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Constitution: the 'ordering' of the political reality?

100%
Zyro T.
Civitas. Studia z filozofii polityki (Civitas. Studies on politics philosophy)
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2007
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issue 10
43-59
EN
Liberal culture and practices draw on, and are shaped by, different strands of legal positivism. Within the framework of legal positivism, the emphasis on legal institutions has been displaced by a focus on the institutions which apply the law, such as courts. Legal positivism unambiguously declares that both the very existence of the law and its content depend on social facts rather than on its value. The law is therefore a social construct and the most 'social' of all is the state. In this way, the philosophy of law has been dominated by the dispute between those who, following St Augustine, think that 'an unjust law is not a law at all' and those who, like John Austin, retort that 'the existence of the law is one thing, its right character or the lack of it, is another'. The point of departure for liberal practice is the paucity of ethical norms, but most of all, however, the paucity of the practice of law making. Ethical dimension may be applied, at most, to the content of social conventions. Legal positivists long ago gave up on the thesis that moral norms are important only if they are rooted in God's commandments. Such an attitude toward the law, even if 'the voice of the people' is not aware of these implications, leads to relativism, which may be overcome in two ways. The first finds its expression in the need to follow societal changes. Each new state of society means that a new constitution is needed, cut appropriately to that society's needs and interests. The second reaction to relativism is the effectiveness which is related to the power held by the authorities, in this case the power to make the law. The higher the legal norm, the greater the will of the might. The drafting of a constitution is an expression of the 'élan vital' unbound. In the taxonomy of law, everything is triangular, resembling a triangle upside down, and making for an appearance of order, with the basic law at the top and below it an ocean of acts. Law making becomes a yardstick for political activity. In the world of politics, where the very fact of existence is contingent on being noted and being seen, to act means nothing else than submitting initiatives for new legal acts. To act spectacularly means to change the basic law.
2
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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)

100%
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.
3
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NATURAL-LAW ELEMENTS IN APLICATION OF THE CONSTITUTION OF THE REPUBLIC OF POLAND (Elementy prawnonaturalne w stosowaniu Konstytucji RP)

100%
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.
4
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LIMITATION CLAUSE AND THE INVIOLABILITY OF RIGHTS AND DIGNITY (Klauzula limitacyjna a nienaruszalnosc praw i godnosci)

100%
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.
5

PÉČE A PŘEDJÍMAVOST: IDEA UDRŽITELNOSTI V HEGELOVĚ PRAKTICKÉ FILOZOFII

88%
Vieweg K.
Filozofia (Philosophy)
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2023
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vol. 78
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issue 8
605 – 618
EN
In his major work Grundlinien der Philosophie des Rechts, Hegel deals with the notion of the person, personality and inter-personality, fundamental law, property, the formation of nature as self-creation and the formation of external nature, appropriation, intellectual property, contracts and lies. Using these, he discusses sustainability and describes the process by which humans come to own things, i.e., to appropriate and shape nature. Appropriation has the following moments: a) the moment of immediate physical grasp; b) the moment of creation; c) the moment of denomination. From Hegel’s point of view, so-called elementary things (water, air) cannot be part of property: these goods are the preconditions of human existence. Hegel left behind no developed concept of sustainability, but he did sketch the essential contours of this key issue for the twenty-first century. His insights into the shaping of the world around us (Um-Welt), or the surrounding nature, are of particular importance because they address an existential problem that was not as clearly manifested in Hegel’s time and therefore has not received as much attention as it does today – despite the considerable environmental damage that was already occurring in Hegel’s time.
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