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Prawo a wartości inne niż moralne. O poszukiwaniu tropów w pracach Józefa Nowackiego

Author(s): Kamil Zeidler / Language(s): Polish Issue: 3/2023

In his article, the author asks the question to what extent considerations in the field of axiology regarding the relationship between law and morality can be useful for the development of the legal-philosophical trend known as legal aesthetics, where the subject of interest is, most generally, the relationship between law and beauty. The starting pointfor reflections is the issue of axiology in the context of the works left by Józef Nowacki,including, first of all, his article “Valuing in the science of law”. Thus, the subject of the articleis axiology, but in a sense that covers both ethics and aesthetics. The author distinguishesfour types of description used by legal science: normative description, empirical description,theoretical description and – distinguished by the author – axiological description, which canbe justified within the framework of axiological subjectivism. It involves evaluating values andeither adding or subtracting them, as well as valuing, that is, comparing and weighing values. The author considers what inspiration in this regard can be drawn from axiological inquiries in general, and Nowacki’s works in particular.

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Pewność prawa a zasada interpretatio retro non agit

Author(s): Agnieszka Bielska-Brodziak,Marek Suska / Language(s): Polish Issue: 3/2023

Referring to Józef Nowacki’s research on the principle of non-retroactivity of law[lex retro non agit], the authors of this study focus on the relationship between legal certaintyand retroactive changes in the prevailing interpretation of legal provisions. The main topic ofthe study is the expression ’interpretatio retro non agit’, which is already well-known in the legalculture, but not widely used. The objectives of the study were: (1) to determine the contentrelated, or potentially related, to the statement above in case law and literature; (2) to examinewhether there are grounds to consider this principle as binding in adjudication; and (3) to explainwhy changes in the prevailing interpretation of legal provisions are perceived as a necessaryevil. The research gave the authors a basis to distinguish between two understandings of theinterpretatio retro non agit principle: the narrow one and the broad one. Moreover, the broadunderstanding contains four sub-types of the thus understood principle. The narrow approachprohibits recognizing a change in the prevailing interpretation as a circumstance that wouldallow legally valid court judgments or final administrative decisions to be challenged. On theother hand, the broad approach introduces a presumption that legal effects should not beascribed solely because of a change in the prevailing interpretation that occurred after thelegal fact took place. Four possible justifications for the interpretatio retro non agit principlewere also considered: formal, natural, cultural, and instrumental justification. The authorsfound that the instrumental justification, which connects the principle with the value of legalcertainty, seems to be the most appropriate. However, some elements of the principle canalso be convincingly justified formally. Retroactive interpretation changes are only brieflydiscussed in literature, which the authors regard as an unfavourable state of affairs. However,the fundamental differences between law-making and the application of law allow usto understand that protecting the addressees of the law in practice is much more complicatedin cases of applying the law.

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Lex Salica and Common Law from the Historical Perspective

Author(s): Irina Gvelesiani / Language(s): English Issue: 77/2023

The Salic law (Lex Salica) is intensely treated as the old Germanic law, which has become the most famous of the so-called barbarian leges. It was created during the victorious reign of Clovis, a founder of the Salian Empire in northern Gaul (Kremer & Schwab, 2018 : 241). The Salic law clearly demonstrated the influence of the Visigothic and Burgundian models (McDaniel, 2012 : 132) and became very influential during the Carolingian regime. It is believed that one could find the most aspects of the Carolingian-style in tenth and eleventh-century England (Wormald, 2014 : 249-250). However, there is no direct evidence of the availability of Lex Salica in Britain before the 10th century. The paper presents an innovative attitude towards the study of the relation between the Salians’ legal code Lex Salica and English common law. The greatest attention is paid to the appropriate historical and juridical contexts, cross-national activities, linguistic and juridical contacts, contact-induced changes, etc. The results of the research reveal that Lex Salica could be available in Britain before the 10th century. Moreover, there was an evident inter-influence of the Frankish and British legal systems.

