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The Concept of Modern Law

Polish and Central European Tradition

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Edited By Michał Peno and Konrad Burdziak

This book contains texts prepared by representatives of various branches of law, philosophers and dogmatists who link a general reflection on law with caselaw. This ensures that the presented approaches are versatile and insightful, and that the addressed issues vary, the most important of which is the oeuvre of the Polish jurisprudence and its contribution to building a modern state and legal theories. The context exceeds beyond a simple report on or presentation of this oeuvre and, in many cases, it only refers to it.

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.

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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)

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One of the best-known concepts in Leon Petrażycki’s theory of law is his concept of law1 in which the so-called intuitive law and positive law2 are distinguished. To recall, the former is said to comprise individual imperative-attributive experiences of a person who acts reasonably, hence, thoughts about the obligation to behave in a given way in a given situation (the imperative element) – thoughts correlated with a thought of the external requirement to fulfil the said obligation (the attributive element). In turn, the latter is said to be affected by the so-called normative facts which under the discussed concept take the form of various messages about law from a positive legislator, an institution that applies law or an entity that provides a scientific reflection on law; for Petrażycki emphasised that the dividing line between intuitive law and positive law runs along the criterion of becoming aware of the existence of a normative fact.3

In such a relation in which positive law is largely based on intuitive law4, for the latter is clearly primary with respect to positive law5 – it gives rise to ←108 | 109→a question on decisive factors that determine the shape of intuitive law. When taking a closer look at Petrażycki’s statements one can notice that in his view, one of such factors – and probably the fundamental one, at the same time – is morality.6 This is due to the fact that in the depicted concept, morality has an imperative character that determines...

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