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Problematika legitimnog i zbiljskog važenja normi u teoriji Jürgena Habermasa

Author(s): Mensur Kustura,Lana Šabani / Language(s): Bosnian Issue: 01+02/2013

The text titled Problemacy of legitimate and actual validity of the norms in Jürgen Habermas theory deals with the question of how the complex problems of relations of deliberative democracy and procedural manners of adoption and realization of norms are discussed in the frameworks of normative legitimacy. Jürgen Habermas discusses this problemacy by referring to the functional relationship between the control of political power and the aspects of institutional legitimacy. Results of the reconstruction of the discursive argumentation while discussing the problemacy of adoption and realization of norms will be included in two aspects, primarily through an attempt to develop a critical evaluation of the (re)production of norms through the paradigm of discursive communication. Then, the functional and explicative frames of the origin and seizure of normative legitimacy that originates as the consensus for common interest will be correlated with the institutional structure of political subsystem of modern society.

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Ekonomiczno-prawno-społeczne aspekty zdobywania przestrzeni kosmicznej

Author(s): Olga Pilawka,Weronika Krawczyk,Wojciech Błachowicz-Chabrowski / Language(s): Polish Issue: 5/2011

Conquest of the universe give us many profits, in wide aspects, not only in scientifical or technological parts, but also economic and sociable, and another. Starting of inventions who created by development this part of life, without this in this time functioning societies would be – if not impossible – very limited. For example telecomunications sattelite, finishing at items who we used at home like cordless tools. Very interested aspects of exploration the universe are human behaviors. It is worthwhile paying attention at aspirations to realization dreams through the ones by unit, and using this desires to the own goals, mainly by the third person for the earnings, which the best of showing this is so called „The practice of the trade” yards onto the another planets. We know also positive sides of human actions in this fields like space tourist, which would be in the future to fulfill eternal dreams of the human masses, on the cheap space trips. But in our solar space are also a positive aspects. We can search that in another planets. One of those is Mars. Colonizations this area would be very interesting project, mainly because for some resemblances between our Earth and Red Planet. With those attempt, conquest the universe they can be connected some economical profits.

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M.A. Krąpca filozoficzna koncepcja prawa

Author(s): Tomasz Ćwiertniak / Language(s): Polish Issue: 30/2019

RESEARCH OBJECTIVE: Presentation of the philosophical foundations of the understanding of law based on M.A. Krąpiec’s theory of the human person. THE RESEARCH PROBLEM AND METHODS: Contemporarily there is a noticeable deficit of reflections about the philosophical grounds of law. To overcome this deficit, it is necessary to rely the research on the results of basic philosophical disciplines: metaphysics and philosophical anthropology. In this article author presents, using systemic analysis and synthesis (with elements of literary research), philosophical theory of law formulated by M.A. Krąpiec, a continuator of the philosophical tradition of Aristotle and Thomas Aquinas. THE PROCESS OF ARGUMENTATION: The philosophical concept of the common good understood personalistically, i.e. as the common purpose of all human persons, is key to the conception presented in the article. This common good consists in the actualization of man’s personal potential, i.e. the intellectual, volitional, and creative development of every human being. According to this view, the assignment of individual human persons to the common good constitutes the basis for understanding law as an interpersonal relation characterized by the obligation to act (or not to act) on account of this assignment. RESEARCH RESULTS: Natural law, with its principal command of “do good, avoid evil,” is given as the highest rule of human action and the grounds for the “bindingness” (validity) of positive law. A command of positive law that is contradictory to natural law (and thus contradictory to the good of human persons) ceases to be binding. CONCLUSIONS, RECOMMENDATIONS, AND INNOVATIONS: The philosophical conception of M.A. Krąpiec presented in this article emphasizes the connection between the legal order and the good of the human person. It simultaneously indicates the foundations and limits of the “bindingness” (validity) of positive law. From this perspective, Krąpiec’s conception may help overcome the aforementioned deficit in the philosophical grounds for the “bindingness” of law and protect legislation from arbitrariness.

