Table Of ContentKAZIMIERZ OPALEK
SELECTED PAPERS IN LEGAL PHILOSOPHY
Law and Philosophy Library
VOLUME 39
Managing Editors
FRANCISCO J. LAPORTA, Department of Law,
Autonomous University of Madrid, Spain
ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden
FREDERICK SCHAUER, John F. Kennedy School of Government,
Harvard University, Cambridge, Mass., U.SA.
Former Managing Editors
AULIS AARNIO, MICHAEL D. BAYLESt, CONRAD D. JOHNSONt,
ALANMABE
Editorial Advisory Board
AULIS AARNIO, Research Institute for Social Sciences,
University ofTampere, Finland
ZENON BAKOWSKY, Centre for Criminology and the Social and Philosophical
Study of Law, University of Edinburgh
PAOLO COMANDUCCI, University of Genua, Italy
ERNESTO GARZON VALDES, Institutfur Politikwissenschaft,
Johannes Gutenberg Universitat Mainz
JOHN KLEINIG, Department of Law, Police Science and Criminal
Justice Administration, John Jay College of Criminal Justice,
City University of New York
NEIL MacCORMICK, Centre for Criminology and the Social and
Philosophical Study of Law, Faculty of Law, University of Edinburgh
WOJCIECH SADURSKI, Faculty of Law, University of Sydney
ROBERT S. SUMMERS, School of Law, Cornell University
CARL WELLMAN, Department of Philosophy, Washington University
Kazimierz Opalek (1918-1995)
KAZIMIERZ OPALEK
SELECTED PAPERS
IN
LEGAL PHILOSOPHY
Edited by
JAN WOLENSKI
Jagiellonian University.
Cracow. Poland
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
A C.I.P. Catalogue record for this book is available from the Library of Congress.
ISBN 978-90-481-5230-8 ISBN 978-94-015-9257-4 (eBook)
DOI 10.1007/978-94-015-9257-4
Printed on acid-free paper
All Rights Reserved
© 1999 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 1999
Sot'tcover reprint of the hardcover 1s t edition 1999
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
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CONTENTS
EDITOR'S INTRODUCTION ............................................................ 1
I. GENERAL PROBLEMS OF LEGAL PHILOSOPHY
THE "GENERAL SCIENCE OF LAW':
MAIN APPROACHES AND THEIR HISTORY... ... ... ... ... ... ... ... ... ... ... 15
THE PECULIARITIES OF THE STUDY OF LAW
AND THE QUESTION OF INTEGRATION .................................... 31
THE COMPLEXITY OF LAW
AND OF THE METHODS OF ITS STUDY ... ... ... ... ... ... ... ... ... ... ... ... 49
STATE AND LAW: AN ATTEMPT AT INTEGRATION
OF THE ruRISTIC WITH THE SOCIOLOGICAL APPROACH ............ 63
THE PROBLEM OF THE VALIDITY OF LAW .................................... 77
THE RULE OF LAW AND NATURAL LAW ....................................... 91
INTERNAL AND EXTERNAL INTEGRATION
OF THE STUDY OF LAW ......................................................... 99
LAW AND POLITICS IN TIME AND SPACE ....................................... 121
PRESENT STATUS OF LEGAL PHILOSOPHY .................................... 137
THE CONCEPT OF "POSITIVE LAW' ............................................. 153
PHILOSOPHY OF LAW AND SOCIAL PHILOSOPHY ........................... 169
II. PROBLEMS OF NORMS AND LEGAL LANGUAGE
SOME PROBLEMS OF THE THEORY OF NORMS .............................. 181
THE PROBLEM OF "DIRECTIVE MEANING" .................................... 201
VIll CONTENTS
THE PROBLEM OF THE EXISTENCE OF THE NORM ........................ 217
ON THE LOGICAL-SEMANTIC STRUCTURE OF DIRECTIVES ............ 233
NORM AND CONDUCT,
THE PROBLEM OF THE "FULFILMENT" OF THE NORM ............... 255
DIRECTIVES, OPTATIVES, AND VALUE STATEMENTS. . .................... 263
DIRECTIVE DISCOURSE .................................... '" ... '" ............... 295
"DOING TIllNGS WITH WORDS" AND THE LAW .............................. 311
DIRECTIVES, NORMS, AND PERFORMATIVES ............... '" ............... 323
EDITOR'S INTRODUCTION
Kazimierz Opalek, the author of the essays collected in this volume, belongs
to leading contemporary legal philosophers. He was born in Krakow on July
13, 1918. Opalek began his legal studies at the Jagiellonian University in 1936.
