Tradycja petrażycjańska w polskiej socjologii prawa albo o tym, co zyskaliśmy, nie odwołując się do Ehrlicha

Author(s): Zbigniew Cywiński / Language(s): Polish Issue: 74/2018

The goal of the presented paper is to show the qualities of Polish sociology of law thatarise from how it formed and developed under the influence of a particular theoreticalinspiration – the theory of Leon Petrażycki – specifically the ways that tradition has beeninfluencing the direction of studies, as well as the descriptions of legal reality. Accordingto the author, that influence is not limited to direct references, but has a broader scopethat is expressed in an approach to analyzing the social context and functions of legalphenomena. To further emphasize the originality of Polish sociology of law, the articleexplains the differences between selected elements of Petrażycki’s theories and theproposals of Eugene Ehrlich. The problems that were undertaken by both scholars, and arestill important to socio-legal studies, were presented from that point of view. Furthermore,the paper emphasizes the elements of Petrażycki’s works that did not appear elsewherein early socio-legal thought. The study field is crucially narrowed by not orienting ittowards analyzing and comparing initial ideas of Petrażycki and Ehrlich. Rather, it aimsto analyze the possible influence of different views on differentiating the subjects ofstudies as well as their goals. In particular, the paper draws attention to the way Polishscholarship uniquely perceives the problematics of the social nature of legal phenomena,legal pluralism, the relationship between law and state (and especially legal phenomenaunrelated to the state), legal culture and the usefulness of law as an instrument of socialchange. This is the perspective from which the paper presents selected Polish researchprojects and socio-legal analyses. The paper chiefly attempts to show a very particularquality of Polish sociology of law: the affirmation of legal phenomena that forms thebasis for critique of faulty and socially dysfunctional official law.

Leon Petrażycki jako twórca nowej teorii prawa naturalnego

Author(s): Maria Szyszkowska / Language(s): Polish Issue: 74/2018

Petrażycki’s philosophy of law remains significant in the 21st century and adheres to the concept of democracy as a system characterized by ideological pluralism. Leon Petrażycki is often mistakenly included in legal positivism. Alike Rudolf Stammler, he is the creator of the theory of natural law of with variable content. The essential necessity of ideals in the life of individuals and society demonstrated by Petrażycki is very important because the ideals perfect the human psyche. Petrażycki’s view indicating the importance of consciousness is significant beyond other scientific disciplines. All legal regulations depend on its level of development, and determine the way of management.

Public Truths and Their Legal Protection

Author(s): Mateusz Klinowski / Language(s): English Issue: 3/2020

n this paper I deal with two key concepts of a modern political theory, i.e. truth and public interest, and examine relationships between them. This subject seems particularly important in the context of the observed crisis of the liberal democracy and the spread of misinformation and fake news. I argue that there is a need to create a public system of protection designed to defend the logical status of those statements which have a value for the society. By using the notion of public interest as a tool for analysis, I demonstrate how such a system might be structured. I suggest employing existing public institutions to construct a system of public protection of the truth, yet supplemented by a coordinating body based on the ombudsman model.

Pluralism and Religion Again: Reply to Henry Hardy

Author(s): Beata Polanowska-Sygulska / Language(s): English Issue: 3/2020

The article constitutes a continuation of the discussion between Henry Hardy and myself, which was initiated in AFPiFS in 2019 as a result of my publishing a review of Hardy’s book: In Search of Isaiah Berlin: A Literary Adventure (2018). In the present commentary I address again the nub of our disagreement, that is the relationship between Berlin’s pluralism and universalist religions, like Christianity and Islam. According to Hardy pluralism undermines universalist religions. I distance myself from his standpoint and argue that it is possible to reconcile adherence to pluralist perspective in ethics with religious belief. Besides, I return to the objection raised in my review of Hardy’s book and take up the thread of conflicts within values. I sustain my charge that Hardy does not take seriously enough the implications of conflicts within single values.

Constructivism as a chance to break deadlock in interdisciplinary research combining international law and international relations

Author(s): Tadeusz Kolodziej / Language(s): English Issue: 29 (1)/2020

The purpose of this work is to prove that the theory of constructivism can be an escape from the trap of the constant struggle for influence, which now includes interdisciplinary research combining international law and international relations. For this purpose, the work is divided into three sections. In the first one, the author briefly presents the genesis of interdisciplinary research on international law and international relations. In the second part, the sceptical approach of international law researchers towards combined interdisciplinary research is presented. Also in this section, the theory of constructivism is characterised as a potential area for mutual cooperation between international law and international relations. In the final part, based on the relationship between international humanitarian law and the features of modern weapons, the author tries to prove that the theory of constructivism is perfectly suited to the analysis of contemporary relations between international law and the policies of nations on the international stage.

