"The author intends to present legal socialization - the concept of the sociology of law - which describes attitudes to norms, law and law enforcement institutions. For law to be effective, any individual in a given community needs to internalize a number of values and attitudes. The attitude to law will influence its application; its effectiveness will depend on the perspective adopted by the legal norm addressees who could either accept binding regulations or ignore them. An adequate legal policy helps construe legal norms in a manner to prevent costs of interventions which need to be taken when law is not convergent with social expectations." (author's abstract)
Rozdział prezentuje teoretyczna analizę relacji zachodzącej między prawem a kontrolą społeczną przedstawiając w jaki sposób prawo jako narzędzie kontroli społecznej określa nastawienia wobec prawa.
The issue analysed by the author is that of the institution of Presidential immunity pertaining to the President of the Republic of Poland, and operating in such a way that a sitting President cannot be held criminally liable before a common court for acts tantamount to offences. Inclining towards the essence of this solution and its consequences when it comes to respect for constitutional principles of legalism and equality before the law, the author at the same time seeks to assess the completeness of the provisions in effect in Poland, in so doing identifying a lack of clear directives as to how a former President (i.e. one who has left office) is to be held criminally liable. The conclusion reached by the author can be said to boil down to a recognition that the liability of a former President before Poland's Tribunal of State for offences or crimes committed is of an accessory nature where common courts are concerned, with the condition underpinning recognition of the Tribunal's primacy in matters of jurisdiction being the National Assembly's adoption of a Resolution holding a former President liable constitutionally, and potentially at the same time initiating action in respect of given offences. Any lack of such a National Assembly Resolution must give rise to a particular kind of reactivation – in respect of the former President – of jurisdiction in the dispensing of justice by common courts, given the fact that one of the negative procedural premises has ceased to be non-applicable. Thus, unlike in the case of a President still holding office, the cognition of the Tribunal of State in relation to a former President is neither exclusive nor automatic. Such observations have also stimulated work by the author to develop de lege ferenda postulates regarding the subject matter, as set against the wider background of Poland's political and constitutional system.
The breakup of the Socialist Federal Republic of Yugoslavia 30 years ago still has a substantial impact on the post-Yugoslav countries which proclaimed independence. Bearing in mind that the breakup also generated a military conflict, e.g. in Croatia, the restoration of Serbian-Croatian relations remains problematic. One of the challenges is passing a fair judgment on people responsible for war crimes or crimes against humanity. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established for this reason in particular. Ante Gotovina – a Croatian general, was one of those indicted by the International Criminal Tribunal for the former Yugoslavia in connection with the military operation "Oluja" during which some heinous acts of crime took place. Gotovina played a clear and primary role in this operation, and therefore his actions were the main count of the indictment, firstly, for the prosecution and then for the Trial Chamber of ICTY. However, the sentence of 24 years imprisonment was never carried out following a successful appeal. The Appeals Chamber did not uphold the verdict of the Trial Chamber owing to a serious legal error and, consequently, it acquitted Gotovina of all the charges. This issue became yet another source of Serbian-Croatian conflict in connection with the most important people held responsible for the crimes committed in 1991-1995.
The article is devoted to a critical review of the European Parliament Resolution of February 16, 2017 on the regulations in the field of robotics. The authors analyze the approaches of the creators of the law in terms of perception of autonomous robots as subjects of law and pay attention to the legal liability for damage caused by robots. The authors conclude that the concept of robots as the subject of law and the possibility of endowing robots with artificial intelligence with the qualities of a legal or electronic entity are arguable. First of all, the legal personality of robots raises the problem of responsibility and protection of the rights of potential victims. The resolution of the European Parliament emphasizes the need for such a legal structure that will ensure the harmonization of the interests of developers and sellers of autonomous robots, users and victims – the imposition of liability on the manufacturer or liability insurance.
Traditionally, the quality of law is associated with observing certain principles of law making, the so-called principles of good legislation. Such a way of thinking, however, seems to be an over-simplification. Thus, the author indicates that the high-quality of legislation and the principles of good legislation are not the same. Law passed on the basis of good legislation procedures does not automatically result in the high-quality law, in particular, if one makes an assumption that the quality of law depends, above all, on legal certainty being ensured. The reflections presented here express an opinion on the immediate connection between the quality of law and the theory of law. In this perspective, thoughts on the quality of law resulted in an opinion how firmly the process of improvement in law quality is associated with the development of the theory of law. As regards the studies on the quality of law as a measure of legal certainty, three issues are pointed out in the material: 1. the quality of law from the point of view of its formation in reference to certain general social phenomena, 2. the quality of law relating to a person, 3. the quality of law in judicial activities.
