Filozofia Publiczna i Edukacja Demokratyczna, 2013, Tom 2 Nr 2
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Item Filozofia Publiczna i Edukacja Demokratyczna, Tom 2 (2013) Nr 2 – Spis treści / Contents(Wydawnictwo Naukowe Instytutu Filozofii, 2013)Item Redakcja / Rada Naukowa / Strona tytułowa / Editors & Editorial Board / Title page(Wydawnictwo Naukowe Instytutu Filozofii, 2013)Item Kronika(Wydawnictwo Naukowe Instytutu Filozofii, 2013)Item Kilka słów o klinikach prawa(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Klauze, MagdalenaClinical teaching reflects the need to combine theory in the teaching of the law and practical skills. It creates the possibility of „being a lawyer” still at the stage of university education. Currently, legal clinics program was introduced at all Polish law schools – both public and private. The essence of legal clinics is to enable students to acquire the necessary skills in „safe” conditions under the guidance and supervision of the academic teachers. It should be remembered that the aspect of teaching is the primary purpose of the law clinics. This means that regardless of the social mission, the clinics give free legal assistance to poor people, it is as if only „side effect” of the educational process.Item Prawo sędziowskie na Węgrzech(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Visegrády, Antal; Zalewska, MonikaCurrently, there is a big discussion about judicial activism in continental legal systems. This phenomenon is rather negatively described, as the breaking the fundamental principle of separation of powers. In this paper, it will be demonstrated that, although Hungary belongs to civil law system, where judges are not allowed to be a lawmakers, actually they do make law. In Hungarian law, there is a great number of cases when judges evidently make law. What is more, their activism has a very positive impact on the whole legal system; judges make law more just and uniform, and at the same time enhance its certainty. In the following parts of the paper, it will be described the lawmaking role of judges, particular in legal fields such as: civil law, criminal law, labor law etc.Item Wartości w teorii prawa Jerzego Wróblewskiego(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Leszczyński, JerzyThe article presents the role of values and evaluation practices in Jerzy Wróblewski`s legal theory. An overview of the theory includes here the interpretation and the application of the law, in both of which Wróblewski shows the axiological choices made by a lawyer. These choices are only partly limited by the interpretative directives, those generally accepted in a legal culture. The author of the article describes the two ideologies (normative theories), distinguished by Wroblewski, of the legal interpretation (and of the application of the law), which are contradictory to each other as they refer to opposing values: legal certainty and flexibility of law. A third type of ideology, identified by Wróblewski refers to the value of rationality and tries to mitigate the contradictions of the previous two. Some similarities between Wróblewski`s legal theory and the theory of H.L.A.Hart may allow to treat him as the co-founder of a sophisticated version of legal positivism.Item Wojna z terroryzmem a filozofia prawa. Uwagi na marginesie wydarzeń po 11 września 2001 r.(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Dobrzeniecki, KarolThe article examines to what extend existing philosophy of law and especially natural law doctrine may be applied in the discourse on legitimization of a state fighting terrorism. Since the 9-11 attacks issues of extraordinary threats to public safety occur regularly in scientific discussions among ethics, sociologists, political scientists, security experts. This topic has also became visible in legal science, even in its most unworldly discipline which is philosophy of law. The article is intended to present general tendencies in legal discussions after 9-11 with special reference to aristotelic- tomistic tradition of understanding the notions of common good, the aim of a state and of law.Item „Zjednoczona w różnorodności” – wyzwanie dla europejskiej tożsamości prawnej na przykładzie różnorodności językowej(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Doczekalska, AgnieszkaThe paper aims at investigating how the European Union, which bases European identity on the motto ‘united in diversity’ deals with the linguistic diversity of Europe. The paper focuses on how the EU developed its language system, especially: how languages, in which EU law is drafted, are chosen; how the concept of EU official and working languages is understood; what is the main challenge of EU legal drafting as far as languages are concerned.Item Przeszłość i przyszłość filozoficznoprawnej idei praw człowieka(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Pietrzykowski, TomaszThe idea of human rights has interesting history and even more interesting, if dim, future. The paper examines the main conceptual problems involved in the human rights-talk, its origin (in particular Ockham’s thought), evolution and critique (including Bentham’s argument commonly known as “nonsense upon stilts”, Marx’s attempt to demistify superficiality of the formal guarantees of freedom as well as Burke’s warnings against purportedly universal and abstract truth of such artificial ideological inventions). The main concern for the future of the idea