Savigny und die rumänische rechtswissenschaft (I)

Author(s): Tudor Avrigeanu / Language(s): German Issue: 3/2018

The lecture held by Carl Schmitt in February 1943 in Bucharest on the jurists and the formation of the European spirit became widely known since the publication of its German version in 1950 as a pledge for the reconsideration of Friedrich Carl von Savigny’s fight against the legal positivism and for a legal science considered as the true source of law. In spite of the broad reception of Savigny’s work in Central and Eastern Europe since the 19th century the Romanian jurists seemed to Schmitt almost unaware of the importance of this work. The present paper tries to show some light on the contacts between Savigny and the Romanian culture as well as to understand why the reception of the Historical School of Law really did not take place in the Rumanian jurisprudence till the Second World War.

Czy prawnicy posiadają własną etykę? O stosunku etyki zawodowej do etyki ogólnej

Author(s): Waldemar Jagodziński / Language(s): Polish Issue: 3/2019

The aim of the article is to discuss the relationships that occur between ethics in general and professional ethics on the example of selected legal professions (lawyers and legal advisors). The analysis is aimed at answering the question whether the general and professional ethical norms are complementary or substitutive.

Koncepcja intencji dzieła Umberto Eco wobec dominującego w polskiej teorii prawa paradygmatu interpretacyjnego

Author(s): Krzysztof Śledziński / Language(s): Polish Issue: 3/2019

The article presents a conception of the intention of the text, as developed by an Italian philosopher, Umberto Eco, and collates it with the interpretative paradigm in law. Since the conception of the intention of the text is neither complete, nor comprehensive, it has been supplemented with similar stances (Stanley Fish’s paninterpretationism and Roland Barthes’ idea of the death of the author) in order to attain a fairly systematic collection of thoughts that may provide the basis not only for presenting a new approach to interpretation, but also for showing the differences between the described conception and clarificative theory as well as derivative theory. The comparison is conducted in two aspects: firstly, situation of interpretation (i.e. when the interpretation is performed), and secondly – directives of interpretation (i.e. the procedure of interpretation).

Myśl polityczna Polskiego Stronnictwa Ludowego Piast (Marcin Jakub Wichmanowski)

Author(s): Mieczysław Ryba / Language(s): Polish Issue: 4/2019

Marcin Wichmanowski analyzes an important issue in the history of the twentieth-century Polish political thought. “Piast” was one of the main political parties in the Second Republic of Poland, with a strong influence on Poles’ political conscience. It was a party greatly affecting the state policy prior to the May coup and the government in exile during the Second World War. Wichmanowski offers an extensive presentation, based on numerous sources.

Rozwód według procedury talaq w prawie islamu

Author(s): Mirosław Sadowski / Language(s): Polish Issue: 3/2017

The article aims to present the specific nature of divorce in sharia law (the law of Islam, Islamic law – used interchangeably). While reflecting on the subject, the author points out that under this legal system marriage takes the form of a civil contract of sorts, which – as any other contract – may be terminated. Divorce procedures according to Islamic law can take a variety of forms. The dissolution of a marriage can be initiated by one of the parties, a mutual agreement, or a judicial decree. Unlike the legal tradition of the West, the majority of divorces do not involve court proceedings. The article offers an analysis of the Islamic divorce procedure of talaq, i.e. the one-sided termination of a marriage by a husband declaring that he “repudiates” his wife. In the end, the author concludes that sharia divorce sanctions legal inequality between parties, conferring a markedly higher legal status to the man – as does the entire body of Islamic law.

Zasada praworządności wyznacznikiem kontroli działań administracji publicznej realizowanej przez prokuratora w ramach postępowania administracyjnego

Author(s): Beata Kozicka,Ewa Pierzchała / Language(s): Polish Issue: 1(3)/2018

Opus iustitiae PAX – the properly shaped dimension of justice is a guarantee of peaceful – not based on a conflict and violence – relations between citizens and the state. These words fully reflect the leading thought of this study. It is the concern for a good law and a state governed by the rule of law, which lies at the foundation of actions taken within the scope of legal means by the Prosecutor’s Office that – as the “custodian of law” – is entitled to in the sphere of control over administration. Administrative courts execute justice as a separate part of judicial power. Justice and law are conditions for an effective state, good governance and social peace, which have accompanied us for centuries. Administrative courts uphold the principle of equality before the law, which is regulated by Art. 21, par. 1 of the Constitution of the Republic of Poland. Since it is administrative courts which – by performing tasks of control over the activity of public administration – become the guarantee of realization of the above-mentioned principle, their position and range of cognition in the situation of launching administrative-court proceedings by the Prosecutor were presented in the work.

Sportul – izvor real al dreptului obiectiv

Author(s): Septimiu Ioan Puţ / Language(s): Romanian Issue: 1/2019

Athletic activity can not take place outside the law, just like any other human activity. Unlike other social activities, sports movement benefits from a set of specific rules, which are in a relationship of complementarity with the rules of the law.Today, the law is no longer subject only to the action of the traditional configuration factors, but is the product of the conjugated influence of some novel elements that cause normative regulation. These modern configuration factors, such as mentalities, sports, art, cinema, medicine, and so on have an important role in normative regulation.

