Filozofia Publiczna i Edukacja Demokratyczna
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Konstytucjonalizm jako refleksja
Full text linkThe objective of the paper is to present various forms of constitutionalism, with a special focus on constitutionalism understood as a form of reflection of political community. The paper adopts the perspective of reflexivity theory in order to reconstruct the basic alternatives in that regard, and also to reveal their potential advant ges and weaknesses. As it is demonstrated, it is precisely philosophical and sociological conceptions of reflexivity that are particularly suitable for understanding the specificities of constitutionalism – indeed, the latter, as a discourse about the foundations of the political and legal existence of a given community, inevitably assumes the form of reflection. The special focus within the paper is devoted to two key distinctions within the sphere of reflexivity theory, which impact the manner in which constitutional reflection is performed. The first of the distinctions concerns the relationship of reflection to tradition, while the second is done according to the criterion of the logical structure of reflexive cognizance. It is argued here that the dominant version of modern constitutionalism prescribes that constitutional reflexion be perceived as a closed process with the objective of emancipation from tradition. An alternative to this mainstream approach can be proposed in the form of capturing constitutionalism as reflexion with its foundation in tradition, at the same time dialogically mediated in other forms of social and political discourse
Władza konstytuująca jako przedmiot badań nauk prawnych
Full text linkThe article discusses the nature and role of constituent power in contemporary constitutional democracies. It presents the genesis of the concept of constituent power (phrased by Joseph Emmanuel Sieyès within the distinction between «pouvoir constituant» and «pouvoir constitué»), different approaches to this concept framed in the XXth century legal science by such thinkers as H. Kelsen and C. Schmitt, and finally the contemporary interpretations of this concept. The author indicates and analyses two major issues relevant to the nature and role of constituent power in the contemporary constitutional democracy. Firstly, he examines the thesis that the democratic constituent power’s activity remains normatively undetermined. The search for internal normativity that might characterise constituent power in democracy determines such practical constitutional issues as discretion of the legislator within the process of making or amending the constitution. Secondly, the author points out that analysis of the role of pouvoir constituant» in contemporary constitutionalism should not be limited to analysis of the „constitutional moment” only; the significance of constituent power should not be seen just in the framework of the one-off act of making the constitution. Constituent power should remain an active participant of constitutional discourse which induces a search for new principles ensuring balance between constituent and constituted power in constitutional democracies
Ewolucja analitycznej teorii prawa a bezpośrednie stosowanie konstytucji
Full text linkThe paper analyses the sources of diversity in opinions about the acceptability of direct application of constitution by courts in the so-called confrontational version (a judicial review: the refusal of application of the parliamentary act which is incoherent with a constitution). I claim that such differences result from diverging assumptions accepted within analytic jurisprudence. More precisely speaking, the above differences stem from the three alternative approaches within analytic legal theory: a traditional, a modern, and a postmodern (postanalytic) one. Polish legal thought is dominated by the modern approach, what influence also a debate on the direct applicability of constitution. The modern approach hardly accepts a situation in which a legal professional (a judge) needs to face new social and political challenges. The more adequate in this respect seems to be the postanalytic approach. Thus, arguments which refuse the judge’s right to directly and autonomously apply the constitution against the parliamentary law (which are put forth by some representatives of both legal doctrine and judiciary), are based mainly upon the modern version of the analytic legal theory. Alternatively, the postanalytic perspective offers theoretical foundations for the acceptability of direct and autonomous judicial application of the constitution. As for the traditional version of analytic theory, it possesses some explanatory force towards Polish political practice of the day. Since it supports claims which question any form of judicial activism. This approach seems to undermine any reasons for the existence of independent constitutional judiciary, the direct application of constitution byordinary courts included
Republikanizm i liberalizm w świetle idei konstytucjonalizmu. Uwagi o legitymizacji prawa
Full text linkThis paper addresses two key issues. The first involves an analysis of the connections between the ideas of republicanism, liberalism and constitutionalism. The second concerns the republican idea of self-determination and, consequently, the issue of the legitimation of law. The first section of the paper puts forward the thesis that constitutionalism can nowadays be understood as the idea of the legitimization of positive law, involving the synthesis of the two key values proclaimed by republicanism and liberalism, namely self-determination and negative freedom. The issue here is that the ideas of self-determination and negative freedom are both counterfactual, and the only area in which they can be synthesized is within the conceptual framework of positive law. The second section of the paper constitutes the justification of this thesis
Wolność jako zasada neokonstytucjonalna
