ideology

The Question of the Autonomy of Law in the Light of E.B. Pašukanis’s Hylomorphic Theory

Dr hab. Rafał Mańko

Central European University, Democracy Institute (Budapest, Hungary)

English abstract: The purpose of this article is to examine the position of Evgeny B. Pašukanis regarding the problem of autonomy of law. The source material for the research is his monograph entitled The General Theory of Law and Marxism (1924), in which he laid down the framework of his hylomorphic theory of law, also described as materialist or realist. The article begins with a reconstruction of the basic assumptions of Pašukanis’s hylomorphic theory of law and then moves on to the key issue of his views on the genesis of juridical form. In the light of the analysis, the article shows that the essence of law in J Pašukanis’s view is that it is a form that shapes and makes possible the relations of economic exchange that constitute its proper matter. Against this background, the article addresses the issue of the autonomy of law, indicating that it should be considered in two dimensions: the internal autonomy of law, i.e. the autonomy of juridical form in relation to its content, and the external autonomy of law, i.e. the autonomy of law in relation to the state, politics and ideology. When it comes to the internal autonomy of law, the paper points out that the relationship of the form of law to its matter is – in Pašukanis’s view – of a dialectical nature, which results in his rejection of Marx’s conception of law as a ‘superstructure’ reflecting economic relations in the ‘base.’ When it comes to the external autonomy of law, Pašukanis is firmly on the side of a hard ontology of law, based on its hylemorphic substance (the composite of the matter of acts of exchange and its legal form), which makes law primary vis-à-vis the state and politics and essentially distinct from ideology. This does not, of course, exclude the ideological nature of law, but – again contrary to Marxists – Pašukanis does not allow for the recognition of law as an essentially ideological phenomenon.

Keywords: autonomy of law, ideology, hylomorphism, juriscentrism, juridical form, legal form, Pašukanis

Language: Polish

Published: nr 4(41)/2024, pp. 91-103

DOI: https://doi.org/10.36280/AFPiFS.2024.4.91

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Number of downloads: 158

This text is licensed under a Creative Commons Attribution 4.0 International License.

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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Number of downloads: 512

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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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: 415