of human rights seem to relate, however, to gradual naturalisation of the image of human being and human life. Therefore, it is less and less clear why any rights may be reasonably founded on brute fact of membership in a given biological species. As a result, it becomes more and more doubtful why human rights are to conceived as inherently (conceptually) solely human privilege. Nowadays, this question emerges as the most important challenge for the idea of human rights in the XXI century.Item Paternalizm prawniczy a tożsamość polskiej kultury prawnej(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Skuczyński, PawełThe model of legal profession is one of the most important features of every legal culture and constitutional identity. The paper aims at explaining the identity of Polish legal profession according to their history and evolution of Polish political and constitutional basic ideas. The argument is that the strongly manifested element of this identity is lawyers’ paternalism. That means lawyers act to protect the interest of their clients often without an alignment or even against their clients will. This attitude toward the lawyer-client relationship is deeply rooted in Polish legal culture, especially in interconnection of two discourses. First is the egalitarian one which establishes the task of lawyers as to provide to everyone equal legal aid and to protect everyone’s rights and liberties. Second is the elitist one that tend to justify the claim that effective legal aid and the protection of right and liberties is possible only through some special abilities and skills of lawyers which not everyone could possess.Item Paternalizm w prawie i etyce zawodowej(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Łabieniec, PawełThe concept of the paternalism is known since the end of the 19th century. The paternalistic attitude has been criticized not only by liberals. According to this criticism the essence of evil of paternalism lies in the negation of the autonomy of persons who are the subject of paternalistic activities. However some forms of paternalism are considered as acceptable not only in legal regulations but also on the ground of the legal ethics. The text shows in what a way ethics of legal professions in the USA and Poland protects the autonomy of clients and under what conditions lets lawyers to act paternalistically.Item Czy pragmatyka jest u Kelsena możliwa?(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Zalewska, MonikaThe main goal of Hans Kelsen’s Pure Theory of Law is to build a science of law. Kelsen is looking for a valid conditions of legal science and find them in neokantian philosophy. However, in the last phase when he turns into linguistic paradigm, he can’t explain science of law through neokantian terms anymore. In this case the question arises, how to recognize law from other linguistic expressions. Normally one could recall context of such expression (pragmatical context). In Kelsen’s case this is impossible as he distinguishes between is and ought and postulates that we should study law only on ought sphere. Despite this I will try to demonstrate that the pragmatics is possible in Pure Theory of Law by transforming previous neokantian categories into pragmatic ones.Item Charakter władzy suwerennej w koncepcjach ładu konstytucyjnego Hansa Kelsena i Carla Schmitta(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Kaleta, Krzysztof J.; Koźmiński, KrzysztofThe purpose of this article is to review the controversy between two, potentially most influential legal theorists in 20th century, Hans Kelsen and Carl Schmitt. Their philosophical concepts: Schmittian decisionism and Kelsenian normativism, were based on different assumptions, leading their authors to variant practical conclusions. It is reasonable to infer that the differences in their visions of constitutional order were deeply rooted in different intellectual traditions – not only political (Kelsen’s involvement in defense of liberal democracy unlike Carl Schmitt, whose conservative attitude and critique of liberalism led to support totalitarian state and extreme right-wing ideology), but also theological (pantheistic idea of God and fideism; conflict between rationality and faith). So from this perspective „Pure theory of law” can be seen as pantheistic political theology, because „pantheism overcomes the opposition of God and World; the Pure Theory of Law accordingly overcomes the opposition of State and Law”. On the other hand legal philosophy of Carl Schmitt is inspired by the Roman Catholic theological concept of the miracle, whereby God is free from the laws of nature – and in consequence – the sovereign is not bound by the law and may decide exceptions to it.Item Tożsamość kulturowa w wykładni i stosowaniu prawa administracyjnego(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Zirk-Sadowski, MarekThe objective of the paper is a rough sketch of the process of development of cultural identity inside of the Polish administrative law. Interpretation of the public law in the country which finished process of transformation after the collapse of communist regime has a lot of difficult moments. Uncertain scopes of constitutional meanings and gaps in the set of legal principles are neutralized by the tendency among lawyers to identify with European legal culture and its values. The author of the text is deeply convinced that there is a need for legal version of the cultural identity