Zbieg przepisów ustawy w polskim prawie karnym

Author(s): Andrzej Zoll / Language(s): Polish Issue: 2/2013

Concurrence of provisions occurs when one act, constituting the basis of criminal law reaction, fulfils the features of at least two types of forbidden acts described by the criminal statute. It is therefore mainly the problem of proper legal qualification of a forbidden act. However, greatest difficulties are connected with establishing the unity of the forbidden act which is to be evaluated. The Polish doctrine and court practice represent the point of view that during the establishing of the criminal law evaluation unit, both ontological and normative criteria should be taken into account. The concurrence of provisions may be of various character. Putting aside the so-called apparent concurrence, on should distinguish the negligible (not proper) concurrence and real (proper) concurrence. In case of the first one, there is, due to the use of special rules which allow for the exclusion of multiple evaluation, a reduction of the legal qualification to one provision, so that the concurrence is neglected in the process of legal qualification. In the second case, the rules which allow for the exclusion of multiple evaluation cannot be applied without the loss of the possibility to reflect the full scope of the illegality of an act in the legal qualification. Different models of solving the real concurrence of provisions are possible. There are three such models in the Polish legal system: the so-called ideal concurrence of offences (art. 8 of the fiscal criminal code), the eliminative concurrence of provisions (art. 9 of the code of petty offences) and the cumulative concurrence of provisions (art. 11 of the criminal code). The latter is of greatest practical significance. It makes it possible to reflect most fully the complex content of illegality, as in case of this type of concurrence the qualification is based on all the concurring provisions, and only the imposition of punishment is based on the most severe provision. This does not forbid the court to apply the penal measures on the basis of the other provisions which are included in the legal qualification.

O formule Radbrucha

Author(s): Jan Woleński / Language(s): Polish Issue: 61-62/2015

The aim of this article is to analyse Radbruch’s formula (lex iniustissima non est lex) with regard to the notions it contains and to indicate that it expresses a basic problem of philosophy of law linked to the discussion between legal positivism and the doctrines of natural law. That analysis underpins the proposal for a possible rational compromise between the two standpoints. The main problem in the dispute between the rival doctrines amounts to the adoption of some material criterion for defining gross injustice, whilst the background to the dispute is the functioning of the principle which states that law is not retroactive.

Metafizyka pozytywizmu prawniczego

Author(s): Tomasz Gizbert-Studnicki / Language(s): Polish Issue: 61-62/2015

The purpose of this paper is to present a metaphysical analysis of one of the main theses of legal positivism, namely that legal facts are ultimately determined by social facts alone. A short analysis of the notions of social and legal facts is followed by a presentation of possible accounts of the relation of determination. Three alternative accounts are discussed: the reduction of legal facts to social facts, the supervenience of legal facts on social facts and the grounding of legal facts by social facts. The first and second accounts are dismissed as unsatisfactory. The account of determination as a relation of metaphysical grounding appears to be promising, but creates difficulties with explaining the normative nature of legal facts.

O pewnych aporiach normatywnej teorii wykładni prawa

Author(s): Jerzy Leszczyński / Language(s): Polish Issue: 61-62/2015

Constructing a normative theory of legal interpretation involves difficulties of various types. One problem is the adoption of certain cognitive assumptions concerning the choice of the legal articles that are subject to interpretation. Another difficulty is ascertaining what determines the rationality of the interpretive activities pursued in accordance with the proposed directives of interpretation. The third obstacle is the need to harmonise the theory of legal interpretation with the dialogical nature of understanding on one hand, and with the historicity of legal discourse on the other.

Ewolucja i osobliwość. Pojêcie prawa według Emmanuela Lévinasa

Author(s): Ewa Nowak / Language(s): Polish Issue: 61-62/2015

This paper explores the tension between ethics and law in the theory of Emmanuel Lévinas. Institutions and ethics have different relations with individuals in their “uniqueness” and “legal subjectivity”. After unmasking the ambivalence of positive law, Lévinas issued a robust appeal for laws to be anchored in civic discourse. They should also be orientated towards the pre-original rights of man. In Lévinas’s writings, the notions of justice and the “Third” become increasingly important. The author has followed that evolution and sketched the framework of a sceptical philosophy of law according to Lévinas, irrespective of his apparent predilection for unconditional ethics.

Prawo po śmierci boga. Prawoznawstwo a niektóre konstatacje współczesnej filozofii

Author(s): Adam Sulikowski / Language(s): Polish Issue: 61-62/2015

The author uses the Nietzschean metaphor of the death of God to depict the condition of modern jurisprudence, which, hitherto based on the positivist paradigm, must now deal with anti-foundationalist and sceptical tendencies in contemporary philosophy.

