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New Perspectives on Legislation

A Comparative Approach

by Adam Sulikowski (Volume editor) Paweł Chmielnicki (Volume editor)
Edited Collection 236 Pages
Series: Lex et Res Publica, Volume 14

Summary

This book presents new research assumptions aiming at a significant expansion of a typical, common paradigm of law sciences. It focuses on the process of law-making, which is an important subject of interest in broadly understood legal sciences. Although many books have been written on this subject, new problems are still emerging. In many countries of the world, current political and legal theories are becoming less and less adequate to the description of reality. One of the causes is that too little empirical research is conducted in legal sciences on the links between the legal system and its socio-economic environment. This book is a result of discussions among researchers from different parts of the world. The multiplicity of points of view and the diversity of assumptions adopted by the authors, allows them to present a multi-faceted image of law-making processes.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the editors
  • About the book
  • This eBook can be cited
  • Contents
  • Introduction
  • Part One: Legislation and the Political
  • 1 Legislation and the Political: Towards Critical Legisprudence (Rafał Mańko)
  • 2 The Role of Lawyers in Law-making and the Political Struggle from the Perspective of Carl Schmitt (Rafał Chybiński)
  • 3 Politicalness of Law and Technological Ideology (Dominik Góra)
  • Part Two: In Search of New Approaches
  • 4 “Macro” and “Micro” Approach to Research on Law as a Part of Socio-Economic System (Paweł Chmielnicki)
  • 5 Some Examples and Experience from Australian Income Tax Law (Alexandra C. Evans)
  • 6 Problems Arising in Connection with Implementation of the Product Liability Directive (85/374/EEC) into Polish Law (Joanna Kuźmicka-Sulikowska)
  • Part Three: Legislation and Lawyers
  • 7 “The Borders” of the Legislator’s Freedom in the Legislation (Sanita Osipova)
  • 8 Constitutional Court – a Controller or Co-Legislator? (Dobrochna Minich)
  • 9 Sociological Context of Legislation (Martin Škop)
  • Contributors
  • List of Figures
  • Series index

cover

Bibliographic Information published by the Deutsche Nationalbibliothek
The Deutsche Nationalbibliothek lists this publication
in the Deutsche Nationalbibliografie; detailed bibliographic
data is available online at
http://dnb.d-nb.de.

Library of Congress Cataloging-in-Publication Data
A CIP catalog record for this book has been applied for at the
Library of Congress.

About the editors

Adam Sulikowski is a full professor at the University of Wroclaw, critical constitutionalist and legal philosopher as well as the author of monographs and scientific articles on constitutional theory, postmodern and post- Marxist philosophy of law and social theory. He is also the president of “Fontes” – Association for Research on the Sources and Functions of Law.

Paweł Chmielnicki ia s full professor at the Lazarski University in Warsaw. His research focuses on relationships among norms determining the achievement of goals of human activities. In 2009, he discovered the existence of clear long-term trends in the legislative process. He is the founder of “Fontes” – Association for Research on the Sources and Functions of Law.

About the book

This book presents new research assumptions aiming at a significant expansion of a typical, common paradigm of law sciences. It focuses on the process of law-making, which is an important subject of interest in broadly understood legal sciences. Although many books have been written on this subject, new problems are still emerging. In many countries of the world, current political and legal theories are becoming less and less adequate to the description of reality. One of the causes is that too little empirical research is conducted in legal sciences on the links between the legal system and its socio-economic environment. This book is a result of discussions among researchers from different parts of the world. The multiplicity of points of view and the diversity of assumptions adopted by the authors allow them to present a multifaceted image of law-making processes.

This eBook can be cited

This edition of the eBook can be cited. To enable this we have marked the start and end of a page. In cases where a word straddles a page break, the marker is placed inside the word at exactly the same position as in the physical book. This means that occasionally a word might be bifurcated by this marker.

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Introduction

The issue of lawmaking is an important subject of interest in broadly understood legal sciences. Although many books have been written on this subject, new problems are still emerging. Especially, recent events in Poland make us think about new tendencies in creating law. The Polish parliament, dominated by the “Law and Justice” party, voted on various laws very quickly, without any serious discussion, by organizing votes of ten at night. The President signed the acts presented to him often on the day of their receipt from the parliamentary office. The so-called bottom-up mode (draft laws are reported by a group of deputies), allowing the legislative procedure to be carried out without the necessary public consultation was abused – the fact that the projects did not come from groups of deputies, but from the government, was widely known. The composition of expert bodies guaranteeing the appropriate formal and substantive level of bills in the parliament has been fundamentally changed in the personal aspect. The laws were voted even in the case of objections from experts (even those newly elected and essentially loyal to the new parliamentary majority). The changes were accompanied by a new legal discourse, combining revolutionary elements with a certain vision of conservatism.

Changes in Poland with all their specificity are not isolated. In many countries of the world and even in the hegemonic United States, current political and legal theories are becoming less and less adequate to the description of reality. The famous thesis about the end of history turns out to be false. However, it should be emphasized that what may concern the ideologues of liberal democracy and the rule of law, should be inspiring for researchers. The new issues expect new theoretical approaches, new concepts and new solutions.

The texts contained in this volume are the result of discussions of various researchers from different parts of the world. The conference organized by the Association of Research on Sources and Functions of the Law “Fontes” and the Lazarski University in September 2018 was an opportunity for these discussions. The importance of the subject matter and the substantive level of the lectures inducedus to work on the creation of a monograph that would allow the authors to reach the wider audience. Certainly, this book is not a typical monograph. It is more like an English garden. Everyone who has been in such a garden knows that it is seemingly chaotic, but it has its own deep, specific order.

Our volume includes chapters inspired by theory and legal philosophy, as well as texts written by dogmatists (researchers of particular branches of law) and ←7 | 8→practitioners. The multiplicity of points of view and the diversity of assumptions adopted by the authors, allows to create a multi-faceted image of law-making processes. Certainly, only such an approach allows to show the studied phenomenon in all its complexity.

The first chapter deals with the political nature of legislation. The author – Rafał Mańko, a well-known critical theoretician, attempts to build the theoretical basis of critical legisprudence.

The subject of the second chapter is the ideological nature of technology and its impact on the creation of law. The author is Dominik Góra, an experienced researcher of the processes of applying new technologies in legal practice.

The third chapter, written by Martin Škop, a Czech critical philosopher and sociologist of law, deals with very interesting issues inthe sociological context of legislation.

The next chapter is written by Paweł Chmielnicki, founder and first president of the Fontes Association for Research on Sources and Functions of the Law. The author, inspired by the theories of institutional economics, took up the subject of the impact of “micro” and “macro” factors on the creation of law.

Biographical notes

Adam Sulikowski (Volume editor) Paweł Chmielnicki (Volume editor)

Adam Sulikowski is a full professor at the University of Wroclaw, critical constitutionalist and legal philosopher as well as the author of monographs and scientific articles on constitutional theory, postmodern and post-Marxist philosophy of law and social theory. He is also President of "Fontes", Association for Research on the Sources and Functions of Law. Paweł Chmielnicki ia s full professor at the Lazarski University in Warsaw. His research focuses on relationships among norms determining achievement of goals of human activities. In 2009, he discovered the existence of clear long-term trends in the legislative process. He is the Founder of "Fontes", Association for Research on the Sources and Functions of Law.

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Title: New Perspectives on Legislation