Zwyczaje i obyczaje w filozofii prawa Herberta L.A. Harta

Author(s): Michał Zabdyr-Jamróz / Language(s): Polish Issue: 45/2015

The purpose of this paper is to provide an analytical framework – derived from the Herbert L.A. Hart’s philosophy of law – for the study of the phenomenon of habit and custom from the perspective of normativity. Its starting point is the Hart’s concept of “internal aspect of rules” (recognition of obligation) as a necessary criterion for the rule’s normative character (“external aspect” is a punishment or a reward). The internal aspect exists in two forms: the “recognition” based on specific rules (applicable to the legal systems), and “acceptance” (of already existing practice). The concept of acceptance reveals a difference between habit (merely collective practice) and custom, by capturing the normative character of the latter (as a collective practice that has been accepted as obligatory). The formation of the customs – by way of unprecedented punishment (sanction) of a rule’s violation – reveals the ambiguity of the term “sanction” as referring to not only the external aspect, but also to internal aspect of rules.

Sprawozdanie z XXII Zjazdu Katedr Teorii i Filozofi i Prawa, „Prawo – polityka – sfera publiczna”, Wrocław 18–21 września 2016 r.

Author(s): Tadeusz Biernat / Language(s): Polish Issue: 1/2017

The organizer of the XXII Congress of the Departments of Theory and Philosophy and Law was the Department of Theory and Philosophy and Law of the Faculty of Law, Administration and Economics of the University of Wrocław. The congress and accompanying Scientific Conference constituted an important for the scientific community of theoreticians and philosophers of law, an event, not only because of the fundamental, which is the continuity and tradition of these meetings, which are the basic plane of integration. Established in accordance with the adopted rules, two years ago - during the XXI Congress, the topic of the scientific conference became, also due to changes occurring in the social environment, an extremely important and interesting subject of the scientific debate. This was confirmed by the number, subject matter and the scientific position of the speakers presenting speeches at plenary sessions, as well as the number of working groups and their active participants. Both establishing the topic and entrusting the organization of the Congress, headed by prof. dr hab. Andrzej Batora, the Department of Theory and Philosophy and Law, undoubtedly influenced the scientific level of the meeting.

Od Redakcji

Author(s): Tomasz Stawecki,Marek Zirk-Sadowski,Paweł Skuczyński / Language(s): Polish Issue: 1/2010

Private International Space Law. Philosophical and Legal Factors of Approval by the World Community

Author(s): Valentyn Halunko,Serhii Didenko / Language(s): English Issue: 22/2019

This paper reveals the philosophical and legal factors of the private international space law. It is concluded that the world community should develop and approve private international space legislation and law, even before the mass use of space by individuals and colonization of space bodies. It is proved that the research, use and legal protection of outer space, space bodies and space colonization is an objective irrevocable and progressive phenomenon of mankind. It should be implemented on the basis of both public and private international space law. It is revealed that the first is well developed, and the second is at the stage of philosophical and legal approval. The authors emphasize that otherwise; the situation will be able to go beyond the humanistic and legal dimensions. This process might become uncontrollable, lead to space piracy, space wars, violation of people’s right to life and health, violation of property rights, in particular, intellectual property rights.

PHILOSOPHY OF LAW IN THE HEGELIAN THINKING

Author(s): Agata Mihaela Popescu,Andreea-Ileana Danielescu / Language(s): English Issue: 3/2018

It is amazing how simple and how present Hegel’s philosophy of law principles seem to be, principles developed in a textbook which went beyond the academic lecture room, and which at the middle of the 19th century, were addressed to both the world of science and the large audience. It is about a legal structure of reality and of the state, about a series of “natural law and State science” elements that the great philosopher built within an accurate, close, and yet subtle philosophical architecture, specific to his method of “Science of Logic”. In his approach, Hegel also focused on some kind of fight between certain truths and other truths “of the same kind, spread from other parts”. Yet, within the state law and ethics, truth is as old as the public morals and religion. Bringing back to the forefront, in the modern epoch, an analysis of the principles Hegel wrote about means a privilege to understanding the national accents of the present legal world in Romania and its interconnections with the rest of the world.

