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Postulat sprawiedliwości społecznej a idea sprawiedliwości

Author(s): Piotr J. Wróbel / Language(s): Polish Issue: 1 (8)/2013

This paper shows the conception of social justice against a background of an idea of general justice. The idea exists in philosophic debate since dawn of history. At the beginning justice was based on natural law, but from renaissance its meaning is strictly related to social contract. Ulpian demand of “constant and perpetual will to render to every man his due” is the leading concept, received also in religious field. In law sciences the idea of justice is strictly connected with such ideas of equality, dignity of human person, freedom and democracy – but justice is not the same as equality. Against the background of general justice has been born a postulate of social justice, which is present also in the Constitution of the Republic of Poland (of 1997).

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ПЛАТОНИЗМ И НОРМАТИВИЗМ: ИСТОРИКО-ФИЛОСОФСКАЯ РЕКОНСТРУКЦИЯ

Author(s): Anton Didikin / Language(s): Russian Issue: 2/2018

In a short note, the author outlines a series of Hans Kelsen’s studies dedicated to Ancient political thought, esp. his Platonic Justice. He believes that these relatively neglected minor studies of the famous philosopher of law could still be of interest to contemporary classicists and the historians of philosophy.

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Tworzenie prawa antykryzysowego – dylematy aksjologiczne

Author(s): Hanna Dębska / Language(s): Polish Issue: 2/2011

The aim of the article is to indicate some of the axiological problems faced by the legislator in the law-making process. They are clearly visible in those legal regulations that are introduced in response to crisis situations. The presented example – terrorist attack by hijacking a plane – is not only used to demonstrate dilemmas which in this situation must be settled by the legislator preparing relevant legal provisions, but it is also a pretext for enriching the discussion on the axiological aspect of the law. The article focuses on the so-called natural helplessness of law in axiological matters, law inflation and the problem of responsibility. The author concludes that issues indicated in the article cannot be solved in the light of current Constitutional Court’s judgements, which are treated as a reference point of the discussed issues.

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Przejawy intertekstualności w rozprawie sądowej

Author(s): Karolina Gmerek / Language(s): Polish Issue: 1/2017

The aim of this article is to present a permanent part a of trial which is a phenomenon of intertextuality. The phenomenon co-creates the model of trial (seen as a complex communication event). The analysis of intertextuality is conducted on the basis of normative sources of the model of trial and the material recorded during field research in the courtroom. The examples of communication acts and events used in the article are: (1) components of the normative model of trial; (2) created due to communication practice; (3) examples of the normative model of trial contravening. The specific aim of this article is to describe structural and functional aspects of these communication acts and events, which are created due to communication practice.

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A Note on Legal Education, Its Specific Features and Related Myths

Author(s): Małgorzata Król / Language(s): English Issue: 2/2016

The question of legal education is recognised as important along various dimensions and thus has been in the focus of attention of numerous distinguished legal scholars and practitioners all over the world. The problem of legal education includes not just methodological issues, but also the issues that are par excellence philosophical in nature. Legal education has a specificity that arises from the nature of law and its complexity, and is related to the personal dimension of this education. The process of education should be organised in such a way that students should be in contact with members of the legal community whose authority, moral and subject matter-related attributes play a vital, formative role in legal education. The author tries to confront the didactics-related reality with ideals and postulates present within this field. Yet, it is revealed that such a reality is hidden below a “thick layer” of myths, which have grown around legal education. These myths blur the real picture of lawyers’ education, creating a kind of legal education mythology. Two types of systemic legal myths are indicated. The first one is built on the paradigm of university legal education. The other type is based on the paradigm of university studies.

