The article contains seven justified arguments formulating a new programme of research in legal science. It is a programme of research on identity of the law. The author proposes i.a.: separation of the mental identity of the law as a distinct quality from the identity of law in its „physical” dimension. The new research trend requires a new independent methodology of knowledge, which may be a harbinger of a revision of many existing ways of conceiving the law.
This article seeks to identify the characteristic features of judicial cosmopolitanism and its product – the emancipation of judges from the constraints of national law. Cosmopolitanism manifests itself in creating normative systems outside and above traditional international law. While the latter draws its binding power from the will of states, cosmopolitan rules are usually created by private actors. Their binding power results predominantly from practical necessity. Such is the status of lex sportiva, of the standards imposed by rating agencies, or of international accreditation bodies. Judicial cosmopolitanism is different, for it rests upon the existing structures and competencies. By resorting to alien legal sources judges free themselves from national constraints, thus enhancing their power and independence. In assessing the impact of cosmopolitanism, one has to differentiate between looking up to foreign laws and precedents as binding sources, and treating them as merely intellectual inspiration. The second, albeit it seems innocuous, entails serious perils to the quality of adjudication. It creates a danger of cherry-picking by selecting foreign inspirations, not necessarily best suited to the case at hand. There is a danger of judicial overstepping of powers by making laws instead of merely applying it. By allowing judges to venture the uncontrolled expansion of their powers we endanger the very essence of the rule of law. On a positive note, drawing on foreign legal sources enables judges to verify the rationality of their decisions, as they were already tested in other jurisdictions.
The article discusses the differences and similarities between discretionary, judicial power and administrative authority. It indicates a possible recognition of the administrative and discretionary power. The author also considers possible risks in a democratic state governed by the rule of law, associated with the abuse of discretionary by administrative authority.
The constitutionalization of the referendum and law making citizens’ initiatives makes them important institutions and also important tools for exercising direct democracy. The question that arises today is the effective usage of these tools, in the framework of enhancing the direct participation of the citizens in governance. Particularly, in countries like Albania, which represents one of the newest democracies established after the fall of the Communist regime in Europe, the exercising of these instruments encounters different challenges, coming up especially due to lack of traditions and practices in exercising direct democracy, legislation vacuum and the insufficiency of organizational experiences of the civil society. Nevertheless, some experiences in particular have been achieved in the last 15 years, after the current Constitution of the Republic of Albania was enacted. Out of the
direct democracy instruments that are sanctioned in the Constitution of the Republic of Albania, this paper will focus only upon the law making citizens’ initiative and on the abrogative referendum initiative, as well. Legislation, jurisprudence of the Constitutional Court and some other issues identified through the experiences established in Albania will be treated in this paper. These experiences are analyzed in a comparative point of
view with the experiences of other countries, particularly Italy.
The paper presents the changes of the constitutional design of the Hungarian political community, in particular complex reconstruction of the Hungarian electoral system between 2011 and 2013, following the adoption of the new Hungarian Constitution.
A large number of opinions have been expressed about the decision C-131/12. Initially, Google’s defeat has been widely welcomed as the giant had suffered a bitter defeat. After a first joy about the containment of Google’s arrogance it became clear that the excessive claim for right to be forgotten will dry out our sources of information. Can privacy be seen as a fear for diversity of opinion? It may be due to the tension between data and reputation protection on the one hand and the possibility to protect against lies and fraud on the other hand. It is not just Google’s freedom of expression, which is in the centre of our interests. We want to find informations and Google is helping us in this regard. Forcing Google to suppress the information flow can not hinder Google to earn money. If we go through the opinion of the Advocate General and compare it with the reasoning of
the ECJ, then we come to the conclusion, that the ECJ had to decide in this a way on the grounds of the current legal status. The ECJ was standing with the back to the wall, because it has to apply the current law and this left no option open. Thus, the ECJ could not follow the opinion of the Advocate General. In the following I will shortly summarize the Spanish Data Protection Authority (SDPA) decision, before moving to the Advocate General opinion and the judgment of the ECJ and finally provide an outlook on possible
future development in this regard.