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Kant and Revolution

Author(s): Rafał Wonicki / Language(s): English Issue: 75/2023

Based on Kant’s political thought, this article deals with the relationship between a ruler’s power and freedom, law and morality. The assumed external freedom is to be guaranteed to individuals by a valid political authority (sovereign); however, the authorities do not have to obey the law, which means that the freedom of citizens is threatened. Thus, a tension appears between the freedom of the individual and obedience to an unjust law. From an authority’s perspective, peace is more important than moral development, and from a moral perspective, the rule of law is less important than ethical perfection. This leads to the question of whether revolutionary changes to the system can be justified on the basis of Kant’s assumptions, as some liberal interpretations of Kant’s thought propose. In this article, I argue that although the revolutionary moment is possible within Kant’s political philosophy, it is in a different place than most liberal authors point out and has no link to the common understanding of revolution.

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Friedrich von Hayek i kapitalizm nadzoru

Author(s): Beata Polanowska-Sygulska / Language(s): Polish Issue: 4/2022

The topic of the article is the confrontation of the vision of surveillance capitalism, as outlined by Shoshana Zuboff in 2019, with Friedrich von Hayek’s neoliberal doctrine. The main research goal is to answer the questions whether Hayek has been rightly accused by Zuboff as being responsible for the rise of this threatening form of capitalism and for his alleged hostility to democracy. Similar objections against Hayek have also been raised by Andrzej Szahaj. The juxtaposition of the characteristics of surveillance capitalism with the analysis of some selected threads, inherent in Hayek’s socio-economic conception, leads to the conclusion that Zuboff’s and Szahaj’s critical arguments do not seem thoroughly justified.

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Retoryka i dyskurs sędziowski – o relacji koncesywności w uzasadnieniach wyroków

Author(s): Magdalena Szczyrbak / Language(s): Polish Issue: 1/2023

The paper focuses on the rhetorical and performative aspects of judicial discourse, highlighting in particular the generic properties of judgments and the dialogic nature of legal justification. Using the tripartite model of concession (Couper-Kuhlen and Thompson; Barth-Weingarten) designed for the analysis of spoken interaction, it demonstrates that legal justification exhibits features of dialogic discourse – including the presence of anticipatory rebuttal (anteoccupatio) and acknowledgment (concessio) – and may therefore be interpreted as a “mute dialogue” with the evoked adversary.

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Rejoinder to Dominiak on the necessity of easements

Author(s): Walter E. Block / Language(s): English Issue: 1/2021

Dominiak (2019) agrees with the Blockian proviso: homesteading in a bagel or donut format is illicit, since it allows the owner to control land (the hole, the territory in the middle) with which he has not mixed his labor. Thus, a person who does so must open up an easement allowing outside home-steaders through his property, and into this so-far virgin land. But, this author claims this proviso of Block’s does not go far enough. It should also be extended further, not only to incorporate the bagel format, but also in justiﬁcation of easements through private property in emergencies, and so as to avoid entrapment. I strongly support Dominiak in his defense of the Blockian proviso against critics (Kinsella, 2007, 2009C) in the ﬁrst part of his excellent paper, but ﬁnd I cannot agree with this second contention of his. In short, Dominiak agrees with Block regarding easements in the bagel case, but wants to extend this concept to when property owners are encircled, and thus trapped. In my view, extending easements to cases other than the bagel is incompatible with libertarianism’s emphasis on the sanctity of private property rights. Certain positive rights (to, in this case, movement) are essential to Dominiak’s argument. And these rights do not exist. Therefore, Dominiak’s argument is unsound.

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Libertarian easements revisited

Author(s): Łukasz M. Dominiak / Language(s): English Issue: 1/2021

In the present paper, I develop further my original argument for extending the Blockian Proviso to landlocked property. I use Walter Block’s newest rejoinder as an opportunity to generalize my case for necessity easements. I argue that in order to attenuate various conﬂicts of rights, libertarianism should interpret its thesis that property rights are absolute in a less demanding way.

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Jak powstają normy w demokracji