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Punishing (Non-)Citizens

Author(s): Michał Peno / Language(s): English Issue: 2/2016

If sociologists are to be trusted, reflexivity, focused on itself and devoid of any religious or at least ideological framework, leads to the weakening of control mechanisms. Such changes are accompanied by the polarization of social classes and by the exclusion of the so-called underclass (which certainly includes a vast majority of criminals) from the civil society. In the doctrine of criminal law of “mature modernism”, within the framework of a liberal-democratic state, the civil society, together with the idea of communication, is supposed to constitute a central reference point in the research on criminal liability. Reflexivity brings up new problems. New citizen-oriented criminal law is being shaped, based upon mediation and communication (e.g. restorative justice, Expressive Theory). The civil society does not include the area of politics or political nature of things, where the problem is not the justification of the punishment but the effectiveness of mere spatial isolation. In this sense, it is difficult to talk about the merits of the emancipation of an individual from the limitations imposed by the society. The weakening of any external authority and of political duties owed to the state is replaced by self-control proper to reflexive modernity only in cases where the individuals have adequate intellectual and ethical predispositions. Disappearance of the influence of external rules and values together with the mechanism of exclusion from the civil society results in the weakening of self-control and in selfish care only about one’s own perspective (but also in repressive subordination by the state). Such a state of affairs creates favourable conditions for objectifying criminal liability, abandoning the concept of guilt, and for attempts to provide an ethical justification of penalty – which are concepts taken from the “world of citizens”.

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Filozofia prawa międzynarodowego Ronalda Dworkina

Author(s): Tomasz Widłak / Language(s): Polish Issue: 1/2016

During his academic career Ronald Dworkin did not show much interest in the fundamental philosophical questions on international legal issues. This had changed towards the end of his life when he wrote an article titled „A New Philosophy for International Law” published posthumously. The aim of this article is to summarise the key arguments of Dworkin’s approach, address some of its critics as well as to suggest the possibility of further development of this discussion in the context of current global constitutionalism. In the first part, three thesis of Dworkin’s approach are reconstructed. The first one claims that international law requires interpretative understanding which should be grounded in the political morality of the international community. The second thesis can be formulated as follows: the legitimacy of political power at the national and international levels is uniform. The third thesis demands the implementation of the principle of salience in international law as the basic structural principle. After discussing critically Dworkin’s theory, in second part the article proposes a constitutional interpretation of the new philosophy for international law. Two conditions of global constitutionalism have to be satisfied by the theory in order to consider it as a constitutionalist approach. The first condition is the primacy of individual rights and second is the primacy of constitutional norms within the system. The conclusion is that the conditions are satisfied for Dworkin’s new philosophy of international law and his principle of salience is in fact a deeply constitutional arrangement based on moral justification. Dworkin’s proposal constitutes only a rough sketch, however there is a potential for developments. Lawyers and philosophers have at least an intellectual responsibility for building new viable theoretical models for international law.

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Kant, Korsgaard i podmiotowość moralna zwierząt

Author(s): Tomasz Pietrzykowski / Language(s): Polish Issue: 2/2015

The paper discusses the views of Christine Korsgaard – one of leading modern Kantian moral philosophers – on the proper status of sentient animals. Famously, Kantian moral theory is considered as much less favorable to the idea of animal rights than the competing utilitarian tradition. Ch. Korsgaard however reexamines the foundations of Kantian ethics and comes to the conclusion that their best reading implies (contrary to Kant’s own beliefs) that not only humans but also sentient animals deserve to be treated as ends in themselves. Her interpretation and development of Kantian ethics aims to reconcile it with modern philosophical naturalism and contemporary scientific knowledge on the nature of living creatures. Ch. Korsgaard proposes convincing comprehensive picture of naturalistic axiology and its ethical implications. Nonetheless, I raise two important objections that her views seem to give rise to – concerning the nature of human and non-human subjective selves as well as relation between moral and legal rights. The paper is based mainly on the opinions presented by Ch. Korsgaard during the 3-days seminar held in Oxford (2014) devoted to discussion of her views on the status and rights of animals from the perspective of Kantian ethics as well as on her numerous writings related to the subject.

