Suwerenność sądu jako kryterium ludowładztwa. Apologia aktywizmu sędziowskiego w amerykańskiej myśli polityczno-prawnej
Court sovereignty as a criterion of democracy. The apologia of judicial activism in the American political-legal thought

Summary/Abstract: The article dwells on a concept, according to which, it is the legislative power of the courts which is the criterion of democracy. The research tool adopted by the author is an ideal type of modern democracy, as posited by Claude Lefort, whereby democracy is a manner of self-understanding in a society and, on the grounds of this understanding, it is impossible to point to a defi ned subject of authority. The political process in this type of democracy is to consist in its transient, symbolic identifi cations. This objective is to be served by efforts aimed at an institutional recognition of subjective rights, individual and collective. Such an understanding of democracy corresponds to the modern tendency in the philosophy of law and politics, whereby the legislative role of the courts is legitimised. This thread fi nds a particularly characteristic expression in the apologia of the political position of the U.S. Supreme Court. It results from the changed criteria of democracy, which is no longer the rule of the people or its infl uence on the rulers, but rather an individual’s belief that their claims, justifi ed on the ground of subjective laws, will be settled openly and impartially, with the settlement only providing provisional answers, in order not to close the road to acknowledging successive claims. It is in this way that both the idea of the people as a subject of democracy and that of the individual as a subject of specifi c rights undergo deconstruction. If democracy, understood in such a way, at least appears to implement Lefort’s requirement for the subject of power to be undetermined, then at the same time, in view of the undetermined character of its concept, which manifests itself in acknowledging it to be an expression of the rule of an elite body fulfi lling particular interests, it becomes devoid of the ability to shape a common and unifying political symbolism.

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