I LAW AND NATURE i. The "Pure" Theory The Pure Theory of Law is a theory of positive law. It is a theory of positive law in general, not of a specific legal ...

In Polish legal theory, the concept of the rational legislator—an ideal type of lawmaker that fulfills certain assumptions regarding its knowledge and values—plays a profound role in the process of legal interpretation. In this context, the concept of the rational lawmaker is best understood as a set of methodological directives that govern the process of legal analysis. These rules enable the translation of ambiguous and often inconsistent texts of legal statutes into a coherent system of unequivocal legal norms.Yet if the (...) concept of the rational legislator is accepted as the basis of legal interpretation, the ratio legis of a statute must be determined using sources that can be conventionally attributed to the rational lawmaker. These include the text of the statute in question, its preamble, and the values that can be decoded from other legal texts, primarily from the constitution.Nevertheless, as an ontological gap exists between the rational lawmaker and actual legislators, the use of legislative history in the process of the analysis of ratio legis is somewhat questionable. Aside from providing methodological background for the concepts of humanistic interpretation and the rational legislator, this article explores the difficulties involved in applying legislative history to the abovementioned paradigm of legal interpretation and aims to assess how, if at all, this can be reconciled with the idea of the rational lawmaker. (shrink)

This article addresses Schmitt’s concept of sovereign dictatorship—a departure from the normal legal order aiming to bring about a new mode of legality—as applied to the Marxist, and then Soviet, “dictatorship of the proletariat.” Unlike Schmitt, Marx and Engels, as well as Soviet legal theorists, saw the space for law even while aiming to dispense with the legal form on the road to communism. This is best explained by Schmitt’s failure to recognize the importance of legal systems not only for (...) controlling social conflict, but also for coordination, the need for which does not disappear in extraordinary circumstances. (shrink)

The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court’s case-law in the Member States, which seem to have been adequately tackled by the Court’s idiosyncratic translation policy.

The article presents so-called “derivational” theory of legal interpretation and analyzes its basic assumptions. The derivational theory of legal interpretation is still little known outside of Poland. The article is divided into two parts. The first part is presenting the normative model of legal interpretation according to the derivational theory. In the second part, the basic assumptions and features of the theory are analysed in context of some other approaches to legal interpretation. The author argues that there are two levels (...) of the derivational theory: local and universal. The local level of theory is related to the fact that it was designed for Polish legal system and legal culture. However, beyond its local features, the derivational theory is presenting strong theoretical framework and some significant universal ideas about legal interpretation. This creates universal level that can be called the “hard core” of the theory. The author characterizes the elements of this hard core, and in particular the most important element: the idea that the legal interpretation consists in the reconstruction of legal norms from legal provisions. (shrink)

The act of interpretation is an essential component of legal analysis. For decades, legal scholars have called upon metaphors of interpretation to shape conceptualizations of legal problems. But our lexicon of legal metaphors is incomplete. No metaphor in current use successfully captures the contingency of judicial opinions so as to temper the overwrought anxieties attendant to controversial opinions. This Article seeks to fill this void by introducing a new metaphor, the palimpsest, into the realm of legal analysis. A palimpsest is (...) a writing surface that can be cleared away for reuse, like a personal blackboard. What distinguishes a palimpsest from other writing surfaces is that its removed contents do not disappear, but remain, obscured yet recoverable: a writing on a palimpsest never goes away. Writers have been drawn to the palimpsest as a metaphor since at least the 19th Century. In recent years, scholars have applied the palimpsest metaphor to an array of diverse academic fields within the natural sciences, social sciences and humanities. But no scholar has applied the palimpsest to the law. This Article argues that by framing judicial opinions as part of a shared, national palimpsest, commentators can underscore the interconnectedness among opinions and highlight the complexity of the relationship between opinions and precedent. Precedents - like the underlayers of a palimpsest - never go away, and they inform and shape the application of opinions in ways far more significant than simply serving as points of reference. A palimpsestic approach to understanding judicial decisionmaking also helps to explain why even the oldest, most reviled cases remain part of our national psyche - like underlayers of a palimpsest, they can never truly disappear, and their continued presence forces us to grapple with them. Finally, considering judicial opinions as part of a national palimpsest reminds us that even the most troubling opinion is ultimately contingent, its application subject to reexamination and revision by future courts and future generations. Just as such an opinion replaces its precedents, it too will one day be replaced, like each of a palimpsest’s layers. (shrink)