Darmowy fragment publikacji:
Chapter 1. Apolitical Jurisprudence:
Crisis of an Idea and the Phenomenon…
of Populism1
Adam Sulikowski
1. An Outline of the Problem
Recent events in Poland and Hungary, but also in the United States, the
global hegemon under President Trump’s administration, have triggered great
public interest in the problem of the interface between law and politics (broadly
understood), especially in those spaces and dimensions that have not been
analyzed within the framework of mainstream media discourses.
Thus far, the problem of politicised law (of course, apart from in the
legislative process, wherein the logic of political struggle is inscribed) has rather
been tackled within the framework of niche discourses – usually professionalised
and specialised ones. This also applies to the politicisation of jurisprudence
or the legal sciences. Of course, from the perspective of the critical theory of
law, or, more broadly, critical study of the law (including poststructuralist
and neopragmatic reflection), the issue of the political dimension within
jurisprudence and even the political character of jurisprudence is obvious.
However, even within the professionalised discourses of law researchers, this
perspective has not been disseminated very extensively – to put it mildly.2
1 This article is an attempt to recapitulate the research undertaken as part of the research project
“The idea of the apolitical character of legal science towards the critique waged by modern philosophy
of knowledge,” National Science Centre (Poland) project No. 2016/21/B/HS5/00164.
2 Exceptions include: Rafał Mańko, “Nauki prawne wobec problemu polityczności: zagadnienia
wybrane z perspektywy jurysprudencji krytycznej,” Archiwum Filozofii Prawa i Filozofii Społecznej
2018, No. 3; Rafał Mańko, “Orzekanie w polu polityczności,” FPiED 2018, No. 7(1); Rafał Mańko,
W stronę krytycznej filozofii orzekania. Polityczność, etyka, legitymizacja (Łódź: Wydawnictwo
Uniwersytetu Łódzkiego, 2018).
1
Legal Scholarship and the Political: In Search of a New Paradigm
As I have pointed out elsewhere, Poland and other former countries of so-
called people’s democracy suffer from a widespread condition that I have termed
“affirmative amnesia.”3 The point here is that official Marxism, which used to be
the theoretical basis for the mainstream study of law, posited that “bourgeois”
Western jurisprudence was ignorant of its obvious politicisation, in contrast to
Marxist science, which was fully aware of its entanglements and considered the
cognizance of this fact to be its undeniable epistemological advantage. The views
of two recognised constitutionalists from the period of so-called “real socialism”
provide a prime example of this attitude when they state straightforwardly:
The legal science of Polish People’s Republic is a science that does not hide its class character;
that is, it openly admits that it serves the interests of a particular social class [...] Bourgeois science
[...] was and is also a class science – serving the interests of certain propertied classes. The only
difference is that bourgeois science hides its character under the guise of “apolitical character,
“objectivity,” “supra-classism.”4
After the fall of real socialism, such views were “forgotten” and Polish
jurisprudence became “part of Western jurisprudence,” adopting a rather
unreflective approach to its supposed neutrality. Populist political practice
changed this state of affairs.5 As is well-known, the Italian Marxist Antonio
Gramsci, an expert on populist strategy in modern conditions, recognised that
the political success of any revolution depends on delegitimizing the dominance
of the existing establishment and its products. Unlike traditional Marxism,
Gramsci acknowledged that it is possible to bring about political change solely
through influencing the superstructure.6 In his view, the key to change is to
undermine and break the confidence of the popular masses in the status quo
maintained by intellectuals and their products. As Gramsci wrote:
Thus, there are historically formed specialised categories for the exercise of the intellectual
function. They are formed in connection with all social groups, but especially in connection with
the more important, and they undergo more extensive and complex elaboration in connection
with the dominant social group. One of the most important characteristics of any group that is
3 Adam Sulikowski, “Afirmatywna amnezja i konserwatywni crits. Kilka uwag o kondycji
krytycznej myśli prawniczej w Europie Środkowej i Wschodniej,” Archiwum Filozofii Prawa i Filozofii
Społecznej 2014, No. 1.
4 Stanisław Gebethner and Krzysztof Gościniak, in Prawo państwowe PRL, ed. Janina Zakrzewska
(Łódź-Warszawa: PWN, 1964), 14.
5 For the purposes of this paper, populism is understood primarily as a political strategy based on
a symbolic juxtaposition of the imagined figure of the “people” with the figure of the establishment as
the enemy. In addition, populism assumes that the power of a populist leader or political movement is
identified with that of a mythical people. In my opinion, such an understanding is general enough not to
generate contradictions of meaning with the terminology used by the thinkers referred to in this work.