The article tries to bring to the light the role of symbolism in the organized human life, in general, and the contemporary societies with the accelerating changes almost in all social structures, in particular. The rational of symbolism in changing socio-political and legal environment creates complexity of the issue, which has been studied in the article, taking into account the methodology of complex system theory. The interconnectivity and interdependency of law, morality and politics create the picture of synergy of different social norms with each other in changing environment. Their positive synergy is able to create a perception of the 'ethical state' – the focal point of equilibrium expressed in the attractor of future admired development. In the legal perspective, the symbol of that attractor appears to be the constitution as the society's and the nation's symbol of coexistence based on the values of mutual past, necessary present and admired future. It is substantiated that the Constitution is the phenomenon, representing a concrete constitutional idea and constitutional identity, and should be the one to be considered as such in a lot of people's minds if we intend to have a proper constitutional system and values. Hence, the Constitution is not just a document with a highest legal force, but also a symbol of a concrete constitutional system, and from this viewpoint the Basic Law has a symbolic significance. The authors substantiate that the mentioned significance of the Constitution makes it clear that constitutional policy in any state should be established and implemented in a manner, obviously demonstrating an attitude towards the Constitution, in the frames of which it is considered as a symbol of a concrete constitutional system. The most important circumstance in this context is to never transform the Constitution (directly or indirectly) from a symbol to an instrument in the hands of both the people and the state power and the whole constitutional policy of the state should be based on the discussed essential idea. Moreover, according to the authors the Constitution should not be subject to amendment parallel to every change of political situation of the state or formation of a new political majority merely conditioned by the mentioned changes. The Constitution has a fundamental role from the aspect of regulating social relations, has symbolic significance and can't be used just as a tool for solving ongoing political problems.
The purpose of the article is to analyse the role of the public prosecutor's office as an institution that is specifically embedded in between certain elements of the political system, particularly between the executive and judiciary powers. For this reason, the public prosecutor's office can be regarded, together with courts, as an institution that aims to be actively involved in administering justice and an instrument of the executive power to guarantee internal security and to execute internal functions of the state. The public prosecutor's office, given its specific operation area, is expected to prosecute crimes effectively as well as safeguard the rule of law, which may be threatened by the infringing actions of not only individuals and criminal groups but also of officials and state institutions. Hence, with respect to the accountability of the public prosecutor's office, it should be more independent of the executive power which is subject to political rules. It appears, however, that separating it officially from the executive power does not have to lead automatically to the public prosecutor's office independence of political influence when other direct (the Prime Minister's and the Minister of Justice's authority over the Attorney General) and indirect mechanisms of prosecutors' political dependency (clientelism, politicisation and political bonds of prosecutors with politicians) exist.
The article intends to illustrate the climate, social and primarily health effects resulting from the emission of various substances in the process of burning coal and waste, and the legal framework related to the issue of air pollution as a result of low emissions. The authors discuss also the main directions of the changes proposed in the so-called "anti-smog" law. The authors pose the thesis that Poland has still not solved problems of low emissions, despite the measures taken in the amendment to the Environmental Law. In their view, Poland still has a long way to go before it creates a low-carbon economy. The traditional use of coal in Poland hinders putting ecological changes into practice. Incineration of waste produced by households is another social pathology. Besides municipal waste, some hazardous waste also produced in households can be found. The level of environmental education is very poor in this respect. However, without significant actions, we will continue to destroy our own and our neighbours' health, contribute to climate change as some climatologists' think and pay penalties for failing to meet ecological commitments to the European Union as well.
The monography provides a comparative analysis of the constitutional review bodies' activities, their status and efficiency in different Post-Soviet States. It deals with the complex description of the constitutional provisions' compliance, the problems of legal mechanisms and stability, evolution of the local legislation. In this book the authors provide a detailed report of the constitutional review institutions' problems in the process of ensuring its legislative position. In this context we find in the research a description of the legal, political risks of the constitutional control in Post-Soviet States, its social perception and the predictability of its legal systems' development. This work integrates the unique structure of presentation and research materials. By the reflection of this type the authors lay the base for continuing further researches of constitutional review development dynamics in the countries of the region.
This book explores the issue of environmentally-induced migrations from the point of view of international human rights law, international humanitarian law, international refugee law and international law of statelessness. Last few years have become a period of unprecedented growth in the number of studies devoted to the forced migration caused by climate change. The book by professor Jane McAdam, published by Oxford University Press, differs significantly from previous studies in this area. The focus of the author became a state responsibility for the situation of climate-change induced displaced people with a particular focus on legal aspects of this problem. The basis of the author`s considerations are four particular areas of public international law: international human rights law, international humanitarian law, international refugee law and international law of statelessness. The issue of climate change-induced displacement is now becoming a growing challenge for public international law. The growing number of climate change migrants becomes a challenge for the international istitutions dealing with humanitarian assistance. Sea level rise become a factor of specific legal problems, such as climatic deterritorialization of the state, state succession on the new territory, the status of people forced to leave their country submerged under the waters of ocean (forced migrants?, refugees?, stateless people?, citizens of the former country continuing its status within a new territory?).
