DC pole | Wartość | Język |
dc.contributor.author | Pietrzykowski, Tomasz | - |
dc.date.accessioned | 2018-06-20T07:18:37Z | - |
dc.date.available | 2018-06-20T07:18:37Z | - |
dc.date.issued | 2014 | - |
dc.identifier.isbn | 9788322622919 | - |
dc.identifier.isbn | 9788322623961 | - |
dc.identifier.uri | http://hdl.handle.net/20.500.12128/4771 | - |
dc.description.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. | pl_PL |
dc.language.iso | pl | pl_PL |
dc.publisher | Wydawnictwo Uniwersytetu Śląskiego | pl_PL |
dc.rights | Uznanie autorstwa-Użycie niekomercyjne-Bez utworów zależnych 3.0 Polska | * |
dc.rights.uri | http://creativecommons.org/licenses/by-nc-nd/3.0/pl/ | * |
dc.subject | państwo i prawo | pl_PL |
dc.subject | prymat prawa | pl_PL |
dc.title | Ujarzmianie Lewiatana : szkice o idei rządów prawa | pl_PL |
dc.type | info:eu-repo/semantics/book | pl_PL |
Pojawia się w kolekcji: | Książki/rozdziały (WPiA)
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