Niezbędność filozofii dla rozwoju życia społecznego

Author(s): Maria Szyszkowska / Language(s): Polish Issue: 2/2015

The text proves the importance of philosophy for the development of science, including legal science. Philosophy as a source of wisdom would serve for the politicians in passing just laws. Philosophy is now being eliminated from the education process. The result is that the lower values dominate now, such as material and biological values. They also exist as a result of political liberalism. The lack of influence of philosophy on the consciousness of individuals eliminates higher values from the influence on society as a whole.

PRAVNA OSOBA (PERSONA FICTA) KAO TITULAR LJUDSKOG PRAVA NA PRIVATNOST – U SLOVENIJI I KOMPARATIVNO

Author(s): Boštjan Tratar / Language(s): Croatian Issue: 2/2017

The right to privacy – representing a delimited sphere and/or space that is not public and where individuals can, without external influences, freely realize their right to form their personality – is one of the most important human rights guaranteed by democratic constitutions to individuals, i.e. natural persons who are, in principle, fundamental holders of human rights. However, at the constitutional level the question arises as to what extent human rights can be extended to legal persons, these being artificial forms created by legal order, in general (the theory of piercing the corporate veil is mentioned in this regard), and as regards the right to privacy in particular. In the article the author presents the case-law of some states on whether or not legal persons are recognized as holders of human rights to privacy and, if so, to what extent, with a special view to the decision of the Slovene Constitutional Court (decision No U-I-40/12), which, along the lines of foreign legal systems, recognizes legal persons’ privacy of communication and privacy of space, although less intensely as individuals’.

Interdyscyplinarność i integracja zewnętrzna nauk prawnych w świetle postmodernistycznej krytyki

Author(s): Jakub Łakomy / Language(s): Polish Issue: 1/2011

The aim of the paper is to reconstruct the critique of the concept of “external integration of jurisprudence”, which has been widely discussed in polish jurisprudence in the past decades. I base my critique on an analysis of the concept put forward in Polish literature by Jerzy Wróblewski and Kazimierz Opałek. I also consider the postmodern critique of the views on interdisciplinarity held by classical jurisprudence. The first part of the article consists of: a) general remarks on some doubts and ambiguites concerning understanding of “postmodernism” and common misunderstandings of this term and b) some remarks on the relations between law and postmodernism. In the second part of the article, I provide a sketch reconstruction of the basic traits of postmodernism, especially those characteristics, which determine the postmodern attitude towards interdisciplinarity. In the third, main part of my article I show how the positivist, modern concept of “external integration of jurisprudence” is incompatibile with postmodern views on science, research, knowledge, epistemology and disciplinarity. I provide an in-depth critique of the presumptions and presuppositions underlying this concept. Finally, I ask: “Quo vadis, interdisciplinarity’’? What about the future of interdisciplinary research in the field of law, when the postmodern methodological storm has swept away the old instruments? Here I introduce the concept of “postdisciplinarity”.

O intuicji w analitycznych teoriach prawa

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

Contemporary analytic theories of law attempt to provide hermeneutic answers to the metaphysical question about the nature of law with intuition playing a pivotal role in these attempts. It is doubtful, however, whether intuition can meet metaphysical and hermeneutic expectations of such theories. The article points out divergent ways of understanding intuition in analytic theories of law. Moreover, such theories face a dilemma of choosing between the „hard” ontology of law, to which intuition would have a privileged epistemic access, and „soft” ontology which entails multiple types of intuition. If collective consciousness, to which the intuitions that constitute the concept of law allegedly belong, is indeed the metaphysical foundation of contemporary analytic theories, they are hardly discernible from empiricism. A promising complementary approach to such a way of theorizing about law— where the vocabulary of intuitions is prioritized—can be provided by analytic pragmatism extending analysis to the practices in which words acquire their meanings.

Skutki prawne naruszenia zasady partycypacji społecznej w rewitalizacji. Wykładnia przepisów ustawy i analiza orzecznictwa

Author(s): Jakub H. Szlachetko / Language(s): Polish Issue: 3.3/2018

The Act of 9th October 2015 on revitalization sets out the principles and procedures for the preparation, conduct and evaluation of revitalization. Among the principles of revitalization, legal norms of particular importance for the process of interpretation and application of this law mention the principle of social participation. According to the aforementioned provision the municipal authorities perform public tasks in the area of revitalization: „with the active participation of stakeholders at every stage (social participation)”. This is one of several legal principles expressed expressis verbis in this legislative act. The principle of social participation means the need to allow residents to participate in revitalization. The authorities of the municipality can do this in various forms (eg social consultations, revitalization committees). The author of the article is interpreting the provisions of the Act on revitalization, other laws, as well as judicial decisions to determine the legal consequences of violating the principle of social participation in revitalization.

