Principles
of Polish Labour Law

Edited by
Krzysztof W. Baran

WYDAWNICTWO C.H.BECK
WARSZAWA 2018

Recenzent wydawniczy/Peer reviewer: Prof. dr hab. Bolesław M. Ćwiertniak

Tłumaczenie/Translation: Paulina Balińska

Publikacja dofinansowana przez Uniwersytet Jagielloński

© by Wydawnictwo C.H.Beck 2018

Wydawnictwo C.H.Beck Sp. z o.o.
ul. Bonifraterska 17, 00-203 Warszawa

www.ksiegarnia.beck.pl

Skład i łamanie: CK Studio
Przygotowanie wersji elektronicznej: Wydawnictwo C.H.Beck

ISBN: 978-83-8158-543-9

Chapter 1. The Notion and Delimitation of the Principles of Polish Labour Law

K.W. Baran, D. Książek

The concept of the principles of law in the system of Polish law, including the principles of labour law raises various doubts, both in the legal sciences and judicature1. However, a starting point for further analysis will be an essentially non-controversial view expressed at the beginning of the 1930s2 according to which the principles of law are the foundations on which codes are built and enliven the intricate mass of norms. They are like the “spirit” of these codes, which should be taken into account when interpreting their provisions and filling in legal gaps.

In the Polish legal literature, the principles of law are defined as “ideas”, “interpretative directives”, “rules” and even “guidelines for conduct”3. They are derived from specific legal norms or groups of legal norms. Therefore, they are always normative. Therefore, the postulates of the legal system cannot be considered the principles of law4.

It is not possible to challenge an argument that the effectiveness of the legal system in the process of affecting the social life depends on its coherence. Where the coherence is understood as such a set of norms for which the axiological justification can be decoded based on coherent knowledge. The principles of law serve the proper organisation of such system. Until now, in the Polish legal culture, the principle of law has been used in two different meanings. A descriptive and directive meaning5.

Despite the existing division of the principles of law, the problem of establishing the legal consequences resulting from distinguishing the “principle of law”, whether based on statutory material or the existing and well established views of legal scholars, is not a new problem and is, as it seems, still provoking a lively discussion6. According to Gizbert-Studnicki, the concept of legal principle is controversial in the Polish literature and it has various meanings. This view is still valid 7, and thus worth examining in more detail. It seems very reasonable since the phrases or expressions such as “legal principle / principle of law”, “principle” or even “rule” are often used interchangeably, in relation to one and the same concept in one and the same text. This prevents appropriate methodological or logical analysis.

The word “principle” has been “coined” by lawyers. It is an ambiguous concept and has different meanings. In the legal language, including the case-law, it does not always refer to the directive of conduct. It is also used to describe a particular type of decision or it formulates some general assessments. This resulted in the need to distinguish descriptive, evaluative and directive expressions8. The difficulty, however, is that when reading the doctrinal writings or the case-law, it is difficult and sometimes even impossible, to guess in what sense a given author or a court uses the term “principle” or “principle of law”. As it is rightly pointed out, mixing the statements of various linguistic nature is one of the main drawbacks of legal discourse9. For this reason, it is worth recalling this characteristic of the various meanings of the “principle of law” according to the above-mentioned division, limiting it to two forms: the principle of law in a directive and non-directive (descriptive) sense as a division generally accepted in the Polish legal culture.

The principles-directives are distinguished from the principles in non-directive sense. In the latter case, we are talking about the legal principles understood descriptively. The principles of law understood as directives are principles of law recognized as norms of a given legal system. Norms which, in one way or another, are superior to other norms. In the case of a non-directive understanding of the principles of law, this serves description of the legal system, indicating functional links between the norms, but also indicating the social role of a specific norm or legal concept. While in the case of the principles of law understood as directives, there is quite a uniform semiotic character of statements, in the case of the principles of law understood descriptively it is extremely difficult to define a genus of what specifically is considered a principle of law10.

The principle of law in descriptive terms defines the manner of formation of certain legal concepts (subject of regulation), which actually occurs or the occurrence of which is “only” possible11. This is achieved by establishing appropriate and mutually related legal norms12. The principle of law in the basic descriptive terms means a model of formation of a specific subject of regulation, which is the “azimuth” for resolution of a particular issue connected with a certain point of view. The model may be either a reporting model or a projected model13. It can be conceivable or reconstructed14. In addition, the principles in descriptive terms are subject to a further partition, as a result of which abstract and specific principles are distinguished. The first of them relate to the general patterns indicated above, the idea of solving a given problem. In the second case, the rules apply to individualized, valid legal systems15. The principles of law in descriptive terms usually have several argumentation functions: a historical function, a scientific and didactic function, a practical function, building the foundations for formulating interpretative directives but also complementing the structural gap16.

