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1

Three models of a democratic state

100%

Wonicki R.

Civitas. Studia z filozofii polityki (Civitas. Studies on politics philosophy)

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2007

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issue 10

94-120

EN

The theory of a deliberative, democratic state posited by Jurgen Habermas fills the gaps in the concepts of democracy proper to liberalism and republicanism. Habermas' theory intermediates between the liberal and the republican models, avoiding the one-sidedness to which they tend. A deliberative state ruled by law is based on a discursive forming of the will (active participation in the political, social and cultural sphere), the essence of which is communicative rationality, setting out the framework of a democratic procedure legitimising the rightfully made law and a law-abiding state. Communicative rationality guarantees that all the important interests will be accounted for. In this model, the public space, in turn, is perceived and understood as a possibility whereby all the stakeholders are able to create procedures. In his theory of liberalism, Habermas refers to a higher level of intersubjectivity where the communication processes occurs, which leads on the one hand to the institutionalising of deliberations, in the form of political bodies, and on the another hand, to the establishing of an informal network of linkages in the public sphere. Contrary to the liberal and republican model, the deliberative model of a democratic, law-governed state is focussed on the discursive legitimisation of the law, while politics here is understood as a public activity being played out in the interpersonal sphere. In such politics, the attention is displaced from the final act of voting to the process of agreeing the rules and arriving at an agreement.

2

The axiological basis of a constitution

100%

Stawrowski Z.

Civitas. Studia z filozofii polityki (Civitas. Studies on politics philosophy)

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2007

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issue 10

9-29

EN

The axiology embedded in a constitution refers to a political community in its most and its developed, modern form, which we refer to as a constitutional state. The basis of such a state institutional and legal structure, recorded in the fundamental law, is comprised of fundamental values that gradually filter into the consciousness and are subsequently universally accepted during a long-lasting, historical process which has been completed in a given cultural milieu. In order to indicate the values on which a constitutional state is founded and which it embodies, it is necessary to reach back to the very beginnings of not only a modern state before the epoch of a constitution, but also to those of the state as such. An axiological appraisal of a state must be based on the specific content of the ethical order at its foundations. There is a specific 'axiology' of exerting power as such, the basic yardstick for which is effectiveness. When we aim to appraise or draft a specific constitution, this pragmatic perspective must be taken into account. A well-organised system of the institutions of the state's authority is, primarily, one which operates effectively. Axiologically, the most important part of a constitution, the one where the ethical foundations of the state are spelled out 'expressis verbis', is the catalogue of basic rights. At present, the main problem is the inflation of these rights, not only by rendering them too detailed, but also by placing political stipulations, social privileges or expectations regarded as generally right among them. (the II chapter of the Constitution now in force in Poland makes an instructive illustration of such an approach.) All these superfluous appendages not only litter the constitution, but also contribute to the devaluation of real fundamental rights as their meaning, essential to the maintenance of an interpersonal order, is diluted in the flood of quasi rights which have been added on.

3

A 'good' society and the law-governed state. Prolegomena to a constitution

100%

Kaczorowski P.

Civitas. Studia z filozofii polityki (Civitas. Studies on politics philosophy)

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2007

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issue 10

29-43

EN

The idea of a law-governed state, which is referred to so commonly, exists as a synonym of the principle of the supreme meaning and standing of the constitution in the state system. The law-governed state in its pure form is one where the law provides not only the framework and barriers for the state and the actions of the authorities, but a state wherein its beginning and foundations are rooted in the law. The concept of the law-governed state has many highly detailed elements (the very existence of the constitution, the separation of powers, the independence of the courts, the legal character of administrative actions, legal protection against decisions made by the authorities, the right to appeal, etc.); its essence, however, is the recognition of the law as a particular means and a yardstick with which both the state's system and the recognition of the legal standards vested with the power to shape social relationships, the regulatory power, are moulded. It is the prestige of the law - 'nomos basileus' - which should be the source of state order. The supremacy of the law provides the premise on which the introduction of every detailed solution which turns the idea of the law-governed state into specifics, is based. If the rule of law, rather than that of the authorities is to exist, this must be a law wherein each citizen may contribute to its shape; ideally it will be one established directly by the citizens rather than by the established authorities, democratic in an indirect way. This must be a law binding upon everyone equally, observed by everyone, operating effectively and surely. It must also be a law made for society's sake rather than for that of an idea, and it must be fitting to those realities, standards and common practices that exist in that society. It must also be a law not too rigorous and imposing neither excessive requirements nor strange measures.

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3 Civitas. Studia z filozofii polityki (Civitas. Studies on politics philosophy)

1 Kaczorowski P.

1 Stawrowski Z.

1 Wonicki R.

3 2007

Three models of a democratic state

The axiological basis of a constitution

A 'good' society and the law-governed state. Prolegomena to a constitution