The main purpose of the article is to reconstruct the formal and substantive concept of“human rights standards”. The analysis takes into account a wide background, including the long-lasting dispute ...between universal ism and relativism of human rights. The Author presents a brief history of the dispute and concludes in a summary that the dilemma of universal ism-relativism has only recently undergone a process of rationalization. In the following part of the article the Author focuses on the problem of revitalization of human rights by presenting two selected examples. The first one concerns the phenomena unknown in the contemporary theory and philosophy of law as “cultural defense”, while the second one refers to the problem of the admissibility of legalization in the context of the war against terrorism. According to the Author we are dealing with two different types of revitalization of human rights. In the case of “cultural defense” the phenomenon is quite safe from the point of view of the protection of an individual. On the other hand, the legalization of torture is definitely a dangerous idea because it violates the basics of human dignity.
The purpose of this review article is to evaluate the four commentaries on the instruments of internationalprotection of human rights, which has appeared recently in the Polish literature of the ...subject.At the outset, the author provides the characteristics of the commentaries as a form of scienti fi cstatements in genere, and then tries to reconstruct the attributes of a good commentary in specie. Tothis aim, he applies the typology of scholar lawyers proposed by the Hungarian theorist of law andconstitutionalist András Jakab. The main part of the article is the evaluation of the four comments:two of them concern the European Convention for the Protection of Human Rights and Fundamental Freedoms, edited by Marek A. Nowicki and Leszek Garlicki, one to the Covenant on Civil andPolitical Rights, edited by Roman Wieruszewski and one to the Charter of Fundamental Rights ofthe European Union, edited by Andrzej Wróbel. Despite the differences in terms of form, content andmethodology, but they all deserve a very high rating.
The main purpose of this paper is the analysis of the notion “judicial disobedience”. The author describes two aspects (individual and institutional) and compare them with civil disobedience. The ...problem is presented in a paradigmatic manner upon the example of case law of American courts relating to slavery in the period of half of the century preceding the outbreak of the Civil War. Based on this, the author constructs a typology assuming four possible opinions of an adjudicating judge based on provisions of law, which are contrary to the judge’s conscience and morality.In this paper the problem is described upon the example of Justice Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court from 1830 to 1860. However special attention is paid to his judgment in case Commonwealth v. Aves., but his another verdicts have been mentioned as well.
The Authors critically analyze two problems associated with the creation of a constitutional court - on the one hand, the substantive qualifications of candidates, on the other hand, the mode of ...judges election. The considerations are presented against the background of the amendments to the Polish Law on Constitutional Tribunal that has been recently adopted. According to the Authors, the primacy of the Constitution as a legal act and the specifics of its application and interpretation require special qualifications from the candidates for judges. Therefore, the criterion „to possess distinguished legal knowledge” undoubtedly seems to be insufficient. In this context, they also pose the question of whether a constitutional judge should be only “a good craftsman” or also “a wise philosopher”?As the Constitutional Tribunal serves as a guardian of the constitutionality of law it is very important to provide solutions that would release it from current political disputes.However, the mode of the election of judges that have been recently adopted in Poland does not create such a guarantee and does not contribute to building a strong external and internal legitimacy of this authority. In practice, political parties represented in the parliament treat the elections of judges to the Constitutional Tribunal as a struggle for political booty.
The article aims to prove that the contemporary lawyers’ perspective was shaped not only by the Roman jurisprudence but also by the political and legal thought of ancient Greece. According to the ...author, this applies, in particular, to such notions as democracy, rule of law, and the administration of justice. However,the presented considerations are not historical but paradigmatical in nature. They are related to the current Polish constitutional crisis because we are dealing with a violation of the basic paradigms arising from the centuries-old tradition of European legal culture.
The three-volume monograph offers a comprehensive study of the category of freedom as it has been used in the legal and political doctrines by representatives of the western civilization since ...antiquity up to the present. The third volume contains analyses of political thought from the late nineteenth century to the present day. The publication reviews concepts put forward by Friedrich Nietzsche, Vladimir Lenin and Leon Trotsky as well as interpretations of various aspects of freedom expressed in the propositions of Spanish traditionalist (Carlist) thought, German revolutionary conservatives and the doctrine of national socialism. The present volume also includes studies concerned with the idea of liberalism (Ludwig von Mises, Friedrich August von Hayek, Milton Friedman, Isaiah Berlin, James M. Buchanan, John Rawls and Ronald Dworkin), socialism (the history and ideas of the Prague Spring, the New Left movement), Catholic social teaching (John Paul II), libertarianism (Robert Nozick), republicanism (Quentin Skinner), feminism and communitarianism. Moreover, the reader will find here a cross-sectional analysis of the importance of the concept of freedom in contemporary democracy and two articles on the methodology and typology of the category of freedom. The comparison of the presented views reveals the scale of discrepancies in the perception of the issue of freedom not only in different periods, but also between representatives of the main political doctrines. The plethora of cited approaches unequivocally points to the interdisciplinary character of research on freedom as a philosophical category. Therefore, a presentation of the spectrum of differences through the application of scientific analysis seems a fundamental prerequisite for any attempt at arriving at a comprehensive and multilevel understanding of the idea of freedom.
When does the rule of state sovereignty conflict with the universality of human rights and the legality of humanitarian intervention? This article explores the history of and contemporary problems ...associated with this issue – in both its political, ethical and legal dimensions. In addition, it examines the problem of why, when and how to intervene to prevent humanitarian crises and how to reestablish peace after a military intervention. Three key responsibilities are identified in the report of the International Commission on Intervention and State Sovereignty Responsibility to Protect: to prevent, to react and to rebuild. This thorny ethical, political, and legal problem has been one of the most difficult in contemporary international relations and international law. However, in the author's opinion, before finding the political and legal solution, we have to answer the basic ethical questions.
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