Zasady wymiaru sprawiedliwości w świetle badań empirycznych


The writer concentrates upon some selected problems of the theoretical analysis of the conception of “justice” and upon practical applications of the idea of justice, above all in penal law. After having quoted some more interesting views and discussions on this conception (e.g. those of Aristotle, Hume, and K. Ajdukiewicz), the writer pays special attention to the conception of universal formula of justice, postulated by Ch. Perelman. Such a formal justice he defines as a principle of action, according to which persons belonging to the same category should be equally treated. However, this conception eliminates neither arbitrarily nor dependence of justice from the acknowledged world-outlook and hierarchy of values. Being an abstract and general conception, it requests a concretisation which consists in choosing one essential category based on an arbitrary selection of essential characteristics.

In attempts to make use of the idea of justice (e.g. by administration of justice), the necessity of its defining on a relatively low level begins to be very important, but all efforts to a concretisation of a formal rule of justice must unavoidably lead to a conviction that there exists no possibility to give an unanimous and a sole right definition of justice. In this connection the writer draws the attention to an interesting tendency in the empirical sociological investigations which concentrates on an investigation of the sense of justice in a wide meaning. She discusses a number of results of Polish and Scandinavian investigations which seem to be representative for this tendency.

The sense of justice may be different in the case of legislators, officials of administration of justice, different layers and groups of society as well as individuals. Analysis of principles of legislation in the sphere of penal law leads to the conclusion that the aspect of satisfying the requirements of justice in neither the sole nor the most important source of directives in this respect. The justificatory rationalization of punishment, which tries to find the sense of punishment in a justified revenge, presents a type of metaphysical rationalization, whose function is all the more diminished in favour of the purposeful rationalizations, such as point of view of general and particular prevention. Thus, the necessity of punishment is now founded in a fully utilitarian way, and the law should above all be functional for the social-economic system. Its task consists in the maintenance of equilibrium of the system and in its proper development.

Basing on the above reasoning, it may be seen that the postulate resulting from the theoretical analysis of the conception of “justice”, according to which a right judge should equally treat all persons belonging to the same essential category (i.e. persons who have committed a similar illegal action), is not fulfilled in conditions of actually ruling principles of legislation and administration of punishment. On the other hand, the social sense of justice is, to a large extent, further based on a conviction of just revenge, necessary satisfaction and compensation, as essential or even unique factors which assure sense of punishment. According to the writer, the knowledge of the views of society on this subject, and on other similar ones, is one of important conditions for an effective influence upon the public opinion in order to reduce disproportions between the principles acknowledged by the legislator and by the society. There exists, nevertheless, an unresolved dilemma whether and to what extent the legislator and the executor of law should take into account this social sense of justice.

In her final reflections the writer expresses a suggestion that the theoretical rules of justice (particularly those emphasized by Ch. Perelman) relate to the just distribution of rewards rather than of punishments and in this connection cannot be considered as sufficient directories for penal law. Taking this fact into consideration and being not in agreement with the postulate of functionality of punishment in a wide meaning as its sole interpretation, the author sees for the administration of justice the necessity to take into account, in a possibly largest extent, the general rules of humanism.