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Law, Politics, and the Constitution

New Perspectives from Legal and Political Theory

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Edited By Antonia Geisler, Michael Hein and Siri Hummel

The fourth Yearbook of the Central and Eastern European Forum of Young Legal, Political and Social Theorists reassesses central concepts of modern constitutionalism between the poles of law and politics: separation of powers, constitutional review, and constitutional rights and obligations. Fourteen legal scholars and political scientists from the region contribute to interrelated debates in both disciplines. Two questions are particularly raised: How can the aforementioned concepts be understood? And: Which role do they play in current national and supra-national institutions? With regard to the second question, an essential part of the chapters focuses on current developments within the European Union and in post-socialist states of Central and Eastern Europe.
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‘War of Courts’ as a Clash of Legal Cultures: Rethinking the Conflict Between the Polish Constitutional Tribunal and the Supreme Court Over ‘Interpretive Judgments’

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Rafał Mańko

Abstract

Since 1986, Poland has had its Constitutional Tribunal, placed outside the structure of ordinary judiciary. Since 1993, this court has been issuing ‘interpretive judgments’ in which it decides that a certain statutory rule is constitutional only under a certain interpretation. On numerous occasions the Supreme Court has refused to follow the Constitutional Tribunal’s decisions, claiming that they are unconstitutional, ultra vires and non-binding. An analysis of the arguments put forward by both courts in this ‘war of the courts’ reveals that the Supreme Court prefers ultra-formalist arguments typical of the hyperpositivist legal culture of the former state-socialist period, whilst the Constitutional Tribunal seems to prefer pragmatist arguments, more typical to contemporary Western legal culture. The article concludes that behind the ‘war of the courts’ in Poland there is a clash of legal cultures and attempts at identifying the reasons for it.

The establishment of a separate, specialised constitutional court, placed outside the structures of the ordinary judiciary often leads to constitutional conflicts (Comella 2011, 273). Such conflicts are defined as ‘quarrels in which either two or more actors draw upon the same constitutional competence or one actor claims a competence that draws the diapproval of another’ (Hein 2011, 3), in this case the actors in question being the constitutional court and the ordinary courts, usually the supreme court. Famous examples include Germany (Heun 2011, 182), Italy (Garlicki 2007, 54–56), South Africa (Michelman 2011, 286–287) the Czech Republic (Sadurski...

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