«УМНЫЕ МАШИНЫ» – ВЫЗОВ ДЛЯ ЭТИКИ И ЮРИСПРУДЕНЦИИ

Author(s): Anton Vasilev,Olga Vasileva,Dariusz Szpoper / Language(s): Russian Issue: 2/2018

The article deals with the legal aspects of the use of artificial intelligence technology. The authors emphasise a low level of normative regulations which concern the use of artificial intelligence in Russia, taking into account the active and widespread application of this technology in various spheres of life. Developments in the field of artificial intelligence raise very seriousethical and legal issues. Among legal issues, such as the nature of artificial intelligence, the existence of a legal personality, the problem of liability for damage caused by artificial intelligence, the impact on the legal profession, etc., need to be considered. Particular attention is paid to the need to develop a legal concept of artificial intelligence in order to build an effective model of legal regulation. The article analyzes the attempts to define artificial intelligence in specialist and legal literature. The use of such concepts as neural networks, machine learning, super intelligence, supercomputers is underlined. Single attempts to develop legal definitions in South Korea and the European Union are also mentioned. Following the results of the research, the authors proposed the following features of artificial intelligence: the existence of a technical device or cyberphysical system; ability to receive, process and transfer information; ability to work autonomously; self-learning based on the analysis of information and experience; self-awareness; thinking and the ability to make independent decisions.

Carl Schmitt Revisited by the United States and the Terrorist

Author(s): Karolina Mendecka / Language(s): English Issue: 1/2015

In the article “Carl Schmitt Revisited by the United States and the Terrorist” it is shown that Carl Schmitt’s morals, standards and views can be noticed in the United States policy in the context of so-called “war on terror”. According to the article, Islamic terrorists are a mirror image of Schmittan revolutionary partisan. It is discussed how terrorists are, as a problem, treated by the USA, which in author’s opinion displays many Schmittan features. Schmitt is one of the few who claim that the sovereign state is above the legal order and can set boundaries. It is therefore shown that the USA seem to have rushed into Schmittan “state of exception”, where norms are suspended in order to achieve security, resembling the thinking of the G.W. Bush administration. It is illustrated how the USA seem to be following Schmitt’s ideology, especially by making exceptions to international rules, but also putting the terrorist outside of the scope of international regulations. Lastly, author tries to answer the question if it is justified to follow Schmitt and obey to the rule of law.

LA FAMILLE OUVRIERE. UNE ANALYSE CHRONOLOGIQUE DE LA REGLEMENTATION DES SYNDICATS EN ROUMANIE

Author(s): Dana Volosevici / Language(s): French Issue: 1/2018

Le salarié roumain du XXIe siècle s’identifie plutôt dans l’action individuelle que dans celle collective et participe timidement à la vie sociétale. Son choix vient d’un cadre législatif faible, mais aussi d’un insuffisant usus d’action démocratique, conséquence des bouleversements qui ont caractérisé la société roumaine dans le dernier siècle. L’article une propose analyse chronologique de la réglementation légale du statut des syndicats en Roumanie.

The Role of the Government in the European Space

Author(s): Cătălina Szekely / Language(s): English Issue: 1/2014

This study aims at presenting the evolution of the separation of powers principle, in general, and of the executive power, in particular, at identifying the responsabilities of the executive and at specifying the government’s role in the current European context. The principle of separation of powers is a fundamental principle within the rule-of-law state, being the guarantor of the genuine, traditional democracy.

A Comparative Assessment On Same-Sex Relations Ship Regulation Freedom In The European Area

Author(s): Oana Răvaş / Language(s): English Issue: 1/2014

It may be noted that some legislation assimilates the same legal status as marriages between persons of the opposite sex and for people of different sex, while in other countries, the legal system is different, trying some similarities, while others prohibit any formalization of home these bonds and hence the economic effects driven by them. Similarly, regulated and free union of opposite-sex outside marriage officially recognized. Also, given the fact that in Europe some states allowed gay marriage and others do not, the question of the effects of such marriages in states that do not recognize. In other words, it can make a major debate to what extent non-recognition of such marriages can be considered as a breach of Art. 12 (right to marry) and even art. 8 (right to private and family life) and even art. 14 (prohibition of discrimination) of the European Convention on Human Rights.

