Schmitt Defeated by Montesquieu. A Handful of Reflections on “The Constitutional Theory” by Carl Schmitt

“Constitutional Theory” by Carl Schmitt has undeniable value. The author highlights the difference between fundamental regulations and a set of minor and insignificant norms contained in constitutional acts. The distinction offered by Schmitt opposes dogmatization of reflections on the constitution and encourages synthetic perspectives identifying the constitutional identity of a country. Remarkably, Schmitt inspired the thought about the introduction of supra constitutional norms that may amended using ordinary procedures. Had Schmitt been as sensitive and thorough as Montesquieu, he would not have cut down on the amount of historical materials used in the name of theoretical purity. Meanwhile, his classification of political systems includes only monarchy and democracy. Similarly, Schmitt’s interpretation of legal validity is oversimplified as it is limited to conformity with a nation’s will, even if expressed by silence. In such a perspective, every enacted constitution would have the attribute of legal validity. The theses offered by Schmitt cannot be recognized as a novelty within the field of constitutional law scholarship. The work of classic thinkers shall be subject to critical interpretation. This is a

Attachments:

Ujazdowski.pdf

294 kB

Lustration Laws and the Passage of Time

Lustration laws, which have been passed in nearly all the countries of the former Eastern bloc, have been perceived as an extraordinary measure, necessary during the phase of consolidation of the democratic political system. More than twenty five years after the transition, it is necessary to ask whether such measures can be justified in a stable democracy. Taking into account domestic legislation, judgments of Polish and foreign constitutional courts and transitional justice literature, the article argues that Polish lustration, seen as a historical clarification measure, can still promote important values, such as transparency of public life, truth about the past and ethical standards crucial for participation in the public sector. However, the passage of time makes it necessary to temporary reexamine the indispensability of such instruments, as well as to consider potential modifications thereof, which could lead to lesser interference with the rights of the citizens under scrutiny.

Redemption of Own Shares Acquired in a Downstream Merger

The downstream merger of companies belonging to the same capital group is becoming an increasingly popular method of the restructuring of capital groups and an important element of every M&A (Mergers and Acquisitions) transaction structured as a leveraged buyout. The downstream structure is highly valued by business people especially because it offers the possibility of modifying the group corporate structure without the necessity of modifying the company pursuing day-to-day business activity. The authors conclude that, unfortunately, the Polish Code of Commercial Companies does not adequately provide for business transactions of this sort. Apart from the general possibility of downstream merger of two limited liabilities companies, an issue which is quite well described in Polish legal doctrine, the article considers many other practical legal issues connected with such mergers. In particular, the authors give careful consideration to the procedure of redemption of own shares acquired by a joint-stock company as a result of a merger with its sole shareholder, arriving at the conclusion that the most effective method of such redemption is providing in the articles of association of the acquiring joint-stock company for redemption of own shares upon the occurrence of a specific event in accordance with article 359 § 6 of the Polish Code of Commercial Companies. The article discusses not only the relevant code provisions, but also the practical legal aspects raised by the Accountancy Act which must be taken into consideration in a downstream merger procedure, especially insofar as it regulates settlement for the redemption of own shares.

Attachments:

Kozuchowski_Wozniak.pdf

411 kB

Public Criticism of Homosexuality as a Realization of the Constitutional Freedom of Speech in the U.S. Case Law

The article deals with anti-homosexual speech as constitutionally protected political expression in the United States. Study of the U.S. case law shows that the title freedom has not only a theoretical or normative dimension but also a practical one belonging to the so called “law in action”. Criticizing same-sex practices as immoral and sinful falls within the protection of the First Amendment. A necessary incident to freedom of speech is also the right of expressive association, that is the right to get together with other people with a view of promoting particular viewpoints or ideas, including beliefs that engaging in homosexual conduct is contrary to being “morally straight”. Public debate demands that even hurtful speech on public issues be shielded from prosecution and liability. Disapproval of anti-homosexual rhetoric does not allow the State to interfere with this speech for no better reason than discouraging a disfavored message. The author urges to make responsible use of freedom of speech. Condemnation of homosexual behavior should always respect the dignity of homosexual men and women.

Attachments:

Maron.pdf

441 kB

Remarks to the Act on the Specific Rules of Restructuring Foreign Currency Home Loans in Connection with the Change of Foreign Currencies Rates as against the Polish Currency passed on August 5, 2015

The article concerns selected issues pertaining to the scope of application of the Act on the Specific Rules of Restructuring Foreign Currency Home Loans in Connection with the Change of Foreign Currencies Rates to the Polish Currency passed on August 5, 2015. As the legislative procedure had not been completed before the VII term of Parliament ended, the Act could not have been presented to be signed by the President. That is why it never entered into force. The Act prescribes specific rules for restructuring foreign currency home loans in connection with the change of foreign currencies rates as against the Polish currency, especially with the slump of Polish zloty (PLN) in relation to Swiss franc (CHF). The aim of this paper is to present some disputable provisions of the Act, especially those governing its scope of application. This is pertinent as the questions whether Parliament should enact a law restructuring foreign currency home loans and what should its scope of application be have generated considerable controversy. In this paper we put forward some remarks on the legal model espoused in the Act and propose some alternative solutions.

Attachments:

Bosek_Lackoronski.pdf

631 kB

Law vs. Morality and Politics Illustrated by the Example of Bioethical Issues

Law is not autonomous in respect to morality or politics. It is evident when considering the experience of last seven years of bioethical debates in Poland, and legal discussions concerning regulating IVF in particular. The debates prove almost all the weaknesses of legal positivism. Therefore, three interconnected levels of analysis – moral, political and legal – are to be consulted thoroughly before undertaking any legislative efforts. All of them need to have objective foundations. Nonetheless, compromises on the two latter contentious issues are to be legitimately expected in a pluralistic society. Law is only an instrument of interests and values in the hands of experienced politicians. They are to be respected as professionals but found responsible for regulations in force, as politicians are not immune from being subjected to moral evaluation.

Attachments:

FLB.pdf

307 kB

Naturalization of Law in the Context of the Development of Biology and Medicine

The world of man, including the world of legal institutions, directly depends on who a man is himself. A man, in large part, is a reflection of his biological nature. Consequently, modern legislatures, functioning in the reality of a democratic society and the rule of law, cannot turn a blind eye to this basic dimension of human existence. On the contrary, meticulously conceptualized anthropology should become a keystone in regulation, at least in the field of biolaw. If this is not the case, the legal system becomes inconsistent.

Attachments:

Nawrot.pdf

450 kB