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  1. 3 Forum Prawnicze

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  1. 3 Stelmach J.

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  2. 2 2011

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Pozytywistyczne mity metody prawniczej

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Stelmach J.
Forum Prawnicze
|
2012
|
issue 3 (11)
7-14
EN
The paper aims at identifying several methodological myths embraced by legal positivism. The first such myth is the claim that legal cognition has a logical structure; the second is the myth of the formal-dogmatic method; the third is that of Kelsen’s normative method; and the fourth and final is the myth of legal analysis, or the faith in the fruitfulness of linguistic analysis. All these myths can – and should – be ‘deconstructed’ by observing that legal positivism offers no coherent epistemology, but rather a number of common sense directives; that the strength of the argument supporting the myths is minimal; that the methods of positivism are ineffective in legal practice; and that there exists an alternative to the positivist methodology – a conception of legal method based on epistemological pluralism and relativism.
2
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Interpretacja bez granic

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Stelmach J.
Forum Prawnicze
|
2011
|
issue 2 (4)
13-18
EN
In the essay, the idea of the unlimited interpretation is expressed by seven theses: five descriptive and two normative. First, it is argued that legal interpretation is neither a paradigmatic nor a special case of interpretation in general. Second, it is claimed that interpretation has no a priori determinable limits. Third, the thesis is defended that all correctly formulated and applied methods of interpretation are equal. Further – fourth – it is argued that interpretation can be understood only as applied to particular cases. In other words, interpretation is a practice – the notion of interpretation as a 'pure theory' is empty. Fifth, it is postulated that interpretation should involve a 'critical moment'; without critical appraisal interpretation remains a pure theoretical construct hanging in vacuum. Sixth, interpretation should be axiologically open, if it is to remain a 'free activity'. Finally – seventh – it is claimed that the presented account of interpretation may help in avoiding 'deadly sins' of standard philosophies of interpretation: the sin of supremacy (of one theory of interpretation over the others); the sin of universality (of the preferred model of interpretation); the sin of objectivity (of the rules of interpretation); and the sin of inapplicability (of the theoretical models in legal practice).
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Czy interpretacja prawnicza może być gwarantem pewności prawa?

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Stelmach J.
Forum Prawnicze
|
2011
|
issue 6 (8)
17-22
EN
The paper is devoted to the issues associated with the certainty of law. The author claims that it is impossible to provide a simple, unequivocal answer to the question of whether legal interpretation may be a guarantee of legal certainty. There are at least three reasons for that. First, it is impossible to define legal certainty: there exist as many definitions thereof as there are legal philosophies. Second, there is no way of saying whether certainty is an essential legal value. The final reason is the impossibility of demonstrating that the goal of legal interpretation is the search for legal certainty and not the utilization of other criteria, such as justice, rightness, efficiency or economic efficiency.
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