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Interdyscyplinarny wymiar teorii argumentacji Chaima Perelmana

Author(s): Wojciech Arndt / Language(s): Polish Issue: 41/2021

RESEARCH OBJECTIVE: The aim of the article is to present a conception that was developed for the purposes of legal reasoning. However, basing it on assumptions that go beyond the scope of the law means that it could be taken into account more widely. THE RESEARCH PROBLEM AND METHODS: The research thesis is the statement that Chaim Perelman developed a conception intended for the purposes of legal argumentation and emphasized its importance in judicial reasoning. However, the theory of argumentation is a theory that goes beyond the discipline of law and should be recognized in other disciplines, at least in the broad field of social sciences. The research method adopted in the article is conceptual analysis combined with the analysis of the text. THE PROCESS OF ARGUMENTATION: The article presents the main assumptions of the discussed conception. Secondly, an interdisciplinary look at the characteristics of the conception will be presented in order to show its versatility. RESEARCH RESULTS: The main assumptions of Perelman’s conception, developed for the purposes of legal discourse, also turn out to be valuable for the other scientific social disciplines. This conception is decision-oriented. In a modern state, not only judges in courts but also officials and other decision makers decide. The process of fair argumentation discussed by Perelman also deserves the interest of decision-makers and other participants in disputes who are not lawyers. CONCLUSIONS, INNOVATIONS, AND RECOMMENDATIONS: All participants in disputes should be subject to the requirement of impartiality and procedural fairness. Therefore, Chaim Perelman’s theory of argumentation still deserves attention.

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Spór o granice wykładni definicji legalnych: dyrektywy wykładni oparte na tezie słabszego formalizmu interpretacyjnego

Author(s): Maurycy Zajęcki / Language(s): Polish Issue: 43/2022

RESEARCH OBJECTIVE: In the paper the author employs the idea of analyzing the content of legal definitions (i.e. reconstructing the architecture of their connotations) to propose emendations in directives of legal interpretation in M. Zieliński’s derivational theory of legal interpretation. THE RESEARCH PROBLEM AND SCIENTIFIC METHODS: Polish ius interpretandi does not give unanimous answer to the question about limits in interpreting legal definitions. There are two competing approaches: formalism and holism. In the text the author employs tools of analytical theory of law to formulate weaker thesis of formalism in interpreting legal definitions. THE PROCESS OF ARGUMENTATION: The argumentation begins with quotes from Polish Principles of legislative technique (Zasady techniki prawodawczej) about legal definitions. On this basis several proposals of emendations in directives of legal interpretation in derivational theory are proposed. These emendations show problems which an interpreter must face in practice. These problems were grouped on the basis of researches done by M. Zeifert on the grammar of Polish legal text. RESEARCH RESULTS: After establishing weaker thesis of formalism in interpreting legal definitions, several emendations in directives of legal interpretation were proposed. These emendations are in conformity with fundamental assumptions of M. Zieliński’s derivational theory, and they also encompass practical problems which are met by interpreters. Modified directives show precisely the limits in interpreting legal definitions, yet they are also flexible. CONCLUSIONS, INNOVATIONS AND RECOMMENDATIONS: Analyses in the paper showed that derivational theory strongly emphasizes difference between connotation-based definitions and denotation-based definitions. Practice of rendering legal definitions is – in this respect – too shaky, and such differentiation is of limited practical value. Therefore it is important to postulate emendations in Polish Principles of legislative technique and promotion of knowledge about logic and grammar of legal definitions among legislators.

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Przekraczanie językowej granicy władzy interpretowania prawa