Финансовото право и осигурителното право като отрасли на правната система и проблемът за тяхното разграничаване

Author(s): Valeri Dimitrov / Language(s): Bulgarian Issue: 4/2020

The Bulgarian Public Finance Statute treats relationships related to the creation and spending of social insurance and health insurance funds. The regulation of these relationships belongs to two different branches of law - Financial law and Social Insurance law. Bulgarian social insurance legal theorists are evading the problem of the clear and sharp delineation between the ambits of regulation of financial law and social insurance law. This lack of a clear borderline requires more conceptual reasoning on these issues.

Law and Jurisprudence in the Face of Conflict. Between Neutrality and the Political

Author(s): Andrzej Bator / Language(s): English Issue: 3/2020

In the article, I contrast the contemporary legal dogma with the challenges underlying the political nature of law and judicial practice. Both the Continental jurisprudence and the judicial decisions issued by European courts are dominated by the dogmatic current – and treated as politically neutral acts. My intention is to carefully verify this quite common belief in this paper. Making use of H. Berman’s views, I assume that the present shape of jurisprudence and the judicial practice based thereon have been established as a result of political conflicts and that the legal dogma is capable of neutralising and solving modern-day political conflicts precisely because of the qualities of the said shape. It is therefore both a political and an apolitical activity. But this paradox is only apparent. In its strive to keep its paradigm alive, the dogma should be flexible in reacting to the challenges occurring in its political environment. It can – and should – modify the “buffer” of the theory upon which it is set in order to retain its core. In the article, I try to answer the question about the boundaries of the possible adaptation of jurisprudence and juridical practice with respect to claims raised by the domain of politics – claims currently articulated as the strongest by the so-called critical theories of adjudication. The final part of the paper is an attempt – based on the example of theses formulated in monograph by R. Mańko, W stronę krytycznej filozofii orzekania – to outline the said boundaries.

Critical Jurisprudence of Duncan Kennedy and the Status of the Theory of Legal Interpretation

Author(s): Jakub Łakomy / Language(s): English Issue: 3/2020

The article attempts to analyse the status of the theory of legal interpretation that emerges from the contributions of one of the representatives of critical legal studies (CLS). Legal interpretation is analysed by using concepts drawn from hermeneutic universalism and the post-structural philosophy of politics. The concepts of Duncan Kennedy, an American philosopher of law, are subjected to analysis, and his concept of adjudication, the indeterminacy thesis and the hermeneutic of suspicion is addressed. The paper puts forward the thesis that the political nature of law – alongside factors closely related to social structure – is also determined by factors which pertain to the cognitive subject. This fact has crucial importance for determining the status of the theory of legal interpretation.

The Political as an Analytical Category in the Critical Study of Case Law (Theoretical Model and Case Study)

Author(s): Rafał Mańko / Language(s): English Issue: 3/2020

The aim of the present paper is to operationalise the concept of the political in order to make it available as an analytical category for the critical study of judicial decisions (case law). The concept of the political is understood here, following, in particular, Chantal Mouffe’s agonistic theory, whereby it is a dimension of a social antagonism. Such an antagonism can be played out not only in the process of legislation (creation of abstract and general legal norms), but also in the process of adjudication (the so-called ‘application of law’, which, however, always has a creative element to it). As an analytical category, the political can be operationalized in order to subject judicial decisions to a critique which goes beyond the question of the ‘correct’ interpretation and ‘application’ of law in a given case, but puts in the spotlight real social, political and economic conflicts that are at stake. The analytical framework is exemplified by judicial decisions of the European Court of Justice.

Enactment of Legal Rules as a Link to Philosophy and Politics

Author(s): Marek Zirk-Sadowski / Language(s): English Issue: 3/2020

The choice of the formula of justice is being made by a law enacting body. In a democratic state parliament, or a political body is the main source of formulae of justice, out of the nature of things dominated by political discourse. Here we touch the most significant problem of enacting fair and just law: considerations on the topic of justice reveal a connection of the choice of the formula of justice with philosophy. The compromise of philosophy co-acting in the twentieth century with totalitarian systems refuted then ultimately a myth about a possibility of direct translation of philosophical categories to political categories. The political practice of a liberal democratic state rejects the idea of metaphysics, which would determine the current purposes of the politics. There is a suggestion that democracy faces philosophy in the order of thinking. In spite of such attitude, the author decides to allow for philosophical establishing of the liberal-democratic state, but also allowing for the simultaneous realizing that it is by itself justified as the most reasonable political practice of the state. The philosophy may justify democracy only accepting in turn itself as a variant of a democratic discourse, although the only one which is able to have some distance to mere assumptions of philosophy, without ceasing in this way it is being a democratic discourse. Such philosophy is actually the hermeneutics of politics.

