the political

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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Number of downloads: 447

The Political in the Polish Analytical Legal Theory

Dr Michał Stambulski

University of Wrocław

Abstract: The article examines the concept of the political in the Polish analytical theory of law. This subject was not a direct object of considerations of the authors who worked in this vein. However, the legitimisation of the legal system, sources of law, and the interpretation of the constitution can be considered as problems related to the political. They give rise to the issues surrounding the political within the Polish analytical theory of law. When these problems are considered from the perspective of analytical theory, a vision of the desired society emerges. Frank admission to the problems of the political in analytical theory opens up a new field of research. However, this requires theoreticians of law to change the language they habitually use. Such an opening implies the need to introduce the language of political philosophy within the theory of law and to develop new criteria for validating theoretical statements.

Keywords: theory of law, the political, legitimacy, sources of law, constitutional interpretation

Language: Polish

Received: 25.06.2018
Accepted: 06.09.2018

Published: Number 3(18)/2018, pp. 64-73.

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Number of downloads: 292

Political Character of the Copyright on the Example of its Inconsistency with the Indigenous People’s Vision of the World

Mgr Mateusz Wojtanowski

University of Wrocław

Abstract: The article deals with an inconsistency between the indigenous vision of the world and copyright. The author refers to the category of the political as the proper one to reflect this friction. The work embraces influential intuition of Carl Schmitt on the relationship between politicality and conflict. The author assumes that what can be treated as an expression of political vision (i.e. as something which is not neutral) is political. This approach does not require direct link with the traditionally understood sphere of politics to discern the realm of political.

Keywords: indigenous people, copyright, the political, conflict

Language: Polish

Received: 13.06.2018
Accepted: 07.09.2018

Published: Number 3(18)/2018, pp. 86-96.

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Number of downloads: 254

Legal Sciences and the Problem of the Political: The Perspective of Critical Jurisprudence

Dr Rafał Mańko

University of Amsterdam

Abstract: The growing interest in the connections between legal phenomena and the political (das Politische, le politique) justifies an analysis of the problem of the relationship of legal sciences towards the political. The article focuses on two juridical sub-disciplines: analytical legal theory and legal dogmatics, and the analysis is conducted from the perspective of critical jurisprudence, a juristic application of critical theory. Towards this end, first the concept of ‘the political’ is defined, along the lines of Chantal Mouffe, as a dimension of antagonism, which lies at the foundation of any society. The political, understood in this way, must be differentiated both from ‘politics’ and from ‘policies’. As far as analytical legal theory is concerned, the article claims that it is programmatically (yet tacitly) political, as it affirms the juridical form as such, abstracting from its concrete content. As far as legal dogmatics is concerned, the article claims, following Sawa Frydman, that the dogmatician, despite his declared apoliticality, when performing a doctrinal interpretation of law, makes in fact decisions which are not only interpretive, but also political ones, setting subsequent stages in the antagonistic struggles within society.

Keywords: legal science, the political, antagonism, analytical legal theory, legal dogmatics, critical legal theory

Language: Polish

Received: 13.06.2018
Accepted: 04.09.2018

Published: Number 3(18)/2018, pp. 38-50.

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Number of downloads: 414

The Political Character of the (Theory of) Interpretation of Law. Stanley Fish’s Neo-pragmatist Perspective

Mgr Jakub Łakomy

University of Wrocław

Abstract: In this paper, I analyse the political character of the interpretation of law and the political nature of the theory of legal interpretation from Stanley Fish’s neo-pragmatist perspective. In the first part of the text, I define the concept of politics and the political, borrowing from Chantal Mouffe. I clearly distinguish between the political, politics, and policy; this article uses the first concept (the political). In the second part of the article, I characterize hermeneutic universalism as one of the approaches to the problem of legal interpretation.

In the third part, following the characteristics of the concepts of interpretive communities as defined by Stanley Fish, I draw conclusions about the political nature of the interpretation of law and the theory of the interpretation of law. In conclusion, I analyse the possibilities of building a theory of legal interpretation that internalises the inherently political character of knowledge by analyzing the concept of post-analytical philosophy proposed in literature by Andrzej Bator.

Keywords: jurisprudence, the political, neopragmatism, interpretive community, hermeneutic universalism, interpretation

Language: Polish

Received: 13.06.2018
Accepted: 13.08.2018

Published: Number 3(18)/2018, pp. 24-37.

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Number of downloads: 486

What „The Political” Can Bring Into The Polish Theory of Law. Toward a Further Investigations

Dr Michał Paździora, Mgr Michał Stambulski

University of Wrocław

English abstract: The political is a category entirely absent in the Polish theory and philosophy of law. Article presents history of “the political”, category developed by thinkers such as M. Weber, K. Marx, C. Schmitt, Ch. Mouffe and the main assumptions of the practical aims of theory of law present in alternative projects: Poznań-Szczecin methodological school and L. Morawski critical theory. Despite the declared theoretical differences, both projects are characterized by a similar understanding of the theory, which involves the objectivity of knowledge with involvement of universal point of view. Thus, the inclusion of the category of political in both projects, especially in legal education, is ignored.

Keywords: the political, postmodernism, agonism

Language: Polish

Published: Number 1(8)/2014, pp. 55-66

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Number of downloads: 282