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Prolegomene la Dreptul European Al Drepturilor Omului

Author(s): Ion Dragoman,David Ungureanu / Language(s): Romanian Issue: 2/2015

Understanding the concept of the European human rights (DEDO), especially when the doctrine has not fully defined the specific features, involves analyzing successive issues related to political and legal theories on: European Governance and Human Rights, right and individuals, European law, human rights, rules, principles and springs DEDO, scope and subjects of legal relations DEDO, science DEDO relations with other scientific disciplines, DEDO influence on other system of legal protection of human rights.

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HETERO/AUTO/-NOMIJA U KONTEKSTU SAMO/ DETERMINIZMA BIOLOŠKIH OPORUKA

Author(s): Suzana Vuletić,Silvana Karačić,Gordana Pelčić / Language(s): Croatian Issue: 2/2018

A contemporary view of death is characterized by a sequence of uncertain and difficult questions arising from the clinical context, out of the legal and bioethical domains of taking difficult existential decisions related to the last moments of human life. This step requires a full rationality of free autonomy, which can be significantly disturbed by the loss of mental ability, conditioned by certain illnesses in certain moments. Therefore, patients should have a legislative opportunity to clearly state their wishes regarding the required treatment or the withdrawal in previously prepared guidelines of anticipated medical dispositions of the biological testaments for (non) treatment or the appointment of a surrogate representative of treatment choice at the terminal phase, in case of limited decision-making ability. The signed biological will could greatly contribute to a dignified mode of dying, consistent with the choice of autonomous patient’s end-of-life care values, which can often enter into collision from a heteronomous perspective of a surrogate decision-maker. With the biological will we could overwhelmingly overcome the difficulties of the clinical dilemma of existential decisions: Physicians would be more reliant on choosing care in urgent health care plans in crisis situations, the patients could provide the assurance of their self-determination while the surrogate rulers could be largely released from the pressure of responsibility.

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Recenzja książki Anny Stawarskiej-Rippel Elementy prywatne i publiczne w procesie cywilnym w świetle prac kodyfikacyjnych w Polsce (1918–1964). Studium historycznoprawne, Katowice 2015, 436 s.

Author(s): Dorota Malec / Language(s): Polish Issue: 4/2017

The review highlights the key points of Anna Stawarska-Rippel’s monograph which presents the process of codification of civil law procedure in Poland from 1918, the year of Poland’s independence, until the enactment of a revised Civil Law Code in 1964. The book is based on an impressive collection of primary data and makes full use of the literature in that field. It off ers important insights into the codification processes after World War II as well as some probing reflections on the language of the law and the legal discourse. However, the analysis would have been put on firmer ground had the author defined her key terms, i.e. ‘private’ and ‘public elements’, and made clear in what way they differed from private and public interest respectively.

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Law and Legal Science in the Age of Big Data

Author(s): Zsolt Ződi / Language(s): English Issue: 2/2017

The paper aims to contribute to the understanding of the connection of law and legal science, on the one hand, and the Big Data phenomenon, on the other. The connection of Big Data and law can be thematised in several ways. This article makes a distinction whereby there are two levels of interplay between Big Data and the law (and legal science). Big Data on the one hand can be the subject of legal regulation and legal science, but it also can be a tool for better, ‘predictive’ law making and lawyering. This latter is also true for legal science: Big Data opens a whole range of possibilities as a new tool.

