The present paper is a reaction to Maciej Pichlak’s article "Law in the Snares of the Political: Addressing Rafał Mańko’s Critical Philosophy of Adjudication" which was published in this journal (“The Critique of Law” 2020, 12(3), pp. 109–125). The present response addresses selected issues raised in Pichlak’s critique, focusing on three aspects: law and the political, the importance of justice in the critical project, and finally the question of adjudication and ideology. On a more general note, the polemic reveals the importance of philosophical, political and ideological commitments and presuppositions of legal theorists and poses the question of the limits of the autonomy of jurisprudential debates vis-à-vis such commitments.

The issue of law-making is a key issue in a democratic state ruled by law. Particularly interesting seems to be the issue of enacting electoral law, which is exposed to the phenomenon of instrumentalisation. The aim of this article is to analyse the institution of legislative silence in Polish electoral law and to try to find an answer to the question whether the application of this solution may be an effective tool limiting the political influence on the shape of electoral law. In order to find the above questions, it was necessary to carry out a detailed analysis of this solution, primarily on the basis of the jurisprudence of the Polish Constitutional Tribunal and international law standards specified in the documents of the Venice Commission. The work uses the formal and legal method and the literature and jurisprudence are reviewed.

This paper presents the issue of a lawyer’s integrity from the perspective of the assumptions underlying the original concept of a holistic approach to law and legal practice. In the course of the discussion, the basic principles of legal holism, the assumed understanding of lawyer’s integrity and their personal qualities forming the lawyer personality, and the problem of integrity in the context of the formula (model) shaping the lawyer-client relationship will be introduced. Legal holism recognises a lawyer’s self-knowledge, their conscious choice of professional role(s), the ways in which they are performed and the formula for working with clients and parties to disputes as crucial issues for the practice of law. It emphasises their complexity and possible impact on the postulated observance by a lawyer of the integrity of attitudes and actions in professional and private life. The author represents a research approach related to the concept of ontological and methodological multidimensionality of legal phenomena and the postulate of the so-called external integration of jurisprudence with the achievements of other sciences, including branches other than social (e.g. psychology or sociology).

The paper analyzes the concept of integrity of a judge from the perspective of the virtue jurisprudence. There are the judicial virtues specified and described, including integrity as one of the elements of the virtue of justice. Subjective and objective integrity are distinguished, as well as personal, professional and institutional integrity. Integrity of a judge is understood as personal integrity combined with professional integrity and also institutional integrity in which values and aims of the profession are taken into account. Virtue jurisprudence does not provide clear directives for solving legal disputes but it emphasizes the necessity of referring to the dispositions of a judge in order to understand fully the process of judgment. On the grounds of virtue jurisprudence, the integrity of a moral subject if assumed which provides the foundation for trust in the profession of judge and does not allow for the separation of social roles, assuming the possibility of reconciling them with the use of prudence. The problem of conflicting virtues, namely integrity and impartiality in the context of judicial review is discussed on the example of the judgment of the Polish Constitutional Tribunal of October 22, 2020, K 1/20 which illustrates judicial activism. The considerations concerning this example bring about the conclusion that in the most controversial political and moral disputes, political prudence suggest the direction of the virtue of judicial restraint due to deference of democracy and the division of powers.

The main purpose of the presented research project is to prepare an initiating answer to the present state of judicial integrity recognised as the top of legal professions and the legal system as such. The method comes mainly from the Oxford analytical jurisprudence, nevertheless, the historical and interdisciplinary approaches, as well as a legal practice, were taken seriously into consideration. The main theses and their scientific standpoints are: (i) at present, we are facing the disintegration of integrity; (ii) one of the sources of it lies in the very grounds of major jurisprudential terms, understood as parts of the Hartian internal point of view and that there are fundamental analytical paradoxes of integrity, generating practical dysfunctionalities; (iii) it is possible to solve main problems through a completely new approach: an ontological turn in the philosophy of law causing the idea of law as a concept and a new concept of integrity, namely ‘negative integrity’. It could be easily and effectively treated as practical support for firstly improving judicial integrity and secondly legal practice in general.