GOOD GOVERNANCE IN THE CONTEMPORARY SOCIETY

Author(s): Cătălina Szekely / Language(s): English Issue: 2/2014

This paper approaches some essential concepts representing the foundation of a modern society, of a rule-of-law state. All the political parties publicly active made it their goal and objective the obtaining of governance. In order to implement their governing policies, they must use the mechanisms that are specific to a rule-of-law state. To govern is not easy; to govern well represents not only a legal obligation, but also a moral one. The people must be “served”, its interest is primordial, and the governing must achieve the public purpose.

THE APPLICATION OF THE NATIONAL SOVEREIGNTY PRINCIPLE IN THE CURRENT EUROPEAN CONTEXT

Author(s): Cătălina Szekely / Language(s): English Issue: 2/2015

The paper addresses a fundamental principle of the functioning of the state and investigates the context in which it applies today. Ancient Greek philosophy principles are carried over in time and they adapt to the new European and international context. Europe turns. After each challenge or crisis, it turns. It starts from the ancient philosophy values and develops new visions. Sovereignty no longer appears as a national attribute, it adapts to the new structures; the principle is respected as such, but is given a make-over because the context changes.

Hanefi Usulünde Fasid Sayılan İstidlallerden İstifade İmkânı

Author(s): Mustafa Çil / Language(s): Turkish Issue: 2/2014

Principles of Islamic Jurisprudence, in addition to its mission of determining the ruling methods from the Islamic sources, assesses the possible methods from various point of views and decides on their validity. The aim of this work is to review the methods that are not validated by Hanafi School of Thought Jurisprudence, analyses of the reasons for their invalidation, and possibility of benefiting from those in judging or in another purposes without violating the essential principles of the Hanafi School.

Культурологічні фактори та природа конституцій: історія та сучасність

Author(s): Dmуtro Nikolaevich Belov,Bogdana Bogdanivna Shandra / Language(s): Ukrainian Issue: 3/2019

The purpose of the article. The purpose of the article is to find out the place and role of culture in the process of forming the foundations of constitutionalism in the state, and in particular the Constitution as the Basic Law of the state. The methodological basis is the post-positivist methodology of research into the problems of contemporary Ukrainian constitutionalism, which is an orderly system of mutually agreed ideological principles and methods that allow to study comprehensively and comprehensively the legal properties of constitutionalism and to determine the essence and content of legal links between its basic elements. The scientific novelty is that the work is a comprehensive scientific study of modern Ukrainian science, which substantiates a comprehensive scientific theory of cultural factors in the Basic Law, designed to understand and explain the science of constitutional law based on certain conceptual foundations. Conclusions. It is the Constitution that determines the formation and development of the legal culture in the state. Therefore, we must follow the rule: what are the Constitution of the country and its legal culture. In addition, we believe that, unfortunately, the constitutional process is too politicized today. In our view, the fiercest political struggle to adopt a form of constitution suitable for one party is ongoing. And in fact - for power - everyone wants the maximum of power. Including through its own Constitution, which was somehow implemented. However, the Basic Law must be adopted not for reasons of political expediency, but to be a fully legally valid document, taking into account the achievements of world law, with the strictest adherence to all legal procedures. After all, the constitution should be the main document of the state for at least a decade.

Judges’ Virtues and Vices: Outline of a Research Agenda for Legal Theory

Author(s): Tomasz Widłak / Language(s): English Issue: 2/2019

This article focuses on the issue of applicability of virtue theory to legal theory in civil-law (statutory) jurisdictions and suggests research areas and problems in that respect. The author starts with an assumption that the notion of “virtue” and virtue ethics should be used for the purposes of legal theory starting from references to judicial ethics and normative theory of judicial decision-making. This approach looks especially promising for the purpose of systematizing the chaotic moral language that is being currently used in Poland in reference to judges, their skills, and qualities of their character, which in turn may lead to formulating an explanatory and normative theory of the judicial role that better addresses the observable deficiencies of legal deontology. The author suggests research that could proceed from interpretatively uncovering what are believed to be specific judicial virtues and vices, considering different aspects of the wider Polish and European legal culture of civil law countries (included but not limited to legal and ethical standards, public discourse, legal and other literature, historical and fictional examples, and role models). With respect to judicial ethics, existing virtue theories, including non-eudaimonistic ones, may be examined for the purpose of identifying the model of virtue best suited to the particular nature of the judicial profession. The aretaic (rather than deontological or consequentialist) perspective may enable legal scholarship to take a new path in the debate on the status and qualities of the judiciary, including the problems relating to judicial independence and the selection of candidates for judicial offices.

