Loading...

The Limits of Juristic Power from the Perspective of the Polish Sociological Tradition

by Paweł Jabłoński (Author) Przemysław Kaczmarek (Author)
Monographs 250 Pages

Summary

The aim of the book is to outline and discuss a way of thinking about the limits of juristic power. In terms of research methodology, the authors’ approach entails relating the topography of such limits to selected theoretical frameworks developed within the Polish sociological tradition. The argument draws, above all, on the works of Leon Petrażycki, Jerzy Lande, Bronisław Wróblewski, Adam Podgórecki, Florian Znaniecki, Jacek Szmatka, and Piotr Sztompka. Striving to have each aspect shed light on the other, the authors seek out theoretical arguments which support their account of these limits. They present their model of the limits of juristic power, which includes the following constitutive factors: 1) politico-legal culture, 2) legal texts, 3) juristic culture, and 4) subjective factors (i.e. an individual, axiological sense rooted in ethical and aesthetic judgments)

Table Of Content

  • Cover
  • Title Page
  • Copyright Page
  • Foreword to the English edition
  • About the authors
  • About the book
  • Citability of the eBook
  • Contents
  • Introduction
  • 1 The goal of the work and the research strategy
  • 2 The topography of the limits of juristic power
  • 3 Politico-legal culture
  • 4 Legal text
  • 5 Juristic culture
  • 6 The axiological sense of the individual
  • Part One The realization of the law, according to the Petrażyckian tradition
  • 1 The ontology of law according to Leon Petrażycki
  • 1.1 Introductory remarks
  • 1.1.1 “The unrecognized father of the sociology of law”
  • 1.1.2 Petrażycki today
  • 1.1.3 Ways of reading
  • 1.2 Philosophical background
  • 1.2.1 The importance of philosophical optics
  • 1.2.2 Leon Petrażycki’s theory in the light of other currents of jurisprudence
  • 1.2.3 The difficulty with identifying the philosophical assumptions adopted in Leon Petrażycki’s theory
  • 1.2.4 Leon Petrażycki’s theory and philosophical positivism
  • 1.2.5 Leon Petrażycki’s theory and the phenomenology of Franz Brentano
  • 1.2.6 Other paths
  • 1.2.7 Summary
  • 1.3 The individual-projectional aspect of law
  • 1.3.1 The ontological complexity of law
  • 1.3.2 The characteristics of the emotions
  • 1.3.3 The characteristics of ethical emotions
  • 1.3.4 The characteristics of legal emotions
  • 1.3.5 The characteristics of “official-legal” emotions
  • 1.4 The textual aspect of law
  • 1.4.1 Towards the text – two layers of law
  • 1.4.2 The object of interpretation
  • 1.4.3 The problem of the meaning of legal text
  • 1.4.4 Theoretical and practical knowledge
  • 1.5 The social-projectional aspect of law
  • 1.5.1 The unifying function of jurisprudence
  • 1.5.2 The ontological status of the socio-projectional dimension of law
  • 1.6 The political aspect of law
  • 1.6.1 The axiological dimension of legal policy
  • 1.6.2 The instrumental dimension of legal policy
  • 1.7 Summary: Leon Petrażycki’s theory from the point of view of the limits of juristic power
  • 2 The implementation of law according to selected continuators of the Petrażyckian tradition
  • 2.1 Jerzy Lande: measuring up to Leon Petrażycki’s theory
  • 2.1.1 Introductory remarks
  • 2.1.2 Between Leon Petrażycki and Hans Kelsen
  • 2.1.3 Summary: Jerzy Lande’s theory with regard to the limits of juristic power
  • 2.2 The study of law according to Bronisław Wróblewski
  • 2.2.1 Introductory remarks
  • 2.2.2 Legal reality as factuality preceding legal text
  • 2.2.3 Legal text
  • 2.2.4 Juristic thinking
  • 2.2.5 The subjective conditions of lawyers
  • 2.2.6 Summary: Bronisław Wróblewski’s theory from the perspective of the limits of juristic power
  • 2.3 The application of law, according to Adam Podgórecki
  • 2.3.1 Introductory remarks
  • 2.3.2 The hypothesis of the three-stage working of law6
  • 2.3.3 Three models of the functioning of the law
  • 2.3.4 Summary: Adam Podgórecki’s theory, considered from the point of view of the limits of juristic power
  • Part Two Three conceptions of individual agency in the world of institutions
  • 1 Agency in institutions – in the conceptions of Florian Znaniecki, Jacek Szmatka and Piotr Sztompka: introductory remarks
  • 2 Florian Znaniecki’s interactive conception of social roles
  • 2.1 Introductory remarks
  • 2.2 Culturalism as a research perspective
  • 2.3 Florian Znaniecki’s concept of social role in the perspective of interactionism
  • 2.4 The structure of the theory of social role
  • 2.4.1 The person’s self in the conception of social role
  • 2.4.2 The social circle in the conception of social role
  • 2.4.3 The personal rights of role performers in the conception of social role
  • 2.4.4 The duties of the role performer in the conception of social role
  • 2.5 Summary: Florian Znaniecki’s social role theory from the perspective of the limits of juristic power
  • 3 Jacek Szmatka’s structuralist theory of social role
  • 3.1 Introductory remarks
  • 3.2 The perspective of emergent sociological structuralism
  • 3.3 Role theory from the perspective of the emergent structures of the social world
  • 3.4 The individual in a social role: Jacek Szmatka’s general role theory model
  • 3.4.1 Two levels of the individual’s social role: structural and individual
  • 3.4.2 The autonomy of the individual in the role structure
  • 3.4.3 Mechanisms for reducing tension in the role
  • 3.5 Group culture: between autonomy and integrity
  • 3.6 Summary: Jacek Szmatka’s theory of social role from the perspective of the limits of juristic power
  • 4 Piotr Sztompka’s theory of cultural becoming
  • 4.1 Introductory remarks
  • 4.2 Towards a sociology of everyday life
  • 4.3 Social becoming
  • 4.3.1 Two factors: the subjective and historical, as features of social reality
  • 4.3.2 The four-fold structure of the concept of social becoming
  • 4.4 The culture of trust
  • 4.4.1 Trust as a cultural rule
  • 4.4.2 The emergence of the culture of trust: assumptions and factors
  • 4.4.3 The functions of the culture of trust
  • 4.5 Juristic culture as praxis: subjectivity, responsibility, historicity
  • 4.6 Summary: Piotr Sztompka’s theory of cultural becoming from the perspective of the limits of juristic power
  • Conclusion
  • Bibliography
  • Summary