Author(s): JEAN-CLAUDE KAUFMANN / Language(s): Polish Issue: 1/2022

Wolności oferowane w społeczeństwach indywidualistyczno-demokratycznych cechuje wewnętrzna dwuznaczność: są one zarówno prawdziwe, jak i (częściowo) iluzoryczne. Mają one swoje źródło w świecie wyobrażeń, który, głosząc je, wymusza rzeczywistość, ale ta ostatnia nigdy nie osiąga pełni czystości głoszonych zasad. Poprzez dyskretne, przewrotne mechanizmy nowe ograniczenia wolności są wręcz masowo wprowadzane, co prowadzi do pozornego paradoksu produkcji norm, która przybiera znacznie większe rozmiary niż w starożytnych społeczeństwach. Nie ma w tym nic zaskakującego. Autonomia jednostki właściwa społeczeństwom demokratycznym z konieczności wywołuje społeczną aktywność, polegającą na wytwarzaniu różnych norm i regulacji, nieskończenie bardziej wzmożoną niż w społeczeństwie, w którym instytucje realizują swój ustalony program i kształtują jednostki zgodnie z nim. Wolność w społeczeństwach indywidualistyczno-demokratycznych jest iluzją, ale iluzją, która kreuje rzeczywistość. Jednostka, mniej wolna niż to sobie wyobraża, znajduje się jednak w centrum szeregu wyborów, który—przynajmniej teoretycznie—stale się rozszerza.

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Kontrola konstytucyjności w polskim prawie – między systemem common law a systemem kontynentalnym

Author(s): Michał Koniecko / Language(s): Polish Issue: 2/2022

In the doctrine of Polish constitutional law and in the jurisprudence, there has been a dispute for many years as to whether common and administrative courts are entitled to examine, in the course of adjudication, the compliance of regulations with the Constitution. A negative answer to this question would lead to the conclusion that the only body authorised to do so is the Constitutional Tribunal. This issue is connected to the system of state bodies, their systemic position and the competencies ascribed to them. Furthermore, the adoption of the view that the judiciary is authorised to control the normative compliance of acts of a lower order, would result in a more frequent application of that act in practice, which would undoubtedly correspond to the principle of supremacy and direct applicability of the Constitution. The Constitution would thus be applied not only in the relations between the organs of public authority and the organs and citizens, but also in the horizontal relations, between the subjects of private law. The aim of this paper was to analyse and systematise the presented views concerning the admissibility of the application of diffused control in Polish law, and to answer the question, which of the positions should be upheld. For this purpose it has become necessary to explain such notions as the constitution, compliance with the constitution, as well as to present the characteristics of different types and models of constitutionality control.

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O konieczności stałego ustalania pojęć w naukach administracyjnych

Author(s): Roman SOWIŃSKI / Language(s): Polish Issue: 334/2022

Concepts in administrative studies, and more broadly in legal sciences, should be constantly revised. Maintaining outdated concepts detached from reality hampers progress and modernization of the institution of administrative law, especially economic administrative law. On the other hand, defining legal categories according to what is, and not what should be, leads to the deformation and demoralization of concepts detached from the guiding principles and values of law. Globalization requires those creating legal concepts to refer to the achievements of other cultures; distant — like Eastern cultures — and forgotten or overlooked — like the Judaic culture. It is necessary to overcome cognitive and perceptual-mental barriers. When creating the philosophy of administrative law, it is important to refer to the achievements of Emmanuel Lévinas.

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TACTICA AUDIERII MARTORILOR UNEI INFRACȚIUNI

Author(s): Cristiana Fumureanu / Language(s): English,Romanian Issue: 4/2021

The tactic of hearing witnesses involves establishing the facts and circumstances that must be clarified based on the statements obtained, selecting the people who will be heard as witnesses and establishing their relationships with the parties in the file. The hearing of the witness goes through three main stages governed by both criminal procedural rules and tactical rules: the witness identification stage, the free narration stage and the interrogation, and the assessment of the statement is done by referring to the entire evidentiary material administered.

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CONCEPTS AND TYPES OF INDEPENDENCE OF A JUDGE ACCORDING TO THE LEGISLATION OF UKRAINE

