Bialystok Legal Studies vol. 29 no. 3
Articles:
Karolina Małgorzata Cern, José Manuel Aroso Linhares, Bartosz Wojciechowski
The Narrative Subject of Law: An Introduction to and Outline of a Long-Awaited Turn in Law
DOI: 10.15290/bsp.2024.29.03.01
Abstract: In this article, we argue that the current concept of the legal subject should be expanded to include narrative identity, in other words that the narrative subject of law should be recognised. With this aim in mind, we firstly (i) identify the philosophical assumptions and tools necessary to articulate the thesis of homo narrans. We find them in Martin Heidegger’s work Being and time, where he made a groundbreaking contribution to twentieth-century philosophy by deconstructing the concept of the subject. Then (ii) we discuss the key theoretical-legal assumptions and tools related to the legal turn we advocate, and finally (iii) we indicate – provisionally and in broad outline – the key consequences of recognising the narrative legal subject of law in the justice system.
Keywords: Anthony Giddens, law as a medium of communication, legal positivism, Jürgen Habermas, Martin Heidegger, narrative subject of law
Page range: 7-24
Adam Sulikowski
How to Humanize ‘Feral Children’: Constructing ‘Proper Identities’ in Liberal and Illiberal Legal Discourses
DOI: 10.15290/bsp.2024.29.03.02
Abstract: The subjects of this article are the mechanisms of constructing the identity of the collective subject of sovereignty in liberal and illiberal discourses and the issue of the relationship between collective identity discourses (primarily those related to law and imposed by law) and the political. The author adopts a specific perspective inspired by post-structuralism and post-Marxism. This perspective denies the claim of modern liberalism to be a meta-category in relation to other political and ideological options. The so-called post-politics inscribed in liberal discourses is, from the point of view of post-Marxism, a political proposition deeply entangled in ideology. The basic thesis of the article is that both the liberal and illiberal discourses in the construction of the subject of sovereignty are essentialist and perceive this subject as an imagined community that must be built with the significant participation of the law and (partially hidden) coercion.
Keywords: collective identities, constitutionalism, legal discourse, liberalism, post-Marxism
Page range: 25-37
Marta Andruszkiewicz
Narrativity and the Idea of Narrative Identity in Law
DOI: 10.15290/bsp.2024.29.03.03
Abstract: How can an extension of the legal perspective with the idea of narrative unity be presented using the law and literature movement? Considering law as a complex semiotic object that is a product (and carrier) of culture makes it possible to see elements of narrativity from a theoretical and legal perspective. This is a significant phenomenon, especially after the cultural turn in the humanities. This article presents a problematisation of narrativity in legal discourse and the theory of law. As is well known, the theory of narration and the concept of narrativity have been widely used in the humanities, mainly in literary theory. I propose extending the narrative perspective to law by showing what research directions can be observed when using the concept of narration in the ethical and aesthetic dimensions of law. Finally, I discuss the thesis of narrative identity in relation to law. I adopt the perspective of examining law in the light of literary analysis.
Keywords: law and literature, literary theory of law, narrative identity, narrativity
Page range: 39-53
Monika Zalewska, Carsten Heidemann
Grundnorm and Grounding A modern Metaphysics for Hans Kelsen’s Pure Theory?
DOI: 10.15290/bsp.2024.29.03.04
Abstract: This article explores the possibility of reconstructing Hans Kelsen’s neo-Kantian theory of the basic norm (Grundnorm) with the help of the theory of (metaphysical) grounding. First, we outline Kelsen’s theory of the basic norm as an integral part of his neo-Kantian transcendental idealism and give a sketch of grounding theory; we then try to fit these theories together. As it turns out, grounding theory has some internal flaws. More importantly, several of the features of a metaphysical ground are not compatible with the roles which Kelsen ascribes to the basic norm – its roles as a keystone of the legal hierarchy and as a transcendental-logical condition of legal cognition. Finally, an alternative conception is examined, according to which the legal system is grounded not by the basic norm but by social facts, with the basic norm serving as a bridging principle. However, this alternative is flawed as well; its main problem seems to be that it violates the dualism of ‘Is’ and ‘Ought’. The argument is relevant for the concept of personhood, because Kelsen treats the term ‘person’ in law as a mere expression for the unity of a specific set of legal norms, so that the identity of persons is ultimately dependent on the identity and function of the basic norm of the legal system.
