For decades, in mainstream propaganda, mantras have been heard that the Constitution constitutes almost an inviolable holiness, that the law is consistent with the Constitution, due to the fact that it is guarded by the Constitutional Court, that the courts are so and should be apolitical.
This mantra is repeated by all subsequent ruling team, showing that courts are an organic part of the political system, a tool of political regulation and the implementation of its interests. alternatively of criticizing a peculiar policy and proposing a fresh 1 in something better, from the position of a frightened state politics is considered a kind of possession.
Form
Many modern politicians, promoting the thesis on the apoliticalness of law and courts, even effort to put the law above ideology and politics, and to settle ideological and political disputes before universal courts. They want to separate the law and courts not from their ideology and politics, but from the ideology of their opponent and enemy.
Meanwhile, the state appears and exists as defined form the improvement of antagonistic socio-economic and political relations, not their origin and pre-cause. Therefore, the law is not a origin of policy. The law so originates from the State, the State and the law make simultaneously, together with the institutions and standards which find the explanation and application of that law. Without law and courts, a modern state cannot exist. A constitution in a material sense is simply a real strategy of forces that makes the law such, not other, and others cannot be. And the constitution in a formal sense is only a paper that usually counts respective twelve pages, a collection of articles that are the subject of tenders, different interpretations and court clashes between fighting forces.
Reflection of the force system
Vladimir Lenin asking a rhetorical question about “political law” he wrote that it is ‘formulation, registration of the force system’[1]. And it is precisely any change in the arrangement of forces, or even just a change in the thought of an existing arrangement of forces, or the intention to change the arrangement of forces itself, that causes the desire to compose down a fresh "political law", its fresh "registration". It is very crucial that liberal groups have played a negative function in this respect since the early 20th century. Therefore, Lenin in 1911 accused the Liberals of being beautified by reality, blunting existing contradictions, softening the position of the overt right, and, on the another hand, falsifying the real image of the interior policy of the czar government. "In view of these issues, it is precisely in the assessment of the substance of the substance that is the focus of all socio-economic and political tasks of our day"[2]. It is no wonder that the most severe disputes are about the substance of existing socio-economic and political relations.
The discipline of law is simply a circumstantial science, due to the fact that it is 1 of the political sciences, which serves the interests of certain social groups, especially those in whose hands is ownership of means of production and political power. Although this is simply a ‘science’, its purpose, due to its political nature, is not always to discover and disclose the real social relations and intentions, and this means that nonsubjective fact is not the most crucial in it. As science, it connects with ideology and serves to justify it. This is most likely why the Nobel Committee does not award awards in the category of "law science" and "political economy". It is through ideology, which contains certain values and a view of the way society and state operate and develop, that the rulers have an impact on social awareness that moves social masses to act and accomplish the objectives set by the prevailing.
Unknown destination
Many politicians in past have believed that the masses, acting, do not request to have full cognition of what they are going to do, and that is not the point at all that they should know precisely that. In support of this thesis, we can mention statements that seem paradoxical but very significant. Oliver Cromwell. assigned to the opinion that “Never will man emergence as advanced as erstwhile he does not know where he is going”And Denis Diderot, “Sometimes man shows more genius in his mistake than in discovering the truth”; a Napoleonthat “The man who does not know where he is going will go the most”. This means that the masses of pyramid builders did not request to know why Pharaohs and priests raised them, and whether they were what they told them; adequate was adequate what seemed to them cognition enough, what they believed, and possibly what they lived from. Similarly, the builders of the Chinese Wall did not request to know whether it would fulfill its appointed function in history; they were convinced that they were doing a liable task. The Knights of the mediate Ages watched the planet gallop its desire to find the Holy Grail. Soldiers Adolf Hitler She wanted to lose religion in her superiority and the request to gain an indefinite "lifespace". And U.S. soldiers are pushing transnational corporate interests across the seas and oceans.
This discussion is widely confused with the metapolitics of any state and public institutions, as well as existing systemic solutions. virtually understood “apoliticity”, impartiality, objectivity or “disideology” of certain systemic solutions, it is evidently impossible to keep in practice.
Rape on the Constitution
Law and Justice, for 8 years, violated the formal Constitution, introduced changes in "apolitical" courts, tribunals, troops, peculiar services and the mass media, exchanged executives, which guaranteed legal and political protection for the politicians of the Law and Justice and the ability to carry out the economical interests of their clients. PiS politicians have shown that courts were to implement, the party's policy in a given situation leading the political system.
