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

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Paweł Jabłoński and Przemysław Kaczmarek

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)

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Introduction

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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...

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