Archiwum Filozofii Prawa i Filozofii Społecznej
Journal of the Polish Section of IVR (ISSN:2082-3304)
Language: English
Published: Number 3(21)/2019, p. 5.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.5
Download: Download
Number of downloads: 407
English abstract: During the last four years the situation in Poland has been a matter of interest to the worldwide legal community mostly due to the constitutional crisis. Yet, the years 2015–2019 were also a time of a revival of transitional justice measures, such as cleansing the public sphere of communist symbols, remodelling of lustration law, and further reduction of pensions of communist secret service employees and officers. In this paper I argue that these spheres are interconnected and that Poland’s constitutional crisis has a transitional justice dimension. I start with an overview of retrospective instruments dealing with the communist past introduced in the last four years. Next, I turn to the constitutional crisis itself, discussing its possible explanations and transitional justice aspects. In the end I claim that the dramatic constitutional backsliding that Poland has recently experienced can be explained not only as a power grab, but also as a result of the tension between the rule of law and the principle of individual responsibility on one hand – and the resort to collective accountability in an attempt to get what the government sees as justice on the other.
Keywords: transitional justice, lustration, decommunization, Poland’s constitutional crisis, Polish Supreme Court, rule of law, sincerity principle
Language: English
Published: Number 3(21)/2019, pp. 22-39.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.22
Download: Download
Number of downloads: 779
English abstract: Relations between the Holocaust, memory, and law are constantly reconceptualized. In the second decade of the 21st century there is no clear consensus on the way the Holocaust, memory, and law are or should be interconnected, especially in Central and Eastern Europe. A striking example of the new dynamics of those tensions is an amendment to the Act on the Institute of National Remembrance, which in January 2018 inserted Articles 55a and 55b. The paper states that these controversial provisions (later withdrawn) should be understood as specific memory laws in response to the transnational memory of the Holocaust and the non-consensual dialogue on the Jedwabne pogrom in Polish society. The paper shows the law as a result of a certain dialogue, a voice in the dialogue, and an attempt to limit this dialogue – as well as the effects of such limitation. The paper adopts Leszek Koczanowicz’s conception of dialogue, Natan Sznaider’s description of the transnational Holocaust memory, as well as the idea of the future-oriented ethics of never again, and Eviatar Zerubavel’s concept of a conspiracy of silence in order to frame the context and meaning of the emergence, short life, disappearance, and traces of the law. Although these articles “refract” criminalization of the Holocaust and genocide negationism, understood in the context of Polish historical politics, they are themselves close to a specific form of denial, i.e. denial of the Jedwabne massacre. A recollection of the Polish memory law casts a shadow on the future, as a threat exists that the law might appear again.
Keywords: transnational memory of the Holocaust, ethics of never again, politics of time, dialogue, dialogical cosmopolitanism, Jedwabne debate, memory law
Language: English
Published: Number 3(21)/2019, pp. 81-94.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.81
Download: Download
Number of downloads: 578
English abstract: This article offers a socio-legal reflection on the relation between law, state obligation, and attempts to institutionalize collective memory. As the question of memory institutionalization becomes most pertinent in the context of regime change that imposes on an incumbent government certain expectations for addressing the past, the article considers this research problem from the perspective of transitional justice theory. The transitional justice paradigm allows for an interdisciplinary consideration of the topic. Special attention is paid to legal norms and mechanisms directed towards establishing authoritative knowledge about the past. The emerging principle of the right to truth is presented as an integrating and rights-based perspective from which to approach societal demands for acknowledging injustices of the past. Measured against the fundamental rights that lie at the heart of transitional justice theory, three types of truth revelation procedures are presented. The article shows that the relationship between law and memory – which is often reduced to one of political instrumentalization – should, in accordance with the values of a liberal democracy, be reframed from the perspective of individual and collective rights. The article seeks to contribute to the field of memory studies in the social sciences by exposing functions of legal norms and mechanisms that are often overlooked when discussed from the perspective of the politics of memory.