Author(s): Nataliia L. SAVYTSKA / Language(s): English Issue: 2/2022

The purpose of the article is to characterize the essence of the independence of judges as a key principle of judicial proceedings, as well as to distinguish types of independence. The article uses a complex of general legal and special legal methods, including analysis and synthesis, generalization, formal legal, logical, dogmatic, etc. It is emphasized that the importance of legal principles (fundamentals) as one of the most important sources of law is well recognized and emphasized in legal theory. Nevertheless, the concept of legal principle is still controversial and not clear to many. It has been established that various perceptions of the term “principle” refer to its various essential manifestations. Thus, this concept can be interpreted through a professional lens, namely considering the profession of the person who interprets the term: scientist (doctrinal use), judge (jurisprudential use) and legislator (legislative use). Lawyers use the expression “principle” in different contexts: as an element of discipline (principles of private rights), as a value (principle of correctness), as a tool (principle of contradiction), but above all as an abstract rule applicable to certain concrete cases. The article defines the features of the legal framework. Namely: normativity (fixed in normative legal acts), regulatory character (legal basis for the emergence of one or another type of legal regulation and to a large extent determine this due to its normative character) and objective conditionality (correspondence to the essence of social relations, economic, political, and ideological processes taking place in society). It has been proven that independence is the main principle and value of the judicial system, as well as a measure of its effectiveness. The function of independence derives from the distribution of power between the branches of the state to protect citizens in disputes with the state. However, the emphasis on independence also stems from the rationale for the existence of the judiciary to fairly resolve any disputes in a predominantly confrontational environment. It is proposed to distinguish two types of independence of courts: external independence (independence from other branches of government, officials and officials, independence from political forces and the judge’s beliefs) and internal independence (independence from conflicts of interest, independence from the head of the court and other influential judges, employees of the court apparatus).

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Svjedočanstvo i istina

Author(s): Giorgio Agamben / Language(s): Croatian Issue: 1-2/2023

Što znači svjedočiti za jezik? Jezik o kojem je riječ u svjedočenju čini se jezikom koji ne kazuje ništa, koji zapravo nema što kazati. Ali upravo tu svjedočanstvo odlučuje, odvaja se od bilo kojeg drugog iskustva jezika. Ništost je zapravo konačna granica do koje dospijeva filozofija koja ne prelazi u svjedočanstvo. Ništost je iskustvo da postoji jezik, ali da svijet ne postoji. Ništost je ime jezika bez svijeta. To znači, kao što je Leonardo naslutio, pišući da se »onaj koji ništa nije kazao nalazi samo u vremenu i u riječima«, da je iskustvo ništosti još uvijek iskustvo jezika, da ono ne dovodi u pitanje njegov primat. Označava prag, jedino s onu stranu kojeg može započeti svjedočenje. Tko boravi na ovom pragu, tko se zadržava na mjestu ništosti, ne može svjedočiti za jezik.

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Tko svjedoči za svjedoka?

Author(s): Gert-Jan van der Heiden / Language(s): Croatian Issue: 1-2/2023

Književnost se može čitati na drugačije načine i s drugačijim razlozima. U svom eseju Demeure, gdje se bavio intrigantnom kratkom pričom Mauricea Blanchota, L’instant se ma mort, Derrida kaže da je taj književni tekst moguće čitati, kao što bi recimo povjesničari mogli, kao arhiv ili dokument, a također ga je moguće čitati kao simptom ili književno djelo. A ipak ovo nabrajanje započinje s mogućnošću da se to književno djelo pročitalo »comme une témoignage dit sérieux et authentique«. Ovaj drugi način čitanja, na koji ukazuju početne riječi Derridina Demeure, zacrtava smjer Derridinog razmatranja: »Fiction et témoignage«.

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Science of law in search of a contemporary decalogue, Ion Craiovan

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Science of law in search of a contemporary decalogue, Ion Craiovan

Author(s): Mihai Bădescu / Language(s): Romanian Issue: 04/2023

Review of: Ion Craiovan, Science of law in search of a contemporary decalogue, Independent Publisher (Amazon, U.S.A., 2023), 134 pgs.

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O culegere românească de studii asupra Principiilor filosofiei dreptului de Hegel

Author(s): Dragoș Popescu / Language(s): Romanian,Moldavian Issue: 1/2022

Review of: Emanuel Copilaș (coordonator), Aventurile posibilului. Două secole de filosofie politică hegeliană, Editura Universității Alexandru Ioan Cuza din Iași, 2021, 338p. (ISBN 978-606-714-625-7)

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A bűnösség heideggeri fogalma

Author(s): Tamás Beck / Language(s): Hungarian Issue: 06/2024

In this thesis I intend to elaborate on Heidegger’s concept of guilt; doing so by breaking away from the common idea of guilt. Moreover I will attempt to map out how Heidegger employs the concept. This task is inherently difficult, and requires a complex comprehension of the particular interpretation of said concept. Having established that, I will also demonstrate Heidegger’s adaptation of certain everyday phrases to use them as existential terms. Following some reflection on the history of philosophy, I will examine the peculiar structure of existence attributed to man by Heidegger. I believe it’s important to emphasize that the present-at-hand being isn’t self-created; this would suggest that it’s an imaginary, half God-half animal creature. Furthermore, the present-at-hand being’s nothingness manifests itself in its finiteness, the inherent temporality of it. Consciousness, authenticity, and nothingness might just be mere tools of understanding our own inherent sinfulness. This idea rather arises from the structure of the present-at-hand being than being the result of the individual’s own choice. Obviously, this fact does not imply a reduced moral responsibility for the individual’s actions. My thesis is based on a text by one of the greatest Hungarian interpreters of Heidegger, at which, however, I must be looking in a strictly critical manner.