Студентски стихотворения

Author(s): Dobrinka Chankova / Language(s): Bulgarian Issue: 1/2020

Transitional Justice and the Constitutional Crisis: The Case of Poland (2015–2019)

Author(s): Michał Krotoszyński / Language(s): English Issue: 3/2019

During the last four years the situation in Poland has been a matter of interest to the worldwide legal community mostly due to the constitutional crisis. Yet, the years 2015–2019 were also a time of a revival of transitional justice measures, such as cleansing the public sphere of communist symbols, remodelling of lustration law, and further reduction of pensions of communist secret service employees and officers. In this paper I argue that these spheres are interconnected and that Poland’s constitutional crisis has a transitional justice dimension. I start with an overview of retrospective instruments dealing with the communist past introduced in the last four years. Next, I turn to the constitutional crisis itself, discussing its possible explanations and transitional justice aspects. In the end I claim that the dramatic constitutional backsliding that Poland has recently experienced can be explained not only as a power grab, but also as a result of the tension between the rule of law and the principle of individual responsibility on one hand – and the resort to collective accountability in an attempt to get what the government sees as justice on the other.

Uniformed Services Pension Amendment Acts in Poland as Part of State Politics of Memory

Author(s): Mateusz Grabarczyk / Language(s): English Issue: 3/2019

The article is an analysis of the regulations regarding the reduction of pensions of former officers of the People’s Republic of Poland’s security services as an element of state politics of memory, presenting the Uniformed Services Pension Amendment Acts of 2009 and 2016 from the perspective of transitional justice.Whilst investigating the admissibility of using such a retribution mechanism, the author draws attention to the purpose of this type of regulation. Reducing pensions has, in fact, two goals – a retrospective one and a prospective one. The retrospective goal is about administering historical justice by penalizing a specific group of people using various mechanisms (in this case administrative sanctions). In the prospective aspect, it is an element of institutionalizing memory and building a specific political narrative. As a consequence, apart from commemorative practices, it aims to produce and disseminate knowledge in public space, while clearly rejecting the past regime.In relation to the Uniformed Services Pension Amendment Acts, while the Act of 2009 was to some extent aimed at the retrospective goal, the 2016 Act is primarily an element of politics of memory used by authorities to control the recollection of past events by explicitly condemning the previous system and all persons in any way related to it. For this reason, the author focuses on the mechanism of reducing pensions as one of the elements of politics of memory in Poland.

Prezumţia de nevinovăţie şi societatea controlată

Author(s): Mihai-Bogdan Marian / Language(s): Romanian Issue: 3/2016

In the EU Directive 2016/343 of the European Parliament and of the Council, additions were made regarding the presumption of innocence and the right to be present in criminal proceedings. The new regulation comes to reaffirm EU commitment to meeting the individual rights and freedoms, but in terms of its necessity is likely to signal some slippage in the evolution of contemporary society, liable to jeopardize the effective operation of the presumption of innocence. Some of these slippages may include certain side effects related to redefining relations between the public and private sphere as well as developments in telecommunications technology, which expose the contemporary society to the exercise of absolute control.ties.

Public Interest and Access to Justice: A Liminal Analysis

Author(s): Jan Winczorek / Language(s): English Issue: 3/2020

The paper argues that there exists a contradiction between access to justice and public interest. It substantiates this claim by reviewing selected arguments for access to justice and by referring to empirical evidence. The contradiction is then interpreted using a sociological theory of law, which enables establishing the structural reasons for such a clash. In order to reconcile access to justice with the public interest, the legal system must develop the semantics allowing for a better understanding of social inclusion conditions. In particular, the legal system must finally do away with pre-modern charity-oriented concept of access to justice, be able to grasp access to justice in its totality and reflect on conditions of legal inclusion. If it fails to do that, it is doomed to reproduce the conflict. The concept of access to justice developed by Cappelletti and others in the 1970s is a good point of departure here, but it is by far insufficient.