Author: The Editors
Year of publication: 2021
Source: Show
Pages: 5-12
DOI Address: -
PDF: ppk/61/ppk61toc.pdf

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Author: Michał Gałędek
Institution: Uniwersytet Gdański
ORCID: https://orcid.org/0000-0002-9538-6860
Year of publication: 2021
Source: Show
Pages: 15-29
DOI Address: https://doi.org/10.15804/ppk.2021.03.01
PDF: ppk/61/ppk6101.pdf

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On the Eve of the Birth of the Modern Doctrine of the Legal State? The Attitude of Polish Liberals to the Idea of the Rule of Law at the Beginning of the 19th Century

The article analyzes the problem of the attitude towards the idea of the rule of law of representatives of the Polish elite at the beginning of the 19th century. The author presents the development of the idea of the rule of law in the introduction. He verifies the thesis that the ideological basis for the concept of the rule of law was the Enlightenment thought on the basis of which the liberal doctrine developed. He used it to seek an answer to the question about the characteristics of the model of government established by the Constitution of the Kingdom of Poland of 1815. The author attempted to prove that, since the Kingdom (existing until 1831) with one of the most liberal constitutions in the first half of the 19th century was in force, then this act met all the conditions required for the establishment of the rule of law according to the standards adopted in that century. These considerations conclude with remarks on the further evolution of Polish liberal thought in the 1820s. It began to differ from the liberal assumptions on which the German Rechtstaat doctrine was built. Paradoxically, Rechtstaat concept had much more in common to Polish liberalism in the earlier (proto-liberal) stage of its development in the times of the Duchy of Warsaw (1807–1815) than of the Kingdom of Poland (1815–1831).

XIX w. Księstwo Warszawskie Królestwo Polskie państwo prawa rządy prawa liberalizm konstytucjonalizm legal state rule of law Kingdom of Poland Duchy of Warsaw 19th century liberalism constitutionalism

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Author: Marcin M. Wiszowaty
Institution: Uniwersytet Gdański
ORCID: https://orcid.org/0000-0002-9740-2457
Year of publication: 2021
Source: Show
Pages: 31-46
DOI Address: https://doi.org/10.15804/ppk.2021.03.02
PDF: ppk/61/ppk6102.pdf

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Are there Polish Traditions of the Rule of Law? Prolegomena for Research

The paper is a summary of a scientific seminar devoted to the problem of the Polish acquis concerning the concept of the Rule of Law and an introduction to in-depth research on this subject. The initial answer to the research question whether there is Polish achievements in the described field is positive. It is a centuries-old and relatively rich achievement. The answer to the question about the existence of the Polish tradition of the Rule of law, understood as continuity, is negative. Despite making more and more (partially understandable) attempts to prove this continuity and the existence of at least a partial continuation of the political system between the so called First, Second and Third Polish Republics, this continuity is only illusory and in fact has been broken several times. One can speak of a short-term continuity only within successive epochs in Polish history.

historia państwa i prawa tradycje konstytucyjne państwo prawa państwo prawne rule of law Rechtsstaat Polish constitutional history Constitutional tradition and continuity

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Author: Anna Tarnowska
Institution: Uniwersytet Mikołaja Kopernika w Toruniu
ORCID: https://orcid.org/0000-0002-9058-0672
Year of publication: 2021
Source: Show
Pages: 47-62
DOI Address: https://doi.org/10.15804/ppk.2021.03.03
PDF: ppk/61/ppk6103.pdf

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„Even the same Ones, who are Established to be Protectors of Law, they Ought to be Their First Preservers”. On the Rule of Law in the Debate and Reform work of Polish Great Sejm (1788–1792)

Although the theoretical assumptions of the concept of the rule of law have been developed in the continental tradition only in the 19th century, its systemic elements have their roots deep in history. In this contribution, the author analyses selected examples from the field of legislation and legal culture of the Great Sejm era (1788–1792). She focuses in particular on the problems of articulation and functioning of the supremacy of the constitution in the legal order and the innovative shaping of the responsibilities of key state authorities. These issues notably seem to reflect the suspension between the domestic heritage and the modernity of constitutionalism. At the same time, both cases prove that the ratio legis of these solutions was primarily of a practical, not conceptual nature.

