"Uvjerenje i ustav": Napomene o jednome ne samo hegelovskom problemu

Author(s): Ludwig Siep / Language(s): Croatian Issue: 04/1988

The central problem of Hegel’s philosophy of law is how to unite the convictions of different individuals into the common will permanently directed towards achieving the common good. Hegel finds the solution in relating convictions to social roles. This pluralism of roles is reconciled with the loyalty to the constitution through a free development of group behaviour and the institutional linkage of private, group and common interests on all the levels of social organization. It was difficult for Hegel to anticipate that the private views could be mediated through common will owing to political organizations.

Nestanak makroetike

Author(s): Ivan Pađen / Language(s): Croatian Issue: 02/1988

The modern notion that morality is a set of norms or values addressed to strictly interpersonal relations is a result of seemingly unrelated changes which have taken place in philosophy, sociology and legal thought. The first is the displacement of the classical ethical paradigm by the modern one. According to the classical paradigm, one has not only duties to others but also the duty of self-perfection, which is, in the final analysis, the obligation to develop oneself to the potential benefit of the widest possible community. The new paradigm withdraws morality from the area of self-regarding acts, thus excluding relations between unspecified individuals and, a fortiori, between social groups from the scope of morality. The second change was introduced by Kant’s idea that law and morality are two distinct ways of being bound to do one’s duty, namely, from outside and from within. The underlying assumption of this distinction is that an action can be dissociated from its incentives, which can be external and/or internal, and that one can study one kind of incentives — notably law — independently of the other. The third change is the nineteenth century distinction between society and community. Society was conceived of as being constituted by modern secular law, whereas community was seen us being constituted by conventional morality. The fourth change as the positivisation of jusnaturalist doctrines in modern constitutions and civil codes. Since doctrines of natural law were no longer needed as a critical instance outside positive law, they faded away. The immediate result of these changes is, as noted above, the notion that morality is concerned with strictly interpersonal relations. A further consequence is the tenet of legal positivism that law can be defined independently of. i.e. separated from, morality. The ultimate consequence is the disappearance of the foundation of legal thought.

Krótka historia brytyjskiej Krytycznej Konferencji Prawniczej albo o odpowiedzialności krytyka

Author(s): Costas Douzinas / Language(s): Polish Issue: 1/2014

General jurisprudence is a type of thinking about law and the social bond developed by British critical legal scholars. Returning to the classical concerns of (legal) philosophy, it examines the legal aspects of social reproduction both inside and outside state law, treating posited law as a part of wider legality. It brings back to the centre the aesthetic, ethical and material aspects of legality, as well as includes the political economy of law, the legal constructions of subjectivity and the ways in which gender, race or sexuality create forms of identity both disciplining bodies and offering sites of resistance. The British Critical Legal Conference (CLC) is a school of thought committed to a plurality of theoretical approaches to law and to radical politics. The first CLC took place in 1985 and has taken place annually without interruption since. The CLC has introduced a number of themes, approaches and strategies unknown or dismissed by mainstream scholarship, including semiotics, rhetoric, literature, aesthetics and psychoanalysis. A variety of critical schools, such as postmodernism, phenomenology, postcolonialism, critical race, feminism, queer theory, art theory and history, the ethics of otherness, the ontology of plural singularity, the critique of biopolitics and post–politics have been pioneered in the CLC.

W okowach prawniczego sensus communis. O trudnościach uprawiania krytycznie zorientowanej socjologii prawa

Author(s): Hanna Dębska / Language(s): Polish Issue: 1/2014

The Polish sociology of law is unfamiliar with the critical sociology of law as proposedby P. Bourdieu – one of the most acclaimed contemporary sociologists. Therefore the mainaim of the paper is to indicate the causes of this neglection. The text also points out waysin which Bourdieu’s approach can assist in describing and explaining the social functioningof the legal universe. There are several reasons for the lack of reception of Bourdieu’stheory. The lack of critical debates in the field of law is caused by the assumptions of thetheory. Its main goal is to uncover the mechanisms of domination. Bourdieu’s project givesan opportunity not only to disclose the mechanisms by which the law preserves existingsocial relations, but also to discredit its universality by showing that it favours dominantgroups and agents. As such, Bourdieu’s theory threatens the foundations of the field oflaw. Another reason for this negligence among the Polish sociologists of law is structuralin nature. Firstly, the problem lies in the location of the field of law in the field of power.Secondly, in a specific position that sociology of law holds at faculties of law: academicswho are working on that field are mostly lawyers entangled in legal thinking schemata (legaldoxa), legal sensus communis which is considered as indisputable in the field of law.

