Monika Zalewska | The University of Lodz (original) (raw)

Papers by Monika Zalewska

Bialystok Legal Studies / Białostockie Studia Prawnicze 2024 vol. 29 no. 3

Th is article explores the possibility of reconstructing Hans Kelsen's neo-Kantian theory of the ... more Th is article explores the possibility of reconstructing Hans Kelsen's neo-Kantian theory of the basic norm (Grundnorm) with the help of the theory of (metaphysical) grounding. First, we outline Kelsen's theory of the basic norm as an integral part of his neo-Kantian transcendental idealism and give a sketch of grounding theory; we then try to fi t these theories together. As it turns out, grounding theory has some internal fl aws. More importantly, several of the features of a metaphysical ground are not compatible with the roles which Kelsen ascribes to the basic norm-its roles as a keystone of the legal hierarchy and as a transcendental-logical condition of legal cognition. Finally, an alternative conception is examined, according to which the legal system is grounded not by the basic norm but by social facts, with the basic norm serving as a bridging principle. However, this alternative is fl awed as well; its main problem seems to be that it violates the dualism of 'Is' and 'Ought'. Th e argument is relevant for the concept of personhood, because Kelsen treats the term 'person' in law as a mere expression for the unity of a specifi c set of legal norms, so that the identity of persons is ultimately dependent on the identity and function of the basic norm of the legal system.

This article aims to recommend a new innovative solution to the problem of low awareness of judge... more This article aims to recommend a new innovative solution to the problem of low awareness of judges who rule in water law cases. The examination of case studies revealed that the challenge does not invariably reside within the legal framework; rather, it is intricately linked to the environmental awareness of the judiciary. Judges often hesitate to prioritize environmental concerns as paramount, a hesitation grounded in discernible reasons. In the concluding section, a potential solution was advanced, positing that an imperative shift in environmental education, grounded in John Rawls's theory of justice, could serve as a transformative paradigm in judicial cognition. This proposed solution facilitates a shift in judges' perspectives from the immediate 'right here, right now' to a broader consideration of 'future generations.' Additionally, potential training measures were recommended in the final section as a means to instigate such a transformative change in perspective. 'Scientific approach, capacity building, and promotion for coordinated implementation of ecohydrology principles including ecohydrological multidimensional enhancement of catchment sustainability potential WBRS+CE… guidelines' 2 WBRS+CE recognises the need for a more holistic approach that integrates empirical scientific discoveries and the latest

Law and philosophy library, 2023

Hans Kelsen ante el siglo XXI. Un diálogo critico. Ed. by F. Ibarra Palafox, A. F. Carrillo Salgado, J. Hernández Manríquez and J. C. Muñoz Mendiola, 2023

* Esta investigación ha sido financiada por el National Science Centre (Polonia), en el marco del... more * Esta investigación ha sido financiada por el National Science Centre (Polonia), en el marco del proyecto de investigación 2021/41/B/HS5/01174. Traducción al castellano de un manuscrito inédito en inglés cuyo título es Grundnorm and Grounding, por Augusto Fernando Carrillo Salgado, estudiante del doctorado en derecho por

MANZ'sche Verlags- und Universitätsbuchhandlung GmbH eBooks, 2022

Revolution, Transition, Memory, and Oblivion

This project has been financed by Narodowe Centrum Nauki decision no. DEC2013/09/B/HS5/02529.

Acta Universitatis Lodziensis. Folia Iuridica

Odpowiedzialność prawna jest złożonym zagadnieniem, wartym przeanalizowania zarówno na poziomie t... more Odpowiedzialność prawna jest złożonym zagadnieniem, wartym przeanalizowania zarówno na poziomie teoretycznym, jak i w odniesieniu do konkretnych przypadków praktycznych. Celem niniejszego artykułu jest analiza jednego z ujęć odpowiedzialności prawnej, które zaproponował Hans Kelsen. Zostanie zatem opisana konstrukcja zarachowania, a następnie pokazany mechanizm przełożenia zasady zarachowania na odpowiedzialność prawną. Wnioski bazują na stwierdzeniu niekompletności „czystej teorii prawa” w zakresie stosowania prawa.

Law and Logic - Making Legal Science Genuine Science ARSP/B 166, 2021

The aim of this paper is to confront Kelsen's legal science project with the shift concerning log... more The aim of this paper is to confront Kelsen's legal science project with the shift concerning logic and norms in order to provide the answer, whether legal science is possible in the final phase of Kelsen's Study . The paper will focus on General Theory of Norms and Kelsen's rejection of logic of norms, which refers to two problems . First of all, the question, whether two norms in conflict can coexist . Secondly, if the individual norm can be inferred from the general norm . The consequences stemming from such rejection logic of norms will be examined .

