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

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

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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Filed Under: Articles Tagged With: constitutional crisis, crisis of the rule of law, crisis of the rule-of-law state, legal constitutionalism, populist constitutionalism, reflexive constitutionalism, reflexivity of law

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This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

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Keywords

lay judges civic society government linguistic corpora Weight Formula intertemporal decision Radbruch judicial precedent moral intuition strategic voting one right answer metaphysical realism formalization scholarly interpretation cultural relativism principle of salience state of emergency principles of criminal law interest of the individual public interest legal awareness Filip Rakoczy formalism legal realism transmission easement beauty ideas of criminal law rationalization constitutional values legal system existentialism reasonableness of the law Maciej Pichlak participatory judiciary Michał Pawłowski Julius Binder networks Constitutional Court reflexivity article 18 of the Constitution Tomasz Pietrzykowski limits of legal interpretation David DeGrazia institutionalization of collective memory limitations of the lawyers’ power substantive inclusion Ronald Dworkin prevention good governance Hobbes

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