Monocentrism and Multicentrism as Legal Theories in the Global Era

Author(s): Tadeusz Buksiński / Language(s): English Issue: 1/2015

The article describes two opposing theories of legislation and jurisprudence in the global age: multicentrism and monocentrism. The first one claims that a new legal system at the supra-state level is emerging, which must take into consideration varied legal traditions. The second one stresses that certain fundamental principles must be shared today by all people. It seems that the ultimate goal of jurisprudence is to create a system of laws that reconciles multitude and diversity with unity.

Why Legal Conventionalism Fails

Author(s): Adam Dyrda / Language(s): English Issue: 1/2015

The term “legal conventionalism” covers a set of broadly discussed legal theories explaining the fact of law’s existence by reference to the “conventional rule of recognition”. Some of them are aspiring to be so-called “fully fledged theories of law” and explain the normativity of law by reference to the same fundamental, conventional fact. The article presents some recently discussed views (including the ideas of E. Lagerspetz, A. Marmor, S. Shapiro) alongside with counter-arguments showing why conventionalism fails. Eventually, the basic points of critique can be shaped in terms of the distinction between instrumental and substantial reason.

Some Remarks on the Application of Bayesian Analysis in Law

Author(s): Bartosz Janik,Paweł Banaś / Language(s): English Issue: 1/2015

This paper discusses the use of Bayesian analysis in law. It introduces the key concepts of Bayesian analysis by giving some common examples of criminal cases. It focuses on the advantages of Bayesian analysis over some other probability interpretations (mainly the frequentist one). The last part of the text discusses the general notion of truth in legal proceedings and its possible interpretations within the probabilistic framework – given the Bayesian subjectivists-objectivists discussion.

Moral Intuitions in the Moral Luck Discourse

Author(s): Maciej Juzaszek / Language(s): English Issue: 1/2015

The main aim of the author is to analyze the term “moral intuitions”, used in discussions pertaining to moral luck. He presents the contemporary psychological estimation of moral intuitions based on the research of Jonathan Haidt (Social Intuitionist Model) and philosophical moral intuitionism. He claims that these two approaches do not have one subject of interest; hence, psychologists and philosophers study two different phenomena, both of which can serve as grounds for discussion concerning moral luck. However, the author concludes that there are valid reasons to question the normative status of moral intuitions in both psychological and philosophical senses, proving the discussion to be very complicated. On the other hand, he names coherentism as a possible cipher to adequately describe or even solve the problem of moral luck.

On Possible Applications of Paul Ricoeur’s Thought in Legal Theory

Author(s): Marcin Pieniążek / Language(s): English Issue: 1/2015

The paradigm of legal positivism, historically the most important attempt at turning law into science, has been subject to thorough criticism in past decades. The criticism has concerned the most important features of legal positivism, and especially the assumption of separation of law and morality, the dogma of statue being the only source of law, and the linguistic methods of interpreting legal texts. With a crisis of the positive paradigms, the demand for new, humanistic grounds for analysing philosophical and legal questions is intensifying. This is the reason for this article’s attempt to point to the application of Paul Ricoeur’s achievements to the key questions of the philosophy of law. It must be emphasised that his works, and especially Soimême comme un autre, may serve as a foundation for a philosophy of law rejecting the problematic claims about the dualism of being and obligation, the distinction of descriptive and prescriptive languages, and also the separation of law and morality. Thanks to this, the legal topos pacta sunt servanda (agreements must be kept) finds a reinforcement in the ontology of the subject applying law and can be understood as an ethically significant pattern of identity of the self. Equally fruitful seems the possibility of combining the questions of the ontology of the subject applying law with the question of a legal text and its interpretation. The assumption of Ricoeur’s perspective leads to a reduction in the distance between the legal text and its addressee, emphasised by the critics of legal positivism. This rapprochement becomes possible thanks to the connection of the question of the narrative that a legal text is with the question of narrativisation of the subject (i.e. the interpreter of a legal text), being itself in the ipse sense, i.e. applying the law.

