Studia nad Autorytaryzmem i Totalitaryzmem

Refleksje Hannah Arendt o „banalności zła” w reportażu „Eichmann w Jerozolimie”

2024-08-03T11:55:55+02:00

This article presents an analysis of the attitudes and contextualizes the conduct of Adolf Eichmann—the German Obersturmbannführer, executor of the Final Solution to the Jewish Question, whose trial, held in Jerusalem in 1961, became the basis for the book Eichmann in Jerusalem, written by the German philosopher Hannah Arendt. This study included a phrase concerning Eichmann’s behavior—the “banality of evil,” which, like the book itself, caused and constantly provokes numerous controversies, not only of a philosophical and existential nature, but also because of the way it is understood. The present article is an attempt to look at this issue from many angles, as well as to point out the avenues of criticism of the perception of A. Eichmann himself, whom Hannah Arendt describes as a cog in the German extermination machine. This perspective of the researcher, repeatedly questioned, has continued to provoke reflection for several decades. The question arises as to whether it is possible for a man who contributed to the extermination of more than 9 million Jews to be able to justify his acts only by the orders of his superiors he followed.

Faszyzm w ujęciu Antoniego Derynga

2024-12-30T16:55:02+01:00

A heated discussion regarding Italian fascism and German national socialism is still ongoing. Views of columnists and politicians voiced in the period of creation of these ideologies are often studied in this context. On the other hand, the views of lawyers on the matter at hand are references considerably less, even though those presented by constitutionalists and experts in international law are often of considerable interest. This article was devoted to author and lawyer of undisputed renown, Professor Antoni Deryng, whose works significantly contributed to the study of international and constitutional law, and in particular to the emerging Italian fascism. The article offers a brief characterization of Antoni Deryng and his scholarly achievements as well as an analysis of the diagnosis of fascism that he presented in his work “Faszyzm a ustrój Włoch współczesnych” [Fascism and the political system contemporary Italy] published in 1937. The sources of this study include archival material obtained during study visits in the Archive of The John Paul II Catholic University of Lublin. This work also relies on scholarly texts, including those authored by Prof. Antoni Deryng. In this context, a historical and retrospective approach that takes into account the issues discussed in the contemporary perspective is applied.

Wprowadzenie do tekstów powstałych w ramach Seminarium „Studiów nad Autorytaryzmem i Totalitaryzmem”

2024-12-30T17:03:09+01:00

An Introduction to the Papers authored as a part of the seminar of “Studies on Authoritarianism and Totalitarianism”

2024-12-30T17:08:07+01:00

Znamiona przestępstw z art. 256 § 1–2 k.k.

2024-12-30T17:11:50+01:00

The issue of the scope of criminalization under Article 256 of the Polish Penal Code is important in the age of a rise in popularity of totalitarian ideologies. Currently, this proviso contains three basic types of prohibited acts, which themselves are multi-variate and complex. The article offers an analysis of selected features, primarily new ones, introduced by the amendment of July 7, 2022, or those that have so far received less attention. These include subjective premises. All types contain feature pertaining to motivation, which means that, as a rule, they can only be committed intentionally with direct or direct intention. The provision of Article 256 PCC still raises some controversy and will probably be subject to further amendments by the legislator.

Penalizacja propagowania ideologii. Uwagi na marginesie nowelizacji art. 256 k.k.

2024-12-30T17:17:33+01:00

The article delves into the interpretive and practical challenges arising from the incorporation of the term “ideology” within the Polish Penal Code, along with the introduction of a novel criminal offense pertaining to the dissemination of Nazi, communist, fascist ideologies, or ideologies that incite the use of violence for the purpose of influencing political or social life. Primarily, it will elucidate the complexities that may confront criminal courts and the involved parties when confronted with the necessity of applying the amended legal provisions. Subsequently, an effort will be undertaken to provide a structured exposition of the historical development of political and legal doctrines. This historical context may serve to ameliorate some of the uncertainties, or potentially serve as a persuasive element within legal proceedings. The article adopts a multifaceted approach, encompassing a dogmatic analysis, a linguistic examination, and a comparative legal methodology. The analysis culminates in the inference that the aforementioned amendment fails to introduce lucid and precisely defined concepts into the Penal Code, thereby contravening the fundamental legal principle of definiteness within criminal law provisions

