Filozofia Publiczna i Edukacja Demokratyczna
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Applying legal narratives. Some comments on Bernard Jackson’s sociolinguistic approach in legal semiotics
Full text link In the article some applications of the concept of legal narrative are undertaken in the perspective of Bernard Jackson’s legal semiotics. The analysis are developed in the perspective of Polish social and economical changes of recent decades. The leitmotif is constituted by remarks on sociolinguistic aspects of teaching legal narratives in changing reality. In this context a notion of “legal grapholect” is introduced to discuss possible influence of “deep layer” of legal language on evolving Polish lawyers’ language and vernacular. Additionally, issues of semiotic group of lawyers and legal register are discussed on the basis of the sociolinguistic paradigm. Reasoning is enriched by remarks of possible merger of Jackson’s legal semiotics and Ch. Perelman’s theory of legal argumentation. In the article some applications of the concept of legal narrative are undertaken in the perspective of Bernard Jackson’s legal semiotics. The analysis are developed in the perspective of Polish social and economical changes of recent decades. The leitmotif is constituted by remarks on sociolinguistic aspects of teaching legal narratives in changing reality. In this context a notion of “legal grapholect” is introduced to discuss possible influence of “deep layer” of legal language on evolving Polish lawyers’ language and vernacular. Additionally, issues of semiotic group of lawyers and legal register are discussed on the basis of the sociolinguistic paradigm. Reasoning is enriched by remarks of possible merger of Jackson’s legal semiotics and Ch. Perelman’s theory of legal argumentation
Orzekanie w polu polityczności
Full text linkThe purpose of this article is to analyse the relationship between adjudication and the concept of the political. By referring to the understanding of the concept of the political developed inter alia by Carl Schmitt and Chantal Mouffe, the article posits that not all judicial decisions (individual instances of adjudication) should be treated as belonging to the sphere of the political, but only those which fulfil jointly two premises: firstly, they are true decisions, involving at least some degree of discretionality (in the sphere of facts, or in the sphere of law, or in the sphere of the legal classification of facts), and secondly, involving a conflict which is structural for the community or society within which this adjudication is performed. Political adjudication should not be perceived as per se wrong, nonetheless it should be subject to a democratic scrutiny and sustained critique to with greater attention than apolitical adjudication, which merely involves the mechanical application of unambiguous legal rules to undisputed facts
Relacje prawo–intymność „ukryte” w Konstytucji Rzeczypospolitej Polskiej (problem instytucjonalizacji małżeństw homoseksualnych w Polsce wobec nieokreśloności prawa)
Full text linkThe aim of this article is to consider the hypothesis: relations between law and intimacy should be described and reflected also on the basis of concepts emerging in social sciences and philosophy. Traditional methods and categories of jurisprudence are not enough here. Relations between the law and intimacy are „hidden”, for example, in art. 47 and art. 18 Polish Constitution. Particularly interesting is art. 18 with the following text: „Marriage as a union of a woman and a man, family, motherhood and parenthood are under the protection and care of the Republic of Poland”. This provision is the cause of a legal dispute over the admissibility of the institutionalization of partnerships in Poland. The problem of the institutionalization of partnerships concerns, in my opinion, the relations between law and intimacy. These relations should be considered on the basis of the results of sociological and philosophical research. To solve the dispute about the admissibility of the institutionalization of partnerships in the Polish Constitution, works of, among others, Michel Foucault and Anthony Giddens may be valuable. M. Foucault’s ideas have a huge impact on the contemporary scientific understanding of sexuality. A. Giddens created the transformation of intimacy concept. The concept is consistent with the axiology of modern legal culture
Zasady prawa w świetle materiałów legislacyjnych
Full text linkThe paper discusses the possibilities for using legislative materials in the process of establishing a catalogue of legal principles and determining their content. The starting point for the analysis was the conviction that the catalogue of legal principles and their content are established through discourse. One element of this discourse is the legislator’s voice in the form of „traces” left in various places. The interpreter may refer to both the legislator’s expressions in texts of normative acts and to expressions presented in legislative materials. Until recently, given their insufficient availability, legislative materials were seldom used in the discourse on legal principles. Through an analysis of legislative materials developed for the 2016 amendment of the Code of Criminal Proceedings, the authors show that these materials can be a source of valuable information on the legislative intent. The paper concludes with the following observation: the currently available access opportunities offered by information technologies mean that expanding the context that shapes the catalogue and content of the various principles through the use of legislative materials appears necessary
Trybunalskie i sądowe stosowanie zasady „ignorantia iuris nocet” na gruncie praktyki orzeczniczej w Polsce
