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Session Overview
RS15_06: Democratic Deficit and Judicial Rower: The Context for Justice
Thursday, 22/Aug/2019:
2:00pm - 3:30pm

Session Chair: Jacek Maria Kurczewski, University of Warsaw
Session Chair: Emmanuel Lazega, Institut d'Etudes Politiques de Paris - Sciences Po
Location: UP.4.206
University of Manchester Building: University Place, Fourth Floor Oxford Road

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The Interaction Between The Legal System And The Other Areas Of Human Action

Giovanna Truda

University of Salerno, Italy

If the interaction between the justice system and the other areas of human action are thought as mutual action, we think of law in two ways: as a factor of social change or as an object of social change. The law is set as an independent or a dependent variable in respect to society. The choice between the two modalities is indicative of distinct theoretical orientations. Luhmann argues that the evolution of a system depends not only on the complexity of the environment, that is on external circumstances, but also on its complexity, that is, on its internal differentiation. In the climate of increasing social complexity, the law gradually renounces regular behaviour and provides only organizational and procedural rules, which allow the subsystems to self-regulate without the intervention of the legislator. It is necessary to face a different relationship between the legal system and society. Today, the end of certainties and with the existential precariousness that reduces the ability of institutions to order behaviour in predefined schemes and the institutions themselves are committed to redefining their role to adapt them to pressures outside the system. Is the "media" approach of the law a likely operational response to radical changes? The political transformations of governments in Europe recall a populism that seems rather than responds to the demands of the people: can this undermines fundamental rights? Is it a problem of communication between the systems? or is it just vote and electoral consent chasing?

Totalitarian Law as Legacy of the Past and Present-Day Authoritarian Tendencies in Post-Communist Countries.

Malgorzata Fuszara

University of Warsaw, Poland

Adam Podgórecki (1995) argued that the characteristics of totalitarian law include its subservience, the fundamental principle, the totalitarian principle (vs the constitution), bureaucratization, repression of the judiciary, the empty appearance of legalism, harsh penalties, disregard of the public opinion and “dark social engineering”. The law in Poland in 1945-1989 met nearly all of these criteria. I will contemplate whether it is justified – and if so, to what extend – to say that the law in today’s Poland and current “reforms” of law are pushing the legal system towards authoritarianism. This tendencies met the resistance of great part of the organised lawyers. I analyse the organised resistance on part of the judiciary and lawyers pointing to the significance of intra- and extra-national institutional safeguards against the authoritarian policies.

Constitutional Democracy in US

Barry Sullivan

Loyola University Chicago, United States of America

US constitutional scholars seldom write about constitutional conventions or norms. They tend to focus on “hard law,” without regard for the underlying social consensus that is essential to constitutional democracy. But our current constitutional crisis involves violations of norms, not hard law. For example, there is no provision in the Constitution that prescribes a specific process for the Senate to follow in exercising its advice and consent function when the President has made a Supreme Court nomination, but the convention has been for the Senate to conduct hearings and a vote. In the final year of the Obama Administration, a nomination died because the leader of the Senate Republican majority refused to follow that convention. Likewise, recent presidents of both parties have regularly bypassed Congress and issued “executive orders” to accomplish unilaterally what normally would be done through congressional legislation. Finally, the Supreme Court has reached out to decide issues on the slightest pretext and often contrary to the conventions that it normally invokes to temper its awesome power to strike down executive and legislative action that a majority of the Court deems to violate the Constitution.

Constitutional conventions are necessary to any constitutional system. But the enforcement of such conventions requires an underlying social consensus as to what those conventions are and why they are necessary. This paper will explore these recent breakdowns of constitutional conventions, suggest some explanations for why the breakdowns might have occurred, and explore how the conditions that gave rise to them might be altered.

Democratic Decay in a Seemingly Consolidated Democracy of CEE

Radosław Markowski

Uniwersytet SWPS, Poland

In Poland the decay in its democratic quality and rapid backsliding into authoritarianism came – quite unexpectedly – not from the allegedly politically unsophisticated and democratically unprepared ordinary citizen, but from part of the elites.

The main goal of the paper is to depict and explain this unexpected decline in democratic quality in Poland. I submit that the causes of the contemporary malfunctioning of -- what allegedly was supposed to be – a consolidated democracy in Poland derive not so much directly from the socialist blueprint and its seeming continuity among Polish Homo Sovieticus, but indirectly from the successful rejection of this blueprint in the form of "adaptive resourcefulness" be it in their activities in the shadow economy, be it in the underground cultural and academic accomplishments or in the ideological/religious participation in the parishes. All these (and more) had successfully contributed to the dismantling of the communism, yet it simultaneously has contributed to the creation of a number of traits of Poles as citizens that turned unconducive to democratic quality.

In addition, special attention will be devoted to the logic and mechanisms of the supply-side revolt developing in Poland, seeking to answer a general question is it a choice or a fate? The main additional question being: why why would political insiders, representatives and leadership of a well-established party benefiting for the last quarter of a century from access to state resources, democratic security, public sector jobs and relative prestige among part of the population decide to abandon a low-risk political democratic behaviour and embark on a very hazardous strategy of a – de facto – coup against the binding constitution?

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