6 Antonio Gramsci, Pisma wybrane, Vol. 1 (Warszawa: Książka i Wiedza, 1961), 110.
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Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
developing towards dominance is its struggle to assimilate and to conquer “ideologically” the
traditional intellectuals, but this assimilation and conquest is made quicker and more efficacious
the more the group in question succeeds in simultaneously elaborating its own organic intellectuals
(...) [Their goal is:] to receive the “spontaneous” consent given by the great masses of the population
to the general direction imposed on social life by the dominant fundamental group; this consent is
“historically” caused by the prestige (and consequent confidence) which the dominant group enjoys
because of its position and function in the world of production.7
In this state of affairs, it is necessary to remove the spell of the intellectual
mainstream by showing, on the one hand, the mechanisms of its influence
on popular emotions and beliefs and, on the other hand, the specific political
genealogy of intellectuals as the creators of these beliefs. The chain of
argumentation is quite simple here: that which was previously regarded as
politically neutral is now viewed as the product of professionals strongly
involved in power relations – they co-create a balance of power, the ancien
régime which must be overthrown for the sake of a more just order.
It is populist politics, rather than subtle analyses of critical theorists from
Horkheimer and Adorno to contemporary legal critics, that draw attention to
the political nature of jurisprudence, reveal it as problematic, and determine
the crisis of the idea of political neutrality. Jan-Werner Müller, the author of
the famous monograph on populism, indicates at the beginning of the chapter
devoted to “What Populists Say” that the central theme for populist “talk” is to
emphasise the asymmetry of the establishment’s relationship with the people and
demand that this state of affairs be changed in the name of democratic morality.8
Populism’s march through institutions, according to Müller, goes under the
slogans of rejecting the limits of democratic control by exposing the legitimacy
deficit of institutional spheres under the control of allegedly politically neutral
professional groups.9 According to Chantal Mouffe, an extremely important
thinker for the theory of populism, the distinguishing feature of populism is
the desire to reveal and disseminate knowledge of “violence being unrecognised
and hidden behind appeals to ‘rationality,’ as is often the case in liberal thinking
which disguises the necessary frontiers and forms of exclusion behind pretences
of ‘neutrality.’.”10 As part of populist policy, identity is created through the use/
7 Antonio Gramsci, “Intelektualiści i organizowanie kultury,” available at http://marksizm.edu.
pl/wydawnictwa/klasyka-mysli-marksistowskiej/antonio-gramsci/intelektualisci-i-organizowanie-
kultury/ (accessed on 25 November 2019).
8 Jan-Werner Müller, What is Populism? (Philadelphia: University of Pennsylvania Press, 2016),
2–3.
9 Müller, What is Populism?, 72.
10 Chantal Mouffe, “Demokracja, władza i ‘to co polityczne’,” in Paradoks demokracji, Chantal
Mouffe (Wrocław: Wydawnictwo DSW, 2005), 42.
3
Legal Scholarship and the Political: In Search of a New Paradigm
creation of difference (these connected processes are indistinguishable), i.e.
antagonistic difference, and forging it into an axiological conflict along the
lines of the dominant/dominated.11 In other words, the idea is to construct the
identity of a “people expropriated from democratic decision making” mainly by
revealing (and social engineering at the same time) the differences between the
“people’s approach” to what the establishment created, and to what it served to
them as apolitical and neutral.
Here, I treat the explosion of populism as a social fact, as something too
convincingly described to be doubted. What is more, this explosion is a kind
of unwanted “effect” of critical theories which are mostly of a leftist nature –
ones aimed at emancipation and expanding the sphere of human freedom. One
must agree with Müller that the liberationist-pluralistic expression of populist
postulates most often leads to the strengthening of exclusionary and repressive
practices. It is possible to put forward the thesis, without courting too much
controversy, that the potential triumph of contemporary populism is the
greatest threat to the idea of politically neutral jurisprudence since the interwar
period.12 However, in order to shed some light on the specific relationship
between populist assumptions and legal ideology, some genealogical remarks
are necessary.
2. The Genealogy and Evolution of the Idea
of Politically Neutral Jurisprudence
The idea of politically neutral jurisprudence (generally understood as
professional, scientific discourses on law) is, in my opinion, as much liberal as it
is post-theological. It clearly derives from the conviction that law is a component
of logos, the divine scheme of the construction of the World and its Order –
a conviction which was subsequently subjected to secularisation. Following
the earlier, religious-dominated episteme, the Enlightenment perpetuated the
assumption that wisdom is rooted in systemic thinking, in a kind of fidelity to
the existing logocentric heritage of Western culture, although without the central
figure of God as the source of the meaning of the World. When viewed from the
outside, the belief – which was widespread almost until the onset of modernity
– that the Western reason-logos provides reliable criteria for the judgment of
11 Chantal Mouffe, The Return of the Political (London-New York: Verso, 1993), 141.
12 Interwar authoritarianisms, such as Italian fascism, German Nazism, Francoist Spain, Salazar’s
“Estado novo” doctrine and practice, and in some respects also other doctrinal-political systems
correspond to the meaning of populism as adopted here.