Author(s): Olgierd Bogucki / Language(s): Polish Issue: 48/2023

RESEARCH OBJECTIVE: The aim of the study is to analyze the approach to the linguistic limit of interpretation in the derivational theory of legal interpretation.THE RESEARCH PROBLEM AND SCIENTIFIC METHODS: It is extremely important to recognize the linguistic boundary of interpretation. The derivational theory offers such an approach. However, the question arises to what extent it is justified. The issue is considered using the method of analytical legal theory.THE PROCESS OF ARGUMENTATION: In the first part, the directives formulated in the derivational theory regarding the limitation of the possibility of crossing the language border are critically analysed. The theoretical and practical difficulties associated with them are indicated. The second part is devoted to indicating the direction of modification of these directives.RESEARCH RESULTS: As a result of the analysis, it is recognized that the current approach is theoretically controversial and leads to such a significant reduction in the possibility of rejecting the results of linguistic interpretation that it basically loses its practical significance. Therefore, the direction of the proposed modification of derivational model is outlined, which aims to make it more flexible and more applicable in the practice of interpretation. According to it, crossing the linguistic border depends on the proportion between the degree of axiological justification and the degree of change in the meaning of a linguistic expression.CONCLUSIONS, INNOVATIONS, AND RECOMENDATIONS: If derivational theory is to have the potential to develop a Polish integrated theory of legal interpretation on its basis, it seems that it should make the interpretation model more flexible and give up the “rigid”, formalistic restrictions of rejecting the linguistic meaning. Instead, the issue of the linguistic border should be considered as a problem of acceptable degree of modification of linguistic meaning when referring to axiological arguments.

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THE ABUSE OF A DOMINANT POSITION. CASE STUDY - ASTRA ZENECA

Author(s): Anca Ileana Dușcă / Language(s): Romanian Issue: 35/2023

The regulations contained in art. 101 and 102 TFEU apply to the commercial behavior of enterprises whose size or activity is sufficient to be affected by these rules. They apply not only to the countries in the European Union, due to the equivalent provisions appearing in the Treaty (Porto) on the European Economic Area (EEA) they apply to the EFTA member states (without Switzerland). This space represents a territory with over 300 million people, thus being the largest European markt. Because art. 101, 102 TFEU are included in the section ”Rules applicable to enterprises”, we understand that apply to enterprises, as economic agents. The notion of enterprise is not defined by Treaty, the definition being the responsibility of doctrine and jurisprudence; the doctrine appreciated that from an economic point of view, the enterprise is a set of human and material means concordant under an economic direction for the achievement of an economic objective. The Court of First Instance qualified as an enterprise „all economic entities made up of a set of material and human elements” and the Commission considered that ”all entities carrying out a commercial activity can be considered an enterprise”.

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CAUSES OF MIGRATORY MOVEMENTS AND OBJECTIVES OF IMMIGRATION POLICIES: REFLECTIONS FOR A FAIRER AND MORE INCLUSIVE MANAGEMENT OF HUMAN MOBILITY

Author(s): MIRAUT MARTÍN Laura / Language(s): English Issue: 1/2023

The mass displacement of people takes on a particular significance today as a phenomenon linked to globalisation. Economic inequalities between different countries, armed conflicts, natural disasters, etc., explain to a large extent the tendency of individuals to settle in a place far from their family and emotional environment in search of a future that offers greater possibilities for life development. We can thus identify different causes (both external and internal) that are conducive to current migratory movements.Receiving societies normally view the migratory phenomenon with a certain amount of mistrust, trying to respond to it in a way that does not negatively affect their interests or modify the initial situation too much. Immigration policies often move between attention to the interests of the host society, which it is understood may be violated, and the preservation of the conscience of individuals in the face of the need to provide a humanitarian response to the situation of helplessness experienced by immigrants.

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REFLECTIONS ON THE PRINCIPLES OF JURIDICAL RESPONSIBILITY OF THE STATE IN INTERNAL RIGHT

Author(s): MORARU Elena / Language(s): English Issue: 1/2023

The principles of juridical responsibility of the state must be investigated in accordance with the principles of juridical responsibility and those of the right. The principles of juridical responsibility develop and materialize the principles of the right. In their turn, the principles of the right represent the foundation of forming of the principles of juridical responsibility. The principles are being characterized by a determined subjectivity as those one are conditioned by the character of social relations on which is founded the system of determined right

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THE IMPLICATIONS OF ARTIFICIAL INTELLIGENCE FOR LEGAL DECISION MAKING

Author(s): ESTER SÁNCHEZ Antonio Tirso / Language(s): English Issue: 1/2023

The use of Artificial Intelligence in the field of law is a reality. The aim of this study is to analyse its use in this field, and especially its impact on legal decision-making. To do so, we will carry out a descriptive analysis of its use in this field, in order to determine whether AI acts as a support tool in legal decision-making, or whether it becomes a new source for generating legal decisions. In addition, we will learn about the cognitive and logical processes involved in legal decision-making and test whether AI will be able to process them