Știinţa juridică românească și problemele ei actuale

Author(s): Valentin-Stelian Bădescu / Language(s): Romanian Issue: 11/2018

Justice cannot be where laws are crooked and ill-formulated. Nor where procedures go anywhere, but not to the right. Nor where the appointment of magistrates is done by a power center, whatever it is. They do not result in the appointment of judges outside the unrestrained competition, which will bring to the fore the most qualified and competent lawyers, among which the representative colleagues will decide in the public interest. Mandates should, as in the US or other countries, shift the presidential changes, which are, as we know, occasions for change. The Romanian framework is different nowadays, it is honest to recognize that our country is still on a path that cannot lead to justice: too little law in the public interest, misguided procedures, aberrant criteria in probation, voivodal appointments of magistrates, politicization. You must be naive or of bad faith or propagandist not to recognize the injustice that occurs perceptibly even under the propaganda about justice. The suffocating extension of corruptionin society is invoked as an argument of exalting justice, be it with shortcomings. There can be talk and serious talk about corruption. The phenomenon is wider than it is believed. It fights without a thorough examination of its dimensions and sources, at pressures from different directions. In analogous countries, corruption, sources, and places were analyzed. In ours, everything is left to more or less specific opinions that do not know what a society is or how the institutions work, such that they give a selective, preferential image of the extent of corruption. On theother hand, for the moment, many of those who owe their position precisely to the acts of corruption raise the stumbling block of the anti-corruption fight. There is no other way to integrate a society than a generous return to the foundations of the science of law, the unrelenting source of justice.

„COUPER LE SIEGE”. SUR LA REORGANISATION SYMBOLIQUE DE LA SALLE D’AUDIENCE

Author(s): Solange Ingrid Marina Dumitrache / Language(s): French Issue: Sp.Issue/2019

“Breaking the chair”. About the Symbolic Reorganisation of the Trial. On July 23, 2018, the article 7 of the Law no. 304/2004 about the judicial organisation was completed as follows: „the configuration of the court room must reflect the principle of the equality of arms concerning the position of the judge, the prosecutor and the lawyers”. This paper aims to treat about the symbolic connotations of the rearrangement of the position of the main procedural actors in the space destinated to the act of judging, meaning the relocation of the prosecutor in line with the lawyer, with his back on the audience – as a visual sign of the equidistance of the judge regarding both of them.

Le rachat des fautes individuelles ou collectives dans Faust, une légende allemande

Author(s): Sylvain Louet / Language(s): French Issue: 22/2018

Faust, une légende allemande (Murnau, 1926) est étudié comme un laboratoire éthique, juridique et moral, du jugement porté sur les fautes de ses protagonistes. Ainsi, ce film substitue une conception pluraliste de l’appréhension de la justice à celle, univoque, limitée à ce qui se déroule au sein de la Justice comme institution. // Faust, a German legend (Murnau, 1926) is studied as an ethical, legal and moral laboratory, of the judgment concerned the faults of its protagonists. So, this movie substitutes a pluralistic conception of the apprehension of justice to that, unambiguous, limited to what takes place within Justice as institution.

Ospravedlnění základních práv. Diskursivně-teoretický přístup (přel. M. Patočka – R. Pech)

Author(s): Rainer Forst / Language(s): Czech Issue: 59/2020

Translation of Forst's text into Czech language

Kde končí minulost a začíná současnost? K pojetí lidských práv u Rainera Forsta

Author(s): Robin Pech / Language(s): Czech Issue: 59/2020

On the concept of human rights in Rainer Forst

THOMAS HOBBES’DA EŞİTLİK, ÖZGÜRLÜK VE GÜVENLİK SORUNU: DOĞA YASASI TEMELİNDE BİR DEĞERLENDİRME

Author(s): Bekir Geçit / Language(s): Turkish Issue: 21/2021

This article is about Hobbes' thoughts about people's problems of equality, freedom and security in the state of nature and civilized society. The evaluations were made on the basis of Hobbes' idea of natural law. The laws of nature is the principles found by reason prohibiting things harmful to humans and aiming to protect human life. In the case of nature, everyone is equal and everyone has an equal right to everything. This causes distrust and hence war among people. Also, in the case of nature, there is no force to force people to comply with the law of nature outside of their conscience. People want to protect and truly be possessed their lives, their families and their property, which they consider valuable to them. Therefore, people transferred their rights in the state of nature to sovereign and established the state. Thus, people who abandon the evil of the state of nature, in which ignorance, barbarism and poverty are wandering, have found peace and prosperity by establishing the state, thanks to the rights and freedoms afforded to them by the law.