Keywords: basic norm, grounding, Hans Kelsen, legal personhood
Page range: 55-76
DOI: 10.15290/bsp.2024.29.03.05
Abstract:This article seeks to present the problem of the personal identity of the human being as an important element of the right to one’s private life being respected. The presentation is from the point of view of the guarantees related to the establishment of standards for the protection of human rights by the European Court of Human Rights in Strasbourg. Relevant for this reflection is the theoretical legal approach to this matter, with particular reference to the methods of interpretation of the European Convention on Human Rights. The article discusses the problem of understanding personal and social identity in a cultural context related to group and individual axiology. It presents historical determinants of the ideology of approaching the status of the individual within the state and the general standards of the right to have one’s private life respected. Two key methods of interpretation for devising standards of protection, i.e. the evolutionary interpretation and the method of the cultural margin of assessment, are also analysed. Not only do these methods allow for taking changes in European social axiology into account, but they also allow for the distinctiveness of social axiology at the local level. From this perspective, an answer is given to the question, do the ECHR’s standards for the protection of the right to respect for private life serve to reinforce the personal identity of a human being?
Keywords: European Court of Human Rights, judicial standards, personal identity, privacy, rules of interpretation, social identity
Page range: 77-90
Ivan Ladislav Padjen
Identity Claims and the Legal Order: Secular or Religious?
DOI: 10.15290/bsp.2024.29.03.06
Abstract: The problem addressed in this article is the challenge that identity claims stemming from identity politics, commonly recognized as left liberalism, pose to the secularity of the modern legal order. The paper: (1) postulates human dignity as the highest value and assesses the potential of philosophy and law to find a balance among the conflicting demands posed by this value; (2) identifies constitutional principles and/or jus cogens as the basis for the identification and appraisal of identity claims; (3) describes major identity claims embodied in the Istanbul Convention and appraises them on the basis of the principles; (4) ascribes identity politics and its claims to a worldview with traits of a religion, termed culturalism, as their condition. The conclusion proposes alternative decisions (de lege ferenda) more in accord with the principles, most notably with the freedom of thought, conscience and religion.
Keywords: culturalism, human dignity, identity claims, identity politics, Istanbul Convention, legal order
Page range: 91-104
Agnieszka Bielska-Brodziak, Aneta Gawlik-Starzyk, Tomasz Jakubowski, Małgorzata Trofimiuk-Müldner
Split Genders: Medical versus Legal Understanding of Gender Identity (De Lege Lata and De Lege Ferenda)
DOI: 10.15290/bsp.2024.29.03.07
Abstract: For centuries, the law accepted the legal gender of an individual that was indicated at birth by the appearance of their genitalia and stated on their birth certificate. Nowadays, however, we have plenty of scientific, medical and psychological evidence (and thus reasons) to revise the adopted way of thinking about legal gender to associate it more with gender identity. Most people do not perceive a potential conflict between genital sex and gender identity, because their genital sex is consistent with their gender identity. Trans- and intersex comunnity needs recognition of their gender identity independent of their genital sex as a condition for a life of self-determination, personal freedom, respect and dignity; these are, after all, values that are extremely important for the law. The purpose of this analysis is to determine whether the concept of gender identity is perceived generally in the Polish language and the Polish legal system in a way that takes into account current medical knowledge and the legitimate needs of the individual. If not, then what de lege ferenda recommendations can be made to change this situation?
Keywords: ascribed gender, experienced gender, gender identity, legal gender
Page range: 105-130
Jack B. Hamlin, Jamir E. Hairston, Alejandro Mendez
Cultural Moral Evolution: A Proposed Model and Application in a Review and Analysis of the Evolutionary Stages of Diverse Cultures and the Impact on the Emergence and Identification of LGBTQA+ Communities
DOI: 10.15290/bsp.2024.29.03.08
Abstract: The authors present a five-part initial examination of cultural moral evolution in several diverse cultures, looking specifically at attitudes towards LGBTQA+ communities and scrutinizing how societal attitudes shift from fear, animus, tolerance, and acceptance to integration. This evolution is gauged through various societal lenses, including laws, religion, human rights, and educational practices. In Part One, the authors discuss the concept of cultural moral evolution and how it differs from and shares some of the same traits as cultural anthropology. Part Two explores cultural moral evolution towards LGBTQA+ communities in three countries: Malaysia, the Netherlands, and Saudi Arabia. Part Three extends this analysis to four US states – Florida, Alaska, Hawaii, and Colorado. Part Four focuses on the US military, particularly the US Navy, analysing its cultural moral evolution towards the LGBTQA+ community. Finally, these observations are synthesized, with a summary of how the cultural moral evolution model is applied across different societal segments.