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Kilka uwag o pojęciu „sprawiedliwość”

Author(s): Andrzej Rosner / Language(s): Polish Issue: 4/2022

Justice is one of the basic values of ethics, which means that, like other values (good, truth, beauty), the concept of justice has a strong positive emotional charge. For this reason, the term is often used in persuasive logic, it is then used to manipulate views and attitudes. It is used to the extent to achieve political, economic, and social goals, etc. From the formal point of view, a number of principles of distributive justice can be distinguished, such as: the same to everyone, the same according to the contribution, etc. The choice of the principle of fair distribution of rewards or penalties is an arbitrary decision, they are equally correct. It is only important that the recipients who equally meet the adopted principle are treated equally. The very choice of distribution, reward or punishment principle is an indicator of the worldview that determines this choice. In practice, however, ethical value is often used to justify a choice that is in fact made for pragmatic reasons. The justification for this choice uses manipulation mechanisms related to the logic of persuasion.

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On the Notion of Justice

Author(s): Andrzej Rosner / Language(s): English Issue: 4/2022

Justice is one of the basic values of ethics, which means that, like other values (good, truth, beauty), the concept of justice has a strong positive emotional charge. For this reason,the term is often used in persuasive logic, it is then used to manipulate views and attitudes.It is used to the extent to achieve political, economic, and social goals, etc. From the formalpoint of view, a number of principles of distributive justice can be distinguished, such as:the same to everyone, the same according to the contribution, etc. The choice of the principleof fair distribution of rewards or penalties is an arbitrary decision, they are equally correct.It is only important that the recipients who equally meet the adopted principle are treatedequally. The very choice of distribution, reward or punishment principle is an indicatorof the worldview that determines this choice. In practice, however, ethical value is oftenused to justify a choice that is in fact made for pragmatic reasons. The justification for this choice uses manipulation mechanisms related to the logic of persuasion.

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ESTE MUNCA UN „LUCRU” JURIDIC?

Author(s): Iulian Dobrinescu / Language(s): Romanian Issue: 2/2023

Labour, is it a “thing” in the juridical sense? An answer to this question has been given in the affirmative recently. This is largely an error, as it entails a confusion of juridical categories and a failure to distinguish between distinct notions. Such a view, moreover, represents an unnecessary break with established views on how to define “things”. Interestingly, this reduction of labour to the status of a tradable thing is connected to a turn towards the “immaterial" in the thought of some jurists, who are beginning to conflate notions such as “goods”, “patrimonial rights” and “incorporeal things”.

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Sloboda i zakon

Author(s): Reza Davari Ardekani / Language(s): Bosnian Issue: 94/95/2023

The notion of “freedom” in the age of neoliberalism is under the strong influence of technology and in a great measure it is different from the concept of freedom in the age of liberalism. In neoliberalism man’s freedom is projected and defined within the frameworks that are shaped by technology while in an earlier period man was called to shaping the laws of freedom. We always hear about knowledge being one of the basic human rights, but nobody says that which man should know. It seems to be that what is meant by that are the topics which are spoken of on a daily basis, and which presents the basic preoccupation of some people, and that is the relativization and suppression of moral norms. The sentence “knowledge is the right of all people” has become a catchphrase according to which everyone has the right to do as they will and everybody has the right to usurp the private life and intimacy of every individual. It must be said that pure acquaintance with raw information does not represent knowledge. The piling of information is the greatest enemy of common human sense and reasoning. In case freedom has to be connected to the very spirit of one community, the question is posed; whether a general call for freedom comes out of the spirit and need of that community or whether it is the result of the manipulation of others who have tendentious and wicked intentions. In any case, even though democracy presents the manifestation of collective human gravity and will, it is not possible to implement it everywhere or at the very least not until it comes to certain changes in society. The following question is posed: what is freedom’s treatment of the individual and collective rights like and what bears greater meaning in a free society? The possessing of human qualities is a condition for the establishment of the freedom of thought, however in society and in politics personal and collective interests go hand-in-hand. Is political development the precondition for economic growth or is it in reverse? There are arguments which give advantage to the first and the second claim. However, it is visible that the development of any dimension of society influences the development of other dimensions and there are no special rules there. There are certain preconditions which are necessary for the development of society and they are interconnected. Every country that thinks of development must ponder upon the freedoms and civil rights of its inhabitants. Although the claims that humanity is going to the direction of freedom and peace are not correct it should be said that freedom is the question of human honor and that everybody is obliged to fight for it in his own way.

