(in Polish) Philosophy of law

Course In legal philosophy, presenting main schools that has been developed in that area of knowledge and discussing most important philosophical and theoretical topics concerning law.

This seminar is aimed at enabling law students to recognize and understand main theoretical and philosophical approaches to law as an element of contemporary societies. Despite its theoretical characteristic, the topics discussed during the course touched upon many practical aspects of day-to-day lawyer’s work, be it a legal advisors or judge’s work. Legal interpretation, the role of judges and reasons to obey the law are amongst the issues that seem indispensable for every professional lawyer involved in argumentation in the area of civil, criminal or constitutional law.

The purpose of the course is to give students an overview of the subject and help to deploy particular theoretical and philosophical approaches to law. Students are not only being made familiar with main schools in legal philosophy, amongst others, natural law philosophy, legal positivism, legal realism, hermeneutic approach to law, argumentative theories, discourse theories and postmodern theories of law. They are also being provided with main theoretical tools necessary in each lawyer’s work, e.g. the methodology of legal interpretation, the notion of legal rule and legal principle or the models of law application.

The more detailed program of the course is presented below:

1. Roots and status of legal philosophy: from the antique philosophy to the legal philosophy of the XX and XXI centuries

2. Sources of law (in the philosophical sense): Absolute - nature – reason – contract – convention;

3. Philosophical and theoretical roots of the “original” positivism [Austin - Kelsen];

4. The idea of the system of law; Constitutional courts and the idea of coherence in law (J. Wróblewski, J. Raz); the criticism of the idea of the system of law (E. Łętowska, N. MacCormick)

5. How law is binding: from the natural law theories to the idea of civil disobedience.

6. Law and language: Aristotle, L. Wittgenstein, the linguistic turn In philosophy (J.L.Austin J. Searle). Sophisticated legal positivism (H.L.A. Hart); Law and literature;

7. The middle-way theories In legal philosophy (R. Dworkin) – rulet, principles, policies; the semantic sting issue, balancing of principles, the chain novel metaphore;

8. Hermeneutics – the ancient and modern approaches to the philosophy of interpretation; biblical and legal hermeneutics F. Schleiermacher, W. Dilthey, H.-G. Gadamer, P. Ricoeur; the hermeneutical circle and ius interpretandi.

9. Legal interpretation – theories, stances and disputes (J. Wróblewski, M. Zieliński)

10. Legal interpretation and the application of laws; judicial discretion and judicial activism, the role of precedent;

11. Theories of legal argumentation: Ch. Perelman, R. Alexy, J. Habermas;

12. Postmodernism in philosophy and culture; their impact on legal philosophy (the Critical Legal Studies Movement, the feminist philosophy of law;

13. Law and economics;

14. Human rights and their protection.

During the course students are supposed to read and analyse several philosophical papers. Their familiarity with the papers is an important factor that will contribute to understanding of the issues discussed during the course and the overall value of the course.

Students will be required to know parts of the below texts:

1. John Finnis: Natural law and Natural Rights

2. John Paul II: Evangelium vitae

3. Gustav Radbruch: Statutory Lawlessness and Supra- Statutory Law (1946);

4. Lon L. Fuller: Morality of law;

5. Herbert L.A. Hart: The Concept of Law (1961);

6. Ronald Dworkin: Law’s Empire (1986)

7. J. Sadock, Speech Acts in: The Handbook of Pragmatics ed. By L. R. Horn and G. Ward

8. Paul Ricoeur: Tasks of Hermeneutics, in: Paul Ricoeur: From Text to Action. Essays in Hermeneutics, (transl. K.Blamey, J.B. Thompson (1991),

9. Chaim Perelman: Justice, law and argument. Essays on moral and legal reasoning (with intr. by H. J. Berman), D. Reidel Publ., Dordrecht – Boston, 1980);

10. Marcin Matczak: Constitutions, EU Law and Judicial Stategies in the Czech Republic, Hungary and Poland

11. R. Wacks, Understanding Jurisprudence

Upon completion of the course, the student:

- should be able to argue in favour of accepting or rejecting the theses proposed by representatives of the various currents within the theory and philosophy of law;

- should be able to formulate his/her own conception of law, by adopting or modifying one of the theories discussed in class;

- should understand the meaning of basic notions and theoretical constructions used by lawyers (e.g. legal norm, system of law, validity of the law and refusal to obey the law, interpretation of the law, justification of an authoritative decision); at the same time, the student should be aware of the complexity and conventionality of such notions and theoretical constructions, as well as understand that, when using them, we make certain assumptions as to the essence of law, human nature, nature of social processes, etc.; he should also be aware of the fact that they are based on theoretical constructions. The student should also realise that the modern world has changed to such an extent that various legal concepts and constructs developed in previous centuries often oversimplify reality or perpetuate various myths or even superstitions in legal thinking;

-should be able to explain the basic assumptions of his/her understanding of the law, and should be able to distinguish his/her own position from other, competing views;

- should be able to indicate what types of arguments are or can be used in disputes over ethically or politically difficult legal issues and what counter-arguments can be raised, as well as what beliefs, assumptions or presuppositions underlie the use of particular rationales in a dispute.

In terms of the National Qualifications Framework, the subject entitled "Philosophy of Law" should

a) serve not only to impart knowledge of public structures and fundamental institutions, of law as a special social bond and its relations to other systems of norms and rules, and of the human experience as a creator of culture, but also to develop in students the competence to argue actively within the framework of particular theories concerning the functioning of law in society,

b) to develop practical skills, to analyse the course of social processes and phenomena, in particular the practice of law, and to acquire the ability to use social norms and rules in order to solve social problems, with an awareness of the limitations to which lawyers are subject, especially if they believe that all the cases with which they are confronted have the character of "easy cases";

c) to develop students' social competences, in particular their

awareness of the role of law in modern societies, of the philosophical and ethical assumptions that lawyers in the legal professions make, of the values they defend and of their responsibilities.

Assessment will be based on:

a) attendance in class

b) degree of active participation

c) preparation and presentation of a presentation on a topic chosen by the student.

The essence of the conducted classes is the rejection ofmemorised, mechanically acquired knowledge in favour of the understanding of problems in the theory and philosophy of law. The basic form of classes is an in-depth discussion.

Assessment criteria: the focus of the assessment is the understanding of basic concepts and constructs used by lawyers in their professional roles, regardless of the specific field or professional specialisation. The subject of the assessment will be both the ability to reconstruct descriptive and normative arguments adopted by representatives of specific theoretical-legal and philosophical-legal positions, as well as the ability to independently formulate views and precisely justify them and challenge opposing arguments.