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.

Princeps educatus in the Thought of John of Salisbury

Author(s): Lech Dubel / Language(s): English Issue: 1/2018

The Middle Ages was the era of the duality of power. The concept and understanding of power was dynamic at that time. The issue looked different in the early Middle Ages and different in the medieval period of “the enlightenment”. In this situation, the rational or rationalizing arguments were supported by both proponents of the papalistic vision of the state, as well as the supporters of the concept of autonomous secular authority. It must be borne in mind that at the time of John of Salisbury (c. 1115–1180), the State was confessional, the difference between the sacred and the profane was only just intuitively perceived and was part of a long and complex process, which in a sense, ended upon the arrival of Niccolo Machiavelli’s definition of the State. John of Salisbury formulates the following opinions on the essence of power: Firstly, it is a vision of a sinless monarch. According to him, it is basically the only condition of the recognition of the ruler as a real prince (princeps). The opposite of this legitimate authority is a tyrant. The requiremen there is appropriate education. It has to be princeps educatus (litteratus). Secondly, it is the organic vision of the state in which the political body is governed by the head, which is the habitat of reason, which is only subject to the conscience or the clergy. The construction of the State reflects the wisdom of God, who created man “in his own image and likeness”. Therefore, the State is the reflection (expression) of humanity and its reasonable part. Thirdly, the particular parts of the State (its members) imitate the man and interact with one another. The two values which were earlier raised by St. Augustine: ordinis and pax can be ensured by reasonable and thus fair authority of a prince, which was already named as public authority by John of Salisbury. Fourthly, the authority of prince is exercised in protecting the law of God both by him and by his subjects, and its objective is the realisation of the common good. The implementation of the above objectives in practice is to be the result of certain rational guarantees which are formulated by John of Salisbury towards the authority of prince.

Restitution of Cultural Property. Hard Case. Theory of Argumentation. Philosophy of Law. Kamil Zeidler

Author(s): Paulina Gwoździewicz-Matan / Language(s): English Issue: 2/2017

Review of: Kamil Zeidler, "Restitution of Cultural Property. Hard Case. Theory of Argumentation. Philosophy of Law" Gdańsk University Press, Wolters Kluwer, Gdańsk – Warsaw 2016, pp. 230 by: Paulina Gwoździewicz-Matan

The Phenomenological Critique of Law according to Simone Goyard-Fabre

Author(s): Maria Gołębiewska / Language(s): English Issue: 61supl./2016

Simone Goyard-Fabre is the author of many books on the philosophy of law. The publication that deserves special attention is her book concerning the phenomenological assumptions of law and normativity in general – Essai de critique phénoménologique du droit. She provides arguments for anthropological conditions of every normativity, including the order of legal norms. The point of reference for her theses about the phenomenology of law is Husserl’s concept of the transcendental subjectivity, in which she finds the validation of the rational and necessary character of normativity that is both found and established by people. In her concept, law is presented as a structured regular product of consciousness (of the transcendental subjectivity) that constitutes the meaning of “legal experience” in accordance with some internal aprioristic necessity. Goyard-Fabre combines references to Husserl’s phenomenology and to Kant’s legalism – i.e., the concepts that largely elevate rational and anthropological qualities of human achievements – with a critique of legal voluntarism. She disputes with legal positivism and legal constructivism, according to which legal reality is entirely ideal, because it is constructum, fiction. Goyard-Fabre emphasises the double “mixed” nature of every law, where the normative rational rule and the existing fact meet. She refers to Husserlian concept of Lebenswelt, describing this intersubjective “lifeworld of experience” as a permanent horizon of legal consciousness. Legal intentionality is one of many kinds of intentionality – the “reflexive consciousness of life”. Law is the “modality of human life” and belongs to it essentially, disclosing its essential source thanks to the revelation of the “transcendental constitution of what is legal”, i.e., the anthropological and spiritual source of any normativity that is available to us and recognised by us.

Les droits de l`homme et du citoyen dans la philosophie des Lumières

Author(s): Marian Skrzypek / Language(s): French Issue: 58supl./2013

The differentiation between human and civil rights in the Enlightenment philosophy is connected with two tendencies to interpret social phenomena, which appeared in the thought of ancient Sophists and Stoics and were fully developed by the 18th century philosophers (Locke, Hobbes, Rousseau, Mably) along with the ideologists of French and American revolutions (Jefferson, Paine, Marat, Robespierre). Naturalism and conventionalism are those two tendencies. Naturalism put emphasis on individual rights of the human being conceived as a biological entity to preserve life. Conventionalism pointed to human rights of citizens stemming from the social contract. Coming close of those two tendencies appeared in the human and civic declarations in the period of the French Revolution in 1789, 1791, 1793, 1795. The natural human rights were best taken into account in the declaration from 1793.