These days, Banks are obliged to comply with a broad scope of the regulations and binding laws and this creates numerous challenges for those organisations. These challenges relate, particularly, to international banks operating in parallel within complex legislative, regulatory, social, political etc. realities. This article is a concise presentation of selected tasks brought about by the compliance function in banks that at the same time are the references for the internal norms created within those organisations.
The forms of the Alternative Dispute Resolution (ADR) procedures were developed in the 1960s in the United States. The ADR is based on conciliation of the parties rather than judgement. This is possible through ensuring of broad participation of the parties in the dispute resolution. The ADR has as its objective the replacement of the adjudication process by forms of arbitration, contract, mediation and conciliation. The goal is to reach
a compromise. The basic division of the ADR is into the basic and the mixed (hybrid) forms. The basic ones include mediation, negotiations and arbitration. The hybrid forms include, for example, conciliation, fact finding, mini-trial. The ADR tools are successfully used for solving disputes in civil law, labour law, and administrative law and even in criminal cases. American agencies also apply ADR procedure called reg-neg to work out the content of legal regulations between officials and representatives of the parties concerned. ADR forms are also used in appeal proceedings. Despite unquestionable advantages of the ADR methods, there are critics who blame them for lowering the standard of the judiciary. There is no doubt that the application of ADR results in de-formalisation and simplification of the court proceedings and often in delegating the position of a negotiator or mediator to people without a legal background. However, this should not overshadow the greatest asset of the ADR, namely, the achievement of permanent agreements satisfactory for both parties.
In this work I present Leibniz’s views in the context of the dispute on the origins of language held in the 17th century and inspired if not yet by pure nationalism, then certainly by the argument about the priority of linguistic and cultural tradition. The Leibniz’s stand in the matter is not unequivocal. However, when comparing the philosopher’s marginal ideological statements, views expressed in his key texts concerning the theory of language, as well as the ones connected with the theory of cognition, we are lead to a conclusion that the philosopher has taken a different approach – not only as an ideologist defending Germany’s cultural heritage, but also as a thinker, theoretician and researcher of natural languages, proving the equality of their cognitive functions. The most interesting issue undertaken by the philosopher, is the problem of the status of language and its relation to thinking. In this context the futile argument about the priority of languages is replaced with a philosophical question, which remains significant to this day, about the human ability to create a language and its cognitive rank.
Interpretation is one of key notions on the convergence axis of law and literature. Both lawyers and literary scholars during their practices focus on interpreting complex language texts, establishing the meaning of expressions, reconstructing the sender’s intention, penetrating the influence of the text on the recipient, i.e. questions which turn out to be fundamental in both legal as well as literary texts. Analysis of the legal and literary interpretations allows us to identify differences as well as certain analogies between these two spheres of activity. They may be analysed through referring to the specificity of the entities participating in the interpretative practice, which are the sender and the recipient. The essential difference between interpretation in law and interpretation in literature consists of the rule that a legal text should be interpreted in the way that produces an unequivocal result. On the other hand, in the case of literary interpretation, it is difficult to reach a precise or unequivocal effect of reading the sense. Moreover, in literary interpretation it is not required. In a legal text and in a literary text the author-sender’s intention plays an important role. However, in the case of literary interpretation it is possible to apply a more flexible approach to the reconstruction of the author’s intention than in legal interpretation, where it is necessary to take into consideration rules and objectives of law only. The separateness of legal interpretation is justified foremost by the fact that it is specific purpose-oriented, which is establishing the meaning of the substance of applicable law.
The literary activity of Wenceslas Makowski (1880–1942) who was a prominent politician in the Second Republic of Poland (1918–1939) as well as a lawyer and a scholar, encompassed three main subjects: scientific, journalistic (mainly political and social), and artistic. His literary achievements in the scientific field of legal sciences are highly regarded. Of Makowski’s literary work in the scientific and journalistic field, his achievements in the field of criminal and constitutional law are noteworthy. Undoubtedly, this was associated with his extraordinary activity in the state bodies of the Second Republic of Poland. W. Makowski was also devoted to artistic activities and literary criticism.
