Legal Narrative and Legal Disagreement

Redakcja — Tue, 22 Jan 2019 18:41:11 +0000

Mgr Marta Dubowska, Dr hab. Adam Dyrda

Jagiellonian University in Kraków

Abstract: What is the relationship between general legal theories and legal narratives? In this paper we aim to problematise this relationship in the context of different legal disagreements. As we see it, the Dworkinean category of “theoretical disagreement”, which basically refers to the phenomenon of disagreement “about the grounds of law” (between different general legal theories) is not sufficient to cover all substantial disagreements that appear in legal practice. Thus, we propose a category of “narrative disagreement” which has a wider scope. Eventually, we discuss the thesis of a possible equality of legal theories, as well as legal narratives, which we understand as an inevitable consequence of the relationship between legal theories/narratives and a special type of evidence on which they both rely: truisms about the law that laymen and/or legal professionals generally share.

Keywords: general legal theories, legal disagreement, theoretical disagreement, narrative disagreement, legal narrative, legal truisms

Language: English

Received: 26.12.2017
Accepted: 26.01.2018

Published: Number 2(17)/2018, pp. 47-59.

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Statement of reasons for a dissenting opinion as a dialogical utterance on the example of selected rulings of the Polish Constitutional Tribunal

Redakcja — Thu, 12 Jul 2018 10:29:03 +0000

Dr Maciej Wojciechowski

University of Gdańsk

English abstract: This paper claims that the statement of reasons for a dissenting opinion is a dialogical utterance. Due to the limitations imposed by the secrecy of judicial deliberations it is impossible to describe the direct exchange of arguments between the members of a judicial panel. To some extent, however, we can assume that the presented opinion of the court and a dissenting opinion represent the end result of such deliberations. It is not the same, however, to call both of them examples of dialogue. Real-time dialogue consists of a multitude of utterances of people taking part in a discussion. In the case of the final statement of reasons of the judgment and of the dissenting opinion, the number of utterances is in general limited to two separate large blocks of sentences, each block being one utterance. For this reason we can distinguish between the notion of ‘dialogue’ and that of ‘dialogical utterance’. Such a distinction was proposed in Polish theory of literature in the 1970s by J. Lalewicz. According to Lalewicz, a dialogical utterance depends on the preceding opinion, and its main feature is the ability to become a reference to that opinion. Apart from presenting forms of dialogicality, the article aims to explain these forms by presenting features other than the personal style of legal writing of a given judge. Three factors that might explain the higher or lower level of dialogicality in dissenting opinions are presented. The first factor is of an institutional nature, that is, the way work in the court is organised. The second factor is what I call a potential for an argument. Finally, the third one is the axiological importance of a given case.

Keywords: dissenting opinion, dialogical utterance, dialogue, judicial deliberations, statement of reasons for a court judgment, Constitutional Tribunal, legal disagreement

Language: Polish

Received: 06.06.2017
Accepted: 22.08.2017

Published: Number 1(16)/2018, pp. 69-82.