Books by Maciej Kłodawski
M. Kłodawski (ed.), Szkice z teorii tworzenia prawa i techniki legislacyjnej, Warszawa 2018, 2018
Table of contents and foreword.
Table of contents & preface.
M. Kłodawski, A. Witorska, M. Lachowski (eds.), Legislacja czasu przemian, przemiany w legislacji. Księga jubileuszowa na XX-lecie Polskiego Towarzystwa Legislacji, Warszawa 2016
Table of contents and foreword.
Papers (in English) by Maciej Kłodawski
International Journal for the Semiotics of Law, 2020
The paper focuses on a specific type of referring legal provisions, in which the referring phrase... more The paper focuses on a specific type of referring legal provisions, in which the referring phrase contains a component that indicates the position of a certain fragment of the same text of a normative act by determining the position of that fragment in relation to the fragment in which the given referring phrase is located. Despite the fact that these referrals, called deictic, may be perceived as uncomplicated in structure and as functioning correctly in legal texts, many theoretical as well as practical problems arise during their drafting and legal interpretation. The article attempts to reveal, organize and name these problems basing on the conceptual grid formulated by Studnicki, Łachwa, Fall and Stabrawa as a universal, although not widely known outside Polish jurisprudence, tool for analysing and solving referring provisions as elements of various legal systems, especially continental ones. Texts of selected Polish Codes have been chosen as an illustrative material of deictic referrals which have been incorrectly formulated as leaving space for interpretative doubts in terms of place of indication (demonstratum) and place of reference (referent), which also causes a potential problem of the deferred ostension phenomenon noticed by Quine. The author argues that proper drafting of referring legal provisions with deictic indication requires that the legislator should have extensive pragmalinguistic knowledge and is an essential part of law-making oriented towards achieving comprehensibility of texts of normative acts, especially as important as Codes.
Kwartalnik "Trzeci Sektor", 47 (3/2019), 2019
This paper presents and discusses the selected features of a simple legal expert system developed... more This paper presents and discusses the selected features of a simple legal expert system developed with the purpose of providing legal information on the frequent legal problems of disabled persons in Poland. We focus on the structure of the legal expert system and its limits of application. The nursing benefit, granted for those providing personal care to disabled persons, has been selected in the paper as the illustrative domain.
Developing Rule-Based Expert System for People with Disabilities – The Case of Succession Law
This paper presents the features of a moderately simple legal expert system devoted to solving th... more This paper presents the features of a moderately simple legal expert system devoted to solving the most frequent legal problems of disabled persons in Poland. The authors focused on the structure of legal expert system and methodology used for the sake of its development. The succession law of Poland has been selected in the paper as the illustrative domain, because the modelling of the succession procedures delivers sufficient material to reveal the most important issues concerning project of the legal expert system.
Papers (in Polish) by Maciej Kłodawski
W. Federczyk, S. Peszkowski (red.), Doskonalenie i standaryzacja procesu legislacyjnego – dobre praktyki opracowane w ramach projektu LEGIS, Wydawnictwo KSAP, Warszawa 2019, ISBN 978-83-61713-14-2, s. 460-479, 2019
460 dr Maciej kŁODaWSkI adiunkt w Instytucie Nauk Prawnych, Uniwersytet Szczeciński wykładowca w ... more 460 dr Maciej kŁODaWSkI adiunkt w Instytucie Nauk Prawnych, Uniwersytet Szczeciński wykładowca w projekcie LEGIS OKreśLANie reLAcJi MiĘDZY prZepiSAMi prAWNYMi ZA pOMOcĄ ZWrOtU "Z ZAStrZeżeNieM" i ZWrOtÓW pODOBNYcH Z perSpeKtYWY teOrii i prAKtYKi tWoRZEnIa pRaWa Wprowadzenie W przeciwieństwie do innych technicznolegislacyjnych zwrotów występujących w tekstach
Self-Amendment of a Normative Act in Light of Temporal Boundaries of a Legislator’s Anticipation
... more Self-Amendment of a Normative Act in Light of Temporal Boundaries of a Legislator’s Anticipation
The scope of the paper is to distinguish a specific type of amendment to a statute in which the Polish legislator anticipates normative consequences of the enacted legislation. The case being the subject of the research is derived from the Act on Village Representatives' Fund enacted in 2014. The legislator anticipated that the newly created provisions of the aforementioned act will become inapplicable once a different statute (Act on Population Registration and Identity Cards enacted in 2010, but coming into force in 2015) will enter into force in the future. The legislator had anticipated the forthcoming inconsistency in the legal system caused by content of Article 3 of the Act on Village Representative's Fund and prevented that flaw by including in that act the amending provision (Article 8), which modified the Act on Population Registration and Identity Cards Statute from 2010 by adding to that act the amending provision (art. 68a) which has finally modified (in 2015) Article 3 of the Act on Village Representatives' Fund and has prevented inconsistency in the legal system. That kind of a legislative action is called indirect self-amendment. It eliminates in some situations (like the abovementioned one) necessity of enactment of an amending statute aimed only at correcting the mistake. The paper focuses on theoretical acceptability of the self-amendments in lawmaking process and contains considerations about their permissible (also in the light of Polish “Principles of Legislative Technique”) applications.