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Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
various ideas and conceptual systems, including those emanating from other
cultures and periods, seems to be obviously religious in nature.13 As the sages of
critical theory, Max Horkheimer and Theodor W. Adorno, convincingly argue
in their Dialectic of Enlightenment, although in a somewhat vague way, that the
contradiction in the way of thinking developed in the Age of Enlightenment
consists mainly in the fact that the belief in the possibility of knowing all beings
through science is accompanied by the suppressed conviction of more reflective
thinkers that what science provides is not a knowledge of being, but rather para-
religious belief.14
In jurisprudence, the above contradiction revealed itself early on, in the
codification programs of the Enlightenment. Among the thinkers of the era, the
prevailing view was that there was a need to objectify the law. The point was not
to just provide a simple description of legal practice. When applied in practice,
the law, being a mixture of customary norms, the decrees of rulers, Roman
traditions and the established habits of judges, was perceived by Enlightenment
critics as being contrary to the requirements of natural reason. Therefore,
it was postulated that the law should be transformed into an “instrument for
improving morals” in the spirit of universal norms and values.15 In this process,
a certain paradox became apparent. On the one hand, legal science was to be
based on the study and description of the objective and rational order associated
with the concept of natural law, largely inherited, obviously, from bygone times.
On the other hand, codification efforts proved that order cannot be based on
the objective “being” of natural law, because in the course of investigations
this turns out to be at most a heterogeneous set of beliefs, strongly entangled
in the place and time in which they arose. Consequently, the existing “natural
law,” rather than being a tool for potential change, turned out to be dangerously
conservative. As Katarzyna Sójka-Zielińska wrote, natural law “changed from
a weapon of progress into an instrument opening the gate through which
former practitioners could return.”16 That is why positive law was “established”
– a law consciously created by man who, speaking in Kantian terms, had
reached maturity. However, this did not entail an anti-theological upheaval. The
cult of positive law was also based on a religious approach to writing. As Leszek
Nowak noted: “apart from theology, there seems to be only one area of thought
13 Cf. Tomasz Zarębski, Od paradygmatu do kosmopolis (Wrocław: Atut, 2005), 81.
14 Theodor W. Adorno and Max Horkheimer, Dialektyka Oświecenia (Warszawa: IFiS PAN,
15 Witold Wołodkiewicz, Prawoznawstwo w poglądach i ujęciu encyklopedystów (Warszawa: PWN,
1994), 39.
1990), 31–33.
16 Katarzyna Sójka-Zielińska, “Wykładnia w programach kodyfikacyjnych epoki Oświecenia,” in
Teoria i praktyka wykładni prawa, ed. Piotr Winczorek (Warszawa: Liber, 2005), 85.
5
Legal Scholarship and the Political: In Search of a New Paradigm
that defines itself with the term ‘dogmatics,’ and not without certain – justified –
pride. This is legal dogmatics, and thus the science of various areas of law: civil,
criminal, administrative, constitutional – to mention just the basic ones.”17 The
philosophical foundations of positivism clearly have a theological genealogy:
from the thetic conception of binding norms, through the rules of textual
exegesis, to the particular vision of a rational legislator, who, according to Ernst
Kantorowicz – a theorist important for both theology and the theory of law,
has two “bodies”: one living and concrete, the other eternal and ideal. 18 Hans
Kelsen, whose thinking about the law dominated the continental jurisprudence
of late modernity, wrote:
The state also is essentially conceived as a person, and as such is merely the personification
of an order: the legal order. The concept of the legal order enables us to apprehend as a unity
the multitude of legal relations between individuals. But the abstract unity of the legal order is
rendered palpable in the idea of a person, whose will signifies the content of this legal order, just as
the will of God finds expression in the world order – whether as a moral order or an order of causal
law. If law is the will of the state, then the state is the person, which is to say, the personification,
of law. 19
But how does the problem of political neutrality figure in this context?
Without a doubt, it also has a theological character – political neutrality is
an element of fidelity to the law, a drive to bring about the triumph of logos.
Political neutrality manifests itself in interpretive passivity and obedience. The
belief in the salvific action of instances derives from the Catholic tradition; the
subject situated higher in the legal-theological hierarchy has broader powers
because the hierarchy ensures order and protects against heresy. In turn, the
Reformation tradition, and to some extent also the Counter-Reformation,
postulates fidelity to the text for exactly the same purpose – the loss of faith will
lead to a destruction of order, and chaos is a satanic invention. Politics is the
domain of the will; it is therefore possible wherever the will is possible.
