Problem of reasoning per analogiam in civil law

The article deals with a problem of using reasoning per analogiam in Polish civil law. Nevertheless, at fi rst, it was essential to make some general remarks on this most frequently used technique of legal argument. The paper discusses not only the concept of lacuna and the problem of „relevant” similarity as two necessary and suffi cient conditions for the analogical argumentation, but also the method of application of analogy in legal reasoning. However, the article shows both theoretical background of reasoning per analogiam in Polish civil law (analogy „in book”) and analogy „in action”. Many cases from the private law application practice serve as an example for a careful examination of a question under discussion. Among them, noteworthy is to mention about the sanction of defective legal act of legal person (society) or about the application of argumentum a simile in property law. Also some widely held views are challenged in this paper – in the midst of them statement that reasoning by analogy is a tool for petrifi cation of the legal order. It was also the author’s aim to emphasize the inconsistency in judicial opinions on various material aspects – the problem of article 656 of Polish civil code is one of the best examples. Finally, it was vital to mention that the winds of change with regard to the meaning of separation of powers are blowing. As far as some distinguished scholars are concerned, it’s high time to recognize the lawmaking character of a judicial exposition of the existing law. The practice of creative judicial interpretation which is mainly developed due to reasoning per analogiam confi rms the abovementioned statement.

Pobierz plik (1-2010 Kabza.pdf)1-2010 Kabza.pdf713 kB

Law, values and creativity of legal order (summary)

The article discusses an issue of legal order creativity in the context of relation between legal norms and values. There are two diff erent solutions of this issue in legal philosophy: one elaborated by legal positivism and the other supported by schools of natural law. The former underlines freedom of lawmaker to create legal norms whereas the latter speaks of obligations of lawmaker to protect some moral values. Lack of any restraints in shaping the content of legal norms seems to be a great weakness of legal positivism. As a result, there is a risk of a lawmaker dictatorship, that is an overcreativity in contemporary legal systems, including democratic states. On account of multilaterality of a lawmaking process, international legal order seems to be better safeguarded against this risk. On the other hand, natural- -law standpoint suff ers from ambiguity of a moral core which should be protected by legal order. That is why the Author argues that each of these doctrines requires improvements. According to the Author, creativity of legal order can only be justifi ed by protecting axiological identity of society. Consequently, a good lawmaker should posses both knowledge of social problems and axiological wisdom.

Pobierz plik (1-2010 Kwiecień.pdf)1-2010 Kwiecień.pdf598 kB

Comments on the paper „The Yogyakarta Principles: Principles of Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity”

The author delivers a polemic with the paper published in 2007 by an unoffi cial international group of experts. The group’s aim is to send a message to all countries indicating extensive consequences of general guarantees provided by international human rights law, especially for the purpose of individual’s protection against sexual and gender discrimination. The author does not deny an individual right to defi ne his/her private life without interference from the state or private parties. However he criticizes the group for its demand – made in a spirit of a modern interpretation of traditional human rights – for affi rmation and the so called equality of individual’s decisions regarding sexuality in the areas where the state is obliged to guarantee „institutional space” or „institutional infrastructure” for privacy and the right to procreate. For instance, this relates to legal defi nition of a family. The author claims that defi nitions of „sexual orientation” and „gender identity” are not commonly recognized and understood in the same way. This thesis relates to the attributes of a private life which are impossible, or hardly possible, to be measured on the basis of external indications or declarations, the ones which individuals should be entitled not to disclose to the state or anyone else. Repeating the phrase „regardless of sexual orientation or gender identifi cation” in the text of the paper implies public and political importance of these attributes. Whereas the author wonders whether the Yogyakarta Principles amount to a form of discrimination and improper political campaign using the individual's private life details without their consent.

Pobierz plik (1-2010 Banaszkiewicz.pdf)1-2010 Banaszkiewicz.pdf197 kB

Discriminatory Antidiscrimination? Anti-discriminatory discrimination? Limits of Race Remedial Actions and Policy according to the U.S. Supreme Court

Two recent cases of the United States Supreme Court seem to diverge from the line of precedent commenced with Brown v. Board of Education (1955). The 5 to 4 decisions deplore discriminatory eff ects of the antidiscrimination policy. Justices are aware of the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. Affi rmative action is still constitutional, but the heart of Brown is to achieve a system of determining admission to public schools on a non-racial basis. Remedial actions and regulations have to be narrowly tailored: race might be a component and only one of the factors. If not, the system threatens to defeat its own ends. Therefore, decisions of local authorities can neither use African- -American children as tools of desegregation compliance, nor lead to adverse effect on white fi refi ghters. Judicial activism or judicial restraint analysis is political and improper to evaluate the new Court’s opinions. But consciousness that every judicial nomination is essential should grow not only in the United States but in the Polish society as well.

Pobierz plik (1-flb.pdf)1-flb.pdf426 kB

Can the European law of obligations be expected in a foreseeable future?  

Law of obligations is the most universal and timeless branch of civil law. Alongside with the commercial law it was the fi rst to be unifi ed whenever harmonization of a private law occurred: during the 19th century in the United States, in Germany and in the Swiss Confederation as well as during the 20th century in the Nordic countries or in Poland. If unifi cation of the law of obligations in the European Union fails, chances for other branches of civil law will be even smaller. A European Code of Obligations, may be only as „optional instrument”, must fulfi ll the same subsidiary function in relation to national laws as the old ius commune did in relation to the local iura propria. However, the ius commune was completed only around 1400, i.e. three centuries after rediscovery of Justinian’s Digest. Glossators and commentators of today cannot accomplish a similar task within three decades.


Pobierz plik (1-giaro.pdf)1-giaro.pdf4595 kB

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