scholarly journals Funkcje prawa karnego w autorytarnym systemie sprawowania władzy

2021 ◽  
Vol 43 (1) ◽  
pp. 185-199
Author(s):  
Jacek Giezek

For the sake of its functions, criminal law is widely perceived as an ideal instrument for diagnosing the political system of a country and the regime it is supposed to safeguard. It is the regime that determines certain features of criminal law, influencing its frames and the understanding of its two most basic — protective and guarantee — functions. By analysing the way in which those functions are performed — on the level of constitution as well as application of the law — we are able to determine whether we live in a democratic system or in some form of authoritarian, or even totalitarian regime. If criminal law is used as an instrument supporting an authoritarian regime, the significance of its guarantee function decreases, whereas the significance of the (specifically understood) protective function increases. The judge, who is the subject applying the criminal-legal tools, has a particularly important role to play. A competent and, most importantly, independent judge can make a good use of a faulty law as long as it allows some judicial freedom. Similarly, if the application of law is left to an incompetent judge, particularly one who is ready to compromise their judicial mission, the existence of a good law does not guarantee a fair ruling. Therefore, the analysis of criminal law we are confronted with allows a diagnosis of a political system of a country as democratic or authoritarian, as long as it covers not only the law on the books, but also how substantive and procedural law is used in practice.

Prawo ◽  
2020 ◽  
Vol 328 ◽  
pp. 109-151
Author(s):  
Leonard Górnicki

Codification Commission of the Second Polish Republic: position within the political system, organisational structure and decision-makingEstablished one hundred years ago, the Codification Commission of the Second Polish Republic initiated and prepared draft legislation dealing with private, criminal, substantive and procedural law as well as the judiciary and the legal profession. The Commission served as de facto legislator, that is lawmaker in the sociological sense, for it had a genuine impact on the content and form of legislative acts.In the article the author analyses the position of the Codification Commission of the Second Polish Republic within the legal system, on which opinions differ in the literature on the subject. He defends the thesis that is was a central state institution, the existence of which was not, however, coordinated with the political system of the Second Polish Republic. Next, he investigates the impact of the transformations of the organisational structure and decision-making methodology on the efficiency of the Commission’s codification process. He takes into account the management and administration of the Codification Commission, organisation of work in Departments, Sections Subsections, Subcommittees, role of the delegates of the Minister of Justice and delegates of ministries, finally — decision-making mechanisms, including adoption of drafts as well as work in the Sections Subsections and Subcommittees. The author concludes that the experiences of the Second Polish Republic’s Codification Commission, a central state institution of advisory nature, established for an indefinite period, demonstrate that the best solution is to entrust codification to a special, apolitical and expert codification commission, operating with a degree of independence, of internal autonomy. Within such a commission a more effective mode of operation is preparation of drafts by teams of several people and then consultation of these drafts by larger bodies.Die Kodifikationskommission der Zweiten Polnischen Republik: institutionelles System, organisatorische Struktur, EntscheidungenDie Kodifikationskommission der Zweiten Polnischen Republik, die vor hundert Jahren entstandt, hat Entwürfe von Rechtsakten aus dem Bereich des Privat- und Strafrechts des Sachen- und Verfahrensrechtes sowie betreffend die Struktur der Gerichte und der Anwaltschaft eingeleitet und vorbereitet. Sie war praktisch ein Gesetzgeber, also soziologisch gesehen ein Rechtgeber, denn sie hatte einen realen Einfluss auf den Inhalt der Rechtsakten und die Bestimmung ihrer formellen Gestalt.Der Autor analysiert zuerst den staatsrechtlichen Rahmen der Kodifikationskommission der Zweiten Polnischen Republik, der in der Fachliteratur verschieden gesehen wird. Er verteidigt die These, dass die Kommission eine zentrale staatliche Institution war, deren Bestehen mit dem strukturellen System der Zweiten Polnischen Republik jedoch nicht koordiniert war. Dann untersucht er den Einfluss der Umwandlungen der Organisationsstruktur und der Methodik der Entscheidungen auf die Effektivität des Prozesses der Kodifikation des Rechts durch die Kodifikationskommission. Er berücksichtigt also die Führungsorgane und die Verwaltung der Kodifikationskommission, die Organisation der Arbeit in den Abteilungen, Sektionen Untersektionen und Unterkommissionen, die Rolle der Abgeordneten des Justizministers und der Abgeordneten der Ministerien, und zum Schluss die Mechanismen der Entscheidungen, darunter die Beschließung der Entwürfe und die Arbeit in den Sektionen Untersektionen sowie in den Unterkommissionen.Der Autor kommt zum Schluss, dass die Erfahrungen der Kodifikationskommission der Zweiten Polnischen Republik, die eine für unbestimmte Zeit berufene, zentrale staatliche Organisation eines beratenden Charakters war, bewiesen haben, dass die beste Lösung wäre, eine speziell dazu berufene, apolitische Fachkodifikationskommission, die über gewisse Selbständigkeit und interne Autonomie verfügen würde, mit der Kodifikation des Rechts zu beauftragen. Im Rahmen einer solchen Kommission stellt eine Arbeitsgruppe, die aus ein paar Personen besteht, die Entwürfe zuerst vorbereitet und sie erst später breiteren Gremien zur Konsultation vorlegt, ein effektiveres Modell dar.