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The Question of the Value of Human Life in Theoretical Discussions and in Practice. A Legal Philosophical and Theory of Law Perspective

Author(s): Anetta Breczko,Marta Andruszkiewicz / Language(s): English Issue: 23/2018

The value of human life has a basis in cultural norms, both moral and religious. In democratic states it is reflected in the right to life, which has become a foundation for all other human rights and freedoms. Nonetheless, in contemporary legal philosophical thought, the treatment of life as an absolute value and as absolutely inviolable is not the only perspective. Alongside the traditional principle of the sanctity of life, there are those who propose to give precedence to its quality. That quality is gradable and depends on biological and genetic factors. Such a view brings to light new aspects of legal interference in the domain of the life of individuals. It justifies, for example, the permissibility of abortion in the case of a foetus suffering lethal defects. It raises the possibility of allowing claims for redress for harm done by bringing about wrongful life (“life that is not worth living”) or wrongful birth. These issues are highly controversial from an axiological standpoint, while also becoming a source of moral dilemmas. At the same time, given the progress currently being made in biotechnology, they demand legal regulation.

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Some Comments on Abortion Discourse

Author(s): Małgorzata Z. Król / Language(s): English Issue: 1/2015

The article presents selected problems relevant for the contentious issue of abortion and the related discourses indicating that one of the characteristic features of abortion discourse is its mediatization. The author aims to characterize the constraints on abortion discourses and the varied environments in which the different types of such discourses emerge. Abortion discourses are sociolinguistically diverse and may exhibit different styles and modes of expression. Although they share the scope of the subject matter involved as in all cases they are centred on abortion-related problems, the field of discourse in each case is defined by the nature of the communicative situation in which a particular discourse is embedded. All abortion discourses are underlined by particular assumptions concerning the nature of human life and its beginning, as well as the issues of the dignity and liberty of the human person. The author suggests that what really hampers abortion discourses and prevents their participants from reaching a consensus is the fact that people who engage in such disputes are faced with the incommensurability of the values which translate into decisive factors and the final arguments used by interacting discussants. Another problem is posed by the fact that the two extreme positions in the debate are formulated with the use of different styles and registers, which results in the clash of asymmetric discourses. Finally, it is not insignificant that subjectively important values are much varied and that they must coexist with two main sets or “families” of abortion-oriented fundamental values present in the polarised camps.

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Uzasadnienie zdania odrębnego jako wypowiedź dialogiczna na przykładzie wybranych orzeczeń Trybunału Konstytucyjnego

Author(s): Maciej Wojciechowski / Language(s): Polish Issue: 1/2018

This paper claims that the statement of reasons for a dissenting opinion is a dialogical utterance. Due to the limitations imposed by the secrecy of judicial deliberations it is impossible to describe the direct exchange of arguments between the members of a judicial panel. To some extent, however, we can assume that the presented opinion of the court and a dissenting opinion represent the end result of such deliberations. It is not the same, however, to call both of them examples of dialogue. Real-time dialogue consists of a multitude of utterances of people taking part in a discussion. In the case of the final statement of reasons of the judgment and of the dissenting opinion, the number of utterances is in general limited to two separate large blocks of sentences, each block being one utterance. For this reason we can distinguish between the notion of ‘dialogue’ and that of ‘dialogical utterance’. Such a distinction was proposed in Polish theory of literature in the 1970s by J. Lalewicz. According to Lalewicz, a dialogical utterance depends on the preceding opinion, and its main feature is the ability to become a reference to that opinion. Apart from presenting forms of dialogicality, the article aims to explain these forms by presenting features other than the personal style of legal writing of a given judge. Three factors that might explain the higher or lower level of dialogicality in dissenting opinions are presented. The first factor is of an institutional nature, that is, the way work in the court is organised. The second factor is what I call a potential for an argument. Finally, the third one is the axiological importance of a given case.

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VERTYBĖS IR TEISĖ

Author(s): Darijus Beinoravičius / Language(s): Lithuanian Issue: 95/2018

Values, that embody and express the common interests of the whole society or of its majority at least, are regarded as social values. Contemporary society recognizes as inalienable the natural human rights to life, health, property, honor and dignity, inviolability of private life, religion and freedom of conscience, and thought, etc. It can be maintained that, in a society where human rights are respected and the interests of every individual are recognized, values such as freedom, honor and dignity become the fundamental values for the society as a whole. The article analyzes the process of value “socialization”: how value becomes the rule of human behavior, how it finds its final confirmation in legal principles and norms. Since the legal principles are based on values, they are flexible and adaptable to the changing society and its value system.