based on European values. The paper comprises the concept of such identity in so called narrative version and descriptions of the development of the identity in the Polish judicial application of administrative law.Item Normatywizacja tożsamości zbiorowej w preambułach do konstytucji państw postkomunistycznych(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Młynarska-Sobaczewska, AnnaPreambles are parts of constitutions, which are visibly neglected in legal theory and constitutional law. They are defined as solemn introductions to constitutions, which indicate the sovereign, historical and political context of increasing the new constitutional order, main aims and principles – the foundation of constitution. Such elements are also commonly apparent in most of post-communist constitutions of European states. The article shows the integrative function of these preambles, achieved by using clauses creating and maintaining the identity of political community. The clauses with this function are identified as: statements regarding national and cultural heritage, declaration of sovereign as people or nation, and expression of common aims and fundamental principles of community. The article investigates these elements in texts of preambles to post-communist constitutions and indicates their role as tending to create the national identity.Item Konstytucyjność prawa jako podstawa demokratycznej kultury prawnej(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Korycka-Zirk, MilenaThe notion of the constitutionalisation of law is the basis of analysis in modern democratic legal systems. The constitution influences the application of law and the constitutional method is the main approach that describes this process. The constitutionalisation of law should be understood in a broader sense as aspect of legal culture created in the process of interpretation of law reflected by the idea of constitution. The judicial review made by constitutional courts as in Kelsen’s conception or by common courts as in American model must be guided by the idea of maximalisation of human rights support as the element of democratic legal culture. This conception is compatible with the knowledge about constitutional norms and the way they are applied.Item Tożsamość kultury prawnej a legitymizacja prawa(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Bekrycht, TomaszThe paper analyses some elements which create the identity of legal culture. These elements are determined by Greek philosophy, Roman law (the Mediterranean culture) and Christian solidarity. These included positive law (legem ponere), jurisprudence, academic teaching, legal text, axiological autonomy of law, Roman law as origin of civil law and its reception, legitimization of law. The paper focuses particularly on problematic aspects of legitimization of law. In the literature of jurisprudence the problem of the legitimacy (justifying) of law is presented as the justification for the external validity of law or as a justification for the absolute validity. The history of philosophy of law demonstrates that we can talk about same arguments, which may be referred to as transcendental. Those are ultimate conditions of justifying any kind of being – here this particular being is the law. Firstly, this paper presents two trends (traditions) in the literature of philosophy that have developed the concept of transcendental method, and thus the content of the concept of transcendentalism. Secondly, it presents four arguments which justify the existence of law and which can be called the transcendental arguments.Item Mit pewności prawnej, czyli dlaczego nieprecyzyjne standardy prawne mogą być lepsze dla kapitalizmu i liberalizmu(Wydawnictwo Naukowe Instytutu Filozofii, 2013) Raban, Ofer; Strzyczkowski, FranciszekThis article reviews key aspects of the theoretical debate on the distinction between bright-line rules framed in clear and determinate language and vague legal standards. It is generally believed that legal rules provide more certainty and predictability, while legal standards afford flexibility, accommodate equitable solutions, and allow for a more informed development of the law. Furthermore, the article seeks to refute the idea that bright-line rules are superior to vague standards in regard to certainty and predictability. In first section, the author articulates the claims that legal certainty and predictability are essential for both capitalism and liberalism, and that these systems of economic and political organization therefore require legal rules framed in clear and determinate language. Second section undertakes a critical evaluation of that claim and argues that, oftentimes, the best-drafted clear and determinate rules would result in less certainty than alternative vague and indeterminate standards. Third section provides explanations why things are so, arguing that the law is but one of many normative systems; that competing economic, social, and moral standards are often couched in vague and indeterminate terms; and that many of these standards cannot be reduced to clear and determinate rules. As conclusion author pointed out on the extensive use of vague legal standards that with no doubt harbors dangers. Vague standards can easily mask arbitrariness, inconsistency, and injustice, and can also generate uncertainty. their proper use requires good faith, professionalism, and intelligence, and therefore depends on a high caliber legal profession.