Aspekty dobra wspólnego w aktywności administracji publicznej

Author(s): Mariusz Krawczyk / Language(s): Polish Issue: 1(3)/2018

The article concerns the issue of common good in the activity of public administration. It is exactly the aspects of this “good” which have a direct influence on the motives behind administrative actions. It turns out that what is “common” can be understood as pertaining to entire society, but also in relation to individual interests. The public administration, although traditionally connected only to the public interest, also implements the good of the individual and this not only indirectly, as it has been noted in the literature of the subject so far, but also independently. Because the common good has its different aspects in the sense that it does not have to mean only values of a strictly general dimension. This may be significant for the definitional purpose to the very administration itself and testifies, at the same time, to the multidimensional nature of contemporary public administration. The considerations are developed with reference to potential relations of public interest and the individual one, in which the most important place is occupied by conflict of these interests.

Intertemporal Issues in Administrative Law and Concept of Retroactivity in Law

Author(s): Andrzej Skoczylas,Jarosław Mikołajewicz / Language(s): English Issue: 1/2012

In essence, this study aims at presenting basic intertemporal problems of administrative law. These problems are extremely complex and, despite a commonly held view on the alleged poorer theoretical issues in the field of administrative law, intertemporal issues in administrative law demonstrate an even greater level of complexity compared with such a well-developed discipline as civil law. This state of affairs stems from the very nature of this branch of law. Presumably, this is why within the field of administrative law we may encounter application of not only all basic descriptive principles of administrative law, but also of those principles that are particular in a certain aspect (e.g. the principle of validity, the principle of lex mitior retro agit). It is equally important to mention that intertemporal decisions are made also in the field of administrative law; the content of these decisions is only partially (if at all) determined by positive law.

Legal Databases and Their Functions in the Process of Interpreting and Applying the Law

Author(s): Tomasz Stawecki,Wiesław Staśkiewicz / Language(s): English Issue: 1/2012

This article deals with the implications of the widespread practice of use of legal databases in Polish judicial practice. Apart from the undeniable positive effects of development of an electronic civilization, the article deals with the negative effects of use of databases. This is because a conflict arises between the possibilities offered by the latest technology in the form of easy access to legal texts, commentaries and thousands of judicial rulings, and the unique historical experience of the judiciary in a former communist country, methods of legal interpretation sustained by legal positivism, and domination by a syllogistic model for application of the law. All results in dysfunction of legal databases. A kind of “hybrid interpretation of law” is formed, which is a combination of a legacy, the effects of transformation of the economy and the system, as well as the new rules of law, on the one hand, and the ideology of bound judicial decision on the other. The nature of the “hybrid interpretation of law” is the infinite scope for citing judicial rulings and commentaries available in the databases without taking a broader theoretical view – without supporting arguments, and so the citing of a ruling has become the basis for adjudication. The question of whether the possibilities that electronic databases offer will cause interpretation of this kind to turn into a new form of legal rhetoric, or whether it will remain merely a means of adaptation of the discretionary power of judges to legal positivism doctrine, and thus the sophism of the period of transformation, remains an open one.

On Legal Theory and Philosophy in Poland and the Polish Section of IVR

Author(s): Tomasz Bekrycht / Language(s): English Issue: 1/2012

GENEZA PODMIOTÓW PRAWA PUBLICZNEGO

Author(s): Krzysztof Chochowski / Language(s): English,Polish Issue: 1/2019

Public law entities currently play an important role in the social and economic life of ourcountry. The activity of local government, professional and business self-governments, as wellas public law entities such as the Polish Red Cross, the Polish Academy of Sciences or theBank Guarantee Fund, significantly contributes to the improvement of the quality of life inPoland. It is difficult to imagine effective state functioning without the existence of this categoryof legal entities. Being independent in their actions, they are at the same time a part of thestate apparatus, whose activity is based on the systemic principle of decentralization and theparticipation of citizens in the exercise of public authority. It can be said that their existenceand conditions of operation constitute a kind of litmus paper test of realizing the idea of ademocratic legal state.This article presents considerations regarding the genesis of public law entities. It presents theviews of the legal doctrine concerning entities governed by public law, starting from the turnof the 18th and 19th centuries, through the 19th centuryand XX century, ending with the contemporarytimes.

Legislative Materials as a Tool for Solving Grammatical Problems in Statutory Interpretation

Author(s): Agnieszka Bielska-Brodziak,Mateusz Zeifert / Language(s): English Issue: 2/2018

The article begins with a presentation of an interpretative tool in the form of materials from the legislative process (legislative materials, legislative history), including arguments offered in the theory of law in favour and against their use for interpretation purposes. These matters are then discussed with references to a specific type of interpretive problems, namely problems that stem from the grammatical constructions of the provisions of the law. The authors analyse five cases in which Polish courts reach for legislative materials in order to resolve doubts caused by sentence syntax, conjunctions or punctuation. The decisions issued vary – in their use of legislative materials courts deploy various other tools and values (e.g. vocabularies, formal logic, the ratio legis behind a provision or the rules of legislative procedure). The outcomes of such a confrontation are varied. Thus, the judgments presented here are a good illustration of the diversity of issues connected with the theoretical and practical aspects of the use of legislative materials in the process of interpreting the law.