Until 1939, he completed three years; in 1938, he was appointed, still as a
student, as a "younger assistant" in the Department of Roman Law. The war
interrupted Opalek's studies for some time. Finally, he graduated at the clan
destine Jagiellonian University in 1944 and was appointed (1945) as an assis
tant, first in the Department of Legal History and later in the Department of
Theory of Law and State, the latter was directed by Professor Jerzy Lande.
Kazimierz Opalek obtained his JurD on the base oft he dissertation on Hieronim
Stroynowski, a Polish legal philosopher of the Enlightement. Immediately af
ter the doctorate, Opalek began to work on his Habilitation dissertation. He
finished an extensive monograph about the concept of subjective right in 1949,
but this book could not be published at that time (it was published in 1957).
Thus, he came back to the history of thought of Polish Enlightement and wrote
a book on natural law in the writings Polish physiocrats. Opalek was promoted
as professor in 1954 and in the same year became the successor of Lande who
died. In 1977 he was elected as a member of the Polish Academy of Sciences.
He was also a member of the Serbian Academy of Sciences, the Bavarian
Academy of Sciences, the International Academy of the History of Science
and very actively participated in activities of the International Association of
Legal and Social Philosophy; University of Pecs (Hungary) awarded him the
honorary degree. He was also a distinguished teacher. Wieslaw Lang (profes
sor of legal philosophy in Toruti), Aleksander Peczenik (professor of legal
philosophy in Lund), Krzysztof Grzegorczyk (professor of legal philosophy in
Neuchatel, Tomasz Gizbert-Studnicki (professor of legal philosophy in Krakow)
and myself belong to his students. Kazimierz Opalek died in Krakow on No
vember 11, 1995.
Opalek's scholarly work went in several directions. He was a distinguished
historian of science (history of science dominated in the first ten years of his
academic carreer) and the pioneer of political science in Poland. However,
legal philosophy was his main interest and beloved subject. In order to show
Opalek's position in legal philosophy we must say a few words about the tra
dition of this field in Poland. Legal and political thought certainly belongs to
the most important Polish intellectual achievements. It flourished in the Middle
2 INTRODUCTION
Ages, particularly in international law. Pawel Wlodkowic (Paulus Wladimiri)
became famous for his ideas concerning the just war (justum bellum). The
Renaisance was a particularly good period for Polish legal and political thought.
Andrzej Frycz-Modrzewski proposed, in his book De republica emendanda, a
complex reform of Polish social life, but his claims had much more wider
character; in fact, it was a very ambitious program of a society based on the
principles of freedom and tolerance. The Polish Brethren, a radical wing of
Polish reformation, were still more radical in their proposals of social equality
and pacifism. These ideas were not without practical and historical impor
tance; in fact, Poland in the 16th century was the most tolerant country in
Europe, and Polish thinkers of that time influenced sevaral important political
philosophers, including John Locke. The Enlightement was another important
period of Polish social philosophy. Although reform which could stop the de
cline of Poland were the main concern of Polish Enlightement thinkers, some
of them, notably Hugo Koll'l:taj and Stanislaw Staszic, outlined extensive pic
tures of society based on leading ideas of that time.
To be sure, older Polish legal philosophy was more practical than theoreti
cal. This feature was essentially connected with permanent political problems
of Poland which challenged programs of reforms. Hence, the theoretical con
tent of legal philosophical thought in Poland was rather secondary and clearly
subordinated to reformatory projects. This situation continued in the 19th cen
tury for obvious reasons: Poland lost its independence at the end of the 18th
century and discussions about means of recovering from this national tragedy
dominated Polish political, legal and social philosophy. The change came at
the beginning of the 20th century.
Remembering the wider context of Polish legal philosophy, perhaps it is not
surprising that the first legal theiry, independent of concrete national tasks,
appeared abroad. It was Leon Petrazycki, the professor of legal theory in St
Petersburg, who elaborated a legal-theoretical system. Petrazycki's legal theory
was psychologistic: he defined law as a set of psychic phenomena, more spe
cifically as a set of imperative-attributive emotions consisting in simultaneous
feeling of obligation and right. Every phenomenon of this kind belong to law.
Law is radically different from morality, because the latter consists in the feel
ing of obligation only; yet, law and morality belong to a wider class of ethical
phenomena. It is of the utmost importance from Petrazycki's point of view that
law is not restricted to the so-called positive law which is only a part of law in
Petrazycki's sense. Petrazycki wanted to base legal theory on solid method
ological foundations - he demanded that legal theory should satisfy very strong
methodological criteria, in particular is should explain and predict legal phe-
