Authors:Miklós Sebők, Fruzsina Gárdos-Orosz, Rebeka Kiss, István Járay Pages: 11 - 44 Abstract: The analysis of constitutional interpretation has received much attention in recent years. This article is a contribution to research using text mining methods to account for markers of constitutional reasoning in big data-sized text corpora. We examine how often the Hungarian Constitutional Court (the HCC) reflected on the various methods of interpretation. For this purpose, we have created a complex corpus covering all HCC decisions and orders between 1990 and 2021. We found evidence that the methodological practice of the HCC is not self-reflexive in general as only 44% of its decisions make a reference to at least one method of interpretation. We also show that the self-reflexive nature is even more prevalent (in fact, ubiquitous) in 100 doctrinally important decisions from the 30 years of jurisprudence in question. While this study is a first step towards the quantitative analysis of the reasoning of the constitutional judiciary, further mixed methods research is needed to account for intertemporal changes in such data and to refine the measurement of constitutional interpretation. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.11-44 Issue No:Vol. 32, No. 3 (2023)
Authors:Waldemar Bednaruk, Andrzej Gil Pages: 45 - 61 Abstract: The article presents the ideological and legal foundations of the Soviet religious policy in 1917–1922, when the theoretical assumptions that formed the basis of the new government’s attitude to religion as such were transformed into its practical approach to religious associations present in the space of the functioning of the Bolshevik state. Attention was drawn to two basic issues: (1) the attitude towards religion in the theoretical considerations of Russian Marxists both before and after the Bolsheviks took power in Russia, and (2) the legal acts issued by the new power regarding the place of religion in the slowly emerging reality in the first five years of its existence. Both the ideology and the law itself were to serve the realization of one idea – the creation of a communist society, fully atheistic and recognizing only dialectical materialism. As it turned out from the perspective of later events, the years 1917–1922 were crucial for this intention. The legislation adopted at that time became the juridical basis of the Soviet religious law, implemented until the end of the existence of the USSR. The reference basis for the article is the relevant legislation and literature on the subject. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.45-61 Issue No:Vol. 32, No. 3 (2023)
Authors:Dušan Štrus, Boštjan Brezovnik Pages: 63 - 74 Abstract: The scientific article discusses bicameralism in Slovenia using a three-dimensional approach. The main objective is to identify whether Slovenian bicameralism is weak or strong, using the criteria of symmetry, congruence, and perceived legitimacy. To achieve this, the authors use the descriptive and analytical method. In their opinion, Slovenian bicameralism has always been categorized as weak based only on its formal powers in the legislative procedure. Therefore, all proposed changes related to the National Council aim to change its formal powers without taking into account the congruence and perceived legitimacy criteria. The authors provide a unique insight into the other two criteria and suggest that calls for reform of the National Council should primarily deal with the congruence and perceived legitimacy criteria. The novelty of the research lies in the fact that no scientific papers have dealt with bicameralism in Slovenia using a three-dimensional approach. The authors believe that the article has cognitive value in times of constant calls for reform of the National Council. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.63-74 Issue No:Vol. 32, No. 3 (2023)
Authors:Teresa Gardocka, Dariusz Jagiełło, Klaus Bachmann Pages: 75 - 88 Abstract: The authors discuss the legal aspects (with specific attention to the criminal law aspects) of legal acts of remembrance in selected countries, related to the collective memory of Poles. In particular, the following issues are analysed: the effectiveness of legal interference in collective memory; the judicial practice (civil and criminal judgments) concerning the remembrance of the Holocaust in Poland; the relation of the protection of the reputation of a State (e.g., Poland), a Nation or certain individuals to the freedom of scientific research guaranteed by the international and constitutional law and international aspect of criminal responsibility in case of the crime committed abroad (double criminality). The way the law concerning national memory is applied in practice in the Polish legal order is subject to detailed analysis. Investigating the legal proceedings concerned with memory indicates that applying these laws constitutes a limitation of constitutionally guaranteed freedom of scientific investigation. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.75-88 Issue No:Vol. 32, No. 3 (2023)
Authors:Anna Kalisz, Alina Serhieieva Pages: 89 - 109 Abstract: Ukraine has become a candidate country for the European Union membership, which brings challenges, including those of a legal nature. One of such challenges is the regulation of the institution of mediation, which is a subject of interest to European institutions (both within the Council of Europe and the European Union) that actively promote methods of alternative dispute resolution (ADR methods). The aim of the article is to compare the current development of mediation in Poland and Ukraine, as well as to determine to what extent there are similarities in successes and challenges and to what extent the Polish experience could be helpful for the development of mediation in Ukraine. The essence of the problem is whether Ukraine shall follow Polish solutions in this area. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.89-109 Issue No:Vol. 32, No. 3 (2023)
