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USEFULNESS OF NON-POSITIVIST CONCEPTION OF LAW IN THE PROCESS OF ACHIEVEMENT OF RIGHT LAW BY THE CONSTITUTIONAL TRIBUNAL (Przydatnosc niepozytywistycznej koncepcji prawa w procesie dochodzenia do slusznego prawa przez Trybunal Konstytucyjny)

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Potrzeszcz J.
Przegląd Sejmowy
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2009
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issue 5(94)
53-69
EN
When examining the activity of the legislature and the Constitutional Tribunal from the viewpoint of philosophy of law, it is worth noting that these bodies contribute to create a proper system of law, taking care that the law so created meets high quality standards and is a right law. This rightness manifests itself in both the form and content of law. The Constitutional Tribunal, as a court of law, may correct possible errors made by the legislator. It has a supporting role in the shaping of the system of law. However, this role is exceptional, due to an obligation to make final decisions on, inter alia, matters of protection of constitutional values, including human-wide values. In the jurisprudence of the Constitutional Tribunal, there are examples of statements in which it recognized extra-positive nature of these values (e.g. Decision of May 28, 1997, K 26/96, Judgment of September 30, 2008, K 44/07), thereby revealing non-positivist method of argument used by that court. In the opinion of the authoress, the Tribunal, owing to its position in the democratic state ruled by law, may combine in its judgment elements of positive law and natural law. The Tribunal's activity in the process of achievement of right law also means its acceptance of non-positivist conception of law. Presently, there exist many variants of non-positivist conception of law (e.g. those of R. Dreier, R. Alexy, R. Dworkin, J. Habermas, J. Rawls) which recognize the necessary connection between law and morality. Nevertheless, morality is understood in different ways. According to the authoress, the best protection of every person is to be provided by such understanding of law that is based on human-wide morality. Non-positivist conception of law, in her opinion, is a maximalist conception whose integral elements include both classical values of natural law and the so-called principles of correct legislation. In the process of achievement of right law by the Tribunal, one of the variants of non-positivist conception, i.e. the idea of law (Rechtsidee) formulated by G. Radbruch and developed by A. Kaufmann, may prove to be useful. It perfectly matches the realities of modern democratic state ruled by law and includes both formal and material elements of law.
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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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CATEGORY OF NORMS, PRINCIPLES AND LEGAL VALUES. METHODICAL REMARKS CONCERNING THE JURISPRUDENCE OF THE CONSTITUTIONAL TRIBUNAL (Kategoria norm, zasad oraz wartosci prawnych. Uwagi metodologiczne w zwiazku z orzecznictwem Trybunalu Konstytucyjnego)

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Kordela M.
Przegląd Sejmowy
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2009
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issue 5(94)
23-33
EN
The existing legal order contains not only norms of behavior (ordinary norms, rules) and principles (general norms), but also values. To be legally valid, a value has to be established by the lawmaker. Without such enactment, a value - similarly to norms of behaviour - cannot be a source of obligation for both private and public persons to act in a particular way. In modern constitutionalism, some values are left outside the sphere of discretion of the actual lawmaker (e.g. human rights, values of the rule by law, values of the 'internal morality of law'), but this does not change the fact that they also have the status of 'values of axiologically rational lawmaker', irrespective of whether particular legislative actions have been taken in order to introduce them explicitly to the system of law. The act of establishing values very often relates to 'ready-content' values, mostly of moral character, but without it those values would never obtain the status of 'legal values'. In the theory of law, categories of norms of behaviour (rules) and principles are relatively well developed, but the field of axiology is still waiting for due methodological attention.. Ordinary norms of behaviour and principles both belong to directive order, as they formulate particular obligations. A norm of behavior is defined a statement prescribing (or proscribing) a particular behaviour of specified persons in particular circumstances. Assuming that the definition above covers both rules and principles, a need appears to indicate their distinguishing features. In traditional jurisprudence, the following factors distinguish principles from rules: 1) high hierarchical position in the system of law; 2) high level of generality (the scope of application of principles is evidently wider than that of regulations); 3) strong axiological grounds; 4) social significance; 5) functioning as a constitutiove element of a particular legal institution (or more generally, a legal structure); 6) providing a basis for development of other norms of the system. Modern approach, derived from the theories of Dworkin and Alexy, emphasizes the following attributes of principles: 1) nonexclusive nature; 2) gradual way of accomplishing; 3) optimization (accepting, in part, Alexy's concept); 4) relevance and its gradations; 5) ability to collide with other principles; 6) non-derogation when broken by the competitive principle in the procedure of balancing. The above-mentioned distinctive traits are also the attributes of value. Consequently, the article offers the following definition of principles: principles are the norms of behaviour which command the accomplishment of a defined value. In its judicial decisions the Constitutional Tribunal consistently refers to a distinctive phrase: 'constitutional norms, principles or values', thereby making these categories separate standards of its decisions. It has full legitimacy to do so, as all subject subordinate to a particular legal system is under obligation to accomplish not only norms (rules and principles) binding on them, but also values. A breach of valid legal norms always constitutes breach of law.
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K některým aspektům svobody křesťana z pohledu obecné teorie práva