The Rule of Law and Democracy Archiv für Rechts-und Sozialphilosophie -Beihefte 161, 2020

It is widely felt that that Kelsen's theory, a universal framework to describe any legal system, ... more It is widely felt that that Kelsen's theory, a universal framework to describe any legal system, is unable to support democratic systems . However, by presenting several elements from Kelsen's pure theory of law, critique of natural doctrines and theory of democracy, this paper will argue otherwise . First, the hierarchical structure of law will be presented as a crucial element of democracy . Since the hierarchical structure of law demands that lower legal acts are in accordance with higher legal acts, they limit the freedom of an authoritarian regime in their decisions . Following this, it will be argued that the supervenience principle, as a bridge between Is and Ought, allows the principle of equality to be inferred .

Principia, 2018

The article examines the cognitive, metaphorical dimension of the pure theory of law and demonstr... more The article examines the cognitive, metaphorical dimension of the pure theory of law and demonstrates that Hans Kelsen used meta-phorical language in his description of law, and unintentionally created a unique set of cognitive metaphors in order to make the theory of law focused on the abstract "Ought" world comprehensible. The paper argues that it would be impossible for Kelsen to describe norms without metaphors. The paper uses Lakoff and Johnson's theory as a framework for the interpretation of this metaphorical aspect of the pure theory of law. Hence the following paragraphs will examine the cognitive context of the abstract categories crucial for the pure theory of law, such as: the category of Ought, imputation, basic norms and the dynamic (hierarchical) structure of law. This article is based on the position that an analysis of the cognitive dimension of the pure theory of law might yield promising results which could reveal new aspects of the central categories in this theory. This article is an attempt to explore the possibilities provided by merging these two theories and checking if the results brings some new knowledge about the pure theory of law and legal thinking in general. Keywords: Hans Kelsen, cognitive science, George Lakoff, Mark John-son, cognitive theory of metaphor, pure theory of law, normativism Streszczenie W artykule badam zagadnienie wymiaru metaforyczno-kognityw-nego czystej teorii prawa. Jednocześnie wykazuję, że Hans Kelsen w opisie prawa używał metaforycznego języka i nieświadomie stwo-rzył grupę metafor kognitywnych, co umożliwiło zrozumiałe opisa

M. Belov (red.), Global Governance and Its Effects on State and Law, Peter Lang 2016 (ISBN: 978-3-631-67308-9), 2016

Abstract: Multicentrism is perceived nowadays as one of the leading paradigms describing legal re... more Abstract: Multicentrism is perceived nowadays as one of the leading paradigms describing legal reality. Multi-level legal systems and legal orders which are linked each to another on both legislative and decisional dimension. Since multicentrism means "many centres"-it admits and even emphasizes that there are several bodies empowered to pass legal provisions or decisions, which makes the entire process more complexed and exposed to risk of conflicts. It does reshape the classic concepts and paradigms of law and challenges the legal theory and practice. On the other hand, European legal culture has been and still is dominated by well established Kelsen's Pure Theory of Law which equalizes law and state (so-called "identity thesis"). The main goal of this paper is to pursue a question: are these two theories (approaches) really incompatible and whether it is possible to combine them successfully. The Authors have been tempted to project and suggest the possible "Kelsenian replies" to the multicentric legal reality. They are linked to the dynamic structure of law and-maybe even more-to the modern concept of state.

Imputation is a normative category analogical to causality. It was conceived among others by Hans... more Imputation is a normative category analogical to causality. It was conceived among others by Hans Kelsen, who made it the central category in his pure theory of law (Paulson 1996). Kelsen, influenced by Immanuel Kant, regarded imputation as a promising foundation for legal science. It serves as the element which distinguishes legal science from natural (explicative) types of science governed by the principle of causality

Książka zawiera tłumaczenie tekstu Kelsena "Filozoficzne podstawy nauki prawa natury i prawa pozy... more Książka zawiera tłumaczenie tekstu Kelsena "Filozoficzne podstawy nauki prawa natury i prawa pozytywnego" i jego omówienie.

Although Hans Kelsen's Pure Theory of Law is arguably one of the most influential theories of law... more Although Hans Kelsen's Pure Theory of Law is arguably one of the most influential theories of law in Europe, it has been occasionally misunderstood. One of the most common misunderstandings is the claim that Kelsen's concept of the Rechtstaat (the rule of law) legitimizes any regime, the Nazi one included. 1 This misunderstanding stems from the fact that Kelsen ascribed a double meaning to the concept of Rechtsstaat. While in a broad sense, Kelsen identified every legal order and state with Rechtsstaat, and that meaning is recalled by Holmes, he also recognized the classical meaning of the Rechtsstaat in the narrow sense, which corresponds with the concept of the rule of law. 2 The aim of this paper is to analyze the basis of this fundamental misunderstanding and demonstrate that on the contrary, Kelsen was one of the strongest supporters of democracy of that time. It will involve the analysis of several concepts, such as the pure theory of law, as well as the constitutional and political theories which Kelsen developed during his lifetime. The greatest emphasis will be placed on Kelsen's theory of democracy, since its detailed and precise construction is the best evidence it could not act as a justification for the Nazi regime. This confusion stems from the fact that Kelsen's theory of democracy is very often wrongfully ascribed to the pure theory of law, which has a different aim and a very general character. An analysis of democracy demands

