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Contributions from the 1st Genova-Slavic Seminar in Legal Theory

Clara non sunt interpretanda vs. omnia sunt interpretanda

A never-ending controversy in Polish legal theory?
Andrzej Grabowski
p. 67–97

Abstracts

The paper addresses a contemporary Polish debate on the limits and functions of juristic interpretation of law. After presenting the main theses and features of Jerzy Wróblewski’s clarificative theory of juristic interpretation and Maciej Zieliński’s derivational theory of juristic interpretation, the author critically discusses various arguments (epistemological, ethical, empirical, historical, and practical) used in the debate. Finally, a tentative solution of the controversy, based on the criticism of Zieliński’s conception of legal norm, is proposed. It is argued that his conception is utopian and not recommendable, due to unacceptable conceptual and practical consequences.

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Excerpt

In open access from December 2017.

Outline

1 Introduction
2 The clara non sunt interpretanda principle in Wróblewski’s clarificative theory of juristic interpretation
3 The omnia sunt interpretanda principle in Zieliński’s derivational theory of juristic interpretation
4 The Polish debate
4.1 Epistemological arguments
4.2 Ethical argumentation
4.3 Empirical arguments
4.4 The argument from Roman law and the “argument from architecture”
4.5 Pragmatic (praxeological) arguments
5 A tentative solution

First lines

1 Introduction

In the 1950s, a new theory of legal interpretation was created by Jerzy Wróblewski – the so-called clarificative (klaryfikacyjna) theory of juristic interpretation. This descriptive theory was based on the analysis of Polish legal practice, in particular on the methods and techniques of legal interpretation applied by judges of the Polish Supreme Court. From the 1950s until his early death in 1990, Wróblewski elaborated on his theory and proposed some minor changes. The clarificative theory of juristic interpretation has predominated Polish legal culture for a long time and is still frequently used by Polish lawyers.

The second most important Polish theory of legal interpretation was introduced by Maciej Zieliński in the 1970s. It is called the derivational (derywacyjna) theory of juristic interpretation. Zieliński’s normative theory is mainly based on the linguistic and logical analysis of the characteristic features of Polish legislative texts, and (additionally) on t...

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References

Bibliographical reference

Andrzej Grabowski, « Clara non sunt interpretanda vs. omnia sunt interpretanda », Revus, 27 | 2015, 67–97.

Electronic reference

Andrzej Grabowski, « Clara non sunt interpretanda vs. omnia sunt interpretanda », Revus [Online], 27 | 2015, Online since 10 December 2017, connection on 23 October 2017. URL : http://revus.revues.org/3326 ; DOI : 10.4000/revus.3326

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About the author

Andrzej Grabowski

Professor of law at Department of Legal Theory, Jagiellonian University, Kraków (Poland)

   Andrzej Grabowski
Department of Legal Theory
Jagiellonian University
Bracka 12/108
31-005 Kraków
Poland

E-mail: andrzej.grabowski@uj.edu.pl

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Copyright

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