Good Legislative Practices as an Extralegal Source of Legislative Technique
The subject of the a... more Good Legislative Practices as an Extralegal Source of Legislative Technique
The subject of the article is a preliminary analysis of the notion of extralegal source of legislative technique and its potential usefulness within the description of an existing, though not always present in academic or practical legal discourse, dual catalog of sources of legislative techniques in Poland. Three types of extralegal sources of legislative technique are distinguished in the research. Two of tchem (formal but not legally binding agreements between legislative offices, and a unified template of formatting of legal acts’ projects) are mentioned and only briefly described. Crucial among extralegal sources of legislative technique are good legislative practices (recommendations for legislative drafters, published by the Government Legislation Centre). It is submitted (and also proved by illustrative material) that they are the most influential type of extralegal source of legislative technique during lawmaking process, as well as within the legal interpretation. The paper covers reflections on the problems encountered and the perceived problems of the duality of sources of legislative technique on the example of several good legislative practices – seen from the point of view of legislative drafter and from the perspective of interpreter of the legal text. It is proposed in the conclusion that the legislature, while observing an arising impact of extralegal sources of legislative technique, especially good legislative practices, should consider the change of the status quo and deeply revise the relation of good legislative practices to at least one legal source of legislative technique, i.e. Polish “Principles of Legislative Technique”.
“Regulations” in the Light of Introducing Episodic Provisions to the Polish Principles of Legislative Technique
This paper sheds light on a problem which arises in case of a violation of § 10 (“equivalent term... more This paper sheds light on a problem which arises in case of a violation of § 10 (“equivalent terms shall be denoted by the same terms and different terms shall not be denoted by the same terms”) of the Polish Principles of Legislative Technique (attached in Poland to the Ordinance of the Prime Minister of 20 June 2002). In the new version of those Principles, valid from 1 March 2016, the legislator uses the term “regulation” as a synonym of the term “statutory provision” in the introduced (for the first time) directives on how to formulate episodic provisions, though the previous meaning of “regulation” remains unchanged in the other directives of the Principles. In the paper, there are presented analyses of reasons of the legislator’s choice and comparisons to the previous version of Principles. The final considerations about the semantic issues concerning “regulation” lead to a proposition of a new application of that term in the legal theory.
Incorrect References to Particular and Separate Provisions
This paper contains a few analytical remarks pertaining to specific referring provisions created ... more This paper contains a few analytical remarks pertaining to specific referring provisions created through a clause “unless the law indicates otherwise” or a clause “except when provided otherwise”. In the study made, both types of references – to “particular provisions” or “separate provisions” – are considered incorrect. Characteristics of these referring clauses are presented in light of typologies and functions of references which are distinguished in the legal theory. Polish “Principles of Legislative Techniques” from 2002 which have a binding character and good legislative practices commonly accepted by Polish legislative drafters are also taken into consideration when emphasizing the problems of imprecise and non-normative references to particular or separate provisions. They also serve to as an example for potentially possible improvements. The lack of precision and the lack of normative content are the two main flaws of references being the topic of this essay. First defect may be eliminated by careful and consequent word selection in lawmaking, but the second is inherently embedded in this type of reference and thus cannot be corrected. As a result of the analysis, suggested solution is not to formulate references to “particular provisions” or “separate provisions” by using clause “unless the law indicates otherwise” or clause “except when provided otherwise” in any legal act. These references are insufficient in detail to enable their interpretation and application.
The subject of the paper is the notion of redundancy, which in the text of law may be perceived b... more The subject of the paper is the notion of redundancy, which in the text of law may be perceived both from systemic point of view and linguistic perspective. Within systemic standpoint, the paper focuses on superfluum issue, which occurs when one provision is repeated by another legal provision (full superfluum) and when part of one provision becomes „new” provision (or its part) in the same or another legal text (partial superfluum). These manifestations of systemic redundancy are not always results of legislative mistakes (as might be noticed during analysis of selected examples of superfluum derived from Polish legal texts), but the evaluation of each case of superfluum depends on criterions, which in Polish legal system are incomplete and imprecise.In the second part, the paper discusses one kind of linguistic redundancy – semantic redundancy, which appears in pleonasms, tautologies and pleonastic analytisms. It is argued here, in contrary to majority of previous descriptions of semantic redundancy phenomenon presented in linguistics and legal theory, that some redundant expressions may be useful during interpretation of legal provisions, because in certain circumstances they may have pragmatic values. These values are: enhancing meaning, specifying meaning and explicating meaning. Furthermore, in some cases aforementioned pragmatic values may be reached by context-independent redundant expressions, what has been shown basing on examples from Polish legal texts.
