Search Results for: public legitimacy

The Impact of Constitutional Regulations of the Republic of Poland and the Republic of Lithuania on the Participation of Women in the Public Sphere

Dr hab. Małgorzata Niewiadomska-Cudak

University of Economics and Human Sciences in Warsaw

English abstract: The article analyses the constitutional norm on gender equality referred to in the Constitution of the Republic of Poland of 1997 and the Constitution of the Republic of Lithuania (Lietuvos Respublikos Konstitucija) of 1992. The author tries to answer the question of how the principle of gender equality is enshrined in the two most important normative acts for both countries, which have the highest legal force in the system of legal sources. The scope of research interests therefore includes the issue of constitutional regulations and their impact on the participation of women in the governments of both surveyed countries, their national parliaments, and the European Parliament. The current democratic deficit can be viewed from the point of view of underrepresentation of women in political structures. The participation of women increases the legitimacy of democratic institutions and contributes to reducing gender inequalities in public life. Building awareness of the role of public institutions in the field of equal opportunities regardless of gender corresponds to the principle of social justice, according to which women and men should have equal access to high offices, including the national and European parliaments. Equality and justice are the core values and essence of democracy. A feature of particular importance is gender equality. A reliable basis for defining it is provided by the constitution, therefore the article presents how its provisions may have an impact on women’s participation in the political sphere.

Keywords: constitution, the principle of gender equality, political participation of women, underrepresentation, government, parliament

Language: Polish

Published: Number 2(31)/2022, pp. 70-83.

DOI: https://doi.org/10.36280/AFPiFS.2022.2.70

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Number of downloads: 383

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The Culture of Justification and Public Reason: Comments on the Motion of Members of the Polish Parliament to the Constitutional Tribunal

Prof. dr hab. Marek Smolak

Adam Mickiewicz University in Poznań

English abstract: The aim of the paper is to demonstrate how the culture of justification and the public reason can serve as legitimacy device in legal justifications. The idea of the culture of justification, proposed by David Dyzenhaus, makes an interesting contribution to the discussion on how to make headway with the problem of determining the limits of public authority. Applying Ron den Otter’ test of a reasonable sceptic, the author argues that the culture of justification becomes a good political and moral tool for limiting the exercise of public authority, if such a culture is understood and explained in light of the idea of public reason.

Keywords: culture of authority, culture of justification, public reason, test of a reasonable sceptic

Language: English

Received: 21.02.2019
Accepted: 04.05.2019

Published: Number 2(20)/2019, pp. 29-38.

DOI: https://doi.org/10.36280/AFPiFS.2019.2.29

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Number of downloads: 828

Communicative rationality as the basis for the legitimacy of good governance

Mgr Mariola Żak

University of Warsaw

English abstract: The main aim of this paper is to demonstrate that the concept of good governance, based on the theoretical description and methodology of the sciences of organization, public management and economy, auxiliary extending to other reconstructive sciences (political science, sociology, psychology), has the cognitive dimension, referring to the practical reasoning of individuals. Through subjection of specific strategies to the communicative rationality, depending on the normative context, the different ways of public sector management may be selected by the public agencies to a specific area of social relations. This choice is made based on the rational consensus, concluded between the stakeholders and the so-called depositary of the law, by which is meant the professionals associated with the performance of the public service: the politicians, the lawyers and the law-applying officials. The article shows the application of the theory of the communicative ethics: the universal pragmatics of J. Habermas and the transcendental pragmatics of K.-O. Apel in order to explain and justify good governance model.

Keywords: good governance, networks, legitimacy, instrumental rationality, communicative rationality, universal pragmatics, transcendental pragmatics

Language: Polish

Received: 25.09.2016
Accepted: Załączniki 02.03.2017

Published: Number 2(15)/2017, pp. 98-114.

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Number of downloads: 403

Equality of Narrative Inclusion in Decision-Making Processes: A Deliberative Approach

Mgr Marta Zuzanna Huk

Adam Mickiewicz University in Poznań

English abstract: This paper explores the relationship between narrative inclusion and the notion of equality from the perspective of the theory of deliberative democracy. It is based on the assumption that taking into account the diversity of discursive competences influences the constructed justifications constituting the source of legitimacy of political decisions. Moving beyond a purely argumentative discourse towards emphasising pluralism provides a significant enough modification of the theory to claim that it constitutes a separate model of deliberation. At the starting point, the role and purpose of narrative is presented, as well as the conditions under which it can be incorporated into deliberative processes. Then, consideration is given to the transformation of the category of equality that is brought about by introducing narrative to the framework of subject inclusion. The shift in meaning from unconditional equality to equalisation of opportunities is also addressed, in both procedural and substantive terms. Finally, the paper outlines the possible practical problems and risks that the inclusion of narrative in deliberation may raise.