In Catholic theology, the concept of free will has to be one of the most
perverse. Man is endowed with will, with the proviso that only by adhering to
the rules of the divine plan can free will be preserved because succumbing to
whims leads, in fact, to enslavement and the mere semblance of will. According
to the classic representative of Catholic thought, Augustine of Hippo: “our
17 Leszek Nowak, “Metodologiczne kryterium demarkacji i problem statusu teologii,” Nauka
18 Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton:
Princeton University Press, 1998), passim.
19 Hans Kelsen, “Bóg i państwo,” Archiwum historii filozofii i myśli społecznej 2014, No. 59: 361.
2014, No. 3: 126.
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Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
freedom is submission to the supreme truth of reason and wisdom.”20 Thus, it
follows that free will is, from an external point of view, just a limited will. Only
the God-legislator is possessed of unlimited will.
In other words, free and legitimate implementation of the will is permissible
at the stage of creating rules. However, it is not advisable at the stage of their
application or observance because there “true freedom is ensured by submission.”
Consequently, on the basis of post-theological positivism, volitional politics is
possible only where the law is created as writing. There the freedom of the will
is limited by a higher reason and sense. Hence, this explains the dual nature of
the constitution (as both a statute and part of the positive order, and as a reason
that goes beyond the legal order endowed with essentially unlimited content) –
an issue I addressed elsewhere.21 At the stage of interpreting the law, as action
in accordance with the will, politics is subject to restrictions: it can be dictated
only by necessity, or reserved for those whose bodies, if we use a Foucauldian
metaphor, are properly trained by the institutional system, which minimises
the risk of chaos. As Jerzy Leszczyński notes in his work bearing the significant
title The Positivization of Law in Dogmatic Discourse, the paradox of positivism
lies in the fact that it assumes the a priori nature of law, while simultaneously
creating this a priori in discourse through the cult of rules and the acceptance
of a certain dose of will, although to a very limited extent.22 Legal positivism
accepted the idea of political neutrality as fidelity to the rules and the text itself.
This is in line with the broader tendencies of modern science, which developed
the post-theological ethos of a faithful “reading” of reality based on the right
method. Of course, this priestly belief was still accompanied in some form by
a “heretical” thought based on the conviction that the status quo was far from
the theological ideal. However, the tangible impact of such unorthodox thinking
on the mainstream was limited.
3. The First Wave of the Crisis
The historical moment when heresy can be seen to be spreading is during the
twilight of the legal-political belle époque, the intellectual symbol of which is the
famous dispute between Hans Kelsen, a strong supporter of the post-theological
20 Św. Augustyn, “O wolnej woli,” in Dialogi filozoficzne, vol. III (Warszawa: PAX, 1953), 148.
21 Adam Sulikowski, Konstytucjonalizm a nowoczesność: Dyskurs konstytucyjny wobec tryumfu
i kryzysu moderny (Wrocław: Wydawnictwo Uniwersytetu Wrocławskiego, 2012), chapter 2.
22 Jerzy Leszczyński, Pozytywizacja prawa w dyskursie dogmatycznym (Kraków: Universitas,
2010), 97.
7
Legal Scholarship and the Political: In Search of a New Paradigm
approach to the political neutrality of law, and Carl Schmitt. The latter, it should
be emphasised, did not belong to the relativistic tradition at all, and although
he represented a counter-Enlightenment position, his position was not anti-
theological. Schmitt perceived that the relative success of Kelsen’s theory, which
was based on the idea of the divine sovereignty of law, had been constructed
upon a fairly significant understatement, or rather a paradox. The cult of law
is based on the conviction that it has a specific content, at least with regard to
the basic assumptions – concerning who rules in the state, the imponderable
elements of state power, and the fundamental axiology.
At the same time, the real perspective of party politics and the arguments
deployed therein prove that the individual participants involved in the power
game understand the “dogmas of legal religion” in their own way.23 In other
words, everyone seems to consent to the notion of divine rule, but they perceive
God in such varied ways that shared faith is actually a fiction. As Michał
Paździora and Michał Stambulski noted, referring to Lacanian concepts, the
law became empty of meaning: “every political discourse could understand
something different under a given concept and at the same time claim that it is
the only just and politically neutral understanding.”24
For Schmitt, such an assertion required a certain reset in the approach to
law. Maintaining the fiction of non-political law, whose content is blurred in
party struggle, is as senseless from a theoretical point of view as it is dangerous
from the point of view of state pragmatics. For Schmitt, politics is based on the
friend-enemy opposition. Politics is a struggle against the enemy, and since law
is used in this struggle, it implies that the law is involved in politics. The point
is that the political nature of law is, firstly, hidden and, secondly, entangled in
party interests, whose games weaken the state and divide society along artificial
lines. According to the prevailing interpretation of Schmitt’s theories, the
situation in which politics dominate over law is somehow a natural state. The
rule of law is a fiction. The content of law should therefore be explicitly political,
as should be its application, interpretation, etc. Schmitt advocates the takeover
of power by a real sovereign, one who is able to give political sense to the law
by subordinating it to the requirements of a “state of emergency” and defining
the enemy. Thus, law will facilitate the creation of a uniform society of friends
who are ready to fight a real enemy – also by means of law. In this way, the law
23 Carl Schmitt, Teologia polityczna i inne pisma, translated by Marek Cichocki (Warszawa:
Aletheia, 2012), 45ff.
