Rafał Mańko
Central European University, Democracy Institute, Faculty Member
- Research Methodology, Political Philosophy, International Law, Legal Theory, Legal Philosophy, Legal History, and 75 moreEuropean Legal History, Critical Theory, Critical Thinking, Critical Legal Theory, Teoria generale del diritto, European contract law, Contratti, Eastern European Studies, Sociology, Law, Constitutional Law, Comparative Politics, Philosophy, Political Science, Democratic Theory, Transitional Justice, Justice, Judicial Reform, Europeanization, judicial reform in Post-Communist Central and Eastern Europe, Civil society in post-communist countries, judicial reform in Central and Eastern Europe, Judicial Supremacy, Accession Conditionality, Post communist, Judicial Subordination, History, Sovereignty, Human Rights, Jurisprudence, Comparative Law, Sociology of Law, Trust, Cultural Studies, Anthropology, Philosophy of Science, Social Sciences, Marxism, European Law, Russian Studies, Geopolitics, Law and Society, Private International Law, Law and Politics, Roman Law, Religion and Politics, Aristotle, Medieval Philosophy, Philosophy Of Law, Modernity, Modernism, Lawmaking of the European Court of Human Rights, Legal Realism, Psychology, Public Health, Art History, Social Psychology, Public Policy, Ethics, Languages and Linguistics, Historical Anthropology, Soviet Regime, Soviet History, Ethnolinguistics, Philosophical Anthropology, Marxist theory, Abstraction, Analytic Philosophy, Judgment and Decision Making (Judgment And Decision Making), Comparative Constitutional Law, Eastern Europe, Contract Law, European Constitutionalism, Constitutionalism, and Constitutional Politicsedit
- In my work as legal philosopher I combine insights from critical legal theory, comparative legal history and sociolog... moreIn my work as legal philosopher I combine insights from critical legal theory, comparative legal history and sociology of law in order to study the political and ideological entanglements of juridical form. My two particular areas of interest are the resilience of juridical form under conditions of revolutions and transformations, on one hand, and the role of ideology and the political in legal interpretation, and specifically adjudication.edit
Legal institutions are created at a certain point in time, intended to be applied to 'life' as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer,... more
Legal institutions are created at a certain point in time, intended to be applied to 'life' as it is perceived at the specific moment when they are elaborated and cast into legal form. As a result, legal institutions always already refer, in their original design, to a certain normality, but between the moment of creation of a legal institution and its application to future situations there is always a certain time lag. Some legal institutions-referred to in the paper as "legal survivals"-outlive the epoch in which they were created and continue their legal life long after the conditions which lead to their creation had, in the meantime, disappeared. The aim of this paper is to put forward an archaeologico-genealogical perspective on legal survivals not only as a method of studying continuity of law and the resilience of juridical form, but also as a line of enquiry capable of enriching our understanding of the juridical in its relation to the changing circumstances of life. The study of legal survivals allows to combine three aspects of legal continuity: firstly, the continued use of the same legal forms in different circumstances and for different purposes, whereby the same juridical form is filled with different socioeconomic substance; secondly, the gradual adaptation of legal forms to new circumstances; thirdly, the emergence of new legal forms in close reference to old ones. The study of legal survivals allows to address the foundations of law's claims to authority, based on stability and predictability of juridical forms. It also reveals the complex and multilayered nature of legal form which effectively has the structure of a palimpsest.
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On 22 October 2020 the Polish Consitutional Court (PCC), dominated by the conservative appointees of the ruling Law and Justice party, issued a landmark decision outlawing embryopathological abortion. For a judgment of the PCC to enter... more
On 22 October 2020 the Polish Consitutional Court (PCC), dominated by the conservative appointees of the ruling Law and Justice party, issued a landmark decision outlawing embryopathological abortion. For a judgment of the PCC to enter into force, it must be published in the Journal of Laws, and it is up to the Prime Minister to decide on the date. This power, initially conceived of as a purely technical act, has grown, under the rule of Law and Justice, into a de facto form of super-review of the executive over the PCC, a power used already in 2016. What is more, the decision to suspend the publication of the controversial judgment was even officially justified by the mass protests taking place in the cities and towns across Poland. Thus, the Prime Minister openly confessed that he decided to use his power of delaying the publication in order to give in to popular unrest. In order to explain what happened, the chapter – drawing on Benjamin, Schmitt and Agamben – puts forward the novel concept of exceptio popularis or the minor state of exception, defined as a situation in which the constituted power, under pressure from the people amounting to a tumultus (such as exerted through strikes or other forms of protest) suspends the operation of a certain legal norm which is the object of the people’s unrest. The “minor” state of exception is one in which the dialectics of power and subjection are somewhat reversed: it is the people which demands the suspension or abolition of the rule, and the constituted power gives in (for some time) to that popular demand.
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The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe's agonistic theory of democracy onto the domain of the juridical, and specifically, judicial... more
The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe's agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decisionmaking. Mouffe's concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature-juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of ongoing collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a 'relative sovereignty', being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not 'apply itself' on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe's theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.
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The history of the 20th century, and more recently the two-decades long war on terror, have taught us the lesson that the normalisation of the state of exception (intended here as the proliferation of... more
The history of the 20th century, and more recently the two-decades long war on terror, have taught us the lesson that the normalisation of the state of exception (intended here as the proliferation of legal instruments regulating emergency powers, and their constant use in varied situations of crisis) is never immune from the risk of leaving long-lasting impacts of legal and political systems. With the “Return of the Exception” we intend to bring to the fore the fact that in the pandemic the state of exception has re-appeared in its “grand” version, the one that pertains to round-the-clock curfews and strong limitations to the freedom of movement and assembly, all adorned by warfare rhetoric of the fight against an invisible enemy – which, given the biological status of viruses, it cannot but be ourselves. But “return” here must be intended also in its psychoanalytic meaning. Much like the repressed that lives in a state of latency in the unconscious before eventually returning to inform consciousness and reshape behaviour, the state of exception is an element that remains nested in law’s text before reappearing in a specific moment with forms and intensity that are not fully predictable. Still, it remains cryptic whether the pandemic inaugurates a new epoch of liberal legality – the post-law – or just augurs its structural crisis
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The aim of the current paper is to analyse the actual role of ideology in legal interpretation from the perspectives of legal theory, philosophy of law and theoretical sociology of law. Due to the unavoidable indeterminacy of legal... more
The aim of the current paper is to analyse the actual role of ideology in legal interpretation from the perspectives of legal theory, philosophy of law and theoretical sociology of law. Due to the unavoidable indeterminacy of legal language and the impossibility to predict all potential future situations at the stage of creating legal norms by the legislator, legal interpretation always involves a certain degree of discretionality on the side of the interpreter who fills in the gaps left by the legal materials by solutions consistent with that ideology.
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In this chapter, I aim at exploring the question of the ideology of the legal form with an eye to the concept of the political. For this purpose, I first define the concept of legal form and identify the juridical as a separate field from... more
In this chapter, I aim at exploring the question of the ideology of the legal form with an eye to the concept of the political. For this purpose, I first define the concept of legal form and identify the juridical as a separate field from the political, underlining the prevalence of the latter over the former. In ideological terms, I consider that the juridical serves to reproduce and propagate two distinct ideologies – the currently hegemonic political ideology (the current ideology of the political) on the one hand, and the residual ideology of the juridical (the juridical ideology), which is in fact the ideology of the legal form as such, on the other hand. The juridical ideology combines both elements of an ideology of external legal form (legal form in general) with elements of ideology of the internal legal form (the way that a particular legal form is internally arranged, e.g. valuing coherence and systematisation, or rather fact- orientedness and predictability).
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Confronting the law as a form of ideology is not an easy task, especially for lawyers very strongly attached to the internal point of view as part of their professional habitus. Despite this difficulty, the present paper aims at... more
Confronting the law as a form of ideology is not an easy task, especially for lawyers very strongly attached to the internal point of view as part of their professional habitus. Despite this difficulty, the present paper aims at contributing to the ideological demistification of law by proposing to apply Slavoj Žižek’s critique of ideology to the legal field. In particular, the paper elaborates a specific methodology of subjecting legal texts to a critique of ideology by way of identifying the symptoms, i.e. points of breakdown of the ideological field which are simultaneously necessary for that field to achieve its closure. The paradox of symptoms is that they are inevitable for the ideological field, yet at the same time they undermine it, opening up a space for its critique. In this context, the aim of this paper is to confront the fundamental fantasies conveyed by legal ideology. The paper approaches ideological fantasies in strict connection with ideological interpellation, i.e. the process in which a human individual is transformed into a subject of ideology. Ideological interpellation of individuals into subjects is one of the chief operations of the law, which, in its current form, is based on the fundamental assumption that human beings are subjects of rights and duties. Directing the critique of ideology at legal texts aims at undermining the efficacy of the ideological grip held by the Symbolic order upon individuals by insisting on the classical Lacanian thesis that ‘the big Other does not exist’. On a practical level, critique of legal ideology performed by lawyers themselves can help to bring about a more reflexive approach to their participation in the principal practices of legal culture and can help to raise lawyers’ awareness regarding their role in society.
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After 1989, the Polish legal elites have embraced a transformation discourse, presenting modern Polish legal history as a circular journey from Europe to the dystopia of "Communism" and back. As a consequence, links with the... more
After 1989, the Polish legal elites have embraced a transformation discourse, presenting modern Polish legal history as a circular journey from Europe to the dystopia of "Communism" and back. As a consequence, links with the state-socialist past have been repressed from the collective consciousness of the legal community and presented as post-Soviet "weeds" in the Polish gardens of justice. However, the repressed weeds return in the form of symptoms-legal survivals, which lawyers tend to ignore or conceal because they subvert the dominant ideological narrative. In this paper, I focus on metanormative survivals of the Socialist Legal Tradition in Poland which can all be brought under the umbrella term of "hyperpositivism." This concept denotes an extreme version of classical legal positivism, mixed with elements of orthodox Marxism-Leninism, in the form created in the Soviet Union in the 1930s and exported to Central European countries after World War II. Owing to the persistence of legal survivals of Actually Existing Socialism in Polish legal culture, the paper argues for their reappraisal by resorting to a metaphorical reconceptualisation on the basis of selected mappings from the source domain of Lacanian psychoanalysis.
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Artur Kozak (1960–2009) was one of the most original and innovative philosophers of law to emerge from the so-called ‘middle generation’ of Polish post-War jurisprudence. Kozak’s principal achievement was to break away from the analytical... more
Artur Kozak (1960–2009) was one of the most original and innovative philosophers of law to emerge from the so-called ‘middle generation’ of Polish post-War jurisprudence. Kozak’s principal achievement was to break away from the analytical paradigm of legal theory, dominant in the in Poland at the time, and engage legal theory in a fruitful dialogue with contemporary sociology and philosophy, including such currents as social constructionism or postmodernism. To name his original theoretical project, Kozak coined a new term – ‘juriscentrism’ (juryscentryzm), consciously evoking Richard Rorty’s concept of ethnocentrism. Juriscentrist legal theory was mainly focused on providing legitimacy for the newly gained power of the legal community in a post-socialist society, but its theoretical resonance is universal. Kozak’s premature death made it impossible to complete the theoretical project of juriscentrism, nonetheless he managed to elaborate its main tenets, including the concept of juristic discretional power and a juriscentrist concept of law. Kozak’s legacy in contemporary Polish legal theory is particularly visible in Wrocław, where not only the post-analytical paradigm in Poland is the strongest, but also the first Polish school of critical legal theory has recently emerged.
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There can be no doubt that Professor Artur Kozak (1960-2009) was amongst the most original and innovative Central European legal theorists of the turn of the 20 th and 21 st century. His legal theory named 'juriscentrism' , based on an... more
There can be no doubt that Professor Artur Kozak (1960-2009) was amongst the most original and innovative Central European legal theorists of the turn of the 20 th and 21 st century. His legal theory named 'juriscentrism' , based on an unprecedented synthesis of philosophical interpretationism and anti-representationism, sociologocial constructivism, as well as pragmatist ethics (inspired by ethnocentrism), allowed to produce a fresh legitimising narrative for lawyers' power in society. The present paper aims to enquire about the place and role played by legal tradition within Kozak's jurisprudential project. Its main claim will be that legal tradition is a keystone of juriscentrism, as it is the basis for the identity and the reproduction of the legal community, the sole guarantor of the reasonableness of judicial decisions. Purpose: Evaluation of the role of legal tradition in Artur Kozak's project of juriscentrism. Methods: Analysis of the works of Artur Kozak and of the secondary literature about his works.