Iwan Aleksandrowicz Iljin – religia, prawo, osoba

Author(s): Sławomir Mazurek / Language(s): Polish Issue: 58supl./2013

The intellectual heritage of Ivan Aleksandrovitch Ilyin (1883–1954), one of the most interesting Russian religious thinkers of the XXth century, after his death remained almost forgotten during several decades. It was rediscovered and gained some popularity only in nineties, when his prognoses concerning the collapse of Soviet Union and reflections on the possible form of government in post-Soviet Russia proved to be true and surprisingly topical. Ilyin was very controversial and provocative figure – a monarchist and counterrevolutionary, openly declaring support for the fascism, but also a defender of the law and the legal state who treated totalitarianism as the greatest political and spiritual danger in human history. The author of the paper tries to sum up Ilyin’s political philosophy, philosophy of history and religious ethics, explaining, where possible, their contradictions. He is especially interested in the relations between Ilyin’s moral thought and so called moral revolutionism, represented among others by Berdyaev, Fyodorov, Wysheslavtsev and Shestov. Eventually he comes to the conclusion that however Ilyin’s ethics has many affinities with moral revolutionism, he cannot be treated as a representative of this current in the Russian moral thought.

COGNITIVE THEORY OF METAPHOR AND JERZY WRÓBLEWSKI’S CONCEPT OF LEGAL INTERPRETATION

Author(s): Monika Zalewska / Language(s): English Issue: 39/2017

Jerzy Wróblewski is one of the most prominent and influential legal theorists in Poland. His theory of legal interpretation containing a division into linguistic, systemic and functional dimension is highly regarded by Polish legal community. However, when formulating the theory Wróblewski was aware that his theory lacks some elements. In his work he points out that despite three dimensions the result of the interpretation is still unpredictable. For instance, interpreter’s personality might be additional factor influencing legal interpretation process. In this context, Wróblewski compares the lawmaker to a composer and a subject making legal interpretation to a musician performing a piece of music. Wróblewski emphasizes the importance of such factors. However, an interpreter should disregard additional factors in the process of legal interpretation. At the time, when Wróblewski formulated his theory, the cognitive science was not developed yet. Nowadays, Lakoff Johnson’s idea of conceptual metaphors is widely known and might be one of the missing elements Wróblewski had in mind. This paper will examine such possibility and its consequences. Firstly Wróblewski’s theory of legal interpretation will be presented. Next, I will move to a brief description of Lakoff-Johnson theory. Then, it will be discussed if such approach is possible in terms of Wróblewski’s theory. Finally, the necessary modification of legal interpretation theory will be analyzed. In this part, the key question is whether the metaphorical aspect is a new dimension of legal interpretation.

Język pisany, reguła prawna i abstrakcyjna moneta – archaiczne początki myślenia naukowo-filozoficznego

Author(s): Jerzy Oniszczuk / Language(s): Polish Issue: 2/2018

Important for the scientific and philosophical mode of thought is the issue of circumstances that lead to the emergence of such type of reflection, different from traditional ways of explaining the reality by mythological beliefs. The spiritual search of a philosophising man turned out to be a reflection upon rule, upon the all-governing principle, i.e. both the natural world (cosmos) and the relations between people. This mode of thought evolved when a need and possibility for writing down (setting out) abstract legal norms (nomos) for the sake of certainty and verifiability of judgments arose. It was vital also for the trade and in particular for ownership (civil law), whose value was abstractly expressed in monetary money. These were the crucial factors in the initiation and development of scientific and philosophical (abstract) thought. Other fundamental conditions for the development of science and philosophy included liberty, equality and respect for otherness, as well as the non-orthodox character of beliefs (myths). These were ensured by the civic, cosmopolitan and economically developed polis, particularly the democratic one. Such conditions for the development of science and philosophy have proved to be universal and timeless.

W poszukiwaniu presupozycji ontologicznych krytycznej nauki o prawie

Author(s): Rafał Mańko,Jakub Łakomy / Language(s): Polish Issue: 2/2018

The aim of the present article is to reflect upon the ontological presupposition of critical legal studies (critical jurisprudence), understood as a set of assumptions in the domain of social ontology which determine the identity of this form of general reflection upon law. The article proposes to identify four such assumptions: the assumption concerning the political character of the social world, the assumption on the social construction of the social world, the assumption of paninterpretationism, the assumption of the existence of epistemic communities.