Konstytucja 3 Maja nadrzędność konstytucji praworządność odpowiedzialność polityczna odpowiedzialność konstytucyjna supremacy of the constitution rule of law constitutional responsibility political accountability 3rd of May Constitution

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Author: Tomasz Kucharski
Institution: Uniwersytet Mikołaja Kopernika w Toruniu
ORCID: https://orcid.org/0000-0002-5363-7529
Year of publication: 2021
Source: Show
Pages: 63-78
DOI Address: https://doi.org/10.15804/ppk.2021.03.04
PDF: ppk/61/ppk6104.pdf

Streszczenie:

The presented article is devoted to using present-day legal terminology in scientific research on pre-modern and pre-constitutional states’ legal systems. The main focus of analysis is the rule of law principle existence between the 16th and 18th centuries in the Polish-Lithuanian Commonwealth. The author tries to establish whether this is even justified to use the modern idea of the rule of law to describe the Polish-Lithuanian pre-partitions political system? And, if so, how technically do that to avoid presentism? The author tries to formulate a set of features concerned with the rule of law principle applicable to the Polish-Lithuanian Commonwealth. He also tries to determine the set of conditions necessary for the rule of law principle to blossom in pre-modern reality fully

prezentyzm historia prawa zasada rządów prawa Rzeczpospolita Obojga Narodów rule of law principle Polish-Lithuanian Commonwealth history of law presentism

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Author: Marek Stus
Institution: Uniwersytet Jagielloński
ORCID: https://orcid.org/0000-0002-5588-8321
Year of publication: 2021
Source: Show
Pages: 79-92
DOI Address: https://doi.org/10.15804/ppk.2021.03.05
PDF: ppk/61/ppk6105.pdf

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“May the Polish Sejm be Tranquil, may the Polish Sejm be Quiet”. Building and Phasing out the Legal State in the Second Polish Republic

The inter-war period played the key role in the process of realizing the idea of the legal state in Poland. It brought the uninhibited opportunity to establish a new the form of government based on solid democratic standards and the rule of law for the first time since the country had lost its independence in the late 18th century. It was expressed in the legal instruments of the March Constitution of 1921. Practical enforcement of the legal state concept in the Second Polish Republic was far from ideal though. It resulted from various political, social, economic and international challenges. The March Constitution, not always clearly worded, was subject to widespread criticism and its cumbersome regulations were ignored. Moving gradually away from the rule of law, marked by the Sanacja elites becoming more authoritarian after 1926, was expressed on three levels: creating law, including subsequent constitutional regulations, it’s interpretations and enforcement. Gradual transformation of the parliamentary-cabinet system of the March Constitution into authoritarian state was the result of these processes. The article attempts to analyze the inter-war experience from the point of view of growing degradation of the rule of law and the reasons for its instability in the Second Polish Republic.

międzywojenny konstytucjonalizm Polska międzywojenna II Rzeczpospolita państwo prawa kreowanie ustroju państwa Second Polish Republic Interwar Poland creating the state system legal state interwar constitutionalism

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Author: Anna Chorążewska
Institution: Uniwersytet Śląski w Katowicach
ORCID: https://orcid.org/0000-0003-2917-3119
Year of publication: 2021
Source: Show
Pages: 95-109
DOI Address: https://doi.org/10.15804/ppk.2021.03.06
PDF: ppk/61/ppk6106.pdf

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The Territorial Self-Government and the Division of State Powers under the Constitution of the Republic of Poland of 1997

Territorial self-government is an institution deeply entrenched in the fabric of civil society. As a result, the state should guarantee that institution’s right to evolve naturally, following the development of and attainment of successive maturity stages by Polish civil society. Consequently, according to the constitution-maker’s intentions, the constitutional regime of territorial self-government should not be an inhibitive factor for the natural processes accompanying the civil society’s development within self-governing communities, but it should allow for the ossification of such processes in territorial self-government laws. In this paper, the possibility of implementing the above assumption and the powers of territorial self-government are considered through the prism of the principles of the division of state powers and decentralization of public authorities. The considerations lead to the conclusion that there are systemic foundations for the separation of self-government authority within the vertical division of state power.

zasada decentralizacji władzy publicznej zasada podziału władzy państwowej status wspólnoty samorządowej członek wspólnoty samorządowej samorząd lokalny/regionalny instytucja samorządu terytorialnego społeczeństwo obywatelskie civil society władza/uprawnienia samorządu terytorialnego institution of territorial self-government local/regional self-government member of self-governing community status of self-governing community principle of the division of state powers principle of decentralization of public authorities powers of territorial self-government