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Państwo autorytarne Erica Voegelina na tle jego krytyki czystej teorii prawa Hansa Kelsena

Author(s): Jan Okoński / Language(s): Polish Issue: 105/2023

The article refers to the issues presented in E. Voegelin’s The Authoritarian State: An Essey on the Problem of the Austrian State, which are important from the point of view of the theory and philosophy of law. Attention was paid to the criticism of H. Kelsen’s normativism and Voegelinʼs interpretation of the parliamentarism of the interwar Austria. This issue was placed against the background of the dispute over the Austrian state. The methodological aspect of the presented issue was especially taken into account. Some of the issues discussed were outlined against the background of the post-war works of E. Voegelin

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Problematyka powództwa o ustalenie płci

Author(s): Łukasz KRZYŻEWSKI / Language(s): Polish Issue: 105/2023

Lately in Poland the topic of transgender is rising to the higher ranks then before. These paper presents legal aspect of sex change in Poland which is one of a few countries that does not address that issue in the statutory form but has only resolved it by jurisprudence. Author presents current procedure of changing gender in Poland and history of its evolution over the years. Procedure of sex change has been fully developed by jurisprudence based on art. 189 of the Civil Procedure Code which made numerous problems arise. All of them require addressing and will be covered in this article. Paper also shows most important judicature of The European Court of Human Rights and international law regarding transsexualism and legal aspects of it. Author concludes the paper by pointing necessary steps that Polish legislator should take in discussed matter.

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Problematyka przyszłej regulacji związków partnerskich w świetle polityki „tradycyjnej rodziny”

Author(s): Aleksandra Lewandowska / Language(s): Polish Issue: 105/2023

The article examines the new wave of social issues in the form of informal relationships and confronts it with rather a conservative approach of Polish politicians and their „traditional family politics.” The article tries to analyze whether the current approach and legislative activity is effective or prolongs the inevitable – novelization of the Polish legal system in the scope of recognition of cohabitation. The author recognizes the phenomenon of informal relationships and provides insight into the current state of legal regulation to describe issues beneath it. The author focuses on civil law solutions as they regulate the majority of partnersʼ everyday life. Then discusses the so-called „traditional” approach to the subject of family and relationships by analyzing politiciansʼ public statements axiology of Polish law, the position of the church and regulations proposed for partnerships. Finally, the author confronts it with social expectations arising from the data provided by CBOS and GUS. The analysis provided in the article leads to the conclusion that current politics cannot change the widespread of social phenomena such as partnership, and thus, the legislator must search for new legal solutions.

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Instytucja oddalenia powództwa oczywiście bezzasadnego jako stworzony przez ustawodawcę potencjalny mechanizm do darmowego przerywania biegu przedawnienia?

Author(s): Tomasz Tomczak / Language(s): Polish Issue: 105/2023

In 2019 into the Polish civil procedure the institution of dismissal of a claim as clearly unfounded was introduced. Within the framework of this article, the author intends to present and consider one seemingly unplanned effect, to which the introduction of Art. 1911 k.p.c. may lead, i.e. consequence in the form of creating, under certain circumstances, a mechanism enabling the entitled person to interrupt the limitation period without incurring any costs. As this was not the purpose of introducing the considered institution, the rest of the article considers, on the basis of procedural law, how such an unwanted effect should be avoided.