Keywords: narration, theory of deliberative democracy, substantive inclusion, equalisation of opportunities, public legitimacy, mutual justifications

Language: English

Published: Number 3(32)/2022, pp. 49-59

DOI: https://doi.org/10.36280/AFPiFS.2022.3.49

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Number of downloads: 418

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Issue 1(30)/2022 „Archiwum…”: „Constitution and Values – Yesterday and Today” is available

We invite you to read the latest issue of „Archiwum Filozofii Prawa i Filozofii Społecznej”, the Journal of the Polish Section of IVR entitled “Constitution and Values – Yesterday and Today”. The issue was edited by prof. UW dr hab. Tatiana Chauvin, and includes the following papers:

Prof. Prof. UW dr hab. Tomasz Stawecki: Piotr Winczorek: Researcher, Teacher and Friend
Szymon A. Gasz, Marek P. Kaczmarczyk: Introduction to the Fidelity to the Constitution
Prof. UMK dr hab. Aleksandra Kustra-Rogatka: Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues
Prof. dr hab. Leszek Leszczyński: General Constitutional Clauses: Between the Legislative Construction and Its Implementation
Dr Wojciech Mojski: Analysis of the Constitutional Crisis from the Perspective of the Constitution’s Axiological Function. Outline of Basic Theoretical Issues
Dr hab. Maciej Pichlak: Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution
Dr Marcin Romanowicz: Instrumentalization of Law and the Constitutional Crisis: Reflection on the Basis of Several Topical Findings of Professor Piotr Winczorek
Dr hab. Anna Rossmanith: The Crisis of Dialogue and Political Community: Philosophical Reflections on the Relationship Between Pluralism, Difference and Dialogue
Dr Paweł Skuczyński: Social Reading of the Constitution of the Republic of Poland versus Constitutional Axiology and Constitutional Social Ontology
Prof. UŚ dr hab. Sławomir Tkacz, prof. dr hab. Zygmunt Tobor: Remarks About the Axiological Dimension of the Polish Constitution of 1997 and Its Interpretation in the Light of Works of Professor Piotr Winczorek

The issue also includes the introduction Constitution and Values – Yesterday and Today: Introduction by prof. UW dr hab. Tatiana Chauvin, and The statement of Presidium of the Association for Philosophy of Law and Social Philosophy – Polish Section of IVR on the aggression of the Russian Federation against Ukraine.

The issue is available HERE.

Number 1(30)/2022 [PL]

Constitution and Values: Yesterday and Today

Constitution and Values: Yesterday and Today. Introduction
(Prof. UW dr hab. Tatiana CHAUVIN)

Articles:

Prof. UW dr hab. Tomasz STAWECKI
Piotr Winczorek: Researcher, Teacher and Friend

Szymon A. GASZ, Marek P. KACZMARCZYK
Introduction to the Fidelity to the Constitution

Prof. UMK dr hab. Aleksandra KUSTRA-ROGATKA
Protection of Fundamental Rights as an Argument in the Dispute over the Legitimacy of Judicial Review. Selected Issues

Prof. dr hab. Leszek LESZCZYŃSKI
General Constitutional Clauses: Between the Legislative Construction and Its Implementation

Dr Wojciech MOJSKI
Analysis of the Constitutional Crisis from the Perspective of the Constitution’s Axiological Function. Outline of Basic Theoretical Issues

Dr hab. Maciej PICHLAK
Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution

Dr Marcin ROMANOWICZ
Instrumentalization of Law and the Constitutional Crisis: Reflection on the Basis of Several Topical Findings of Professor Piotr Winczorek

Dr hab. Anna ROSSMANITH
The Crisis of Dialogue and Political Community: Philosophical Reflections on the Relationship Between Pluralism, Difference and Dialogue

Dr Paweł SKUCZYŃSKI
Social Reading of the Constitution of the Republic of Poland versus Constitutional Axiology and Constitutional Social Ontology