2019 ◽  
Vol specjalny (XIX) ◽  
pp. 19-31
Author(s):  
Krsytian Nowak

This article, which is the part of the wide-raging research into the legal status of Gagauzia, aims to establish the foundations of its political system. The study also presents an analysis of the system of autonomous authorities and focuses on the division of competences between autonomy and the Republic of Moldova. The article presents the constitutive features of the Gaugaz autonomy. The paper not only analyzes but also assesses the political system of Gagauzia as the territorial autonomy of the Republic of Moldova. The subject of the study focuses in particular on the analysis of the form and content of the law on the special legal status of Gagauzia of 1999 and the Statute of Gagauzia.


2020 ◽  
Vol 29 (5) ◽  
pp. 133
Author(s):  
Wawrzyniec Kowalski

<p>The article is an attempt to outline the manifestations of the legal and political system’s nihilism, the occurrence of which the author to some extent attributes to the policy of the Piłsudski political camp after 1926. The subject of the study is to determine the attitude of the leading activists of the Sanation camp to the political system practice and legal practice, seen for the purposes of this thesis as a certain set of actions <em>contra legem</em> and <em>praeter legem</em> in relation to the legal system in force. The author also analyzes the implications of J. Piłsudski’s lack of a concrete, in formal and legal terms, political program on the attitude of the Sanation political camp in relation to the application of law law and on the legal security. The legal system turned out to be a factor significantly hindering the realization of the post-May camp’s plans as well as the effectiveness of the political system’s initiatives undertaken by the Piłsudski political camp. The main reason for the post-May camp’s frequent recourse to activities that are to some extent attributed to the legal or political system’s nihilism was the lack of deeper political intentions of the victor of the May Coup d’État.</p>


Author(s):  
Ross McKibbin

This book is an examination of Britain as a democratic society; what it means to describe it as such; and how we can attempt such an examination. The book does this via a number of ‘case-studies’ which approach the subject in different ways: J.M. Keynes and his analysis of British social structures; the political career of Harold Nicolson and his understanding of democratic politics; the novels of A.J. Cronin, especially The Citadel, and what they tell us about the definition of democracy in the interwar years. The book also investigates the evolution of the British party political system until the present day and attempts to suggest why it has become so apparently unstable. There are also two chapters on sport as representative of the British social system as a whole as well as the ways in which the British influenced the sporting systems of other countries. The book has a marked comparative theme, including one chapter which compares British and Australian political cultures and which shows British democracy in a somewhat different light from the one usually shone on it. The concluding chapter brings together the overall argument.


Author(s):  
Umberto Laffi

Abstract The Principle of the Irretroactivity of the Law in the Roman Legal Experience in the Republican Age. Through an in-depth analysis of literary and legal sources (primarily Cicero) and of epigraphic evidence, the author demonstrates that the principle of the law’s non-retroactivity was known to, and applied by, the Romans since the Republican age. The political struggle favored on several occasions the violation of this principle by imposing an extraordinary criminal legislation, aimed at sanctioning past behaviors of adversaries. But, although with undeniable limits of effectiveness in the dynamic relationship with the retroactivity, the author acknowledges that at the end of the first century BC non-retroactivity appeared as the dominant principle, consolidated both in the field of the civil law as well as substantive criminal law.