O zasadności zmian zakresu penalizacji przestępstwa propagowania faszyzmu i totalitaryzmu

2024-12-30T17:22:12+01:00

In the rich literature on the subject, the discussion about criminal liability for the offence under Article 256 of the Penal Code concerning the propagation of fascism and totalitarianism remains relevant, especially when one observes an increased level of activity and threat from radical nationalist movements, or the emergence of authoritarian, and even totalitarian, methods of exercising power. The mentioned issue engages significant attention from scholars and practitioners in the judicial field. The frequent contestation of the regulation specified in Article 256 of the Penal Code is associated with difficulties in defining the scope of criminalization, as well as the correct interpretation of the elements of the offence. Similarly, the legislative efforts undertaken by the legislator as of October 1, 2023, aimed at clarifying the elements illustrating the prohibited act did not achieve the desired result; instead, they garnered criticism and deepened the previously existing ambiguities. In the outlined situation, the authors of the present article join the ongoing discussion about the normative approach to the offence under Article 256 of the Penal Code and seek an optimal solution in this regard. This work aims to assess the amended regulation, verify interpretational doubts, and attempts to formulate de lege ferenda proposals without reproducing the shortcomings of the approach that is currently prevalent. The considerations based on the formal-dogmatic and theoretical-legal methods are accompanied by references to earlier solutions regarding this type of offence. These references highlight the path of changes marked by numerous legal and practical problems. The authors point out flaws in previous solutions and critically address situations where responsibility for the prohibited act is determined based on judicial interpretation, seeking out issues that the legislator did not explicitly include. They also point out the need for legislative intervention in the currently amended approach to the offence, expanding the scope of penalization and relying on sufficiently vague elements, allowing for varied interpretations. The authors contemplate the conclusions that can be drawn from past experiences, including the use of ambiguous elements that require scholarly analysis and the dangers associated with criminalizing not only the promotion of a totalitarian system but also the extreme doctrines and ideologies linked to it. In conclusion, the authors approach rational proposals with understanding, recognizing that transforming the content of Article 256 of the Penal Code and proposing a new form of the offence will not be without normative shortcomings. On the other hand, opting for a radically different solution, such as abandoning criminalization, is currently not justified and accepted.

O potrzebie utrzymania przepisu art. 256 § 3 k.k.

2024-12-30T17:29:29+01:00

This study concerns the issue of exclusion of criminal responsibility for an offence under Article 256 § 2 of the Penal Code. The article analyses the prerequisites for the application of the justification normalized in Article 256 § 3 of the Penal Code. Critical assessments of this provision in the criminal law literature and calls for its repeal are also presented. The main reservation is related to the fact that it is not possible to commit an offence under Article 256 § 2 of the Penal Code within the framework of artistic, educational, collecting or scientific activities, because the perpetrator in such a case does not act with the aim of disseminating prohibited content, and above all does not propagate totalitarian systems. In this situation, the provision of Article 256 § 3 of the Penal Code appears to be unnecessary. However, the author of this study has attempted to demonstrate if an offence can be construed as a component of such types of activity, it falls under Article 256 § 2 of the Penal Code. This leads to the conclusion that the regulation contained in Article 256 § 3 of the Penal Code is needed in the Polish legal order.

Kilka uwag o problemach dowodowych w procesach o czyny z art. 256 k.k.

2024-12-30T17:37:21+01:00

The way in which a given conduct is normatively framed and the extent to which it is criminalized has a direct impact on the possibility of initiating and conducting criminal proceedings for the offence. The analysis of new types of offences related to the propagation of the Nazi and communist system and the punishment of the public propagation of Nazi, communist and fascist ideology, as well as the public propagation of an ideology inciting the use of violence with the aim of influencing political or social life into Article 256 of the Penal Code leads to the conclusion that, contrary to the intentions of the legislator, the amendment of the provision in question will not facilitate the prosecution of the perpetrators of such acts. What is more, the fact that a provision of a criminal law with vaguely formulated elements remains in legal circulation directly affects the possibility of establishing a factual basis in the case for the initiation of criminal proceedings, the bringing of charges, the prosecution and trial of the perpetrator of such acts.

