Antyautorytarna edukacja prawnicza

The article is divided into two parts. In the first part, I present the main assumptions of foundationalism and, using selected examples from general reflection on law, reconstruct related strategies of justifying claims. Then, I discuss the anti-foundationalist method of justifying the universalism of human rights. Referring to the arguments of Hannah Arendt and Alessandro Ferrara, I give the example of the Holocaust as the so-called point of no return, whose exemplary validity justifies the idea of human rights without the need to refer to substantive human dignity. In the second part of the article, I use the anti-foundationalist argument to build a conception of anti-authoritarian legal education. The proposed concept of education based on a collaborative, democratic, nonhierarchical, and pluralistic discussion of historical examples should complement traditional legal education.

Autorytarne formy władzy a realizacja prawa do cywilnoprawnej ochrony prawnoprocesowej przez obywateli w okresie PRL

The study describes the functions of civil procedure as a legal instrument from the times of the socialist authoritarian state of the People’s Republic of Poland. The positions expressed in the doctrine regarding the purpose and principles of conducting civil proceedings, regulated in the Act of 16 November 1964, Code of Civil Procedure, which was adopted during the authoritarian power of the dominant political party of the Polish United Workers’ Party, were presented. Provisions of procedural law, dating back to the authoritarian rule of democratic socialism in the People’s Republic of Poland, were intended to provide protection for the socialized economy and to enable the state to control civil-law relations. Civil proceedings were intended to guarantee the possibility of protecting not only the rights of the individual, but also, or rather first and foremost, of the units of the socialized economy, as well as of the disputes that might arise in connection with relations between the state and its citizens, and between citizens. This principle required the authorities conducting civil proceedings to ensure adequate legal and procedural protection in the event that a party or participant in the proceedings was a unit of the socialized economy. Civil proceedings in which the court, within its powers, could interfere with the legal sphere of an individual in connection with the conferral of discretionary power, was another legal tool and instrument allowing the state to influence private-law relations. In addition, the authoritarianism of the state power at that time was also manifested in this.

Publicznoprawne instrumenty „demokracji walczącej” w polskim systemie prawa

The Polish system of public law has legal mechanisms that reflect the idea of ​​a militant democracy, assuming the need to equip the democratic system with instruments that will allow it to defend itself against actions aimed at its annihilation. They appear both on the constitutional level and in the acts of administrative and criminal law. As a result, the problem of the instruments of militant democracy becomes an interdisciplinary issue. The conducted analysis shows that the instruments in question, in spite of appearances, have a lot in common. Their use causes similar problems, the source of which are, among others, disputes arising around the concepts of Nazism, fascism, communism and totalitarianism.

Instytucja osobowości prawnej w okresie PRL jako narzędzie ograniczania autonomii jednostek przez państwo autorytarne

The purpose of this paper was to analyze how the regulation of legal personality by positive law affected the rights and freedoms of individuals in the period of the Polish People’s Republic. The possession of legal personality leads to the empowerment of an organization and facilitates it by pooling resources to achieve a certain goal. Having legal personality also gives an entity a certain autonomy vis-à-vis other entities, including its members and the state. The analysis has shown that in the period of the Polish People’s Republic, positive law was deliberately used to limit the possibility of creating entities with their own legal personality. The formal concept of a legal person was used instrumentally as a tool to impede the possibility of building an organization outside state control. It also led to a structurally incorrect and practically questionable recognition of the judicial capacity of entities that did not have legal personality. In addition, using the concept of an economic unit in the area of economy, a functional criterion was adopted to determine the participants of economic turnover, which also broke with the traditionally adopted in this respect approach based on legal personality. This led some of the representatives of civil law doctrine at that time to consider the institution of legal personality as useless, which testified to the fact that the legal environment and the applied mechanisms typical of an authoritarian state suppressed any autonomy and independence of interest underlying a separate legal personality.

Zmiany organizacyjno-prawne przedsiębiorstwa państwowego w okresie Polskiej Rzeczypospolitej Ludowej

In Poland, during the People’s Republic of Poland, the policy of central management of the economy was based on the principles of unity of state power and unity of state property. They constituted the foundation of the state sector and the state economic activity. State-owned enterprises, strongly subordinated to public administration bodies, were the leading form of economic activity. The authoritarian state controlled not only the process of enterprise creation, liquidation and supervision, but also the enterprises’ operational activities. Strong state supervision and lack of responsibility for financial results were the main reasons for their low profitability, which in turn brought about attempts to reform the legal structure of the state-owned enterprises. The aim of the article is to show the legal and organizational changes in state-owned enterprises that are to produce an increase in economic efficiency. Based on the historical-legal method and the grammatical interpretation of the law, it was shown that the reforms undertaken in the field of the organization of state-owned enterprises were not effective.

Kryminalizacja finansowania terroryzmu w świetle przepisu art. 165a kodeksu karnego. Część 1

Progressing globalization, ease of movement and the pace of information flow undoubtedly have intensified the threat of an important social problem — terrorism. An key instrument of combating terrorist activity is counteracting its financing. This article will analyze the crime of financing terrorism, which has been typified in Art. 165a of the Polish Criminal Code. An attempt will be made to answer the question of whether the legislative measures taken in the above-mentioned scope are purposeful, necessary and justified. The genesis of the current legal regulations in the field of counteracting the financing of terrorism in the Polish penal code will be also presented.