Author(s):  
Michael A. Bailey ◽  
Forrest Maltzman

Justices have considerable latitude to pursue either their personal preferences or their personal visions of the law. The danger is that the Court gets so far out of line from the rest of the political system that we see fundamental institutional showdowns that threaten the independence of the judiciary, such as the Court-packing controversy in the 1930s. If the elected branches influence justices, however, they can keep the Court in check, thereby attenuating such risks. This chapter tests whether the Court systematically yields to the elected branches. In particular, it examines whether individual justices vote differently when the constraints imposed by the executive and legislative branches are likely to be at their strongest. It focuses on the two versions in the literature: one in which the Court is constrained only on statutory cases and the other in which the constraint extends to all cases, including constitutional cases.


1970 ◽  
Vol 2 (1) ◽  
pp. 7-13
Author(s):  
Andrzej Zoll

The changes brought about in Poland and elsewhere in Europe by the fall of Communism have given rise to hopes for the establishment of a political system differing from the one which had been the fate of these countries. In place of totalitarianism, a new political system is to be created based on the democratic principles of a state under the rule of law. The transformation from totalitarianism to democracy is a process which has not yet been completed in Poland and still requires many efforts to be made before this goal may be achieved. One may also enumerate various pitfalls jeopardising this process even now. The dangers cannot be avoided if their sources and nature are not identified. Attempts to pervert the law and the political system may only be counteracted by legal means if the system based on the abuse of the law has not yet succeeded in establishing itself. Resistance by means of the law only has any real chance of success provided it is directed against attempts to set up a totalitarian system. Once the powers which are hostile to the state bound by the rule of law take over the institutions of the state, such resistance is doomed to failure.


2021 ◽  
pp. 254-268
Author(s):  
Nikolai N. Morozov

This chapter combines an analysis of the party-political system of post-communist Romania with the impressions of a direct witness to the most important historical events in the country, tracing the political evolution of Romania over the 30 years after the December revolution of 1989, which led to the overthrow of the totalitarian regime of Ceauşescu. A review of political parties and alliances is presented, which may be of practical benefit to researchers working on this period in Romanian history. On the basis of numerous sources and direct interviews with Romanian politicians, some specific characteristics of the political process in the country are identified. An attempt has been made to show the mechanisms of political power that have emerged since the collapse of the former totalitarian system.


1977 ◽  
Vol 10 (2) ◽  
pp. 375-389
Author(s):  
Robert Drummond

In an interesting and insightful article published in 1969, James Lightbody has attempted an improvement of the theoretical basis for the study of nationalism among political scientists. He suggests that the historical perspective which has characterized most previous treatments of the subject should be abandoned, and that its replacement should be a model which perceives nationalism as the result of ethnic group demands upon a functioning political system. Lightbody argues that the adoption of this sort of model would permit political scientists to determine the characteristics which distinguish “nationalist” movements from similarly configured “non-nationalist” groups. Further-more one could look beyond the “collective enumeration of the various demands that have been made by various nation-seeking groups and their self-appointed spokesmen” which serve as the focus of concern for those who see nationalism as ideology. One could examine ethnic group demands without rejecting them a priori as unnaturally disruptive, and one could make comparisons between majority and minority expressions of nationalist views. The model is an “ideal-type” model, bordering on formalism, since it abstracts the demands of ethnic groups from other similar group demands made on the political system, but it has been constructed with a view to the selection of data which could provide empirical tests of its usefulness.


Author(s):  
Schabas William A

This chapter comments on Article 24 of the Rome Statute of the International Criminal Court. Preceded by two provisions that entrench two Latin maxims described collectively as the principle of legality, article 24 completes the treatment of the subject in Part 3 of the Rome Statute. Article 24 promises the accused that if there is a change in the law applicable to a given case prior to a final judgment, ‘the law more favourable shall apply’. However, this rule giving the defendant the benefit of the ‘more favourable’ provision is not without difficulties. It is not always a simple manner to determine which rule is in fact more favourable. Moreover, there may be an important element of subjectivity, in that individuals may differ in their assessment.


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