Archiwum
Filozofii Prawa
i Filozofii Społecznej

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

IVR

Removing a Spell by Spell? Some Remarks Regarding Rafał Mańko’s Monograph on the Critical Philosophy of Adjudication

Mgr Mateusz Wojtanowski

University of Wrocław

English abstract: The reviewer claims that Rafał Mańko’s monograph ‘Towards a critical philosophy of adjudication. The political, ethics, legitimacy’ (Łódź, 2018) should be connected with the so called essentialist wing of postmodernism, which deals with the issues of traditional philosophy under the veil of cognitive skepticism. The review attempts to convince a reader that the author’s authoritative metaphysical statements translate into too radical program in the field of adjudication. The reviewer do not deny the necessity to ‘open’ the traditional legal domain to external arguments, however, he claim that the proposal presented in this regard by Rafał Mańko is too far-reaching.

Keywords: adjudication, legal interpretation, political, ideology, CLS, postmodernism

Language: Polish

Published: Number 4(25)/2020, pp. 118-126.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.118

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A Judge Between the Reality of the Political and Ethical Imperatives: A Reply to the Review by M. Wojtanowski

Dr hab. Rafał Mańko

University of Wrocław

English abstract: The project of a critical philosophy of adjudication – the application of the presuppositions of critical jurisprudence to the area of judicial application of law – is, to a large extent, a polemic with Artur Kozak’s project of juriscentrism. Whereas the critical philosophy of adjudication accepts, by and large, juriscentrism’s claims concerning especially the social construction of legal reality, it does not accept the views concerning the determination of judicial decisions by institutional imperatives. Adopting Duncan Kennedy’s conception of the moderate indeterminacy thesis, critical philosophy of adjudication claims that the imperatives following from so-called traditional legal methods cannot be seen as limiting the judge when she needs to decide an intepretive dilemma. What the judge may perceive as resistance, are in fact ideological, political and economic imperatives, only cloaked in legal form. This leads to the conclusion that, in essence, a judicial decision has a political character, because it is never fully determined in an unequivocal manner by legal materials (provisions, precedents, intepretive habits), but it always remains, to a certain extent, open. In consequence, the judge, acting under the reality of the political (i.e. structural social conflicts) should not only follow the imperatives of the lex (legislation) and the ius (legal tradition), but also should abide by moral imperatives. The latter include, on the one hand, the requirement of transparency of legal reasoning (e.g. not concealing the extra-legal factors behind a decision), and, on the other hand, a conscious choice of the ideological premises of the decision. Critical philosophy of adjudication, as an emancipatory project, prefers in this respect a pro-emancipatory stance of the judge, i.e. that she strives to make decisions maximising the actual scope of freedom of the individual and liberating her from any form of domination.

Keywords: critical philosophy of adjudication, critical legal theory, adjudication, ideology, the political

Language: Polish

Published: Number 4(25)/2020, pp. 127-132.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.127

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Number of downloads: 175