"Uvjerenje i ustav": Napomene o jednome ne samo hegelovskom problemu

Author(s): Ludwig Siep / Language(s): Croatian / Issue: 04/1988

The central problem of Hegel’s philosophy of law is how to unite the convictions of different individuals into the common will permanently directed towards achieving the common good. Hegel finds the solution in relating convictions to social roles. This pluralism of roles is reconciled with the loyalty to the constitution through a free development of group behaviour and the institutional linkage of private, group and common interests on all the levels of social organization. It was difficult for Hegel to anticipate that the private views could be mediated through common will owing to political organizations.

(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.

1st International Workshop on Law and Ideology, Wrocław, 29-30.05.2014 r.

Author(s): Wojciech Zomerski,Wojciech Kauczor / Language(s): Polish / Issue: 1/2014

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

A Few Questions Concerning Photographs in Court Decisions

Author(s): Michal Dudek / Language(s): English / Issue: 2/2018

The aim of this article is to discuss the infrequent, but noticeable, practice of inserting photographs in court decisions. Against the background of the few existing studies on this practice, which seem to be overly case-specific, this article proposes a more general, even universal list of problems connected with it. It addresses a short list of questions about the inclusion of photographs in court decisions, such as, for instance: “Why do judges include in court decisions photographs concerning the case-relevant facts?”; “Who are the addressees of these photographs?”; “What is the source of the photographs used and are all sources allowable?”; and “How come that some segments of court decisions are accompanied by relevant photographs and others are not?”. A discussion of these and other questions enables the conceptualisation of many problems connected with inserting photographs in court decisions – most notably, that of the criteria of choice, which previously has not been explicitly addressed, but barely hinted at – and leads to the conclusion that the practice in question, surrounded by many controversies, should be discontinued.

A Few Remarks on Equitable Law (from the Perspective of the System of Statutory Law)

Author(s): Wojciech Dziedziak / Language(s): English / Issue: 1/2018

The article discusses equitable law with reference to the perspective of the system of statutory law. The author founds the substantive theory of equitable law on the following values: truth, good, justice and human dignity. The paper defines the understanding of these values. Then, it indicates that they should be respected in legislative activities (in lawmaking) as well as in the application of law so that the law (norms) and decisions should be equitable. It is also emphasised that equity is “an instance” that can protect the man and his dignity – the dignity of the human person.

A Kantian Critique of Grotius

Author(s): Macarena Marey / Language(s): English / Issue: 95/2019

During the last few years, it has become usual to turn to some seventeenth century readings of the traditional idea of an original common possession of the earth for philosophical aid to explain and support the rights of persons in situations of extreme need, including refugees. Hugo Grotius’s conception of this idea is one of the most cited ones. In this paper, I hold that a Grotian reading of the idea of an original common possession of the earth is not a fruitful principle if we want to elaborate a solid defence of the rights of the ones in need. I reconstruct and analyse the role this idea has in Grotius’s theory of private property and present objections to it from a Kantian perspective.

A Note on Legal Education, Its Specific Features and Related Myths

Author(s): Malgorzata Król / Language(s): English / Issue: 2/2016

The question of legal education is recognised as important along various dimensions and thus has been in the focus of attention of numerous distinguished legal scholars and practitioners all over the world. The problem of legal education includes not just methodological issues, but also the issues that are par excellence philosophical in nature. Legal education has a specificity that arises from the nature of law and its complexity, and is related to the personal dimension of this education. The process of education should be organised in such a way that students should be in contact with members of the legal community whose authority, moral and subject matter-related attributes play a vital, formative role in legal education. The author tries to confront the didactics-related reality with ideals and postulates present within this field. Yet, it is revealed that such a reality is hidden below a “thick layer” of myths, which have grown around legal education. These myths blur the real picture of lawyers’ education, creating a kind of legal education mythology. Two types of systemic legal myths are indicated. The first one is built on the paradigm of university legal education. The other type is based on the paradigm of university studies.