Introduction

1 The goal of the work and the research strategy

The goal of this work is to propose and discuss a certain way of thinking about juristic power. Following the findings of Krzysztof Pałecki, we can distinguish two aspects of this power: normative and real (Pałecki 1988:128 ff.). In the normative aspect, we are referring to power when we can indicate a norm, or a set of legal norms, which allows specific entities to make decisions. In contrast, the real aspect of power “is the activity or a set of real actions taken by specific people” (Pałecki 1988:129), and which has significant consequences for other people. It is legitimate for lawyers to talk about power in both these senses. This is because we can identify constitutional solutions which presuppose the tripartite division of power – one of which is the judiciary. In turn, the real aspect of juristic power corresponds to the strictly sociological dimension of power. It is realized in the concrete actions of lawyers, who draw support from the normative aspect. We take both dimensions of power into account in our work, referring not only to the problems involved in the interpretation of juristic texts, but also to other aspects involved in performing professional legal services.

How can we deal with the limits of power in this sense? As Pałecki rightly observes, the notion of such limits is metaphorical (Pałecki 1988:65). They can be presented in positive and negative terms. On the positive side, when asking about the limits of juristic power, we pay attention to factors which have an impact on the decisions that lawyers take. On the negative side, the question about limits concerns barriers which restrict the freedom of action (see Borucka-Arctowa 1985:48). In this work, we combine the two senses. This is justified by the fact that discussing the determinants which influence the agency of lawyers performing their professional roles at the same time also reveals the factors which affect interpreters.

Let us note two more points here. First, we use the concept of a lawyer in a broad sense. Namely, to designate a person who studied law and who is professionally involved in the application of the law (Kozłowska 1984: 138–139). Secondly, focusing on the Polish sociological tradition, we have in mind two lines of development. The scope of the first is based on the concepts developed within the discursive framework of “general sociology”. The key figure here is Florian Znaniecki, who continues to inspire sociological discourse in Poland. The scope of the second line is determined by sociological-legal discourse, and in this area the thinking of Leon Petrażycki is of key importance. Although the ←13 | 14→title of this work refers to the Polish sociological tradition, in order to indicate the research area to be explored more precisely, it would be preferable to refer to selected concepts and theories from this tradition. Although the choice of the most important figures in this book is not accidental, we realize that it is neither exhaustive nor free from an element of arbitrariness.

The research approach we have employed refers our conception of the limits of juristic power, which we outline in the first chapter, to selected theories developed in the Polish sociological tradition. If we were to align with a typical research strategy, it seems that the closest would be what is referred to in the Anglosphere literature as “doing philosophy historically” (Piercey 2009: 9–15; cf. Szacki 2002: 8–9). This approach involves going beyond the choice between a historical reconstruction of specific theories or the ahistorical consideration of a particular philosophical issue. Embedding a problem in a specific tradition (or traditions) of thought is, on the one hand, a way of researching it, and, on the other hand, a method of learning, thematizing and vitalizing the theoretical concepts used.

