If One Who is Ahead of B will Overcome This Who was Defeated by B? One Question to the Algorithmization of Law in the Light of the European Legal Tradition.

The title refers to the Latin maxim si vinco vincentem te, vinco te ipsum which was introduced into legal reasoning by late medieval jurists and applied widely in legal debate till the 18th century. Calling competitors mentioned in the maxim by the letters A, B, C, we do obtain the following series: A > B, B > C, hence A > C. However, in legal debate the application of the maxim has been detected in a perplexed case which represents the series A > B > C but C > A. The discussion of ius commune jurists concerning the application of the maxime has some features similar to the debate in natural science. A leader in such a style of legal reasoning was Leibniz. Consequently, this debate is perceived and presented as a test of the possibility of the algorithmization of legal reasoning in specific issues of the conflict of rights. The paper concludes with a recommendation of how this legal experience can inspire the designing of expert programs that can support legal documents in electronic format.

Pobierz plik (Dajczak.pdf)Dajczak.pdf376 kB

Dictates of Conscience and the Limits of Judicial Power in the Context of Normative Models of the Judicial Application of Law

A legal doctrine and constitutional adjudication emphasize that a judge follows the dictates of the law and conscience. The article analyses the relationship between the personal conscience of a judge and the limits of judicial power and authority not only as a legal but ethico-philosophical issue as well. Types of judicial conscience are related to three normative models of the judicial application of law connected respectively to post-positivist jurisprudence, virtue jurisprudence and personalist/natural law jurisprudence. The evolution of the state distinctive for late modernity, including changes of contemporary statutory law systems, the judicialization of politics and reconceptualization of the doctrine of separation of power, emphasize the significance of the proper limits of judicial power and authority set by the dictates of conscience.

Pobierz plik (Krzynowek-Arndt.pdf)Krzynowek-Arndt.pdf417 kB

Does Freedom Provide a Right to Discriminate? Theoretical Considerations Regarding the Case of the Lodz Printer

The point of departure of the paper is the Polish case of the Catholic printer from Lodz who refused to print a roll-up for a LGBT nongovernmental organisation. As the printer explained, fulfilling the request of the organisation was – in his opinion – in contradiction ‘with the Bible, morality and his own conscience’. Afterwards, the printer was found guilty by the court of unlawful discrimination on the grounds of sexual orientation. In the paper, the author considers two arguments for the permissibility of a morally motivated refusal of service in the free market. The first argument concerns the market freedom and the second one relates to the freedom of conscience. In the author’s opinion, both arguments are substantially different and require separate consideration. However, the conclusion of the paper is that they both fail to provide a basis for a right to discriminate in the free market.

Pobierz plik (Ciszewski.pdf)Ciszewski.pdf427 kB

Interpolations in the Justinians’ ‘Digest’. Historical and Methodological Remarks

The aim of the paper is to present the history of the research of Justinian’s Digest’s interpolations as a methodological issue. The emperor admitted that his dependents were also to make necessary ‘amendments’ in classical jurists’ texts when drafting the ‘Digest.’ When it was rediscovered in the 11th century, it was dealt with like the Bible. That is why no critical attempts were possible. Only the scholars of mos gallicus docendi made such ones. The situation changed during the 19th century, mainly due to the works of Otto Gradenwitz: to find any possible interpolation became the most important duty of Romanists. In effect, too many propositions of conjectures actually replaced any fair interpretation. That led to a profound crisis of confidence to the foundation text of Roman law research. The interpolationism was generally criticized in the 1920’s and 1930’s, but the question of its role in interpretations of Roman law sources is still not without influence on contemporary legal research in Roman law.

Pobierz plik (Sorka.pdf)Sorka.pdf361 kB

Judgement in the Ratko Mladić Case and the Prior Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia

On 22 November 2017 the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia delivered its judgement in the Ratko Mladić case. The former Bosnian Serb general was found not guilty of count 1 of genocide (referring to the events that took place in the Municipalities) and guilty of all the other counts, in particular genocide committed in Srebrenica. Although this judgement is not final, its significance should not be underestimated. The trial of Ratko Mladić was one of the longest, most exhausting and complicated cases in the entire history of the Yugoslavian Tribunal. At the same time, this judgement was the crowning achievement of the Tribunal. Therefore, it seems necessary to interpret the judgment in the context of the entire prism of the jurisprudence of the Yugoslavian Tribunal in similar cases.

Pobierz plik (Nieprzecka.pdf)Nieprzecka.pdf384 kB

Anti-suit Injunctions in the Light of Polish and European Procedural Law

The article describes the institution originating in common law states – anti suit injunctions. First, the author analyses the possibility of using this institution in European countries, including Poland. Then, the most important judgements of the European Court of Justice were described. In two of them ECJ stated that anti-suit injunctions are contrary to European Union law, especially with the mutual trust rule. The third judgement is more controversial, because ECJ allowed using anti-suit injunctions by arbitration courts. In conclusion, the author analyses the views of the Polish legal doctrine on anti-suit injunctions and the possibility of using them in Polish courts.

Pobierz plik (Szafran.pdf)Szafran.pdf255 kB

Comments on the Judgment of the Polish Supreme Court of 25 August 2017, II CSK 844/16

The Supreme Court considered the nature of the obligation to remedy damage caused as a punitive measure before the change of succession law that took place on July 1, 2015 and whether this obligation passes on to the heirs of the obliged deceased. The Court stated that this obligation is of a compensatory nature, because it is derived from civil law. This obligation is not strictly connected with the deceased and therefore - is subject to succession. The obligation to remedy damage caused passes on to the minors and that this is not a cause for the application of article 5 of the Civil Code, which pertains to the abuse of subjective rights.

Pobierz plik (Rafalowicz.pdf)Rafalowicz.pdf285 kB

W latach 2022-2024 czasopismo Forum Prawnicze finansowane jest w ramach projektu Rozwój czasopism naukowych ze środków Ministerstwa Edukacji i Nauki na podstawie umowy nr RCN/SN/0611/2021/1. Łączna kwota wsparcia ze środków Ministerialnych wynosi 28 000 PLN. Celem pozyskania Funduszy przez Forum Prawnicze jest podniesienie poziomu praktyk wydawniczych i edytorskich, zwiększenie wpływu czasopisma na rozwój nauki oraz utrzymania się czasopisma w międzynarodowym obiegu naukowym.

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