Odpowiedzialność usługodawcy za udostępnianie w internetowych serwisach społecznościowych treści przestępnych związanych z publicznym propagowaniem faszystowskiego lub innego totalitarnego ustroju państwa według projektu ustawy o ochronie wolności słowa w

Having in mind the Law on the Provision of Electronic Services, the article presents selected issues in the field of strict liability of the service provider in the form of administrative penalties for publishing on social media criminal content or content that is related to it, in the form of praising or exhorting to commit the crime prohibited under Art. 256 of the Penal Code according to the Draft of the Law on the Protection of Freedom of Speech on Social Media. It presents selected issues concerning inaccuracies and imprecise definitions of the notions of service provider, user, and illegal content, especially in the context of content that does not exhaust the features of a prohibited act under Art. 256 of the Penal Code. It describes also the procedure to be followed in the event of the user’s complaint about blocking their content, profile or a complaint about disseminating illegal content. The author concludes that the assessment of illegal content that does not exhaust the features of a crime under Art. 256 of the Penal Code, but is related to it, in the form of praising or exhorting to commit it, will belong to the Freedom of Speech Committee. Additionally, the regulations of the Law on the Provision of Electronic Services and the Draft of the Law on the Protection of Freedom of Speech on Social Media are inconsistent because, on one hand, after the so-called flagging of the content on social media, the service provider is obliged to remove illegal content (Art. 14 of the Law on the Provision of Electronic Services), while, on the other hand, according to the commented draft of the law, he is exposed to proceedings before the Freedom of Speech Committee and its arbitrary classification of content as legal or illegal.

Palenie ksiąg w starożytnym Rzymie jako przejaw autorytarnego ograniczania republikańskiej wolności słowa

Transition from republic to principate brought a meaningful alteration in the area of conceiving freedom of speech. Republican standards in this matter were not apt for the new regime as it was too fragile to withstand the republican dissidence. New restrictions and ad hoc measures needed to be applied. Among them burning of books was of particular importance. The article deals with incidents of book burning in the times of Augustus (cases of Titus Labienus and Cassius Severus) and Tiberius (those of Mamercus Scaurus and Cremutius Cordus), which, although not numerous, were of high significance for freedom of speech within the new regime. On the basis of analysis of selected ancient sources and scientific literature on the matter, an answer to the question about their political meaning is sought. Accordingly, the socio-political background of change in the area of freedom of speech in the context of passing from a republic to the authoritarian regime of a principate needs to be taken into account. Unfortunately, historical sources regarding the matter are deeply unequivocal and scientific interpretations seem strongly conditioned by tendencies to discern crimen maiestatis in every case of book burning from the times of early empire, even if it is not plainly attested by ancient authors. It appears that the subsequent popularity of maiestas charges could have influenced the erroneous interpretation of previous incidents, which appear to have been — at least formally — distant from the law of injured majesty, being ad hoc measures at least in the times of the reign of Augustus. However, the essential point of analysis concerns the grounds of the incidents of burning books that took place under August and Tiberius, showing a step-by-step process of supressing the republican freedom of speech. Although rare, book burnings reflect a common tendency in new authoritarian rulers’ politics, which at first tend to deal with opponents unpopular among the aristocracy, only to move on to managing adversaries originating from the Roman élite. Nevertheless, the undertaken measures were not suitable for annihilating the books in question, contributing to their growth in popularity. The answer to the core question about the aims of book burnings under Augustus and Tiberius seems to boil down to mere propaganda, showing that dissident books would not be tolerated, no matter the social status of their authors.

Czy państwo może decydować o miejscu pochówku dyktatora? Komentarz do postanowienia hiszpańskiego Trybunału Konstytucyjnego z 17 października 2019 roku w sprawie ekshumacji szczątków Francisca Franco Bahamondego

This article comments on the Spanish Constitutional Court’s order of 17 October 2019, ATC 119/2020, regarding the exhumation and transfer of the remains of Francisco Franco Bahamonde from the Valley of the Fallen. Franco’s relatives brought a constitutional complaint before the Constitutional Court against the resolutions of the Council of Ministers of 15 February and 15 March 2019, which concerned the exhumation of the dictator’s remains and their transfer to the Mingorrrubio Cemetery in El Pardo. This was done against the wishes of the family, who had indicated another location. The applicants submitted, inter alia, that their right to respect for private and family life had been violated. In fact, certain issues relating to the treatment of the body of a deceased person fall within the scope of the right to privacy. However, the Spanish Court did not accept the applicants’ plea and held that there was no violation of the constitutional right. It justified its decision on the grounds that the right to protection of private and family life is not absolute and is subject to limitations, and that the measures applied in this case were in line with a “constitutionally legitimate aim,” proportionate and necessary. The Court’s decision is correct, although its reasoning leaves much to be desired. The Court could have strengthened its argumentation with, first, a more in-depth analysis of proportionality, and, second, with reference to Strasburg standards. In particular, as the Court pointed out, the historical and political importance of the person at the head of the political regime established after the civil war and acting as head of state meant that the decision on where to bury his remains went beyond the dimension of an individual private matter.

Kryzys idei neutralności moralnej prawa

The idea of the moral neutrality of law is a characteristic element of liberal political and legal doctrines. This concept is also an element of constitutional principles regulating the limits of permissible legislative interference in the sphere of freedom. In such context, the bond linking it with the clearly defined axiology from which it derives is severed. The aim of this study is to consider to what extent the principle of the moral neutrality of law, being a principle affecting the activity of the legislator, retains its potential in identifying and limiting totalizing practices aimed at systematically limiting choices in the field of the concept of a good life and favouring a specific vision of the legal and political order in both spheres of human activity, individual and collective. The numerous variants of the moral neutrality of law formulated in political philosophy, and the distinctions between individual variants, in conjunction with the criticism of this concept, make it necessary to pay attention to whether this way of limiting totalizing practices is a good tool, resistant to the changing conditions. A review of critical arguments directed against the idea of neutrality leads to the conclusion that the weakening of the concept of the moral neutrality of law translates not only into its value in identifying and preventing totalizing practices, but also into weakening the protection of fundamental values, such as individual autonomy.