A similar approach is also proposed by Leszek Kołakowski. This Polish thinker stressed that the knowledge and development of the humanistic tradition involves posing specific questions within this tradition. In this approach it is not so much a matter of finding pre-existing answers hidden in other texts, as of “sticking them together from the materials provided by the authors under investigation” (2009: 72).

Our search for theoretical arguments that support the validity of the proposed conception of the limits of the juristic power will illuminate both the research area and the concepts analyzed. As hermeneutics teaches us, in projects of this kind it is necessary to avoid two opposing yet equally disastrous pitfalls. The first pitfall involves taking an approach that is too free, in which the text is reduced to a pretext, and interpreters only appear to be engaging with tradition, while remaining within the limits of their existing perspective and knowledge. The second pitfall involves adhering too rigidly to the original author’s words, thus not going beyond the level of repeating what is read.

It must be stressed that we do not expect the rightness of the proposed approach to the limits of juristic power to be fully confirmed by all of the concepts discussed here. First, we seek a comprehensive picture which – it is hoped – will emerge from the analysis of selected theories. Secondly, it seems to us that the possible correction or falsification of some of the posited assumptions is no less interesting and useful than their confirmation. To avoid potential misunderstanding, we would like to make it clear that we are aware that we employ the terms “verification” and “falsification” in a relatively free, weak sense, and not ←14 | 15→as a component of any hard, reliable test procedure. However, appreciating the philosophical complexities inherent in the issues tackled in this work should go hand in hand with acceptance of the fact we do not claim to put forward hard scientific arguments typical for the exact sciences. Thirdly, a certain adaptive element is included in our procedure. In our review of concepts and theories, we will sometimes identify exact equivalents of the limits of juristic power as specified by us, yet often we are concerned with extracting elements in the theories under consideration that can be reliably subjected to reinterpretation through the categories of interest to us.

The existence of a rich scholarly literature means that the issue of juristic power can be tackled on various levels, with the most obvious areas of consideration being the theory of interpretation and the theory of politics. The approach we have opted for with regard to this issue, which is largely focused on theories that conceptualize the construction of social reality, does not mean that the theories of interpretation and politics are marginalized. On the contrary, we are firmly convinced that a reliable assessment of our project also requires verification from these perspectives1. The approach based on the analysis of sociological discourse, which has not been frequently used thus far, can be a useful complement to research on our field of interest.

Maria Borucka-Arctowa, Janina Czapska, Krzysztof Pałecki and Wiesław Zabłocki distinguish two approaches in sociological-legal research, i.e. legal-centric and sociological-legal (Borucka-Arctowa, Czapska, Pałecki, and Zabłocki 1988: 10–11). The former is characterized by the study of sociological aspects of law, whereas the latter combines juristic issues with sociological concepts and by means of them seeks to elucidate issues formulated within legal discourse. The structure adopted in this work can be seen as an attempt to combine these two research approaches, revealing their supplementarity. The problems arising in Part One, which is connected with the ontology of law and the specifics of juristic thinking, are taken up again in the Part Two. Here, the basic angle for ←15 | 16→addressing the limits of juristic power is the problem of the relationship between the individual and institutions, and the related issue of performing a role.

2 The topography of the limits of juristic power

The topography of the limits of juristic power presented below combines both normative and descriptive elements. We assume that they cannot be reliably unraveled. Since the issue of the limits of juristic power is also to some extent an issue that concerns the very concept of law, and thus a philosophical question par excellence, it is clear to us there is a degree of arbitrariness in the proposed structure. As knowledge gained through philosophy is also in part matter of choice, it cannot be otherwise in this case.

We adopt the following model of the limits of juristic power: 1) politico-legal culture, 2) legal text, 3) juristic culture, 4) subjective factors, i.e. an individual axiological sense, rooted in ethical and aesthetic judgments.

By politico-legal culture, we mean a political morality specific to a given society, providing it with its fundamental axiological spine (Smolak 2003: 32–33). An example of an element essential to the politico-legal culture of Western liberal societies is respect for human dignity and the support for the associated idea of the democratic rule of law. Then, following Maciej Zieliński, by legal text we understand the set of all the legal provisions in force at a given place and time (Zieliński 2002). Unlike politico-legal culture, legal text is not a product of society as a whole, but rather of the legislators representing it. As the third factor, juristic culture consists of the knowledge and skills requisite for the correct application of law, which has been developed by generations of lawyers and is inextricable from the social division of labor. Finally, the fourth has an individual character and is associated with the value judgments made by individual lawyers.