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The Court of Justice of the EU (CJEU) is well known for its preference for extralegal legal arguments over intra-legal ones. Indeed, in the CJEU's interpretive practice, as a rule, linguistic arguments give way to systemic and... more
The Court of Justice of the EU (CJEU) is well known for its preference for extralegal legal arguments over intra-legal ones. Indeed, in the CJEU's interpretive practice, as a rule, linguistic arguments give way to systemic and teleological ones, and the Court's prevalent approach favours policy arguments (i.e. extra-legal ones) over linguistic interpretation (i.e. a paradigmatic form of the deployment intra-legal arguments). The object of this study is a single decision of the CJEU, namely its judgment of 14 March 2013 in Case Aziz v Catalunyacaixa (Case C-415/11) in scope of proportion and significance of extra-legal and intra-legal arguments.
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Contrary to traditional accounts, which treat adjudication as the application of legal norms to the facts of a case, without any creative activity, the present paper assumes, following crtitical legal theory, that adjudication as a social... more
Contrary to traditional accounts, which treat adjudication as the application of legal norms to the facts of a case, without any creative activity, the present paper assumes, following crtitical legal theory, that adjudication as a social practice belongs to the sphere of the political and involves judicial decision-making. The concept of the political is understood, following Chantal Mouffe, as the dimension of unalienable and inherent antagonism underlying any society. Any judicial decision, and especially one taken in a case where the court enjoyed a broad scope of discretion, influences a given social antagonism. However, as a prerequisite of a critical analysis of case-law it is necessary to identify the social antagonisms in question. To this end, the paper first analyses the very concept of an antagonism, highlighting its collective character, and then makes a tentative application of the concept to the European Court of Justice, attempting to identify the main types of social antagonisms which are subject to the Court's jurisdiction.
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Since 1986, Poland has had its Constitutional Tribunal, placed outside the structure of ordinary judiciary. Since 1993, this court has been issuing 'interpretive judgments' in which it decides that a certain statutory rule is... more
Since 1986, Poland has had its Constitutional Tribunal, placed outside the structure of ordinary judiciary. Since 1993, this court has been issuing 'interpretive judgments' in which it decides that a certain statutory rule is constitutional only under a certain interpretation� On numerous occasions the Supreme Court has refused to follow the Constitutional Tribunal's decisions, claiming that they are unconstitutional, ultra vires and non-binding. An analysis of the arguments put forward by both courts in this 'war of the courts' reveals that the Supreme Court prefers ultra-formalist arguments typical of the hyperpositivist legal culture of the former state-socialist period, whilst the Constitutional Tribunal seems to prefer pragmatist arguments, more typical to contemporary Western legal culture. The article concludes that behind the 'war of the courts' in Poland there is a clash of legal cultures and attempts at identifying the reasons for it�
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Chartering Central Europe as a Legal Space C entral Europe-here understood as the former state-socialist countries, which joined the EU between 2004 and 2013 1-remains, to a large extent, unchartered territory for (Western) critical... more
Chartering Central Europe as a Legal Space C entral Europe-here understood as the former state-socialist countries, which joined the EU between 2004 and 2013 1-remains, to a large extent, unchartered territory for (Western) critical lawyers and comparatists-at-law. In order to fill this lacuna this collection of essays aims at exploring the background, the state of the art, and new perspectives on critical legal thought in this part of Europe. The idea of the book originates in a stream 'Reconstruction, Return or Revolution? The Phenomenon of Critical Legal Thought in European Post-Communist Countries' convened by Adam Sulikowski at the 2013 Critical Legal Conference in Belfast. However, this book is not a simple volume of conference proceedings, but a collective research monograph in its own right, given that the scope of the chapters goes beyond the initial theoretical and hermeneutical engagement of the presented papers. Rather, the first Central European stream at the CLC should be understood as an Event which gave rise to the emergence of the critical legal community of Central Europe, for which this very first collective volume is the cornerstone. We shall return to our engagement with the British Critical Legal Conference in section III where we explore the variegated and multifaceted sources of legal critique in our region. Whilst the geographical, cultural, and political setting of our plural engagement with law and critical theory is one of the topics informing the background of this book, it is not the only point of juncture. Our contributions aim to critically explore the status of law in national and regional contexts by asking three crucial and interconnected questions.
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One of the key elements of the critical theory of adjudication is the identification of an objective antagonism that is at stake behind a given court case. The identification of the antagonism allows to develop an axis, along which... more
One of the key elements of the critical theory of adjudication is the identification of an objective antagonism that is at stake behind a given court case. The identification of the antagonism allows to develop an axis, along which interpretive possibilities can be spread and arranged from those most favourable to social group A (e.g. workers) to that most favourable to social group B (e.g. businesses). The paper discusses the famous Laval-Viking case-law which was concerned with the fundamental rights of workers (right to strike and undertake collective action) and their relation to the economic freedoms of businesses, seeking to escape the high standards of worker protection in their own country either by changing the flag of a ship to a flag of convenience (Viking) or by importing cheap labour force from abroad, without guaranteeing the workers equal rights (Laval). Whereas the vast majority of scholars have interpreted the Viking-Laval jurisprudence as relating to the fundamental socioeconomic antagonism opposing workers and businesses, the Slovenian scholar Damjan Kukovec has proposed an alternative reading. According to him, the real antagonism is ultimately between workers from the periphery (Central Europe, in casu Baltic countries) and workers from the centre (Western Europe, in casu Scandinavian countries). By introducing the spatial dimension to the political, Kukovec entirely changes the formulation of the underlying antagonism. The paper engages critically with Kukovec's analysis and argues that the objective interest of Central European workers lies not in selling their labour at dumping prices, but gaining the same guarantees of social protection as existing in the West.
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This article examines, on the one hand, the relationship between methods of legal interpretation used by judges, and on the other hand, the legitimacy of judicial discretion and the impact of judicial decisions upon structural social... more
This article examines, on the one hand, the relationship between methods of legal interpretation used by judges, and on the other hand, the legitimacy of judicial discretion and the impact of judicial decisions upon structural social antagonisms (known as 'the political'). The article posits a direct correlation between the method of interpretation chosen by the court, and the legitimacy of its discretion as well as the level of decision-making with regard to the political. Accordingly, if a court chooses a linguistic method of interpretation, adhering to the objective will of the treaty-makers and legislators, the legitimacy of a decision has more weight, and the extent of judicial decision-making in the field of the political is correspondingly lower. However, this may sometimes not be possible due to the general features of legal language, and especially specific features of the legal language. This creates a need for the judge to arrive at a decision, which must be legitimised on the basis of the axiological choices made, and interests protected. To this end, a tentative normative theory of interpretation is proposed.
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Legislation - the social practice of creating abstract legal rules in a (usually) parliamentary process - inherently belongs to the sphere of the political. This is because, as Pashukanis observed, all law is born out of conflict of... more
Legislation - the social practice of creating abstract legal rules in a (usually) parliamentary process - inherently belongs to the sphere of the political. This is because, as Pashukanis observed, all law is born out of conflict of interests. Legislative rules are aimed at striking a certain balance between such conflicted interests, rendering winners (beneficiaries) and losers (maleficiaries). The actual social effects of legislation are difficult to judge in the abstract, and therefore empirical research is necessary. The methodology proposed in the Polish context by Paweł Chmielnicki is an interesting step in this direction. Unmasking the dimension of the political, i.e. the social antagonisms, in legislation calls for the development of a new branch of critical legal theorycritical legisprudence. In contrast to non-critical legisprudence inaugurated by Luc Wintgens in the 1990s, critical legisprudence rests on the solid pillars of a hermeneutic of suspicion and emancipatory goal which are common to all strands of critical legal theory. In this perspective, any single legislative rule is treated as only the momentary outcome of ongoing social struggles. There is no perfect compromise and a 'harmonious' society, at least within capitalism, is impossible. The practical task of critical legisprudence is, therefore, to become the 'lobbyist of the people', and on the basis of solid empirical researchfor instance, along the lines of analytical realism proposed by Chmielnicki, propose legislative solutions which will reduce oppression and promote emancipation.
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The present paper is a reaction to Maciej Pichlak's article Law in the Snares of the Political: Addressing Rafał Mańko's Critical Philosophy of Adjudication which was published in this journal ("The Critique of Law" 2020, 12(3), pp.... more
The present paper is a reaction to Maciej Pichlak's article Law in the Snares of the Political: Addressing Rafał Mańko's Critical Philosophy of Adjudication which was published in this journal ("The Critique of Law" 2020, 12(3), pp. 109-125). The present response addresses selected issues raised in Pichlak's critique, focusing on three aspects: law and the political, the importance of justice in the critical project, and finally the question of adjudication and ideology. On a more general note, the polemic reveals the importance of philosophical, political and ideological commitments and presuppositions of legal theorists and poses the question of the limits of the autonomy of jurisprudential debates vis-à-vis such commitments.
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The aim of the current paper is to analyse the actual role of ideology in legal interpretation from the perspectives of legal theory, philosophy of law and theoretical sociology of law. Due to the unavoidable indeterminacy of legal... more
The aim of the current paper is to analyse the actual role of ideology in legal interpretation from the perspectives of legal theory, philosophy of law and theoretical sociology of law. Due to the unavoidable indeterminacy of legal language and the impossibility to predict all potential future situations at the stage of creating legal norms by the legislator, legal interpretation always involves a certain degree of discretionality on the side of the interpreter who fills in the gaps left by the legal materials by solutions consistent with that ideology.
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The paper argues that the multilingualism of the EU legal order should be viewed from the point of view of the right of individuals to acquaint themselves with the their rights and duties under EU law in the official language of their... more
The paper argues that the multilingualism of the EU legal order should be viewed from the point of view of the right of individuals to acquaint themselves with the their rights and duties under EU law in the official language of their Member State. In case of discrepancies of equally authentic versions, individuals should have the possibility to rely on an 'authentic version' defence, especially in tax, customs and criminal law relationships.
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The scholarly analysis and critique of law always take place under circumstances of scarcity of academic resources. At any given moment, the number of academic jurists mastering a given legal system and being capable of analysing and... more
The scholarly analysis and critique of law always take place under circumstances of scarcity of academic resources. At any given moment, the number of academic jurists mastering a given legal system and being capable of analysing and critiquing it at a professional scientific level is limited. The pandemic of COVID-19 only exacerbated this phenomenon, exposing the importance of making methodological and paradigmatic choices. What critical legal theory teaches us is that the choice of method and approach to the analysis and critique of legal materials is not politically neutral. Asking about the political goals and choices behind solutions adopted by legislators, ministers, civil servants, law enforcement officers, and judges, and about the actual interests impacted by their decisions is much more important and topical in these difficult times. A sociologically oriented critical legal theory can provide the necessary tools for such an analysis of the corpus iuris pandemici.
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The possibility of producing apolitical knowledge is, beyond doubt, one of the chiefideas of modernity. It was implemented in various ways, including in the domain of legalscholarship. Legal scholarship found itself in a peculiar... more
The possibility of producing apolitical knowledge is, beyond doubt, one of the chiefideas of modernity. It was implemented in various ways, including in the domain of legalscholarship. Legal scholarship found itself in a peculiar situation because of the object of itsstudy – the law. It is assumed that its, at least partial, instrumentality cannot be free fromentanglements, including engagements with the political . Any discussion of an “apoliticalcharacter” obviously presumes an analysis of the concept of the “political,” which is thedefinitional opposite of “apolitical.” We understand the “political” character of science andlegal scholarship as encompassing three different dimensions: (1) the political (das Politische, le politique, polityczność), understood as the fundamental antagonism at the foundation of anyhuman society, present in the deep structure of legal theory/philosophy of law anddoctrinal legal scholarship (a concept developed in contemporary philosophy of politics by, inter alia,
, Chantal Mouffe); (2) politics (die Politik, la politique, polityka), understood as a set of practices and institutions which, in conditions of conflict created by the political
(in the meaning given above), creates anorder enabling human coexistence; this meaning is the closest to the intuitive meaning of political, derived from the thought of Max Weber; (3) an influence upon creating public policies (die Politike, les politiques, polityki), , understood as a set of principles which need to be adopted in order to pursue a certain aim (e.g. “agricultural policy,” “consumerpolicy” or “defence policy”). This notion is especially underlined in pragmatist legal philosophy.