24 Michał Paździora and Michał Stambulski, “Co może dać nauce prawa polityczność. Przyczynek
do przyszłych badań,” Archiwum Filozofii Prawa i Filozofii Społecznej 2014, No. 1: 56.
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Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
will become real, gain political content, and cease to be an empty and seemingly
politically neutral totem.
Another interpretation of Schmitt is offered by Jerzy Zajadło:
[…] the point for Schmitt is not a permanent state of emergency, but about a moment of
beginning, a starting point, a decision that creates a new political-legal order from ground zero,
out of “nothing.” This symbolic “nothing” only means the complete primordiality of the initial
legitimacy, but it does not entail its total arbitrariness [...]. After the “exceptional state” of the original
decision, the original resolution, comes, however, “normality,” which is the natural environment
of law as the main component of a specific order and policy conceived in terms of acting for the
common good. 25
However, it cannot be denied that, in the text entitled Der Führer schützt
das Recht [The Leader Protects the Law], Schmitt clearly identified with and
supported the Nazi vision of society in which loyalty to the leader in every aspect
(including the approach to the law and its interpretation) was a key element in
building the political community.
The way of thinking described above clearly fits the previously mentioned
conception of populism outlined by Müller – the existing “amorphous” political
nature of the law, masked by the narrative of its alleged rule, must give way
to a real “embodiment.” The theory and practice of Nazi jurisprudence and,
interestingly, Soviet jurisprudence—in which the ideas of Yevgeny Pashukanis,
firmly rooted in traditional Marxism, were replaced more or less consciously by
Andrey Vyshinsky’s Schmittian visions26 (i.e. the key role of central command,
loyalty to the power center in every aspect, the fight against the external and
internal enemy as the basic tasks of the Soviet state, the state of permanent
revolution as the equivalent of a state of emergency)— permit the formulation
of the thesis that, in a totalitarian system, the specific “political neutrality” of
jurisprudence, understood as the invincible reality of law, the extreme limitation
of doctrinal discretion, axiological cohesion, and the ability to fill gaps in
accordance with the logic and grammar of the system, was achieved through
extreme politicisation, understood as systemic loyalty to the central political
power and the strategy it implements.
Similar tendencies, although of course in varying degrees, were apparent
in many regimes, which, using Müller’s conception, can be considered
populist and authoritarian. As A. Kozak once remarked, totalitarianisms and
authoritarianisms constituted “spasmodic attempts to regain certainty and
25 Jerzy Zajadło, “Prawoznawstwo – polityczność nauki czy nauka polityczności?,” Przegląd Prawa
i Administracji 2017, No. 110: 45.
26 Adam Lityński, Prawo Rosji i ZSRR 1917–1991, czyli historia wszechzwiązkowego komunistycznego
prawa (bolszewików): Krótki kurs (Warszawa: C.H.Beck, 2010), 9ff.
9
Legal Scholarship and the Political: In Search of a New Paradigm
legitimacy in accordance with the rules of the game established before the
Enlightenment.” The character of Judge Roland Freisler, the President of the
People’s Court extremely loyal to the National Socialist ideology, and especially
his behaviour during the July Plot show-trials, i.e. proceedings against the
perpetrators of the unsuccessful plot to stage a coup after assassinating Hitler
in the Wolf’s Lair, may provide a representative picture of totalitarian – or
more broadly authoritarian – thinking about law and jurisprudence. Indeed,
any “autonomous” legal institutions, such as the right of defence or instances,
were treated as relics of the old politics, which were hostile to the overtly
political needs of the current authorities; the doctrine was expected to respond
decisively, to declare unwavering loyalty to the leader, contrary to the habits
and traditions of legal thinking. In other words, in view of the theoretical and
practical impossibility of achieving non-political jurisprudence, the solution is
to bring about an open and full politicisation of jurisprudence.
