Legalność jako zgodność z intencją prawodawcy. Rozumienie legalności w pracach Józefa Nowackiego
Legality as Compliance with the Intention of the Legislator. The Understanding of Legality in Józef Nowacki’s Works

Summary/Abstract: The issue of legality is one of the most important threads in the scientific achievements of Professor Józef Nowacki. He distinguished two ways of understanding legality: a strongerone, which boils down to determining the compliance of behaviour with the contents of a dulyenacted provision, and a weaker one, when the only legal basis is an obligation to employa specific kind of evaluation. In the author’s opinion, Nowacki’s idea does not adequately takeinto account the fundamental problems with determining the meaning of a legal provision,i.e., problems of interpretation. The proposition that legality means compliance with thecontents of a provision transfers the burden of making findings in this respect onto the subjectinterpreting it. The author discusses two approaches to statutory interpretation, i.e., theeclectic approach, in which there is no universal criterion for the correctness of interpretation,and the categorical approach, in which it is assumed that such a criterion exists. He pointsout that only a categorical approach can be reconciled with the idea of ​​ the rule of law andthe role of judges as faithful agents of the legislator. Therefore, he proposes that compliancewith the intention of the legislator should be taken as a criterion for the correctness of theinterpretation. When legality is approached this way, the need to distinguish its stronger andweaker versions disappears. The qualification of a behaviour as legal or illegal will be basedon the criterion of compliance with the intention of the legislator.

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