REFLECTIONS ON COVID-19 FROM A CHRISTIAN PERSPECTIVE OF JUSTICE AND PEACE

Author(s): Flaminia Giovanelli / Language(s): English Issue: 71/2021

The COVID 19 pandemic has provoked many reflections. Here we present some of them formulated from a Christian perspective of justice and peace, that is, from the point of view of a Christian committed to building a world of justice and peace following the Social Teaching of the Church. The first group of reflections has to do with being a Christian per se, and therefore the virtues that used to be neglected and those that are currently exercised in the time of pandemic are taken into consideration: hope, humility, prudence, fortitude. The second group of reflections deals directly with the issues of justice and peace. During the pandemic, these issues manifested as closely related: “everything is related, everything is connected.” After a consideration of an existential nature on justice, follow others: on the principles of solidarity, subsidiarity, health as a global public good and on the crucial issues of work and respect for creation. Finally, the Christian proposal is indicated, which is that of the “culture of care” proposed in terms of integral ecology.

KELSEN’S IDEA OF A WORLD STATE (WELTSTAAT)

Author(s): Tomasz Widłak / Language(s): English Issue: 72/2021

This article offers an analysis of the meaning of the term ‘world state’ (Weltstaat) as used by Hans Kelsen in his work on international legal theory. The author argues that Kelsen understands the term solely as a legal concept. Reconstruction of Kelsen’s understanding of the notion of world state begins with a summary of Kelsen’s reductionist doctrine of the state and its identity with law. Secondly, the analysis moves to Kelsen’s radical deconstruction of sovereignty. Thirdly, Kelsen’s doctrine of evolution of legal orders along the axis of centralization is considered. These considerations lead to the assertion that Kelsen’s Weltstaat shows in fact more affinity with the concept of the international community rather than a fully-fledged state. The article concludes that Kelsen’s world state is only a theoretical possibility, a stage in the evolution of legal orders and a common point of imputation rather than a manifestation of any cosmopolitan agenda.

Kara śmierci: dlaczego zmiany radykalne?

Author(s): Michał Kaczmarczyk / Language(s): Polish Issue: 685/2021

Book-Review: Tomasz Snarski, Kościół katolicki wobec kary śmierci. Między prawem a filozofią i teologią, Więź, Warszawa 2021, 192 s. (Michał Kaczmarczyk)

Sunkiomis ir nepagydomomis ligomis sergančių asmenų orumas gyvenimo pabaigoje. Teorinės empirinių tyrimų prielaidos

Author(s): Jolanta Kuznecovienė,Gvidas Urbonas,Eimantas Peičius,Rūta Butkevičienė,Kristina Astromskė / Language(s): Lithuanian Issue: 2/2021

The content of the concept of dignity and its application in empirical health research is widely debated and there is no consensus on the issue. The aim of this article is to provide a theoretical framework for empirical research on the assessment of the dignity of people with severe and incurable diseases at the end of their lives. Although the results of qualitative research in various countries show that the concept of dignity significantly correlates with indicators of autonomy, we argue that even if a relational autonomy approach that, compared with the classic concept of authonomy, is more reliable, still it addresses individual self-determination as a core element. So, the relational autonomy perspective disregards individuals who have lost rational thinking skills. Therefore, in research on the dignity of people with severe and incurable diseases, autonomy can be considered as a necessary but not sufficient component of operationalization of the concept of dignity. In our view, the relational authonomy approach could be supplemented with the care ethic approach. It leads to de-universalization of care needs, takes into account sociocultural context, individual situatedness, etc. We argue that the relational perspective which integrates the care ethic approach enables researchers to reveal multivocality of dignity which must become a central premise of dignity research.

Review of the Book “Etică și dezvoltare comunitară” [Ethics and Community Development], Author: Ana Caras, Lumen Publishing House, 2016

Author(s): Loredana Terec-Vlad / Language(s): English Issue: 2/2020

The book “Etică și dezvoltare comunitară” [Ethics and community development] by Ana Caras, published by Lumen Publishing House from Iași, Romania, in 2016, brings to the forefront a new perspective on development at the community level. The ethical approach of the paper that was the basis of this volume comes to complete the anthropological perspective and the aim is to evaluate the “effectiveness of the community development program” (Caras, 2016). As projects that take place at the rural level must have an ethical basis, the author emphasizes a number of elements aimed at responsibility, supporting the specific cultural element and the training of the community leaders and members.

