Interpretations of Quine’s “Naturalized Epistemology” and the Character of “Naturalization of Law”

Author(s): Marek Jakubiec / Language(s): English Issue: 14/2015

Quine’s project of “naturalized epistemology” is usually interpreted as a re- jection of classical epistemology, which becomes merely a “chapter of psycho- logy”. It does not imply, however, a different understanding of the character of naturalization is inadequate or wrong. Susan Haack’s interpretations are brie y analyzed in the paper. Thereafter, they are harnessed as models of in- terpretation of the “naturalization of law”. The main aim is to point the radical reading of Quine’s project (the replacement model) is not the only acceptable one. Consequently, there are at least three models of the “naturalization of law” that are analogical to the “naturalization of epistemology”. The author details their character.

Koherencyjny model rozumowań prawniczych

Author(s): Michał Araszkiewicz / Language(s): Polish Issue: 1/2010

The aim of the article is to present a model of legal reasoning based of the concept of coherence, as this concept is understood in recent developments of cognitive science. More precisely, the model, hereafter referred to as CMLR (Coherence Model of Legal Reasoning) is based on the constraint satisfaction theory of coherence, elaborated and defended by Paul Thagard. The claim of the author is that CMLR appears very satisfactory when assessed against criteria typically employed for evaluation of legal-theoretical models of argumentation. It is able to represent legal reasoning either as a neural network or, more traditionally, as a formal dialogue game. In consequence, CMLR offers a plausible “third road” between traditional deductive and non-deductive models of legal thinking.

Użyteczność a maksymalizacja bogactwa: Filozoficzne zakorzenienie poglądów Chicagowskiej szkoły law & economics

Author(s): Beata Polanowska-Sygulska / Language(s): Polish Issue: 1/2011

The article discusses the philosophical rootedness of the economic analysis of law. Utilitarianism is identified as the main source of inspiration for the law and economics movement. A brief account of the most important issues that utilitarianism raises is given. A detailed analysis of the complex relationship between utilitarianism and wealth-maximisation is carried out. The affinities and the differences between the two standpoints are specified. The main disparity, i.e. the status of both maximisation precepts is highlighted. The incoherence of R. Posner’s position including his pragmatic argument for wealth maximisation and his commitment to the thesis about ethical convergence is pointed out.

Prawo, ekonomia, ludzkie działanie. Dyskusja nad zastosowaniem ekonomii behawioralnej do analizy prawa

Author(s): Magdalena Małecka / Language(s): Polish Issue: 1/2011

Law & economics scholars have claimed, from the very beginning of the movement, that their ambition has been to make studies of law more scientific. The neoclassical approach in economic analysis of law is based on the assumption that rationality of people acting in legal contexts can be characterized in the same ways as rationality of homines economici. However, emergence of behavioral economics and attempts to apply it to analysis of law by some law & economics scholars resulted in critical revising the achievements of neoclassical approach. The so called behavioral law & economics criticizes the neoclassical approach on the basis of experiments, which test hypotheses derived from neoclassical theories. Outcomes of those experiments allow to draw conclusion that in many (legal) contexts people don’t behave in accordance with predictions based on neoclassical models. Behavioral law & economics scholars argue that neoclassical theories are grounded on so highly unrealistic assumptions that in many situations they cannot offer predictions of human behavior. I distinguish three main issues that are discussed: philosophical, methodological and normative ones. I formulate critical comments on the raised arguments and final general remarks concerning possibility of making legal studies more scientific, as well as application of economics to studies on law.

Teoria klaryfikacyjna wykładni prawa jako teoria uzasadnienia. Perspektywa psycholingwistyczna a pozytywistyczna koncepcja wykładni prawa

Author(s): Marcin Romanowicz / Language(s): Polish Issue: 1/2011

Within the framework of legal positivism on the ground of Polish legal theory there was founded, in the scope of the issue of legal interpretation, the ‘clarification’ theory, formulated by J. Wróblewski. Adopting psycholinguistic perspective for the analysis of above mentioned theory allows to take the knowledge about human linguistic cognition into consideration and compare it with the vision of achieving understanding of legal text as understood by J. Wróblewski. Thus conducted “mental experiment” – moving from the level of the legal theory to the level of psycholinguistics – reveals “hidden” properties of J. Wróblewski theory of legal interpretation. First of all, as far as the question about the status of his theory is concerned, it allows to formulate a conclusion that it is neither a descriptive nor a normative theory of legal interpretation. It is possible to accept only as a normative theory of justification of interpretation decisions in the process of law application.

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.