Inspired in a fairly free manner by the conclusions put forward by Tomasz Gizbert-Studnicki concerning teleological interpretation (Gizbert-Studnicki 1985: 61–64), we assume that alongside the above-mentioned factors determining how lawyers operate, the following interrelations are at work:

a) The supplementarity relation – an earlier limit establishes a framework which is then filled by subsequent limits, or – from another perspective – a later limit is decided within the framework bequeathed by the previous ones. In other words, each earlier limit creates a certain primary facticity for subsequent limits.

b) The correction relation – in exceptional circumstances, a later limit may provide arguments which support the modification of the results established on ←16 | 17→the basis of the preceding limits; one of the basic conditions for the admissibility of such a breach of an earlier limit is a strong argumentative support for other limits.

One can risk the claim that the rule of supplementarity and the exceptional correction are two complementary aspects of the social creation of the law. Each subsequent limit is associated with a different level and scope of this creation. In favorable conditions, this specific cascade process is an optimization, and thus the choice of the best possible version. However, in a negative scenario this optimization becomes a deformation.

3 Politico-legal culture

The designation of politico-legal culture as a separate limit may give rise to some reservations, and we shall highlight the most important of these in order to deal with them critically. First of all, it is easy to imagine the charge that it is unnecessary, or even erroneous, to distinguish politico-legal culture with regard to the continental systems of law. Since the most important normative decisions are incorporated into legal texts, especially constitutions (which with regard to Polish law concerns the aforementioned principles of respect for human dignity and the democratic rule of law), it may seem that content connected with the first limit is exhausted at the textual level. However, in accepting this position, one would have to accept that a political power wielding a constitutional majority in parliament can change the constitution and the entirety of the law in absolutely any way, while maintaining the continuity of the legal system or, to be more precise, the only legal brake here would be international and supranational law. It seems, however, that such a standpoint is contrary to our basic intuitions concerning what the law is.

To illustrate this, imagine that a political power with the required majority adopts a constitution in which it is assumed that the most important value is respect for money. Then the legislator passes an act on trade, according to which a debtor with unpaid debts becomes the property of the creditor, and later a road traffic law, making the right of way at a crossing dependent on the color of the car, with each color symbolizing the social status of the vehicle owner. Such solutions – even if we disregard the issue of contradictions within the legal text itself, with regard to international and supranational law – would be grossly inconsistent with political and legal culture, and as such would not constitute law. Although the presence of such extrinsic limitations of law are treated in a wide variety of ways in the scholarly literature – it is enough to recall Hart’s ←17 | 18→minimum content theory of natural law (Hart 1998: 261–269) or Dworkin’s concept of the existence of pre-existing rights (Dworkin 1998: 333–369) – they seem today to be an important aspect of understanding the concept of law.

The second doubt which can be addressed here is the question of whether, in the face of increasing social differentiation, it is still plausible to talk meaningfully and rationally about Western societies having a cohesive political and legal culture. However, a negative answer to this question would be based on confusing the rather obvious assertion that politico-legal culture lacks internal uniformity and consistency with the dubious claim that this culture is disappearing, which is somewhat difficult to defend. It is also worth noting that the lack of full internal consistency is a property that can also be said to characterize all the other limits.

The third doubt worth mentioning is the problem of the specific splitting of the axiological moment in the proposed construct between the first and fourth limits. The question arises of whether individual value judgments are not derived from political morality. Let us note, however, that this charge can be consistently extended and leveled at the other two limits – since all of them are located in the framework of political morality. As was previously mentioned, in our project each of the subsequent factors determining the lawyer’s activity contains a potentially supplementary element, or – exceptionally – a corrective one.

To avoid possible misunderstandings, let us also emphasize that politico-legal culture should not be understood as a blank slate, which would allow it to be filled with any content whatsoever. On the contrary, it is the least flexible element in the limits of juristic power. The key concepts underpinning the politico-legal culture of contemporary Western societies, such as respect for human dignity, the division of power into the legislative, executive and judiciary, the rule of law or the secular nature of the state, are constitutive elements of this culture that co-determine the way the law is understood. Although it is clear that there are different types of politico-legal cultures in this world, such as various types of authoritarian system or Islamic law, the proposed way of thinking does not apply to them. In other words, the limits indicated only function on the basis of certain assumptions. For example, it is difficult to expect that in an authoritarian state such elements as legal text or juristic culture would have any meaningful role.

Details

Pages
250
ISBN (PDF)
9783631779620
ISBN (ePUB)
9783631779637
ISBN (MOBI)
9783631779644
ISBN (Hardcover)
9783631746271
Language
English
Publication date
2019 (May)
Published
Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2019. 250 pp.

Biographical notes

Paweł Jabłoński (Author) Przemysław Kaczmarek (Author)

Previous

Title: The Limits of Juristic Power from the Perspective of the Polish Sociological Tradition