Sulikowski/Chmielnicki

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This publication was financially supported by Lazarski University, Warsaw.

Reviewed by Prof. Przemysław Kaczmarek

ISSN 2191-3250

ISBN 978-3-631-79362-6 (Print)

E-ISBN 978-3-631-80038-6 (E-Book)

E-ISBN 978-3-631-80039-3 (EPUB)

E-ISBN 978-3-631-80040-9 (MOBI)

DOI 10.3726/b16071

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Berlin 2020

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About the editors

Adam Sulikowski is a full professor at the University of Wroclaw, critical constitutionalist and legal philosopher as well as the author of monographs and scientific articles on constitutional theory, postmodern and post- Marxist philosophy of law and social theory. He is also the president of “Fontes” – Association for Research on the Sources and Functions of Law.

Paweł Chmielnicki ia s full professor at the Lazarski University in Warsaw. His research focuses on relationships among norms determining the achievement of goals of human activities. In 2009, he discovered the existence of clear long-term trends in the legislative process. He is the founder of “Fontes” – Association for Research on the Sources and Functions of Law.

About the book

This book presents new research assumptions aiming at a significant expansion of a typical, common paradigm of law sciences. It focuses on the process of law-making, which is an important subject of interest in broadly understood legal sciences. Although many books have been written on this subject, new problems are still emerging. In many countries of the world, current political and legal theories are becoming less and less adequate to the description of reality. One of the causes is that too little empirical research is conducted in legal sciences on the links between the legal system and its socio-economic environment. This book is a result of discussions among researchers from different parts of the world. The multiplicity of points of view and the diversity of assumptions adopted by the authors allow them to present a multifaceted image of law-making processes.

This eBook can be cited

This edition of the eBook can be cited. To enable this we have marked the start and end of a page. In cases where a word straddles a page break, the marker is placed inside the word at exactly the same position as in the physical book. This means that occasionally a word might be bifurcated by this marker.

Introduction

Part One:Legislation and the Political

Rafał Mańko

1 Legislation and the Political: Towards Critical Legisprudence

Rafał Chybiński

2 The Role of Lawyers in Law-making and the Political Struggle from the Perspective of Carl Schmitt

Dominik Góra

3 Politicalness of Law and Technological Ideology

Part Two:In Search of New Approaches

Paweł Chmielnicki

4 “Macro” and “Micro” Approach to Research on Law as a Part of Socio-Economic System

Alexandra C. Evans

5 Some Examples and Experience from Australian Income Tax Law

Joanna Kuźmicka-Sulikowska

6 Problems Arising in Connection with Implementation of the Product Liability Directive (85/374/EEC) into Polish Law

Part Three:  Legislation and Lawyers

Sanita Osipova

7 “The Borders” of the Legislator’s Freedom in the Legislation

Dobrochna Minich

8 Constitutional Court – a Controller or Co-Legislator?

9 Sociological Context of Legislation

Contributors

List of Figures

Introduction

The issue of lawmaking is an important subject of interest in broadly understood legal sciences. Although many books have been written on this subject, new problems are still emerging. Especially, recent events in Poland make us think about new tendencies in creating law. The Polish parliament, dominated by the “Law and Justice” party, voted on various laws very quickly, without any serious discussion, by organizing votes of ten at night. The President signed the acts presented to him often on the day of their receipt from the parliamentary office. The so-called bottom-up mode (draft laws are reported by a group of deputies), allowing the legislative procedure to be carried out without the necessary public consultation was abused – the fact that the projects did not come from groups of deputies, but from the government, was widely known. The composition of expert bodies guaranteeing the appropriate formal and substantive level of bills in the parliament has been fundamentally changed in the personal aspect. The laws were voted even in the case of objections from experts (even those newly elected and essentially loyal to the new parliamentary majority). The changes were accompanied by a new legal discourse, combining revolutionary elements with a certain vision of conservatism.

Changes in Poland with all their specificity are not isolated. In many countries of the world and even in the hegemonic United States, current political and legal theories are becoming less and less adequate to the description of reality. The famous thesis about the end of history turns out to be false. However, it should be emphasized that what may concern the ideologues of liberal democracy and the rule of law, should be inspiring for researchers. The new issues expect new theoretical approaches, new concepts and new solutions.

The texts contained in this volume are the result of discussions of various researchers from different parts of the world. The conference organized by the Association of Research on Sources and Functions of the Law “Fontes” and the Lazarski University in September 2018 was an opportunity for these discussions. The importance of the subject matter and the substantive level of the lectures inducedus to work on the creation of a monograph that would allow the authors to reach the wider audience. Certainly, this book is not a typical monograph. It is more like an English garden. Everyone who has been in such a garden knows that it is seemingly chaotic, but it has its own deep, specific order.

Our volume includes chapters inspired by theory and legal philosophy, as well as texts written by dogmatists (researchers of particular branches of law) and ←7 | 8→practitioners. The multiplicity of points of view and the diversity of assumptions adopted by the authors, allows to create a multi-faceted image of law-making processes. Certainly, only such an approach allows to show the studied phenomenon in all its complexity.