At this point, worth mentioning is an approach taken by Ćwiertniak17. Following the analysis of the elements distinguishing these principles, according to the model – who distinguishes, what determines the distinction and what the distinction consists of, the Polish legal scholar has come to several conclusions, important in terms of the descriptive principles. First, the criteria for distinguishing the descriptive principles18 are of more or less evaluative nature. They refer to the axiological assumptions. Because of the assignment of certain functions to the descriptive principles, such as for example, filling the structural gap or creating interpretation directives, there are certain characteristics ascribed to these directives which, in Ćwiertniak’s opinion, indicate that they are not descriptive statements. Third, the basic function attributed to the descriptive principles in the process of study of law – the organising function – has not been limited to the description phase. Even if these principles were distinguished by an evaluation, the very process of their distinguishing was connected with organisation of some specific norms according to some evaluation criteria. Ćwiertniak’s study does not offer a definitive conclusion, but quite clearly indicates, as far as I understand, the defects or weaknesses of the criteria for distinguishing the principles of law in descriptive terms. It can be assumed that the author does not question the said division of the principles of law into principles in a directive and descriptive sense, and only emphasizes those elements that are common for both categories of principles, which would only increase the difficulties with which the interpreter will struggle by decoding a specific type of principles of law. First and foremost, certain doubts arise whether the division into descriptive principles and directive principles is logical19. If not, then the consistent application of these categories will be impossible, or at least very difficult.

The principles of law, understood as directives, contrary to what prima facie seems to be an obvious consequence, cannot be easily distinguished from the principles of law understood in a descriptive manner. The first obstacle to overcome is to determine the content of these principles. The other one will be the difficulty in distinguishing these principles from the principles which are only someone’s desiderata about the form of law, from the principles which are considered directives applicable in a given system of law20. The attempts made to overcome these problems are based on the scholarly writings of Jerzy Wróblewski21. According to Wróblewski, the principles of law should be divided into principles of law in the strict sense and the principles-postulates22. The principles of law in a strict sense are norms of the positive law system which are considered basic principles. These principles are norms interpreted from the legal text, either on the basis of directives of linguistic interpretation or on the basis of more complex interpretation directives. But importantly, they can also be norms inferred from other norms on the basis of the on the rules of inference23. On the other hand, according to the author the postulative “principles of law” are various rules that are considered general principles of law but are not such general principles since they lack the status of norms of positive law and there is no logical consequence of these norms24.

It can be said that in Wróblewski’s approach, a postulative principle is the descriptive principle as defined by Wronkowska, Zieliński and Ziembiński. What seems particularly relevant in Wróblewski’s approach is the element of legal validity and an element of supremacy. Contrary to the principles of law in a strict sense, the principles-postulates are not, as already indicated, legally binding. This issue is precisely explained by Wronkowska, Zieliński and Ziembiński25. The authors have argued that if an attempt is made to resolve a legal problem or issue with a reference to the principles of law understood as directives, it is necessary to confirm the status of the principle as the legally binding principle. If the answer is positive, it is necessary to indicate the legal provision which is the basis for such a conclusion and how it was interpreted, or which inference rules were the basis for the inference of the norms from other norms. If a norm is considered legally binding, based on the views of legal theorists, it is necessary to indicate the facts which turned out to be relevant facts. At the same time, it is strongly emphasized that no directive can be considered a principle of law if it is impossible to indicate the basis on which such principle can be considered legally binding.

In the context of the principles of law in a descriptive sense, the position of the authors of this division is quite significant. In the opinion of Zieliński, when such division is made, an indication of the criteria on the basis of which the legal sciences can distinguish descriptive principles is a very complex task which is achievable only at a high level of generality26. One of the arguments is that the various understanding of the term “the principle of law” is ignored as a sufficient basis for delimiting the meaning of this term. This results in combination of directive elements and descriptive elements. Zielinski pointed out to the occurrence of such situation in civil or criminal proceedings, underlining at the same time the clarity of the distinction made by Cieślak. Therefore, it can be argued that Zieliński’s opinion, presented several decades ago, still remains relevant27.

