Semantic aspects of research on the application of private law in the public sector within the legal culture of Continental Europe (with particular emphasis on Polish experience)

Author:Rafal Szczepaniak
Position:Faculty of Law and Administration, Adam Mickiewicz University, Poznan, Poland
Pages:324-356
SUMMARY

As you know, the language level is one of the main research areas of jurisprudence. The author puts forward the thesis that the adopted language apparatus has a significant influence on the research results in legal sciences. This is particularly evident in the analysis of the application of private law to the public sector. The article indicates the semantic problems faced by the author... (see full summary)

 
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STUDIES AND COMMENTS
Semantic aspects of research on the application of private law
in the public sector within the legal culture of Continental Europe
(with particular emphasis on Polish experience)1
Professor Rafał SZCZEPANIAK2
Abstract
As you know, the language level is one of the main research areas of
jurisprudence. The author puts forward the thesis that the adopted language apparatus has
a significant influence on the research results in legal sciences. This is particularly evident
in the analysis of the application of private law to the public sector. The article indicates
the semantic problems faced by the author analyzing the application of private law in the
public sector. The source of these problems is the adjective "public" that appears in many
terms. In addition, there are problems of comparative nature. There is a phenomenon of
non-translation of terms from individual languages. Other problems consist in the fact that
the use of certain concepts is associated with the adoption of certain initial assumptions.
Not always, the authors who write about the application of private law in the public sector
are aware of this. An example of such a situation is the concept of "Fiskus".
Keywords: semantic areas of jurisprudence, the application of private law in the
public sector, public law contract, division into public law and private law.
JEL Classification: K15, K23, K33
1. Introduction
The catalog of forms of action used by the administration is wide. They
also include forms commonly associated with civil law.3 An important role in the
mechanism of regulation of public relations under assignation is played by the
institutional sources (forms) of contract law, i.e. laws and other regulations4. As a
1 This text was created as a result of the research project no. 2016/23/B/HS5/03774 financed by the
National Science Center, Poland.
2 Rafał Szczepaniak - Faculty of Law and Administration, Adam Mickiewicz University, Poznań,
Poland, radcaprawny@ rafalszczepaniak.home.pl.
3 The Polish approach regarding the catalog o f forms of administration is generally ver y similar to the
German one; Polish law science has always been influenced by the science of law of the German-
speaking countries (including Austria); similarly to the German science, the Polish science of
administrative law is characterized by careful and precise enumeration of the forms included in this
catalog; this is what makes the Polish and German approach different from those of some other
European countries, which are characterized by a greater emphasis on pragmatism and less on the
creation of an exhaustive list of forms.
4 See I. Kalaur, N. Fedorchenko, Normative and individual regulator in the mechanism of regulation
of legal relations under transfer of property in use, „Transformations in Business & Economics”,
Volume 8, Issue 2, June 2018 Juridical Tribune 325
consequence, the subject of the research conducted by theoreticians of law is also
the application of private law in the public sector. Therefore, there are a number of
methodological problems of semantic nature. Although several areas can be
distinguished in the methodology of law theory5, yet the linguistic or logical-
linguistic plane still plays a leading role. Law itself is considered as a language
system.6
As argued by the outstanding Polish methodologist K. Ajdukiewicz, in
empirical sciences, which in most classifications comprise legal sciences,7
cognition is a "derivative of accepted linguistic cognitive tools", which in
consequence leads to the conclusion that cognition in its essence is of conventional
character.8 According to K. Ajdukiewicz, "all the judgments that we accept and
which form our entire picture of the world are not yet clearly determined by the
data of the experience, but depend on the choice of conceptual apparatus with the
help of which we copy the data of the experience."9 Consequently, if we change the
conceptual apparatus, "we can refrain from recognizing these judgments despite the
presence of the same experience data."10 The views of K. Ajdukiewicz have for
many years influenced the work of Polish legal scientists. In particular, there is a
consensus around another well-known statement of K. Ajdukiewicz claiming that
one of the tendencies in the development of science is the constant striving to
Vol. 17, No 1 (43), 2018, p. 41. The law on any public relations cannot be implemented without the
mechanism of their regulation. The mechanism of legal regulation has fundamental significance for
the civil regulation of contractual relations because it provides a systematic approach to the analysis
of legal regimentation. This category allows identifying all legal means, other objects (phenomena)
involved in the legal regulation of contractual relations, and to consider them in conjunction with
