Hagu

Author(s): Obrad Savic / Language(s): Serbian / Publication Year: 0

Pitanje političke pravde, i s tim u vezi, lične, kolektivne, i međunarodne odgovornosti neposredno je pokrenuto nakon traumatskog iskustva sa različitim oblicima totalitarizma (»Moram da vas zamolim izraz lična odgovornost shvatite kao suprotnost političkoj odgovornosti koju svaka vlast preuzima za dela i nedela svojih prethodnika, a svaki narod za dela i nedela svoje prošlosti« – Hana Arent).

Applying Confirmation Theory to the Case against Neurolaw

Author(s): Anton Donchev / Language(s): English / Issue: 1/2018

Neurolaw is the emerging research field and practice of applying neuroscientific knowledge to legal standards and proceedings. This intersection of neuroscience and law has put up some serious claims, the most significant of which is the overall transformation of the legal system as we know it. The claim has met with strong opposition from scholars of law, such as Michael Pardo and Dennis Patterson (2011), who argue that neurolaw (and neuroscience more generally) is conceptually wrong and thus perceive most of it as “nonsense” (Patterson, 2003). I expose a flaw in Pardo and Patterson’s arguments by means of confirmation theory. My main point is that Pardo and Patterson use implicit hypothetico-deductivism in their attack on neurolaw, and that we have good reasons to doubt the employment of such a model, because it faces serious theoretical problems. I then demonstrate how the alleged problems associated with neurolaw disappear if we use a quantitative probabilistic account of confirmation. I also explain why it provides a better account for the way the legal system actually works.

Argument „semantycznego ukąszenia” a teoria prawa Jerzego Wróblewskiego

Author(s): Adam Dyrda / Language(s): Polish / Issue: 1/2010

Ronald Dworkin once criticized legal positivists for that their theories are founded on a mistake called “the semantic sting”, which claims that legal philosophy, as a silent prologue to every decision of law, cannot be only a semantic account to the word ‘law’. The article presents Dworkinean argument (and its most influential critique of Herbert Hart) and examines whether Jerzy Wróblewski’s legal theory (in its descriptive layer similar to the theory of Herbert Hart) is susceptible to “the semantic sting”. Finally, the answer given is based on a particular solution: Jerzy Wróblewski’s concept of rationality of legal decision appliance. The answer is in accoradance with argumentation of soft positivists, such as Herbert Hart or Jules Coleman, and is based on the acceptance that, even if Dworkin’s argument is meaningfull, it still does not apply to the theories presented by the soft positivists. The controversy whether a particular theory is “semantically stung” is de facto a dispute over a proper methodological approach to legal theory and a relation in which such a theory remains to interpretative jurisprudence of Ronald Dworkin. In this case we can treat Jerzy Wróblewski’s theory as a metatheory, which deals with theoretic disagreement over the grounds of the law, while deciding the case.

Aristotelovanje

Author(s): Aras Boric,Željko Škuljevic,Spahija Kozlic,Dževad Drino,Nebojša Vasic,Bernard Harbaš,Miodrag Živanovic,Damir Maric / Language(s): Bosnian / Publication Year: 2017