Keywords: acceptance, cultural moral evolution, integration, LGBTQA+ communities, tolerance
Page range: 131-157
Anetta Breczko, Agata Breczko
Gender Identity in Cis-Heteronormative Legal Orders: A Comparative Approach – Poland and Mexico
DOI: 10.15290/bsp.2024.29.03.09
Abstract: In this article, we examine the legal challenges encountered by LGBT+ individuals in Poland and Mexico within the context of prevailing cis-heteronormative structures. These structures deeply influence societal and legal systems in both countries, resulting in marginalization and discrimination. We compare the development of LGBT+ movements and their impact on legislative changes by analysing enacted laws, court cases, and law proposals. The study highlights the progress and obstacles to achieving equality in each case: Mexico has made significant strides in recognizing non-binary perspectives and advancing LGBT+ rights, while Poland has faced setbacks due to the continuous rejection of progressive reforms. Both countries continue to navigate unique challenges in their pursuit of greater inclusivity for the LGBT+ community, offering valuable lessons from each experience.
Keywords: cis-heteronormative order, cis-normativity, gender identity, heteronormativity, human rights, non-binary identity
Page range: 159-178
Elżbieta Kużelewska, Marta Michalczuk-Wlizło, Bruna Žuber, Matevž Bedič, Mariana Mesquita Vilas Boas, Luísa Ramos Naia
The Evolution of Same-Sex Marriage Case Law in Europe
DOI: 10.15290/bsp.2024.29.03.10
Abstract: The number of countries allowing same-sex marriage is gradually increasing. Currently, 37 countries have laws regulating same-sex marriages, specifying their status and/or the possibility of adopting children. These solutions counter discrimination against same-sex couples and are part of the protection of human rights. Against the background of other countries, the pan-European tendency to accept the institution of same-sex marriage is garnering positive attention, although it is still controversial in some countries. Regulations of European law and the case law of the Court of Justice of the European Union, the European Court of Human Rights and the constitutional courts, which play an essential role in anti-discrimination measures and are in favour of respecting human rights, provide crucial support. This article discusses the evolution of the jurisprudence of the ECtHR, the CJEU and the national courts of selected countries (Slovenia, Spain, Portugal, Germany and Austria) concerning same-sex marriage. It highlights how recognising the right to same-sex marriage does not come at the expense of the rights of others or the public interest.
Keywords: right to marry, same-sex marriage, case law, ECtHR, CJEU
Page range: 179-205
Dominika Kuźnicka-Błaszkowska, Mariusz Jabłoński
Information on Gender Identity as Personal Data under EU and US Data Protection Models
DOI: 10.15290/bsp.2024.29.03.11
Abstract: One of the most important legal issues concerning gender identity is ensuring that no one is discriminated against in any type of environment and that individuals’ needs are considered seriously during the legislation process. Even though this can be questioned, if one needs to process information on gender to achieve an inclusive and diverse society and law, it seems that at this point in the history of society, there are no better measures to ensure a non-discriminatory environment than processing information on gender identity. Under the current personal data protection landscape, both in the European Union and the United States, it is not clear what the conditions are for processing information on the gender of individuals. Therefore, the authors of this article analyse legal requirements from both jurisdictions, also in the light of the question of the adequacy of personal data protection in the US under article 45 of the General Data Protection Regulation.
Keywords: adequacy, gender identity, personal data protection, privacy protection, sensitive data
Page range: 207-220
Joanna Helios, Wioletta Jedlecka
In Search of Women’s Identity
DOI: 10.15290/bsp.2024.29.03.12
Abstract: The aim of this article is an attempt women’s identity. uthors search for answers for this question in history, gender stereotypes and feminism. It should be remembered that the process of socialization plays a significant role in the process of identity construction. It is associated with the specific social environments in which human socialization takes place. The concept of identity raises the issue of social position as well as past and present position in the social system. Both collective and individual identities are fluid, change over time and are created throughout life.
Keywords: feminism, identity, stereotypes, women
Page range: 221-234
Ewa Nowak, Jelson Oliveira, Roberto Franzini Tibaldeo
The Nomos of the Water: Indigenous Narrative Identity Claims to Justify Granting Legal Personhood to a River
DOI: 10.15290/bsp.2024.29.03.13
Abstract: This article, anchored in Indigenous narratives, identifies the core arguments for granting juridical personhood to rivers and appointing Indigenous citizens as their legal guardians. The core arguments are as follows: for Indigenous peoples, dwelling on riverbanks is a matter of identity. This identity manifests itself through various interpersonal practices, including language – thus, narratives – and caring. The analysis of sampled narratives has uncovered valid rationales for granting legal personhood to rivers due to identities common for rivers and their dwellers, rivers’ specific capabilities, and their actantial features (rivers can act). Both legal personhood for rivers and Indigenous dwellers being in the role of their legal guardians are unique legal institutions to fulfil the critical interests and capabilities of rivers at a time when these fragile ecosystems are under threat. We illustrate this by using the Amazon and Oder rivers as examples and referring to the Yanomami’s and Olga Tokarczuk’s narrative accounts.