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The obligation to motivate a judgement

Author(s): Raluca Lucia Paul / Language(s): English Issue: 77/2023

The paper aims to present the importance to motivate a judgment in order to assure the respect of the right to a fair trial as stated in the European Convention of Human Rights. The subject has been broadly addressed in the legal writings and is often reflected in the judgements of both national and international Courts, but the paper offers a refreshing and perhaps philosophical perspective, trying to point out that, in this particular legislative inflation, the judge tends to forget that the judgment is not an instrument to be delivered to the legal professionals, but the individuals that came in front of the Court to find a solution for their particular problem.

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New Insights into the Origin of the Trust

Author(s): Irina Gvelesiani / Language(s): English Issue: 77/2023

Fiduciary duties have always included the “triad” – “loyalty, due care and good faith” (Atherton, Blodgett & Atherton, 2011 : 4) – accompanied with trust and reliance. Moreover, fiduciary relations similarly to the entrusting relationships have a long history of development. They existed in 1790 B.C. in the Code of Hammurabi (Zambakhidze, 2000 : 59). Their roots can also be found in Old and New Testaments, in the history of the Japanese societies, etc. Despite these facts, the trust (a manifestation of entrusting relationships) is usually treated as a “product” of equity, which presents a unique characteristic of common law – the duality of ownership. It is difficult to find historical roots of the trust. Accordingly, its origin raises controversy among the scholars. The paper presents an innovative attitude towards the study of the origin of the trust. The major accent is put on the comparative analysis of the Salian Franks’ affatomie and the English trust, their juridical and linguistic peculiarities as well as the verbal realization of some concepts presented in the Salians’ legal code. The greatest attention is paid to the appropriate historical background, namely, migration of the Germanic tribes, interconnectedness of the Germanic peoples and their languages, linguistic and juridical contacts, etc. The results of the research reveal that the common law trust shares the major peculiarities of the Salian Franks’ affatomie. Moreover, the existing linguistic as well as juridical data point to the Germanic roots of the English entrusting relationships.

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WŁASNOŚĆ I CYWILIZACJA ŁACIŃSKA. DYSTRYBUCJONIZM W MYŚLI POLITYCZNO-PRAWNEJ FELIKSA KONECZNEGO

Author(s): Paweł Boruta / Language(s): Polish Issue: 126/2023

Background: Feliks Koneczny’s intellectual heritage remains popular to this very day, inspiring creative scientific discourse in many fields. The most essential element of his legacy is undoub- tedly the original system of the comparative science of civilizations, in particular of the Latin civilization, which he described exhaustively, and with which he identified. To better understand the essence of his thought, it is necessary to look at it from numerous perspectives. The subject of this work is an attempt to compare the essential characteristics of Latin civilization according to Koneczny with a system of a potentially similar nature, to show both entities in a new light. The desired effect is to better explain the sources of both systems, as well as to establish potential paths for further development. Research purpose: The goal of the article is to place the Latin civilization next to distributism, and to examine to what extent distributism meets the political requirements set for Latin civiliza- tion by Koneczny. Distributism, the concept of the socio-economic system developed by Hilaire Belloc and Gilbert Keith Chesterton, presupposes in its essence the need for the widest possible distribution of material goods. The author aims to describe to what extent this goal is compatible with the Latin civilization. Methods: The author uses the historical-comparative and critical method to juxtapose Latin civilization and distributism. Through a thorough analysis of source materials, he determines both concepts’ origins and basic constituent factors, subsequently identifying analogies and relationships. Conclusions: The conclusion is the confirmation of the high compatibility of Latin civilization with the doctrine of distributism. Numerous identical elements are revealed: the recognition of the importance of property and economic freedom; the requirement of the widest possible distribution of ownership, especially land ownership; a posteriori method of systemic development; legisla- tion conducive to the division and maintenance of property; affirmation of the role of the Catholic Church and Christian morality in the formation of societies. The obtained research results allow to put forward the thesis stating that distributism is the model economic system in the Latin civilization. The success of the comparative analysis bodes well for further comparative studies concerning the types of civilization proposed by Koneczny and the economic systems described by Belloc and Chesterton.

