Archiwum Filozofii Prawa i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVRwww.ivr.org.pl

Search Results for: democracy

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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Number of downloads: 523

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: 439

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