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LIMITATION CLAUSE AND THE INVIOLABILITY OF RIGHTS AND DIGNITY (Klauzula limitacyjna a nienaruszalnosc praw i godnosci)

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Piechowiak M.
Przegląd Sejmowy
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2009
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issue 2(91)
55-77
EN
The author examines the arguments for applicability of the limitation clause which specifies the requirements for limitation of constitutional freedoms and rights (Article 31 para. 3 of the Constitution) to the right to protection of life (Article 38). Even if there is almost a general acceptance of such applicability, this approach does not hold up to criticism based on the rule existing in the Polish legal order that treaty commitments concerning human rights have supremacy over national statutory regulations. Due to an international pattern which does not provide application of the limitation clause to the right to life protection, despite the recognition - at the level of a constitutional standard - of applicability of the clause of Article 31 para. 3 to Article 38, and to protection of life in general, this will be made impossible at any attempt to formulate a statutory standard. He also points out the defectiveness of the reasoning leading to acceptance of certain limitations of a particular value (e.g. life) on the basis of the ex definitione exemptions existing in the international standard to the assumption of applicability of the limitation clause when shaping statutory standards in the Polish legal system. The discussed issues are related to the question of interpretation of the inviolability of human rights. This term takes different meaning in the context of: 1) inviolability of all human rights understood in abstracto as normative structures of a general and abstract nature; 2) right protecting certain values with no exception; 3) rights to which an application of the limitation clause is forbidden; 4) rights not subject to derogation; 5) inviolability of understood in concreto, as that is (here and now) due to the subject of dignity; 6) inviolable essence of freedoms and rights. One should also clearly distinguish between (7) the descriptive and (8) the normative meaning of inviolability.
2
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NATURAL-LAW ELEMENTS IN APLICATION OF THE CONSTITUTION OF THE REPUBLIC OF POLAND (Elementy prawnonaturalne w stosowaniu Konstytucji RP)

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Piechowiak M.
Przegląd Sejmowy
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2009
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issue 5(94)
71-89
EN
Recognizing inherent and inalienable nature of dignity and universality of certain values, the Constitution of the Republic of Poland, introduces to the foundations of Polish legal system some elements of natural law which may be used for application of the Basic Law. Constitutional recognition of these elements only makes sense on the assumption of their cognizability. Therefore, as an important element of constitutional concept of natural law is taken the recognition of the argument of cognitivism according to which moral assessments may have the nature of judgments and truth qualification (they may be true or false). In the course of application of the constitution, norms of natural-law character and natural-law justification. Since dignity and the essence of freedoms and rights based on dignity are the only inviolable values recognized by the constitution, the arguments of natural law lead to a far-going reinterpretation of constitutional norms. The norm of natural law protecting inviolable values will have precedence in the event of collision with norms protecting other values, also with constitutional norms. Even if such a norm is formulated on the basis of the provisions of the constitution, in fact natural law is given higher rank than elements based only on enacted law. Despite that, reliability of a legally established order does not seem to be radically endangered.
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NEGATIVE RELIGIOUS FREEDOM AND SECULAR THOUGHT IN THE LIGHT OF THE CASE OF LAUISI V. ITALY (Negatywna wolnosc religijna i przekonania sekularystyczne w swietle sprawy Lautsi przeciwko Wlochom)