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NABYCIE PRZEZ OCCUPATIO POSIADANIA DZIKICH ZWIERZĄT WEDŁUG TEORII LEONA PINIŃSKIEGO. CZĘŚĆ 1

Author(s): Dagmara Skrzywanek-Jaworska / Language(s): Polish Issue: 127/2023

Background: The aim of article is the acquisition of wild animal possession by occupatio according to the theory of Leon Piniński. These considerations were included in the third section of the first chapter of his monograph entitled Der Thatbestand des Sachbesitzerwerbs nach gemeinem Recht. They are part of the original possessio theory, which was consistently developed by this Polish Romanist, and are part of the discussion conducted by German Pandectists and other representatives of German-speaking legal scholars. The article opens with a triptych dealing with acquiring possession of the following movable things: wild animals (Part 1); honeycombs and valuables hidden in the ground (Part 2); the natural benefits of land and animals (Part 3). The order of the studies corresponds to the internal structure of the Piniński’s monograph.Research purpose: The article is directly related to the study entitled Leon Piniński’s discus- sion on corpus possessionis with selected 19th century legal scholars. While Leon Piniński’s discussion . . . is a presentation of Pininski’s theoretical-critical discussion on the corpus possessio- nis with dozens of legal scholars of his time, Acquisition of possession ... is a casuistic continuation of the interpretation of the ius Romanum. The fundamental research aim of the articles in this series is to present the author’s theory of possessio and the characterization of Piniński’s scientific profile in the context of 19th century German-speaking legal science.Methods: The article uses the historical and legal method.Conclusions: Excellent orientation in the pandectists interpretation of the Roman sources, in-depth and uncompromising evaluation of its shortcomings in terms of content and philology; devoid of complexes, innovative proposal for a different view of interpretating ancient sources; the German language as the language of choice for discourse and the exploration of possession, placed Piniński at the forefront of European, continental legal science at that time.

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Стандарти доказування як складова процесуальної справедливості

Author(s): Anna Stoian / Language(s): Russian Issue: 36/2022

The question of the searching for fairness in the different areas of our life is still being important in modern world. Fairness may have different manifestations, which complicates it’s one unambiguous interpretation. Such situation are needed the endless seek of the practical fairness in the every individual administrative cases for the harmonious development of the entire judicial system, which determines the relevance of the study. The aim of the article to create the knowledge about the role of the standards of proof in it’s ability to get closer to the fairness during the evaluation of the evidence as the last stage of administrative procedural proving . During the research general scientific methods were used, including analysis, synthesis, induction, deduction, abstraction, concretization, analogy, systemstructural method. A number of special methods were also used: the hermeneutic method for understanding and interpreting legal norms ; terminological and systematic methods to characterize the principle of justice; the axiological method helped to analyze justice as a universal value; the functional method helped to identify the function and role of the standards of proof in the way of establishing fairness in the evaluation of evidence in the administrative process. The logic of the presentation of the studied material. The ability of the fairness to correlate with the the principle of pluralism of truth were established. The fact that historical origins of universal values are not important for their consolidation at the level of fundamental principles of law were proved. The importance to adherence of the principle of justice not only in lawmaking but also in law enforcement were researched. The place of the standards of proof to be an important component of procedural (procedural) justice were detected Conclusions. Standards of proof contribute to the achievement of the justice’s ideals as they serve as a guide for the judge in the distribution and execution of the burden of proof. The higher the value of a certain value for society, the higher the standard of proof used and vice versa.

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Los ritos, los curanderos y la ley

Author(s): Magdalena Krysińska-Kałużna / Language(s): Spanish Issue: 10/2020

The ontological difference on which positive law and indigenous customary law in Latin America are based is one of the most important problems in the field of legal conflict between both systems. The ontological difference of the indigenous world is visible, among others, in the ways of passing and executing sentences. Punishment is often ritualistic and reintegrates the punished person into the community. In many cultures where witchcraft is a common phenomenon, sentences are given by shamans and healers. Illustrating the above statements with examples from various Latin American indigenous cultures, the article shows that law based on the vision of the Western world often cannot be an adequate response to some events taking place in indigenous worlds. This is not least because in the world of positivist rationality these events or phenomena simply do not exist.