An Essay on Natural and Distributive Justice

Author(s): Wojciech Dziedziak / Language(s): English Issue: 4/2020

The article addresses the issues of natural justice and distributive justice. The traditional formula “to render to everyone his or her own” (suum cuique tribuere) was taken as the point of departure. The discussion leads to the conclusion that natural justice concerns every person, and that everyone is entitled to inherent, innate rights, fundamental human rights. The exercise of natural justice ensures basic participation in the goods of the community, namely the state. This is so because this justice requires that every person be provided with an existence appropriate to the dignity of the human person. The relationship between natural justice and distributive justice exists at the level of elementary objective needs. Natural justice, when exercised, in a sense meets the formula “to render to everyone according to their legitimate needs”, meeting objective, basic needs, but this applies only to part of society. This justice is broader, it does not boil down to these elementary needs and, of course, it relates also to other things than needs. In a sense, it could be said that natural justice “intervenes” where justice applied according to the principles of proportionality is not enough. Man, with his or her guaranteed natural, equal rights enacted as positive law in line with natural justice, through his or her own action “uses justice” by using (positive) law and provides himself or herself with a decent life. However, natural justice does not omit anyone, its implementation actually replaces the formula of distribution justice “render to everyone according to legitimate needs”. In distributive justice, equality is about proportion to the contribution made, but also to the merit. Of these two principles, the guiding principle, because of its universality, is the formula “render to everyone according to their contribution”: those who contribute more to the good of the community, receive more.

ПРАВО МІЖ ЕКОЛОГІЄЮ ТА ОЙКУМЕНОЮ: ЗА ПУБЛІЧНУ НОРМАТИВНІСТЬ

Author(s): Bjarne Melkevik / Language(s): Ukrainian Issue: 1/2022

The article has a philosophical framework of some of the concerns raised by the degradation of the environment and even the current global environmental crisis. He does this by updating the idea of the «oekoumene» to present his reasons and in particular to clarify our way of thinking about our relationship to the «environment» and «nature». Emphasis is placed on the implications, both practical and theoretical, of the choice of the perspective of the œkoumene, with regard to the paradigm of a legal modernity in perpetual construction.

DESPRE IDEEA INVARIABILITĂȚII LEGILOR NATURALE LA COMTE ȘI MILL

Author(s): Constantin Stoenescu / Language(s): Romanian Issue: 42/2018

My aim in this paper is to argue that the philosophical positivist project developed by Comte have to be connected with the ideas of explanation by laws and of natural laws invariability. Mill worked with the same concept about the invariability of natural laws but in a different psilosophical framework structured around a phenomenalist epistemology. My thesis is that the idea of laws invariability could be elucidated by philosophical analysis in relation with the concepts of induction, cause and uniformity of nature. Moreover, I think that there were already proposed three different interpretations in philosophical literature: the first, called by me „the standard interpretation” is based on the so called primacy of induction as a source of knowledge, the second tries to reveal the pressupositions which support the positivist project, namely, the uniformity of nature principle, and the third considers the millian project as an attempt to naturalize the epistemological approach of induction. Anyway, I think that whatever interpretation we accept the epistemological profit was that together with Mill we have reached the distinction between empiric regularities, causal laws and the general principle of nature uniformity.

SARTRE ET LA QUESTION DU DROIT

Author(s): Michel Kail / Language(s): French Issue: 32/2013

Jean-Paul Sartre deals with the problems of law and justice the first time in 1927 responding to two different positions on the individual "natural rights" and the "state sovereignty". Later on, in the Cahiers pour une morale (1947) he criticized the law-formalism. So, the law and jurisdiction are instruments for power to support the social division and inequality. Sartre returns to the questions of law and rights in four concrete situations when the French philosopher was member of Tribulan Russell. For Sartre, it exist only one justice, the justice of people.