The article is a polemic between Leo Tolstoy, a Russian writer and a moralist of the nineteenth century, and Leon Petrażycki, a Polish lawyer and a philosopher of law of that period – on the social significance of law and morality. Tolstoy’s and Petrażycki’s roads crossed due to a young man named Krutik, a law student at the University of St. Petersburg. Krutik wrote a letter to Tolstoy, whom he considered a moral authority, asking to dispel his doubts caused by reading the works of Petrażycki. Indeed, Tolstoy affirmed
that the appropriate regulator of human life is morality. In contrast, Petrażycki proclaimed that the raison d’être has both morality and law, but if one compares their social significance, the higher value should be given to the law. Krutik had a dilemma, which thinker to agree with? Analysis of Tolstoy’s and Petrażycki’s views made in this article leads to the conclusion that in fact they were arguing about how to implement the idea of love, somewhat differently interpreted by them. While Tolstoy categorically rules out the possibility of realizing it on legal grounds, Petrażycki was firmly convinced that the law can, absolutely, be its carrie
The paper presents the literary vision of „the power of medicine” as sketched by Aldous Huxley in his book Brave New World. Huxley created a futuristic image of society which reaches a state of complete organization and control of human procreation. In Huxley’s world humans are born as a result of in vitro fertilization and cloning. Human bodies, due to genetic selection, are produced for desired features of appearance and character, and the means of achieving universal happiness are appropriate pharmaceuticals. Artificial procreation as well as reproductive genetics anticipated by Huxley have become reality in the 21st century, implying several moral and legal dilemmas. In bioethical discussions questions emerge about the consequences of using new genetic technologies and the legal boundries of medical experiments on human bodies.
The subject of this article covers the relationship between literature and the law. An example of this text is The Code of Nature from 1755. Morelly’s composition is beauty, simplicity and sincerity. Morelly, and before him Rousseau, are the eulogists of Nature, exhorting us to live according to her eternal, immutable and perfect laws. On the other hand, he stays true to Cartesian tradition cult of reason and power. The Code of Nature shall be treated as the enlightenment utopia of a communist State. Life in accordance with Nature is a happy life To achieve this, the abolition of private property in social relations is required. The Code of Nature is seen as a harbinger of coming processes of codification and consolidation of the idea of modern constitutionalism.
The paper explores the relation between law and literature. In the first part, based on „Bleak House” by Charles Dickens, the shortcomings of the perspective „law and literature” are indicated. The author not only criticizes the idea of treating a writer as if he were a legal historian, but she also calls into question a broader vision of literature as a mirror of social and legal reality. In the second part of the paper, still in reference to „Bleak House” (Court of Chancery, lawyers, philanthropy), a different concept of fiction within legal education is developed. Literary artistry (the use of metaphors, personifications, caricatures) and not its similarity to reality, is seen as a valuable instrument in the cultivation the moral imagination and empathy of the lawyers.
Franz Kafka’s novel The process is a timeless novel, still valid and alive. It is a description of the state of consciousness of a certain age, a certain view of the world of the author, of the enslavement of man by binding law, because the authorities decide on life and the fate of the human being. „The process” is a novel about a man, who is lost in his own life. The message of the thesis is that the man is born and condemned to live or to die without any explanation. Moreover he is subordinated to the top-down established rights. The judgment, which is death, falls on us without notice. The man is liable for everything that happens in his life and the world around him.
The aim of this article is to show the structural similarities between legal discourse and film, and cinematographic works that can be useful in teaching law. For this purpose lacanian psychoanalysis is used (in the version presented by Slavoj Žižek) and the movies – Triumph of Will, Battleship Potemkin, Bezmiar sprawiedliwości, Twelve Angry Men and Dead Poets Society. Based on the three-level concept of meaning i.e. Imaginary, Symbolic and Real levels, the author shows that the centre point of legal discourse and film is the Great Other. Motion pictures as well as the law require their subjects to adopt the position of the entity to which the Great Other directs his message. Both discourses have the opportunity to abuse that position.