The aim of the paper is to present ramifi cations in the field of family law, inheritance law and tax law which arise from the lack of recognition of registered partnerships and same-sex marriages in certain European Union Member States, such as Poland. The lack of recognition is commonly perceived as discrimination on grounds of sexual orientation, but the emphasis is usually placed on its consequences concerning human rights. In this article, the author focused on discriminatory aspects in the area of family life and personal taxation. A lack of appropriate provisions in domestic law produces negative effects affecting taxation obligations for cross-border families that concluded their marriages or partnerships abroad but cannot benefi t from these institutions in certain EU Member States such as Poland. For the purpose of determining discriminatory aspects, the author analysed the domestic rules differentiating couples living in a marriage and couples not possessing the right to marry. Due to lack of case-law on tax and inheritance discrimination resulting from sexual orientation, relevant case-law of the Court of Justice of the European Union have been recalled, revealing possible violations of fundamental freedoms, including free movement of persons.
This book explores the impact of climate change on the legal situation of small island states such as Marshall Islands. Climate change-related problems of these nations touching their legal situation in a very different way than in the case of large countries threatened by economic and social consequences of sea level rise (such as Bangladesh, Vietnam, Nigeria and Egypt). Presentation of scientific forecasts is an introduction to the in-depth deliberations from the point of view of international law. According to many researchers, global sea level rise of 0,5-1 m. is highly possible in the next hundred years. Sea level rise is not the only climate-related threat experienced by small island states. Among other significant problems associated with climate change we can list tropical cyclones, floods, and droughts. Island nations must prepare for such problems on the basis of public international law. The authors draw attention to the most crucial legal challenges associated with sea level rise, such as the deterritorialization of the state, continuity of statehood, the issue of citizenship or the legal status of forced environmental migrants. The authors draw attention to the significant legal challenges (e.g. the legal status of migrants forced to leave their country of origin/residence as a result of irreversible climate change). This issue has still not been regulated by international law documents. Much attention is also being paid to the analysis of the consequences of climate change on the basis of international law of the sea. The core elements of the analysis presented in this book are, inter alia, the impact of sea level rise on Exclusive Economic Zones and fishing rights. The book is focused on the social and legal challenges facing microstates. Presented considerations may become a useful point of reference in the analysis of the problems facing larger countries affected by climate change and sea level rise.
Adjusting the legal status, and support policies for migrant workers is an issue on the agenda of international institutions for nearly a hundred years. The first efforts to protect foreign workers have been taken during the first session of the International Labour Conference in 1919. In the following decades ILO activities has led to the preparation of three international documents concerning this issue (non-binding ILO Convention No. 66 in 1939, and Convention No. 97 of 1949, and No. 143 of 1975). For many decades, the problem of the protection and assistance of migrant workers' rights was considered as a narrow issue of international labor law. Codification efforts, undertaken during seventies, has led to the adaptation of the UN document (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families) in 1990, and inclusion this issue into more general area of international human rights law. Despite this fact, and the existence of several categories of documents concerning migrant workers within Council of Europe, the European Union, and even ASEAN, the protection of migrant workers has never been effectively functioning system. The aim of this article is the analysis of the codification of that issue, and the main obstacles to consensus on the protection of migrant workers' rights. The state parties of the UN Convention contains primarily countries of origin of migrants (such as Mexico, Morocco and the Philippines). It seems, therefore, that despite 46 ratifications the, UN convention does not have a global character, and activities of its monitoring body (Committee on Migrant Workers-CMW) reflects primarily demands of sending countries. The article closely examines particularly controversial provisions of the ILO and UN documents from the point of view of current labour migrations and policies of sending and host countries.
The aim of this article is to analyse the international legal and political process of reconciliation between Serbia and Kosovo in terms of its impact on the scope of development directions and strategies of the European Union countries as well as Russia and the USA. Particular emphasis was placed on the treatment of these issues in the light of the activities of the Kosovo Specialist Chambers and Specialist Prosecutor's Office. The main theses assumed for the purposes of this article are as follows: firstly, that the policy of reconciliation between Serbia and Kosovo is multidimensional, including the necessity of the process of international criminal liability for the crimes committed by both states, while at the same time influencing the dilemmas of the development directions of individual European countries, but also of the European Union and the United States. In addition, the legal and political stabilization of the Balkan region, especially in the context of relations between Kosovo and Serbia, and the possibility of cooperation with these states as part of intergovernmental international organizations, is strategically extremely important for the EU, the USA, as well as for Russia. The Author critically analyses issues using polemics with the standpoint presented in the doctrine of the subject as well as interpreting selected instruments of international law and Kosovo's national law. The deliberations resulted in conclusions as to the determinants in terms of the directions of the legal and political development of the EU and Russia resulting from the complicated process of reconciliation and mutual settlement of sins by Serbia and Kosovo.
