Rafał Mańko
In my theoretical research on law I combine insights from sociology of law, comparative legal history and philosophy. I have developed a theory of legal survivals in order to account for the continuity of juridical form despite revolutions, transformations and other transitions. I have also worked on the theory of adjudication, exploring the limits of judicial discretionary power in the context of ideology and the political. My analyses led me to developing the concept of a juridico-political decision. I have also explored Central European legal identity in the context of the post-socialist transformation in the region.
I am a research affiliate at the CEU Democracy Institute. I hold a PhD in private law from the University of Amsterdam (2014) and a habilitation in philosophy of law (doctor habilitatus iuris) from the University of Wrocław (2019). I also hold a master's degree in Roman law (magister iuris) from the University of Warsaw (2003). Before joining the CEU Democracy Institute, I was a fellow of the Centre for the Study of European Contract Law, University of Amsterdam.
I have co-edited five volumes, including "Law, Populism and the Political in Central and Eastern Europe" (Routledge 2024, coedited with A. Sulikowski, P. Tacik & C. Cercel), "Legal Scholarship and the Political: In Search of a New Paradigm" (C.H. Beck 2021 co-edited with A. Sulikowski & J. Łakomy), and "Law and Critique in Central Europe: Questioning the Past, Resisting the Present" (Counterpress 2018 co-edited with C. Cercel and A. Sulikowski). I have also co-edited special issues of journals, including volumes on “Central European Legal Culture Between Transition and Continuity” (special issue of Wroclaw Review of Law, Administration and Economics, vol. 6, no. 2, 2016); “The Return of the Exception” (co-edited with G.G. Fusco & P. Tacik, special issue of Acta Universitatis Lodziensis. Folia Iuridica vol. 89, 2019); and “Critical Legal Theory in Central and Eastern Europe” (special issue of Acta Universitatis Lodziensis. Folia Iuridica vol. 89, 2019). I am the author of over 100 scholarly articles and contributions to edited collections on topics of sociology of law, legal theory, comparative law and EU law. My most recent papers include "Pašukanis on Ideology and the Juridical (A Note on The General Theory of Law and Marxism)" (in: Legal Form: Pashukanis and the Marxist Critique of Law, Routledge 2025, pp. 76-102),
"Legal Survivals and the Resilience of Juridical Form" (2023) Law & Critique, https://doi.org/10.1007/s10978-023-09357-2, "Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication" (2022) 33 Law & Critique 175, https://doi.org/10.1007/s10978-021-09288-w and ‘Sententia non existens: A new remedy under EU law?’ (2022) 59 Common Market Law Review 1169 (with P. Tacik).
I am a research affiliate at the CEU Democracy Institute. I hold a PhD in private law from the University of Amsterdam (2014) and a habilitation in philosophy of law (doctor habilitatus iuris) from the University of Wrocław (2019). I also hold a master's degree in Roman law (magister iuris) from the University of Warsaw (2003). Before joining the CEU Democracy Institute, I was a fellow of the Centre for the Study of European Contract Law, University of Amsterdam.
I have co-edited five volumes, including "Law, Populism and the Political in Central and Eastern Europe" (Routledge 2024, coedited with A. Sulikowski, P. Tacik & C. Cercel), "Legal Scholarship and the Political: In Search of a New Paradigm" (C.H. Beck 2021 co-edited with A. Sulikowski & J. Łakomy), and "Law and Critique in Central Europe: Questioning the Past, Resisting the Present" (Counterpress 2018 co-edited with C. Cercel and A. Sulikowski). I have also co-edited special issues of journals, including volumes on “Central European Legal Culture Between Transition and Continuity” (special issue of Wroclaw Review of Law, Administration and Economics, vol. 6, no. 2, 2016); “The Return of the Exception” (co-edited with G.G. Fusco & P. Tacik, special issue of Acta Universitatis Lodziensis. Folia Iuridica vol. 89, 2019); and “Critical Legal Theory in Central and Eastern Europe” (special issue of Acta Universitatis Lodziensis. Folia Iuridica vol. 89, 2019). I am the author of over 100 scholarly articles and contributions to edited collections on topics of sociology of law, legal theory, comparative law and EU law. My most recent papers include "Pašukanis on Ideology and the Juridical (A Note on The General Theory of Law and Marxism)" (in: Legal Form: Pashukanis and the Marxist Critique of Law, Routledge 2025, pp. 76-102),
"Legal Survivals and the Resilience of Juridical Form" (2023) Law & Critique, https://doi.org/10.1007/s10978-023-09357-2, "Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication" (2022) 33 Law & Critique 175, https://doi.org/10.1007/s10978-021-09288-w and ‘Sententia non existens: A new remedy under EU law?’ (2022) 59 Common Market Law Review 1169 (with P. Tacik).
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Legal theory by Rafał Mańko
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’.
jej społeczną władzę, a zarazem narzędzie tej władzy, jakim jest zautonomizowane od bieżącej polityki prawo. Trwałość prawa jako formy pełni jednak funkcje nie tylko legitymizacyjne, lecz jest także podstawą jego przewidywalności i pewności. Jak pisał bowiem Artur Kozak, tym, co prawo ma do zaoferowania społeczeństwu, są właśnie zakodowane w nim wartości czysto formalne, które odróżniają myślenie prawnicze
od myślenia ekonomicznego, politycznego czy ideologicznego.
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.
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
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.
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.
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.
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.