, Chantal Mouffe); (2) politics (die Politik, la politique, polityka), understood as a set of practices and institutions which, in conditions of conflict created by the political
(in the meaning given above), creates anorder enabling human coexistence; this meaning is the closest to the intuitive meaning of political, derived from the thought of Max Weber; (3) an influence upon creating public policies (die Politike, les politiques, polityki), , understood as a set of principles which need to be adopted in order to pursue a certain aim (e.g. “agricultural policy,” “consumerpolicy” or “defence policy”). This notion is especially underlined in pragmatist legal philosophy.
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Technocratic law inflicts symbolic violence on human subjects by imposing upon them a reductionist vision of their existence, limited to the aspect of homo oeconomicus passivus. At the same time, this symbolic violence serves to achieve... more
Technocratic law inflicts symbolic violence on human subjects by imposing upon them a reductionist vision of their existence, limited to the aspect of homo oeconomicus passivus. At the same time, this symbolic violence serves to achieve the main technocratic goal of the
depoliticisation of decision-making. Law is perceived through the
optic of instrumental rationality, while juridification has nothing to do with justice, but merely serves to insulate technocratic decision-making from the political sphere. This paper enquires whether, in the process of its judicial interpretation, the humanization of technocratic law can lead to its repoliticisation. On the basis of case studies of three well-known judgments of the European Court of Justice (Leitner, Omega
and Aziz), the article makes the assertion that indeed, humanization can be instrumental to repoliticisation. However, by referring to the judgment in Alemo-Herron, the author draws the final conclusion that politicisation is only the first step, and a further one is to ask specifically about the subject of interests protected by the law.
depoliticisation of decision-making. Law is perceived through the
optic of instrumental rationality, while juridification has nothing to do with justice, but merely serves to insulate technocratic decision-making from the political sphere. This paper enquires whether, in the process of its judicial interpretation, the humanization of technocratic law can lead to its repoliticisation. On the basis of case studies of three well-known judgments of the European Court of Justice (Leitner, Omega
and Aziz), the article makes the assertion that indeed, humanization can be instrumental to repoliticisation. However, by referring to the judgment in Alemo-Herron, the author draws the final conclusion that politicisation is only the first step, and a further one is to ask specifically about the subject of interests protected by the law.
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The wave of revolution in the region of Central and Eastern Europe (CEE) that began in 1989 resulted in the rejection of actually existing socialism, widely perceived as oppressive, and its replacement with neoliberalism. Despite... more
The wave of revolution in the region of Central and Eastern Europe (CEE) that began in 1989 resulted in the rejection of actually existing socialism, widely perceived as oppressive, and its replacement with neoliberalism. Despite democratic rhetoric, in matters of political decision making, neoliberalism has been decidedly undemocratic relying on "experts" implementing the "objective laws of economics." On the wave of democratisation, the neoliberal ideology supported by a relatively small percentage of society became hegemonic. Although the sense of democratisation was widespread, lawmaking was not based on the realisation of social preferences. On the contrary, it was legislative processes that shaped the society's axiological preferences. The neoliberal bias concerned not only economic policy and legislation, but also judicial decisions. The CEE variant of conservative-social populism can be described as a reaction to the neoliberal hegemony but it must be kept in mind that the semi-peripheral CEE region remains different from the West on various accounts. The problems here are sometimes rooted in Western concepts, (failed) legal transplants, and local reflections of Western disputes. However, even if they are imported, they take very specific forms that require both specific tests and diagnoses as well as original, region-specific solutions.
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The present introductory chapter offers an overarching background narrative on the semi-peripheral condition of Central and Eastern Europe (CEE), impacting upon its legal and political culture, against the backdrop of which the current... more
The present introductory chapter offers an overarching background narrative on the semi-peripheral condition of Central and Eastern Europe (CEE), impacting upon its legal and political culture, against the backdrop of which the current right-wing populist tendencies have emerged. It first addresses the potential of a criticojuridical engagement with authoritarian populism emphasising the need for a proper critical methodology, including ideology critique, and going beyond the point of view of liberal legality. The chapter also looks into the semi-peripheral status of Central and Eastern Europe, reading against not only the world system theory of Immanuel Wallerstein, but also post-colonial theory, as well as the theory of legal transplants. Finally, the chapter sets the broader historical context in which the CEE variety of right-wing illiberal populism has emerged, characterised by weak institutional traditions, frequent and profound transformations, and deep historical traumas affecting the law, politics, economy, and society in the region.
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Niniejsza monografia stanowi pierwszą w literaturze polskiej próbę podjęcia problematyki wykładni i stosowania prawa z perspektywy krytycznej teorii prawa. Praca nawiązuje twórczo w szczególności do koncepcji Costasa Douzinasa i Duncana... more
Niniejsza monografia stanowi pierwszą w literaturze polskiej próbę podjęcia problematyki wykładni i stosowania prawa z perspektywy krytycznej teorii prawa. Praca nawiązuje twórczo w szczególności do koncepcji Costasa Douzinasa i Duncana Kennedy'ego, proponując oryginalną wizję społecznej roli sędziego jako podmiotu odpowiedzialnego za kierunek rozwoju prawa w perspektywie realizacji wymogów sprawiedliwości materialnej.
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The present methodological paper aims at answering the question whether the notion of ideological interpellation, put forward by L. Althusser, in the form given to it by S. Žižek, can be operationalised in order to be deployed as a tool... more
The present methodological paper aims at answering the question whether the notion of ideological interpellation, put forward by L. Althusser, in the form given to it by S. Žižek, can be operationalised in order to be deployed as a tool for the critical reading of legal texts. The paper gives a positive answer to the question, indicating that the application of the said method may contribute to the opening of legal discourse towards the impact of critical theory. The paper consists of three parts. The first part presents Žižek’s theory of ideology, the second part discusses the notion of ideological interpellation, and the third part is devoted to a preliminary attempt at operationalising the said notion.
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After 1989, the Polish legal elites have embraced a transformation discourse, presenting modern Polish legal history as a circular journey from Europe to the dystopia of "Communism" and back. As a consequence, links with the... more
After 1989, the Polish legal elites have embraced a transformation discourse, presenting modern Polish legal history as a circular journey from Europe to the dystopia of "Communism" and back. As a consequence, links with the state-socialist past have been repressed from the collective consciousness of the legal community and presented as post-Soviet "weeds" in the Polish gardens of justice. However, the repressed weeds return in the form of symptoms-legal survivals, which lawyers tend to ignore or conceal because they subvert the dominant ideological narrative. In this paper, I focus on metanormative survivals of the Socialist Legal Tradition in Poland which can all be brought under the umbrella term of "hyperpositivism." This concept denotes an extreme version of classical legal positivism, mixed with elements of orthodox Marxism-Leninism, in the form created in the Soviet Union in the 1930s and exported to Central European countries after World War II. Owing to the persistence of legal survivals of Actually Existing Socialism in Polish legal culture, the paper argues for their reappraisal by resorting to a metaphorical reconceptualisation on the basis of selected mappings from the source domain of Lacanian psychoanalysis.
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Celem niniejszego artykułu jest przybliżenie koncepcji interpelacji ideologicznej oraz zastosowanie jej do prawa w celu odkrycia ideologicznych przesłanek tworzonych przez nie form podmiotowości.
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The article traces the realization of the concepts of liberty, equality, and property in the context of private law, with particular emphasis on the contracts for the supply of digital content. Reflections on each of the three... more
The article traces the realization of the concepts of liberty, equality, and property in the context of private law, with particular emphasis on the contracts for the supply of digital content. Reflections on each of the three aforementioned concepts consist of a general and specific part. The general part is historical and comparative in nature, while the specific part covers proposed rules governing contracts for the supply of digital content to consumers.
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Artykuł stanowi pierwszą w polskiej literaturze próbę kompleksowego ujęcia ideologicznego (aksjologicznego) zaplecza europejskiego prawa prywatnego.
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The present chapter aims at presenting the juridical nature of the Martial Law in Poland (1981-1985) in its broader political, economic and social context. That context is different from states of exception in capitalist polities, and... more
The present chapter aims at presenting the juridical nature of the Martial
Law in Poland (1981-1985) in its broader political, economic and social context. That context is different from states of exception in capitalist polities, and therefore, in the next section I will put a strong emphasis on the ‘normalcy’ of state socialism, including the place of law and fundamental rights in that concrete order. Only against that background can the actual juridical value of the Martial Law be evaluated. The question whether there indeed existed an exceptional situation in December 1981 is a crucial one, as it determines whether the state of
exception was justified in the light of the Constitution of the Polish People’s Republic, or not. The possibility of a ‘fraternal aid’ from Poland’s Warsaw Pact allies, keen on preserving authoritarian state socialism, is only one aspect of the exceptionality, discussed in the subsequent section. The economic, social but above all internal political situation – with the movement of Solidarność (Solidarity) challenging the hegemonic role of the Leninist party (i.e. the Polish United Workers’ Party, henceforth the ‘Party') – amounted to an exceptional situation, as I will argue. The next section, perhaps the most lawcentric one in this chapter, provides a brief overview of the juridical acts introducing martial law – that is, the resolution of the Council of State and the accompanying legislative decrees which, in my view, were all perfectly legal under the state-socialist constitution of the period. Finally, in the last section, I address the question of the nature of General Jaruzelski’s dictatura, specifically asking about its commissary or sovereign character, and about its role in transforming the Polish politity and building the foundations of the
‘rule of law’.
Law in Poland (1981-1985) in its broader political, economic and social context. That context is different from states of exception in capitalist polities, and therefore, in the next section I will put a strong emphasis on the ‘normalcy’ of state socialism, including the place of law and fundamental rights in that concrete order. Only against that background can the actual juridical value of the Martial Law be evaluated. The question whether there indeed existed an exceptional situation in December 1981 is a crucial one, as it determines whether the state of
exception was justified in the light of the Constitution of the Polish People’s Republic, or not. The possibility of a ‘fraternal aid’ from Poland’s Warsaw Pact allies, keen on preserving authoritarian state socialism, is only one aspect of the exceptionality, discussed in the subsequent section. The economic, social but above all internal political situation – with the movement of Solidarność (Solidarity) challenging the hegemonic role of the Leninist party (i.e. the Polish United Workers’ Party, henceforth the ‘Party') – amounted to an exceptional situation, as I will argue. The next section, perhaps the most lawcentric one in this chapter, provides a brief overview of the juridical acts introducing martial law – that is, the resolution of the Council of State and the accompanying legislative decrees which, in my view, were all perfectly legal under the state-socialist constitution of the period. Finally, in the last section, I address the question of the nature of General Jaruzelski’s dictatura, specifically asking about its commissary or sovereign character, and about its role in transforming the Polish politity and building the foundations of the
‘rule of law’.