In a book published in 1936, written in collaboration with Franz Gürtner,
a criminal lawyer and Reich justice minister, bearing the significant title Das
neue Strafrecht: Grundsätzliche Gedanken zum Geleit (New criminal law,
Reflections on the Directions of [changes]), Freisler wrote: “Our future criminal
law, which is people’s criminal law, will have to be based on National Socialist
ideology because the people and the National Socialist movement are one.”27
According to these Nazi criminal lawyers, the goals of criminal law, are:
[…] firstly securing and strengthening the unity of the blood of the German people and its
life force, its essence and its manifestations; secondly, the fulfillment of the demand for retaliation,
which inevitably results from the German concept of life and the moral need for self-purification
of the people, as well as the recognition of the fact that loyalty to the people is honor, and honor
is the very heart of human personality; thirdly, strengthening the readiness of citisens to cooperate
in the reconstruction of the people, giving each member of the people the certainty that the state
is fighting, with justice and firmness at the very head of the nation, to protect the entire nation
and fulfill its moral demands of revenge. In this way, the inclusion of German legal ideology
in the necessity of German life will be accomplished. Criminal law must reject the idea of neutral
supranational and eternal law and adopt the principle: “Law is what benefits Germany.” 28
The chain of argument here is simple: daydreaming about a neutral
approach to the law must be abandoned. The law must be ideologised because
this is required by the objective need of the National Socialist movement and,
consequently, the need of the German people (because the movement and the
people are identical). It should be noted that, according to the logic of Freisler’s
27 Franz Gürtner and Roland Freisler, Das neue Strafrecht: Grundsätzliche Gedanken zum Geleit
(Berlin: von Decker Verlag, 1936), 36.
28 Gürtner and Freisler, Das neue, 40.
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Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
reasoning, maintaining the fiction of ideologically neutral law and, as can be
deduced, politically neutral jurisprudence, would lead to the incompatibility
of law with the vital and objective moral needs of the German people. Such
neutrality would not be justified: neither pragmatically, nor—above all—
axiologically. Expressing this thought in terms of post-theological narrative,
it can be said that the political nature of the law is inevitable, but this does
not mean a departure from “freedom as submission.” In this context, politics
becomes non-volitional: instead of promising freedom of action, there is
a commitment to goals and principles becoming extensively bound together.
However paradoxical it may sound, politics in the context of National Socialist
law is essentially non-political because its ideological foundations cannot be
rejected – it cannot be an object of political change.
As I have already mentioned, in Soviet totalitarianism, especially the
Stalinist version, after Stalin’s rejection of so-called legal nihilism,29 there are
many analogies to National Socialist thinking about law. Under Stalinism,
jurisprudence and the process of applying the law had to be subordinated
to ideology because, on the one hand, ideology had the status of undisputed
truth and, on the other hand, because the existence of the state and the Soviet
nation were under threat. The politicisation of law is therefore determined by
necessity and does not entail (at least in theory) the introduction of an element
of arbitrariness, i.e. a departure from post-theological “freedom as submission,”
but rather restores it to the status of true law – real and founded on truth, devoid
of the artificial formalism of law as defined by a certain vision of rationality.
It is no accident that the Stalinist theory of law was described as “socialist
normativism.”30
29 The views of Mikhail Kozlovski are representative for the so-called legal nihilism. He wrote: “In
this era, the law is not a code, an unwritten set of laws; armed people are fighting their class opponents,
without any laws, without any special rules” ... Communist existence knows no law, … such concepts
as crime and punishment will cease to exist,” quoted from Adam Lityński, “Prawo bolszewików.
Rewolucja i ewolucja,” Zeszyty Prawnicze UKSW 2011, No. 4: 16.
30 Adam Bosiacki, “Między nihilizmem prawnym a socjalistycznym normatywizmem. Z rozważań
nad koncepcją prawa państwa stalinowskiego,” in O prawie i jego dziejach księgi dwie. Studia ofiarowane
profesorowi Adamowi Lityńskiemu w czterdziestopięciolecie pracy naukowej i siedemdziesięciolecie
urodzin, tom II, ed. Józef Ciągwa et al. (Białystok-Katowice: Wydawnictwo Uniwersytetu w Białymstoku,
2010), 118; Olufemi Taiwo, Legal Naturalism: A Marxist Theory of Law (New York-London: Cornell
University Press, 1996), 80.
11
Legal Scholarship and the Political: In Search of a New Paradigm
4. Demoliberal Hegemony and the Contemporary
Crisis
The collapse of the totalitarian and authoritarian regimes in Europe took
different courses. The end of the Nazi regime came as a result of the defeat in
the Second World War and the form of the state was imposed by the victorious
powers. The Soviet regime went into decline mainly, it seems, due to the
deepening economic failure, while the Iberian authoritarianisms decayed quite
rapidly after the death of dictators. In the countries liberated from German
domination, which found themselves within the West during the Cold War,
there was a gradual reconstruction of law and jurisprudence in the spirit of
demoliberalism. One of its basic assumptions was the thesis on the political
neutrality of expert reflection, based on rational criteria.