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QU’EST-CE QU’AVOIR DROIT ? CONSIDERATIONS PHILOSOPHIQUES ET PORTEE ETHIQUE DU DROIT

Author(s): Adèhè Essossimna Pokore / Language(s): French Issue: 2/2024

What does it Mean to be Entitled? Philosophical Considerations and Ethical Scope of Law. It seems justified to affirm, on the basis of the spirit of the first article of the universal declaration of human rights of 1789, that man is, by nature, a being of law, that is- that is to say that he naturally enjoys different rights apart from all racial, political, ethnic, religious considerations, and among others. These include, for example, the rights to life, health, security, expression, leisure, property, freedom of choice, debt, etc. They are called subjective rights. Therefore, the notion of “having rights” appears to be clear, clear and understandable without any ambiguity. It is obvious that man, thanks to his nature, has rights, which are inalienable, and capable of being easily mobilized by him.However, in society, the mobilization of all rights by individuals, regardless of their legitimacy, is not automatic or de facto guaranteed. In practice, it happens that the individual is not able to easily mobilize and enjoy all the different rights. For example, of course, the right to smoke is recognized for all adults, but smoking is not permitted in all public spaces, except those designed for this purpose. In fact, smoking in all public spaces is not a de facto recognized right. The individual therefore does not have the possibility of enjoying it without limit. Hence the following legitimate question: what does “being entitled” mean? In other words, what does it mean that man, by living in society, has rights? What then can be the philosophical considerations of the notion “to have a right”? Can the law have an ethical impact on society? If yes, what is its meaning? To answer these different questions, let it be permitted to affirm that “having any rights” presupposes that individuals are able to mobilize, fully enjoy and be able to claim or even claim these rights without hindrance. However, they can, in reality, only enjoy, claim or claim rights that are effectively recognized by society. It amounts to considering, in fact, that they can only mobilize and really enjoy those defined by society, that is to say objective rights. These then, it seems to us, are the different philosophical considerations of the notion of “having the right”. Here, the task will be to further develop the thesis thus presented from a perspective of the contextual approach.

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O prokonstytucyjnej dyrektywie interpretacyjnej in dubio pro vita humana

Author(s): Wiktor KRZYMOWSKI / Language(s): Polish Issue: 3/2024

The article discusses the interpretative directive in dubio pro vita humana (Latin:„when in doubt, favour human life”), as well as its popularization, including encouragingpublic administration bodies and courts to apply it more widely. The article aims to answerthe following research problems: What are the main sources of the in dubio pro vita humanadirective in the Polish legal system? What is its content and its key assumptions? What arethe potential implications of its application in legal practice? What is the object-related scopeof its application?The formal-dogmatic method is used in the study.The interpretative directive in dubio pro vita humana is rooted in the constitutional protectionof human dignity, life and health. It is confirmed in the views expressed by legal scholars, aswell as in the case law of the Constitutional Tribunal and administrative courts. However,in order to increase the scale of its application in practice, it should be regulated by law.The content of the directive is such that it requires any possible doubts about the protectionof human life to be resolved in favour of this protection. Applying this directive is pivotalfor ensuring institutional healthcare in Poland by choosing such a result of interpretation of provisions of law that maximizes the protection of human life and health. Its object-relatedscope of application is most strongly linked to healthcare law, but it is also applicable to theinterpretation of provisions in other branches of law (for example, in criminal or welfare law),even if prima facie they do not seem directly related to the protection of human health and life.The results are important not only for Polish law, but also for the interpretation of foreign lawsand EU law. It seems that this directive may also find its application outside the legal system– for solving ethical problems. An offshoot of this study is the possibility of referring at leastpart of the comments made to the legal protection of animals, which may contribute to itsstrengthening and to development of legal science in this area (in dubio pro vita animalium).

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