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Hrdina I. A.
Studia theologica
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2006
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vol. 8
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issue 2
53-61
EN
The author in his article, written in terms of a general theory of law, reasons how the canon law performs a duty to guarantee freedom for a Christian in the Church, as the secular law guarantees -or more precisely: should guarantee-the freedom of men in civil society. Is the Christian who stands committed, not only to the secular, but also to the canon law, freer - or on the contrary less free - than other people? A significant part of this question is given by the close relationship of law norms and moral norms in the juristic regulations of the Church that is closely connected to its typical differentiation in the canon law of the outer and inner field (forum externum a internum). Naturally this also depends on the concept of freedom that is even within law theory frequently understood in different meanings. According to the author, canon law establishes, more clearly than morality, the code of conduct for Christians in the sphere where it touches the normative 'framework of morality'; and by this is the space for free decisions by its members unambiguously defined.
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PROCEDURE FOR THE CONTROL OF HIERARCHICAL CONFORMITY OF LEGAL NORMS BY THE CONSTITUTIONAL TRIBUNAL (Postepowanie przed Trybunalem Konstytucyjnym w sprawie hierarchicznej kontroli norm)

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Tuleja P.
Przegląd Sejmowy
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2009
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issue 5(94)
35-51
EN
The article deals with the procedure for the control of hierarchical conformity of legal norms by the Tribunal. The starting point is the analysis of the differences between the procedures, as a result of a specific type of the subject of control. Then, the basic principles of the procedure contained in the Constitutional Tribunal Act are discussed. The analysis of these principles provides a basis for the description of a preliminary consideration, a hearing before the Tribunal and the stage of rendering a judgment. The different procedural institutions are examined for their compatibility with the subject of the proceedings, i.e. the control of norms. In this respect, the author presents critical comments indicating incompatibility of the existing solutions with the duties to be currently performed by the Constitutional Tribunal and with 'de lege ferenda' propositions. Among the latter, the most important are: drawing up a new procedure for the selection of cases, particularly the selection of constitutional complaints, application of new instruments of hearing procedure in order to facilitate gathering of information by the Tribunal, diversification of the duties of the parties to the proceedings and the use of a written procedure instead of oral hearing.
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SIGNIFICANCE OF EVIDENT GROUNDLESSNESS FOR THE PROTECTION OF CONSTITUTIONAL FREEDOMS AND RIGHTS (Znaczenie przeslanki oczywistej bezzasadnosci dla dostepnosci skargi konstytucyjnej jako srodka ochrony konstytucyjnych wolnosci i praw)

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Sulkowski J., Krolikowski J.
Przegląd Sejmowy
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2009
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issue 5(94)
91-110
EN
To initiate proceedings concerning a constitutional complaint before the Constitutional Tribunal, the procedural requirements specified in the Constitution of the Republic of Poland and the Constitutional Tribunal Act must be satisfied. The complaint is subject to preliminary proceedings before a bench of one judge of the Tribunal. The requirements for examination of admissibility of a constitutional complaint are mostly of formal character. Evident groundlessness is the only substantive requirement. As concerns this requirement, the Tribunal assesses the essence of a complaint for its grounds, examining whether the claims alleged by the complainant argue for violation of his/her constitutional rights and freedoms by an unconstitutional regulation. If, in a given case, the Tribunal finds there to be a qualified form of groundlessness of the submitted complaint, it will decide to refuse to proceed with further action. In preliminary proceedings, substantive examination is an exception. The main purpose of these proceedings is to check whether the conditions for admissibility of application are satisfied, but not to assess the grounds for the claim of unconstitutionality of the contested regulation. Evident groundlessness is an underdetermined notion and its content is derived in the process of application of law. In the view of the Tribunal, a complaint may be found evidently groundless, when claims against contested regulation - alleged in the complaint - do not give any credence to its unconstitutionality. The possibility (provided by the lawmaker) of substantive examination of grounds of a complaint, at the preliminary stage, has an exceptional character and should be given restrictive interpretation. Any doubts on whether the complaint is evidently groundless, should argue for its consideration in regular proceedings, consisting in full examination of constitutionality. The practice based on the opposite assumption could deprive constitutional complaint of its significant role of a remedy for constitutional rights and freedoms.
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A case of rule following: H.L.A.Hart's theory of law and ethics

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Boda M.
Magyar Filozofiai Szemle (Hungarian Review of Philosophy)
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2004
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vol. 48
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issue 3
219-266
EN
The author's tenet is that any account of concept of law as system of rules makes no claim at ethical concepts like the concept of the good, values and aims. In fact the concept of law (in the appropriate sense) excludes all of these ethical concepts. His thesis is based on two theories - H. Hart's social rule theory of law, and J. Searle's theory of social facts - and can be summarized as follows. (1) If we accept that the rules of law and ethics are social rules, then individuals can follow rules if rules can be explained with the help of the concept of knowledge. (2) According to this, individuals can know social and collective institutions by knowing the rules and a statement can be seen as a normative one if someone accepts the survival of the society or community in question as a general aim and the content of the statement can be interpreted according to this aim. (3) This means that the rules of law and conventional ethics allow individuals to know similar institutional facts and since there are a lot of smaller and bigger communities within society, laws cannot be judged based on ethics. (4) Individuals are following the rules of law based on their knowledge of social or collective institutions and their faculty of decision. (5)However, individual knowledge depends on the rules of their smaller and bigger communities. The author's overall aim is to offer arguments for the theory of positivism of law and against the natural law theory in order to show that this kind of positivism is not impossible.
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SOKRATOVSKÁ METÓDA AKO PEDAGOGICKÁ FORMA V PROCESE VZDELÁVANIA PRÁVNIKOV

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Krošlák D.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2014
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vol. 97
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issue 1
80 – 89
EN
The paper presents the Socratic method and its use in the educational process at law schools in the U.S. The author is also trying to find starting points, the possibilities and limitations of using this method, concerning the shaping of students at law schools in the Slovak Republic. With the focus on previously implemented empirical research he argues that the Socratic dialogue is one of the most effective tools for training lawyers while meeting specified criteria.
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