1st International Workshop on Law and Ideology, Wrocław, 29-30.05.2014 r.

Author(s): Wojciech Zomerski,Wojciech Kauczor / Language(s): Polish Issue: 1/2014

The principle of equality as a fundamental norm in law and political philosophy, Łódź, 29–30.09.2014 r.

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

Konflikt između prava i pravednosti u modernoj, pravnoj i državnoj filozofiji

Author(s): Norbert Leser / Language(s): Croatian Issue: 04/1973

Čini se da nije potreban opširan dokaz da je sukob između prava i pravednosti legitimna i omiljena tema kako pravne tako i državne filozofije, te gotovo i ne postoji publikacija na ovom stručnom području koja se ne bi bavila tom temom i koja ne bi bila uvučena u krug njezine problematike.

Država i društvo u Hegela i Lenjina (Filozofija prava i Država i revolucija)

Author(s): Adolf Bibič / Language(s): Croatian Issue: 02/1971

Razmjerno je lako raspravljati o odnosu između Hegelovih i Marxovih pogleda na državu i društvo. Marx je bio u neposrednom odnosu s Hegelovom politikom filozofijom jer je u svojoj Kritici 1843. za predmet rasprave uzeo najznačajnije Hegelovo političko-filozofsko djelo, njegovu Filozofiju prava. O Marxovu odnosu prema Hegelovoj političkoj misli možemo dakle zaključivati ne samo sa stajališta njegove opće političke teorije, već i iz njegovih vlastitih ocjena metodologijskih ishodišta i konkretnih rješenja Hegelove filozofije države.

Što je moderno društvo? (Pokušaj ontologijskog određenja)

Author(s): Karl Heinz Volkmann-Schluck / Language(s): Croatian Issue: 02/1970

Pitanje: što je moderno društvo? neposredno se tiče čovjeka. Društvo je mjerodavno za suvremeni bitak čovjeka, tj. ono daje mjeru kojom mjerimo tko smo i kakvi smo kao ljudi i kakvima nam valja biti. No što je društvo, to mjerodavno?

Sistem pravosuđa u građanskom društvu - Prilog studiju Hegelove Filozofije prava

Author(s): Zvonko Posavec / Language(s): Croatian Issue: 03/1969

The author researches the system of jurisdiction in the bourgeois society in consideration of free will as a foundation of the whole philosophy of law. Analysis shows that Hegel: a) the whole sphere of jurisdiction problematized inside of the system of necessities, by what the undoubtedly opened space for Marx’s thematism of law. The whole system of jurisdiction has its own dignity only in relation to the system of special interests in which the fundamental aspect of the production of the bourgeois society develops. Marx's claim for the abrogation of private property and also the whole system of jurisdiction presupposes the possibility of the complete rationalization of the material production: b) the space of freedom which opens in reflexion, by the immanence of reflexion itself, leads to the complenon of freedom by existing. Therefore the constitutive moment of freedom becomes the whole bourgeois society. Marx’s claim for the abrogation of philosophy means realization of philosophy, i. e. freedom in the directness of »material production«. The author interprets these moments trying to turn round freedom out of metaphysical sphere of necessity.

Filozofija i zbilja u Hegela

Author(s): Zvonko Posavec / Language(s): Croatian Issue: 04/1968

In der Behandlung des Themes: Philosophie und Wirklichkeit — keit bei Hegel — versucht der Verfasser die naiven Begriffe von Philosopie als einfaches Mittel zur Verbesserung des menschlichen Lebens, mit dem jedermann nach Belieben manipulieren kann, zu beseitigen. Die Disposition, in der sich die Philosophie entwickelt, ist für die Wirklichkeit selbst entscheidend, ohne dass wir irgendwelche natürliche Beziehuno zu ihr hätten.