It should also be emphasized that in the case of reference to the principle-directive, a given party must indicate what obligation is imposed by the principle. Furthermore they must show the basis for recognizing a given principle as legally binding, and more important in comparison with other legal norms. A party that is unable to fulfil this obligation balances between formulating non-binding postulates and assessments that can meet the evaluation criteria for the given acts of interpretation and/or legal inference28. It can only be added that the principles of law are not applied like other norms of the system. And the states of affairs designated by them, that are implemented or planned to be implemented, are achieved by other norms of this system. By creating appropriate norms, their accurate interpretation, but also by applying norms which are not principles, and by exercising rights29.

In analysis of the principles of law, one cannot disregard the relationship between the “principle” and the “rule” as legal categories. The division, considered important in other legal cultures, is perceived as interesting in the perspective of changes in the Polish legal culture, embedded in the widely accepted nomenclature and classification30. This division is particularly visible in the concepts of Dworkin and Alexy. Dworkin’s concept is treated as a constitutive element of the entire integral philosophy of law31. As regards the concepts of Alexy, the majority of them apply to theoretical constructs, not limited to the particularistic approach. He goes beyond a specific dogmatism, embracing the principles in general32. I would like to emphasize that it is not my purpose to thoroughly analyze both the principles of law and the rules, but for methodological reasons it is necessary to take a closer look at both of these institutions and the relations between these categories in the theories of both authors, described by Gizbert-Studnicki33.

For a significant number of Polish legal scholars not only the relation but also the sense of the division into principles and rules appears to be structurally and even ontologically unacceptable34. Consequently, the terms under discussion are used synonymously/interchangeably. As I have already mentioned, the relation between the “principle” and the “rule” was very clearly depicted by Gizbert-Studnicki in 198835. The author relied on the concepts of Dworkin and Alexy in a very interesting and very organised manner, especially with regard to the nomenclature he used. It is worth noting that when we analyze the relation between these two categories, i.e. a principle and a rule, we define (project – as pointed out by the author) not only the principle but also the rule, in a specific comparison algorithm, establishing the relations between them.

In Gizbert-Studnicki’s analysis, the “principle” partly coincides with the term “principle” in the directive sense, although the author himself stresses that the analysis has been limited to a directive rather than a descriptive approach, and views them as standards of conduct under which a subclass of principles and a subclass of rules can be distinguished. Importantly, the indicated subclasses form a logical division36. The mentioned division is structural and refers to the structure of the norms of conduct. If a hypothesis of a norm is fulfilled, it produces certain consequences specified in a disposition of such norm. When such consequences arise, we are dealing with an applicable norm. Otherwise, they are not applicable. Norms with such characteristics are described by Gizbert-Studnicki as rules37. Unlike the principles, the rules are devoid of “validity” and “importance”38. Therefore, it can be argued that rules are not subject to valuation. Rules can be either complied with or not (tertium non datur)39. Unlike rules, the principles do not set the consequences. These norms constitute arguments that a certain legal consequence arose40. Importantly, the principles can be complied with to a different degree41, and the distinction between rules and principles is at the level of norms and not provisions42. A factor which is decisive for determination whether at the level of a given legal text we are dealing with a principle or a rule is the norm interpreted from the legal text 43.

Tomasz Gizbert-Studnicki’s analysis described above was evaluated, among others, by Maciej Zieliński44 and to some extent referred to by Sławomira Wronkowska45. In Zieliński’s opinion, the argument determining the inapplicability of the distinction between “principle” and “rule” and in particular the priority of rules in relation to the principles, is incompatibility with the common intuitions and conceptual framework developed in the Polish legal culture, restricting itself to applying the distinction between “regular norms” and “principles of law”46. Therefore, a distinction which is an integral and extremely important part of Polish legal theory. On the other hand, Wronkowska, points to the originality of the concept of principles in Dworkin’s theory, modified by Alexy’s theory47.

The concept of Dworkin, presented to the Polish legal culture by Gizbert-Studnicki (“perfected” by other world legal theorists, including Alexy), based on the division into ”principles” and “rules”, is a universally accepted construct48. It is however indicated that the risk associated with acceptance of the concept of Dworkin in the Polish culture relates to the necessity to reject the classic positivist concept of law, because the principles are based on non-positivist criteria. There is also a large number of legal theorists who recognize that there is no need to discard the positivist concept of law, because the principles are valid as formulated in the text but also can be derived from the legal text. As Sarkowicz emphasizes, the division into “principles” and “rules” considerably extends the area of significant problems of legal theory and practice. And what seems particularly important is the question of “weighing” and conflicts of principles49. That is something what functions in extenso in the concept initiated by Dworkin.