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

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

Afirmatywna amnezja i konserwatywni crits. Kilka uwag o kondycji krytycznej myśli prawniczej w Europie Środkowej i Wschodniej

Author(s): Adam Sulikowski / Language(s): Polish / Issue: 1/2014

The purpose of this article is to analyze the causes and effects of two phenomena, which can be considered as characteristic of the critical legal discourse in Central and Eastern Europe. The first phenomenon is sometimes termed as „affirmative amnesia”. It consists of the abandonment of critical methodology by legal scholars who have dealt with the Marxist critique of the neoliberal law for the major period of their careers. The author tries to diagnose the cause of this phenomenon. The second of these trends lies in the fact that the critical tools that are used on the West mostly by left-wing thinkers, in Central and Eastern Europe are applied by conservative rightists.

Aitia – wina arystotelesowska. Zagadnienia definicyjne. Część I

Author(s): Waldemar Gontarski / Language(s): Polish / Issue: 2/2012

When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to the mental capabilities of the actor in respect to the particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between actor’s behavior and the resulting damage. Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and related to it subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.

Aitia – wina arystotelesowska. Zagadnienia definicyjne. Część II

Author(s): Waldemar Gontarski / Language(s): Polish / Issue: 1/2013

When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to mental capabilities of the actor in respect to a particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between the actor’s behavior and the resulting damage). Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and the related subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.

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).

Akvinietis apie teisingumą

Author(s): Eleonore Stump / Language(s): Lithuanian / Issue: 38/2004

The article focuses on the ethical consideration concerning the choice between the ethics of justice and the ethics of care, which currently dominates the horizon of ethical problematics. Another distinction, formulated by Nagel, deals with the tension between individual and impersonal standpoints in the sphere of political theories. The author attempts to demonstrate that Aquinas’ theory of justice provides unique and actual opportunities to combine the above-mentioned oppositions and create a feasible, yet practically complicated, ideal for their solution. Detailing particular aspects of Aquinas’ theory, e.g. his insistence on the necessity to help the poor and provide “brotherly correction for wrongdoers”, the author discovers that this might well be helpful, considering the acute problems of nowadays, the evaluation of collaboration with the Nazis and the evasion of overestimation of utilitaristic and liberally formalistic approaches.

Akvinietis apie teisingumą

Author(s): Eleonore Stump / Language(s): Lithuanian / Issue: 37/2004

The article focuses on the ethical consideration concerning the choice between the ethics of justice and the ethics of care, which currently dominates the horizon of ethical problematics. Another distinction, formulated by Nagel, deals with the tension between individual and impersonal standpoints in the sphere of political theories. The author attempts to demonstrate that Aquinas’ theory of justice provides unique and actual opportunities to combine the above-mentioned oppositions and create a feasible, yet practically complicated, ideal for their solution. Detailing particular aspects of Aquinas’ theory, e.g. his insistence on the necessity to help the poor and provide “brotherly correction for wrongdoers”, the author discovers that this might well be helpful, considering the acute problems of nowadays, the evaluation of collaboration with the Nazis and the evasion of overestimation of utilitaristic and liberally formalistic approaches.

AMERİKA SİYASET FELSEFESİNDE ADALET, EŞİTLİK VE ÖZGÜRLÜK SORUNU JOHN RAWLS VE RONALD DWORKİN MODELİ

Author(s): Murat Bayram / Language(s): Turkish / Issue: 13/2017

Because of plenty of social relations, variety and plenty of personal relations, and alteration of personal choices so fast; it becomes problematic to generate a generally accepted justice theory. To generate a universal justice theory in order to prevent inequality in society is an American dream. In order to make this dream real, many justice theories were put forward in American political philosophy. The most important ones among them can be showed as John Rawls and Ronald Dworkin’s justice theories in political and law philosophies. John Rawls’ book named “A Theory of Justice” which was published in 1971, marked a new era and affected many theoreticians with strong reasonings in it. According to Dworkin who assesses justice from the point of view of right, source of justice principles is ‘the right for equal concern and respect’. Dworkin, mostly assesses the theory of justice from an equalitarian perspective. Both theoreticians, try to rationalize justice in social area with hypothetical theories.

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).

Aporije i baština na trobojnici: sloboda, jednakost i bratstvo (Odlomak iz "Naturrecht und menschliche Würde")

Author(s): Ernst Bloch / Language(s): Croatian / Issue: 01-02/1966

Svoju bit svatko je dobio sa sobom, iz nje ne može van. Čovjek se nalazi u svojoj koži osjećao se on u njoj dobro ili ne. Kako bilo da bilo, to je njegova vlastita koža; unutar ta četiri zida, ako se tako dade reći, on je privatan.

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.