Full text linkThe article discusses the issue of the Constitutional Court’s and other courts’ application of the principle of ignorantia iuris nocet in the practice of issuing rulings. Based on the analysis of the case law, it presents the Constitutional Court’s standpoint concerning the role of the principle of ignorantia iuris nocet in the Polish system of law and its application in the Constitutional Court’s case law. At the same time, it discusses other courts’ application of this principle, i.e. its influence on the decision-making processes of the application of law by the Supreme Court, courts of appeal and administrative courts. The analysis of the case law show that the principle of ignorantia iuris nocet plays a special role in the Polish system of law. In their decisions, both the Constitutional Court and other courts concerned emphasise that the Polish system of law, like other contemporary systems of law, is based on this principle, and its violence would lead to unpredictable results in the practice of issuing rulings. There are no major differences between the application of the principle of ignorantia iuris nocet by the Constitutional Court and other courts concerned. In cases involving the ignorance of the law, both the Constitutional Court and other courts commonly recognise and apply, within the scope of their competence, the principle of ignorantia iuris nocet. Administrative law takes a particular stance on the application of this principle. In the Supreme Administrative Court’s judicature, a jurisdictional approach has been adopted that recognises that the operation of this principle is reduced in administrative procedure. In turn, the study of the case law of provincial administrative courts shows that these courts still have not adopted a uniform jurisdictional pattern in this respect
Europejska filozofia praw człowieka a konstytucyjna formuła obowiązków człowieka i obywatela
Full text linkThis article is devoted to the problem of the obligations of a human and citizen in the Polish constitution. This matter is shown from the philosophy and legal point of you. The aim of the article is to show what influence the philosophy of human rights had on regulating the obligations of human and citizen in the European and Polish law. The main idea is, that the constructions of the provisions in the Polish constitution is the reflection of the European philosophy on human rights. This philosophy is based on the individualization and personalization on the human. Therefore the freedoms and rights are underlined and its obligations are limited. The provisions on the Constitution of the Republic of Poland which concern the obligations agree this philosophy. In the opinion of the author of this article these solutions are not good. All the provisions regulating the obligations of a human and citizen can be called the obligations towards the country. They include, loyalty to the Republic of Poland, observing the Polish law, paying taxis, defending the country and protecting the environment. The authors of the constitution omitted the obligations towards the family and local communities
Pojęcie kryzysu w filozofii i naukach społecznych a kryzysy prawne
Full text linkThe aim of this article is to discuss different approaches to the phenomena of crisis, which are reconstructed from chosen philosophical and social sciences theories. Latest popularity of the notion of legal or constitutional crisis in jurisprudence establishes the point of departure. Using this notion in legal context opens a problem of adopting in this field more general and well-grounded perspectives on crises. Subsequently, I present the concept of crises in works of Edmund Husserl, Hannah Arendt, Reinhart Koselleck and Niklas Luhmann. Each of aforementioned sections is concluded with an explication of the concept of crises in perspective of adequate theory. My final task is to draw some most important consequences for understanding constitutional crisis, as well as the need for general theory of legal crises
Trybunał Konstytucyjny jako organ stojący na straży konstytucyjności. Uwagi na tle analizy orzecznictwa z 2017 r.
Full text linkThe Constitutional Tribunal`s task is to examine the constitutionality of legal acts. The dispute over the Tribunal in Poland in 2016–2017 raises the question whether it still performs this function. The author addresses this issue in the light of the analysis of judgments issued by the Constitutional Tribunal in 2017. In conclusion, the Author indicates that due to the nature of the activities, the constitutional court will always be included in the political discourse in some extent. The answer to the question whether the Polish Constitutional Tribunal constitutes a barrier for the legislator’s actions depends in a large extent on the legislator himself. The latest defines the normative conditions of his activity as well as decides on the selection of the Tribunal`s judges. The study closes the remarks regarding the constitutional judiciary model in Poland in the future
Znieważający konstytucjonalizm i konstytucjonalizm znieważony. Refleksja socjologiczna na temat kryzysu liberalno-demokratycznego konstytucjonalizmu w Europie pokomunistycznej
Full text linkThis paper debates abusive constitutionalism and constitutionalism abused as ways to introduce a fundamental change of political system. Abusive constitutionalism consists in a change of a democratic regime in a less democratic one with the help of democratic means, i.e. democratically legitimized change of the existing constitution, or proclamation of a new constitution, as it recently happened in Hungary. An example of abused constitutionalism presents contemporary Poland. There the fundamental change of democratic regime happens notwithstanding the still binding constitution, as in an oblivion of it, by the means of ordinary laws proclaimed in a rush process by the ruling parliamentary majority. The whole process is steered in an informal way by the chairman of the ruling party. The important context of abusive constitutionalism, and of constitutionalism abused, as I am going to argue, presentst he crisis of liberal constitutionalism, the loss of its motivational force as a moral sign-post in the public sphere. Instead, one observes a retreat to some primordial and emotionally laden conceptualizations of a politically organized community (a Gemeinschaft) where emotions, primary bonds, foundational myths are more important than law and liberal constitution. Such a retreat results from the past but also presents a reaction to the growing complexity of the contemporary world, and involved risks
Kryzys nowoczesnego konstytucjonalizmu. Między liberalną sędziokracją a postliberalnym populizmem
Full text linkThe author assumes that modern, Western constitutionalism, with its emphasis on individual rights, is not the only form of constitutionalism, understood as ideas of restrictions imposed on government activities, practiced throughout history. In the author’s opinion, the current crisis of the dominant paradigm of constitutionalism is caused by the contradictions of liberal democracy. In this aspect, the author’s analysis is based on the concepts of Antonio Gramsci, Chantal Mouffe, Ernesto Laclau and Claude Lefort. In the author’s opinion, the described crisis may lead to permanent transformations and the emergence of new forms and paradigms of constitutionalism