In his Vita divi Augusti, Gaius Suetonius quoted four terms which were in use in ancient Rome and referred to bankers: argentarii, mensarii, nummularii and coactores argentarii. In his description of the life of Emperor Augustus, the historian mentions the rumour that the Emperor’s grandfather was engaged in usury. However, in the excerpts focusing on the genealogy of Augustus, Suetonius applied the term argentarius, which undoubtedly denoted a banker running his operations, in a professional manner, in the Forum or in another public place. Thus, the ancestors of the princeps could have been involved in specialised activities, supervised by officials and subject to particular obligations. This assumption is corroborated, among others, by the fact that the Emperor’s father, Gaius Octavius, enjoyed general public esteem. Similarly, the unintended comparison, by Cassius of Parma, of the princeps’ grandfather to mensarii or nummularii may confirm the hypothesis that he was neither a money-changer nor a moneylender. Among the ancestors of other emperors, such as Emperor Vespasian, there were also bankers referred to as coactores argentarii who conducted auctionrelated activities, and this is exactly the type of banking activity that his father and grandfather were involved in. Therefore, Suetonius was aware of various terms used in ancient Rome to describe the banking profession.
The author of the article draws attention to certain semantic contradictions appearing in contexts where the word „fact” is used in the language of legal acts and the language of legal practitioners. These contradictions pertain, in particular, to the possibility of attributing some logically exclusiv predicates, especially such as „true” & „untrue” and „existing” & „non-existing” to „fact”. This word is also key to an understanding of the legal notion of „truth”. The semantic collocation of „fact”, atypical for the expressions in general language, and the aforementioned predicates, suggests a specific and different meaning of the word „fact” in the language of legal acts and legal practitioners. „Fact” has been traditionally defined in Polish legal doctrine as a „fragment of reality”, so the stress was put on an ontological semantic component of the word. The author argues that such a notion of „fact”, in particular in the light of the legislator’s statements, may lead to language phenomena which are named by linguists as semantically „absurd” or „nonsense”. The pointlessness of expressions such as „untrue fact” or „non-existent fact” in the context of the general language consists of an inability to understand the meanings of these expressions. The author considers the possibility of regarding them as socalled semantic paradox, and the word „fact” itself as a „quasi-individual” name [nazwa quasi indywiduowa] or a hypostasis. He draws attention to the point, generally ignored in the literature by legal practitioners, that the word „fact”, as corresponding to a certain situation, is always expressible in the form of a meaningful sentence. Moreover, the language of legal practitioners, especially the language of judicial decisions, always associates an approving assertion to the notion of „fact”.
The article offers an analysis of the inscription of the 2nd century AD, engraved on a bronze board, founded in Souk el-Khmis in North Africa. It includes a complaint of colons from the area of saltus Burunitanus, addressed to Emperor Commodus, about the abuse of law by the procurator and the general land lessee. The text is a source of knowledge of the work conditions and the situation in the colons, working in the Imperial estates in North Africa (province of Africa proconsularis). It is at the same time one of the most comprehensive sources of information about the organisation and management of the Roman provinces during the time of the Empire. The colons were small land lessees, who on the basis of locatio-conductio contract cultivated land, collected harvested and paid tenancy. Initially they were free Roman citizens and enjoyed the confidence of the landowners. Over time, their situation deteriorated. The abuse in relation to them were
frequent and one such case of complaint is described. It is a testimony to the days, when the colons still had a strong and independent position, largely based on personal freedom.
This ruling applies to the notion that gives rise to numerous controversies in the tax law doctrine and refers to the classification of expenses incurred for catering services during meetings with business partners at restaurants (the so-called representation costs) as tax deductible costs.