The article attempts to present the identity of the judge through the metaphor of the role as an interactive ritual. The framework of this ritual can be described by means of both intersubjective factors (e.g. legal rules) and individual factors (the subjectivity of the role performer). I apply this conception to the iconic symbol of justice in public space, which is usually associated with the figure of a woman whose eyes are covered with a blindfold, holding the scales of justice in one hand and a sword in the other. It is a visual symbol of the judge; one that is comprehensible to both lawyers and the public.
In carrying out this task, I refer to sociological and anthropological research in the field of visual culture. This perspective determines not only the subject matter covered by the theses formulated in the article but also the research method. It is assumed that visual representation constitutes a communication channel that has a great impact on individual and social memory. For this reason, the presentation of the role of the image and the methods of its interpretation is important for the debate about the role of the judge and the image of the judge in public space. This approach to the subject, which consists in shifting the emphasis from text to image, also rehabilitates the significance of visual representation in jurisprudence, a field traditionally dominated by the view that law is a linguistic phenomenon.

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 entitled “Counteracting Tax Avoidance and Tax Evasion in Selected EU Directives on Direct Taxes” discusses the provisions of Directive 2003/49/EC, Directive 2009/133/EC and Directive 2011/96/EC that are capable of withdrawing the benefits provided under the directives in the case of tax fraud and abuse, tax evasion or tax avoidance. The paper reviews provisions of the directives and also the case law of the European Court of Justice concerning tax fraud and abuse. The jurisprudence of the ECJ plays a key role in setting standards for regulations on the prevention of tax evasion and avoidance adopted by Member States of the European Union. The paper’s centre piece argument is that the solution adopted by the EU legislator, which shifted the burden of preventing tax escape from the EU to Member States, is ineffective and falls short of fulfilling its proper role. The paper emphasises that many tax payers take advantage of the fundamental treaty freedoms and applicable directives to obtain tax benefits or double non-taxation. Limitations imposed by a strict jurisprudential approach of the European Court of Justice also pose a significant barrier to effective tackling the negative phenomenon of aggressive tax planning based on EU laws, the paper suggests. By assessing the effects of the application of the existing regulations and juxtaposing them with the current scale of the problem, the author presents an argument for changing the direction of measures taken to curb international tax avoidance and evasion.

The increased effectiveness of competition law enforcement has contributed to th appearance of an atypical type of cartel, which engages not only competitors, but also their common supplier (or retailer). The so called hub-and-spoke cartel consists in the exchange of strategic information between two or more horizontal competitors (spokes) via a common contractual partner active at a different level of the production/distribution chain (the hub), who often also contributes to stabilizing a cartel. Due to the existence of the vertical element of this indirect information exchange, the question arises whether it should be assessed in the same way as its direct equivalent, i.e. as a “by-object” restriction of competition, thus, not requiring an analysis of its actual effects. Although the EU institutions have not adjudicated a hub-and-spoke collusion case yet, the jurisprudence of the national courts may provide useful guidance on what the constituent elements of the hub-and-spoke collusion are and how to assess this practice under the EU competition law. The analysis of both national and EU case law allows to contend that the hub-and-spoke cartels should amount to de facto horizontal information exchange and be assessed in accordance with the “by-object” standard. However, the hub-and-spoke collusion may equally constitute a part of a normal negotiation process (e.g. bargaining) with trading partners, as well as give rise to several efficiency gains, which should be taken into account in examining the practice concerned under the EU competition law.

The paper deals with the issue of the legal consequences of a false statement given
by the accused in criminal proceedings. The author presents positions expressed in this matter in the literature and jurisprudence. He then presents and justifies his own view. He believes that a false statement by the accused is not criminally prohibited, because there is no such type of offence. However, such behaviour is unlawful. It is true that this is a kind of defence, but it is not the execution of the right to defence. Nevertheless, it does not appear that the false statement could result in an intensification of the penalty or in the use of a preventive measure in the proceedings (for example temporary custody). It is undoubted, however, that false statement resulting in defamation or false accusation may lead to criminal liability.

It is a widespread opinion that modern jurisprudence was shaped first of all by the tradition of Roman law. In this article author tries to explain why ancient Greek legal thought should be equally important. As an example he considers the evolution and the different meanings of the concept of nomos. Four issues are presented in this paper. First, nomos in the political philosophy of Carl Schmitt and Giorgio Agamben. Secondly, nomos in one of Pindar’s poems. Thirdly, the distinction between physis and nomos made by the sophists. Fourthly, thesmos, nomos and psephisma in the legislative practice of Athenian ekklesia.