Under the influence of American hegemony, a legal system was created that
was generally based on the assumptions of continental positivism, but with
legal expert bodies occupying key positions, that is the courts of high instance,
in particular constitutional courts. Courts of high instance were able to make
far-reaching adjustments to positive law in a liberal spirit, often ignoring
statutory and even constitutional provisions in the process of building a specific
“non-political” understanding of law in the form of the so-called acquis
constitutionnel.31 The role of jurisprudence (and above all of juristic dogmatics
that are, in pragmatic terms, undoubtedly the key discourse in the system) in
the implementation of the positivist post-theological idea of political neutrality
involved making validating, interpretative and systematising conclusions
that were affirmative with regard to—or at least non-critical of—the liberal
jurisprudential strategies of legal expert bodies.
Of course, how dogmatic discourses functioned varied in practice, but, as
Alexander Peczenik argued, their ideological assumptions can be considered
as consistent throughout the continental West, which was gradually joined
by subsequent states as totalitarian and authoritarian rule ceased to exist. 32
Interestingly, these assumptions also proved quite resistant to the influence
of critique in the fields of linguistics and general philosophy, which in fact
constituted a considerable threat to the theoretical foundations of legal
dogmatics. As Artur Kozak observed, the foundations of dogmatics were
threatened by
31 I wrote about this in more detail in the already mentioned work Adam Sulikowski,
Konstytucjonalizm a nowoczesność, Chapter 3, passim.
32 Aleksander Peczenik, Scientia Iuris. Legal Doctrine as Knowledge of Law and as a Source of Law
(Dodrecht: Springer, 2005), 2ff.
12
Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
the collapse of the phenomenological conception of language, which assumed at the least the
possibility of a strict correspondence between language and thought. An alternative conception
was created by hermeneutic and structuralist concepts. Both are based on the assumption of the
inadequacy of thought and language, (...) Both also seek alternative categories to language as it is
traditionally understood, reaching primarily for conversation and discourse, and are caught up in
the crisis of referentiality.33
The assumption of referentiality is the foundation for the legitimacy of
dogmatic activity. It grounds the official relationship of correspondence between
the products of the legislator and those of the dogmatics. Though this is seldom
realised by dogmatists, this relationship legitimises their efforts and at the
same time is a necessary condition for being able to view dogmatic intellectual
operations as politically neutral. In general, Western dogmatics ignored the
crisis of phenomenological epistemology. Dogmatic tendencies are, to some
extent, consistent with the more or less conscious strategy of survival adopted
by other sciences. As Jürgen Habermas observed, after the disintegration of the
philosophical foundations underpinning the idea of “one, coherent knowledge,”
fleeting and co-existing syntheses of specialised information have taken the
place of general interpretations. In this way, scientism saves face: it manages to
maintain not only the internal authority of science at a respectable level, but
also preserves “everyday positivist consciousness.”34 In any case, relativistic
tendencies in epistemology35 did not undermine the position from which the
representatives of dogmatics perceived themselves.
A real crisis only arrived with that of demoliberalism. Mouffe and Laclau
attempted to elucidate the sense of this crisis and their diagnoses have recently
returned to favour. It should be borne in mind that in the mid-1980s Mouffe
and Laclau had already predicted that liberal democracy would be seriously
weakened and had foreseen the return of populism and emotional politics,
arguing that the contradictions between the liberal and democratic elements in
33 Artur Kozak, “Dylematy prawniczej dyskrecjonalności. Między ideologią polityki a teorią
prawa,” in Dyskrecjonalność w prawie, eds. Wiesław Staśkiewicz and Tomasz Stawecki (Warszawa:
LexisNexis, 2010).
34 Jürgen Habermas, “Na czym polega dziś kryzys?,” in Teoria i praktyka, Jürgen Habermas
(Warszawa: PWN, 1983), 471.
35 If we draw the consequences from the assertions of modern science studies, then the conclusion
can be quite radical. It can be expressed in the words of an Italian philosopher: “there is no non-
ideological zone of reality that would qualify as a zone of realism; it is not a zone designated and
protected by an epistemological attitude established through science based on perceptive judgments
– what is more, it is one of the most typical philosophical ideologies that still circulate in contemporary
culture. [...] There is no science that would give us definitive guarantees, there is only the positivistic
myth of such a science; moreover, talking about science in the singular actually makes no sense.”
Ferrucio Rossi-Landi, “Semiotyka a ideologia,” in Współczesna filozofia włoska, ed. Andrzej Nowicki
(Warszawa: PWN, 1977), 161
13
Legal Scholarship and the Political: In Search of a New Paradigm
the dominant paradigm of governance would necessarily lead to this.36 In the
opinion of Mouffe and Laclau, the basic contradiction of liberal democracy lies
in the fact that the liberal and democratic elements have completely different
logics and intellectual foundations. The fact that they entered into partnership
is the result of coincidental factors and the effects of this partnership are rather
short-lived.