Keywords: Amazon and Oder rivers, dwelling, granting legal personhood to rivers, indigenous narrative identity, Yanomami and Tokarczuk narratives
Page range: 235-255
Maciej Barczewski, Sebastian Sykuna
Navigating Legal and Cultural Intersections: The Impact of Law on Minority Traditions and Identity
DOI: 10.15290/bsp.2024.29.03.14
Abstract: States should establish in their legislations protective mechanisms which, on the one hand, guarantee the realisation of the rights of the majority and, on the other hand, ensure respect for the traditions, culture and customs of national and ethnic minorities. In Poland there are such guarantees that ensure that minorities can live in accordance with their own traditions and customs, also at the highest normative level. In addition to the legal sphere, one should not forget the equally important sphere of social life, which for some people is even more important. The issue of early marriage in the Roma community is an exemplification of the problem that can be caused by the interference of subject law norms with the centuries-old traditions and customs of a particular national or ethnic group.
Keywords: customs, identity, law, minorities, Roma, traditions
Page range: 257-269
Arianna Maceratini
Subjective Identity and the Right to be Forgotten: A Multifaceted Claim in the Legal System
DOI: 10.15290/bsp.2024.29.03.15
Abstract: In the complex relationship between individual identity and its claims for recognition and protection by the legal system, the right to be forgotten is crucial, because it addresses a personal, social and legal definition of the individual as authentically as possible and highlights the uniqueness of each identity, with changes experienced in the temporal dimension. The lack of distinction in real life between the physical world and the analogue context traces new spatial and temporal coordinates, able to profoundly redefine the traditional categories of identity and difference, as well as to modify the usual dynamics of personal and social inclusion and exclusion, submitting identity to a process of dismemberment that makes the individual a complex ‘informational organism’. The multiple connections between the right to be forgotten and the protection of personal identity are confirmed by the most recent developments of European legislation and, in particular, in Italian jurisprudence, which outlines it as an identity claim in order to obtain a correct representation of oneself, resulting in the guarantee offered by the legal system of reconfiguring one’s telematic image. This describes an evolving and comprehensive right capable of protecting the originality of the individual and his/her representation and relationships.
Keywords: digital data, digital identity, identity, legal system, memory, right to be forgotten
Page range: 271-286
Ilona Urych, Cezary Smuniewski, Błażej Bado
Between ‘Quo Vadis?’ and ‘Unde Venis?’ Identity and the Legal Order of Young Poles Living in Ireland
DOI: 10.15290/bsp.2024.29.03.16
Abstract: The aim of the research presented here was to diagnose the personal and social identity of young Poles living in Ireland and attending Polish schools, and to analyse the relationship of this identity with selected elements of the legal order. The main research problems were formulated in the form of questions: (1) What characterises the personal identity of the adolescents surveyed? (2) What is the social identity of the respondents? (3) What is the relationship of the respondents’ personal and social identity to selected elements of the legal order? A diagnostic survey method, a survey technique and a research tool in the form of a survey questionnaire were used to realise the aim of the research and to answer the questions posed. The research was conducted among young Poles living in Ireland and attending Polish weekend schools (n=104). The analysis of the survey results shows that the identity of Polish young people is multifaceted and combines a strong sense of Polishness with living in Ireland. Key elements of identity include a sense of belonging to the Polish nation, their families and the larger European community, while recognising themselves as Irish residents. Furthermore, identity traits are shaped by place of birth, educational context and key elements of the legal order, such as adherence to the law and respect for human rights, highlighting their willingness to engage in socio-political life.
Keywords: education, family, identity, legal order, security
Page range: 287-305
Patryk Wawrzyński, Joanna Marszałek Kawa, Neo Sithole
Transformation of the Constitutional Identity in South Africa after the Fall of Apartheid
DOI: 10.15290/bsp.2024.29.03.17
Abstract: This article investigates the designed transformation of South African political identity and its constitutional framework as a core aspect of the democratization of South Africa. It compares the racist and exclusive identity of the apartheid state with a redesigned identity of an inclusive and open ‘Rainbow Nation’, a concept coined by Archbishop Desmond Tutu and spearheaded by Nelson R. Mandela along with the African National Congress. The study considers changes in the legal framework of identity politics, from the Republic of South Africa Constitution Act of 1983 (and the previous apartheid republican Constitution of 1961) through the interim democratic Constitution of 1993 to the Constitution of the Republic of South Africa of 1996. It discusses the possible significance of the 18 amendments to the act regarding South Africans’ social and political identities, and establishes a complex and detailed portrayal of the republic’s legal framework of identity politics. The study combines legal, political, and cultural analysis of the role of law in formatting social and political identities, using survey results to test its impact on society. In conclusion, the paper considers the effects of post-apartheid identity transformation in South Africa.
Keywords: apartheid, constitutional identity, democratization, Rainbow Nation
Page range: 307-323