Ważenie wartości w prawie a problem ich absolutności i relatywności

Author(s): Jadwiga Potrzeszcz / Language(s): Polish Issue: 61-62/2015

The objective of this article is to provide an answer to the question: ‘Is there an essential relationship between the weighing of values in law and the rejection of the possibility of the existence of absolute values?’ In other words, we can ask whether the fact alone of weighing values in law implies the relativity of these values. The author, following Heinrich Hubmann, proposes a distinction between the absoluteness of values themselves and the relativisation of their weight in an instance of specific application. She argues that the weighing of values does not exclude the existence of absolute values and that the feature of absoluteness belongs to basic and widely applicable values. However, in an instance where conflict arises between them, their weight may vary, depending on the specific circumstances. The author concludes that relativisation concerns not a value itself, which remains an absolute value, but its weight within the context of the requirements of different values and the requirements stemming from the nature of things.

Osoba fizyczna czy człowiek? Kilka refleksji na temat podmiotu prawa

Author(s): Tatiana Chauvin / Language(s): Polish Issue: 61-62/2015

The aim of this text is to challenge the tendency, discernible in legal discourse, to limit the vision of man as a legal subject to the construction of a natural person. As a category of private law, the subjectivity of the natural person cannot reflect the complexity of the relationships in which a man functions in the domain regulated by law or take into account the features that characterise him with regard to law. Hence the author attempts to construct another, more universal, model of human legal personality, which can be reliably applied to the whole of the law.

Krytyczny pozytywizm prawniczy Kaarlo Tuoriego

Author(s): Maciej Pichlak / Language(s): Polish Issue: 61-62/2015

The aim of this article is to present Kaarlo Tuori’s theory of law termed Critical Legal Positivism (CLP). It outlines the fundamental claims of CLP with regard to law, conceiving law as a complex, dialectical concept combining the opposing (to some extent) elements described in legal tradition as ratio and voluntas (rational standards and political will). According to CLP, this complexity is best represented by a theoretical model of law as a multi-layered order, containing a surface layer (positive law), a legal culture and a ‘deep culture’. All three layers, according to a positivistic account, are regarded as socially created, yet they differ in their nature and in the way they come into being. A reconstruction of those layers is followed by analysis of the main functions of the deeper levels of legal order. On one hand, those deeper strata are said to discharge a limiting and critical role (they restrict the discretionary will of law-making and law-applying authorities); on the other, they constitute and legitimise positive law. By the same token, they serve as a medium between law and public opinion.

Critical Remarks on Alf Ross’s Probabilistic Concept of Validity

Author(s): Katarzyna Eliasz,Wojciech Załuski / 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.

Czy wolność człowieka jest absolutna? Punkt widzenia liberalizmu klasycznego

Author(s): Karol Jasiński / Language(s): Polish Issue: XXIII/2011

The paper concerns the idea of freedom and her limits in the thought of the some representatives of classical liberalism. The paper has three parts: 1) freedom as a feature of the personality and her different forms (personal and social, positive and negative); 2) ideas if the English philosophers (T. Hobbes, J. Locke, D. Hume, J. S. Milli); 3) ideas of the French philosophers (Ch. Montesquieu, J. J. Rousseau, A. De Tocqueville). According to this thinkers human freedom is not a absolute valeu but has many limits (social contract, law, customs, religion and ethics).

Stosunek Czesława Znamierowskiego do filozofii Immanuela Kanta

Author(s): Karol Kuźmicz / Language(s): Polish Issue: 1/2007

Czesław Znamierowski (1888-1967) is an author of an original theory of law, in which he developed the concept of social phenomena. He was analyzing the ways of constructing and reasoning of moral and legal norms. His works play important role in the development of Polish philosophy of law. Czesław Znamierowski represented critical approach to German Idealism. However you can find links between his views and Kant’s practical philosophy and especially Kant’s deontological ethics. In this context you can point relations between Znamierowski’s concept of common goodwill and Kant’s practical imperative.

Intralingvistinio Vertimo Samprata Ir Jos Evoliucija Teisiniame Diskurse

Author(s): Žaneta Čėsnienė / Language(s): Lithuanian Issue: 78/2014

Based on the insights of Lithuanian and foreign authors and the analysis of the development of translation theory and practice, the paper discusses the essence of intralingual translation with the major focus on the occurrence of intralingual translation in legal discourse. To this end, a theoretical survey of the concept of intralingual translation is carried out. Moreover, the paper analyses the evolution of the concept of translation, starting with the analysis of the kinds of translation presented by R. Jakobson in 1959 and finishing with the most recent developments of the concept in focus. The focus is on the differences between the intralingual translation strategies specific to the legal discourse – ease and simplification. These differences highlight the occurrence of new trends in translation theory and practice, i. e. transition from complex means of expression to simpler ones, typical to the consumer-oriented popularized texts. And such “popularization” of texts is often performed by applying the intralingual translation concept and respective translation strategies.