Odpowiedzialność karna za planowanie, przygotowanie, wszczęcie lub prowadzenie wojny agresywnej oraz publiczne nawoływania do jej rozpętania według kodeksu karnego Federacji Rosyjskiej

2024-06-20T09:25:29+02:00

The paper presents the scope of the legislation governing the crime of planning, preparing, starting, or waging an aggressive war (Article 353) and public incitement to start it (Article 354) contained in the 1996 Criminal Code of the Russian Federation. These crimes are discussed according to the statutory characteristics of the acts. As part of the study of this issue, a thesis was formulated, which is a conjecture that criminal liability for the crimes in question is regulated in the 1996 Russian Criminal Code in a casuistic and strict manner, but one that takes international solutions into account. The research methods used in the study were a dogmatic analysis of the 1996 Criminal Code of the Russian Federation and a literature analysis of pertaining to the crimes in question. During the analysis of the two crimes referred to in the title, interpretation problems and shortcomings of the existing solutions (understanding of basic concepts, casuistry of the legislation, and severity of the sanctions) were pointed out. The considerations confirmed the adopted thesis.

Problem z podmiotowością prawnomiędzynarodową Palestyny

2024-08-05T14:02:56+02:00

The paper concerns the legal status of Palestine as a subject of international law. To some extent Palestine is the edge case of statehood in international law. In a sense, we are witnessing the forging of the international status of Palestine in real-time. For some scholars Palestine is a state, while for others it is not. It is quite a common trope in discussions concerning the status of Palestine to underline how many states have recognized Palestine and established diplomatic relations with it. The problem is that while principle of tertium non datur seems to be applicable in case of recognition of Palestine, the reality is more complex. Some states indeed recognized Palestine, but not as a state but as a non-state subject of international law. A closer examination of the diplomatic relations of Palestine reveals that they are more akin ones maintained with a non-state subject the relations than with a state. By way of analogy, the international status of Palestine seems to be similar to one of Holy See—that is the case of Palestine’s “non-member state” status of in the UN, which is analogous to the status of Holy See. At the same time, Palestine is a state from point of view of the ICC, a least in context of the Rome Statute. The jurisdiction of the ICC depends on notion of state territory, after all. But effective control of territory by Palestine is in doubt, thus the in its case the ICC applied the construct of “occupied territory.” Thus Palestine seems to be a state whose territory is being occupied by Israel. That is also confirmed by the ICJ. As such, Palestine is not just a state—it is an occupied state, a state in statu nascendi or a non-state subject of international law. The issue of which of these descriptions is the most appropriate notwithstanding, they all share one common denominator: the international subjectivity of Palestine is detached from effective control of territory. While the very notion of state in international law sits somewhere between Kelsenian “is” and “ought,” the latter is significantly more pertinent for Palestine. Part of the international community is eager to treat Palestine as state but that decision is not an abstract and general one. Treating Palestine as a state is motivated by a single goal—granting it particular rights and privileges reserved for states. The non-member state status of Palestine in the UN is not based on the general recognition of Palestinian statehood—its participation in works of the UN is at stake. In that context Palestine’s membership in UNESCO is something of a breakthrough. Since its finalization Palestine become a state according to so-called Vienna Formula—thus Palestine acceded to key UN conventions. And yet Holy See is also party to some of them. Palestine’s status within of international community illustrates the issues caused by the decentralized recognition of states quite succinctly. In the case of Poland, recognition of Palestine is an outcome of decision of authoritarian government of Polish People’s Republic. That decision was the effect of relations between Poland and Israel and dependence of Poland upon the totalitarian Soviet Union. However that act of recognition of Palestine was not a recognition of its statehood.

Autorytarna zmiana polityczna a wymiar sprawiedliwości

2024-12-30T18:01:01+01:00

The study concerns the impact of authoritarian political changes on the situation of the justice system in various states. The introduction presents issues related to the separation of powers, from Montesquieu’s theory to attempts to build state systems based on these values. The judiciary plays a key part in that regard, because on the one hand it is supposed to be independent, but on the other it must apply the law adopted by the legislative power, often while being subordinated to the executive branch. Such a scenario occurred several times when changes in the justice system were introduced after a group, even one with considerable public support, took power. It concluded with the system’s complete annihilation, as happened during the Khmer Rouge revolution, or its violent subordination in Argentina and Peru. Even when the justice system lent its support to the introduced reforms, as was the case in the Third Reich or in Chile, the executive power still subjects the legal system to significant pressure and ultimately strives to take control over it. The situation usually corrects its course as a result of a change in the executive and legislative power or as a result of internal pressure or international institutions, and often even armed intervention by third States.