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The aim of this paper is to analyse recent (2005-2015) examples of explicit references to Roman law in the udgments of the Court of Justice of the European Union and in the opinions of the Advocates General. The paper focuses only on... more
The aim of this paper is to analyse recent (2005-2015) examples of explicit references to Roman law in the udgments of the Court of Justice of the European Union and in the opinions of the Advocates General. The paper focuses only on explicit references to Roman law, i.e. those which openly refer to Roman law, either by using the term ‘Roman law’ or by indicating a specific reference to a Roman legal source, e.g. the Corpus Iuris Civilis or the Gai Institutiones. The study found that only 17 examples of such explicit references can be found during the period under scrutiny. A closer analysis of those examples shows that, firstly, an explicit engagement with Roman legal sources is a relatively rare phenomenon in the case-law of the CJEU; secondly, that such examples are mainly found in the opinions of Advocates General; thirdly, that the role played by explicit references to Roman law can be threefold. The qualitative analysis showed that out of the 17 explicit references to Roman law, in six cases Roman law did actually play a certain role in the legal reasoning. In nine further cases in which an explicit reference was made to Roman law, the reference did not serve any clearly identifiable purpose in the process of interpretation, but rather served to indicate the historical background. Finally, in two cases Roman law was mentioned incidentally, without the aim of using it for purposes of interpretation of an EU legal text nor the aim of giving a broader historical perspective.
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The present paper draws attention to survivals of the Socialist Legal Tradition in the Polish law of civil procedure. The first survival is the power of the prosecutor in civil proceedings: since 1950, a public prosecutor may - following... more
The present paper draws attention to survivals of the Socialist Legal Tradition in the Polish law of civil procedure. The first survival is the power of the prosecutor in civil proceedings: since 1950, a public prosecutor may - following the Soviet model - initiate any civil proceedings and join any ongoing civil proceedings (as from 1965 an action for divorce is excluded from the scope of the prosecutor's powers). The prosecutor's powers in this respect have not been limited nor eliminated after 1989.The second legal survivals studied in the paper is the extraordinary revision, a form of appeal launched in the public interest by a high public official (minister of justice, attorney general, ombudsman). The paper argues that the currently existing powers of the said public officials to launch a cassation (kasacja) should be treated as a continuity of the pre-1996 extraordinary revision (rewizja nadzwyczajna).The third legal survival of the Socialist Legal Tradition is the preliminary reference to the Supreme Court, introduced in 1950 and continuously applied until today.In conclusion, the paper states that despite the demise of the Socialist Legal Tradition, its survivals within Polish legal culture - and in particular within the law of civil procedure - must not be overlooked.
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The paper aims at analysing the role of law in systemic transformation on the example of Poland’s move from Actually Existing Socialism (1944–1989) to capitalism. For this purpose four case studies are analysed: the lex Wilczek... more
The paper aims at analysing the role of law in systemic transformation on the example of Poland’s move from Actually Existing Socialism (1944–1989) to capitalism. For this purpose four case studies are analysed: the lex Wilczek liberalizing economic activity, the privatization laws of 1987 and 1990, the Round Table agreements of April 1989 and, finally, the establishment of the Constitutional Court (1986). On the basis of each case study, a certain order of causation is established. Drawing on similarities identified between the four case studies, the paper advances the conclusion that in the first phase of transformation, the law was instrumentalised by political decision- makers, motivated by economic factors, in order to bring about changes in the social reality. However, once the law was put into motion, a new dynamic emerged in which the law started to play an independent role. Referring to recent research by Bruno Schönfelder, the paper concludes that this growing autonomy of the law can be seen as the essence of post- socialist transformation as such.
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The paper claims that the form vs. substance dichomoty is relevant for the study of legal continuity, however, only provided that the notion of ‘form’ refers to the ‘form of law,’ and the notion of ‘substance’ refers to the socio-economic... more
The paper claims that the form vs. substance dichomoty is relevant for the study of legal continuity, however, only provided that the notion of ‘form’ refers to the ‘form of law,’ and the notion of ‘substance’ refers to the socio-economic reality which the law strives to regulate. Therefore, the study of legal continuity despite a socio-economic transformation is, ultimately, the study of interaction between the (unchanged) form and (changed) substance.
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This paper is intended as a preliminary enquiry into the possibility of putting forward a set of comparable, high-level notions denoting the aspects (dimensions) of legal continuity sensu stricto, i.e. the continuity of law in the... more
This paper is intended as a preliminary enquiry into the possibility of putting forward a set of comparable, high-level notions denoting the aspects (dimensions) of legal continuity sensu stricto, i.e. the continuity of law in the positivist sense (as a set of legal norms in force). This modest ambition removed from the scope of research such aspects of legal culture as the continuity of adjudication (references to earlier case-law, the continuity of methods of judicial reasoning) or the continuity of legal scholarship, as well as the problems of the social functions of law, its branches, its institutions and individual norms. The task of devising a research framework for analysing the continuity of these vast areas of legal culture is yet to be devised. As regards the dimensions of continuity of law, the paper proposes four such dimensions: the structure of the law, its conceptual framework, its fundamental principles and, finally, its normative building blocks: institutions and individual rules. Differentiating between these four distinct dimensions allows to get a better picture of legal continuity; instead of a two-dimenional one, focused only on the continuity of legal rules (legal provisions), it allows seeing continuity also on higher levels of the positive law: in the law’s internal structure, in its fundamental concepts and fundamental principles. Also, looking upon legal provisions as expressing legal norms which are the building blocks of legal institutions helps to avoid the impression of discontinuity in situations where continuity is latent, but by no means absent.
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The division of law into "public" and "private" was introduced by Roman lawyers, with the criterium divsionis being based on the interest protected with each branch of the legal system. As Ulpian famously formulated: Publicum ius est quod... more
The division of law into "public" and "private" was introduced by Roman lawyers, with the criterium divsionis being based on the interest protected with each branch of the legal system. As Ulpian famously formulated: Publicum ius est quod ad statum rei Romanae spectat, ius privatum est quod ad singulorum utilitatem. 1 Public law is that which respects the establishment of the Roman commonwealth, private that which respects individuals' interests, some matters being of public and others of private interests. 2
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Tekst przyjęty do druku w pracy zbiorowej pt. Prawo jest dla obywateli i im ma służyć. Wokół myśli Adama Czarnoty, pod red. Filipa Cyuńczyka, Piotra Eckhardta, Michała Paździory i Wojciecha Zomerskiego, mającej ukazać się nakładem... more
Tekst przyjęty do druku w pracy zbiorowej pt. Prawo jest dla obywateli i im ma służyć. Wokół myśli Adama Czarnoty, pod red. Filipa Cyuńczyka, Piotra Eckhardta, Michała Paździory i Wojciecha Zomerskiego, mającej ukazać się nakładem wydawnictwa Scholar w 2024 r.
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The paper critically reflects on the dominant narrative of discontinuity with the state socialist past within legal culture by focusing on four examples of legal survivals of the period of actually existing socialism in Polish private... more
The paper critically reflects on the dominant narrative of discontinuity with the state socialist past within legal culture by focusing on four examples of legal survivals of the period of actually existing socialism in Polish private law. What is characteristic for these four legal institutions is that despite their state socialist origin they are still being resorted to in practice after the transformation of 1989. This patent fact will serve as a basis to destabilize the dominant narrative about discontinuity in Polish legal culture: if legal institutions created under communist rule in Poland are still useful after the transformation, this period cannot be treated as a ‘legal black hole’ or ‘blackout’ of Polish legal history. To the contrary, any historical narrative of Polish legal culture should take the period of actually existing socialism into account, treating it al pari with any other period of reduced national sovereignty in Polish history. Despite the radically different foundations of the socio-economic system (actually existing socialism vs. capitalism), institutions of private law developed during the socialist period have proven to be useful today. This paradoxical feature of legal survivals — their capability of surviving a radical transformation from one system to another — allows to draw more general conclusions on legal survivals and legal culture, claiming that they are a normal, physiological feature of legal culture, rather than its pathology.
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Quality of legislation is understood as its fitness for a given purpose. In general, legislative acts as texts of legal culture can be said to fulfill two main functions: regulatory (instrumental) and ideological (symbolic). Quality of... more
Quality of legislation is understood as its fitness for a given purpose. In general, legislative acts as texts of legal culture can be said to fulfill two main functions: regulatory (instrumental) and ideological (symbolic). Quality of legislation becomes a particular challenge during a period of radical socio-economic transition, e.g. the transition from state socialism (Really Existing Socialism) to capitalism which occurred in Central Europe at the turn of the 1980s and 1990s.
The case study analysed in this paper focuses on general clauses (general standards) in Polish private law, such as "principles of social intercourse", "good morals" and "equity". After the transition from state socialism to capitalism in 1989, the legislature chose not to abrogate but to amend the Civil Code of 1964. As a result, the chief general clause of the socialist period, the "principles of social intercourse" (a concept created by V.I. Lenin) was not only upheld as the Civil Code's main general clause but was even used in new legal rules. However, after 1999 new general clauses began to be added in newly amended or created provisions, including "good morals", "equity" and "reasonableness". Nevertheless, the "principles of social intercourse" have not been repealed.
This has led to the emergence of an incoherent, patchwork system of general clauses which is perplexing academic lawyers and judges. This pluralism of general clauses, in contrast to the pluralism found e.g. in German law, does not allow the judiciary to develop a nuanced approach to general clauses, in which one general clause corresponds to one standard or judicial approach. To the contrary, judges have been forced to treat all general clauses as more or less interchangeable, becoming actually indifferent towards the linguistic form of general clauses.
As regards the regulatory function of general clauses, the paper expresses the fear that after the adoption of a new Polish Civil Code (which is currently being drafted) or, possibly, a European Civil Code (based on the Draft Common Frame of Reference), Polish judges and scholars could actually stand out from their colleagues from other member state of the EU due to their indifference to the linguistic form of general clauses. An analysis of the draft Polish Civil Code and the DCFR both reveal that their authors have deliberately used numerous different general clauses which correspond to different standards and different methodologies which are to be employed in their application. However, Polish judges - used to the interchangeability of general clauses and immune to their linguistic form - might actually overlook the legislative's intent of creating a more nuanced system of general clauses which could lead to an oversimplifying interpretation of the future Civil Code.
As regards the ideological function of general clauses, the paper draws attention to the metaphorical nature of general clause and points out that different linguistic forms of general clauses correspond to different visions of the socio-economic order. Therefore a patchwork system comprising both general clauses of state-socialist origin and those of capitalist origin leads to a blurred ideological message.
The case study analysed in this paper focuses on general clauses (general standards) in Polish private law, such as "principles of social intercourse", "good morals" and "equity". After the transition from state socialism to capitalism in 1989, the legislature chose not to abrogate but to amend the Civil Code of 1964. As a result, the chief general clause of the socialist period, the "principles of social intercourse" (a concept created by V.I. Lenin) was not only upheld as the Civil Code's main general clause but was even used in new legal rules. However, after 1999 new general clauses began to be added in newly amended or created provisions, including "good morals", "equity" and "reasonableness". Nevertheless, the "principles of social intercourse" have not been repealed.
This has led to the emergence of an incoherent, patchwork system of general clauses which is perplexing academic lawyers and judges. This pluralism of general clauses, in contrast to the pluralism found e.g. in German law, does not allow the judiciary to develop a nuanced approach to general clauses, in which one general clause corresponds to one standard or judicial approach. To the contrary, judges have been forced to treat all general clauses as more or less interchangeable, becoming actually indifferent towards the linguistic form of general clauses.
As regards the regulatory function of general clauses, the paper expresses the fear that after the adoption of a new Polish Civil Code (which is currently being drafted) or, possibly, a European Civil Code (based on the Draft Common Frame of Reference), Polish judges and scholars could actually stand out from their colleagues from other member state of the EU due to their indifference to the linguistic form of general clauses. An analysis of the draft Polish Civil Code and the DCFR both reveal that their authors have deliberately used numerous different general clauses which correspond to different standards and different methodologies which are to be employed in their application. However, Polish judges - used to the interchangeability of general clauses and immune to their linguistic form - might actually overlook the legislative's intent of creating a more nuanced system of general clauses which could lead to an oversimplifying interpretation of the future Civil Code.
As regards the ideological function of general clauses, the paper draws attention to the metaphorical nature of general clause and points out that different linguistic forms of general clauses correspond to different visions of the socio-economic order. Therefore a patchwork system comprising both general clauses of state-socialist origin and those of capitalist origin leads to a blurred ideological message.
