Broniowski v. Poland (application n° 31443/96), 22 June 2004 : interpretation under Teubner, Hart, Kennedy, Posner’s theories

de Fierlant Dormer Charles

Legal Theory Seminar : Final Essay

(Chairholder : Bailleux Antoine)

Broniowski v. Poland (application n° 31443/96), 22 June 2004 : interpretation under Teubner, Hart, Kennedy, Posner’s theories.

Université Saint-Louis -- Bruxelles

Academic year 2015-2016

Third year law baccalauréat

1. Table of content

1.        Table of content        2

2.        Abstract        3

3.        Introduction.        3

4.        Brief explanation of the Case        3

4.1.        Facts’ explanation        3

4.2.        Procedural explanation        5

4.2.1.        Before internal Courts        5

4.2.2.        Before the ECHR        6

5.        Analyzing the Question: “Is there really only one possible answer ?”        6

5.1.        Teubner’s point of view (systemic approach).        7

5.1.1.        Theoretical explanation of a snapshot of the law        7

5.1.2.        Application to the Case        7

5.1.3.        Theoretical explanation of the law in an evolutionary view.        8

5.1.4.        Application to the Case        9

5.2.        Hart’s point of view (positivism).        12

5.2.1.        Theoretical explanation        12

5.2.2.        Application to the Case        13

5.3.        Kennedy’s point of view (Critical Legal Studies).        14

5.3.1.        Theoretical explanation        14

5.3.2.        Application to the Case.        17

5.4.        Posner’s point of view (law and economics).        18

5.4.1.        Theoretical explanation        18

5.4.2.        Application to the Case        20

6.        Conclusion        24

1. Abstract

Before all we will introduce this text and its foundation.

Then, this text analyses different trends of law in regard with a Case previously explained.

About those trends of law, we will analyse Teubner’s trends and his idea of internalization in the autopoietic system of law; Hart’s philosophy in relation with the pilot-judgment procedure and the role of the ECHR; Kennedy’s “how-I-want-it-to-come-out” in regard with the Case and with judges’ feel of justice; and Posner’s view of wealth maximization and part of uncertainty having effects in the Case.

Finally, the general conclusion of the text tries to give a reflection to the reason of the text in itself and tries as well to give a broader vision.

In the whole text, we will have a certain structure and I will sometimes give my personal point of view.

1.  Introduction.

The theme of the Seminar of Legal Theory of this year is « The right answer’s myth ». It sustains there is really only one possible outcome that every court and tribunal would reach if they applied the same law.

But when I read the case Broniowski v. Poland (the Case), the question “Is there really only one possible answer ?” raised in my mind. It is a decision of the European Court of Human Rights (ECHR) of 22 June 2004 regarding property right. Therefore other courts already gave rulings regarding this case. I figured out these judgments are not all the same. So I decided to answer the question “Is there really only one possible answer ?” (the Question) through the lens of different trends of legal thinking studied during the Seminar.

Answers given in this essay are only applicable to this specific Case. It does not have as purpose to give any universal answer.

This analysis will take place in three steps. After an explanation of the Case (see 3), we will link some trends of legal theories with some key points of the Case (see 4), and we will finally conclude (see 5).

1. Brief explanation of the Case

First the facts (see 3.1) and the procedures (see 3.2) of the Case will be analysed.

1. Facts’ explanation

The Case takes place in Poland at the end of the Second World War. Sir Broniowski, a Polish citizen is the direct legal heir of his mother, who herself was the direct legal heir of her own mother. Broniowski’s grandmother owned land in the Eastern provinces of pre-war Poland.^[1] At the arrival of the communism during the Second World War, Poland’s eastern borders were redrawn. Broniowski grandmother’s lands were thus located outside Poland. Browniowski’s grandmother lost her land as many other Polish citizens.^[2] Those lands are usually called “Territories beyond the Bug River”.^[3]

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