Razumijevanje prava i bioetike prema filozofiji prava Ronalda Dworkina - pojmovi, značaj i domašaj

Author(s): Dželaludin Hodžić / Language(s): Bosnian Issue: 8/2019

Law and bioethics are important social phenomena. While Law, on the one hand, represents traditional social science, bioethics, on the other hand, is a relatively new scientific discipline. What characterizes both Law and Bioethics is a social practice that is considered and interdisciplinarity in the approach to the concepts, challenges and processes that social practice imposes. The paper seeks interdisciplinarity of Law and Bioethics and the importance of their mutual relationship fromfrom the perspective of Ronald Dworkin′s Philosophy of Law, one of the most important contemporary legal philosophers.The paper deals with the basic concepts, the significance and the comprehension of such an opinion on the understanding of law and bioethics, that is, the intersections in which they are inevitable.

Nema revolucije bez reformacije. Hegelovo poimanje odnosa države i religije

Author(s): Stanko Vlaški / Language(s): Croatian Issue: 04/152/2018

Hegel’s words from the Encyclopedia of the Philosophical Sciences, that a revolution is not possible without a reformation, can be understood as the general warning that the change within the inner world of beliefs of individual and community must precede every radical political change. Historically more precise, these words point to the Reformed Christianity as the inherent impetus to the modern revolutionary movements. The religious liberation of conscience preceded the political liberation, and Hegel, therefore, points out Protestantism as the highest form of religiosity which is possible in the modern ethical life. On the other hand, Hegel favours Protestantism not only because he is convinced that the religious reformation preceded and must precede the revolution, but also because he considers that with Protestantism becomes evident that the reformation of religion remains incomplete and abstract if it does not grow into the political upheaval. Considering the way Hegel is problematizing the nature of the relationship between state and religion, the author concludes: there can be no revolution without a reformation, but neither a true reformation without a revolution.

Integracija države in družbe v Hegelovi "Rechtsphilosophie"

Author(s): Adolf Bibič / Language(s): Slovenian Issue: 03/1966

Under the above mentioned title the author considers the problems of relations between particular and universal in Hegel’s »Philosophy of Law». This question has been specially expressed in the Hegel’s political philosophy as a relation between »bourgeois society« and »political state«. Clear differentiation of these two categories is an extra important happening in the history of political thought, and at the same time, it is a degree in Hegel’s political-philosophical analysis which has to lead to the synthesis of particular and universal relation, to the integration of the bourgeois society and political state.

O sposobach pojmowania twórczego charakteru interpretacji

Author(s): Olgierd Bogucki / Language(s): Polish Issue: 1/2013

The purpose of this paper is to analyse the notion of creative interpretation (of any text, especially creative interpretation of a legal text). The author points out that there are two different meanings of the expression “creative interpretation”. The first one can be called “ontological” and the second one – “methodological”. A given interpretation is ontologically creative when it creates a new object (which is a new meaning of some sort) and it is methodologically creative when it is established without applying any rules. Different theoretic approaches to legal interpretation presuppose different relations between ontological creativeness and methodological creativeness. The article explores some of them. The main thesis of the article is that when we say that a given interpretation is ontologically creative, we do not need to say it is methodologically creative (and vice versa).

System uzasadnienia teorii sprawiedliwości Johna Rawlsa

Author(s): Wojciech Ciszewski / Language(s): Polish Issue: 1/2013

The paper considers a fundamental issue set against the backcloth of John Rawls’s theory of justice, namely the structure of its justification system. The issue is so significant, because justification fulfills a key role in the Rawlsian conception. J. Rawls offers a sophisticated system consisting of different arguments aimed at reaching full justification. In the author’s opinion, there are five elements that relate to each other: 1) original position with the idea of the veil of ignorance, 2) reflective equilibrium, 3) public reason, 4) overlapping consensus, and 5) fundamental constructivist ideas. The five above mentioned arguments seem to be based on four different argumentative strategies: 1) a coherentist strategy – referring to the general and internal coherence of the system; 2) a contractualist strategy – based on the notion of social contract; 3) a pragmatic strategy – referring to the connection with effective social practices; and 4) a constructivist strategy which is founded in the particular view of reasonableness. The justification system evolves from A Theory of Justice to Political Liberalism. However, though the system develops, it is always aimed at the same goal – to gather our considered beliefs and facts about a modern society into a coherent set of judgments which may claim to be valid.

Czy pojęcie prawa jest pojęciem z istoty spornym?