The problematic gap between legal and social norms exists in copyright law. The consequences of t... more The problematic gap between legal and social norms exists in copyright law. The consequences of this gap are severe and include: not following copyright rules, and a big conflict between artists and recipients of a culture. In this context, copyright piracy is prevalent in Poland and legal tools aimed to protect interests of artists have failed. Copyright law might have been in sync with analogue era, but not to digital world. Identification of roots of the discrepancy between social expectations and legally binding rules might be the first step toward rectifying of situation. This article demonstrates the conceptual metaphors as a possible reason for malfunctioning the copyright law. Some metaphors treat intangible objects as tangible ones (intellectual or artistic work) and might pose difficulties mentioned above. Additionally, Larsson defined a group of metaphors in legal system. Bound with them are metaphors outside of law. For example, if law treats intellectual property as tangible property, than metaphors outside the copyright legal system, such as piracy apply. Polish copyright law in the context of Lakoff – Johnson theory of metaphors is a framework of the study.

In 1918 Oswald Spengler in Decline of the West pre-dicted that western civilization will lose its... more In 1918 Oswald Spengler in Decline of the West pre-dicted that western civilization will lose its privileged status. Regarding that, the beginning of XX century was a period of unquestioned domination of our region, this thesis could seem to be unlikely to come true, although after world War I there was not much optimism in Europe. Right now, one hundred years later, we are witnessing how this prophecy comes true. Western civilization loses its dominant posi-tion in favor of China. In this context everyone is aware of the importance of the question about the shape of China today and its prospects in the future. Obviously, the answer must be very complex and it is impossible to provide it in a short paper, so I will focus on the legal aspect, especially regarding Constitutional rules. The aim of this paper is not to simply describe all constitutional regulations of the People's Republic of China (the PRC), but to provide profound understanding how Chinese legal system works. To a...

Bialystok Legal Studies / Białostockie Studia Prawnicze 2024 vol. 29 no. 3

Law and philosophy library, 2023

Hans Kelsen ante el siglo XXI. Un diálogo critico. Ed. by F. Ibarra Palafox, A. F. Carrillo Salgado, J. Hernández Manríquez and J. C. Muñoz Mendiola, 2023

MANZ'sche Verlags- und Universitätsbuchhandlung GmbH eBooks, 2022

Revolution, Transition, Memory, and Oblivion

This project has been financed by Narodowe Centrum Nauki decision no. DEC2013/09/B/HS5/02529.

Acta Universitatis Lodziensis. Folia Iuridica

Law and Logic - Making Legal Science Genuine Science ARSP/B 166, 2021

The Rule of Law and Democracy Archiv für Rechts-und Sozialphilosophie -Beihefte 161, 2020

Principia, 2018

M. Belov (red.), Global Governance and Its Effects on State and Law, Peter Lang 2016 (ISBN: 978-3-631-67308-9), 2016

Imputation in General Theory of Norms

In Hans Kelsen's Pure Theory of Law the concept of imputation, as relative category a priori had ... more In Hans Kelsen's Pure Theory of Law the concept of imputation, as relative category a priori had important function in cognition of the norms. Namely, imputation in the realm of Ought was a normative link between condition and the consequence. As such it had analogical character to Kantian category of causality. In his last book, Kelsen withdrew from Neokantian paradigm, specifically from the concept of relative categories a priori, however, imputation remained as a normative link between condition and the cause. Deprived from its epistemic function, imputation became problematic conception. This paper will attempt to answer the question of the nature of imputation in general theory of norms and discuss what kind of elements imputation binds. Hence, the paper will examine the hypothesis that the nature of imputation is the relation of Supervenience understood as " there can be no A difference without B difference ". In order to test this claim, it will be determined what kind of elements binds imputation, whether they are just pure facts of breaking the norm and imposition of the sanction. Such solution seems to be problematic, since imputation allows to distinguish the norm from facts, but at the same time imputation is conditioned by recognizing that the one by certain behaviour broke the legal norm

Hart, 2024

This timely and compelling book delves into the dynamic interpretation of Hans Kelsen's General T... more This timely and compelling book delves into the dynamic interpretation of Hans Kelsen's General Theory of Norms through the lens of 21st-century jurisprudential debates.

Engaging with key contemporary philosophical concepts such as fictionalism in the philosophy of science, explanation and understanding, and supervenience, this book sheds new light on Kelsen's original ideas.

By offering a contemporary interpretation of his later work, it re-examines classic concepts known from the 'Pure Theory of Law' like the basic norm, the separation of 'is' and 'ought,' validity and efficacy, imputation, and the concept of the legal norm. Integrating modern philosophy with Kelsen's lasting ideas, this book presents a novel theoretical landscape, inviting readers to explore fresh perspectives on Kelsen's contributions to legal theory and emphasising its enduring relevance.