U organizaciji Katedre za filozofiju i sociologiju Filozofskog fakulteta Univerziteta u Zenici i Centra za društvena i interreligijska istraživanja Univerziteta u Zenici, u Zenici je 22. decembra 2016. godine održan okrugli sto pod nazivom Aristotelovanje u povodu 2400 godina od rođenja starogrčkog filozofa Aristotela. Direktan povod za ovaj skup je proglašenje 2016. godinom Aristotela od strane UNESCO-a. O Stagiraninu su tako govorili poznavaoci njegove filozofije iz Bosne i Hercegovine i to: prof. dr. sc. Željko Škuljević (Filozofski fakultet Univerziteta u Zenici), prof. dr. sc. Miodrag Živanović (Filozofski fakultet Univerziteta u Banjoj Luci), prof. dr. sc. Damir Marić (Filozofski fakultet Univerziteta u Sarajevu), prof. dr. sc. SpahijaKozlić (Pravni fakultet Univerziteta u Zenici), doc. dr. sc. Bernard Harbaš (Ekonomski fakultet Univerziteta u Zenici), prof. dr. sc. Nebojša Vasić (Filozofski fakultet Univerziteta u Zenici) i zenički književnik Aras Borić. Kako svjedoči Diogen Laertije, Aristotel (stgr. Ἀριστοτέλης, Aristotelēs; Stagira u Trakiji, 384. p. n. e. – Halkida, 322. p. n. e.) je rođen od oca Nikomaha i majke Faestide. Još dok je Platon bio živ, Aristotel je napustio učiteljevu Akademiju. Kasnije, kada se vratio, vidio je da je ona u rukama drugog učitelja pa je osnovao vlastitu školu u Likeju (Liceju), na jednom šetalištu gdje je običavao šetati s učenicima i tako im nekada držati predavanja i rasprave, odakle je ona dobila naziv Peripatetička škola (stgr. περιπατητικός, peripatetikos), dok je njegova filozofija prozvana peripatetičkom. Neki ipak smatraju da je naziv potekao od šetnji s Aleksandrom Makedonskim s kojim je razgovarao o filozofiji i drugim temama. Boravio je u Makedoniji na poziv Filipa Makedonskog kako bi poučavao njegovog petnaestogodišnjeg sina Aleksandra, a potom je stigao u Atinu i upravljao svojom školom nekih trinaest godina. U Aleksandru Makedonskom Aristotel je imao dostojnijeg učenika i vaspitanika nego što je Platonov Dionizije. Nakon toga se povukao u Halkidu i tamo umro od bolesti u dobi od šezdeset i tri godine. Prema pisanju Diogena Laertija za svog života je napisao ukupno 445.270 redova teksta.

AUTONOMIA FILOZOFII PRAWA WZGLĘDEM METAFIZYKI W UJĘCIU W. SOŁOWJOWA — ZARYS PROBLEMATYKI

Author(s): Marek Jakubiec / Language(s): Polish / Issue: 28/2015

In the present paper two issues are enunciated. The first part consists brief analysis of Soloviov’ s metaphysics. In the second one, main aspects of Russian philosopher’s legal theory and the relation between his metaphysical and legal conceptions are presented. The aim is to indicate originality of Soloviov’ s thought, especially in the context of the paradigm which ruled in Russia in 19th century.

Bajki dla dialektyków. Kafka i Benjamin między mitem a wyzwoleniem

Author(s): Jakub Nikodem / Language(s): Polish / Issue: 37/2016

In this paper my goal is to examine and re-read these places in works of Kafka, in which Walter Benjamin finds hope and utopian promise of emancipation. I try to determine whether those places can possibly be able to provide individual or universal emancipation; whether they are just false promises or simply ineffective personal tactics – or, on the contrary, they can be comprehended as conditions of possibility for revolutionary politics of the oppressed. In order to do this I supplement Benjamin’s discourse with concepts and ideas of Adorno, Horkheimer and Brecht. My conclusion is that Benjamin’s reading of Kafka is too optimistic in finding hope and fight against oppression in such works as The Trial, The Castle, The America, and in short stories like The Silence of the Sirens or The Great Wall of China. Benjamin finds the source of hope and victory over the mythical fate in solely humane attributes of cunning and audacity, represented – according to him – in protagonists of fairy-tales (Benjamin describes Kafka’s stories as ‘fairy tales for dialecticians’). But he undervalues power of fate, which lies in its own cunning, not only in its physical strength. If we comprehend mythical fate in much more dialectical way – as our capitalist, alienating modernity – we can find that its powers lie in its own conatus, self-preservation aimed to conserve the reality of oppression. In this sense Kafka’s work – if we read it as a diagnose of modernity and some kind of prophecy of a near future – evinces a dual cunning, which mechanism is as follows: the more a protagonist tries to outsmart the system, the more the system outsmarts him and thereby enslaves him.

Bestijalnost, ljudskost i tehničnost

Author(s): Nathan Van Camp / Language(s): Croatian / Issue: 01-04/2018

U proteklih trideset godina, talijanski filozof Giorgio Agamben razrađivao je jednu posthumanističku političku teoriju koja, na tragu poststrukturalističkihteorija, osporava koncepciju suvereniteta. Provizorni vrhunac njegova projekta predstavlja objavljivanje knjige Homo sacer: Suverena moć i goli život, ukojoj je preradio teoriju o onom što je Michel Foucault prvi teorijski opisao kao»biomoć«, upravljanje i kontrola nad stanovništvom pomoću tehnika s kojima se podređuje ljudsko tijelo.