On the Analytical Importance of the National Interest in Theoretical Exploration of the European Integration Process

Author(s): Franciszek Strzyczkowski / Language(s): English Issue: 2/2016

This article seeks to elaborate the theoretical discourse on different, competing explanations of the European integration, invoking the notion of the national interest that plays an essential role in the process. Despite increasing integration, the European interest remains quite different from the sum of the national interests of all Member States, and different theories, by presenting explanations of the integration process, raise or diminish its importance. The major premise of the intergovernmental theory is that the integration progress can be analyzed as an intergovernmental regime designed to coordinate the economic and political interdependence negotiated through bargaining. This implies that Member States’ behavior reflects actions taken by their governments based on rational choice, limited only by the domestic social demands and external strategic international environment. According to intergovernmentalism this process, within which states’ preferences are shaped, is in fact the process of national interest formation. In contrast, a second school of thought on integration, affiliated with supranationalism, has a more normative ambition, providing not only a description of the role of the national interest, but also bringing the ideas of its limitation, proposing changes on the mode of European governance aimed at shaping Europe in a more republican manner. Despite the dominant position of the national agents at almost every level of the European governance, for the supranational approaches, due to the multi-level structure of the European Union, controversy between national interest and European common good is rarely invoked. The assumption that one theoretical understanding and the assessment of the level of influence of the national interest as applied to the European integration can have profound legal and political implications, leads us to the conclusion that depicting the five most prominent attempts at capturing it theoretically remains essential for further analysis of the European structure and European legal order. Paradoxically, an unstable economic situation and its overreaching and predominant negative influence on all the Member States, might catalyze a redefinition of Europe and reinvigorate the discourse on both European common good and national interests.

Refleksyjność a badania nad sprawiedliwością tranzycyjną

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

The article explores ways in which the notion of reflexivity can apply to the research on transitional justice. First, the article describes reflexive considerations concerning the state of the field itself. Then, the reflections on transitional justice measures are characterized, focusing primarily on the discussion on the use of criminal trials. Finally, the article portrays how collective and individual identity can be reshaped during the transition. The article argues that research on dealing with the past is par excellence reflexive, as the debate challenges even the most basic ideas connected with transitional justice.

„L’amie de la liberté”: Benjamina Constanta rozważania o wolności

Author(s): Sabina Kruszyńska / Language(s): Polish Issue: 2/2015

The author of the article by analyzing and interpreting Constant’s texts performs detailed reconstruction of the idea of freedom included in these texts. The author shows a close connection between Constant’s idea of freedom and of ideas developed by the French thinker and politician in his work on religion. Known classifications (made by Constant) between the individual and political freedom and between freedom of the ancient and modern thereby obtain specific philosophical justification.

Błąd perspektywy czasu a odpowiedzialność odszkodowawcza

Author(s): Radosław Zyzik / Language(s): Polish Issue: 2/2015

Hindsight bias is one of the cognitive biases, which are biases that people make systematically and predictably. The essence of this bias is inability to correctly evaluate the probability of past events. Our tendency to overestimate it can lead to disturbing consequences in legal proceedings where such activities are on the agenda. In our analysis we will focus on assessing how the hindsight bias affects the way in which judges determine guilt in civil proceedings. Moreover, we will try to identify the consequences of moral, economic and legal aspects of theoretical analyzed cognitive error.

Penal authority beyond crime and punishment

Author(s): Boyan Znepolski / Language(s): English Issue: 45-46/2018

Sąd jak inkarnacja Ludu. Dekonstrukcja idei ludowego konstytucjonalizmu

Author(s): Arkadiusz Barut / Language(s): Polish Issue: 2/2017

The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities of the criticism of its lawmaking.

O odpowiedzialności karnej, uzasadnieniu kary i koncepcji komunikacyjnej karania

Author(s): Michał Peno / Language(s): Polish Issue: 2/2014

The article concerns the concept of punishment as an act of communication. Some retributivsts (i.e. ‘positive’ retributivists) believe that punishment communicates a censure. The article’s central proposition is that the act of communication is, in fact, strongly connected with the criminal responsibility. Furthermore, responsibility should not be identified with punishment. The so called positive retributivists claim that in order to fulfill communication purposes, offender have to be punished. However, punishment seems to be conceptually independent of the process of moral communication. It is shown that communication is linked with the very idea of criminal responsibility and the censure should by communicated through responsibility. Therefore, the article offers the view of responsibility as a complex process. Responsibility is an important social practice which in many cases can substitute punishment, particularly in its communicative aspect.

Aspekti Hegelove filozofije

Author(s): Theodor W. Adorno / Language(s): Croatian Issue: 04/1971

Duh to nije izvršio. Zna se da pojam sistema u svojem emfatičkom hegelovskom slogu, koji, dabogme, ne odgovara deduktivnom pojmu pozitivnih znanosti, zahtijeva da bude shvaćen organski kao međusobno urašćivanje i međusobna urašćenost svih djelomičnih momenata snagom cjeline koja je već sadržana u svakom od njih.