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Author: Michał Bartoszewicz
Institution: Uniwersytet Humanistyczno-Przyrodniczy im. Jana Długosza w Częstochowie
ORCID: https://orcid.org/0000-0001-9189-5783
Year of publication: 2021
Source: Show
Pages: 111-125
DOI Address: https://doi.org/10.15804/ppk.2021.03.07
PDF: ppk/61/ppk6107.pdf

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Breach of Oath as a Reason for Dismissal of the Ombudsman by the Sejm

The purpose of this article is to determine whether, and if so to what extent, failure to comply with specific duties declared in the oath of office taken by an Ombudsman before taking office is relevant to the assessment of his responsibilities. The Sejm shall dismiss the ombudsman before the end of the period for which he was appointed if the Ombudsman has misappropriated his oath. Therefore, special attention has been paid in this study to the effects of the Ombudsman’s oath. The article examines the content of this oath and the conditions of exercising the right to dismiss the ombudsman by the Sejm. Such a decision must take into account, in particular, the independence of the ombudsman and the rule of tenure.

odwołanie ze stanowiska Rzecznik Praw Obywatelskich skutki naruszenia obowiązków wynikających ze ślubowania ślubowanie oaths of office effects of the oath’s infringement ombudsman recall of an ombudsman

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Author: Halina Zięba-Załucka
Institution: Uniwersytet Rzeszowski
ORCID: https://orcid.org/0000-0003-1646-3141
Year of publication: 2021
Source: Show
Pages: 127-146
DOI Address: https://doi.org/10.15804/ppk.2021.03.08
PDF: ppk/61/ppk6108.pdf

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The Ombudsman and the Organs of Judicial Power

The author shows that, in order to protect rights and freedoms, the Ombudsman, with the help of various instruments and depending on the infringements found, undertakes actions with organs of the judiciary, on which obligations concerning the protection of human rights and other subjects have been imposed. This article reviews the forms of the Ombudsman’s relations with the Supreme Court, the Supreme Administrative Court, the Constitutional Tribunal, and common courts. Their aim is to raise the level of respect for human and civil rights. In this context the thesis of the article is as follows: in view of structural, legal and organisational defects of the state, the Ombudsman notes that new threats to human and civil rights appear, freedoms or rights granted to them are often taken away in a manner inconsistent with constitutional standards, and public authorities exceed the sphere of their powers in an expcessive manner. Allegations made in complaints against public authorities are often verified by the Ombudsman in the course of inquiries with his participation. The Ombudsman keeps his distance from these bodies, which enables him to influence them in the field of human rights protection, and above all to influence the individuals subordinate to them.

Supreme Court Sąd Najwyższy skarga konstytucyjna Trybunał Konstytucyjny ombudsman Constitutional Complaint constitutional court Rzecznik Praw Obywatelskich organy ochrony prawnej skarga nadzwyczajna sprzeciw legal protection bodies extraordinary complaint

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Author: Justyna Węgrzyn
Institution: Uniwersytet Wrocławski
ORCID: https://orcid.org/0000-0002-7996-9441
Year of publication: 2021
Source: Show
Pages: 147-158
DOI Address: https://doi.org/10.15804/ppk.2021.03.09
PDF: ppk/61/ppk6109.pdf

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Implementation a Programmatic Norm Resulting from Article 68 para. 4 of the Constitution of Poland in the State of the COVID-19 Epidemic (general comments)

The article refers to the issue related to the implementation by public authorities of the obligation to combat epidemic diseases. The COVID-19 epidemic situation in Poland requires the state to intensify its efforts to prevent the spread of the COVID-19 infectious disease. Actions taken by public authorities are related to, inter alia with the need to restrict the freedoms and rights of the individual, which may be introduced provided that they are consistent with the requirements provided in the Constitution of Poland. The article points out the irregularities occurring in this area, taking into account the jurisprudence of the Constitutional Tribunal, and the views of the doctrine

ograniczenia wolności i praw jednostki art. 68 ust. 4 Konstytucji RP epidemia Article 68 para. 4 of the Constitution of Poland epidemic restrictions on individual freedoms and rights

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