Z problematyki formy czynności konwencjonalnych w prawie

Author(s): Karolina Gmerek / Language(s): Polish Issue: 2/2022

The aim of the article is first of all an attempt to organize the ways of understanding the “form (of conventional actions in law)” and the contexts of the use of this term in detailed legal sciences. The author also considers the issue of performing conventional actions in law by non-linguistic actions and omissions, as well as the issue of significance of form recognition in the context of identifying conventional actions in law. The results of the research presented in the paper (apart from their cognitive value) are to serve the development of the theoretical concept of conventional actions in law and, as far as possible, to put in order the dogmatic-legal discussion concerning the title issue.

Absurda lex, sed lex? Public value and the decay of the Rule of Law: A conceptual perspective

Author(s): Eric Behar-Villegas / Language(s): English Issue: 3/2022

The Rule of Law serves, under a broadly accepted notion of justice, the enforcement of property rights and a relative predictability of citizen affairs, i.e. it fosters Public Value. However, it is subject to risks that materialise in weakened institutions, uncertainty and transaction costs. The connection between Public Value and the Rule of Law becomes salient when understanding how the latter degenerates at the expense of the former. This article provides two theoretical frameworks that explain the connection between the two concepts, as well as three manifestations of the Rule of Law’s decay. These comprise the excess of legal-formalism, the excess of discretion in enforcement and the instrumentalisation of the law, i.e. when it embodies injustice. Although they vary depending on the legal system, these aspects build a conceptual body that illustrates how contingent legal outcomes affect society, developing Daly’s (2019) concept of democratic decay in the economics and business literature.

GŁÓWNE NURTY DYSKUSJI NA TEMAT SŁUSZNOŚCI W MYŚLI TEORETYCZNOPRAWNEJ

Author(s): Sara Smyczek-Gołębiewska / Language(s): Polish Issue: 36/2022

The aim of this article is a theoretical and legal analysis of the concept of equity by attempting to formulate the main trends in discussions about it in the European theoretical and legal thought. Then, the author will present a few selected Polish philosophical and legal positions from various periods in order to check whether they fit into the European theoretical and legal tendencies. In the first part of the text, on the basis of the considerations of features, the author will try to formulate the main trends in which other theories of the psychological, situationist and normative equity, which emerged in the 20th century, also fit. The second part of the text presents the concepts of the validity of the following legal theorists: Henryk Piętka (psychological tradition), Eugeniusz Jarry (natural law tradition) and Jerzy Wróblewski (positivist tradition).

UNDERSTANDING DISORDER IN THE LAW AND JURISPRUDENCE (THE PERSPECTIVE OF LEGAL POSITIVISM)

Author(s): Michał Peno / Language(s): English Issue: 47/2023

RESEARCH OBJECTIVE: The main task involves an attempt to characterize a disordered law and concerns characterizing the most important aspects of the disorder. THE RESEARCH PROBLEMS AND METHODS: The main task of the article are terminological and conceptual arrangements. Therefore, the method of linguistic analysis was used, adapting conceptions knew in theory and philosophy of law to the needs of the analysis of the concept of the disorder. THE PROCESS OF ARGUMENTATION: Starting from the analysis of the main, known theories of law, concepts and ideas, various cases of disorder of the legal system are identified, both in the political, ethical and purely formal aspects. RESEARCH RESULTS: The analysis allowed to identify and reconstruct certain specific types of disorder. Law, on many levels – from formal to merits of law – can be a source of moral and ideological chaos. Law may serve intentional destabilization of social life. CONCLUSIONS, INNOVATIONS, AND RECOMMENDATIONS: Traditionally law is associated with order and consistency rather than disorder and chaos. Nevertheless, the disorder and chaos can be seen as a real and factual part of the law.

John Paul II’s Charter of the Rights of the Family. The Social Dimension of Human Rights in Light of Natural Law

Author(s): Carlos Alberto Gabriel Maino / Language(s): English Issue: 2/2023

The teachings of Saint John Paul II in connection with the family in general and the Charter of the Rights of the Family in particular focus on the social dimension of human rights in the hermeneutic key of natural law and the common good. The author of the article explains why such an approach is necessary and what its importance is for an appropriate philosophy of human rights.