This article concerns the problem associated with the nature of the institution of a petition for reconsideration of the case in view of regulation No 16 of the Administrative Procedur Code in the version before the amendment dated 3 December 2010, which entered into force on 11 April 2011. Despite the amendment, to this day the provision is the source of many disputes, which is reflected in a very non-uniform judicial practice. On the basis of this regulation can be observed, how defective constructed legal provisions affect the administration of justice and the application of the law by creating situations in which the courts take over the functions of law making. On the selected example is shown, how one decision of the Supreme Court, being the basis of decisions of courts of appeal, causes that victims defective administrative decision are charged with the responsibility for legislative errors. Knowledge of the matter, which is the subject of this publication, is extremely important for all practitioners as well as theorists of the law because of the importance of the issues, which accompany the main theme. The work is based on an analysis of the concept of finality and validity of administration decision and depth on theoretical consideration and extensive discussion of the judicial practice of administrative courts, civil courts and Constitutional Tribunal.
The article discusses the legal character of resolutions adopted by the general meetings of shareholders of capital companies. A proper analysis of the issue is preceded by a definition of legal action. Two groups of opinions are then described: one recognising resolution as legal acts and another refusing to recognise them as such. Following the presentation of the opposing views, the author defines its own position. The main thesis of the article is the claim that, in the light the analysis, the resolution of capital companies must be regarded as legal acts, which will cause a number of further consequences, i.a. in terms of defective resolutions of capital companies and sanctions resulting from that defect.
This article presents legal issues in connection to the relation between the state and the beneficiaries of earmarked subsidies for the realisation of public duty, especially the relation between the state and the local government bodies, as well as the purpose and the role of the subsidy contract in such relations. The provisions of the Public Finance Act referring to the conditions of allocating and reimbursement of the subsidy and, on the other hand, the right to regulate some of the rules in a contract as an institution of private law are being discussed in the context of the public character of the funds from subsidies. Additionally, common problems with the application of the provisions of the law are being reviewed in the above-mentioned context.
The subject of the article is the principle of specialty which, in the Polish legal system, limits the scope of protection of the industrial design. In fact, the scope of protection of the industrial design in the Polish law is much narrower than the protection under the provisions of the Directive 98/71. In consequence, an increasing number of Polish applications in OHIM results from the principle of specialty and higher charges related to the protection of the industrial design.
The purpose of the article is to characterise the main reasons and consequences of the division of sub-central government tasks between its own tasks and commissioned tasks and the indication of some controversy related to this issue. The author analyses in particular certain types of local government tasks (concerning the most important spheres of local activity, such as welfare, education, or health) and its qualification to the category of „its own tasks”. The essential conclusion of the paper is that in many cases the qualification of specific public affairs to one or the other category of self-government tasks is determined not so much by its specific „nature”, but primarily by its fiscal consequences, including the ability to pass the obligation of its financing to local authorities. The research methodology used in the article is based on a critical analysis of the legal acts as well as literature on public finance and financial and administrative law.
Abstract The question of compensation of Polish citizens for their property left beyond the Bug river after the population exchanges is among the most complex social, economical and legal issues resulting from the World War II to be solved by the Polish State. Although more than 70 years have passed since this issue has arisen, it remains the subject of numerous national and European court rulings and legislative actions; the significance of the legal solution of the described issue is bolstered by the fact that it is being treated as a “proving ground” for the broader question of reprivatisation. This article focuses on the current Act of 8 July 2005 which was aimed at providing a final solution for settling the claims. However, during the last few years of this act in operation numerous questions and disputes have arisen leading to more than 600 administrative court and Constitutional Tribunal rulings. The subject of this article will be focused on current controversies regarding the subject including the requirements of residence on the former territory of Poland on 1 September 1939, exclusion of non- Polish nationals who are heirs to property owners from entitlement to compensation and legal consequences of nationalization by Soviet authorities during World War II and its aftermath.