Etyka prawnicza Davida J. Lubana: moralna ocena czynów, podmiotowość, odpowiedzialność

Author(s): Przemysław Kaczmarek / Language(s): Polish Issue: 1/2018

The purpose of this paper is to present the theory of legal ethics by David J. Luban. The reading of this American philosopher’s project I would like to propose focuses around the three pillars mentioned in the title: the moral evaluation of acts, subjectivity, and moral responsibility. Luban’s theory postulates maintaining the autonomy of an individual performing a lawyer’s role in relation to the institutional structure. Therefore, a lawyer’s activity should be characterised by anxiety and questions ‘what should I do?’ The main axis of Luban’s project is criticism of the standard view supporting the principle that institutional morality is independent of social or individual morality. The principle of neutrality assumes that the morality of a professional role should be limited to the institutional dimension. Such an approach is supposed to prevent (especially in case of an attorney) any individual assessments of the client’s behaviour, or – in a broader sense – performing the professional role at one’s own discretion.

Human Rights and the Right to Life

Author(s): Aleksandar Todoroski / Language(s): English Issue: 5/2014

This essay is going to cover the topic of the human rights in general, the theories surrounding them, the categories of human rights and their position against public interests. A special emphasis will be put on the right to live as ‘… the supreme value in the international hierarchy of human rights…’ especially in the context of the European Convention on Human Rights (Article 2). The sole purpose of the paper is to challenge the readers to think about the essence, philosophy and morality of the human rights and the right to life, in particular. I hope to achieve that by providing a thorough analysis about different aspects of human rights and diverse views on them as well as by pointing out the importance of the right to life. This will have as a result not just a better understanding of the doctrine of human rights (which by itself is nothing more than just a theory) but hopefully it will also give rise in the mind of the reader, to a whole new, better and improved, more ethical view on the world and the people living in it. But, of course, it is up to the reader to decide if this essay is going to influence his opinion and challenge him to think more broadly and from a different, more moral perspective.

Wearing Totalitarian Symbols: Freedom or Restriction of Expression / Case Study Based on Attila Vajnai’s Case

Author(s): Csuka Márta / Language(s): English Issue: 2/2011

Freedom of expression is essential for citizens in order to exercise their right to vote and take part in decision-making processes. The right to have freedom of expression is so widely-accepted that it appears also in the Universal Declaration of Human Rights (1948). UDHR, Article 19 says: ―Everyone has the right to the freedom of opinion, and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Nevertheless we should be aware of the fact that freedom of expression and free media can be used also propagating hate speeches and permitting of extremist ideas. Our mission is to find a balance between freedom of expression and protecting other human rights. Freedom of expression can be restricted only in certain circumstances: to protect the rights and reputations of others or to protect national security, public order, public health or morals. The toughest challenge is to find that fine line between what should be allowed what should be restricted. The debate about whether hate speech should be restricted or not is still not closed. This essay tries to present the issue via a Hungarian case from European Court of Human Rights (ECHR).

Marxova kritika Hegelove filozofije prava

Author(s): Spahija Kozlić / Language(s): Bosnian Issue: 2/2018

In order to find the essence of Hegel’s interpretation of right, i.e. Critique of his philosophy of rights in Marx’s work Critique of Hegel’s Philosophy of Right, it would have to be the sentence form the Critique: “In modern states, just as in Hegel›s philosophy of right, the real essence of general things is only formal, or only what is formal is essentially general thing. Hegel does not deserve contempt for describing the true essence of modern state, but for showing that, what it is, is actually the essence of the state (italic S. K.). What is real in mind is in contradiction to reality out of the mind. Reality which in every step represents opposition to what it expresses and what it is.” Marx’s attitudes towards Hegel’s perspective of right and state are important for several reasons. First, this is the first serious and detailed analysis of Hegel’s document Basic outline of philosophy of right after its publication in philosophical public. Second, with this criticism Marx takes the stand towards his entire philosophy and philosophy in general, and German classical idealism in particular. Third, Marx’s approach to the right is completely opposite to almost all philosophical and legal analyses until then, if we have in mind that he considered right and state as instruments for legalization of alienation and not the form for making freedom serious. Due to the stated reasons Karl Marx is an exceptionally important thinker for the philosophy of right and one of the most current theoreticians of today. This currentness is visible in ever stronger summons to Marx’s philosophy in order to provide relevant reply to the issue of the cause of global inequality and injustice in the world. Therefore, Marx’s “methodology” is used to repeatedly analyses foundations and main mechanisms of neoliberal movements in the world with particular emphasis on disproportion between technical and technological progress and the misery and deprivation of majority of human population.