The Method of Reflective Equilibrium in Moral Reasoning

Author(s): Marek Smolak / Language(s): English Issue: 1/2015

The paper analyses the nature of moral reasoning when balancing constitutional rights. The fundamental assumption is the idea that adequate moral reasoning based on the Weight Formula should demonstrate the reasons for adopting specific principles. This demonstration should be rational. Rationality can be achieved by applying J. Rawls’s methods of reflective equilibrium. The above method consists of background theory/approach. I propose to consider two background theories/approaches, namely Dworkin’s idea of integrity and the concept of the rule of law formulated by O. Raban. My aim is to argue that the latter is more accurate for moral reasoning when balancing constitutional rights than the former because it helps us to rationalize the broadly understood process of taking judicial decisions.

Emotional Labour of Judges

Author(s): Maciej Wojciechowski,Bogna Dowgiałło ,Dorota Rancew-Sikora / Language(s): English Issue: 1/2015

Our article concentrates on emotions as related to the functioning of man in the judicial system seen as a modern bureaucratic institution. Special attention is given to the work of judges due to their key position in this system. In legal discourse there is a dominating normative idea of a judge as a decision-making subject free of any emotional factors influencing their judgment. According to this traditional approach, a decision biased even in the slightest way by emotions could not be regarded as impartial, whereas judicial impartiality is regarded as one of the core values of the justice system. Our standpoint assumes not only that judges experience emotions but also asserts that they are being manifested in varied ways. Our analysis is based on Arlie Hochschild’s conception of emotional labour. Such labour is being performed when an individual reflects on his or her feelings and makes an effort either to change or to inhibit emotions which are regarded as misfitting. The necessity of emotional work is a result of cultural feeling and expression rules. It seems prima facie that there is one clear expression rule regarding displaying emotions by the judge in the Polish legal culture: no emotions allowed. However, contrary to possible reconstructed declarations and recommendations warning judges against showing emotions, the rules of expressing them in Polish courts are not unequivocal. We claim that one can distinguish between unconditional and conditional rules of expressing emotions. The former relate to expressing emotions concerning non-professional participants, and conditional rules of expressing emotions relate to professional participants in the hearing. There are situations in which an emotional reaction is reasonable, because it represents certain values to which the justice department adheres, and those in which judges regret showing annoyance or anger. The goal of the emotional labour performed is not only a realization of the value of impartiality, but also the balance of the judges that allows them to efficiently fulfil their role.

Can Human Rights be More Than a Burden in the Post-crisis Recovery? A Review of Economic and Social Rights After the Financial Crisis, edited by Aoife Nolan, Cambridge University Press 2014

Author(s): Karol Muszyński / Language(s): English Issue: 1/2015

XXII Zjazd Katedr Teorii i Filozofii Prawa "Prawo – polityka – sfera publiczna", Wrocław, 18–21 września 2016 r.

Author(s): Filip Rakoczy / Language(s): Polish Issue: 2/2017

Role zawodowe prawników w świetle modelu good governance

Author(s): Mariola Żak / Language(s): Polish Issue: 1/2018

The aim of the present paper is to verify the thesis that the institutionalization of regulatory solutions promoted by the idea of good governance leads to a change in the way lawyers and their professional responsibility towards civil society are perceived. Considering the claims that the positivist paradigm of government is in crisis and the postulates of changing the legitimacy of the judiciary expressed in the governance concept, the way in which the social roles of lawyers are understood needs reinterpreting. In the first place, the role of concepts of governance and good governance in contemporary law is described. Then normative coordination models of collective actions by means of which the ideas of governance and good governance can be put into practice are characterized. Finally, the traditional professional roles of lawyers and their so-called accessory roles are presented. The considerations constitute a normative meta-analysis, referred to as meta-governance. The reflection is conducted according to the descriptive method. The article is a contribution to future research and an attempt to identify the major problems faced by lawyers in connection with the implementation of good governance.

