W stronę krytycznej filozofii orzekania. Polityczność, etyka, legitymizacja
Towards a critical philosophy of adjudication. The political, ethics, legitimacy

Author(s): Rafał Mańko
Subject(s): Law, Constitution, Jurisprudence, Criminal Law, Philosophy of Law
Published by: Wydawnictwo Uniwersytetu Łódzkiego
Keywords: adjudication; discretionary power; the political; ethics; legitimacy
Summary/Abstract: This monograph is an attempt to problematise the phenomenon of adjudication in the perspective of critical legal theory. The author refers to the chief representatives of critical jurisprudence (including Duncan Kennedy, Costas Douzinas and Adam Gearey) in order to propose his own, original model which he dubs the critical philosophy of adjudication. Basing himself of the ontological, epistemological and methodological assumptions of critical theory, the auhor considers that two aspects are fundamental for a critique of adjudication: the political, understood, following Chantal Mouffe, as the fundamental and inalienable social antagonism, and ideology, which he understands along the lines of Slavoj Žižek. The author also critically engages with Artur Kozak’s ‘juriscentrism’, discussing inter alia the problem of the limits of lawyers’ discretionary power. Bringing the political and ideological aspects of adjudication to the daylight encourages to rethink judicial ethics which, according to the author, should be based on the pursuit of justice, understood not as a formula susceptible to codificaiton, but rather as the removal of any aspects of injustice (adikia), as well as an emancipatory activisim. Thus understood, the political ethics of adjudication is a proposal for critical rethinking of the social responsibility of judges and their links to the law, as well as as a suitable point of departure for discussing judicial legitimacy in a new perspective. Since judicial legitimacy cannot be based on the text of the law and should avoid seeking its basis in other institutional worlds, it seems that an appropriate foundation for it can be found in democratic participation, as well as an authentic pursuit of the ideal of justice.

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