Ujarzmianie Lewiatana : szkice o idei rządów prawa

Abstract

An idea of a law-abiding state (rule of law, Rechtsstaat) is one of the most important achievements of the Western legal culture. However, maintaining its vitality demands a constant reflection on its nature, values that are to be achieved through it, as well as ways of achieving them under changeable conditions. The rule of law is to serve above all preventing danger that the power of the state organization creates for a citizen. In order to provide internal and external safety for citizens in an efficient way the state has to be properly organized and equipped. This, however, makes it an incomparably bigger danger for them than everything it would protect them from. How to avoid this danger was looked for in two main ways. One is to organize the state in such a way that the power is exercised by the best, most noble and best prepared citizens while the other involves such an hindering of it with higher rules of law to make even the worse rulers unable to make the state a tool realizing their caprices and arbitrary whims. Paradoxically, both philosophical-legal recipes were formulated for the first time by the same person, namely Plato. In The state he presented a model of an ideal state where the full power is exercised by the best citizens, their personal qualities of the spirit constitute the guarantee of a successful fate of the whole community. However, in his later work, Laws, he outlined a more realistic conception of the “other” state where the successfulness of the state is guaranteed by ascribing the role of just servants of certain higher laws they should obey to the rulers. The idea of submitting the rulers to the norms of the law, thanks to which a danger of exercising a despotic , arbitrary and harmful power for the citizens has taken on the form of a doctrine of lawfulness nowadays. It required linking many elements appearing throughout the history of the Western legal culture such as a written nature of the law, court independence, the guarantee of the inviolability of law of some spheres of freedom, power division, social agreement, constitutionalism or human rights. A special role was played here by the British system tradition as well as still little-appreciated system experience of the First Republic of Poland. It goes without saying that the shape of a contemporary image of a doctrine of the rule of law was also paved by the French and American revolution while its final shape was influenced by the German legal discussion of the 19th century and experiences of totalitarianism as well as unsuccessful system experiments of the 20th century. The two main trends of thinking on the idea of the rule of law that have coexisted in shaping its contemporary understanding since the very beginning are defined as a formal and material understanding of lawfulness. Both perspectives, though, come across many theoretical and practical problems and difficulties. What overlaps with them is a fundamental dispute on a positivist or anti-positivist orientation on understanding what the law that is to be biding in the state is. The idea of hindering all bodies of power with higher rules of law inevitably changes into the danger of being transformed into judges’ power. A real shape of the practices of the rule of law is tightly connected with the economic, social and political characteristic of given societies. A lot of it points to the fact that formal and institutional solutions constituting a legal understanding of the law-abiding state require at least a sufficient level of openness to the access to the resources by citizens freely competing for it. The same institutions and legal solutions in societies where the very access is limited by dominating narrow oligarchic groups efficiently controlling the key social resources and enabling others to use them on the basis of informal clientele relations transform into a caricature of the rule of law. Thus, a narrower legal reflection on the idea of lawfulness requires a tight connection with reflection in terms of sociology, political sciences and economy.