1302  Constitutional populism or new wave of constitutionalism. Socio-theoretical and comparative perspectives III

WG Sociology of Constitutions

Room: B2.04


Chair: Michał Stambulski | Centre for Legal Education and Social Theory, Uniwersytet Wrocławski

Karolina Kocemba | Centre for Legal Education and Social Theory, University of Wrocław

Human Rights in the Populism Times




The times in which we live today, according to the Ivan Krastev we can call an "Age of Populism". We can observe this phenomena not only in United States after the Trump election, but especially in Central and Eastern Europe. In my presentation, I would like to be focused on the Polish example, where "Law and Justice Party" government, is usually called populist. After elections in 2015, the newspapers alerted about human rights violations much often than before. But what kind of human rights? Headlines mainly concern on freedom of the media and the independence of courts – simplifying interests of judges and corporations. What about human rights violations before 2015? Of course there was many human rights violations, but not as visible – it was "just" cases from average people's life. Polish journalist Rafał Woś claims that after rapid introduction of economic freedom in 1989, the dignity of millions was violated, unemployment increased to about 15%. Important is a question if the right to the decent life and equality or right to housing are less important than the freedom of media? For neo-liberals it was through 26 years. They could easily protect their rights and interest on this time, but most of the people – just theoretically.
Today we can blame the party for its actions, but somebody voted for that party, somebody who's interests were not protected before. That is why I want to answer to the question if the populism is the chance for human rights? We can hypothesize that populist activities paradoxically strengthen the human rights trend. First of all because of human rights restoration for marginalized groups. Secondly civil society is being created - people go out into the streets and actually fight for their rights. In the populist time is not possible to think neo-liberally about human rights. But maybe it is a chance to protect human rights more equal, without selection of privileged rights and privileged groups.

Jakub Łakomy | University of Wrocław

Legal Interpretation in Agonistic Democracies. Hegemony, Populism and the Political




In my paper I will defend the thesis, that "the political" inevitably determines the interpretation of texts, including legal texts. Each interpreter, and each interpretive community (ideological intelligentsia) occupies a specific place in the structure of social conflicts that constitute "the political".
I will reconstruct the vision of theory of legal interpretation defended by Duncan Kennedy and other crits and analyze relations between legal and political realm in "theory building". As Duncan Kennedy claims: "A universalization project takes an interpretation of the interests of some group, less than the whole polity, and argues that it corresponds to the interests or to the ideals of the whole." In my paper, I will analyse the structure and theoretical background of such universalization projects from the perspective of Kennedy's theory of legal interpretation.
I will relate this theoretical approach to the problem of populism in the legal discourse of agonistic democracies.

Michał Paździora | Centre of Legal Education and Social Theory (University of Wrocław)

Beyond Harmony and Disagreement. How to Teach Rule of Law in Post-Communist Poland





Many researchers stress that the political transformation in Central and Eastern Europe is closely linked with the demise of post-communism i.e. with the transformation of political divisions typical of the so-called, Eastern Block into cultural and ideological divisions and conflicts which we associate with western democracies. The emergence of conflicts resulting from cultural divisions is bound to leave its mark on the reform of legal education. However, legal education in Poland tends to be dominated by the analytical positivism of lawyers which, the conflict of values, perceives as threats to the stability of legal reality. As a result, legal education conceals ideological and cultural conflicts rather than shaping the competencies necessary for solving them.

Jola Sawicka | Center for Legal Education and Social Theory; Oñati International Institute for the Sociology of Law

Democracy Without Constitution




Freedom in the public sphere doesn't exactly go hand in hand with the order. Where ther's civic involvement and freedom, there isn't predictability nor certainty. Constitutionalism however causes that the country isn't the common work of people, but it's an effect of the law and procedures independent from and adamant about variability of the individuals, situations, opinions; procedures immune to political, economical and social factors. The principles and rules are being created for the people, not by the people. The main task is to maintain the order, safety and freedom in the name of protecting the society from arbitrariness of the power. Formal and procedural nature of constitutionalism reduces matters in contestation, or socio-political conflicts in general, to technical problems which should be resolved or eliminated by these procedures; thereby the dialogue between the governing and the civic community is being eliminated. Constitutionalism strives to organizing a democracy without politics, which  relativizes the public sphere; the goal is a guarantee of stability and predictability in the variable world. Civic involvement is possible within the constitutionalism on condition that it means involvement in such a form that has been established before and has been legaly justified. The question that rises here is this: as far as constitutionalism without democracy is possible, is a democracy without constitution possible? 

Adam Sulikowski | University of Wrocław

The Argument from the “Common Good” in Contemporary Constitutional Democracies: Between Populism, Axiology and Politics




The main goal of this paper will be the analysis of the usage of the "common good" argument in the discourse of contemporary constitutional democracies. I will analyze both the judgments of constitutional courts and the works of constitutionalists in search of the contexts and goals in which this argument is used.
In my paper I will answer the question about the most frequent status of this argument. From the perspective of the liberal philosophy of politics, for which counterpart in the realm of legal philosophy is liberalism and liberal constitutionalism, the use of this argument is often condemned as imprecise and useless (in a more moderate version) or as "populism" which is treated by liberal lawyers as a serious insult.
The analysis of the usage of this argument in the judgements of constitutional courts and in the legal doctrine will also be presented from the perspective of two other currents of philosophical thought - the neo-Marxist movement of Critical Legal Studies and those currents of conservatism, which are critical of liberal positivism. I will answer the question, which axiological systems are involved in this concept, and what political consequences it brings. I will discuss the problem to what extent the populist and non-populist usage of this argument may be distinguished.



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