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2009 | 5(94) | 53-69

Article title

USEFULNESS OF NON-POSITIVIST CONCEPTION OF LAW IN THE PROCESS OF ACHIEVEMENT OF RIGHT LAW BY THE CONSTITUTIONAL TRIBUNAL (Przydatnosc niepozytywistycznej koncepcji prawa w procesie dochodzenia do slusznego prawa przez Trybunal Konstytucyjny)

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When examining the activity of the legislature and the Constitutional Tribunal from the viewpoint of philosophy of law, it is worth noting that these bodies contribute to create a proper system of law, taking care that the law so created meets high quality standards and is a right law. This rightness manifests itself in both the form and content of law. The Constitutional Tribunal, as a court of law, may correct possible errors made by the legislator. It has a supporting role in the shaping of the system of law. However, this role is exceptional, due to an obligation to make final decisions on, inter alia, matters of protection of constitutional values, including human-wide values. In the jurisprudence of the Constitutional Tribunal, there are examples of statements in which it recognized extra-positive nature of these values (e.g. Decision of May 28, 1997, K 26/96, Judgment of September 30, 2008, K 44/07), thereby revealing non-positivist method of argument used by that court. In the opinion of the authoress, the Tribunal, owing to its position in the democratic state ruled by law, may combine in its judgment elements of positive law and natural law. The Tribunal's activity in the process of achievement of right law also means its acceptance of non-positivist conception of law. Presently, there exist many variants of non-positivist conception of law (e.g. those of R. Dreier, R. Alexy, R. Dworkin, J. Habermas, J. Rawls) which recognize the necessary connection between law and morality. Nevertheless, morality is understood in different ways. According to the authoress, the best protection of every person is to be provided by such understanding of law that is based on human-wide morality. Non-positivist conception of law, in her opinion, is a maximalist conception whose integral elements include both classical values of natural law and the so-called principles of correct legislation. In the process of achievement of right law by the Tribunal, one of the variants of non-positivist conception, i.e. the idea of law (Rechtsidee) formulated by G. Radbruch and developed by A. Kaufmann, may prove to be useful. It perfectly matches the realities of modern democratic state ruled by law and includes both formal and material elements of law.





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  • Jadwiga Potrzeszcz, Katolicki Uniwersytet Lubelski, Wydzial Prawa, Prawa Kanonicznego i Administracji, al. Raclawickie 14, 20-950 Lublin, Poland


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