University of Warsaw

English abstract: The paper aims to propose a social reading of the Constitution of the Republic of Poland as an alternative to liberal and republican interpretations. It was developed with the use of an interdisciplinary methodology, including the use of societal constitutionalism as its theoretical basis, as well as its formal-dogmatic justification and its characterisation in the perspective of the theory of law as relating to the social ontology expressed in the Constitution of the Republic of Poland. A thesis is put forward that the social reading of the Constitution consists in recognizing some social entities as constitutional entities, next to individuals and the State. Consequently, the norms concerning them should be interpreted as obliging the state authorities to ensure their influence on public policies and the law-making, and to take into account the bottom-up creation of norms and broadly understood self-regulation. Four arguments for the social reading of the Constitution of the Republic of Poland are presented, which are based on: 1) the scope of the constitutional regulation (extensive regulation in Chapter 1 of social and public entities such as local and professional self-government bodies, trade unions, and employers’ organizations, civil society organisations, churches, and religious unions); 2) the way they are regulated (despite the identity of the designatum, regulating these entities alongside the concept of a sovereign nation and imposing certain obligations on the State authorities towards them); 3) the historical context of the making of the Polish Constitution (building the autonomy of society in relation to the state as a strategy of resistance from the 1970s); 4) the work on drafting the Polish Constitution (the gradual addition of provisions on social entities, often due to pressure exerted by, which was an expression of far-reaching self-constitutionalisation).

Keywords: societal constitutionalism, social ontology, constitutional values

Language: Polish

Published: Number 1(30)/2022, pp. 100-112

DOI: https://doi.org/10.36280/AFPiFS.2022.1.100

Download: Download
Number of downloads: 404

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

University of Warsaw

English abstract: The instrumentalization of law is one of the most important research issues that belong to the achievements of Professor Piotr Winczorek. Combining the problem of the limits of permissible instrumentalization of law with the issue of the axiology of law, he adopted a non-reductionist position and indicated the autotelic values of law, as well as non-legal values implemented by the legal system as the criteria for assessing acts of instrumentalization of law. Based on careful observation of the legal practice, primarily the actions of the legislature, he proposed a typology of various cases of pathological instrumentalization of law.

A list of individual acts of enacting and applying the law that can be distinguished in the ongoing constitutional crisis in Poland, broken down by the types indicated by Prof. Winczorek, leads to the conclusion that not only is his typology still valid, but it also can be used as an adequate tool for an in-depth description of the ongoing crisis. Moreover, it enables the indication of yet another threat to the legal order, i.e. attempts to instrumentalize constitutional values. In the face of this danger, it is justified to formulate the postulate of giving the constitution an axiological interpretation, the aim of which would be to read a given legal principle in the hermeneutic context of the axiological system from which said legal principle derives genealogically.

Keywords: instrumentalization of law, typology of instrumentalization acts, legal axiology, legal values, constitutional values, legal principles, axiological interpretation of law

Language: Polish

Published: Number 1(30)/2022, pp. 74-90

DOI: https://doi.org/10.36280/AFPiFS.2022.1.74

Download: Download
Number of downloads: 393

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

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

Download: Download
Number of downloads: 345

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