Full text linkThe liberal principal in dubio pro libertate is the philosophical foundation of the theory of constitutional rule of law and constitutes an incorporation of moral principles into the law and order. It is perceived as a circumstance to confirm the legitimacy for the thesis of passing from rule of law to the constitutional rule of law on the philosophical and dogmatic planes. It influences the process of constitutionalization, and especially the rules governing the judicial interpretation, forming thus the legal theory of interpretation built upon the argumentative nature of the law and its weight-based application which is essentially a matter of selecting the rule applicable as the parameter of control of constitutionality. It bolsters up constitutionalism conceived as a set of legislative measures aimed at limiting the legislative authority and jurisprudence by attaching a particular importance to the liberty arguments whose value will be eventually referred to the good of the individual
Pewność prawa jako istotna wartość państwa prawnego
Full text linkThe legal philosopher Gustav Radbruch regarded legal certainty as one of the three fundamental pillars of law alongside justice and purposiveness. Nowadays, legal certainty is commonly recognised as a central requirement for the rule of law – a principle which protects from the arbitrary use of the state power. Analysis of the terms ‚rule of law’ and ‚legal certainty’ encouters many difficulties because of their ambiguity. However, despite their imperfections, these and other terms which describe and create contemporary political and legal reality serve as a point of reference for the assessment of existing and newly introduced regulations. They also constitute useful criteria for the comparison of the social orders in the international community. The main aim of this article is to analyze the way that legal certainty is perceived in the literature of legal theory and in the decisions of the court. The first part of the paper is devoted to the terminological issues. The second part focuses on the two aspects of legal certainty, on the process of creation and application of law. The final part presents the arguments justifying the legal certainty which, in particular, secures individual freedom and expresses respect for the individual autonomy
Deskryptywność i normatywność – horyzonty dialogicznej wizji człowieka
Full text linkQuestion about human is the basic thread of contemporary philosophy of dialogue. It does not cause neither systematicconcept of human, nor any system of anthropology (in meaningproposed by twentieth-century initiators), but impacts on marginalization of anthropological imponderabilia. Negatively – it was caused by refusal anthropological projects belonging to philosophical heritage by Philosophers of Dialogue. Positively – it was related to new anthropological perspective formulatedby these philosophers. By asking questions about human they amend the old yet still important oppositions: nature versus culture and nature versus history (being variant of this firstone). The most essential matter in their perspective is opposition between what belongs to nature (different from biological assumptions) and what is relevant to normative perspective. This suspense between two planes – descriptive and prescriptive – seems to be a consequence of the philosophical assumptions of Philosophers of Dialogue and argument for polifonia of anthropological discourse.Question about human is the basic thread of contemporary philosophy of dialogue. It does not cause neither systematic concept of human, nor any system of anthropology (in meaning proposed by twentieth-century initiators), but impacts on marginalization of anthropological imponderabilia. Negatively – it was caused by refusal anthropological projects belonging to philosophical heritage by Philosophers of Dialogue. Positively – it was related to new anthropological perspective formulated by these philosophers. By asking questions about human they amend the old yet still important oppositions: nature versus culture and nature versus history (being variant of this first one). The most essential matter in their perspective is opposition between what belongs to nature (different from biological assumptions) and what is relevant to normative perspective. This suspense between two planes – descriptive and prescriptive – seems to be a consequence of the philosophical assumptions of Philosophers of Dialogue and argument for polifonia of anthropological discourse
Dialectical model of character and Franklin’s method
Full text linkThe study analysis three personalities who generated selfrecords for a long period of time on their personality development and especially on character questions. The autobiographies** of Franklin, Gandhi and Thoreau’s Walden experiment are studied as paradigmatic modes of enhancing intentionally one’s own autonomy as a necessary condition to increase the personal ability to cope with major social conflicts for the sake of common good. The educational value of Franklin’s methods for character training is based on practical exercises carried with students.The study analysis three personalities who generated selfrecords for a long period of time on their personality development and especially on character questions. The autobiographies** of Franklin, Gandhi and Thoreau’s Walden experiment are studied as paradigmatic modes of enhancing intentionally one’s own autonomy as a necessary condition to increase the personal ability to cope with major social conflicts for the sake of common good. The educational value of Franklin’s methods for character training is based on practical exercises carried with students
Metoda normatywnej rekonstrukcji jako narzędzie krytyki społecznej
Full text linkThe main objective of this article is to introduce Axel Honneth’s method of normative reconstruction. The stages of its development will be shown—beginning from the intuitive reconstructions of empirically available social normativity up to the perspective of social criticism. Starting with Honneth’s self-criticism towards his own early methodological assumptions, I will indicate relevant factors that influenced the change in his methodological approach. Finally, I shall explain why the criticism formulated against the current stage of Honneth’s theory is mainly inadequate