The primary aim of this book is to determine, as follows: 1) the source (at least the potential source) of modernist solutions in the Polish law, 2) the realness of the modernist character of the said source and 3) the refection of these modernist solutions in the currently binding Polish law.
Table Of Contents
- Title Page
- Copyright Page
- About the editors
- About the book
- Citability of the eBook
- Introduction: The Idea of Modern Law in the Light of Polish Legal Doctrine and Theory of Law
- Legal Policy by Leon Petrazycki vs. Theory of Law by Jerzy Wróblewski
- The Theories and Views of Leon Petrażycki and the Creation and Development of Labour Law
- Regulatory Impact Assessment in Poland as an Example of the Economization of Law – Evolution, Problems, Development Perspectives
- Article 31 Section 3 of the Polish Constitution and Leon Petrażycki’s Concept of the Policy of Law
- From the Psychologism of Leon Petrazycki to the Model of Subjective Criminal Liability in the Polish Law
- Scope of Moral Evaluation of a Man’s Act as a Co-creating Element of Intuitive Law and Positive Law as regards the Model Structure of a Sanctioned Norm in Criminal Law (A Contribution to the Possible Impact of Leon Petrażycki’s Theory of Criminal Law)
- Sensus Spiritualis of Polish Civil Law – A Few Words on the Autonomy of the Will
- Values in the Interpretation of Law. (From the Traditional to the Contemporary Approach in the Polish Theory of Law)
- Recognition of Facts and Application of Law (Based on the Concept of Judicial Application of Law by Jerzy Wróblewski)
- On the Concept of Conventional Actions in Law
M. Peno, consulted with M. Zieliński
The monograph contains texts pertaining to the most important issues from the field of research on the forming, shaping (reshaping) and evolution of modern jurisprudence in Central European legal tradition (here, this term will be applied intuitively to characterise countries such as Poland, Bulgaria, the Czech Republic, Romania, Slovakia, Hungary and probably Belarus or Ukraine, and partially also the Baltic States). It should be noted at the very beginning that Polish jurisprudence serves here as the fundamental reference point. The very notion of legal tradition may give rise to certain concerns that are not definitively resolved in the monograph. The indirect objective of this book is to answer the question whether such a tradition exists and what is the role it plays in the globalising world of legal though that remains influenced by Western sciences (particularly the Anglo-Saxon ones). This question can be answered in reference to the innovative character of ways in which research problems can be solved, the historical continuity (identity) of concepts, theories, schools and research institutions, as well as a certain type of cultural connections with Central European jurisprudence. It should be noted that Polish jurisprudence in a broad sense collects in its history, present day and ambitions all the characteristics that are typical of the central part of Europe, namely, (a) pluralism of sources and inspirations (related to long-term absence of statehood and the resulting employment of researchers at various research institutions), (b) relatively late, yet highly intense implementation of Enlightenment ideas that took on in the legal thought and legislature of newly formed or reborn states (at the turn of the 20th century or in the early 20th century) the form of a fully developed modernism (with the specific Neo-Positivist admiration, naturalistic approach to research and their subject), (c) a specific type of social progressiveness (e.g. voting rights for groups that were previously discriminated) and (d) the experience of Marxist ideology different to the West, for real and not just imaginary.
Nonetheless, historically, the Polish legal thought has drawn inspiration from traditions that were sometimes contradictory (e.g. the Franconian and the German ones), formulated at Russian, German, Austrian or French universities. This formulation covered detailed knowledge of the binding law (legal ←9 | 10→dogmas – knowledge of the criminal law, the civil law, the administrative law, etc.), but also a general reflection on law.
One can seek in this book the answer to the question about the modern character of science or in jurisprudence. However, the role of the Szczecin centre should be described here in detail, particularly the Szczecin school of the theory of law that usually influences texts incorporated to this book and its effect on the development of modern theory of law in this part of Europe. One should note, that from the perspective of theoretical, methodological grounds and the vision of law (as a certain system of norms), authors of this monograph are linked to the Szczecin centre of the theory of law, historically embedded in the achievements of the Poznań school of the theory of law that was formed in the 1960s around Prof. Zygmunt Ziembiński, student of Czesław Znamierowski (a lawyer and a philosopher) and Kazimierz Ajdukiewicz (logic and methodology). The Szczecin theory of law is centred on statutory interpretation issues developed systematically as a derivative concept of interpretation by Maciej Zieliński and his students. The high scientific level is also achieved in works by Stanisław Czepita that pertain to, among others, the original concept of conventional activities. Another person linked to the Szczecin centre was Aleksander Peczenik. Although for most of his life he acted in Lund, in the last years of his life he worked as a professor of the theory of law at the University of Szczecin.