Koncepcja interpelacji ideologicznej a krytyczny dyskurs o prawie

Author(s): Rafał Mańko / Language(s): Polish Issue: 1/2014

The present methodological paper aims at answering the question whether the notion of ideological interpellation, put forward by L. Althusser, in the form given to it by S. Žižek, can be operationalised in order to be deployed as a tool for the critical reading of legal texts. The paper gives a positive answer to the question, indicating that the application of the saidmethod may contribute to the opening of legal discourse towards the impact of critical theory. The paper consists of three parts. The first part presents Žižek’s theory of ideology, thesecond part discusses the notion of ideological interpellation, and the third part is devotedto a preliminary attempt at operationalising the said notion.

Co może dać nauce prawa polityczność? Przyczynek do przyszłych badań

Author(s): Michał Stambulski,Michał Paździora / Language(s): Polish Issue: 1/2014

The political is a category entirely absent in the Polish theory and philosophy of law. Article presents history of “the political”, category developed by thinkers such as M. Weber, K. Marx, C. Schmitt, Ch. Mouffe and the main assumptions of the practical aims of theory of law present in alternative projects: Poznań-Szczecin methodological school and L. Morawski critical theory. Despite the declared theoretical differences, both projects are characterized by a similar understanding of the theory, which involves the objectivity of knowledge with involvement of universal point of view. Thus, the inclusion of the category of political in both projects, especially in legal education, is ignored.

Afirmatywna amnezja i konserwatywni crits. Kilka uwag o kondycji krytycznej myśli prawniczej w Europie Środkowej i Wschodniej

Author(s): Adam Sulikowski / Language(s): Polish Issue: 1/2014

The purpose of this article is to analyze the causes and effects of two phenomena, which can be considered as characteristic of the critical legal discourse in Central and Eastern Europe. The first phenomenon is sometimes termed as „affirmative amnesia”. It consists of the abandonment of critical methodology by legal scholars who have dealt with the Marxist critique of the neoliberal law for the major period of their careers. The author tries to diagnose the cause of this phenomenon. The second of these trends lies in the fact that the critical tools that are used on the West mostly by left-wing thinkers, in Central and Eastern Europe are applied by conservative rightists.

Critical Legal Conference, Belfast, Irlandia Północna, 5-7.09.2013 r.

Author(s): Rafał Mańko,Jakub Łakomy / Language(s): Polish Issue: 1/2014

Nowe wyzwanie dla pozytywizmu prawniczego

Author(s): H.L.A. Hart / Language(s): Polish Issue: 2/2014

In his lecture, delivered at the Department of the Philosophy of Law of the Autonomous University of Madrid on 29 October 1979, H.L.A. Hart directly responds to Ronald Dworkin’s attack on Legal Positivism, launched in Taking Rights Seriously. In the Sections I–II, Hart explicates his version of Legal Positivism by means of three central positivist theses: the Thesis of the Conceptual Separation of Law and Morals, the Thesis of the Social Sources of Law, and the Thesis of Judicial Discretion. Next, in Section III, he discusses Dworkin’s fundamental objections against the positivist theory of judicial discretion and claims that none of them seem convincing. Finally, in Sections IV–V, Hart analyses a new, herculean theory of adjudication, proposed by Dworkin as a „middle way theory” between the classic theories of Natural Law and Legal Positivism. In his answer to the criticism of the positivist Rule of Recognition, Hart claims that there is no reason why this rule, in certain jurisdictions, would not predict the use of the herculean procedure among the criteria that it provides for the identification of the law. He also states that the use of the herculean method of adjudication is unacceptable for the lawyers and that an impracticable character of this method is easy to demonstrate by referring to the case of the wicked legal systems, in which the principles underlying the law are morally bad. Thus, Hart concludes that instead of a sound vía media between Natural Law and Legal Positivism, the theory of Dworkin seems to offer the confusion of them.