Konstitucionalizam u ruhu evolucionizma. Neki aspekti teorije države i prava Friedrich von Hayek-a

Author(s): Aleksandar Savanović / Language(s): Serbian Issue: 4/2012

In this paper, we analyse the relationship between the theory of state and law by Friedrich Von Hayek and the constitutionalist tradition of the 18th and 19th century, with emphasis on Hayek’s evolutionary interpretation of the origin of state institutions. We will point out the specificity of evolutionary approach in the context of the distribution of powers concept, especially the functional role of the legal system and special emphasis on the role of judicial authorities in the development of law. In this aspect, Hayek’s theory of state contains one of the fundamental critics of democratic political procedures. The key aspect marking the Hayek’s approach to the theory of law is the strong emphasis on the verge of rationality and therefore the marked importance of customary and traditional norms in the preservation of the legal system rationality, as well as the subordination of legislation to what Hayek calls law.

Hajek, filozof prava. Konstitucionalizam u ruhu evolucionizma

Author(s): Aeon James Skoble / Language(s): Serbian Issue: 4/2012

In this paper we analyze the relationship between Hayek’s theory of the state and law and the constitutionalist tradition of the eighteenth and nineteenth centuries, with a focus on Hayek’s evolutionists interpretation of the origin of social institutions. I will suggest the specificity of the evolutionist approach in the context of the concept of separation of powers, and especially the functional role of the legal system, and specific emphasis on the role of the judges in the development of law. A key aspect that characterizes Hayek’s approach to the theory of law is a strong emphasis on the verge of rationality and, consequently, increased the importance of customary and traditional norms in preserving the rationality of the legal system.

Blochova socijalno-politička i pravna misao

Author(s): Ante Pažanin / Language(s): Croatian Issue: 01-02/1966

Ernst Bloch je sigurno najosebujniji marksistički mislilac XX stoljeća. Princip nada nije samo glavno Blochovo djelo nego i princip odvažne i plodne misli koja kao istinska mudrost zrači iz njegovih djela, rasvjetljavajući najsloženije probleme suvremenog svijeta od filozofije i umjetnosti do religije i politike.

O niewolnikach, moralnie neutralnym prawie i sędziowskich dylematach

Author(s): Łukasz Libowski / Language(s): Polish Issue: 1/2019

Review of: J. Zajadło’s Sędziowie i niewolnicy: Szkice z filozofii prawa, Gdańsk: Wydawnictwo Uniwersytetu Gdańskiego, 2017; Review by: Łukasz Libowski

Platonovo poimanje pravednosti

Author(s): Željko Kaluđerović / Language(s): Serbian Issue: 13/2010

Plato is a thinker who puts the concept of justice into the very center of philosophical discussion. His concept of dikaiosyne, as a virtue which is in essence related to the essence of the state, is elaborately defined in the dialogue The Republic, although in other works (Charmides, Protagoras, Gorgias, Symposium) we can also see views related to its philosophical understanding. Plato particularly emphasizes the universality and permanence of the concept of justice, its substantial significance for the proper state of the human soul and the alignment of three distinct parts of the soul, as well as the connection to the threefold social rank basis of the best politeia, and differentiated forms of the rule, developed, in addition to the Republic, in Statesman and Laws. The most commonly noted concept of justice, which sublimes its concept “in general”, is presented in Δ book of The Republic: “This, then, I said, my friend, if taken in a certain sense appears to be justice, this principle of doing one’s own business.” Plato advocates Sophocracy, i.e. the political rule of the philosophers, being of the opinion that only in such a form of constitution it is possible to realize a complete harmony, the agreement of spheres of practical life, but also the adequacy and the equivalence of giving and taking on behalf of free citizens of a polis and the very polis. The justice in the Kingship i.e. in Aristocracy should be applied, primarily based on the principle of geometrical equality, while arithmetical equality would be only an auxiliary means to mitigate increased tensions in the classical polis of Plato’s times.

Ontologizovanje prirodnog prava u liku prirodnog prava. Spinoza – deus sive ius naturale

Author(s): Lazar Vrkatić / Language(s): Serbian Issue: 7/2007

Kaže se da je Spinoza jedan veliki istočnjački mislilac u zapadnoj tradiciji. Ako je takva tvrdnja tačna, a u velikoj meri jeste, za očekivati je da se i u filozofiji prava Spinoza kreće pod plaštom nedelatnog apsolutnog identiteta, ali, začudo, u tom domenu veliki istočnjački princip se ne iskazuje kao polazište, što ne znači da je odbačen, nego se prvotnim nazočuje sam duh Zapada kroz Makijavelijev princip. Raskol etike i politike, pravičnosti i pravde, to Makijavelijevo čedo, je postulat Spinozine filozofije prava. [...]