The liberal element – a certain vision of freedom and rights, usually
associated with the elites – tends to dominate the democratic element. The liberal
element is based on the belief that basing the social order on some imaginary
consensus, the content of which is acceptable to all rational participants of social
interaction, is a possibility and a necessity. The legal surrogate of this consensus
was to be a jurisprudential-doctrinal complex established by experts, which
is subject to petrification and neutralisation in the mainstream media and
journalistic discourses. This surrogate is placed in the position of an indisputable
order sanctioned by reason, which clearly limits the space for the democratic
component of demoliberalism. The liberal component tends to systematise
order and becomes the key to understanding laws and even the constitution.
However, the content of the constitutional text is to some extent irrelevant. The
text must give way to an imagined consensus in situations of conflict, that is
when it cannot be “bent” through interpretation. The “liberal order” attains its
hegemony, which, as Laclau notes, constantly places certain content into words
that are “empty” of meaning (empty signifiers), such as “freedom,” “equality”
or “justice,” which, as long as democracy functions, “surrender to power,” i.e.,
can be filled with content imposed by a dominant political power for a limited
period of time only (to the moment of alternance politique). 37
The hegemonic filling of empty signifiers with meaning, and the
juridification of the “liberal consensus” mean that all parties and institutionalised
political forces must respect the status quo if they want to be taken seriously
as law-abiding organisations; to avoid populism, political rationalists must
respect the status quo. Consequently, they become similar to each other:
professionalise and blend ideologically into a relatively homogeneous expert-
professional complex. Real political conflict seems to have been eliminated.
Politics, along with the individual and group competition for positions and
influence, of course, persists, while the political is repressed, as an emotional
and overt ideological attitude to the status quo. However, if you believe the
36 Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical
Democratic Politics (London: Verso, 1985), passim.
37 Ernesto Laclau, “Dlaczego puste znaczące mają znaczenie dla polityki?,” in Emancypacje, eds.
Leszek Koczanowicz et al. (Wrocław: DSW, 2004), passim.
14
Chapter 1. Apolitical Jurisprudence: Crisis of an Idea and the Phenomenon…
general diagnoses of Mouffe and Laclau, what is democratic, or rather what
belongs to the political and difference, cannot be subdued. The political, as
a primary antagonistic force, leads certain groups to create an enemy and over
time creates identities uninterested in consensus, which formulate a claim for
validity (this thesis distinguishes the diagnoses of Mouffe/Laclau from those of
Schmitt – for the latter identities are a priori to conflict, while Mouffe/Laclau
argue that they are created by populists). This is usually accompanied by a sense
of disappointment and a lack of real democracy – the elite consensus ceases
to appear to certain social groups as something pure, non-ideological, and
objective; it begins to be perceived as dominated by enemies, or at best tolerant
of those enemies. According to Mouffe, such a mechanism is a safety valve for
democracy, one that threatens the liberal hegemony. The emergence of anti-
systemic movements in this context is therefore a phenomenon inscribed in the
logic of the contradictions in the bosom of demoliberalism.38
The return of populism, as I have already mentioned, poses a real threat to the
idea of politically neutral jurisprudence. Whereas hitherto the existing balance
of power had been treated as the only correct one, populism forces the view that
this balance is political in nature into mainstream politics. Jurisprudence comes
under attack and finds itself in a similar situation to Kelsen’s normativism under
Schmitt’s fire. Of course, from an external point of view (and this is effectively
imposed in the discourse), it is difficult to argue that the dogmatic status quo
was ever something other than an affirmation of the current hegemony.39 The
impression of political neutrality is reduced to a subjective conviction. The
dogmatist professing this view is perceived either as too naive or not reflective
enough to embrace reality, or as a perfidious officer of the ancien régime who
allegedly instrumentally uses neutral fidelity to the rules in order to defend the
past. The inclusion of jurisprudence in the logic of friends and enemies, and
supported by an accompanying social engineering, is in practice much more
dangerous for assumptions about political neutrality than the epistemological
crisis (of post-structuralism and neopragmatic relativism) mentioned above.
Changes in the philosophical environment can, as Habermas argued, be quite
effectively ignored by preserving positivist consciousness. However, political
changes cannot be ignored.
If Müller is to be believed, an effective method of fighting populism may be
to highlight its flaws and inconsistencies in specific political projects. However,
this strategy must be implemented with the help of tactical actions effective
38 Cosmin Cercel, “The Destruction of Legal Reason: Lessons from the Past,” Acta Universitatis
Lodziensis. Folia Iuridica 2019, Vol. 89: 25–27.
39 Cfr. Mańko, “Nauki prawne,” 46–49.
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