Folk Psychology and Law: the Case of Eliminativism

Author(s): Marek Jakubiec,Bartosz Janik / Language(s): English Issue: 16/2017

The aim of this paper is very modest. First, we want to assess how different strategies of naturalization might deal with the need of using folk psychology in legal domain. Second, we want to check whether folk psychology is indeed indispensable in the legal domain. Third, we want to describe possible problems with one strategy of naturalization, i.e. radical naturalization with classical elimination. Our conclusion will be that despite various attempts, every project of naturalization of law will have to resolve the tension between law and folk psychology and such resolution would not be achieved by simple reduction or elimination of folk psychology. A variety of non-standard solutions might be in place to resolve this tension. We will only outline those strategies here.

W obronie zdroworozsądkowej moralności. David Hume o bycie i powinności

Author(s): Szymon Osmola / Language(s): Polish Issue: 16/2017

In the article the author rejects traditional, logical interpretation of the famous “Is-Ought Paragraph” from David Hume’s A Treatise of Human Nature. He argues that most of the interpreters failed to grasp the wide philosophical background of the IsOP, which is, generally speaking, a passionate discussion between ethical rationalists and ethical anti-rationalists in the 17th and 18th century British philosophy. The author shows that the Hume’s main aim in the IsOP is to strengthen his previous arguments against ethical rationalism and to reinforce (and not subvert at all) the common-sense (vulgar) systems of morality, likewise he did in the first book of the Treatise… in case of the theory of knowledge. The author argues that there is no putative thesis of logic in the IsOP, which some scholars call “Hume’s Law”.

Õigussemiootika uurimisala ja -eesmärgid

Author(s): Liina Reisberg / Language(s): Estonian Issue: 15/2018

This overview article about the research field and the main research questions of legal semiotics summarizes the emergence of the legal semiotics in the footsteps of Ch. S. Peirce, F. de Saussure and German hermeneutics. The article is in dialogue with Vadim Verenich’s “Semotics of Law” published in the textbook “Semiotics” (ed. Salupere, Kull 2018). The article points out that semiotics of law is geographically and thematically fragmented and therefore has several research objectives. These do not coincide with the research objectives of legal theory. Therefore, legal science cannot be used instead of legal theory, but together with it. American legal semioticians, who use the concept of sign by Peirce, are interested in process of understanding a law; process of argumentation and the change of law. For their study, Peirce’s categories of metaphysics, definitions of sign and a model of infinite semiosis are used. Authors using Saussurean perspective analyze the relationship between a single rule and the whole legal system. German legal semiotics continues the tradition of German legal theory and asks for appropriate methods for the interpretation of law.

Kilka uwag o formalizacji wnioskowań w trybie analogia legis i a contrario

Author(s): Andrzej Malinowski / Language(s): Polish Issue: 2/2017

The paper shows some of the problems related to the formalization of legal reasonings under analogia legis and a contrario, and discusses some of the specific proposals in this regard. Built formal models are based on the concept of monotonic logic and nonmonotonic logic. These models are mainly illustrative and have limited explanatory power. Their reliability can only be achieved under certain additional conditions.

Granice argumentacji religijnej w sferze publicznej. Między partycypacją a przymusem

Author(s): Łukasz Mirocha / Language(s): Polish Issue: 2/2017

The article is devoted to the question of the presence of religious argumentation in the public sphere. The crucial problem is whether the religious argument should be completely accepted in the public discussion as sufficient basis for e.g. law-making or not, and – if so – what are necessary conditions of the presence of such factor. The author writes about course and results of the debate on pointed issue which has started in The United States in the late 80s of XX century. He also wonders why issues which are rather obvious for the great majority of other liberal and democratic countries involves such emotional discussions in American humanities. One of the author’s observations is that historical examples neither with the positive or negative influence of religion on social life are too weak ground for building any position to the considered problem. In the last part of the article, the philosophical conclusions are compared with the case law of the European Court of Human Rights in regards to the freedom of religion.

Wpływ klauzuli sumienia i obrony przez kulturę na ocenę elementów struktury przestępstwa

Author(s): Dominika Bek,Jakub Hanc,Olga Sitarz / Language(s): Polish Issue: 2/2017

The submitted study is devoted to the clause of conscience and cultural defense. The initial arguments are focused on explaining the indicated terms, by referring to current doctrinal positions. The basic course of considerations – devoted to primary and secondary legality, legislative and non-legislative lawful excuses, circumstances reducing or excluding guilt – is an attempt to answer the question of where in the structure of crime is a place for conscience clause and cultural defense.

Etyka prawnicza. Działanie prawników w świecie instytucji: wprowadzenie

Author(s): Paweł Skuczyński,Przemysław Kaczmarek / Language(s): Polish Issue: 1/2018