Author(s): Adam Dyrda / Language(s): Polish Issue: 1/2013

Some legal thinkers (R. Dworkin amongst them) suppose that the concept of law is an essentially contested concept. This article firstly introduces the idea of essentially contested concepts, developed by W.B. Gallie. Secondly, it is argued that the concept of law cannot be perceived as an essentially contested concept, though some related concepts (such as “the rule of law”, according to J. Waldron’s analysis) can. Finally, I propose some arguments, in which I partly follow K. Ehrenberg’s recent analysis, showing that in Dworkinean terms, calling law an essentially contested concept may raise doubts and controversy.

Aitia – wina arystotelesowska. Zagadnienia definicyjne. Część II

Author(s): Waldemar Gontarski / Language(s): Polish Issue: 1/2013

When engaging in polemics with Pythagoras, Aristotle observed that the retributive function of punishment, as distinguished from the preventative one, does not involve revenge understood as material retaliation (i.e. suffering for suffering, meaning retaliation proportional to the damage suffered). It does not encompass a simple reciprocity, such as suffering in turn (ἀντιπάσχω), but instead shall be considered as a just reciprocity, meaning doing in return (ἀντιποιέω), whereby the degree of mental contribution is taken into account. The classical theory of responsibility, at least under the meaning assigned to it by Aristotle, considers human responsibility by means of reference to mental capabilities of the actor in respect to a particular harmful action. An action involving human guilt is consequently contrasted with an accidentally caused action. In the works of Stagirite the mental attitude of the actor towards his action distinguishes human causation from the accidental one and from the forced one. Pythagoras, on the other hand, discussed material retaliation, meaning objective responsibility. At the same time, the author of Nicomachean Ethics had already experienced the system of subjective responsibility based on the concept of knowingly caused damage as opposed to the system of objective responsibility involving the objective causal relationship between the actor’s behavior and the resulting damage). Aristotle has extended the concept of subjective responsibility to cover both knowingly caused damage (intentional fault) and unintentional fault, whereby the damage is directly caused by the negligent conduct of the actor, meaning the failure of the latter to observe required objective and abstract standards. The mental component and the related subjectivization involve the actor possessing required intellectual capabilities, but not using them in a way as to observe the aforementioned imposed standards. Nonetheless, the potential mental component is itself not sufficient to establish guilt. Otherwise, all the people (apart from those lacking capacity at all) shall be declared guilty regardless of the fact that the damage was caused by them accidentally.

O trzech granicach władzy prawniczej

Author(s): Paweł Jabłoński,Przemysław Kaczmarek / Language(s): Polish Issue: 1/2013

According to the initially assumed concept of limitations of lawyers’ power the most important elements of those limitations are: legal text, legal culture, and ethics. This structure is characterized by the relations where the anterior element defines the framework of the latter, i. e. text affects legal culture and ethics, while legal culture affects ethics. However, exceptions apply where the latter element might lead to the collapse of the framework of the primary factor (for instance, interpretation contra legem based on axiological argumentation). The aforementioned structure of limitations of legal power is complemented by interaction of various other elements, such as social expectations, political entanglement (depending on the extent to which it is not consumed by ethics) and non-judicial expertise.

O lukach w prawie rzadko spotykanych słów kilka

Author(s): Maciej Koszowski / Language(s): Polish Issue: 1/2013

The article addresses the issue of legal gaps (lacunas). Specifically, the author puts forward the general definition of legal gap which uses the concept of ‘automatically applicable’ legal rule as well as presupposes specific understanding of law – namely, that it is consisted solely of the rules of the mentioned type. Next, basing upon that definition, he defines three kinds of lacunas that are commonly distinguished in Polish and international scholarly literature, i.e. extra, intra and contra legem. As it is demonstrated, the merits of proffered definitions are manifold. First of all, they reduce the dependence of the notion of legal gap on value judgment. Secondly, they fairly well fit into the structure of contemporary legal orders. Thirdly, owing to them, the filling of legal gaps is not pointless. And lastly, the other kinds of lacunas one may encounter in academic literature are not at odds with the proffered theory, at least not by definition. At the end of the article, in the light of the main idea of the author’s conception, the Anglo -Saxon notion of the case of first impression is discussed, taking into account different models of (approaches to) the phenomenon of a binding judicial precedent.