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Методологічні аспекти розуміння верховенства права в Україні

Author(s): Maryna Burdonosova / Language(s): Ukrainian Issue: 2/2022

The ideal of the rule of law has long been an essential component of international legal instruments, especially on human and civil rights and freedoms. Modern realities of 2022 remind the world that without the rule of law at all political and legal levels and in all countries, the world can return to the barbaric way of resolving conflicts “who is stronger, that’s who is right”. The author`s experience of teaching of the discipline “Methodology of application and interpretation of the rule of law” for students of “Master” degree, shows some difficulties in students’ understanding of such a complex phenomenon as “rule of law”. In order to simplify its understanding at the initial stage of study, it proved methodologically appropriate, using the method of structural-genetic analysis and synthesis, to depict the rule of law as a pyramid consisting of principles and elements already studied by junior students. In this way, students systematize knowledge, focus on important aspects of already learned material and realize the need for acquired knowledge, “including” them into new material. One of the leading places is given to the principle of the rule of law in the Constitution of Ukraine (Article 8). Despite the acquisition of the rule of law as a global ideal, its concept, according to many Western jurists, still remains “essentially controversial”. The author presents a visual image of the rule of law, adapted to the Romano-Germanic legal family in the translation of certain terms, which facilitates its understanding. Taking into account the studied principles, the pyramid of the structure of the rule of law consists of the following elements, starting from the basic level, the so-called “foundation”: right to assemble, in Ukraine the freedom of peaceful assembly is analogous; democracy through formal legal processes - democratic procedures; access to justice; freedom of speech / press; right to silence; presumption of innocence; fair trial & independence of judiciary; citizens and government are accountable by the law (responsible before the law); equality before the law. The analysis of structural elements and visual representation of the pyramid of “rule of law” is the purpose of this scientific article. This methodological approach has proven itself in teaching the theoretical foundations of the rule of law and to help students master this complex phenomenon.

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The Construction of the Thetic Acts by Czesław Znamierowski

Author(s): Patryk Kupis / Language(s): English Issue: 4/2022

Czesław Znamierowski created the concept of thetic acts, which by European standards at the time, was an original theoretical model in legal theory. He based it on the observations that there are suchlike human actions that do not cause effects of physical consequence of the same action e.g. such as making a promise, making a will, a sale or other legal acts. This article compares this concept with a concept based on similar observations i.e. the concept of conventional actions created by Zygmunt Ziembiński and his team. The connection between these concepts is not obvious, even though both were created by the Poznan Centre of Legal Theory. This article will explore the question whether the concept of conventional actions is a development of the concept of thetic acts, or whether it is purely a concept based on similar assumptions that genetically constituting a separate theoretical model.

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Leksykalne uwarunkowania legitymizacji na podstawie prawa konstytucyjnego

Author(s): Paweł M. Nowotko / Language(s): Polish Issue: 4/2022

The semantic analysis of the term “legitimisation” is a particularly major issue, because determining the understanding of this term has a fundamental meaning for further considerations of such important issues as the legitimisation of the power, the judiciary or the systemic position of a judge. In the doctrine of the constitutional law there are lacks in-depth semantic analyzes that would allow a precise explication of what lawyers think when they use the term “legitimisation”. Even a cursory analysis of the literature in this field could allow us to draw a preliminary conclusion that when we discuss about this term, in a significant part of the cases considered, there is no reflection on the meaning of the concept of “legitimisation” itself. In this study, author analyzed definitions of this concept, which appears in the dictionaries of the Polish language, and then confronted the established meanings with the understanding of “legitimisation” in the legal and lawyers’ language. In conclusions, author points two basic ways of understanding the term “legitimisation” and proposed to distinguish them by assigning the phrase “legitimacy” to one of these meanings, and “legitimisation” to the other.

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NABYCIE PRZEZ OCCUPATIO POSIADANIA PLASTRÓW MIODU ORAZ UKRYTYCH W ZIEMI KOSZTOWNOŚCI WEDŁUG TEORII LEONA PINIŃSKIEGO. CZĘŚĆ 2

