Archiwum Filozofii Prawa i Filozofii Społecznej

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

Mikołaj Ryśkiewicz — Wed, 30 Mar 2022 14:45:39 +0000

Dr Wojciech Mojski

Maria Curie-Skłodowska University in Lublin

English abstract: Disputes about values are completely natural in a state whose system is based on an axiologically open constitution. Another value in such a state should also be the constitution itself, which in the systemic sense guarantees an essentially equal position of various social and individual values. However, the constitutional crisis is not a natural dispute over values in a state with an axiologically open constitution, but is a situation that arose in the system of government, with a bad faith attempt being made to impose an exclusive system of values, while violating constitutional norms. This attempt concerns the fundamental values of a constitutionally regulated system, and thus the effect of this unconstitutional procedure is not only to undermine the constitution’s legal function, but also its axiological function. The aim of the study is to present the basic problems related to this issue, primarily in the context of the assumptions of constitutional theory, but also taking into account experiences with the Polish system of government in recent years.

Keywords: constitution’s functions, constitutional values, constitutional crisis

Language: Polish

Published: Number 1(30)/2022, pp. 55-62

DOI: https://doi.org/10.36280/AFPiFS.2022.1.55

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Number of downloads: 346

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Introduction to the Fidelity to the Constitution

Mikołaj Ryśkiewicz — Wed, 30 Mar 2022 13:06:23 +0000

Szymon A. Gasz, Marek P. Kaczmarczyk

University of Warsaw

English abstract: The time of changes taking place in the constitutional order, both constitutional and fait accompli changes, is undoubtedly an interesting opportunity for in-depth analyses. These analyses can be made from various perspectives. The authors focus on three basic perspectives – that of law, philosophy and political science – in order to investigate what they refer to as constitutional fidelity. The limited framework of the paper only permits providing an introduction to the subject. In this text, the authors indicate the basic categories of constitutional fidelity, reflect on the dimensions of this fidelity, and try to propose a solution to the puzzle of the future of Polish constitutionalism. The entire analysis repeatedly refers to sociological and, to some extent, psychological categories, because constitutional fidelity is, first of all, a proper civic attitude and a relationship, the awareness of which is often only discovered at a moment of crisis.

Keywords: constitution, constitutionalism, fidelity to the constitution, constitutional crisis, legal interpretation, civic society

Language: Polish

Published: Number 1(30)/2022, pp. 17-32

DOI: https://doi.org/10.36280/AFPiFS.2022.1.17

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Number of downloads: 358

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Polish Disputes Between Populist and Legal Constitutionalism in the Context of Reflexivity of Constitution

Karolina Gmerek — Fri, 25 Mar 2022 15:25:15 +0000

Dr hab. Maciej Pichlak

Uniwersytet Wrocławski

English abstract: The article aims to analyse legal constitutionalism and populist constitutionalism as two dominant ideological positions in the constitutional discourse of the last decades. The analysis is focused on the exemplifications of these positions in writings of selected Polish legal scholars, in the context of the Polish constitutional crisis of the rule of law, and conducted from the perspective of the philosophy of reflexivity. This theoretical and methodological approach enables demonstrating that the two examined doctrines – despite all the differences between them – share common erroneous assumptions regarding the relationships between law, democracy, and constitutional practice. Both of them strive to shape this practice in a closed-end and monological manner, subjected to one particular type of rationality. For legal constitutionalism, this will be juridical rationality, and for its populist counterpart – political rationality. This shared fallacy makes their ongoing dispute futile. An alternative approach to constitutionalism is to take into account the fundamental reflexivity of constitutional practice (regarded as the practice of creating, applying and interpreting a constitution, and of public debate on its text). In line with the general characteristics of reflexivity, constitutional practice appears as an open and pluralistic process, mediating between different viewpoints in society. Such an alternative is important not only when considering the Polish constitutional disputes, but also in the broader context of the contemporary crisis of liberal-democratic constitutional orders.

Keywords: legal constitutionalism, populist constitutionalism, reflexive constitutionalism, reflexivity of law, constitutional crisis, crisis of the rule-of-law state, crisis of the rule of law

Language: Polish

Published: Number 1(30)/2022, pp. 63-73

DOI: https://doi.org/10.36280/AFPiFS.2022.1.63

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Number of downloads: 381

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.