Authors:Małgorzata Łuszczyńska Pages: 111 - 124 Abstract: The article is to point out the complexity of the idea of peace, which, once formed in the medieval era, has been the foundation of many contemporary institutions in the field of social life in a broad sense. The concept of peace, consisting of a number of issues, is central to the discussion herein. The full presentation of the idea of pax requires a reference to the social nature of man and to the relationship of the individual with the social group within which that individual lives. The issue of peace is also coupled with the idea of the common good. It is impossible to characterize the idea of bonum commune without a reference to the question of ordo and the essence of justice. The author proposes a thesis that the medievalist concept of pax combines political, legal, and moral reflection. It develops independently of the theory of wars. Particular attention should be paid to the idea of peace in the thought of Marsilius of Padua, who, drawing on Aristotle’s achievements and the ideas developed in the Middle Ages, devised an original concept of peace. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.111-124 Issue No:Vol. 32, No. 3 (2023)
Authors:Dorota Wilkowska-Kołakowska Pages: 125 - 146 Abstract: Correct spatial structure of agricultural land is one of the key conditions of efficient farming and enables the use of advanced farming technologies. In Poland, land consolidation is regulated by the Land Consolidation and Exchange Act of 1982 and is intended to improve the spatial structure of farmland. Land valuation is a key part of this, as it determines the compensation that is offered to stakeholders whose lands are diminished in land consolidation. However, in Poland, various land valuation methods are used. The article examines relevant documents obtained from all county offices (starosties) involved in consolidations in 2017–2020, such as minutes of meetings of land consolidation participants and their resolutions on adopting land valuation principles. The analysis reveals that the current land valuation methods in the consolidation process do not ensure the achievement of the main aim of land consolidation, which is to provide better conditions for farming by way of improving the spatial structure of farmland. This is primarily because the land valuation methods employed value land below current market prices. Based on this finding, some legal amendments are proposed related to land valuation that are more suited to the needs of the land consolidation process. The desirable modifications include, among other things, rejecting the decisive role of public bodies to the benefit of professional valuation done by registered property appraisers. In this regard, two variants of amendments to Article 11 of the Land Consolidation and Exchange Act are proposed. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.125-146 Issue No:Vol. 32, No. 3 (2023)
Authors:Magdalena Pyter Pages: 147 - 162 Abstract: The article focuses on the education of specialists in the field of agriculture on the example of the College of Agriculture of the Jagiellonian University in Krakow. The aim is to present the organization and operation of the College within the legal setting of the time. The text has been divided into two parts. The first concerns the period from the establishment of the College of Agriculture (i.e., from the end of the 19th century) to the end of World War I, when the university in Krakow was supervised by the Imperial and Royal Ministry of Religious Affairs and Education in Vienna. The second part is devoted to the period of operation of the College after regaining independence in 1918. The research has demonstrated that the College of Agriculture was an original and innovative solution among the institutions of higher education of the time. The curricula, designed both during the Austro-Hungarian rule and in independent Poland, guaranteed a fully professional education. The novelty was that the college students were also trained in law, political sciences, economics, and management; in other words, they graduated as modern agricultural managers. These conclusions represent a scientific value and demonstrate the originality of the research. Given that the research covers the domain of higher education system, it has an international reach. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.147-162 Issue No:Vol. 32, No. 3 (2023)
Authors:Arif Riza, Alban Kryezi, Shukri Lecaj Pages: 163 - 183 Abstract: Medical care and services in accordance with the rules and standards accepted by medical science are the moral and legal duty of the physician or any health worker. The set of legal norms as institutional mechanisms that regulate the rights and responsibilities of medical professionals and their patients is the main field of this research. The article aims to present the concept and importance of the research and development of medical law in the Republic of Kosovo. The purpose of the research is to make the connection between the provisions of medical law and the field of gynecology due to the violation of the rights of patients as well as the hesitation or lack of will in reporting such cases. The theoretical method was used for data collection, with which previous studies on medical law were consulted. The statistical method was used to present the number of induced abortions in the Department of Gynecology in Pristina. The interview method was used for the purpose of collecting data that refer to practical cases where physicians may have acted in violation of the law, as well as the presentation of those situations when, due to a serious health condition, they undertook medical actions without consulting with the patient or family members. The research indicates that the Criminal Code of the Republic of Kosovo has incorporated irresponsible medical treatment and failure to provide medical assistance as criminal offenses that are closely related to the exercise of professional medical duties and responsibilities. In the Republic of Kosovo, elective termination of pregnancy is allowed at the will of the woman who is of adult age, while termination of pregnancy with the motive of choosing the gender of the fetus is prohibited. Elective termination is permissible until the end of the tenth week of pregnancy. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.163-183 Issue No:Vol. 32, No. 3 (2023)
