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

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.