Studia nad Autorytaryzmem i Totalitaryzmem最新文献

{"title":"Wpływ braku uznania rządu państwa totalitarnego i autorytarnego na zdolność sądową tego państwa w świetle koncepcji brytyjsko-amerykańskich","authors":"Piotr Rodziewicz","doi":"10.19195/2300-7249.43.4.42","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.42","url":null,"abstract":"Although government recognition is a legal concept of public international law, it interacts with other branches of law, including private international law and international civil procedure. According to the jurisprudence of British and American courts, unrecognized governments do not possess locus standi in civil proceedings in regard to matters which fall within the state dominium. In the mentioned jurisprudence, a doctrine has been formulated according to which judges are bound by the position of their state executive bodies in regard to foreign state and government recognition, which has direct influence on the locus standi of foreign states in the courts of Britain and the United States. The aim of this paper is to present the above rulings, as well as to analyze whether there are grounds for accepting the doctrine which follows from them in Polish civil litigation.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"370 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121751164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The constitutionalization of administrative law as a remedy for authoritarian rule: The case of Poland and the case of Germany","authors":"Renata Kusiak-Winter","doi":"10.19195/2300-7249.43.4.39","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.39","url":null,"abstract":"The continuity of the administrative apparatus is an indispensable element of any state, be it a democracy or an authoritarian regime. Given that permanency is an attribute of administration, any change from authoritarianism to democracy must therefore be followed by finding adequate corrective measures to transform public administration accordingly. In post-war Germany, it was the constitutionalisation of administrative law that had the pivotal role in attaining this goal. The paper aims at shedding more light on how to view and critique the Polish departure from the administration of the PRL-era authoritarian system in the context of the path followed by Germany.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121429761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"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","authors":"Marta Kłopocka-Jasińska","doi":"10.19195/2300-7249.43.4.26","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.26","url":null,"abstract":"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.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125318954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Współpraca Unii Europejskiej z wybranymi państwami niedemokratycznymi Afryki Subsaharyjskiej w obszarze poszanowania praw człowieka","authors":"Adriana Kalicka-Mikołajczyk","doi":"10.19195/2300-7249.43.4.45","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.45","url":null,"abstract":"In Art. 3, para. 5, the Treaty on European Union (TEU) lays down the objectives of the Union in relations with the wider world, which are further explained in detail in Art. 21. In the first place, para. 5 refers to the promotion of the Union’s values. The list of values can be found in Art. 2 TEU (“The Union is founded on…”), which lists the principle of democracy, the rule of law and respect for human rights, human dignity, freedom and equality. They are to be upheld and promoted by the Union in the wider world. Thus, they are directly linked to external policy. Next, the list of values in Art. 2 is repeated in Art. 3, para. 5 as objectives of the Union’s external policy and in Art. 21, para. 1 as principles. For this reason, international agreements concluded between the EU and third countries all contain a “human rights clause” as an essential element of the agreement, the violation of which might result in the suspension of the agreement. This article focuses on the human rights clause in relations between the EU and selected non-democratic Sub-Saharan African countries. The main legal basis governing bilateral relations between the EU and those countries is the Cotonou Agreement. The “human rights clause” is to be found in Art. 9 thereof. This clause is especially interesting since it is the only one that has been implemented in practice. Moreover, it is often presented as the most elaborate one, and as a consequence is very often shown as a “model” that should be followed in other international agreements, especially in association agreements. So, the “human rights clause” contained in the Cotonou Agreement has its own characteristic features. Firstly, as it was mentioned above, it is the only one that has been activated in practice. Secondly, the “non-execution clause” is much more detailed, and finally, much more emphasis is laid on political dialogue and on the consultation procedure. This paper provides a propaedeutic analysis of legal cooperation between the EU and selected non-democratic Sub-Saharan countries in the area of human rights protection. Its main objective is to answer the following questions: to what extent the EU cooperates with such countries? What are the issues the clause covers? Is it effective? To what extent could it be enhanced? For analysis, the following countries have been chosen: Chad, Ethiopia, Rwanda, Uganda, and Zimbabwe. According to the Freedom House’s annual Freedom in the World report, the Global Freedom Scores for all these countries do not exceed 35 points, which equates to lack of democracy. Moreover, another feature which all of them have in common is a very low score on the Human Development Index (HDI), which means that all of them belong to the poorest and least developed countries in the world.