Pobierz plik (4-2011 Szewczyk.pdf)4-2011 Szewczyk.pdf284 kB

Occupational and para-occupational illnesses in the amended version of the Labour Cod

 In Poland the concept of an occupational illness is based solely on the list of occupational illnesses caused by the negative infl uence of working conditions on the worker’s organism. That means it is not possible to go beyond the burdens set by the list and to extend the protection over the instances established in a diff erent mode than the issuance of a high-rank normative act (statute, executive regulations). However, it is not the only condition, because not only must the illness be included in the list but also it is necessary to prove (indisputably or with the great probability) the occupational character of an illness. The concept of an occupational illness was therefore construed according to a restrictive method of the list, burdened additionally with the requirement to prove the occupational character of an illness, which substantially limits the scope of the legal protection of workers suff ering from occupational illnesses. Another social problem is a small amount of consideration received from the social insurance for occupational illnesses. It should be noted there are also para-occupational illnesses, which are not included in the statutory list of occupational illnesses, but whose relation to harmful work environment or working conditions reducing biological immunity of the worker’s organism is undisputable or proven with the great probability. Therefore, we should advocate adoption of an open concept of occupational illnesses and abolition of a method based on the closed list of occupational illnesses. In case of the open construction of occupational illness with the help of a mixed method, the basis for compensation should be – besides extended list of occupational illnesses based on implied causality between occupational exposure and occupational illnesses – for para-occupational illnesses the existence of a harmful factor in the work environment and the causality between the factor and the detriment to health sustained by the aggrieved person.

Pobierz plik (4-2011 Nawrot.pdf)4-2011 Nawrot.pdf209 kB

„Great narrative” of the Council of Europe – a few remarks on the protection of human nature in the era of biotech revolution

Dynamic development of natural sciences, often called the biotechnological revolution, which we observe at this very moment, leads human being to be the master of his life. Today man is able to create life in laboratories, tomorrow – by using genetic engineering – he may be able to give any shape to this artifi cial life. Human freedom seems to have no limits. At the other hand, that what seems to be full freedom may become the scariest prison. The intervention in genetic heritage may enslave human being, catching it in anew form, without possibilities to be back to the ‘natural’ one. In the paper the author highlights the range of the problem of human nature and its protection as the condicio sine qua non of ensuring the individual’s freedom.

Pobierz plik (4-2011 Walencik.pdf)4-2011 Walencik.pdf259 kB

Amendments to the act on the
relation of the State to the Catholic
Church in the context of the
bilateralism principle

While enacting and amending legal provisions on religiuos issues it is necessary
to comply with the principle of bilateralism, resulting from Article 25 paragraph 4
and 5 of the Constitution. Under those provisions, relations between the Republic
of Poland and the Catholic Church are defi ned by an international agreement with
the Holy See and the laws. However, relations between the Polish state and other
churches and religious associations are determined by the law enacted on the basis
of agreements concluded by the Council of Ministers with their respective representatives.
Recognizing the diff erence in the wording of Article 25 paragraph 4 and
Article 25 paragraph 5 of the Constitution – the Constitutional Court in its ruling
of 2 April 2003, case No. K 13/02 – expressed the belief that „the requirement of
a prior agreement between the Council of Ministers and representatives of the
church shall also apply to the laws regulating the relation of the State to the Catholic
Church”. A similar position was taken up by representatives of law doctrine.
Hence, their postulate that the wording of Article 25 paragraph 4 should be adjusted
so as to standardize the procedure for the laws concerning the Catholic Church with
the procedure regulated in Article 25 paragraph 5 which relate to other churches and
religious associations, is legitimate. Therefore, without the prior agreement of the
Council of Ministers with the representatives of the Catholic Church is not possible
to adopt amendments to the act on the relation of the state to the Church, that
would meet the standards set out in the Constitution and the concordat with the
Holy See. In he current legal status, legal basis of the agreement concluded between
the Council of Ministers and representatives of the Catholic Church in Poland should
be the provisions of Article 25 paragraph 4 in conjunction with Article 25 paragraph
1 and 5 of the Constitution in conjunction with Article 27 of the concordat.

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Openness and Understanding. The Examples taken from the American Discussion on Bilateral Relationship between State and Church

The cooperation between government and religious denominations is possible and desirable even in the so called ‘pure separation’ between Church and State in the United States of America. The cases discussed are: Zobrest v. Catalina Foothills School District (1993), Board of Education of Kiryas Joel School District v. Grumet (1994), Agostini v. Felton (1997), Mitchell v. Helms (2000); Zelman v. Simmons-Harris (2002), and Hein v. Freedom From Religion Foundation, Inc. (2007). The opinions of the justices suggest that the United States Supreme Court became open to permissible accommodation of religion which is to be distinguished from impermissible establishment. They seem to be convinced, diff erently than in 1980ties, that interaction between Church and State is inevitable. Not every presence of religion in the public sphere is unconstitutional. It has been established that the government cannot participate in religious indoctrination, discriminate one denomination over another or create an excessive entanglement. In Europe a lay fundamentalism is in attack. It openly struggles with the presence of religion on a public forum, trying to eliminate it from democratic states under the cloak of neutrality or tolerance. The examples taken from the American legal discussion on bilateral relationship between State and Church prove such an attitude unrealistic and disadvantageous for the enlightened society. On the contrary, as Pope Benedict XVI stressed in England last September, religion helps democracy to fi nd the ethical foundation for political choices. And the history demonstrates that democracy without values turns easily into an open or thinly disguised totalitarianism.

Pobierz plik (4-2011 Brożek.pdf)4-2011 Brożek.pdf155 kB

Beyond Interpretation A Reply to Jerzy Stelmach

There are three goals of the essays. First, an attempt at clarifying the concept of interpretation is made. It is argued that the only reasonable way of reconstructing interpretation as an activity is to look at the products of interpretation. From this point of view interpretation should be seen as a process that leads to narrowing down the so called meaning bundle of a given expression, i.e. the set of possible meanings prima facie ascribable to the interpreted expression. Second, two theses of Jerzy Stelmach – that interpretation cannot be objective and that interpretation has no a priori limits – are critically analyzed against the conceptual backdrop proposed in the fi rst part of the essay and rejected. Finally – third – a thesis is defended that interpretation plays no central or essential role in legal reasoning. It is argued that the goal of legal reasoning can best be described as a positive exemplifi cation and resolution of the norm confl icts. Neither of these procedures may serve the process of interpretation, i.e. the narrowing down the meaning bundles of interpreted expressions


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The Unlimited Interpretation

In the essay, the idea of the unlimited interpretation is expressed by seven theses: fi ve descriptive and two normative. First, it is argued that legal interpretation is neither a paradigmatic nor a special case of interpretation in general. Second, it is claimed that interpretation has no a priori determinable limits. Third, the thesis is defended that all correctly formulated and applied methods of interpretation are equal. Further – fourth – it is argued that interpretation can be understood only as applied to particular cases. In other words, interpretation is a practice – the notion of interpretation as a 'pure theory' is empty. Fifth, it is postulated that interpretation should involve a 'critical moment'; without critical appraisal interpretation remains a pure theoretical construct hanging in vacuum. Sixth, interpretation should be axiologically open, if it is to remain a 'free activity'. Finally – seventh – it is claimed that the presented account of interpretation may help in avoiding 'deadly sins' of standard philosophies of interpretation: the sin of supremacy (of one theory of interpretation over the others); the sin of universality (of the preferred model of interpretation); the sin of objectivity (of the rules of interpretation); and the sin of inapplicability (of the theoretical models in legal practice).