Nacjonalistyczna krytyka demokracji na przykładzie Narodowego Odrodzenia Polski

2024-12-30T18:06:26+01:00

In the Polish political arena, the National Rebirth of Poland (Narodowe Odrodzenie Polski — NOP) is classified as a national radical group. Its ideological and political identification, referring to the inter-war national tradition, at the level of negative content is focused on contesting the communist regime, but also the order of liberal democracy sanctioned after the ‘round table agreement’ in Poland. In opposition to the above-mentioned and comparably bluntly evaluated systemic solutions, the organisation promotes a peculiar concept of nationalism (‘New State’), which is supposed to constitute the only legitimate systemic alternative as a guarantor of a properly understood Polish national identity and the raison d’état of the state. From this idealistic perspective, using a verbal and sometimes socially unacceptable forceful method of action, NOP seeks to prove the weakness of the democratic system prevailing in Poland. Particularly, at the level of contemporary axiological as well as institutional-legal processes, it perceives a threat to important assumptions of their agenda: traditional national and religious values, subjectivity of the Polish citizen and sovereignty of the national state (mainly in relations to unacceptable EU and NATO structures). In order to achieve the postulated ideological goals, it does not assume (at least at the level of its rhetoric so far) compromises with the prevailing systemic solutions and cooperation with the current political establishment.

Udział w wystąpieniach wolnościowych jako przesłanka uznania za osobę represjonowaną z powodów politycznych w orzecznictwie sądów administracyjnych

2024-12-30T18:13:26+01:00

The subject of the analysis is the regulations of the Act of 20 March 2015 on anti-communist opposition activists and persons repressed for political reasons, which relate to the possibility for an individual to obtain the status of a person repressed for political reasons due to his or her participation in the period from 1 January 1956 to 31 July 1990 in opposition activities for the regaining of Poland’s independence and sovereignty or respect for political human rights in Poland. The main method of research was the empirical research method, which consisted in the analysis of the jurisprudence of the voivodship administrative courts and the Supreme Administrative Court in Poland, and its aim was to discern how these courts interpreted the legal regulations under analysis. In the initial period of their application, the divergences in the jurisprudence concerned the possibility of recognising record materials in the resources of the Institute of National Remembrance as documents created with the participation of the applicant within the meaning of Article 4 of the Act. Currently, this issue is not in doubt, which is the result of a normative change. An issue that is not uniformly understood in the jurisprudence of the courts is the distribution of the burden of proof in the proceedings conducted by the Head of the Office for War Veterans and Victims of Oppression in which a decision is issued confirming the status of a repressed person.

Rola palenia ksiąg w ograniczaniu wolności słowa w czasach Nerona i Domicjana

2024-12-30T18:17:19+01:00

The dawn of the new regime introduced a step-by-step limitation of freedom of speech, which brought about the fading of republican leanings in Roman high society. During the reign of Augustus and Tiberius, famous cases of Titus Labienus and Cassius Severus as well as Mamercus Scaurus and Cremutius Cordus became symbols of curbing freedom of speech by means of book burning. A gradual deepening of control over written works was to be expected in due course, as emperors took further steps on a path to an increasingly authoritarian regime. Therefore, it would be understandable if burning the writings of dissident authors became a common measure during the of ‘reigns of terror’ under Nero and Domitian. Surprisingly, only a scant few mentions of such events from that time survived. The article deals with the incidents od book-burning in the times of two authoritarian rulers: Nero and Domitian, namely those of Fabricius Veiento, Herennius Senecio and Arulenus Rusticus. They analysed in light of ancient sources and the contemporary state of knowledge, as well as the context of the role they played in a complex system of curbing of what was left of republican freedom of speech.