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128815494","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tyran i rządy tyrańskie w ujęciu Bartolusa de Saxoferrato","authors":"A. Szymańska","doi":"10.19195/2300-7249.43.4.17","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.17","url":null,"abstract":"The famous 14th-century jurist Bartolus de Saxoferrato addressed the issues of tyranny at various points in his prolific scientific career, both in his commentary to the Corpus iuris civilis and in the public law treatises De regimine civitatis and De Guelfis et Gebellinis, where the theme of resistance against a tyrant was developed, whereas the legal theory of tyranny was comprehensively presented by him in the treatise De tyranno. The subject of the article is the analysis of the concepts of tyrant and tyrannical rule in Bartolus’ works.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123825360","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Wpływ ideologii totalitarnych na konstrukcje prawne stosowane w zakresie ograniczania autonomii woli jednostki na przykładzie modeli wiązania wzorców umownych","authors":"Maciej Skory","doi":"10.19195/2300-7249.43.4.32","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.32","url":null,"abstract":"The paper aims to examine the influence of totalitarian ideologies on the issue of the mechanism of binding contractual standard forms. Although totalitarian ideologies mainly influence the situation of an individual through the norms of criminal law and administrative law (public law in its broadest sense), private law — especially in its theoretical aspect involving accepted legal constructs — is also influenced by the political doctrines dominant at a given time. As it seems, this also applies to such a technical and far-from-political model as that of contractual binding. It turns out that also in this area totalitarian concepts found room for restricting the scope of individual freedom. This is indicated by a certain correlation between the development of views on the nature of contractual forms and the mechanism of their binding and the intensification or weakening of totalitarian tendencies. Such a conclusion can be derived from the historical analysis of the views represented by the main representatives of French and German doctrine from the mid-19th to the mid-20th century.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116498224","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Obowiązek rejestracji prasy a postęp technologiczny","authors":"Łukasz Goździaszek","doi":"10.19195/2300-7249.43.4.30","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.30","url":null,"abstract":"The aim of the article is to show the evolution of the requirements related to publishing the press and to define the directions of new legal changes. The current regulations are inadequate to the contemporary realities of the media market and communication possibilities. The obligation to register the press can be seen as a relaxed follow-up to the authoritarian or totalitarian regimes’ requirement to obtain a license to publish a journal or a periodical. Press registration would be a democratic alternative to obtaining a press license only if certain values supported it, including the interests of other persons and entities. Currently, such interests are secured by other regulations. The considerations of the courts and legal science focus on the possible contradiction of the current regulation on the registration of newspapers and magazines with the constitutional ban on licensing the press. However, it should be taken into account to a greater extent that the dissemination of the internet and computer hardware has made it more complicated to register a periodical than to start a simple press activity. Therefore, the obligation to register the press in its present form is unreasonable.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131216304","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Antyautorytarna edukacja prawnicza","authors":"Michał Paździora","doi":"10.19195/2300-7249.43.4.29","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.29","url":null,"abstract":"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.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134184400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Retrospektywna perspektywa badań prowadzonych przez Alice Miller nad związkami czarnej pedagogiki i znaczeniem relacji rodzinnych dla kształtowania się postaw społecznych wspierających nazizm i faszyzm","authors":"Magdalena Tabernacka","doi":"10.19195/2300-7249.43.4.28","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.28","url":null,"abstract":"A retrospective analysis of the conditions that influenced the emergence of Nazism and fascism indicates that one of the factors that fostered the emergence of both systems were specific family relationships and the upbringing currently referred to as black pedagogy. Alice Miller claimed that the full subordination of children to the will of adults, resulting from the use of mechanisms of black pedagogy, led to the subsequent political subordination, which was an element of social relations in the totalitarian system of the Third Reich. Miller noticed the roots of black pedagogy in the educational tendencies present in the German cultural circle as early as the 18th century, and she noticed ethnocentric conditions based on black pedagogy, also in the post-war period. The contemporary international legal standard for the protection of the subjectivity of the child should contribute to the creation of systemic and cultural barriers against black pedagogy and its consequences.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116344718","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Autorytarne formy władzy a realizacja prawa do cywilnoprawnej ochrony prawnoprocesowej przez obywateli w okresie PRL","authors":"Elwira Marszałkowska-Krześ","doi":"10.19195/2300-7249.43.4.11","DOIUrl":"https://doi.org/10.19195/2300-7249.43.4.11","url":null,"abstract":"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.","PeriodicalId":173985,"journal":{"name":"Studia nad Autorytaryzmem i Totalitaryzmem","volume":"135 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133761751","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}