Zakład Teorii i Filozofii Prawa WPiA UAM

W dniach 31 października-1 listopada br. na Uniwersytecie Masaryka w Brnie odbyła się konferencja “Argumentation 2025: Games of Law”. Swoje wystąpienie pt.: “Rules to play, win or lose? Between rules of legal games and rules of winning them” wygłosili dr Maciej Dybowski, dr Weronika Dzięgielewska oraz dr Wojciech Rzepiński.

Więcej informacji o konferencji można znaleźć na stronach: https://argumentation.law.muni.cz/ oraz https://argumentation.law.muni.cz/media/3971417/boa.pdf.

Abstrakt wystąpienia:

A prominent Polish legal theorist and former Constitutional Court judge, Sławomira Wronkowska, remarked in a 2018 interview that throughout her career she has been more concerned with the “rules of game” (pol. reguły gry) than with the rules of winning (pol. reguły wygrywania), referring specifically to the practice of law. This metaphor offers a valuable conceptual incentive for further developing the line of inquiry we initiated in Dybowski et. al (2022).

In that paper, we distinguished between two senses of the term “legal game”: the first, where the game is identical with its rules or general practices of playing by such rules (called “GAME”), and the second, where the game represents a specific instance of individuals participating in it (“game”). Our goal was to propose an account of law as the GAME in terms of reasons and thus extend a typical picture of law limited to constitutive rules, by adding practical stakes. Additionally, we distinguished between three types of reasons employed by the participants of the legal game: legal reasons (‘L-reasons’ which derive from legal rules), epistemic reasons (‘E-reasons’, understood as propositions of fact) and stake reasons (‘S-reasons’, rooted in the idea that there are different possibilities to resolve a particular case and different consequences thereof).

In the present paper, we aim to elaborate on the distinction between the rules of specific games and the rules of winning. We identify key questions that guide participants in the legal practice as they seek the appropriate rules: What do I want to achieve? What is at stake? What are the consequences of doing A or B? Which of these approaches brings me closer to achieving my stake? We explore whether the rules of winning emerge from their experiences with the rules of the game.

Furthermore, we argue that the rules of winning can be identified and characterized based on S-reasons. It seems that the presence of stakes in legal games determines the possibility of “wins” (and – on the other hand – “losses”) in such games. In other words, there can be no winning without the stakes. We also examine whether it is possible to identify “rules of losing” (i.e., can one “lose in game” while still achieving a certain stake?). Briefly, we examine the relationship between rules of game and rules of winning and losing.

Finally, we draw attention to the relationship between the rules of games and rules of GAME, as well as rules of winning games and rules of winning GAME. In this context, we observe that the distinction under discussion offers the possibility to redefine the issue of the instrumentalization of law. The problem of instrumentalization is almost automatically viewed in a negative light; however, by distinguishing between stakes and, consequently, the rules for achieving them (rules of winning), we can also conclude that instrumentalization is an inherent feature of legal practices. Whether it is virtuous or vicious may depend on the value ascribed to stakes that one aims to achieve.