The article concerns real and potential reactions of jurisprudential discourses to the phenomenon of the crisis of liberal democracy. The author argues that liberal democracy has been a hegemonic structure – meaning that not only has it been dominant in the factual sense in the broadly understood Western legal and political culture but it has also effectively suppressed any competing discourses. Today, the hegemony of demoliberalism is being questioned. The new state of affairs causes a range of complications that
jurisprudential discourses have to deal with. The author considers three possible scenarios of the reaction of these discourses to the said crisis. The first of them means a shift towards democratic authoritarianism. The second is about remaining in a collective hypocrisy, waiting for a change in the current intellectual climate. The third involves accepting the political nature of jurisprudence and making the concept of agonistic democracy a reality.

The paper aims at reconstruction and critical discussion with the main tenets of political theory of adjudication, as presented by Rafał Mańko in his book, W stronę krytycznej filozofii orzekania. Polityczność, etyka, legitymizacja [Towards a Critical Philosophy of Adjudication. The Political, Ethics, Legitimacy]. In the paper, I demonstrate: that the interpretation of the concept crucial for the entire theory – which is the concept of political – has been chosen by Mańko in an ideological and a priori manner; that the choice above effectively prevents the realisation of the main objective of the book, which is to legitimise adjudication; that the adoption of the ethics of adjudication advocated in the book is – in the light of the basic assumptions of that very publication – both improbable and hardly acceptable. Finally, I claim that Mańko’s theory, due to its totality, can distinguish neither between legitimate law and violence, nor between justified and unjustified adjudication. As a result, it loses its critical force. All these problems are not peculiar to Mańko’s theory, but they are general weaknesses of various versions of critical jurisprudence.

The article attempts to analyse the status of the theory of legal interpretation that
emerges from the contributions of one of the representatives of critical legal studies
(CLS). Legal interpretation is analysed by using concepts drawn from hermeneutic
universalism and the post-structural philosophy of politics. The concepts of Duncan
Kennedy, an American philosopher of law, are subjected to analysis, and his
concept of adjudication, the indeterminacy thesis and the hermeneutic of suspicion
is addressed. The paper puts forward the thesis that the political nature of law – alongside
factors closely related to social structure – is also determined by factors which
pertain to the cognitive subject. This fact has crucial importance for determining
the status of the theory of legal interpretation.

In the article, I contrast the contemporary legal dogma with the challenges underlying the political nature of law and judicial practice. Both the Continental jurisprudence and the judicial decisions issued by European courts are dominated by the dogmatic current – and treated as politically neutral acts. My intention is to carefully verify this quite common belief in this paper. Making use of H. Berman’s views, I assume that the present shape of jurisprudence and the judicial practice based thereon have been established as a result of political conflicts and that the legal dogma is capable of neutralising and solving modern-day political conflicts precisely because of the qualities of the said shape. It is therefore both a political and an apolitical activity. But this paradox is only apparent. In its strive to keep its paradigm alive, the dogma should be flexible in reacting to the challenges occurring in its political environment. It can – and should – modify the “buffer” of the theory upon which it is set in order to retain its core. In the article, I try to answer the question about the boundaries of the possible adaptation of jurisprudence and juridical practice with respect to claims raised by the domain of politics – claims currently articulated as the strongest by the so-called critical theories of adjudication. The final part of the paper is an attempt – based on the example of theses formulated in monograph
by R. Mańko, W stronę krytycznej filozofii orzekania – to outline the said boundaries.

The article discusses the Case Method – the dominant method of teaching in American law schools, based on an analysis of judicial decisions, created in the 1870s by Christophus Collumbus Langdell. Langdell perceived law as a science similar to physics or chemistry, and hence as an ordered system of objective knowledge, and the method of teaching that he created was intended to educate people dealing with law in a scientific manner. The article presents Langdell’s concept of law and the impact of his teaching method on the trends in American legal philosophy – classical jurisprudence and legal realism.

The aim of the present article is to reflect upon the ontological presuppositions of critical jurisprudence (critical legal science), understood as a set of assumptions in the domain of social ontology, which determine the identity of this form of general reflection upon law. The article proposes to identify four such assumptions: the assumption concerning the political character of the social world; the assumption on the social construction of the social world; the assumption of paninterpretationism; the assumption of the existence of epistemic communities.