Why Legal Reasoning has to be Unique

Author(s): Maciej Koszowski / Language(s): English Issue: 7/2017

This article addresses the issue of the uniqueness of legal reasoning and, specifically, the author advances the thesis that what makes legal reasoning different from the reasoning employed in demonstrative and empirical sciences and matters of everyday life is not the actual form (scheme) of this reasoning but the legal milieu. Thus, he tries to demonstrate that some features of law – such as its normative and prescriptive nature, difficulties with the verification of its content on empirical grounds, its limitations stemming from the physical world and dependence on humans and their minds, as well as the ‘unspecialized’ character of law agents and the extraordinary role of authority – influence legal reasoning as well. At the same time these features also allow this reasoning to be unique, despite its adoption of forms of inference that are present elsewhere.

Prawo a moralność – zagadnienia normatywne na tle polskiej praktyki orzeczniczej

Author(s): Monika Kotowska-Lewińska,Szymon Kulmaczewski / Language(s): Polish Issue: 3/2017

The presented article takes into consideration an important and multifactorial problem – morality related to legislation process. The issue of distinguishing law from morality is considered on the level of differences between legal and ethical norms. Among many different conceptions and disputes, within this article were presented only the main aspects of relation between law and morality. The mentioned issue was also described within several Polish case studies. Apart from notional relations of law and morality, there exist very strong real relations between undertaken factors. Finally authors of this article show, that morality strong rule can be crucial for law legislation and its further interpretation.

ПОЛИТИКА И МОРАЛ У ТЕОРИЈИ ДРЖАВЕ СЛОБОДАНА ЈОВАНОВИЋА

Author(s): Boris Z. Milosavljević / Language(s): Serbian Issue: 1/2011

The core of Slobodan Jovanović’s reflections is the theory of state, which ties his complete oeuvre into a single system framework. This is why the issues he dealt with, including considerations of the relations between politics and morality, are closely or loosely connected to his theory of state. This paper explores possible solutions to the contradictory Machiavellian and Platonist viewpoints of state put forward in Jovanović’s scholarship. State organ acts morally if executing the will of a state, not its own or any other will alien to the state. With that, the state limits itself for its own interests by separation of power and passage of laws, which provides creation of free community necessary for reinforcement of morality in the state.

“KILLING A TYRANT” – REMARKS ON CICERO’S MILONIANA

Author(s): Tamás Nótári / Language(s): English Issue: 3/2012

Pro Milone represents an exception in two aspects both among the speeches left to us as Cicero’s life-work. On the one hand, this is the oratio whose original was delivered by the orator in a lost lawsuit, however, later on, guided by political considerations, he published its revised version. On the other hand, Pro Milone is the speech of which we exactly know that the version published by Cicero and left to us is different from the oration given before the court of justice not only in style and structure but in its essence. Pro Milone is an essential constituent part and source of Cicero’s philosophy of the state that produced hardly overestimatable impact on European thinking, that is, in them Cicero as an orator and a politician, trying in vain to get back to the summit of his former influence, formulates his concept on the theory of the state pointing far beyond the handling of the facts of the case and the rhetorical tactics as well as the rhetorical situation, which later on crystallised and constituted the subject matter in his theoretical works.

Odnos između suverene, zakonodavne i izvršne vlasti u Hegela

Author(s): Davor Rodin / Language(s): Croatian Issue: 01/1992

In his Philosophy of Law Hegel reflects on sovereignty and on legislative and executive power in a critical dialogue with earlier bourgeois theories. He rejects the idea of national sovereignty and the sovereignty of citizenship in order to be able to reject all forms of direct and indirect democracy and all consensual decision and shaping of popular will. Experience connected with these theories convinced Hegel that civil war waged by all people against all others cannot be transcended through a state based on formal law but only through an organically conceived state not threatened by the danger of becoming an expanded area of conflict within civil society and within all forms of democracy in general. War by all people against all other has disposed of in Hegel’s Philosophy of Law according to a new era reinterpretation of the New Testament utopia of love. Hegel’s philosophy of law is a monument of logical utopianism.

Postpozytywizm na tropie Świętego Graala? Odpowiedź na krytykę Tomasza Pietrzykowskiego

Author(s): Andrzej Grabowski / Language(s): Polish Issue: 1/2010

Konferencja „Wpływ teorii Profesora Jerzego Wróblewskiego na współczesne prawoznawstwo”, 15–16 maja 2010 r.

Author(s): Tomasz Bekrycht / Language(s): Polish Issue: 1/2010