Carl Schmitt – apokaliptičar proturevolucije

Author(s): Jacob Taubes / Language(s): Croatian / Issue: 1-2/2015

Carlu Schmittu, jednom starom, ali u najvišoj mjeri još uvijek nemirnome duhu, htio bih is- kazati svoje poštovanje, iako kao svjestan Židov spadam u one što ih je on označio kao »neprijatelje«. Ja taj aksiom Carla Schmitta nikad nisam previđao. Ali ono što kod Carla Schmitta znači »neprijatelj«, tome nas, naravno, ne poučavaju njegovi veliki i glasni tekstovi, nego prije njegove slomljene ispovijesti, objavljene 1950. pod naslovom Ex Captivitate Salus. Carl Schmitt bio je pravnik, a ne teolog, ali bio je pravnik koji je kročio vrelim tlom s kojeg teolozi bijahu sišli. Teolozi su skloni definirati neprijatelja kao nešto što mora biti uništeno. Kao pravnik Carl Schmitt je smatrao da može izbjeći smrtonosnu konsekvencu tog teološkoga određenja neprijatelja. Ali između 1933. i 1938. Carl Schmitt je postao glasnogovornikom one manihejske ideologije nacionalsocijalizma koja je mitologizirala Židova kao uništavatelja arijske rase.

Carl Schmitt k smyslu politické teologie. K vztahu politické teologie a politické filosofie v myšlení kontroverzního Carla Schmitta z perspektivy Poznámek Leo Strausse

Author(s): Petr Slovácek / Language(s): Slovak / Issue: 1/2016

The aim of the article is to show two possible aspects of the Carl Schmitt´s political theology – the first in relation to man and his situation in the modern times and the second oriented toward the history. It seems, that Schmitt´s political theology has at least two aforementioned aspects, which deserves our attention. Political theology as a project is centred on man as an irreducible and incalculable being. Political theology as a process traces the evolution of political concepts from its theological origin. The article is also based on the interpretation which can be found in Leo Strauss´ Notes on Carl Schmitt´s text The Concept of the Political and its H. Meier reception.

CARLAS SCHMITTAS IR POLITINIS ROMANTIZMAS: NAUJAS LIETUVOS POLITINĖS FILOSOFIJOS TYRINĖJIMŲ PUSLAPIS

Author(s): Simas Celutka / Language(s): Lithuanian / Issue: 89/2016

Chronicles C. Schmitt and Political Romanticism: a New Page in Lithuanian Enquiries of Political Philosophy

Confrontation Between Judicial Activism and State of Exception

Author(s): Alexandre Pedro Moura D’Almeida / Language(s): English / Issue: 15/2017

The judiciary has excelled in the international and national scene, reaching role of great importance, thus creating opposition to the legislative and executive powers. The center of gravity of the sovereign power of the state moves toward the judiciary, that happens to have a more active role and controlling of the others powers, but also appears as a great defender of social and fundamental rights causes, seeking to make an effective constitution. Its great public notoriety has attracted great distrust of various sectors of society, especially by the two powers that have an increasing interference. Arises, therefore, a speech that the judiciary would be reversing into a big and uncontrollable power, increasing the suspicion that now it would be living in a real dictatorship of the judiciary through judicial activism. There is a growing concern with the expansion of activism and the role of the judiciary. The purpose of this work is to conceptualize and approach the judicial activism and the state of exception to search and reveal if there is any similarity, to then draw up a possible answer to the concern of forming a dictatorship of the judiciary. The state of exception is one of the rule of law paradoxes, while activism is a political manifestation of the judiciary. The similarity between the institutes appears as appalling in a dynamic expansion of political power of a state institution exercising judicial function, putting in check who would be the sovereign in a rule of law and democratic state.