The theoretical justification for this practice is the anti-human concept of a three-partition of power into: legislative, executive and judicial (you can add a 4th – mass media and celebrities for nothing). Article 173 of the 1997 Constitution ensures even that courts and tribunals ‘is a separate and independent authority from another authorities’. But Article 176 says that ‘The government and jurisdiction of the courts and the proceedings before the courts shall find the laws’Which means they are determined by the will of the sovereign.
‘Apoliticity’ of the courts
There is so an apparent contradiction: the "apolitical" judiciary is obliged to apply the law passed by Parliament, which more or little reflects the political structure of society and the arrangement of political forces. In this context, the government passed may contain interior contradictions and be interpreted differently and the individual institutions of the State may have comparative autonomy. The justice may not belong to political parties and trade unions, but no 1 is able to prohibit him from having any ideological or political views that he will usage in interpreting and applying the law. Legal-political relations and organization dependence are very complicated. The judges shall be formally appointed by the president from the national elections to which political parties submit candidates. But the request for their appointment is made by the National Judicial Council, which does not come from the general election. The independency of the judges is to be guaranteed by their (do-emeritary) incapacity for life.
But does the inadequacy of judges truly warrant the democratism of the judiciary and its independence? This is simply a large hoax, going against the traditions of the modern judiciary in democratic thought. Depoliticization and disidentification of courts are like a constantly drifting horizon. Therefore, each next squad with a stubbornness worthy of a better case restores the "independence" of courts and judges, separates them from politics, "depolitises" legislation, and yet the problem remains.
Theme Depends on the Nation
The democratic strategy is to guarantee that all power, including judicial power, depends on the nation, on the majority of society, and not on it. Meanwhile, judges have privileges that put them above the nation – a justice cannot be transferred to another post or to another seat without a court ruling. erstwhile transferred to another court, the justice is guaranteed the current income, can be detained or arrested only if caught in the act. I'm certain any hired worker would want that for himself, but... unfortunately.
According to modern knowing of the tripartition of authorities, all power should be appointed in democratic elections by the nation, by the general public, in separate elections for each power. At present, the independency of the courts is not only to administer judgments, but besides to issue binding decisions on the validity of decisions of the executive authority of each level challenged by the citizens, to regulation on the conformity of the rights established by the legislative authorities with the Constitution and of the executive authorities with the laws.
Caste
Even in the US, where the presidential strategy exists and the president is referred to as “the king without a crown”, ultimate Court judges are appointed by parliament, which is simply a political institution. This confirms the thesis that the 3 authorities represent a certain political unity, in the sense that the rule of nation sovereignty is recognised, that each authority depends on the same electoral people, parliament is the ultimate authority that appoints the government accountable to it. Each authority is in practice controlled, restricted and, in certain situations, reinforced by the another two. In Poland, the president of the Republic of Poland is appointed to service as justice of the ultimate Court, at the request of the National Judiciary Council. It's like an accounting caste choosing the ultimate Chamber of Control. Furthermore, it is very crucial that the ultimate Court makes information from its activities to the Sejm and the Senate, but that information is not voted on, which means weakening parliamentary judicial control.
Two options
Two trends can be seen in the strategy of justice in the democratic countries of the West. The first expressed itself in the dependence of the judiciary on the nation, by appointing judges and jurors by citizens through universal and direct elections erstwhile it comes to the courts of the lowest level, and indirect elections, through local and central legislative authorities erstwhile it comes to courts of higher instances. An crucial component in the subjection of the courts to the nation was the introduction of the word of office of judge. The independency of the court from the legislative and executive authorities is in this trend that the decisions of the courts are taken on their own and that they besides apply. And attempts to interfere on their part in the case law of the courts are treated as illegal. In this trend, judges are inescapable during their word of office, whose dimension is most frequently different from that of the executive authority. This trend occurs in the United States of North America and Switzerland, as well as existed in the first years of the Second Republic.