The article attempts to confront the concepts relating to the force of res judicata and its subjective limits present in the doctrine and jurisdiction with the current wording of the provisions regulating this institution and the provisions concerning enforcement-warrant proceedings which ensure a possibility to pursue a claim indicated in a judgment having the force of res judicata through enforcement proceedings. In the following article, the author presents the existing assumptions of the doctrine regarding mutual relations between the validity of judgment and the authority of res judicata. The author also analyses the possibility of granting the enforcement order against as well as in favour of a third party intervener, but also a uniform participant not indicated in the operative part of the judgment from the standpoint of the doctrine and jurisdiction. Taking into account the above mentioned considerations, the author concludes that in the light of the existing regulations, the concept of the force of res judicata whose subjective scope is limited to the parties to the proceedings indicated in the operative part of the judgement seems to be the most adequate.
One of the main provisions in shaping legal obligations between the parties is the freedom of contract. Although the parties are free to choose the provisions of their agreement, the content and the aim of the contract cannot contradict the essence and nature of the contract of employment, the act and the principles of the community life. Thereby, in order to engage an employee based on a long term contract of employment for a specified period, along with a short, two weeks notice termination period, justified and rational presumptions should be in place. In other words, taking into consideration current provisions of law, long term contract of employment is acceptable; however its validity is depended on the circumstances of each individual case.
Business intelligence agencies. What are they in fact? How do they understand economic intelligence? What is business intelligence? And what is it not according to the research? Who is the customer? And who is the object? And what are they looking for? At first I did not set the hypotheses, because the main goal of the research is to immerse and understand the mechanisms of the community on the basis of a „clean card”, not verifying the assumptions of the researcher. Bauman and Pilch write „negligible value of research hypotheses particularly highlighted in the ethnographic research, in which assumptions not only restricts the field of research, but is considered to be harmful, because it creates a false picture of the test of reality”. Despite the fact that during the research, I set a list of questions, I quickly managed to create research categories, under which the data collected is grouped, enabling to develop unambiguous conclusions. In the article, an image of the business intelligence market is defined, as well as an attempt to answer the question what organisations offering services like „economic intelligence” actually do, and what to look for when involving a detective.
On the basis of the author’s own maps of the Warsaw-Śródmieście district and comparing private and public institutions, the author explains how the cooperation in the area of protection provided by the government and private security companies is fulfilled. In the article, the researcher tries to verify whether the private security companies divide their action territory between themselves. What is the selection reason of the security company? How important are the historic monuments and how are they protected? The attitude towards the private security companies and the reasons behind the selection of the company are analysed. Who can we ask for help in a critical situation?
The purpose of this paper is to attempt an evaluation of the legal regulations relating to the issue of monitoring in the workplace. The Author defines sources of the employer’s right to control the employee and analyses the limits of this right. Finally, the Author states some provisions of conducting monitoring in the workplace.
The article discusses Polish social welfare within the context of the economic analysis of law. Specific issues addressed in the article are: cost, time, ways of setting matters, the number of issued decisions and the beneficiaries of social welfare in Poland. Following the presentation, the obvious question arises concerning the legitimacy of the use of certain solutions, particularly in the context of their financial performance. Reflections on the social care model used in Poland are presented in the article, as well as the crisis of law as part of the broader issue of the crisis of the modern Western democratic state.
There are many theoretical and legal issues related to the operation of private military companies (PMCs) and their presence (location of their registered offices) in democratic states under the rule of law that remain unsolved in legal doctrine and practice. There are no clear rules at an international level that define the status of these agencies and the way in which they carry out their duties. There is also the problem of distinguishing between contractors and mercenaries. PMCs, like private security companies (PSCs), are used by states in exchange for large government contracts in so-called „unwanted wars”, where it is cheaper to conduct operations without parliamentary oversight, media publicity, or social objections to sending military contingents abroad. Sometimes it is a question of providing discrete military aid to „friend countries”. PMCs are politically safer in such a situation. Not only states but also non-governmental organizations, private companies,
rebel groups and declining dictators hire these private armies. The problem requires urgent multifaceted reflection leading to changes in legal doctrine and legislative action, both at the international level and in individual countries.