Prof. UŚ dr hab. Sławomir TKACZ, Prof. dr hab. Zygmunt TOBOR
Remarks About the Axiological Dimension of the Polish Constitution of 1997 and Its Interpretation in the Light of Works of Professor Piotr Winczorek

From the life of the Polish Section of IVR:

The statement of Presidium of the Association for Philosophy of Law and Social Philosophy – Polish Section of IVR on the aggression of the Russian Federation against Ukraine

State of Emergency and State without a Name in Carl Schmitt’s Thought. Suggestion of a Separation

Mgr Wojciech Engelking

University of Warsaw

Abstract: The concept of a state of emergency is one of the most frequently cited elements of the thought of the German philosopher of the law and political theorist Carl Schmitt. In its discussions, however, the conceptualization of the state of emergency, which Schmitt proposed in 1924 in his juridical comments on Article 48 of the Weimar Republic’s constitution, is often linked with the theory of Ausnahmezustand from Political Theology (1922). Such a juxtaposition is a mistake, because Schmitt was not a consistent thinker and his texts can be mutually contradictory. I propose, therefore, to separate the state of emergency from Ausnahmezustand – translated from German literally as a state without a name. The main difference between them consists in the different types of legitimacy. The state of emergency from the Constitution of the Weimar Republic finds its legitimacy in this document from 1919, however, read by Schmitt in a way that in his Constitutional Theory (1928) he referred to as relativization of the constitution. For the state without a name, as not being included in the legal order and the equivalent of a miracle in theology, such legitimacy is impossible. In order to find it, one must refer to other Schmitt’s works than the strictly judicial ones. I believe that the state without a name may be legally valid – in a word: not a coup d’état – if we acknowledge that Schmitt’s political theology is not just a methodological project that translates theological notions into political and legal ones, but a wider proposal rooted in the faith in Revelation. Therefore, this figure from the work of the German thinker in which the state of emergency finds its legitimacy is taken from St. Paul’s letters; it is the figure of a katechon: the one who comes and stops the world from disintegration. The use of such legitimacy emphasizes the reluctance to accept modernity, which Schmitt did exhibit, and presents him as a thinker who continued the medieval way of thinking, which is completely incompatible with the strictly modern concept of a state of emergency.

Keywords: Carl Schmitt, state of emergency, state without a name, katechon, political theology

Language: Polish

Received: 24.12.2018
Accepted: 14.03.2019

Published: Number 1(19)/2019, pp. 15-26

DOI: https://doi.org/10.36280/AFPiFS.2019.1.15

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Number of downloads: 849

Number 2(15)/2017 [PL]

Articles:

Dr Michał BARAŃSKI
Personalistic dialogue and cognition of natural law

Dr Arkadiusz BARUT
Court as the incarnation of the People. Deconstruction of the idea of popular constitutionalism

Prof. dr hab. Andrzej MALINOWSKI
A few comments on the formalization of legal reasonings under analogy legis and a contrario

Dr Łukasz MIROCHA
The limits of religious argumentation in the public sphere. Between participation and coercion

Dr Maciej PICHLAK
The ius et lex distinction in the contemporary legal science

Prof. UŚ dr hab. Olga SITARZ, Dr Dominika BEK, Mgr Jakub HANCc
The influence of the conscience clause and cultural defense on the appraisal of the structure of crime

Mgr Wojciech ZOMERSKI
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 Mariola ŻAK
Communicative rationality as the basis for the legitimacy of good governance

Reports:

Dr Rafał MAŃKO
III Międzynarodowe Warsztaty o Prawie i Ideologii Rządy prawa a polityka konfliktu, Tbilisi, Gruzja, 23–24 maja 2016 r.

Mgr Konrad KOBYLIŃSKI, Dr Rafał MAŃKO
XXXI Krytyczna Konferencja Prawnicza, Canterbury, Wielka Brytania, 1–3 września 2016 r.

Mgr Filip RAKOCZY
XXII Zjazd Katedr Teorii i Filozofii Prawa Prawo – polityka – sfera publiczna, Wrocław, 18–21 września 2016 r.

Court as the incarnation of the People. Deconstruction of the idea of popular constitutionalism

Dr Arkadiusz Barut

University of Wrocław

English abstract: The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities
of the criticism of its lawmaking.

Keywords: philosophy of law, theory of democracy, popular constitutionalism, Bruce Ackerman

Language: Polish

Received: 22.05.2017
Accepted: 08.08.2017

Published: Number 2(15)/2017, pp. 13-25.

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Number of downloads: 419