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The notion of legal survivals refers to those elements of the legal superstructure, which, following a profound change in the socio-economic infrastructure, still exist in the new, modified conditions. The proprietary right to an... more
The notion of legal survivals refers to those elements of the legal superstructure, which, following a profound change in the socio-economic infrastructure, still exist in the new, modified conditions. The proprietary right to an apartment in a cooperative is an example of a survival of the Socialist Legal Tradition in post-1989 capitalist Poland. This right was created in the 1950s in order to serve the specific agenda of that period, namely a compromise between the requirement that preference be given to socialized property (such as cooperative property) and the need of providing persons who finance the construction of their own apartment with a sufficiently attractive legal title. After the transition to capitalism in 1989, the original raison d'être of this right disappeared. In spite of that, proprietary rights to apartments in newly constructed housing stock could still be established until 2007 and in existing housing stock, under certain conditions, until the end of 2012. The paper aims at exploring the reasons of the existence of this legal survival in the modified socio-economic context.
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Narrant veteres Acheloum amnem, incerto cursu, modo sectum in partes, modo circumactum obliquo agmine (unde tauri et serpentis formam induisse dicitur) diu de agro adiacente belli causam Ateolis et Acarnanibus praebuisse, donec eum... more
Narrant veteres Acheloum amnem, incerto cursu, modo sectum in partes, modo circumactum obliquo agmine (unde tauri et serpentis formam induisse dicitur) diu de agro adiacente belli causam Ateolis et Acarnanibus praebuisse, donec eum Hercules aggeribus domuit, eoque beneficio Oenei Aetolorum regis filiam matrimonium impetravit. Hugo Grotius De iure belli ac pacis libri tres, in quibus ius naturae et gentium, item iuris publici praecipua explicantur Lugduni Batavorum 1919, s. 164 Jeśli wierzyć opowieści Strabona, powtórzonej przez Grocjusza, w starożytnej Grecji skutek zmiany biegu rzeki granicznej nie był unormowany prawnie. Jedynym rozwiązaniem było więc uregulowanie rzeki. Rzymian cechowało odmienne podejście-zamiast regulować wszystkie rzeki graniczne, wymyślili prawne rozwiązanie tego problemu. Co więcej, rozwiązanie to okazało się przydatne nie tylko w prawie prywatnym (z common law włącznie), ale też i w sporach między suwerennymi państwami. Celem niniejszej pracy jest prześledzenie recepcji rzymskich reguł alluvio i mutatio alvei przez współczesne prawo międzynarodowe publiczne i wykazanie, iż reguły te stanowią część międzynarodowego porządku prawnego-jako "...ogólne zasady prawa uznane przez narody cywilizowane" .
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The present methodological paper has three aims. First of all, it puts forward the notion of a “legal survival” as a methodological tool at the interstices of comparative legal scholarship, legal history and socio-legal studies. Secondly,... more
The present methodological paper has three aims. First of all, it puts forward the notion of a “legal survival” as a methodological tool at the interstices of comparative legal scholarship, legal history and socio-legal studies. Secondly, on the basis of examples of the legal survivals of real socialism in Polish private law, the paper enquires about the most appropriate methodological approach for analysing legal survivals. Thirdly, it argues that the notion of legal survivals is a particularly useful tool for analysing changes in legal culture following a systemic transformation.
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The aim of the paper is to answer the question how legal institutions which had originated under a radically different socio-economic system (i.e. actually existing socialism) became adapted to the new socio-economic system (i.e. a market... more
The aim of the paper is to answer the question how legal institutions which had originated under a radically different socio-economic system (i.e. actually existing socialism) became adapted to the new socio-economic system (i.e. a market economy).The paper argues that the condition of endurance of a legal survival is its functionality towards the requirements of the new system. Methodologically, the paper is based on the approach of case studies. It analyses five different legal survivals of the socialist period in Polish civil law (general part, property law and law of obligations) namely: the general clause of ‘principles of social life’; the general clause of ‘socio-economic purpose’; the in rem right of ‘perpetual usufruct’; the in rem ‘cooperative member’s proprietary right to an apartment and, finally, the agricultural procurement contract. The method of reasoning applied in the article is inductive, i.e. the conclusions are drawn from a generalisation of findings with regard to the specific case studies. The case studies are analysed both by resorting to dogmatic research, as well as socio-legal research on the basis of available literature.
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Despite a systemic transformation a number of legal institutions servive. The existing conceptual framework does not account sufficiently for this phenomenon, hence the need to introduce and refine the concept of ‘legal survival,’ as... more
Despite a systemic transformation a number of legal institutions servive. The existing conceptual framework does not account sufficiently
for this phenomenon, hence the need to introduce and refine the concept
of ‘legal survival,’ as applicable to a legal institution characterised by
normative continuity, though often attended by a political, economic,
social or ideological change in its social function
for this phenomenon, hence the need to introduce and refine the concept
of ‘legal survival,’ as applicable to a legal institution characterised by
normative continuity, though often attended by a political, economic,
social or ideological change in its social function
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The right of perpetual usufruct was introduced to the Polish legal order in 1961, i.e. during the period of so-called actually existing socialism. Amongst the reasons of its introduction were political and ideological factors, and in... more
The right of perpetual usufruct was introduced to the Polish legal order in 1961, i.e. during the period of so-called actually existing socialism.
Amongst the reasons of its introduction were political and ideological
factors, and in particular the conception, according to which a socialist state should not alienate the ownership of land to natural and legal
persons. Apart from political and ideological functions, the institution
in question also fulfilled a number of socio-economic functions, inter
alia it enabled natural persons and housing cooperatives to gain access
to land for housing construction. Following the transformation of 1989,
the institution of perpetual usufruct was not eliminated from the Polish
legal order and it also continues to function in practice. From a socio-legal perspective, this continuity is a result of the adaptation of the
social functions of the institution in question to the changed conditions
folloing the systemic transformation.
Amongst the reasons of its introduction were political and ideological
factors, and in particular the conception, according to which a socialist state should not alienate the ownership of land to natural and legal
persons. Apart from political and ideological functions, the institution
in question also fulfilled a number of socio-economic functions, inter
alia it enabled natural persons and housing cooperatives to gain access
to land for housing construction. Following the transformation of 1989,
the institution of perpetual usufruct was not eliminated from the Polish
legal order and it also continues to function in practice. From a socio-legal perspective, this continuity is a result of the adaptation of the
social functions of the institution in question to the changed conditions
folloing the systemic transformation.
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The goal of the workshop is to bring together sociologists of law, legal comparatists, legal historians, as well as political scientists interested in legal institutions to reflect on concrete examples (case studies) of' legal survivals'... more
The goal of the workshop is to bring together sociologists of law, legal comparatists, legal historians, as well as political scientists interested in legal institutions to reflect on concrete examples (case studies) of' legal survivals' in Central and Eastern Europe (CEE), using especially socio-legal methods of research. By legal survivals, we mean those legal institutes (clusters of legal norms) that have survived in the legal system despite a change of political regime (e.g. from communism to democracy and the rule of law) and sovereignty (e.g. Soviet domination to regaining of independence) which entailed economic, ideological and societal transformations (Watson, 2001; Mańko, 2023). Some legal survivals were initially legal transplants, i.e., introduced into a legal system from a foreign one (cf. Watson, 1993), but others are the product of local legal development.
Research Interests: Comparative Law, Sociology of Law, Legal History, Central Europe, Central European history, and 13 moreEastern European history, Comparative Constitutional Law, Comparative Private Law, Socio-legal studies, Post-Colonialism, European Legal History, Central European Studies, Legal Sociology, Socio-Legal Studies (Law), Comparative Legal History, Central and Eastern Europe, Post Colonial Theory, and Transition in Central and Eastern Europe
The aim of the present paper is to assess the impact of EU membership upon private law adjudication in Poland by resorting to the case study of the Unfair Terms Directive (93/13). The paper analyses the case-law of the Polish Supreme... more
The aim of the present paper is to assess the impact of EU membership upon private law adjudication in Poland by resorting to the case study of the Unfair Terms Directive (93/13). The paper analyses the case-law of the Polish Supreme Court interpreting the national implementing provisions in order to assert the extent of the impact of the ECJ case-law with that regard. The chapter focuses both on the impact of ECJ’s substantive doctrines on unfair terms upon the Polish Supreme Court, as well as on the impact of the more formal side of ECJ’s case-law, namely its judicial style and methods of argumentation, which display a clear preference for teleological and policy-oriented reasoning over purely textual reasoning. The chapter resorts both to qualitative and quantitative methods of analysis. First of all, it focuses on reference to the Unfair Terms Directive and ECJ case-law interpreting it in the Supreme Court’s case-law. Secondly, it analyses the frequency and types of policy-oriented arguments in the Supreme Court’s case law on unfair terms, and compares the results with a control sample of SN case law in civil cases. As regards qualitative analysis, the chapter focuses on a number of selected themes discussed in the Supreme Court’s case-law in order to show how its doctrine evolved and whether it was inspired by the Directive and ECJ case law. The chapter is structured as follows: Section II presents the institutional background focusing on formalism in Polish legal culture, with particular reference to its historical roots and the formalist face of the SN; section III presents the regulatory background, focusing on the Directive and its implementation in Poland; section IV presents the results of a quantitative analysis of SN case law on unfair terms, and section V presents the results of the qualitative analysis. Section VI concludes the chapter.
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This chapter aims to present the interaction between the consumer acquis and post-socialist legal culture in Poland as exemplified by the rules on unfair terms in consumer contracts. It will focus on resistance towards Directive 93/13/EC... more
This chapter aims to present the interaction between the consumer acquis and post-socialist legal culture in Poland as exemplified by the rules on unfair terms in consumer contracts. It will focus on resistance towards Directive 93/13/EC among Polish legislators, scholars and judges, attempting to link this resistance to the background elements of the socialist legal tradition still present in Polish legal culture. The chapter will analyse two specific areas of resistance: the general test of unfairness and the abstract review of standard terms. It will be argued that the general test of unfairness has been implemented in Poland in a way which departs from the directive – ‘good faith’ was substituted by ‘good customs’ and ‘significant imbalance’ was substituted by a ‘gross violation of interests’ of the consumer. It will be submitted that the implementing provisions are actually more lenient towards the trader than the directive requires. The interpretation of the implementing provisions within scholarship and case law is very often detached from the text of the directive and leads to conclusions hard to reconcile with the intent of the Community legislator. Judges and scholars tend to assimilate the ‘good customs’ clause with the socialist general clause of ‘principles of social coexistence’, still present within the Polish Civil Code, rather than exploring the meaning of ‘good faith’ in the directive.
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In this paper I focus on the institutional implications of the EU Unfair Terms Directive (93/13) in Poland in the broader context of the welfare state model prevalent in that post-socialist EU Member State. I depart from the assumption... more
In this paper I focus on the institutional implications of the EU Unfair Terms Directive (93/13) in Poland in the broader context of the welfare state model prevalent in that post-socialist EU Member State. I depart from the assumption that there is, in principle, a link between the intensity of the welfare state and the level of consumer protection, as evidenced e.g. by the traditionally high level of both in the Nordic countries. Such a view is supported by the fact that both policies are the expression of the desire to promote social justice. Hence, I argue that there is a close link between the currently experienced atrophy of the welfare state in capitalist Poland and stances towards consumer protection. Therefore, in section 2, I depart from a brief account of the evolution of the Polish welfare state from the pre-1989 state-socialist model to the current model within the framework of Poland's new capitalism, which can be described on a theoretical plane as marginal or residual, if not simply atrophic. In section 3, I discuss the evolution of consumer protection in Poland, indicating its initial lack during the state-socialist period and its emergence in the early 1980s, before moving on to the post-socialist period and the impact of European integration. Having presented the background information on the welfare state and consumer protection, in section 4 I discuss in detail the institutional impact of the Unfair Terms Directive. My analysis encompasses such aspects as the definition of a consumer, the substantive scope of protection and the available means of protection (incidental and abstract control). I will also discuss the newly introduced group actions (comparable to class actions) which are specifically tailored for consumer cases, including those where the rules on unfair terms are involved. In section 5, I present my concluding remarks.