Author(s): Dagmara Skrzywanek-Jaworska / Language(s): Polish Issue: 128/2023

Background: The article discusses the acquisition of possession of honeycombs and valuables hidden in the ground according to Leon Pininski’s possessio theory. This is another stage of the Polish Romanist’s considerations on the acquisition of possession of movable things by occupatio, continuing from the discussion of wild animals These views are an expression of criticism against the theory of possession formulated in the 19th century by Savigny, understood as a man’s actual power over a thing.Research purpose: The research purpose of the articles in this series is to introduce Pininski’s concept of possessio in understanding the economic relationship between man and thing, as well as to characterize the scientific profile of the Polish Romanist against the background of the activities of the Pandectists and other representatives of German-speaking legal science. Methods: The article uses the historical and legal method.Conclusions: Pininski’s reflections on the acquisition of possession of honeycombs and valuables hidden in the ground reinforced his conviction that the assumptions of Savigny’s theory were inaccurate and pointed out the shortcomings of the Pandectists’ interpretation of the Roman sources. While considerations on the acquisition by occupatio of possession of wild animals set the direction of critical discussion, the present considerations are a continuation of them with only a slight shift in emphasis. What draws attention here is Jhering’s direct inspiration in terms of the argumentation used and the selection of Roman sources. The previously formulated conclusions remain valid as to Pininski’s excellent orientation in the Pandectists’ interpretation of the ius Romanum sources, his balanced and careful assessment of the errors committed in it, as well as his ability to take a bold and, above all, practical approach to the researched matter.

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Rechtsnormen und Logische Analysis: ein Briefwechsel - Was Kelsen tricked?

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Rechtsnormen und Logische Analysis: ein Briefwechsel - Was Kelsen tricked?

Author(s): Vinicius Magalhaes Casagrande / Language(s): English Issue: 2/2023

The article aims to uncover the actual discussion that took place between Ulrich Klug and Norbert Wiener, a philosopher of law and a mathematician, on the question of whether it was possible for a machine to apply law using logic. This discussion took place in 1957 and was mentioned by Ulrich Klug in an exchange of letters with Hans Kelsen. Hans Kelsen and Ulrich Klug exchanged letters in which they discussed the application of logic to law. These letters formed the basis for a book entitled Legal Rechtsnormen und logische analyze: ein Briefwechsel 1959 bis 1965. The correspondence between Hans Kelsen and Ulrich Klug was analyzed and from it the correspondence between Klug and Norbert Wiener. The research source comes from Wiener's personal collection at the Massachusetts Institute of Technology. As a result, we find the letters exchanged between Klug and Wiener. We can conclude that both disagree on the possibility of creating a logical machine that applies the law. From this we can conclude that Klug's statement to Kelsen that Wiener accepted the existence of a machine that applies the law through logic is false.

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ФИЛОЗОФСКИ И ПРАВНИ ПОГЛЕДИ НА ПАЦИФИЗАМ СРПСКЕ ИНТЕЛЕКТУАЛНЕ ЕЛИТЕ У 20. ВЕКУ: ПРИМЕР КСЕНИЈЕ АТАНАСИЈЕВИЋ И ЂОРЂА ТАСИЋА

Author(s): Ana S. Vuković,Marinko Lolić / Language(s): Serbian Issue: 3-4/2022

The paper critically discusses the theoretical foundations and key values of pacifism in the philosophical and socio-legal discourse of Ksenija Atanasijević and Đorđe Tasić. Then, in the context of political events in Europe and the world in the 1930s, the interest in pacifist ideas and non-violent forms of resistance to extreme forms of violence among the Serbian intellectual elite is analyzed, pointing out the fate of pacifism and advocating of pacifist ideas, as well as the significance of these ideas for our contemporary political culture. In the second part of the paper, the authors intend, from a broader perspective of our time in a context dominated by various forms of extreme violence resulting from wars, migration, epidemics and the struggle for political, economic and military dominance, to indicate the relevance and key values of the idea of pacifism and the practical pacifist engagement of Ksenija Atanasijević and Đorđe Tasić.

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LA NECESIDAD DE LA HERMENÉUTICA ANALÓGICA Y LA COMPLEJIDAD EN LA CIENCIA JURÍDICA

Author(s): Orihuela Rosas Barbara Edith / Language(s): Spanish Issue: 1/2024

We begin our research on the problem of the lack of application of analogue hermeneutics and complexity in legal science, elements that we consider necessary to generate bridges between theory and legal practice, which in turn encourages the construction of legal theories with minimum methodological, axiological, epistemic and argumentative rigor that are applicable to the socio-legal problems present in the current reality. That is why we elucidate these unions in legal analog hermeneutics from a complex view.