The general jurisprudence referred to in the post-war period in Poland as the theory of the state and the law stems from the Marxist tradition (which assumed that these two factors are inseparable). It was understood as general considerations regarding law exercised in Socialist states. However, in fact, the term ‘jurisprudence’ did not and does not refer to considerations enmeshed in a certain ideology but declares a certain method – the method of exercising certain considerations about the law modelled on empirically oriented sciences aiming at formulating collections of properly organised general theorems (similar to model scientific theories known from empirical sciences). This is an ambitious scientific programme that ascribes the task of building law-describing theories to jurisprudence. It can be said that this is a traditional approach to jurisprudence that can be attributed to Ziembiński and the Poznań theory of law of its prime time (the 1960s).
In turn, Aleksander Peczenik, despite being associated with the Szczecin centre that continued traditions of the Poznań centre, postulated a different approach. Peczenik claimed that although jurisprudence aims at obtaining knowledge of the law, it is part of the law and thus takes part in its formation. In the traditional model, law is a set of legal norms and jurisprudence is a set of coherent and well-justified theorems about the law. The distinction between law and jurisprudence ←10 | 11→is hence easily observable. Nonetheless, in Peczenik’s approach, this distinction becomes blurry, as it is relativised with regard to a certain convention determined by legal culture in a broad sense. A judge somewhat transforms the rules of reasoning, moral intuition, etc. into the ‘binding law’ compliant with the expectations of jurisprudence and even those of a broader audience. Jurisprudence formulates postulates pertaining to what law should be like and affects the shape of law. In particular, jurisprudence formulates normative concepts of legal reasoning and statutory interpretation, as well as sources of law and their hierarchy. Obviously, courts must take due account of these rules, i.e. reasoning and interpretation, as well as sources of law.
These two ways of interpreting jurisprudence should not be considered contradictory. One could attempt to prove that the other model fits the contemporary state of knowledge of law better, as it is more modern. However, it is important that the issue of how jurisprudence and law were understood at the centres in Szczecin and Poznań played a significant role, which is distinctive to some extent in the modern Polish jurisprudence dominated by eclectic philosophy of law (although one can obviously indicate other strong theoretical and legal traditions, such as those formulated in Kraków, Łódź and Wrocław).
Attachment to a certain jurisprudential tradition can be noticed in all texts included in this volume. At the same time, the open character of the assumptions employed in jurisprudential studies allows one to include then into the scope of philosophical or philosophical-legal considerations. These are however characterised by a deep attachment to methodology and detailed terminological and conceptual grounds. This should be given a proper value. The general Polish consideration pertaining to law was born in the Modern Era. It had no strong Enlightenment background or an in-depth perception of Enlightenment ideas (due to the loss of independence and orientation towards the Romanticist though). This does not mean that it was not given though, but that it was developed outside the borders of the national state. This can be exemplified by Leon Petrażycki, the father of the theory of law in this part of Europe, and his travels from Russia to Germany, which ended in his employment at the University of Warsaw.
It can be said that the theory of law in Poland has been modern from the very beginning. Born in the era of paroxysm of implementation of philosophical positivist postulates, it remained influenced by Neo-Positivism despite the experience of the world war and occupation (which obviously affected the adopted meta-ethical attitudes). In turn, in the time of the People’s Republic of Poland under the communist regime, the theory of law and also jurisprudence per se were directed towards the Marxist ideology. Paradoxically, it was a highly ←11 | 12→fruitful time when undoubtfully modern concepts and theories on methodology, application and interpretation of law were developed. It was also the time of development of legal dogmas. The Modern Era can be understood here as an attachment to certain (logocentric) vision of the world, systematised scientific work and a precise research method. Jurisprudence was intended as a science of precisely this kind in the proper sense, although obviously there was a dispute on the scientific nature of jurisprudence, particularly legal dogmas. However, the very fact that such a dispute was held (with the participation of, i.e. Peczenik) shows a certain approach to the modern jurisprudence and attachment to the theory of law and not philosophical methods (which is discussed further in the book).