In conclusion, I would like to draw attention to one more issue. In my opinion, Zieliński, who appears to present the clearest views which are in opposition to the applicability of the distinction between the “principle” and the “rule”, does not deny the legitimacy of the division into “principles” and “rules”. If I understand it correctly, he only points out to its inoperability in the Polish legal culture.

Therefore, I am not going to discuss the value of the presented positions, because it requires a separate study, and at a different level – the theoretical level50. However, a certain category of assessments comes to mind inadvertently. First of all, the division between “principles of law in descriptive terms” and “principles of law in directive terms” has its deep roots as well as justification in the Polish legal culture. It is also broadly accepted. This does not mean that verification of its applicability is possible within the scope expected by the interpreter. Second, proximity of scopes, obviously not at the ideal level, with the division into “principles” and “rules”, is clearly visible and consequently cannot be considered irrelevant, even within the stable Polish legal culture. Third, the differentiation between “principles” and “rules” is prima facie more operative at the organising level than the division into “descriptive” and “directive” principles. Fourth, the differentiation between “principles” and “legal rules” was not a basis underlying the analysis of a selected part of law as a generally understood system, which of course can (not) mean its irrelevance in the in concreto analysis.

However, worth noting are four arguments of Kordela relating to the “principles of law”51: “Argument I: The principles of law are such norms that lay down a requirement to pursue a certain value. The principles of the second category of norms – the ordinary norms, i.e. rules – differ in the subject-matter of the obligation: while the rules formulate an obligation of a particular behaviour or conduct, the principles require the pursuit of a certain value; Argument II: The principle of law as an element of the legal system has a binding status. The fundamental character of a given norm is determined not by its language and significance of functions, but by the type of the subject-matter of the obligation. In order to definitively establish that a given norm is a binding principle (and not a rule) of a given system, the communis opinio doctorum is a necessary element; Argument III: The applicable legal principles of a given system create an ordered whole with clear characteristics of the system. Among the principles of law, there is a clearly separable subset of fundamental principles, which are principles not legitimated by other principles. The fundamental principles (of the entire system of law and its subsystems – public and private law, branches of law, legal institutions, etc.) are the normative expression of fundamental axiological choices made by the law-maker acting primarily as a legislator; Argument IV: The application of a principle of law is the application of the rule of law, which is formulated on the basis of this principle. The applied principle exists either alone or with another (different) principle; in the case of majority of the relevant principles, there is either compliance (or neutrality) or conflict. In the event of a conflict of principles, the weighing and balancing process takes place during which the entity applying the law assigns to each of the opposing principles an appropriate “weight” and makes the basis for selecting the one that is most preferred (initial solution). Each act of applying the principle of law is a binding (precedent) act of its specification (concretization).

This monograph is a collective work, but not a joint one. In accordance with the directive of autonomy, the opinions presented in it express individual views of their authors. They decided independently on how to present particular substantive matters.

1 See in particular: B.M. Ćwiertniak, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna [A System of Labour Law. A General Part], Warsaw 2017, p. 970ff.; T. Zieliński, Zasady prawa pracy w nowym systemie ustrojowym [Principles of labour law in the new political system], Państwo i Prawo 2001, vol. 12, pp. 3–14.

2 See W. Waśkowski, Zasady procesu cywilnego [Principles of the Civil Procedure], Rocznik Prawniczy Wileński 1930, No. 4, p. 265.

3 See S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa. Zagadnienia podstawowe [Principles of Law. The Basic Concepts], Warsaw 1974, pp. 24–25

4 See J. Wróblewski, Zagadnienia teorii prawa ludowego [A Theory of Popular Law], Warsaw 1959, pp. 255–260.

5 S. Wronkowska, [in:] Zarys teorii państwa i prawa [An Outline of the Theory of State and Law], Warsaw 1993, p. 224.

6 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 8; see: S. Wronkowska, Sposoby pojmowania „zasad prawa” [Understanding the Principles of Law], Państwo i Prawo 1972, No. 10 passim.

7 T. Gizbert-Studnicki, Zasady i reguły prawne [Leagal principles and rules], Państwo i Prawo 1988, No. 3, p. 16.

8 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], pp. 9–10.

9 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 10.

10 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], pp. 28–29.

11 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 31.

12 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 38.

13 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 43.