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FILOSOFIJOS KATEGORIJOS TEISINIAME REGULIAVIME

Author(s): Darijus Beinoravičius / Language(s): Lithuanian Issue: 97/2018

Human behavior is regulated by many factors. Among them we identify religion, traditions, laws, courts, state institutions, influential individuals, emotions, mind, heart, conscience. Legal regulation of a society, however, is one of the most important legal theory categories. The reasons for legal regulation are different in different systems. For example, in a state dominated by a classical system, the behavior of people is regulated by legal means that pursue to standardize the aggression of one social group against other social groups. On the contrary, in a democratic state, the legal regulation seeks to coordinate the interests of the opposing groups, thereby maintaining social cohesion in the society. As practice shows, the democratic form of legal regulation is more effective when legal means are aimed at regulating human relations to make them fair and consolidating the rights of all social groups. This means that legal regulation can be called the socialization of human behavior for the protection of the society and development of resistance to domination and enslavement.

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Неприкосновенность собственности в философско-правовом видении

Author(s): Anatoly Jakovlevitch Ryzhenkov / Language(s): Russian Issue: 2/2018

The paper is devoted to understanding the philosophical importance of the principle of inviolability of property. The conclusion has been made that the idea of the inviolability of property is characterized by an inherent latent conflict between the individualistic and collectivist attitudes that, in turn, can be traced to the relation between philosophical categories of part and whole. The inviolability of property means that the items that belong individually to a certain person or group of persons may not, without the consent of the owner, become the property of someone else. In other words, it is assumed that the owner together with the property belonging to them is isolated from other members of society. The opposite approach is based on the fact that society as a whole is primary in relation to its constituent elements. Moreover, it has its own needs, which have priority over the needs of individuals and social groups. In this case, property is only a social convention, which is more permissive than mandatory, i.e., it can be revised if necessary.

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КОРУПЦИЈА ИЗМЕЂУ ПРАВА И МОРАЛА

Author(s): Slobodan Vuković / Language(s): Serbian Issue: 4/2004

Topic of the analysis in the article is a relation between phenomenon of corruption toward law and moral. Author thesis is that presence of corruption in society depends on chances to realize law norms, e.g. on degree of real power of laws. At the same time this degree depends of how much is wide consensus on particular norms, wether they are justifible and acceptable, are they perceived as obligatory and in what degree people have trust that breaking of them will be sanctioned. On the other side, respect of the norms ddepends very much on the gap between declared law and its empirical application. If this is a case, then in society condemnation of corruption cases will rarely be condamned, and if there is any it will be as a rule be far below the degree asked for by the produced damage.

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Pilypo Orlyko Konstitucija: šiuolaikinės konstitucinės ir administracinės teisės kategorijos

Author(s): Julija Vaščenko / Language(s): Lithuanian Issue: 99/2019

Ukraine and the whole Europe are truly proud of the document signed on 5 April 1710. The document is considered to be the prototype of a constitution of a modern democratic state. It is widely known as the Constitution of Pylyp Orlyk. Researchers consider this document as the first Ukrainian constitution and the first European constitution which is based on the democratic principles of the state structure. This publication provides the results of research on the provisions of the Constitution of Pylyp Orlyk from the perspective of the categories of modern Constitutional and Administrative Law. Based on the analysis of the document, as well as the schools of thought in its interpretation, it is concluded that this document was based on such modern principles of the Constitutional and Administrative Law as: the rule of law, the separation of powers, democracy, humanism, social justice, decentralization and subsidiarity. The document contains legal norms devoted to such institutes of contemporary Administrative Law as administrative justice, public service law, municipal law, public property, as well as to governmental regimes. Progressive ideas implemented in this document are of high topicality even today, and are interesting for both scholars and practitioners.

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