each other as the only legal mechanism (I. Kalaur, N. Fedorchenko, op. cit., p. 40).
5 See K. Opałek, J. Wróblewski, Law: Methodology - Philosophy - Prawo. Metodologia, filozofia,
teoria prawa, Warsaw 1991, p. 55 and n., pp. 97 and n., pp. 149 and n. J. Łakomy, Pojęcie
integracji zewnętrznej nauk prawnych, Wrocławskie Studia Erazmiańskie. Z eszyty Studenckie.
Studia Erasmiana Wratislaviensia , Wrocław 2009, p. 52 and n.
6 See M. Dąbrowska-Kardas, Analiza dyrektywalna przepisów części ogólnej Kodeksu karnego,
Warsaw 2012, p.15.
7 On the subject of legal disciplines as empirical sciences, see J. Woleński, Empiricism, Theory and
Speculation in the General Study of Law, [in] Archivum Iuridicum Cracoviense, 1970, vol. III,
p. 41; W. Patryas, Próba wyjaśnienia domniemań prawnych, Poznań 2011, p. 7 and n.; As M.
Dąbrowska-Kardas points out, "in the legal considerations, the basic methodological tool still
consists in logical-linguistic methods. Most probably, this is due to the fact that the logical-
linguistic platform brings together research on the law as a language system as well as linguistic
aspects of legal practice. Thus, it covers such issues as the meaning of linguistic expressions, the
methodological characteristics of jurisprudence, the justification of decisions in law enforcement
processes, the general features of legal systems, and the structure of a legal norm." See M.
Dąbrowska-Kardas, Analiza dyrektywalna …, p.15.
8 K. Ajdukiewicz, Obraz świata i aparatura pojęciowa, [in] Język i pozna nie, Warsaw, vol. I, 1985,
p. 175; see also I. Zachariasz, Prawo w ujęciu strukturalnym, Studium o dychotomicznym podziale
prawa na prawo publiczne i prawo prywatne, Warsaw 2016, p. 29.
9 See K. Ajdukiewicz, Obraz…, p. 175.
10 See K. Ajdukiewicz, Obraz, p. 181. K. Ajdukiewicz's cognitive conventionalism corresponds to
the concept of cognition, created by the German philosopher H. Vaihinger. This philosopher wrote
about the conventional shaping of the world image (Das menschliche Vorstellungsgebilde der
Welt). See H. Vaihinger, Die Philosophie des "als ob", Berlin, 1911, p. 14.
326 Volume 7, Issue 2, June 2018 Juridical Tribune
improve the conceptual apparatus. This tendency is manifested in the transition
from languages in which some problems are essentially undecidable, to languages
in which such problems are becoming increasingly rare. An example of this
tendency is the introduction of semantic conventions, including definitions.
Consequently, it is a truism to say that all scientific research must be
accompanied by the reflection of the researcher over the language he uses.
Otherwise, his research lacks methodological order. In his analyses the researcher
should, among other things, take into account the fact that the participants of
certain phenomena under investigation, as well as people who scientifically
describe a certain image of reality, do not always apply exactly the same semantic
rules, despite the use of equally sounding concepts. Without realizing this truth,
one may draw wrong conclusions from the conducted research and the observation
one makes may be distorted.
Thus my thesis is that the role of the language is particularly evident in the
research into the application of private law in the public sector.
2. Classification of languages within the field in question
In the legal theory of the countries of Continental Europe, we distinguish
the language of legal acts (normative acts - le langage légal) and the language of
legal discourse (le langage juridique),11 i.e. the language by means of which the
law is spoken about (avec lesquels on parle du droit).12 Thus, the language of legal
discourse is a second degree language, which is a kind of metalanguage in relation
to the language of normative acts. The language of legal discourse is not a
homogeneous language and several levels can be distinguished in it. The first of
them is the language used by courts and public authorities (mainly administrative
bodies) applying the law (le langage dans lequel on formule les décisions relevant
de l'application du droit).The second level is the scientific legal language
(theoretical legal language, the language of legal philosophy) and possibly the
language of the legal doctrine.13 The third level is the common legal language (le
langage juridique commun), which is the language of the remaining kinds of
discourse devoted to law. This third language is used by specialists, such as
lawyers in conversations they have with one another about law, as well as non-
specialists who make statements and opinions about law.
11 B. Wróblewski, a Polish law theoretician, conducted the most developed classification. See B.
Wróblewski, Język prawny i prawniczy, Kraków 1948. On this subject, W. Voisé, Review of
Bronisław Wróblewski's book " Język prawny i prawniczy ", [in] Ruch Filozoficzny 1948, volume
XVI, No. 3-4, p. 1 and n. This distinction is less important in the common law system. T. Gizbert-
Studnicki, Język prawny a język prawniczy, [in] Zeszyty Naukowe UJ, Prace Prawnicze 55, 1972.
J. Wróblewski, Les langages juridiques: une typologie, [in] Droit et société, 1988, No. 8, pp.13-27.
12 J. Wróblewski, Les langages…, pp. 13-27.
13 On the subject of dogmatics as the exegesis of the text of a legal act, which cannot be equated with
the theory of law, nor can it be given the attribute of science, see E. Bernatzik, Rechtsprechung
und materielle Rechtskraft, Verwaltungsrechtliche Studien, Wien 1986, p. IV.

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