The geographical origin of considerations in the central-eastern region of Europe may give rise to questions on mutual relations between jurisprudence in the region. Although this issue has not been yet examined in depth, it is not a direct objective of this book to make any conclusions in this regard. Nonetheless, the fact that this problem was signalled seems to be of an inherent value. Particularly when considering that there are arguments that for cultural, social, geopolitical or historical reasons, such links were present and still are, and allow themselves to be examined in categories that exceed beyond contingency. Nonetheless, these relations most probably weakened after the system transformation and the demise of socialist states (at the turn of the 1990s). This was due to the fact that the reality of socialist states formed a certain (more or less forced) community with individual jurisprudences functioning within its borders. The very fact that, i.e. the University of Sophia subscribed until the end of the 1980s Państwo i Prawo (the most influential polish legal journal) confirms that there was a certain platform for exchanging thoughts. This is also confirmed by initial research on quotations of papers from various states of the so-called Eastern Bloc. The Eastern bloc states were not the only ones that were influenced by the achievements of prominent Polish representatives of jurisprudence. One can mention here works by Jerzy Wróblwski, translated in Roman countries. However, sadly, the part of Polish theoreticians of law in the global circulation was forces with the change of their place of functioning, as in the case of Peczenik, who years ago had to leave Poland as a result of the dramatic political turmoil of the 1960s.
After all, due to the research areas of the general reflection on law, it also has some application usefulness for any legal system and any jurisprudence. This is the case for, i.e. the concept of statutory interpretation, the issue of dynamics or statistics of the legal system or various particular jurisprudential concepts (e.g. conventional activities), particularly philosophical-legal matters in a broad ←12 | 13→sense. At the same time, one cannot omit the input resulting from legal dogma considerations in the forming of the modern law.
Symptomatically, from the birth of modern and independent Polish jurisprudence, which should be linked to the regained independence (which is typical of states in Eastern Europe), this science was involved in the philosophical project of modernity. This project envisaged that a modern state, law and society will be built based on scientific knowledge. Not surprisingly then, the first modern Polish penal code (the so-called Makarewicz’s Code) was formed based on the best models determined by the sociological school of criminal law. Studies conducted by Leon Petrażycki, Bronisław Wróblewski and Czesław Znamierowski are well-known – these studies were carried out in line with the vision of modern science with psychology and sociology involved, while the idea of integrating legal sciences with social sciences seemed to somewhat determine the research paradigm in legal sciences. One of these implemented projects is undoubtfully the science of the politics of law (similar to the philosophical assumptions of Nathan Roscoe Pound, although significantly different and original). Already at the philosophical congress of 1936 in Kraków, general jurisprudence was considered a theory of law, while the main issue discussed at the legal part of the congress was the problem of ‘juridisation of sociological categories’.
In this sense, also the jurisprudence of the second half of the 20th century was also assumed to be modern, which allowed it to maintain high methodological levels, at times with the use of verbal means that embedded studies in reality governed by the Marxist-Lenninist ideology, usually considering this method and methodology a stronghold not to be accessed by censorship or constraints of the official philosophical line. In turn, from the times of the system transformation, that is, for the last 30 years, one could notice some transformations in the way law is considered. These transformations cover a change or a relief of previous rigoristic methodological approach or methodological pluralism. Thus, the approach to scientific matters changes. Self-reflection on the condition and direction of these changes is important, however, it does exceed beyond the framework of this paper as well, as these are post-modern tendencies.
It can be said that the notion of modernity of jurisprudence is understood in this monograph as science implemented in line with specific methods in compliance with an approach characterised by a positivistic (meaning the philosophical positivism) methodological awareness directed at formulating general theorems about law. A great contribution to the creation of this model of jurisprudence, particularly the general reflection on law, was made by Leon Petrażycki, the creator of the theory of law as a science in the truest sense of the term. Ideas or concepts developed by Petrażycki are what constitutes the ←13 | 14→important reference point for the texts included in this volume, although the characteristics of various legal institutions or concepts in view of their role as the foundation of the model law in a broad sense exceeds Petrażycki’s thought. In a sense, Petrażycki’s theory of law is the origin and the model for the modern jurisprudence per se.
- ISBN (PDF)
- ISBN (ePUB)
- ISBN (MOBI)
- ISBN (Hardcover)
- Publication date
- 2019 (July)
- Private Law Legal policy Modernity Petrażycki Public Law
- Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019., 196 pp.