Prawo – osoba – śmierć. Część I: Wokół koncepcji Daniela Sperlinga

Author(s): Maksymilian Hau,Stanisław Jędrczak / Language(s): Polish Issue: 2/2018

This article is divided into two parts. In the first part, presented here, we present arguments for the concept of post-mortem interests. Post-mortem interests are understood as events that constitute a detriment or a benefit or to the deceased person, a person who no longer exists. A right is an interest of the person recognized and protected by law. In the second part, which will be published shortly, we examine the possibility of applying and the actual application of the theory of post-mortem interests in the Polish legal system. We address the following issues: medical confidentiality, protection of medical data after the patient’s death, author’s moral rights, protection of the memory of the deceased, the law on orders and decorations, and the legal status of human corpses. The theoretical background for this article was the book by Daniel Sperling Posthumous Interest, in which the author outlined the problem discussed in the perspective of the common law regime.

Konferencja Naukowa „Integracyjna teoria prawa – między praktyką a dogmatyką”, Lublin, 18 grudnia 2017 r.

Author(s): Katarzyna Hanas / Language(s): Polish Issue: 2/2018

Konferencja Naukowa „Zastosowanie koncepcji teoretycznej intertempo-ralności Jarosława Mikołajewicza”, Poznań, 8 czerwca 2018 r.

Author(s): Paweł Kokot / Language(s): Polish Issue: 2/2018

¿Es compatible la teoría clásica de la ley natural con los modernos Derechos Humanos?

Author(s): Guillermo Morales Sancho / Language(s): Spanish Issue: 3/2019

Are modern human rights, particularly as drafted in the UDHR, compatible with the natural law? This article briefly answers this question and tries to give an account of human rights that corrects our current abuses: individualistic rights-talk, the development of new desire-rights defended as human rights and relativism.

Alfredo Cruz Prados krytyka doktryny o prawach człowieka

Author(s): Piotr Tarabasz / Language(s): Polish Issue: 3/2019

The human rights doctrine and in particular the Universal Declaration of Human Rights is undoubtedly an important step towards the search for an adequate formula, which would protect man and his rights. This statement points out that despite the efforts, which have been made in the last 70 years this formula, has not been effective. Many authors mentioned that and they were critical towards that idea, presenting many contradictions and problems related to that issue. Alfredo Cruz Prados is one of them. The objective of this article is to present the criticism of human rights by Alfredo Cruz Prados. Its perspective is a classical political philosophy. Thanks to this approach the author seems not to be entangled in modern philosophical terminology and its significance. It allows his criticisms to obtain certain freshness and novelty in relation to other proposals which criticize the human right ideas in philosophical literature. Alfredo Cruz Prados suggests we should reconsider the formula, in which we express the truth about human dignity and greatness, and we should again base it on the foundation of the classical political philosophy.

Polityczność (teorii) wykładni prawa. Perspektywa neopragmatyzmu Stanleya Fisha

Author(s): Jakub Łakomy / Language(s): Polish Issue: 3/2018

In this paper, I analyse the political character of the interpretation of law and the political nature of the theory of legal interpretation from Stanley Fish’s neo-pragmatist perspective. In the first part of the text, I define the concept of politics and the political, borrowing from Chantal Mouffe. I clearly distinguish between the political, politics, and policy; this article uses the first concept (the political). In the second part of the article, I characterize hermeneutic universalism as one of the approaches to the problem of legal interpretation.In the third part, following the characteristics of the concepts of interpretive communities as defined by Stanley Fish, I draw conclusions about the political nature of the interpretation of law and the theory of the interpretation of law. In conclusion, I analyse the possibilities of building a theory of legal interpretation that internalises the inherently political character of knowledge by analyzing the concept of post-analytical philosophy proposed in literature by Andrzej Bator.

Nauki prawne wobec problemu polityczności: zagadnienia wybrane z perspektywy jurysprudencji krytycznej

Author(s): Rafał Mańko / Language(s): Polish Issue: 3/2018

The growing interest in the connections between legal phenomena and the political (das Politische, le politique) justifies an analysis of the problem of the relationship of legal sciences towards the political. The article focuses on two juridical sub-disciplines: analytical legal theory and legal dogmatics, and the analysis is conducted from the perspective of critical jurisprudence, a juristic application of critical theory. Towards this end, first the concept of ‘the political’ is defined, along the lines of Chantal Mouffe, as a dimension of antagonism, which lies at the foundation of any society. The political, understood in this way, must be differentiated both from ‘politics’ and from ‘policies’. As far as analytical legal theory is concerned, the article claims that it is programmatically (yet tacitly) political, as it affirms the juridical form as such, abstracting from its concrete content. As far as legal dogmatics is concerned, the article claims, following Sawa Frydman, that the dogmatician, despite his declared apoliticality, when performing a doctrinal interpretation of law, makes in fact decisions which are not only interpretive, but also political ones, setting subsequent stages in the antagonistic struggles within society.