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Systemowe uwarunkowania zakresu zastosowania definicji legalnej „beneficjenta” w ramach polityki spójności

Author(s): Robert Talaga / Language(s): Polish Issue: 105/2023

The general framework for spending the EU budget, adopted by authorized institutions, is to contribute to the implementation of the strategic development goals set by individual Member States. It is up to national legislators to develop and specify such regulations, who remain authorized to issue relevant normative acts in accordance with the applicable institutional and procedural autonomy (Galetta 2010). In the Polish legal system, the legislator adopts appropriate statutory regulations for each successive programming period of the EU budget. Under the cohesion a co-financing agreement and on the basis of an administrative decision has been retained. So far, the concept introduced in this way had different meanings depending on the content of the provisions formulated by the EU legislator and the national legislator. Therefore, it was necessary to take into account the definition of „beneficiary” contained in both separate provisions of national law and European law, often also taking into account the specificity of the purpose of individual funds. The legal definitions introduced in this respect had a specific scope of validity. However, it was not always identical to the intentions of the national legislator. At the same time, there were systemic factors which, on the one hand, extended the scope of application of the introduced legal definitions, and, on the other hand, limited them.

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Oblicza sprawiedliwości

Author(s): Robert Krasoń / Language(s): Polish Issue: 105/2023

Justice is undoubtedly the foundation of the existence and functioning of a democratic state under the rule of law, the formation of social relations, and an essential factor for building and deepening trust. In turn, the concept itself appears as undefined, vague, often described as unclear. Justice has had, has and probably always will have two faces – positive and negative. Under no circumstances should it be interpreted as a one-time, momentary burst of emotion, triggered by some impulse from the outside, but as a skill of reason acquired by long-term moral effortand will. Justice has accompanied mankind since the beginning of time. It is a peculiar phenomenon, the essence of which has been pondered over the centuries by the great minds of the world: philosophers, poets, biblical authors. Thinking about justice, we intuitively sense that it is one of the most important issues for humanity in general – an all-encompassing issue.

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From Maternal Preference to Shared Parenting: Child’s Well-Being. Lessons from the USA

Author(s): Katarzyna Kamińska / Language(s): English Issue: 105/2023

The article concerns parenting after divorce or separation within the context of social changes. Special attention is paid to the principle of the welfare of the child, which is the most important criterion for deciding child custody. The child’s welfare is an open concept that grants a wide discretion to courts in choosing the best custodial arrangement for a child in a particular case. In this context, reference was made to the American experience on parenting after family break-up, separation or divorce. In the USA different theories were developed to explain which parenting model best fulfils the principle of the child’s welfare. This article discusses the tender years doctrine, primary care-taker preference, psychological parent doctrine and approximation rule. After a divorce, a mother was usually granted custody and a father paid child-support. He was placed in the background and excluded from the daily activities of his child. Currently, the theory of mother-nurturer and father-breadwinner is coming to an end; the father is no longer the only breadwinner responsible for providing the family an adequate standard for living, and the mother is no longer primarily responsible for the duties of childrearing and household chores. The changes taking place are reflected in struggling for equal treatment in the award of custody and abandoning the stereotypical approaches based on awarding custody automatically to mothers. A significant rise in the number of parents entering into joint custody arrangements is observed.

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Autonomia i wolność – korelacja pojęć w doktrynach polityczno-prawnych

Author(s): Olgierd Górecki / Language(s): Polish Issue: 105/2023

The aim of the article is to present the relation of significance between the concepts of autonomy and freedom in the context of political and legal doctrines. The analysis carried out serves to demonstrate that the concept of autonomy has a narrower meaning, included in a broader category, which is freedom. While the concept of autonomy is not identical with the negative approach to freedom, which boils down to having the widest possible spectrum of alternatives to choose behavior, it is expressed in the concept of positive freedom, which basically means independent control of one’s own behavior. Both concepts were examined only in the context of perceiving them as a human attribute. The methodology of the conducted analysis is based mainly on the concepts of Isaiah Berlin, Gerald C. MacCallum Jr. and Gerald Dworkin. The article also discusses the understanding of the concept of autonomy in selected judgments of the European Court of Human Rights.

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НАУЧНИ ПОРТРЕТ - АКАДЕМИК ДАНИЛО Н. БАСТА: САБРАНИ СПИСИ

Author(s): Not Specified Author / Language(s): Serbian Issue: 187/2023

Дана 7. априла 2023. године, на иницијативу др Мише Ђурковића, директора Института за европске студије у Београду, у просторијама Института одржан је Округли сто поводом објављивања Сабраних списа академика Данила Н. Басте.

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