Keywords: collective memory, truth revelation procedures, transitional justice, right to truth, politics of memory, post-communist Poland
Language: English
Published: Number 3(21)/2019, pp. 51-66.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.51
Download: Download
Number of downloads: 560
English abstract: The paper deals with the link between the notions of constitutional identity and nostalgic collective memory. Starting from the notion of nostalgia of postmodern society as used in social theory, it shows that this cultural condition is reflected in in constitutions. The point of reference for contemporary political projects is no longer the future but the past. Longing for a lost homeland becomes a dominant social emotion. The author shows that this vision of the past is present in constitutions, especially in post-communist countries. It influences constitutional identity and, due to different temporal structures, is in conflict with the constitutional identity of the EU. The article ends with an analysis of the consequences of such a politics of nostalgia and the possible defence mechanisms against it.
Keywords: constitutional identity, collective memories, nostalgia
Language: English
Published: Number 3(21)/2019, pp. 95-106.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.95
Download: Download
Number of downloads: 584
English abstract: The article is an analysis of the regulations regarding the reduction of pensions of former officers of the People’s Republic of Poland’s security services as an element of state politics of memory, presenting the Uniformed Services Pension Amendment Acts of 2009 and 2016 from the perspective of transitional justice.
Whilst investigating the admissibility of using such a retribution mechanism, the author draws attention to the purpose of this type of regulation. Reducing pensions has, in fact, two goals – a retrospective one and a prospective one. The retrospective goal is about administering historical justice by penalizing a specific group of people using various mechanisms (in this case administrative sanctions). In the prospective aspect, it is an element of institutionalizing memory and building a specific political narrative. As a consequence, apart from commemorative practices, it aims to produce and disseminate knowledge in public space, while clearly rejecting the past regime.
In relation to the Uniformed Services Pension Amendment Acts, while the Act of 2009 was to some extent aimed at the retrospective goal, the 2016 Act is primarily an element of politics of memory used by authorities to control the recollection of past events by explicitly condemning the previous system and all persons in any way related to it. For this reason, the author focuses on the mechanism of reducing pensions as one of the elements of politics of memory in Poland.
Keywords: Uniformed Services Pension Amendment Acts in Poland, politics of memory, institutionalization of collective memory, decommunization, reducing pensions of communist officials, transitional justice
Language: English
Published: Number 3(21)/2019, pp. 67-80.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.67
Download: Download
Number of downloads: 561
English abstract: This paper aims at explaining the concepts of collective memory, institutions, politics, law, as well as relations between them. By means of a short explanation of a network of mutual relations between these notions, we want to show how law and collective memories interact and how the relation between them is formed. At the same time, we see three modes of relations between collective memories and law: 1) past before the law, 2) memory laws and 3) law as collective memory. The first view consists in evaluating the past under a court trial. The second one in creating legal rules which promote or demand commemoration of a specific vision of the past. The third approach perceives law itself as institutionalized collective memory.
Keywords: collective memories, institutions, memory laws, politics of memory
Language: English
Published: Number 3(21)/2019, pp. 6-21.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.6
Download: Download
Number of downloads: 85
Language: English
Published: Number 3(21)/2019, pp. 107-108.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.107
Download: Download
Number of downloads: 482
English abstract: The main goal of the article is to conduct case studies of CEE memory policies introduced after the fall of communism and to present them as an interesting field for examining the instrumentalization of law. The primary research question is: Do several case studies of several memory policies implemented in post-communist states help to examine the theoretical concept of the instrumentalization of law? In this paper, I intend to show the hidden potential of such studies. I present some of the specific elements of new constitutionalization attempts in CEE, which included narratives of memory in several constitutions in the region. I also show their relation to the concept of instrumentalization of law. Finally, I describe some political acts of instrumentalization of law in the field of collective memory.
Keywords: instrumentalization of law, memory policies, collective memory, legal petrification of the past
Language: English
Published: Number 3(21)/2019, pp. 40-50.
DOI: https://doi.org/10.36280/AFPiFS.2019.3.40
Download: Download
Number of downloads: 571
On 10 July 2020 Polish Editorial Committee of “Archiwum Filozofii Prawa i Filozofii Społecznej” met online. Apart from the members of the Committee, members of the journal’s Editorial Board were also present, as well as the representatives of the Managing Board of the Polish Section of IVR, our publisher. The Editorial Committee unanimously chose prof. Tomasz Gizbert-Studnicki (Jagiellonian University in Kraków) as its president.
The Committee discussed the activity of the journal in the last 10 years, as well as plans for the future, including ways in which the journal may become more international. The discussion was based on statistical data, which can be downloaded HERE in English. The Members of the International Editorial Committee were asked to provide feedback on the matters discussed through a questionnaire.