Zapomniana unia: reformy ustrojowoprawne w Szkocji w dobie angielskiej okupacji wojskowej (1651–1660)

2024-08-06T13:51:45+02:00

The subject of this study is the analysis of the political and legal changes that were introduced by the occupying authorities of the English Republic after the defeat of royalist troops at the Battle of Dunbar on September 3, 1650. The initial period of political change amounted to the suspension of the Scottish Parliament and the judiciary deriving its mandate from royal authority. This period was associated with further military action, partisan battles and uprisings which lead predominantly to military administration of occupying forces under the command of general George Monck. The second period, which started in 1655, saw the gradual formation of bodies of a central administration—in the case of Scotland, this was the so-called Scottish Commission. The nature of this body’s subordination to its English counterpart, the fact that “Scottish” seats in the English Parliament were held mostly by Englishmen and the lack of knowledge of Scottish law among the English judges delegated to decide cases in Scotland meant that the union lacked even the appearance of equality between the two entities. Although the political experiment of the English Revolutionary period did not generally bring permanent reform, it was the first fitting for the foundation of the real union, which occurred half a century later in different form: monarchic rather than proposed republican one.

Procedury awaryjne przewidziane w Konstytucji kwietniowej z 1935 roku w sytuacji nieuchwalenia budżetu państwa

2024-08-06T13:23:47+02:00

The subject of this article is the analysis of emergency procedures in case of failure to adopt the state budget, as regulated in the Polish April Constitution of 1935. However, the aim of this study is to indicate that the legislator in the April Constitution secured the Polish state against the phenomenon of a budget vacuum — that is, the lack of adoption of the budget and, consequently, the lack of grounds for managing the state’s financial economy. This thesis is confirmed based on the dogmatic-legal and historical-legal methods. Firstly, the budgetary procedure is analyzed. Secondly, the procedure of prorogation of the budget act is analyzed. The study will also compare the solutions adopted in the April Constitution and the currently applicable Constitution of the Republic of Poland of 1997.

Powstanie i upadek junty wojskowej czarnych pułkowników w Grecji 1967–1974

2024-12-30T18:29:32+01:00

The purpose of this paper is to present the three phases that made up the seven-year rule of the military regime in Greece, known as the Black Colonels Junta. An attempt has been made to demonstrate the specifics of the regime’s actions undertaken within each phase. Particular attention has been given to phase two, in which an attempt has been made to show the mechanisms of the oppressive actions taken against Greek society.

Zakłady opieki zdrowotnej w czasach PRL (dygresja do monografii)

2023-11-15T20:27:30+01:00

After the Second World War, at the time of totalitarian government in Poland, the health care of Polish people was taken care of by the socialist authorities, obviously in a planned and centralized manner. However, the need of citizens for medical assistance was outside the plan. A network of social health care institutions and the Minster of Health was entrusted with most of the duties from this field of the socialist economic plan. Standardisation of employment and payment was introduced. The aim of this article is to present the rules of health care system functioning in a totalitarian country under the control of the society and to examine if the capacity of the new system was sufficient enough to meet the needs of the society and whether social resources were rationally allocated, according to the system’s assumptions. The article complements the research that was published in the monograph by Anna Ćwiąkała-Małys Anna, Małgorzata Durbajło-Mrowiec, Paweł Łagowski; Diagnostyka efektywności wykorzystania zasobów lecznictwa szpitalnego. The research was conducted with the usage of qualitative, comparative and praxeological method.

Zawieranie i wykonywanie umów przez jednostki gospodarki uspołecznionej na przykładzie umowy dostawy

2024-08-02T12:37:26+02:00

Socialized economy units were special entities in the period of the Polish People’s Republic, and the regulations regarding them were in line with the authoritarian rule of that time. As civil law entities, socialized economy units have been subject to the provisions of the Civil Code since its entry into force in January 1965. However, in situations where it was required by “special trading needs”, the competent state administration bodies were entitled to regulate relations between socialized economy units in a different way. The interference of administrative bodies into civil law relations is connected with the implementation of the general objective of protecting the national interest. The aim of the article is to analyse the provisions regarding contractual relations between socialized economy units on the example of a supply agreement. It was one of two contracts in the new Civil Code (along with the construction works contract) to which only socialized economy units could be parties. The analysis in the specified historical period allowed for drawing conclusions regarding the mechanism of functioning of civil law institutions in the Polish People’s Republic in a situation where the parties to the contract were specific entities of the national economy.

