Edited By Andrzej Bator, Zbigniew Pulka and Jan Burzyński
Post-analytical philosophy of law departs from the traditional view which considers philosophical cognition merely as a sense-making and optimizing activity. It also questions the apparently universal and objective character of the theorems put forward by existing analytical philosophy. Just like every scientific trend whose name is supplemented with the "post" prefix, it does not break with its past, but rather seeks to critically revisit its established achievements. The main goal of post-analytical philosophy is no longer to impose a conceptual structure upon chaos in the realm of legal and political phenomena. Rather, it seeks to deconstruct the analytical, both philosophical and legal, narrative to expose it as a collection of schemes which oversimplify – if not mystify – the legal and political reality. This kind of diagnosis paves the way towards the construction of a positive program of post-analytical philosophy of law, which the focus of this book.
Is It the End of the Theory of Law? A View from the Polish Perspective
This question hides a presupposition that there existed something we may call or used to call “(Polish) theory of law” and what seemed to be in a good condition before a new time or new circumstances arose and good existence of theory of law is over or at least is endangered. There is a different possible diagnosis: that maybe theory of law has been touched by the syndrome of crisis from its onset, building programs – at least some of them may result in this conclusion – for which there was no social need. Speaking of need, we primarily look at dogmatics of law and professional legal practice.
The first element of the presupposition – the assumption of the presence of “theory of law” in legal academic practice – could become a subject of debate in itself, and as we know this has already happened. Jerzy Stelmach, when characterizing the founding myth of 19th-century positivist philosophy, wrote, in reference to jurisprudence, about the search for “a method that allows to construct a truly scientific theory of law, free of metaphysics, formulating verifiable theorems.”1 Abandoning earlier, speculative theory of legal philosophy it became an inspiration for the construction of a “scientific” research program for which the legitimization lay in the “theory of law.” The founding myth of the philosophy of positivism was well suited to the aspirations of the legal environment. It attempted to make jurisprudence of the time into a science that realized the idea of constructing “a legal...
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