Cooperation with Multiple Audiences

Author(s): Marilynn Johnson / Language(s): English / Issue: 47/2016

Steven Pinker proposes a game-theoretic framework to help explain the use of veiled speech in contexts where the ultimate aims of the speaker and hearer may diverge—such as cases of bribing a police officer to get out of a ticket and paying a maître d’ to get a table. This is presented as a response to what Pinker sees as the failure in H. P. Grice’s infl uential theory of meaning to recognize that speakers and hearers are not always cooperating. In this paper I argue that Pinker mischaracterizes Grice’s views on cooperation, and use this to refine a positive picture of what sort of cooperation is demanded by Grice’s Cooperative Principle. This positive picture serves to insulate the Gricean framework from objectors— including Pinker—who overstate the obligations entailed by the adoption of the Cooperative Principle. I then argue that the cases Pinker presents are best treated by recognizing that in each instance the utterance is formulated with two intentions towards two different audiences and detail a resulting revision to Pinker’s game-theoretic framework that reflects this proposal. I conclude by demonstrating how this proposed game-theoretic framework of cooperation with multiple audiences can be used to model the costs and benefits of other types of discourse, including political speech.

CRIMINALIZATION OF CORRUPTION: PHILOSOPHICAL AND LEGAL FACETS

Author(s): Aleksandras Dobryninas / Language(s): English / Issue: 90/2016

The article discusses philosophical, historical and social issues of corruption. The authors analyse the peculiarities of perception of corruption in different paradigms of criminal justice: classical, positivistic, and constructionist, as well as its respective interpretation in terms of vice and sin, wrongful conduct, or conflict between public and private interests. The analysis presented allows to conclude that criminalization of corruption has its own legal logic and reflects existing social cultural context, and due to this reason cannot be considered to be a universal instrument of dealing with conflicts between public duties and private interests.

Critical Remarks on Alf Ross’s Probabilistic Concept of Validity

Author(s): Katarzyna Eliasz,Wojciech Zaluski / Language(s): English / Issue: 61-62/2015

The concept of legal validity is regarded within the dominant legal-positivistic account of law as a non-gradable concept: a legal rule is either valid or non-valid. However, this account of validity is criticised by some scholars for being too strict and rigid. An attractive alternative would appear to be offered by Alf Ross’s account of validity as a probabilistic concept. Ross assumed that the stronger the predictions of judicial behaviour that a given rule generates, the higher the probability that can be assigned to its validity. However, this account of legal validity is by no means uncontroversial. In this paper, four objections against it are formulated: apparent gradability, problematic ascertainability, the normative insignificance of probabilistic information and the neglecting of the normativity of legal rules. These objections are treated in this paper as strong grounds for rejecting Ross’s claim that predictions of judicial behaviour formulated on the basis of rules are conceptually linked to their validity (i.e. they define their meaning); it is argued in the paper that they are merely a way of testing empirical hypotheses concerning the application (effectiveness) of legal rules.

Cztery pytania o rządy prawa: Dlaczego? Co? Gdzie? I kogo to obchodzi? Część I

Author(s): Martin Krygier / Language(s): Polish / Issue: 2/2011

Central among the many obscurities that attend the rule of law are those named in the title of the article. The first part contains some preliminary remarks and attempt to answer the first question. This attempt is based on distinguishing two ways of understanding what rule of law is. By the first way rule of law is a theological concept, i.e. to know what it is we have to know its aims and by the second, anatomical one, the most important thing to understand it are rules and institutions that are usually conceived as its part. The author holds a position that only the first way is appropriate and gives his own interpretation of aims of rule of law. This aim is legal reduction of the possibility of arbitrary exercise of power that is connected with four important reductions – of domination, of fear, of indignity, and of confusion.