14 S. Wronkowska, [in:] Zarys teorii państwa i prawa [An Outline of the Theory of the State and Law], Warsaw 1993, p. 225.

15 M. Kordela, Zasady prawa. Studium teoretycznoprawne [The Principles of Law. Theoretical and Legal Studies], Poznań 2012, p. 23; M. Cieślak, Polska procedura karna. Podstawowe założenia teoretyczne [Polish Criminal Procedure. The Key Theoretical Concepts], Warsaw 1984, pp. 199–200.

16 M. Kordela, Zasady prawa… [The Principles of Law…], p. 25; S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], pp. 28, 50–51.

17 B.M. Ćwiertniak, Pozadyrektywalne rozumienie zasad prawa [Descriptive understanding of the principles of law], Studia Prawnicze 1976, vol. 3, p. 52 ff.

18 B.M. Ćwiertniak refers mainly to the criteria distinguished by S. Wronkowska, M. Zieliński, Z. Ziembiński, [in:] Zasady prawa… [The Principles of Law…], and J. Wróblewski, Wstęp do systemu prawa cywilnego procesowego [Introduction to the System of Civil Procedural Law], Państwo i Prawo 1975, vol. 5.

19 It seems that this problem was addressed by Kordela, [in:] Zasady prawa… [The Principles of Law…].

20 M. Zieliński [in:] S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 53.

21 See J. Wróblewski, Zagadnienia… [A Theory…], pp. 255–260; S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 53 ff.

22 See J. Wróblewski, Zagadnienia… [A Theory…], pp. 255–260; S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [Principles of Law…], p. 53 ff.; J. Wróblewski, Prawo obowiązujące a „ogólne zasady prawa” [Positive Law and the “General Principles of Law”], ZNUŁ 1965, Nauki Humanistyczne, series I, vol. 42, p. 18–20.

23 J. Wróblewski, Prawo obowiązujące… [The Law in Force…], p. 18; S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [The Principles of Law…], p. 53 ff.

24 J. Wróblewski, Prawo obowiązujące… [The Law in Force…], p. 21; S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [The Principles of Law…], p. 53 ff.

25 S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [The Principles of Law…], p. 57.

26 M. Zieliński, [in:] S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [The Principles of Law…], pp. 32–33.

27 Ibidem.

28 M. Zieliński, [in:] S. Wronkowska, M. Zieliński, Z. Ziembiński, Zasady prawa… [The Principles of Law…], p. 209.

29 S. Wronkowska, [in:] A. Redelbach, S. Wronkowska, Z. Ziembiński, Zarys teorii państwa i prawa [An Outline of the Theory of State and Law], Warsaw 1993, p. 226.

30 M. Zieliński, [in:] Wykładnia prawa. Zasady. Reguły. Wskazówki [Interpretation of Law. Principles. Rules. Guidelines], Warsaw 2002, p. 34.

31 M. Kordela, Zasady prawa… [The Principles of Law…], p. 44.

32 Ibidem.

33 See T. Gizbert-Studnicki, Zasady i reguły prawne [Principles and Rules of Law], Państwo i Prawo 1988, vol. 3, pp. 16–26.

34 See M. Zieliński, Wykładnia prawa… [Interpretation of Law…], Warsaw 2002, p. 36 ff.

35 See T. Gizbert-Studnicki, Zasady… [Principles…], pp. 16–26.

36 Ibidem.

37 Ibidem.

38 Ibidem.

39 Ibidem.

40 Ibidem.

41 Ibidem.

42 Ibidem.

43 Ibidem.

44 M. Zieliński, Wykładnia prawa… [Interpretation of Law…], p. 36 ff.

45 S. Wronkowska, [in:] S. Wronkowska, Z. Ziembiński, Zarys teorii prawa [An Outline of the Theory of Law], Poznań 2001, pp. 79–80, 189.

46 M. Zieliński, Wykładnia prawa… [Interpretation of Law.…], 2002, s. 36 ff. and the literature referenced there.

47 S. Wronkowska, [in:] S. Wronkowska, Z. Ziembiński, Zarys teorii prawa… [An Outline…], p. 189.

48 R. Sarkowicz, [in:] R. Sarkowicz, J. Stelmach, Teoria prawa [A Theory of Law], Kraków 1998, p. 166.

49 Ibidem.

50 M. Zieliński, Wykładnia prawa… [Interpretation of Law…], p. 36 ff.

51 M. Kordela, Zasady prawa… [The Principles of Law…], pp. 276–277.