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Прекращение существования социалистической правовой семьи не следует отождествлять с исчезновением лежащей в ее основе социалистической правовой традиции. Влияние существовавшего на протяжении 45 лет реального социализма на польскую... more
Прекращение существования социалистической правовой семьи не следует отождествлять с исчезновением лежащей в ее основе социалистической правовой традиции. Влияние существовавшего на протяжении 45 лет реального социализма на польскую правовую культуру до сих пор существенно. Во-первых, имеет место непрерывность существования правовых учреждений (судов, юридического сообщества), а система юридического образования и система назначения на должности судей способствуют воспроизводству правовой культуры. Во-вторых, ультраформализм («гиперпозитивизм»), ассоциирующийся с социалистической правовой традицией в ее постсталинистском изводе, остается доминирующим среди польских практиков типом правопонимания. В-третьих, до сих пор имеется масса примеров нормативной преемственности, особенно в процессуальном и материальном частном праве. На основании этих факторов можно исследовать, являются ли различия «правового стиля» новых-центральноевропейских-и старых-западноевропейских-членов ЕС достаточно важными для того, чтобы признать существование центральноевропейской правовой семьи-пятой правовой семьи Европейского Союза (наряду с семьей общего права, романской, германской и скандинавской правовыми семьями). Ключевые слова: социалистическая правовая традиция; правовые традиции; правовые семьи; Польша.
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The dissolution of the Socialist Legal Family should not be identified with the disappearance of the underlying Socialist Legal Tradition. The impact of the 45 years of Actually Existing Socialism upon Polish legal culture is still... more
The dissolution of the Socialist Legal Family should not be identified with the disappearance of the underlying Socialist Legal Tradition. The impact of the 45 years of Actually Existing Socialism upon Polish legal culture is still significant. First of all, there has been an almost uninterrupted continuity of legal instiutions (courts, legal professions), and the system of legal education and judicial appointments furthers the continuity of legal culture. Secondly, ultraformalism ('hyperpositivism') associated with the Socialist Legal Tradition in its post-Stalinist version remains the dominant working legal thought in Poland. Thirdly, there are still many examples of normative continuity, especially in procedural and substantive private law. On the basis of these factors, it is possible to enquire whether the differences of legal style between the new Central European member states of the EU and its old Western European member states are sufficiently significant as to justify the identification of a Central European legal family as the fifth legal family in the European Union (apart from the Common Law, Romanic, Germanic and Scandinavian Legal Families).
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The aim of the paper is to explore the interplay between Central Europe's double peripherality and its legal and political culture in light of the recent developments usually described as right-wing populism or illiberal... more
The aim of the paper is to explore the interplay between Central Europe's double peripherality and its legal and political culture in light of the recent developments usually described as right-wing populism or illiberal neoauthoritarianism. The paper traces the roots of those phenomena precisely in the status of double peripherality and the ensuing resentment of that status among the political and legal elites. It also proposes to reflect more deeply on traits of legal culture which are typical for Central Europe and common to the countries of the region.
Research Interests:
The dissolution of the Socialist Legal Family should not be identified with the disappearance of the underlying Socialist Legal Tradition. The impact of the 45 years of Actually Existing Socialism upon Polish legal culture is still... more
The dissolution of the Socialist Legal Family should not be identified with the disappearance of the underlying Socialist Legal Tradition. The impact of the 45 years of Actually Existing Socialism upon Polish legal culture is still significant. First of all, there has been an almost uninterrupted continuity of legal instiutions (courts, legal professions), and the system of legal education and judicial appointments furthers the continuity of legal culture. Secondly, ultraformalism ('hyperpositivism') associated with the Socialist Legal Tradition in its post-Stalinist version remains the dominant working legal thought in Poland. Thirdly, there are still many examples of normative continuity, especially in procedural and substantive private law. On the basis of these factors, it is possible to enquire whether the differences of legal style between the new Central European member states of the EU and its old Western European member states are sufficiently significant as to justify the identification of a Central European legal family as the fifth legal family in the European Union (apart from the Common Law, Romanic, Germanic and Scandinavian Legal Families).
Research Interests:
Tomasz Giaro coined the term “modernisation through transfer” to describethe process of a wholesale reception of Western European law in CentralEurope in the 19th and early 20th century. Undoubtedly, the concept correctlydescribed the... more
Tomasz Giaro coined the term “modernisation through transfer” to describethe process of a wholesale reception of Western European law in CentralEurope in the 19th and early 20th century. Undoubtedly, the concept correctlydescribed the process. The enquiry of the present paper focuses on whether legal transfers in today’s Europe can also be explained by the same paradigm, or are there differences. This preliminary study focuses on private lawonly and attempts at illustrating the problem by resorting to three concrete case studies: unfair terms, consumer sales and supply of digital content. Itconcludes that whilst in the 19th century the dynamics of legal transfers was characterised by bilateralism (donor state-recipient state) and by one-sided-ness (reception only), today’s legal transfers in Europe are characterised by
multilateralism (inclusion of European law as an intermediate player), multidimensionalism and two-sidedness (the donor state become ultimatey also a recipient state). Nonetheless, the centre-periphery dynamic plays its role asis illustrated by the lack of legal transfers originating from Central Europe. This latter element is a strong aspect of continuity with the 19th centry “modernisation through transfer” – Central Europe still is only a recipient of legal models.
multilateralism (inclusion of European law as an intermediate player), multidimensionalism and two-sidedness (the donor state become ultimatey also a recipient state). Nonetheless, the centre-periphery dynamic plays its role asis illustrated by the lack of legal transfers originating from Central Europe. This latter element is a strong aspect of continuity with the 19th centry “modernisation through transfer” – Central Europe still is only a recipient of legal models.
Research Interests:
The aim of the present paper is to contribute to the ongoing discussion, both in legal theory and in comparative law, concerning the status of Central Europe and its delimitation from other legal regions in Europe, notably Romano-Germanic... more
The aim of the present paper is to contribute to the ongoing discussion, both in legal theory and in comparative law, concerning the status of Central Europe and its delimitation from other legal regions in Europe, notably Romano-Germanic Western Europe but also Eastern Europe and Eurasia. The paper adopts the methodological perspective of critical legal geography, understood as a strand of critical jurisprudence laying at the interstices of spatial justice studies, critical geography, comparative law, sociology of law and legal history. The paper proceeds by identifying the notion of Central Europe with reference to a specific list of countries, then proposes a number of objective criteria for delimitng Central Europe and applies them in order to highlight the difference between Central Europe and other adjacent legal regions. Following that, the paper enquires as to whether Central Europe should be deemed to be a 'legal family', a 'legal union' or simply a 'legal space' or 'space of legal culture'.
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Legal taxonomy – the operation of grouping legal systems or legal cultures within larger groups, known as ‘legal families’ – is purportedly a neutral exercise based on objective features of the legal cultures or systems in question. The... more
Legal taxonomy – the operation of grouping legal systems or legal cultures within larger groups, known as ‘legal families’ – is purportedly a neutral exercise based on objective features of the legal cultures or systems in question. The paper questions this assumption, arguing that legal taxonomy is political: it involves symbolic violence vis-à-vis the legal cultures in question, imposing upon them a given interpretation based on arbitrary criteria. As a result, the discourse of legal taxonomy promotes hegemony of certain legal cultures over other ones, and has the effect of discursively disciplining the subaltern members of legal families. However, despite this critique the paper argues that the discourse of legal taxonomy should not be abandonend altogether, but rather strategically reshaped to further the interests of the peripheral subaltern. Specifically, with regard to the legal cultures of Central Europe, the paper argues that the existence of a Central European Legal Family should be firmy asserted, as opposed to the mainstream narrative of Central Europe’s alleged ‘return’ to the Romanic or Germanic Legal Families, respectively.
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The present paper hopes to contribute to promoting a counter-hegemonic discourse of Central (and Eastern) European legal identity, underscoring our legal-cultural bonds based on a common past, a common juridico-political mentality and a... more
The present paper hopes to contribute to promoting a counter-hegemonic discourse of Central (and Eastern) European legal identity, underscoring our legal-cultural bonds based on a common past, a common juridico-political mentality and a common present predicament. To this end, we hope to reinvigorate the discussion regarding Central Europe (or Central and Eastern Europe) as being a legal family in its own right, distinct both from Western European legal families (Romanic, Germanic, Common Law and Scandinavian) on the one hand, and the Eurasian legal family (post-Soviet), on the other. Believing that legal taxonomy can be seen as a matter of social construction of reality, and in any event it having a disciplining function, we hope to influence the discourses of comparative law with view to reframing the epistemic structures concerning our region. In turn, this can impact both the way we – Central and Eastern European jurists – perceive ourselves, and the way in which we are perceived. Considering the ‘death and burial’ of the Socialist Legal Family as the founding myth of our regional juridical identity, we posit the succession of the former by two coexisting legal families: the Central European and the Eastern European/Eurasian ones. However, the paper does not intend to provide definitive answers to the questions of legal taxonomy of the postSoviet/post-socialist juridical space; its ambition is more moderate – to put forward a number of arguments in favour of a Central European Legal Family with the intent of destabilising the hegemonic ‘return to Europe’ approach and fostering a discussion of comparatists, legal theorists and socio-legal scientists focused on the problem of legal identity/identities of our region. The main claim of the paper has a metatheoretical and critical character, and it boils down to the statement that the concept of Central (and Eastern) Europe in legal culture, and more specifically the concept of a Central European Legal Family, ought to be introduced owing to its emancipatory potential for the legal field in our countries. This is because, currently, the legal field in Central Europe suffers from symbolic violence which places it in a peripheral position, or even denies its existence.
Research Interests:
Research Interests:
On the basis of an analysis of selected pieces of legal discourse produced by the principal practices of Polish legal culture, the paper concludes that the said culture can be characterised as being highly positivist and dogmatic... more
On the basis of an analysis of selected pieces of legal discourse produced by the principal practices of Polish legal culture, the paper concludes that the said culture can be characterised as being highly positivist and dogmatic (formalist). This includes such features as a very narrow understanding of the notion of ‘sources of law’ (which are limited to written law but exclude e.g. precedent), textualism as the main approach to legal interpretation, as well as a high degree of abstraction of legal thought. These characteristics of Polish legal culture are explained by historical factors, especially the influence of 19th century Western European legal formalism, subsequently strengthened and preserved during the period of Actually Existing Socialism. In contrast, the style of the European Court of Justice is described as more pragmatic, and in particular open to the idea of precedent. It is argued that the exposure of Polish judiciary to European law will help to move the judicial discourse from formalism and dogmatism towards transparency and realism. The paper also notes the frequent use of Latin maxims in Polish case-law and treats it as a characteristic feature of Polish legal culture.
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The notion of a “legal survival” is a novel research tool, particularly well-suited to analysing legal continuity following a transformation (transition) from one socio-economic system to another. The paper defines a “legal survival” as a... more
The notion of a “legal survival” is a novel research tool, particularly well-suited to analysing legal continuity following a transformation (transition) from one socio-economic system to another. The paper defines a “legal survival” as a certain legal framework, which had originated under an earlier socio-economic formation, has been functional towards it and which has endured despite the subsequent transformation. This novel research tool allows to focus on individual legal phenomena (institutions, general clauses or even legal rules) and the changes they undergo with regard to the social function following a socio-economic and political transformation. The application of the notion of a “legal survival” allows to combine the methodological approaches of legal history, legal theory, doctrinal (positivistic-dogmatic) research into law and the sociology of law.
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This book addresses the variety of right-wing illiberal populism which has emerged in Central and Eastern Europe (CEE). Against the backdrop of weak institutional traditions, frequent and profound transformations, and deep historical... more
This book addresses the variety of right-wing illiberal populism which has emerged in Central and Eastern Europe (CEE). Against the backdrop of weak institutional traditions, frequent and profound transformations, and deep historical traumas affecting the law, politics, economy and society in the region, the book critically examines the entanglements of legality in the region’s transformation from state socialism to neoliberalism and Western-style democracy. Drawing on critical legal theory, as well as legal history, legal theory, sociology of law, history of ideas, anthropology of law, comparative law, and constitutional theory, the book goes beyond conventional analyses to offer an in-depth account of this important contemporary phenomenon.This book will be of interest to legal researchers, especially of a critical or socio-legal perspective, political scientists, sociologists and (legal) historians, as well as policy makers seeking to understand the regional specificity and deeper roots of Central and Eastern European illiberal populism.