Czy grozi nam kryzys prawa? Rozważania na tle problemu tzw. roszczenia do słuszności

Author(s): Pawel Skuczynski / Language(s): Polish / Issue: 2/2011

What is usually acknowledged as a topicality indication of Gustav Radbruch’s legal philosophy is the theoretical interest in and practical application of his ideas – known as the Radbruch’s formula – on abominable law, statutory non-law and the refusal to apply it by public authorities, the judiciary in particular. The article main argument is that we can point to other than Radbruch’s formula elements in his philosophy of law which are still applicable and present in the recent discussion on the concept of law itself, its validity and application. What this means is basic to Radbruch’s thought the distinction between the concept of law (Rechtsbegriff), the idea of law (Rechtsidee) and the relationship between the two. The solution accepted by Radbruch in this matter is very broadly applied by the representatives of the nonpositivist concept of law. However, the solution may be ascribed a more general meaning, which manifests itself in the ‘claim to correctness problem’ (Anspruch auf Richtigkeit). Such a claim has to be an element not only of law itself but also of all legal statements including acts of applying the law. The point I endeavour to defend is that out of the three interpretations of the claim to correctness problem, the one which refers not only to the correctness of legal order and law application acts, but also to lawyers’ professional obligations and responsibility is the best justified. This is because such a view most fully addresses the challenges of modern law, which has become increasingly professional in character, but on the other hand more prone to factors typical to fully professionalised walks of life – to critical factors especially. The question of how much the interpretation is compatible with Radbruch’s perspective, is beyond the scope of this analysis. However, some arguments suggesting higher degree of concordance will be presented.

Czy każda kultura zasługuje na obronę? Kilka wątpliwości dotyczących cultural defence i prawa karnego w dobie multikulturalizmu

Author(s): Michal Dudek / Language(s): Polish / Issue: 2/2011

The aim of the article is to indicate some of the axiological problems faced by the legislator in the law-making process. They are clearly visible in those legal regulations that are introduced in response to crisis situations. The presented example – terrorist attack by hijacking a plane – is not only used to demonstrate dilemmas which in this situation must be settled by the legislator preparing relevant legal provisions, but it is also a pretext for enriching the discussion on the axiological aspect of the law. The article focuses on the so-called natural helplessness of law in axiological matters, law inflation and the problem of responsibility. The author concludes that issues indicated in the article cannot be solved in the light of current Constitutional Court’s judgements, which are treated as a reference point of the discussed issues. The aim of the article is to indicate some of the axiological problems faced by the legislator in the law-making process. They are clearly visible in those legal regulations that are introduced in response to crisis situations. The presented example – terrorist attack by hijacking a plane – is not only used to demonstrate dilemmas which in this situation must be settled by the legislator preparing relevant legal provisions, but it is also a pretext for enriching the discussion on the axiological aspect of the law. The article focuses on the so-called natural helplessness of law in axiological matters, law inflation and the problem of responsibility. The author concludes that issues indicated in the article cannot be solved in the light of current Constitutional Court’s judgements, which are treated as a reference point of the discussed issues.

Czy prawo Polski Ludowej było prawem słusznym?

Author(s): Wojciech Dziedziak / Language(s): Polish / Issue: 1/2014

The article discusses the issue of equitability of the law of the People's Republic of Poland. The author bases the theory of equitable law ou the following values: truth, good, justice and human dignity. Equity, thus understood, pertains to the processes of both making and applying law. The article defines the above-mentioned values. It adopts the basic classical understanding of truth as the adequation of intellect to things (veritas est adaequatio intellectus et rei). Creating norms involves the truth about the reality, induding the truth of the existential dimension of the human being that is to be (should be) the starting point for making equitable law. Good is understood as the good in the moral sense as the good of man and the common good. Justice is understood in the classical sense, i.e. it is about 'rendering every man his due' (ius suum cuique tribuendi). The dignity of man as one of the values coustimring equity is understood as inherent (innate) inalienable and indestructible, i.e. the individual dignity. It is the basis of human rights. It is the basis and source of all human rights and their protection. The study undertaken indicates that the law of the Polish People's Republic flagrantly violated each of the values that make up equity. Thus, it was not equitable law. In particular, the law was based on the reductionist concept of man (anthropological error), was of class character (the dictatorship of the proletariat or actually the Marxist-Leninist party), and violated the common good and the good of man. Individual dignity (innate and inviolable) was negated (was not a legal category), the source of freedom and rights was the will of the authority (man did not have own rights - he only bad as many rights as granted by the authority). It majorly violated justice, one manifestation of which was the political class character of the judiciary. Moreover, law was treated instrumentally. There was a discrepancy between the content of law and the practical application of norms (the divergence of the nonnative and the actual reality).