'War of Courts' as a Clash of Legal Cultures: Rethinking the Conflict between the Polish Constitutional Tribunal and the Supreme Court Over 'Interpretive Judgments'
in: Law, Politics, and the Constitution: New Perspectives from Legal and Political Theory, ed. Michael Hein, Antonia Geisler, Siri Hummel [series: ‘Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook’, vol. 4] (Frankfurt am Main: Peter Lang, 2014): 79-94
14 Pages Posted: 24 Jan 2014 Last revised: 4 Feb 2015
Date Written: January 23, 2014
Since 1986, Poland has had its Constitutional Court (TK), placed outside the structure of ordinary judiciary. Since 1993, the TK has been issuing ‘interpretive judgments’ in which it decides that a certain statutory rule is constitutional only under a certain interpretation. On numerous occasions the Supreme Court (SN) has refused to follow the TK’s decisions, claiming that they are unconstitutional, ultra vires and non-binding. An analysis of the arguments put forward by the SN and TK in this ‘war of the courts’ reveals that the SN prefers ultra-formalist arguments typical of the hyperpositivist legal culture of the former state-socialist period, whilst the TK seems to prefer pragmatist arguments, more typical to contemporary Western legal culture. The paper concludes that behind the ‘war of the courts’ in Poland there is a clash of legal cultures and attempts at identifying the reasons for it.
Keywords: constitutional law, constitutional interpretation, legal culture, legal tradition, constitutional review, constitutional justice
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