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Piechowiak M.
Przegląd Sejmowy
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2011
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issue 5(106)
37-68
EN
The article provides an analysis of the European Court of Human Rights judgments in the case of (http://www.echr.coe.int/echr/resources/hudoc/lautsi_and_others_v__italy.pdf) Lautsi v. Italy (application no. 30814/06), also known as the Italian crucifix case. The applicant claimed that displaying crucifixes in the Italian State-school classrooms attended by her children was contrary to the principle of secularism, by which she wished to bring up her children, and therefore infringed her right to ensure their education and teaching in conformity with her religious and philosophical convictions, and also breached her freedom of conviction and religion, as protected by Article 9 of the Convention. In its judgment of November 3, 2009, the seven-judge Chamber declared that there had been a violation of Article 2 (right to education) of Protocol No. 1 of the European Convention on Human Rights taken together with Article 9 (freedom of thought, conscience, and religion) of the Convention. The judgment was given unanimously and none of the judges appended a separate opinion. The Italian Government asked for the case to be referred to the Grand Chamber by virtue of Article 43 of the Convention. In the judgment of the Grand Chamber, delivered on March 18, 2011, the Court held, by fifteen votes to two (and with separate opinions of six judges), that there had been no violation of Protocol No. 1 and no violation of the Convention itself. The analysis in the article is focused on selected principal factors determining the Court's decision. It shows that the proposal for the Court to recognize secular convictions as those protected by Article 2 of Protocol No. 1 or Article 9 of the Convention has no sufficient basis in the Convention itself and in earlier Court's case-law and, even, may be considered as promotion of religious intolerance, threatening the freedom to publicly manifest a religion or belief, as guaranteed by Article 9 of the Convention.
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CONSTITUTIONAL PROTECTION OF LIFE: AN ATTEMPT TO ASSESS THE PROPOSAL FOR AMENDMENT OF POLAND'S CONSTITUTION (Wokól konstytucyjnej ochrony zycia. Próba oceny propozycji nowelizacji Konstytucji RP)

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Piechowiak M.
Przegląd Sejmowy
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2010
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issue 1(96)
25-47
EN
This article first of all attempts to assess the proposals of 2006-2007 to amend Poland's Constitution, aimed mostly at strengthening constitutional protection of unborn human life. Parliamentary work on this proposal begins with the submission of the Deputy's bill on amendment of the Constitution, published in the Sejm Paper No. 993 of September 5, 2006, and ends with a series of votes at the 39th sitting of the Sejm of the fifth term of office, held on April 13, 2007, on which it was decided not to adopt any amendment. In the course of the legislative process, several modification were offered not only to Article 38 concerning protection of life, but also to Article 30 dealing with dignity as a source of rights. Each of these proposals had drawbacks, including inter alia: the lack of a definite period of protection or entitlement to dignity, resulting in the decreased protection in relation to issues concerning euthanasia; the application of new categories granting a specific status to unborn human life; specifying the standards for protection by means of legislative acts ranking lower than a constitution, resulting in the transfer of life protection into the sphere of regulation of ordinary legislation. The most conducive for strengthening of the protection of unborn human life, even if not free of imperfections, was an amendment of Article 30 proposed by the Committee in the following wording: 'The inherent and inalienable dignity, conferred on the person from the moment of conception, shall be a source of freedoms and rights of persons and citizens. It shall be inviolable; the respect and protection thereof shall be the obligation of public authorities'. From the rejection of the proposals it is difficult to draw conclusions that are vital for interpretation of the existing provisions. However, a conclusion that the intention of the authors of the constitution was not to strengthen the constitutional protection of life is not legitimate, mostly because of their doubts about formal correctness of the proposed amendments (when deciding to reject them), particularly the doubts about legal consequences of their adoption.
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O meandrach i bezdrożach krytyki naukowej. Uwagi do tekstu Aleksandra Stępkowskiego Między klasycznością a nowoczesnością w pojmowaniu dobra wspólnego

100%
Piechowiak M.
Forum Prawnicze
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2012
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issue 6 (14)
41-49
6
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Thomas Aquinas – Human Dignity and Conscience as a Basis for Restricting Legal Obligations

100%
Piechowiak M.
Diametros
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2016
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issue 47
64-83
EN
In contemporary positive law there are legal institutions, such as conscientious objection in the context of military service or “conscience clauses” in medical law, which for the sake of respect for judgments of conscience aim at restricting legal obligations. Such restrictions are postulated to protect human freedom in general. On the basis of Thomas Aquinas’ philosophy, it shall be argued that human dignity, understood as the existential perfection of a human being based on special unity (individuality and particularity), provides a foundation for imposing limitations on the scope of legal obligations in general. Human freedom plays a crucial role in understanding dignity as perfection based on the special individuality of a personal being, which in turn is based on the free choice to pursue a unique way of life. Therefore, Aquinas’ argumentation is, at its core, liberal – the perfection rather than the imperfection of a human being underlies the requirement to limit legal obligations. Dignity understood as the special unity of a person also provides the basis for limiting obligations in the case of conscientious objection; however, in that case, such limitations aim at safeguarding internal integrity rather than the individualisation of a given way of life.
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