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Critical analysis of a judicial discourse on the legal situation of homosexuals in the light of Article 18 of the Constitution of the Republic of Poland

Mgr Wojciech Zomerski

University of Wroclaw

English abstract: In this paper, I make an attempt to conduct a critical analysis of judicial discourse devoted to the situation of homosexual persons in the light of Article 18 of the Constitution of the Republic of Poland. In order to show how unequal treatment of homosexuals is being reproduced, I analyze selected rulings of the Polish Constitutional Tribunal, Supreme Court and administrative courts. On the methodological level I refer to the Critical Discourse Analysis. In the result, the analysis of chosen rulings is conducted in the attempt to spot linguistic maneuvers leading to the reproduction of unequal treatment of homosexuals. Thus, in the course of this analysis I apply such notions as interpellation (Althusser), ideology (Žižek), doxa and habitus (Bourdieu). On the whole, I argue that the flawed interpretation of Article 18 is the result of referring to established judicial standpoint, illegitimate departures from linguistic interpretation, or many kinds of concealment and counterfactual premises. The origins of doxa that is the basis of such practice, might be seen in the Catholic doctrine which is based on the assumption of unnatural character of homosexuality and subordination of human sexuality to aims of procreation. In the end, I come to the conclusion that unmasking of axiological presuppositions underlying interpretation of the analyzed provision would fundamentally change the character of discussion devoted to the legal situation of homosexuals, satisfying Habermasian standards of deliberative democracy, and it might eventually lead to recognition of one-sex relations by legislator.

Keywords: homosexuality, article 18 of the Constitution, Critical Discourse Analysis, discrimination, ideology, doxa, interpellation

Language: Polish

Received: 13.03.2017
Accepted: 03.05.2017

Published: Number 2(15)/2017, pp. 80-97.

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Filed Under: Articles, Full texts Tagged With: article 18 of the Constitution, Critical Discourse Analysis, discrimination, doxa, homosexuality, ideology, interpellation, Wojciech Zomerski

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Maciej Koszowski Michel Foucault Feminist Jurisprudence qualified legal assistance normative standard syllogistic model for application of the law Beata Polanowska-Sygulska conflict resolution bioethics Adam Sulikowski ratio legis state law Kant militant ethnocentrism John Rawls law as a cultural subject public philosophy Agnieszka Choduń Herbert L. A. Hart critical legal thought Krzysztof Goździalski legal guarantees of advocates’ activity legal language in dubio pro reo extensive interpretation dialogue person circumstances excluding guilt cultural defense Unfinished Dialogue Wojciech Engelking ethical relationship Radbruch’s formula Sylwia Wojtczak impartiality original position aesthetics Isaiah Berlin Dominika Bek Adam Zienkiewicz the bar veil of ignorance in dubio contra reo rational application of law administrative law Magdalena Glanc intertemporal problems of law legitimacy Michael Moore Bartosz Janik

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