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Artykuł jest jedyną w polskiej literaturze naukowej próbą ujęcia instytucji użytkowania wieczystego z perspektywy socjologicznoprawnej. Celem artykułu jest przedstawienie omawianej instytucji jako tzw. reliktu prawnego (ang. legal... more
Artykuł jest jedyną w polskiej literaturze naukowej próbą ujęcia instytucji użytkowania wieczystego z perspektywy socjologicznoprawnej. Celem artykułu jest przedstawienie omawianej instytucji jako tzw. reliktu prawnego (ang. legal survival), tj. instytucji prawnej, która spełniała określone funkcje (in casu, głównie ideologiczne i ekonomiczne) w określonej epoce (in casu, w okresie socjalizmu realnego), a następnie, pomimo transformacji ustrojowej, nie została z porządku prawnego usunięta. Nacisk w analizie położony jest na społeczne funkcje badanej instytucji oraz na czynniki, które umożliwiły jej przetrwanie
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Since 1986, Poland has had its Constitutional Court, placed outside the structure of ordinary judiciary. Since 1993, this court has been issuing 'interpretive judgments' in which it decides that a certain statutory rule is constitutional... more
Since 1986, Poland has had its Constitutional Court, placed outside the structure of ordinary judiciary. Since 1993, this court has been issuing 'interpretive judgments' in which it decides that a certain statutory rule is constitutional only under a certain interpretatio. On numerous occasions the Supreme Court has refused to follow the Constitutional Court's decisions, claiming that they are unconstitutional, ultra vires and non-binding. An analysis of the arguments put forward by both courts in this 'war of the courts' reveals that the Supreme Court prefers ultra-formalist arguments typical of the hyperpositivist legal culture of the former state-socialist period, whilst the Constitutional Court seems to prefer pragmatist arguments, more typical to contemporary Western legal culture. The article concludes that behind the 'war of the courts' in Poland there is a clash of legal cultures and attempts at identifying the reasons for it.
Research Interests:
Research Interests:
The cooperative member’s proprietary (in rem) right to an apartment in a housing cooperative is an example of a such a legal survival – it emerged in the 1950s, when Poland was a state-socialist country within the Soviet bloc, in order to... more
The cooperative member’s proprietary (in rem) right to an apartment
in a housing cooperative is an example of a such a legal survival – it
emerged in the 1950s, when Poland was a state-socialist country within
the Soviet bloc, in order to serve the specific agenda of that period,
namely a compromise between the requirement that preference be given
to so-called ‘socialised’ property (such as cooperative property) and the
need of providing persons who finance the construction of their apartment
from their own resources with a sufficiently attractive legal title.
After the transition to a market economy in 1989, the original raison
d’être of this right disappeared. In spite of that, proprietary rights to
apartments in newly constructed housing stock could still be established
until 2007 and in existing housing stock, under certain conditions, until
the end of 2012. The paper aims at exploring the reasons of the existence
of this legal survival in the modified socio-economic environment, thus
shedding some light on the adaptation of a formerly socialist legal system
to the requirements of a market economy after 1989 in the Central
European post-transformation context.
in a housing cooperative is an example of a such a legal survival – it
emerged in the 1950s, when Poland was a state-socialist country within
the Soviet bloc, in order to serve the specific agenda of that period,
namely a compromise between the requirement that preference be given
to so-called ‘socialised’ property (such as cooperative property) and the
need of providing persons who finance the construction of their apartment
from their own resources with a sufficiently attractive legal title.
After the transition to a market economy in 1989, the original raison
d’être of this right disappeared. In spite of that, proprietary rights to
apartments in newly constructed housing stock could still be established
until 2007 and in existing housing stock, under certain conditions, until
the end of 2012. The paper aims at exploring the reasons of the existence
of this legal survival in the modified socio-economic environment, thus
shedding some light on the adaptation of a formerly socialist legal system
to the requirements of a market economy after 1989 in the Central
European post-transformation context.
Research Interests:
The Van Gend & Loos and Costa v ENEL cases, decided on 5 February 1963 and 15 July 1964, respectively, are commonly considered the two building blocks of EU law as an autonomous legal order with direct effect before national courts and... more
The Van Gend & Loos and Costa v ENEL cases, decided on 5 February 1963 and 15 July 1964, respectively, are commonly considered the two building blocks of EU law as an autonomous legal order with direct effect before national courts and primacy over national law. However, there is a third important case, decided between the other two, without which neither direct effect nor primacy of EU law would be considered binding doctrines. On 27 March 1963, on a preliminary reference from the Dutch customs tribunal, the European Court of Justice (ECJ) handed down its judgment in the case of Da Costa en Schaake. The Dutch tribunal asked, as it had previously in Van Gend & Loos, whether the standstill clause in Article 12 of the Treaty of Rome had direct effect. This circumstance raised the question of the binding authority of ECJ judgments outside the framework of the case in which they were pronounced.
Research Interests:
The judgment of the European Court of Justice (Grand Chamber) of 6 October 2021 in Case C-487/19, Waldemar Żurek v Krajowa Rada Sądownictwa (ECLI: EU:C:2021:798) constitutes a significant development in the ECJ’s rapidly growing body of... more
The judgment of the European Court of Justice (Grand Chamber) of 6 October 2021 in Case C-487/19, Waldemar Żurek v Krajowa Rada Sądownictwa (ECLI: EU:C:2021:798) constitutes a significant development in the ECJ’s rapidly growing body of case law on the rule of law. It addresses the complex issue of what status ought to be ascribed to rulings issued by persons whose judicial appointments are considered irregular. This issue, for a long time pertaining to marginal cases in democratic States, has great practical significance, especially in Poland. There, the quality of an independent and impartial tribunal established by law has been questioned in the case of persons who obtained judicial appointments on the recommendation of the National Council of the Judiciary (NCJ) following a change in its composition in 2018. Such nominees, whose number at the time of writing amounts to 1788,2 have delivered thousands of rulings. Therefore, deciding on the status of their decisions raises important issues of the rule of law, res judicata, and legal certainty. The ECJ’s decision in the commented judgment could be read as developing the principle of primacy to a point where it requires, in certain situations, to consider rulings issued by persons irregularly appointed to judicial office as legally non-existent by virtue of EU law. In this case note we argue that the Żurek judgment went much further than any earlier judgment of the ECJ on the rule of law. It should be considered a landmark ruling comparable only with the seminal Portuguese Judges case, since it offers judges the possibility to resort to a new doctrine – the sententia non existens – to deal with rulings issued by persons irregularly appointed to judicial posts, if such rulings could impinge on the primacy of EU law. However, further developments in the Frąckowiak case (decided on 22 March 2022) and the Getin Noble Bank case (decided on 29 March 2022) seem to indicate that the ECJ is not prepared to go any further than Żurek.
Research Interests:
The Żurek ruling constitutes a significant development in the ECJ’s rapidly growing body of case law on the rule of law. It addresses the complex issue of what status ought to be ascribed to rulings issued by persons whose judicial... more
The Żurek ruling constitutes a significant development in the ECJ’s rapidly growing body of case law on the rule of law. It addresses the complex issue of what status ought to be ascribed to rulings issued by persons whose judicial appointments are considered irregular. This issue, for a long time pertaining to marginal cases in democratic States, has great practical significance, especially in Poland. There, the quality of an independent and impartial tribunal established by law has been questioned in the case of persons who obtained judicial appointments on the recommendation of the National Council of the Judiciary (NCJ) following a change in its composition in 2018. Such nominees, whose number at the time of writing amounts to 1788, have delivered thousands of rulings. Therefore, deciding on the status of their decisions raises important issues of the rule of law, res judicata, and legal certainty. The ECJ’s decision in the commented judgment could be read as developing the principle of primacy to a point where it requires, in certain situations, to consider rulings issued by persons irregularly appointed to judicial office as legally non-existent by virtue of EU law.
Research Interests:
Celem niniejszego opracowania jest krytyka działalności ustawodawczej Unii Europejskiej w obrębie prawa prywatnego oraz wyrażenie sprzeciwu wobec zyskującej,niestety, na popularności, idei stworzenia europejskiego kodeksu prawa... more
Celem niniejszego opracowania jest krytyka działalności ustawodawczej Unii Europejskiej w obrębie prawa prywatnego oraz wyrażenie sprzeciwu wobec zyskującej,niestety, na popularności, idei stworzenia europejskiego kodeksu prawa prywatnego. Pojęcie prawa prywatnego obejmuje sobą zarówno prawo materialne, prawo procedury cywilnej, jak i prawo kolizyjne (prywatne międzynarodowe). Omówienie europeizacji wszystkich tych trzech dziedzin wykraczałoby poza ramy niniejszej pracy i wymagałoby
dalszych, szczegółowych badań. Dlatego też przedmiotem poniższych wywodów będzie jedynie prawo prywatne materialne, ze szczególnym uwzględnieniem obszarów tradycyjnie określanych jako prawo cywilne, natomiast problematyka harmonizacji prawa postępowania cywilnego oraz prawa prywatnego międzynarodowego będzie jedynie przedmiotem krótkiej wzmianki.
dalszych, szczegółowych badań. Dlatego też przedmiotem poniższych wywodów będzie jedynie prawo prywatne materialne, ze szczególnym uwzględnieniem obszarów tradycyjnie określanych jako prawo cywilne, natomiast problematyka harmonizacji prawa postępowania cywilnego oraz prawa prywatnego międzynarodowego będzie jedynie przedmiotem krótkiej wzmianki.
Research Interests:
The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct... more
The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches (intentionalism, textualism) with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court's case-law in the Member States, which seem to have been adequately tackled by the Court's idiosyncratic translation policy.
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This paper analyses the relationship between the principle of solidarity (principle of loyal cooperation, principle of good faith) enshrined in Article 10 EC and the liability of the Community for damages enshrined in Article 288(2) EC.... more
This paper analyses the relationship between the principle of solidarity (principle of loyal cooperation, principle of good faith) enshrined in Article 10 EC and the liability of the Community for damages enshrined in Article 288(2) EC. Departing from the assumption that both the the duty of loyal cooperation and Community liability for damages are general principles of Community law, the paper argues that the question of the locus standi of Member States to bring an action against the Community on the basis of Article 288(2) EC must be resolved on the basis of weighing principles, rather than by resorting to a linguistic, teleological or systematic interpretation of Article 288(2) EC. The essential legal question boils down to the issue whether bringing an action for damages against the Community would amount to a disloyal conduct on part of the Member State concerned. The paper suggests a negative answer and thus argues for granting locus standi to Member States under Article 288(2) EC. Such a view is corroporated by the fact that Member States may bring other types of actions against the Community, as for instance the action for anullment or the action for failure to act. Community liability vis-à-vis the Member States would be a corollary of Member States liability for failure to fulfil Community obligations under Articles 226 and 228 EC. However, Member States ought to be particularly prudent when bringing actions for damages against the Community. In particular, bringing an action which would be manifestly unfounded would amount to a breach of the duty enshrined in Article 10 EC.
Research Interests:
Research Interests:
Neither of the founding treaties of the European Communities – the Treaty of Paris (1951) or the Treaty of Rome (1957) included any reference to fundamental rights. Nonetheless, in its case law the European Court of Justice started to... more
Neither of the founding treaties of the European Communities – the Treaty of Paris (1951) or the Treaty of Rome (1957) included any reference to fundamental rights. Nonetheless, in its case law the European Court of Justice started to treat such rights as unwritten 'general principles of Community law', thereby granting them the status of primary law. As for the source of these general principles of Community law, the Court referred to the common constitutional traditions of the Member States, and to international treaties to which at least a majority of Member States were party, in particular the European Convention on Human Rights (ECHR) of 1950. When the European Union was formally established by the Treaty of Maastricht (1992), this case law of the Court of Justice on the dual sources of fundamental rights in the EU was codified in the new Treaty on European Union in its Article F(2). The entry into force of the Charter of Fundamental Rights as a binding legal act in 2009 did not, however, deprive the ECHR of its role in the EU legal system as a source of fundamental rights in the form of general principles. The Treaty of Lisbon provided for a duty of the EU to accede to the ECHR. However, when the negotiated agreement was put to the Court of Justice for opinion, it ruled (in December 2015) that the agreement did not provide for sufficient protection of the EU's specific legal arrangements and the Court's exclusive jurisdiction. For the time being, no new accession agreement has been drafted, but both the Parliament and the Commission underline the need for EU accession. Scholars remain divided, some considering that accession would bring added value, whilst others express the view that accession would actually do more harm than good to EU citizens.