O nowej teorii prawa naturalnego, małżeństwie i wolności religii

Author(s): Krzysztof Motyka / Language(s): Polish Issue: 24/2021

This article has been written in connection with the Polish edition of the book What Is Marriage? Man and Woman: A Defense by three American representatives of the New Natural Law theory/school: Sherif Girgis, Ryan T. Anderson, and Robert P. George. In the first part, the article introduces the authors of the book as well as their theory/school and its position on marriage as a basic good. Then it discusses the case law of the US Supreme Court relating to same-sex marriage, including the role of the right to privacy in this regard. Particular attention has been paid to the decision of this court in the case of Obergefell v. Hodges, and especially its aspects relating to the freedom of religion that have previously received little attention in Polish literature on the subject. The article ends with a brief overview of several post-Obergefell cases related to same-sex marriage and freedom of religion, including the very recent case of Fulton v. Philadelphia.

Czy miesięcznice smoleńskie były uroczystościami religijnymi? Prawo a polska kultura religijna

Author(s): Zbigniew Pasek / Language(s): Polish Issue: 24/2021

Drawing on the example of the conflicts around the monthly Smolensk commemorations in 2017, the article discusses the issue of taking into account the tradition of Polish religious culture in cases pursued under article 196 of the Penal Code. Using the rule of cultural defense as an analogy, the Author recalls the historical roots of traditional Polish religiosity whose main features crystallized in the baroque (Sarmatism) era. One of the most important features of this religiosity is the close connection between religion and politics. The lack of statehood in the period of partitions and during the communist times enhanced, in a similar way to the diasporic culture of Judaism, the interconnections between religion and secular spheres of life. The Author suggests taking into account the cultural factor when analyzing cases pertaining to offending religious feelings that arise nowadays as the dominant character of traditional religious culture is being undermined. The clash between traditional culture and the liberal and leftist heritage of the Enlightenment (which determines contemporary Polish legal culture) has led to growing divergences in the symbolic sensitivity and perception of the axiological foundations of the State. The preamble to the 1997 Constitution illustrates these divergences well.

Loimos и stasis в старогръцкото мислене

Author(s): Georgi Gochev / Language(s): Bulgarian Issue: 54/2021

In Aeschylus’ Persae, a tragedy staged in 472 BC, the Persian queen Atossa has summoned the ghost of her dead husband, the great king Darius. After praising Darius for his fortunate life, she tells him that enormous calamities have fallen upon his subjects and the power of Persia has been utterly ruined. “How did it happen?“, asks Darius. “Did some stroke of pestilence or factional strife come upon the State?” (vv. 715-6, transl. Herbert Weir Smyth).A pestilence or a strife, loimos or stasis has hit the State, asks Darius? What is unusual in Darius’ questioning is the conjunction “or”. In classical Greek literature, loimos and stasis are not alternative evils, but an evil couple referring to the physical and social aspects of a same thing, namely a mode of living in which human differences no longer serve the common good of the community. What these two words refer to, is the polis community in a state of inversion.In the first part of his paper, the author explores the etymology and semantics of loimos and stasis. In the second part, he explores several texts in Greek literature, from Homer’s Iliad to Thucydides’ History, where loimos and stasis manifestly form a couple; at the end of this part, he also refers to a medical text, the Epidemics, part of the Hippocratic corpus, in order to draw attention on how the discourse sets up order and normality in the representation of an abnormal situation such as epidemy. In the third part of the paper, the author explores three aspects of what he sees as the polis community in inversion: the war on distribution of common goods; the abandonment of law; the impossibility of defining common criterion of truth.

OSSERVAZIONI SUL SISTEMA POSTCLASSICO DELLA GARANZIA DEI VIZI NELLA COMPRAVENDITA ROMANA

Author(s): Gábor Hamza / Language(s): Italian Issue: 1/2021

The guarantee for hidden defects means the seller's respsponsibility for the qualities established by law or in the contract and relating to the sold item. The essence of the guarantee is that the seller is responsible for the defects of the item, which he already had at the time of traditio. This obligation is focused not so much on responsibility as on the perfect fulfillment of the obligation. The rules of guarantee developed in the classical era in Rome remain largely unchanged even in the postclassical era and are thus incorporated into codified matter. A significant part of this regulation still originates from the edict of the aediles curules, who acted as magistrates for the regulation of trade relations.

Ogólnopolska Konferencja Naukowa „Człowiek – język – prawo”

Author(s): Alicja Labijak,Łukasz Piosik / Language(s): Polish Issue: 1/2021