Zmiany położenia prawnego handlu prywatnego w latach 1946–1947. Przechodzenie od modelu trójsektorowego do upaństwowienia

2024-08-06T14:03:53+02:00

The article addresses the dynamic changes in the legal situation of private trade in the People’s Poland period between 1946 and 1947. In the indicated period, there was a departure from the previously proclaimed three-sector model of organization of commercial activity. This model involved the co-existence of state, cooperative and private trade. In 1947, as part of the so-called “battle for trade”, a series of regulations was issued to rapidly reduce the extent of private trade. The study focuses on the commercial enterprise permits introduced at that time as an instrument for liquidating the private commercial sector. The obligation to obtain such permits concerned not only new commercial ventures, but also limited the right to continue previously conducted activities. The actions of the authorities of the People’s Poland presented in the article led to the disappearance of the private commercial sector, thus opening the way to the domination of state trade.

„Specjalna zdolność prawna osób prawnych” — relikt PRL czy koncept prawny warty uwagi?

2024-12-30T18:50:32+01:00

The study takes a closer look at the concept of the so-called “special capacity of legal persons”, indicating its development (evolution), the views justifying its introduction, the sources stemming from the concept of capitalist states, including the ultra vires doctrine inherent in the common law system. The consequences of the application of this concept and its practical significance, as well as its reception by representatives of the doctrine, are also analysed. The analysis leads to the conclusion that the concept was of a strictly political and ideological nature, and for many authors it provided fodder and a pretext for reflections on the nature of the socialist legal order and the distinctiveness and superiority of the doctrine of socialist economy. Thus, the old capitalist concept, resurrected and modified by the communist state, became a tool of blunt propaganda of the totalitarian state that the People’s Republic of Poland was.

Amnestia w polskim prawie karnym

2024-06-24T13:17:05+02:00

Amnesty is a collective pardon law whereby state authorities remit or reduce the punishment of certain groups of offenders. In the recent history of Polish criminal law, amnesties were also an instrument used against actual or alleged political opponents, which was part of the formula of an authoritarian or totalitarian state. The number of amnesties in the interwar and postwar periods in Poland was similar, but their motives were different. Amnesty was announced for the last time in 1989, and it is assessed differently by representatives of legal science. The aim of the article is to refer to these views, and above all to catalogue individual amnesty acts and to assess amnesty as an instrument of criminal law.

Prawo jako narzędzie limitowania swobód obywatelskich w czasach Polskiej Rzeczypospolitej Ludowej. Cenzura jako instrument ograniczania wolności wyrażania poglądów

2024-06-20T10:43:21+02:00

In democratic states of law, an instrumental understanding of the law allows it to be treated as a tool for achieving the goals set by the legislator. The goal, which the legislator intends to achieve by means of lawmaking, is socially useful and accepted by the society. The notion of instrumentalisation of law acquired an unequivocally pejorative connotation after the experiences of the communist period in Poland, when the phenomenon of ideologisation of law prevailed. The issuing of the Decree-Law of 5 July 1946 on the establishment of the Main Office of Press, Publication and Audience Control, the provisions of which infringed the constitutional freedom of speech and expression, was a blatant manifestation of this. In turn, the introduction of preventive censorship itself served the objectives of the ruling Communist Party, which (in addition to strengthening the party’s monopoly and building an authoritarian regime) were to prevent the dissemination of content inconvenient to the authorities.

Dyrektor przedsiębiorstwa państwowego w okresie rządów autorytarnych

2024-08-01T19:40:06+02:00

In the paper the author demonstrates that the legally defined role of the state enterprise director reflected the highly politicized nature of this position within the context of authoritarian regimes from 1944 to 1989. This was particularly evident in the significant role that state enterprise directors played in shaping state policy. Authoritarianism manifested itself both on a microscale (in the internal relations between the enterprise director and employees) and on a macroscale (through the use of state enterprises managed by directors to exert broader influence on society). Consequently, the power of the state enterprise director was heavily conditioned by authoritarian governance systems, affecting the functioning of state enterprises and the politicization of economic development.