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The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct... more
The paper analyses and evaluates the linguistic policy of the Court of Justice of the European Union against the background of other multilingual courts and in the light of theories of legal interpretation. Multilingualism has a direct impact upon legal interpretation at the Court, displacing traditional approaches (intentionalism, textualism) with a hermeneutic paradigm. It also creates challenges to the acceptance of the Court's case-law in the Member States, which seem to have been adequately tackled by the Court's idiosyncratic translation policy.
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An action for annulment is a legal procedure before the Court of Justice that guarantees the conformity of EU legislative acts, regulatory acts and individual acts with the superior rules of the EU legal order. An action can be brought... more
An action for annulment is a legal procedure before the Court of Justice that guarantees the conformity of EU legislative acts, regulatory acts and individual acts with the superior rules of the EU legal order. An action can be brought within two months of the publication or notification of the contested measure. Applicants are divided into three categories: privileged, semi-privileged and non-privileged. Privileged applicants – the Member States, Parliament, Commission and Council – may bring an action for annulment purely in the interests of legality, without proving any particular interest. Semi-privileged applicants – comprising the European Committee of the Regions, the European Central Bank and the European Court of Auditors – may bring an action for annulment only to protect their own prerogatives. Finally, non-privileged applicants, comprising all natural and legal persons, including regional or local governments, may bring an action for annulment only if they prove that the contested act infringes upon their interests. More specifically, they may bring an action against an act addressed to them, or – if it is not addressed to them – if it is of direct and individual concern to them, as well as against a regulatory act that is of direct concern to them and does not entail implementing measures. The Treaty provides five grounds for annulment, i.e. reasons for which the Court may declare an EU act to be null and void. These are lack of competence; infringement of an essential procedural requirement; infringement of the Treaties; infringement of a rule relating to the application of the Treaties; and, finally, misuse of powers. If the Court finds the action well founded, it declares the nullity of the contested act, which, in principle, is considered null from the moment of its adoption. However, the Court may decide that some effects of the contested act should, nonetheless, remain in force in the interests of protecting legitimate interests and legal security.
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Most legal systems, both of states and of international organisations, provide for the liability of public administrations for damage done to individuals. This area of the law, known as 'public tort law', varies considerably from country... more
Most legal systems, both of states and of international organisations, provide for the liability of public administrations for damage done to individuals. This area of the law, known as 'public tort law', varies considerably from country to country, even within the European Union (EU). The EU Treaties have, from the outset, provided for liability of the EU for public torts (wrongs), in the form of action for damages against the EU, now codified in the second and third paragraphs of Article 340 of the Treaty on the Functioning of the European Union (TFEU). However, these rules are notoriously vague and brief, and refer to the 'general principles common to the laws of the Member States' as the source for the rules of EU public tort law. Since the laws of the Member States on public torts differ significantly, the reference has been treated by the Court of Justice of the European Union (CJEU) as empowerment to develop EU public tort law in its own case law. The rules developed by the CJEU have been criticised by some academics as being very complex, non-transparent and unpredictable. Experts have also pointed out that the threshold of liability is set so high that actions for damages prove successful in very few cases only. According to the data available, from the establishment of the EU until 2014, the Court only actually granted compensation to applicants in 39 cases. As a result, some scholars have even pointed out that the principle of EU liability for public torts is 'illusory' and that action for damages is not an effective means of protecting fundamental rights. Other academics add that the question of establishing the principles of EU public tort law is not merely a technical issue, but a political one, as it touches upon fundamental questions of distributive justice and the form of government in the Union, and therefore should be the subject of democratic debate. This Briefing is one in a series aimed at explaining the activities of the CJEU.
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The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and... more
The preliminary reference procedure, provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU), is an institutionalised mechanism of dialogue between the Court of Justice of the European Union (CJEU) and national courts. This dialogue serves three principal purposes. First of all, to provide national courts with assistance on questions regarding the interpretation of EU law. Secondly, to contribute to a uniform application of EU law across the Union. Thirdly, to create an additional mechanism – on top of the action for annulment of an EU act (set out in Article 263 TFEU) – for an ex post verification of the conformity of acts of the EU institutions with primary EU law (the Treaties and general principles of EU law). The scope of the preliminary reference procedure covers the entire body of EU law with the exclusion of acts under common foreign and security policy and certain limitations in the area of judicial and police cooperation in criminal matters. EU law does not have a doctrine of binding precedent such as that entertained in common law countries. Therefore, a judgment of the CJEU in a preliminary reference procedure is, strictly speaking, binding only on the national court that submitted the question, as well as on other courts in the same domestic procedure. Nonetheless, CJEU judgments interpreting EU law enjoy an authority similar to those of national supreme courts in civil law countries – national courts interpreting EU law should take them into account. Furthermore, if the CJEU decides that an act of the EU institutions is illegal, no national court may find to the contrary and consider that act legal. The decision whether to submit a preliminary reference to the CJEU rests with the national court concerned. However, if it is a court of last instance and a question of interpretation of EU law or the validity of an act of the EU institutions is necessary to decide a question before it, that court must submit a question. If it refrains from doing so, the Member State concerned may be held liable for a breach of EU law. This briefing is one in a series aimed at explaining the activities of the CJEU.
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In the first decade of the 21st century, loans denominated in or indexed to foreign currencies, in particular the Swiss franc, became very popular in a number of EU Member States, including Greece, Croatia, Hungary, Austria, Poland,... more
In the first decade of the 21st century, loans denominated in or indexed to foreign currencies, in particular the Swiss franc, became very popular in a number of EU Member States, including Greece, Croatia, Hungary, Austria, Poland, Romania, and Slovenia, and also in two non-EU countries, Montenegro and Serbia. For a certain period, in some Member States these loans became the most popular type of loan issued to consumers. By pegging loans to a stable foreign currency, banks could lend more money to the same consumer by virtue of interest rates being lower than those for the same type of loan expressed in the national currency. However, when, as a result of the global economic crisis, the rate of exchange between the Swiss franc and these national currencies (zlotys, forints, kunas, etc.) soared, consumers found themselves trapped. Often, they had to repay as much as twice the value of the loan taken, and could not escape the unfavourable contract by simply selling the property they had bought, as this would cover only a fraction of their debt. While certain Member States implemented mechanisms aimed at protecting consumers and bringing the situation under control, the case law of the European Court of Justice (ECJ), based on dynamic interpretation of the Unfair Terms Directive (93/13), has proved to be a significant factor in securing effective consumer protection. This briefing explains the legal significance of the relevant ECJ judgments, against the backdrop of the Swiss franc loan situation in Europe.
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Judicial independence is one of the key components of the rule of law (Article 2 of the Treaty on European Union – TEU), together with the fundamental right to a fair trial (Article 47 of the Charter of Fundamental Rights of the European... more
Judicial independence is one of the key components of the rule of law (Article 2 of the Treaty on European Union – TEU), together with the fundamental right to a fair trial (Article 47 of the Charter of Fundamental Rights of the European Union) and the principle of effective judicial protection (Article 19(1) TEU). When it comes to standards for judicial independence, a special role is played by the Council of Europe and its judicial body, the European Court of Human Rights (ECtHR) in Strasbourg. This is especially relevant because, according to Article 6(3)TEU, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, are in fact general principles of EU law. The importance of the Council of Europe standards and ECtHR case law have been highlighted, not least in the Commission's 2020 Rule of Law Report. This briefing discusses a number of documents of the Council of Europe and its bodies, including the Council of Europe's 2010 recommendation on judicial independence, the Magna Carta of Judges adopted by the Consultative Council of European Judges in 2010, and selected documents of the Venice Commission (the 2007 report on judicial appointments, the 2010 report on judicial independence, and the 2016 rule of law checklist). Finally, the briefing presents an overview of ECtHR case law on judicial independence, focusing on issues such as the concept and criteria for assessing it; procedures for appointing judges and possible irregularities; the question of the term of office, including the vetting of judges and early termination of term in office; the problem of external influences on judges (by the executive); possible lack of internal independence (from other judges); the question of combining judicial office with other work; and, finally, the question of judicial immunity.
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The 2007 Lugano Convention is an international treaty that regulates the free movement of court judgments in civil cases between the Member States of the EU, on one hand, and the three EFTA states (Switzerland, Norway and Iceland), on the... more
The 2007 Lugano Convention is an international treaty that regulates the free movement of court judgments in civil cases between the Member States of the EU, on one hand, and the three EFTA states (Switzerland, Norway and Iceland), on the other. The convention effectively extends the regime of quasi-automatic recognition and enforcement of judgments that was applicable between EU Member States at the time under the Brussels I Regulation (No 44/2001). Whereas the EU rules currently in force regulating the free movement of judgments in civil cases between the EU Member States – the 2012 Brussels I-bis Regulation (1215/2012) – bring about an even higher level of integration and presume, therefore, a very high level of mutual trust between the national judiciaries of the Member States, relations between the EU and EFTA Member States remain at the level of integration prescribed in 2001 by the Brussels I Regulation. Following the expiry of the transition period provided for by the Withdrawal Agreement between the United Kingdom (UK) and the EU, the UK is no longer bound by either the Brussels I-bis Regulation or the 2007 Lugano Convention. Given the fact that the latter is open not only to EU and EFTA Member States, but also explicitly to third countries, the UK has made a bid to re-join the Lugano Convention. For a third country to become part of this legal regime, all parties to the convention must give their explicit consent. Whereas this has been the case with Switzerland, Norway and Iceland, the European Commission, acting on behalf of the EU as a party to the 2007 Lugano Convention, has indicated that it is not prepared to grant such consent, effectively blocking – for the moment – the UK's reintegration within the Lugano regime of mutual recognition of civil judgments. For the Commission, accession to the Lugano regime is bound up with the notion of close economic integration with the EU, presupposing a high level of mutual trust. Participation in the Lugano system should not therefore be offered to any third country that is not part of the internal market.
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On 14 February 2017, the European Commission adopted a proposal amending Regulation (EU) No 182/2011 (the 'Comitology Regulation') in order to increase the transparency and accountability of the decision-making process leading to the... more
On 14 February 2017, the European Commission adopted a proposal amending Regulation (EU) No 182/2011 (the 'Comitology Regulation') in order to increase the transparency and accountability of the decision-making process leading to the adoption of implementing acts. The main elements of the proposal include amending the voting rules for the Appeal Committee (AC) in order to reduce the risk of a no opinion scenario and to clarify the positions of the Member States, providing for the possibility of a further referral to the AC at ministerial level if no opinion is delivered, and increasing the transparency of the comitology procedure by making public the votes of the Member States' representatives in the AC. Following the opinions of a number of committees, submitted in the previous and current terms, on 12 October 2020, Parliament's Committee on Legal Affairs adopted its report. It proposes to oblige Member States' representatives to give reasons for their vote, abstention or for any absence from the vote, and where particularly sensitive areas are concerned (consumer protection, health and safety of humans, animals or plants, or the environment), also case-specific detailed reasons for their vote or abstention. Other amendments concern better accessibility to the comitology register to increase transparency for citizens, and empowering Parliament and Council to call on the Commission to submit a proposal amending the basic act, where they deem it appropriate to review the implementing powers granted to the Commission. A partial first-reading report was adopted on 17 December 2020 in plenary and the file was referred back to the Legal Affairs Committee for interinstitutional negotiations. First edition. The 'EU Legislation in Progress' briefings are updated at key stages throughout the legislative procedure.