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The Protection of Entrepreneurs and the European Convention on Human Rights

Author(s): Adam Wiśniewski / Language(s): English Issue: 28/2023

In comparison to the European Convention on Human Rights, the EU Charter of Fundamental Rights, which provides in its Article 16 for the freedom to conduct a business, is a much more modern instrument. In this article I argue that the Convention nevertheless appears to be no less important a document offering protection of entrepreneurs’ rights. This is the case even though it does not provide any particular rights devoted to the running of a business by entrepreneurs. This is possible, first of all, due to the right of individual application which may be lodged directly with the European Court of Human Rights in its capacity as an international court. No comparable measure for an individual complaint is available under the UN Charter. Secondly, the extensive case law of the Strasbourg Court has made it possible for entrepreneurs to rely on a number of Convention rights, despite the fact that these rights, at least at first glance, are not connected with the running of a business. This refers not only to the right to a fair trial on the protection of property, which offer entrepreneurs the protection of a number of their interests, but also to rights which at first glance have nothing to do with the running of the business, such as the right to respect for private and family life protected under Article 8 of the Convention. As a result, the right of individual complaint to the ECtHR should be perceived as an important measure of the protection and enforcements of entrepreneurs’ rights at the international level, in case of any failure to secure the protection of those rights at the national level.

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МОРАЛНО РАСУЂИВАЊЕ И ПРОФЕСИОНАЛНА ПОСЛОВНА ЕТИКА У РАЧУНОВОДСТВЕНОЈ ПРОФЕСИЈИ − АНАЛИЗА СПРОВЕДЕНИХ ИСТРАЖИВАЊА

Author(s): Miljan Savić / Language(s): Serbian Issue: 100/2023

Due to limited resources and information asymmetry, the responsibility for tax compliance and compliance with other regulations is in practice often transferred from clients to their accountants (i.e. providers of accounting services). Consequently, the unethical attitudes and behavior of accountants can significantly impact the clients’ business activities, through advice on how to operate in compliance with the regulations or advice on how to exploit the existing regulatory framework. The main goal of this paper is to provide a comprehensive overview of existing research questions, methodological approaches and most important findings regarding accountants’ (non)compliance with regulations and ethical principles of the accounting profession. Special attention is given to the existing literature findings on ethical beliefs and factors affecting the (un)ethical conduct of accounting professionals. The findings presented in this paper do not provide for an unequivocal designation of determinants of ethical beliefs and behavior of professional accountants. However, they do indicate a great importance of adequately focused educational measures, creating adequate incentives to resist pressure to behave unethically, and ensuring a high level of accountants’ familiarity with the best practices when providing accounting services. In this regard, the existing codes of ethics and their consistent application are of great importance.

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Ochrona praw osób starszych – wybrane zagadnienia administracyjnoprawne

Author(s): Monika Augustyniak / Language(s): Polish Issue: -/2023

The subject of this article is the analysis of selected instruments for the protection of the rights of seniors in terms of social policy and an attempt to assess the current senior policy in this respect. It concludes with de lege ferenda conclusions concerning the examined issues. The paper uses a dogmatic method.

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Rationalization of the local budget economy: a comparative analysis of the legislative basis in Poland and Romania in the concepts of positive law and natural law

Author(s): Dana Georgeta Alexandru,Beata Guziejewska / Language(s): English Issue: 1/2023

Motivation: The contrast between positive law and natural law regarding the rationalization of public budget management is strongest at the local government level. Local government finances are governed by the budget law enacted by parliament. However, it is at the subnational level of government where the natural right to self-determination and making rational decisions in the interest of local communities is most apparent. Aim: This article evaluates and compares the scope and instruments of Polish and Romanian budget laws that enable the rationalization of managing subnational budgets from the perspective of positive law and natural law. The article is based on research using qualitative methods (a literature review and a critical examination of financial legislation in Poland and Romania) and a descriptive comparative analysis. Results: The research confirms the main thesis of the article that the pillar of budget management rationalization in Polish and Romanian local governments is a symbiosis of positive law with natural law, the underpinning and enhancement of which should be formal legislation.

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