Authors:Urszula Soler, Monika Adamczyk Pages: 185 - 199 Abstract: The SARS-CoV-2 coronavirus pandemic brought to light certain deficiencies in the social security infrastructure which should guarantee social security for all Polish citizens while ensuring, in particular, the possibility of exercising the right to health protection and social services for functionally disabled people. The pandemic became a “detonator” revealing, both in the scientific and public discourses, problems connected with the effective exercise of the rights to social security and health protection vested in elderly people, including those with functional disabilities. The article notably focuses on two areas of social life in which compliance with fundamental rights related to the dignity of a human being is linked to the respect and observance of rights related to the functioning of a specific age group – people over 60 years of age. The pace of demographic changes is not without impact on the quality of life of elderly people. The article attempts at outlining the problems triggered by the demographic changes taking place in Polish society and at indicating the legal context, often related to the specific needs of senior citizens, or, more accurately, to the failure to satisfy these needs. The purpose is to shed light on the social dimension of respecting elderly people’s rights to social support in the form of providing access to social security and health care institutions during the COVID-19 pandemic. The questions asked are: Are elderly people’s rights to social security and adequate health protection respected in Poland' Did the outbreak of the COVID-19 pandemic improve or worsen the situation in Poland in this regard' PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.185-199 Issue No:Vol. 32, No. 3 (2023)
Authors:Paweł Śwital, Piotr Kobylski Pages: 201 - 218 Abstract: The principle of openness of public administration is one of the basic principles in a democratic state. The openness of public administration is also regarded as its fundamental value. It defines the standards of administrative activity, access to information and the controlling functions of citizens, and builds trust in a public authority. The aim of the article is to present legal regulations concerning the openness of the commune in its financial administration. The paper presents the principle of openness of public administration, the dimensions of openness in the practice of communes, the relevant standards arising from the substantive law regulations, as well as selected international experience in this area. Therefore, the choice of the subject of the analysis was dictated by a gap in the legal literature. This is an additional premise that justifies undertaking the indicated research tasks. Against the background of the applicable legal provisions, it should be considered whether the actions taken by the legislator allowed for the creation of a properly functioning model of transparency in the financial management of a commune. Over the years, it has undergone some transformations, which may cause freedom or lack of the possibility of a logically correct, functional, and systemically consistent interpretation. The set goals determined the choice of the layout of the study and research methods. The work assumes methodological pluralism. The two main research methods used in the work are the dogmatic-legal method and the theoretical-legal method. The historical-legal method and legal functionalism were used as an auxiliary, which allowed to present the subject of research from the point of view of its evolution, and thus obtain a full picture of the discussed issues. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.201-218 Issue No:Vol. 32, No. 3 (2023)
Authors:Krzysztof Teszner Pages: 219 - 236 Abstract: The provisions of the Act on promoting electricity generation in offshore wind farms have been in force since 18 February 2021. They are intended to simplify administrative procedures for obtaining permits and approvals for the implementation of offshore projects and to contribute to the fulfillment of Poland’s international obligations to maintain and increase the mandatory share of renewable energy sources. The Act also amended the Energy Law, which introduced provisions regulating the new license fee. Calculation and payment of this levy to the Energy Regulatory Office is mandatory for companies in the energy sector that conduct business operations involving production of electricity in offshore wind farms. In the author’s opinion, these entities are payers of a new tax, paradoxically referred to as fee, which, contrary to the original assumptions, was not introduced due to extra-legal factors. The article analyzes the legal regulations that introduce taxation of offshore wind farms in Poland against the background of controversial normative solutions concerning the property tax imposed on onshore wind power plants. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.219-236 Issue No:Vol. 32, No. 3 (2023)
