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Związanie sumieniem a granice władzy sędziowskiej w kontekście normatywnych modeli sądowego stosowania prawa

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Krzynówek-Arndt A.
Forum Prawnicze
|
2017
|
issue 5 (43)
20–35
EN
A legal doctrine and constitutional adjudication emphasize that a judge fol- lows the dictates of the law and conscience. The article analyses the relation- ship between the personal conscience of a judge and the limits of judicial power and authority not only as a legal but ethico-philosophical issue as well. Types of judicial conscience are related to three normative models of the judicial application of law connected respectively to post-positivist ju - risprudence, virtue jurisprudence and personalist/natural law jurisprudence. The evolution of the state distinctive for late modernity, including changes of contemporary statutory law systems, the judicialization of politics and reconceptualization of the doctrine of separation of power, emphasize the significance of the proper limits of judicial power and authority set by the dictates of conscience.
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Państwo prawa w klasycznej tradycji zachodniej i późnej nowoczesności w kontekście sporów wokół klauzuli demokratycznego państwa prawnego

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Krzynówek-Arndt A.
Przegląd Sejmowy
|
2018
|
issue 3(146)
79–102
EN
The purpose of the article is to indicate the possible directions for clarifying the modern model of a state both democratic and ruled by law. To seriously take those two qualities, they must be regarded as mutually related. This is possible, when the democratic-political and legal-constitutional dimensions of the state can be related to an external dimension determining both the boundaries of the content of law and the decisions made by the Nation-sovereign (also in the Constitution) or specified by the will of the current majority of its representatives. Such perspective can be obtained primarily via considering the natural law in the disputes on a democratic state ruled by law. Taking into account transformations of the state and the law typical for the period of late modernity, as well as various traditions of neo-Positivist approach to law, four models of a democratic state ruled by law as a modern political form may be distinguished: constitutional democratic state ruled by law (in liberal-political and discursive versions), agonistic democratic state ruled by law, neorepublican democratic state ruled by law, personalistic democratic state ruled by law.
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