Hipertekst a technika legislacyjna -o mozliwosci zmiany paradygmatu polskiego prawodawstwa 1.Wst?... more Hipertekst a technika legislacyjna -o mozliwosci zmiany paradygmatu polskiego prawodawstwa 1.Wst?p Wspotczesna nauka o stanowieniu prawa w Polsce uksztaltowata sie na gruncie pozytywizmu prawniczego. Jej zalozenia zebrane w paradygmacie prawodawczym', podzielonym na czesc normatywiicj (grupujacq potencjalne odpowiedzi na pytania co i dlaczfigo uznaje sit? za tresci normatywne) oraz czesc redakcyjnij (pozwala-^ I ustalic/jak i gdzie wyrazac wspomniane tresci), nie pozostawiajc} co do tego zadnych watpliwosci.
Artykuł dotyczy pojęcia "informacji prawnej" pojawiającego się w teoretycznoprawnych rozważaniach... more Artykuł dotyczy pojęcia "informacji prawnej" pojawiającego się w teoretycznoprawnych rozważaniach o stanowieniu i interpretacji prawa. W opracowaniu przedstawiono dwa podejścia badawcze (cybernetyczne i informatyczne), które pomimo pewnych trudności można owocnie wykorzystać do sformułowania definicji informacji prawnej uwzględniającej różnice między przepisami prawnymi, a normami prawnymi.
Przepis prawny jako komunikat.
Conference Presentations (in Polish) by Maciej Kłodawski
„Milczenie ustawodawcy” z perspektywy praktyki tworzenia prawa
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Books by Maciej Kłodawski
Papers (in English) by Maciej Kłodawski
Papers (in Polish) by Maciej Kłodawski
The scope of the paper is to distinguish a specific type of amendment to a statute in which the Polish legislator anticipates normative consequences of the enacted legislation. The case being the subject of the research is derived from the Act on Village Representatives' Fund enacted in 2014. The legislator anticipated that the newly created provisions of the aforementioned act will become inapplicable once a different statute (Act on Population Registration and Identity Cards enacted in 2010, but coming into force in 2015) will enter into force in the future. The legislator had anticipated the forthcoming inconsistency in the legal system caused by content of Article 3 of the Act on Village Representative's Fund and prevented that flaw by including in that act the amending provision (Article 8), which modified the Act on Population Registration and Identity Cards Statute from 2010 by adding to that act the amending provision (art. 68a) which has finally modified (in 2015) Article 3 of the Act on Village Representatives' Fund and has prevented inconsistency in the legal system. That kind of a legislative action is called indirect self-amendment. It eliminates in some situations (like the abovementioned one) necessity of enactment of an amending statute aimed only at correcting the mistake. The paper focuses on theoretical acceptability of the self-amendments in lawmaking process and contains considerations about their permissible (also in the light of Polish “Principles of Legislative Technique”) applications.
The subject of the article is a preliminary analysis of the notion of extralegal source of legislative technique and its potential usefulness within the description of an existing, though not always present in academic or practical legal discourse, dual catalog of sources of legislative techniques in Poland. Three types of extralegal sources of legislative technique are distinguished in the research. Two of tchem (formal but not legally binding agreements between legislative offices, and a unified template of formatting of legal acts’ projects) are mentioned and only briefly described. Crucial among extralegal sources of legislative technique are good legislative practices (recommendations for legislative drafters, published by the Government Legislation Centre). It is submitted (and also proved by illustrative material) that they are the most influential type of extralegal source of legislative technique during lawmaking process, as well as within the legal interpretation. The paper covers reflections on the problems encountered and the perceived problems of the duality of sources of legislative technique on the example of several good legislative practices – seen from the point of view of legislative drafter and from the perspective of interpreter of the legal text. It is proposed in the conclusion that the legislature, while observing an arising impact of extralegal sources of legislative technique, especially good legislative practices, should consider the change of the status quo and deeply revise the relation of good legislative practices to at least one legal source of legislative technique, i.e. Polish “Principles of Legislative Technique”.
Conference Presentations (in Polish) by Maciej Kłodawski