Authors:Krzysztof Orzeszyna Pages: 237 - 252 Abstract: The article concerns the convergence of international humanitarian law and international human rights law in armed conflicts. International humanitarian law and human rights law converge and permeate each other because both these disciplines of public international law are founded on natural law. Although international humanitarian law constitutes a lex specialis, the general rules on the interpretation of treaties clearly indicate that international human rights law must be interpreted in the context of other rules of international law, and its derogations, if any, must be compatible with other international obligations of the state, including with humanitarian law. Where a conflict arises between international humanitarian law and international human rights law, the mechanism for resolving conflicts between norms has been supplemented by the International Court of Justice by applying an interpretation based on the principle of systemic integration, resulting in the “humanization” of international humanitarian law. As regards the application of universal and regional instruments of international human rights law, we face a “humanization” of them. That is why more and more attention is paid in practice to the complementarity of international humanitarian law and international human rights law, and this is confirmed in United Nations discussions and resolutions on the situation in armed conflicts. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.237-252 Issue No:Vol. 32, No. 3 (2023)
Authors:Ikechukwu P. Ugwu Pages: 253 - 277 Abstract: The aim of the article is to examine the theories that underpin the ownership and management of oil rights in Nigeria and the need for a new ownership model. The economy of Nigeria is majorly supported by revenues from natural resources, especially crude oil. With the downturn in the country’s economy, the Nigerian Federal Government recently embarked on a series of crude oil discoveries to increase revenue despite the unresolved violations of human rights of the indigenous peoples and environmental abuses committed during oil exploration in the Niger Delta region of the country. The Nigerian government finds justification for this uncontrolled exploration of natural resources in the doctrine of discovery and the rule of capture. The author argues that basing the right of the Nigerian Federal Government to explore natural resources on the two doctrines has negative implications on the rights of indigenous peoples in Nigeria and environmental protection, and is a continuation of the philosophies behind colonialism. Therefore, the article examines the doctrine of discovery, the rule of capture, the colonial philosophies of property rights, and the legal regime regarding ownership of natural resources in Nigeria. It suggests a hybrid ownership model where ownership is shared between indigenous groups and the government. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.253-277 Issue No:Vol. 32, No. 3 (2023)
Authors:Marian Zdyb Pages: 279 - 303 Abstract: The article concerns an issue of great significance from the point of view of contemporary challenges. The primary objective is to identify problems and legal instruments which are of fundamental importance in the perspective of the central bank’s tasks concerning the protection of the value of money and the maintenance of a stable price level, as defined in the Act on the National Bank of Poland (the NBP) and in Article 227 (1) of the Polish Constitution. In this context, it is important to understand the problem of the value of money in general and to give due consideration to the legal status of the NBP in the context of building monetary order and the legal possibilities of its operation in this area. Undoubtedly, an important attribute of the NBP is its legally guaranteed independence from all state authorities and the formulation of its basic forms of action within the framework of the legal system. Fundamental to the problem identified in the title of this article is undoubtedly an understanding of the basic legal instruments used by the NBP to protect the value of money. These include in particular: the determination and implementation of monetary policy, the prevention of excessive inflation and the increase in the prices of goods and services, as well as the use of interest rates in the process of stabilizing the value of money and price formation. The question of issuing money, especially when we are dealing with money overprinting, becomes a separate problem. In conclusion, it should be stated that concern for monetary order is an essential element in building the foundations of economic, financial, social and legal order in the state. The work uses primarily the dogmatic method and, to a lesser extent, other methods as well. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.279-303 Issue No:Vol. 32, No. 3 (2023)
Authors:Fátima Castro Moreira Pages: 305 - 324 Abstract: Portugal’s ratification of the United Nations Convention on the Law of the Sea in 1997 brought with it the need to create an appropriate strategy to assist policy makers. This was done by the Strategic Commission for the Oceans, an entity created in 2003 with the aim of promoting a strategic plan based on the sustainable use of the ocean and its resources. More than a place allowing different uses and activities, the ocean itself should be seen as the most valuable natural resource and should be protected, preserved and valued. The political model proposed by the report suggested the creation of a specialised Council of Ministers dedicated to the formulation of policies and planning guidelines, and to the coordination of the integrated management of the sector, which together with an entity of a predominantly technical nature, reach a definition of a global policy for the sea composed of a national strategy, the regular evaluation of sea affairs and the coordination of sectoral policies. This paper begins with the analysis of this strategic reference as a governance model, articulating the intersections between the various actors. A current approach requires this governance model to be multi-level: global, continental/regional, and domestic/local. PubDate: 2023-09-29 DOI: 10.17951/sil.2023.32.3.305-324 Issue No:Vol. 32, No. 3 (2023)
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