Prequel do Hartowskiego Postscriptum – brakujące ogniwo w debacie Harta z Dworkinem

Author(s): Andrzej Grabowski / Language(s): Polish Issue: 2/2014

In his translator’s note to the H.L.A Hart’s paper New Challenge to Legal Positivism, Andrzej Grabowski describes the historical details of Hart’s Madrid lecture and the changes of the original Spanish text, introduced in the translation. He argues that Hart’s paper can be regarded as the prequel to the ‘Postscript’ from 1994, since the lecture deals with the criticism of Dworkin against the Hartian version of legal positivism and some important parts of them (from Section II) were in extenso included in the ‘Postscript’. The translator also emphasises the importance of Hart’s lecture as a text-source of information, which can be used in the contemporary debate on the inclusive legal positivism and for the critical reconstruction of Hart’s theoretical position.

Pojęcie uczciwości w wykonywaniu zawodu adwokata

Author(s): Tomasz Cyrol / Language(s): Polish Issue: 2/2014

How to understand fairness in the profession of advocate? It is obvious that the concept of fairness includes the lawful behavior. Lawful understood as comply with the „letter of law”. But the concept of fairness consists of other elements. Those are the compliance with the „spirit of law” and simply with the interests of client. The article describes different actions and influence exerting theories as examples of situations where conflicts between lawful actions and the interest of the client may appear. The conclusion of the article is that advocates have to work in a „fair” way. They are allowed to bend this rule under some circumstances but in those cases they are obliged to prove that they didn’t behave in an unlawful way and that their not fair behavior was in the interest of their clients. It is probably easier to behave in a fair way than to find justification for unfair such behavior.

Dowód z kultury (cultural evidence)

Author(s): Anna Koropczuk / Language(s): Polish Issue: 2/2014

This article concisely presents the question of cultural evidence and the way it is conducted on the basis of judicial proceedings. It also highlights the distinction in the manner cultural evidence is considered on the basis of common and continental law. The author assumes that modern society is a multicultural society. It is a society in which role models and patterns of conduct are only created within the contact and conflict of different cultures. Solutions proposed in the article refer to the cases based on the cultural defense, where the culture is treated as a factor determining the actions of individuals. Cultural evidence has to be – in the authors’ opinion – a mean to demonstrate the clearance of the individual to take action subjected to the proceeding. Hence, the author outlines the procedure in case of the necessity of conducting such evidence.

Obiektywność w prawie – podejście instytucjonalne jako alternatywa dla dominujących stanowisk teoretycznych

Author(s): Maciej Pichlak / Language(s): Polish Issue: 2/2014

The aim of the paper is to establish a theoretical elaboration of objectivity in law which would conform exiting linguistic practices in the legal field. It starts from a brief characterization of legal practice in this respect which allows for an exposure of semantic complexity of the term ‘objectivity’ in law. The term is said to take two basic meanings: objectivity as a fact and objectivity as a moral ideal. On this ground requirements towards a reliable theory of legal objectivity are defined: such a theory should not only make o room for both distinct meanings of legal objectivity, but also should consider their mutual relations. These requirements stemming from existing linguistic practice serve as criteria for examination of up to date theoretical concepts of objectivity. The paper discusses realistic, conventionalist, and idealistic theories of objectivity in law subsequently and exposes shortcomings of each of these. Eventually, key assumptions of an institutional theory of objectivity are presented which is claimed to offer a plausible understanding of objectivity in law in both its factual and ideal aspects.

Czy amerykańska jurysprudencja posiada reguły interpretacji Konstytucji?

Author(s): Anna Tomza / Language(s): Polish Issue: 2/2014

The most discussed issue in the theory of law is the problem of its interpretation, and main question in this topic is – how to make a proper interpretation? The American common-law, opposite the European theory of law, seems not to have general rules of interpretation, but only the idea of proper interpretation. Also the methodology of statutory interpretation is some kind of the judge-made law. As Henry M. Hart said „The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation”. According to this, currently the question focuses on finding the generally rules of interpretation, which should be some kind of canons of the statutory interpretation. This article tries to give the answer to the question: „if American jurisprudence has any rules of interpretation of law?”.