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THE PRINCIPLE OF ACQUIRED RIGHTS IN POLISH CONSTITUTIONAL LAW

100%
Jackowski M.
Przegląd Sejmowy
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2008
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issue 1(84)
11-28
EN
The first part of the article presents the legal basis for the principle of protection of acquired rights. The author indicates provision of consecutive constitutional acts from which it had been derived. He remarks that these provisions are very general in nature, and their normative content, as well as that of the principle of protection of acquired rights derived therefrom, is reconstructed by jurisprudence and literature in the course of application of law. The author systematises the views of the judicature and legal literature doctrine which tried to explain the way in which the norm demanding respect for acquired rights had been derived. He also presents his own approach when considering a relation between the principle of the state governed by the rule of law and the principles of protection of acquired rights. He gives the reasons why the principle of protection of acquired rights emanates from the principle of the state governed by the rule of law. The further part of the article deals with the nature of the principle of protection of acquired rights, its normative content. The principle is recognised in legal literature as both a general clause and a programme norm. The author criticises both approaches. The concept of rules and principles, developed by Dworkin and Alexy, with appropriate modifications and adjusted to Polish (positivist) system of law, seems to be more useful to describe the content of the principle of protection of acquired rights. Based on this concept, he argues that the principle of protection of acquired rights is an optimisation norm which requires the acquired rights be protected as fully as possible.
2

AFTER POSTCOMMUNISM - THE NEXT STEP? RULE OF LAW IN THE NEW ENVIRONMENT

100%
Czarnota A., Krygier M.
Studia Socjologiczne
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2007
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issue 2(185)
145-197
EN
The article constitutes a review of the changes in law in post-communist countries of Eastern Europe, conducted from the socio-legal perspective. The frame of the discussion is a specific and interrelated group of questions: what are the distinctive features of these transformations, to what extent are these changes permanent, and what would we mean by saying that the postcommunist region has entered a 'new phase'? The article discusses the aims and significance of the rule of law, questions related to the broadly understood justice system, constitutional tribunals, former secret police and a range of questions about 'dealing with the past' i.e. communist institutions, property rights etc. The article concludes with a consideration of the likely impact of European accession on those countries that have been accepted as EU members as well as on those that have not yet been accepted, and on those that are unlikely ever to be accepted.
3

POLITICAL ORDER, EMERGENCY POWERS AND LAW IN MACHIAVELLI AND SCHMITT

100%
Tarhan Çelebi G.
Filozofia (Philosophy)
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2022
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vol. 77
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issue 6
427 – 441
EN
This article critically examines Machiavelli’s and Schmitt’s views on emergencies. Both philosophers are known for their emphasis on the unpredictable nature of politics, which cannot be fully captured by legal norms. Thus, they both state that every political order requires an extraordinary figure who could act beyond laws during emergencies. For Machiavelli, this figure is called a dictator; for Schmitt, it is the sovereign. The author aims to show that, despite this apparent similarity, Machiavelli and Schmitt conceptualize the extraordinary figure in a significantly different manner. Machiavelli regards dictatorship merely as a legal instrument bound by the constitution. A dictator only acts to protect the existing order, which he cannot alter. On the contrary, Schmitt’s conceptualization of exception suggests that the sovereign is not bound by any legal norm. Sovereignty implies that this extraordinary figure can suspend and even alter the existing legal order. The author concludes that the difference between Machiavelli’s and Schmitt’s diverse attitudes towards law stems from their different views on the nature of political unity. While Machiavelli perceives polity as composed of two distinct groups with incompatible interests, Schmitt defines polity as a homogenous one. For Machiavelli the survival of political unity depends on a mixed constitution and respect for laws that hold society together. On the other hand, for Schmitt, it depends on the preservation of its homogeneity.
4

KORENE MYŠLIENKY PRÁVNEHO ŠTÁTU A ICH UKOTVENIE V DOBOVOM POLITICKOM, SPOLOČENSKOM A VOJENSKOM KONTEXTE

100%
Šmihula 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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2019
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vol. 102
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issue 3
204 – 223
EN
The author tries to define social and cultural conditions for the formation of the basic idea of the rule of law concept, which is a limitation of the royal power by the law. He says that this basic idea arose in England and Scandinavian kingdoms because here the two main factors weakening the royal power met: a tension between a secular authority and the church and an outliving tradition of a military democracy in which a relation between a prince (a military leader) and his warriors was conditional and contractual. On the contrary, a Roman idea of an unrestricted authority of emperors was weak in these lands. A development of legal and philosophical thinking helped to describe such a situation also from a theoretical point of view. An original struggle between nobility and commons defending legal restriction of royal authority and – on the opposite side - monarchs stressing their own sovereignty and superiority over law continues also today – in a discussion on mutual relations between the State and citizens.
5

VLÁDA PRÁVA V MEDZINÁRODNOM PRÁVE

75%
Klučka J.
Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)
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2012
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vol. 95
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issue 2
125 – 136
EN
The content of this article was presented at the 16th Annual Meeting of the Autumn School of Law “The Changes of the Rule of Law” organized by the Institution of State and Law of the Slovak Academy of Sciences (11.-19. november 2011 in Modra Harmonia).One of the most remarkable feature of the past century represents the process of the “gradual externalization” of the rule of law principles (originally rooted within the internal legal order of states) on the “higher” level of international legal order. This process has been accompanied by a number of problems due to particularities of international legal order and its differences (with the comparison of domestic legal orders of states).Despite this facts some concrete results of this process have been achieved and following segments of international rule of law are today generally recognized both in the practice of states and legal writing of international law. International normativity today represents dynamic segment of international rule of law with regard of the increasing scope of its regulation combined with specialization and the tendency of universality in more important topics of international law. In its entirety represents less or more detailed and/or efficient measure in order to exclude or at least to reduce the room for wilful (arbitrary) conduct of states and other subjects of international law. Principle of legal equality of states can be also observed within the segment of international normativity. Generally speaking its main purpose is to guarantee equal position of all states vis á vis the system of international law including the process of creation of its rules (both conventional and customary), process of its formal validity, the process of their practical application by equal and non discriminatory manner in relation to all state parties of valid international treaties etc. Unlike of domestic legal orders of states where the application of responsibility is regularly preceded by the decision (s) of independent judicial bodies the situation within the segment of international normativity is different. The principal reason of such difference consists in a lack of obligatory jurisdiction of international judicial bodies. There is a general consensus that the acceptation of obligatory jurisdiction of international courts would strengthen the role of rule of law especially in the sphere of so called secondary rules of international law and their enforceability.
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