2019, t. 2, nr 2 (4), poz. 0
2019, Vol 2, No 2 (4), item. 0
The fourth issue of “The Voice of Law. Allerhand Law Review” is to a large extent dedicated to the problem of the judiciary in its systemic and practical dimensions. We do this primarily by referring to sources. For this reason, three short articles – reprints of pre-war texts of the then leading and still inspiring authors – have been placed in the “Fontes” section. Traditionally, the first one is the text of Professor Maurycy Allerhand. This time it is a little-known, almost an “interventionist” text from 1929 in which the Lwów (now Lviv) scholar protests against efforts of the Supreme Court to unify the case law (sic!). This text led to polemics and discussions. The second study from 1931 was written by Professor Stanisław Starzyński – the senior Polish constitutionalist. It concerns the protection of judicial independence in the March Constitution of 1921. The scholar reflects on the essence of the judiciary that is judicial independence and the irremovability of the judges who were then appointed by heads of state or representatives of the executive almost everywhere. The third article entitled The attitude of the judge towards law is a lecture delivered to the judges by Professor Ludwik Ehrlich, an expert in international law. The article contains numerous comparative remarks and remains relatively unknown in the literature, which has probably been caused by the fact that it was published on the eve of the outbreak of World War II in a niche magazine.
Likewise, one of the three studies in “Opera” refers to the subject matter of the previous section. The article by Krzysztof Olszak entitled Independence and impartiality in the judiciary in the light of legal regulations and case law attempts to summarize the European and national case law on the interpretation of concepts from its title. Legal rules constitute the starting point for the author, while the applied method consists in uncovering the meaning of these terms in the light of the case law and selected doctrinal opinions. The study is from November 2019 (since then several judgments and articles have appeared on this subject). The terms “independence” (PL: niezawisłość), “independence” (PL: niezależność) and “impartiality” (PL: bezstronność) are not only of theoretical and practical importance, but also widely discussed, and there is no sign that this state of affairs is going to change in the near future. We hope that this article will initiate a series of publications on the meaning of other concepts equally relevant to the functioning of the legal system.
Political issues are considered in Krystyna Potapenko’s text regarding the limits of the principle “the end justifies the means” in the philosophy of Nicolas Machiavelli.
The author criticizes the modern understanding of Machiavellianism and points out that it has little in common with Machiavelli’s original views. According to the author, the boundaries of the principle are: public interest, selection of a lesser evil and the justified use of immoral means during the war. The author draws attention to the fact that the Italian thinker opted for the general good, rather than the good of the ruler as his main objective. The findings are then referred to both the views of the era and to contemporary realities.
The first piece published in this issue concerns the problem of whistleblowing in financial institutions and in the non-financial sector as one of the areas of progressive regulatory convergence between financial institutions and enterprises outside the financial sector. Konrad Zawodziński tries to identify challenges arising from the Directive (EU) 2019/1937 of the European Parliament and of the Council of October from 23 October 2019 on the protection of persons who report breaches of Union law.
The “Sententiae” section contains another review of the International Criminal Court’s jurisprudence by Patryk Gacka. The examined period (April-November 2019) was characterized by extraordinary activity of the Tribunal in relation to both particular situations and to cases of specific perpetrators. Decisions issued by the Court concern, among others, the Afghanistan and Burma/Bangladesh situations. The latter issue is also analysed by Ewa Sałkiewicz-Munnerlyn who describes various legal actions that have been brought before three different judicial bodies, i.e. before the International Court of Justice in The Hague (ICJ), before a national court in Buenos Aires (Argentina) and before the International Criminal Court (ICC) in The Hague.
In the author’s review of the jurisprudence of the Supreme Court in civil matters, attorney Dr Monika Strus-Wołos notes the resolution by the Supreme Court sitting in the bench of seven judges issued in the Extraordinary Control and Public Affairs Chamber in a case concerning family ties as a personality right. The author then discusses, among others, rulings regarding the status of the personal debtor’s spouse, inadmissibility of stipulating a contractual penalty for obligations of a monetary nature or the cost of a private opinion of an expert in cases of compulsory third party liability insurance of motor vehicle owners.
The “Sententiae” section contains the gloss of Dr Paweł Kobes to the judgment of the Court of Justice of the European Union of 23 January 2018 in the case C-367/16 – Piotrowski. The author presents the issue of principles of respecting the rights of minors held criminally responsible. He answers the question as to what extent courts executing the European Arrest Warrant are required to analyze the grounds for refusing to accept the order because of the age limitation precluding the competence to bring a minor to criminal responsibility.
The “Res Gestae” section begins with an erudite article by attorneys Julian J. Bąkowski and Wojciech Berger When a lawyer does not have to explain the sense of his existence, which serves as a presentation of the book Letters to a Young Lawyer by Alan Dershowitz, an outstanding American lawyer and professor at Harvard University. For the reader from Poland, the part of the article dedicated to the proper selection of father figures will be of special value. Dershowitz underscores that for him it was Jan Karski, a Polish national hero who informed the world about the Holocaust and and who, as a delegate of the Polish Government in London, appealed for help for the Polish Jews.
The second article in the “Res Gestae” section is the third installment of the Lexicon of Jurists and Economists, this time dedicated to the figure of Stanisław Śliwiński (1887-1959), the criminal law scholar, professor and judge, who was one of the greatest experts on criminal procedure, an unrivaled law commentator, a codifier, and a valued teacher of many generations of lawyers and scholars.
The “Miscellanea” section contains a report on the celebration of the 10th anniversary of the Allerhand Institute and the course of the two flagship congresses of the Allerhand Institute – the 6th Congress of Financial Markets Regulation FinReg 2019 and the 11th Congress of Bankruptcy and Restructuring Law INSO 2019, as well as a note on the Polish autobiography of Rafał Lemkin which was published in December 2018, and Coverage of the solemn benefit performance in honour of attorney Jan Ciećwierz, which took place at the headquarters of the Bar Association in Warsaw on June 9, 2019.
The issue closes with feuilletons. In one of them published in the “Panopticum” section, attorney Ewa Stawicka introduces the figure of Franciszek Nowodworski, a legendary Warsaw lawyer, and after 1917 a judge and the first President of the Supreme Court, also mentioning the family threads. After all, Franciszek’s son was Leon Nowodworski – an equally legendary Dean of the Bar Council in Warsaw, and a social activist. In the new "Separatum" section, Olga Stebelska presents political views of Walery Sławek and his idealistic vision of the state system based on a no-party democracy and a broad self-government.
The last page of the cover contains graphics based on the painting by Hans von Aacher (1552-1615) entitled Allegorie des Sieges der Gerechtigkeit (1598). According to a copperplate from the turn of the 17th and 18th centuries, it was made in Augsburg by Georg Andreas Wolfgang Older (1631-1716). The description points out that Aacher’s composition is a hint for the authority, every authority, that should use virtues, guard the naked truth and not the truth dressed in robes of interpretation, for it transforms into greed, lust and lie, even if some interpreters claim that it is better, more beautiful and purer.
From this issue onwards, we are going to publish editorial notes in Polish and in English, while the articles – in one or the other language version, always accompanied by abstracts.
Arkadiusz Radwan, Adam Redzik, Wojciech Rogowski
This article is pulished in Polish and English