In all U.S. states, the judges of the lowest-level courts (peace judges) are appointed by universal and direct elections, and in any states besides the judges of the state courts come from the general but indirect elections. In Switzerland, judges are elected in any cantons by the population directly, in others by cantonal parliaments, but nowhere indefinitely. In this first trend, the appointment of courts through universal elections is interpreted as strengthening and deepening the independency of courts from another authorities. The participation of judges in election campaigns is interpreted as an chance to meet voters, study on their activities, rise the legal culture of voters, identify voters with courts that represent their will alternatively than as an anonymous Themid standing above the nation. This trend is recognised in these countries as a major accomplishment of democratic reasoning in the judicial system.
Legal status
The second trend is to search a warrant of the independency of courts in recruiting them for life through a closed ellipse of legal status, out of that legal state. Judges in this trend may formally be appointed by the head of state (executive authority), but from among the persons proposed by the state of law. He is treated in this case as the bearer of justice, exalted above the nation, above society, liable only before his own professional corporation. This trend contains a hidden contradiction due to the fact that the constitutions order judges to conviction on behalf of the nation, while making these judges from the nation independent.
In Italy, judges of all courts shall appoint, advance and transfer the ultimate Judicial Council elected for 4 years in 2/3 by all judges and in 1/3 by parliament from among university professors of law and lawyers having at least 15 years of practice. The judge's position is for life. In Germany, the ultimate Court Judges are appointed by the Minister with the Committee on the Election of Judges elected by Parliament. Professional judges are for life.
Both trends in 1 are consistent: they stress the request for judges' expertise. Given the universality of legal education, the request of expertise does not conflict with the Democratism of the judges' elections. Each political option can easy find suitable lawyers in its group.
On the business side
Whether judges are appointed or elected, this does not make them, contrary to different promises, independent of local and group interests. It is appropriate that the word of office of the judiciary, the word of office of judges and parliament should not overlap, but there are no peculiar substantive reasons for the word of office of judges being twice as long as Parliament or for life.
As a consequence of the capitalist transformation, even before the 1997 Constitution was adopted, alternatively of the democratisation of the judiciary, we received in Poland the complete submission of it not even to a narrow group of lawyers, but to any judges. The issue of judicial democratisation is not just about elections. Courts of all levels should be required to study publically to their voters, parliament and local government resolution bodies. An open discussion of these papers should be possible.
Policy irrationality
By Jacques Rancière and Slavoja Žižka in a class society, erstwhile a number exploits a majority of society, political conflict is never simply a rational debate between many diverse social groups with their interests. Politics besides uses emotions, irrational arguments, erroneous and misleading actions more or little consciously. The fact is frequently determined by not the real state of affairs, but by who gathers more followers around him. Policy is increasingly a conflict for the implementation of peculiar interests, with a failure to the social interest. The accompanying political struggles are frequently so large that the majority may not realize the actual state of affairs and may proceed to act even against each other. In the context of the peaceful functioning of the democratic strategy for the opposition, it is about listening to her voice and recognising him as a final partner.
Policy actions strict sense aim to prosecute economical interests, through state policy, the functioning of all its bodies, legal regulations. But political actions, called metapolitical actions, besides include combating any effort to halt fresh trends, social-political imbalances, dictated by peculiar interests and biased views of a peculiar social force.
The conflict as the essence of politics
Slavoj Žižek wrote that in political combat interests have a disguised character. "A appropriate political conflict is so never simply a rational dispute between many different interests, but it is at the same time a conflict to perceive to its own voice and recognise it as a valid partner. erstwhile “excluded” – starting with the Greek demos, on the Polish workers ending – they protested against the ruling elite (against the aristocracy or nomenclature), their real stake was not to open up the demands (higher wages, better working conditions, etc.) but their very right to vote and to recognise as an equal partner in the debate"[3].
In his opinion, the full past of political thought is yet a string of denials of this political moment, the right logic of political antagonism. There are 4 main ways of denying existing antagonism: the first is archaepolitics, which Rancière identifies with the Platoan concept of the state; the second is parapolitics, i.e. annihilation of politics by eliminating conflict as proposed by Thomas Hobbes. Both of these negations of antagonism meant that the antagonistic procedure should not become a appropriate policy.
Marx or Schmitt?
The 3rd way of theoretically referring to conflict is by the Marxist concept, which erases the specificity of the political conflict, seeing it as a derivative of conflicts occurring on a more fundamental social level, namely in the economical sphere. Political conflict is simply a kind of game that is introduced into political economics. Žižek, following Rancière, describes this position as metapolitical.
The 4th kind of approach to the relation between conflict and policy is the ultrapolitical concept Carla Schmitt; under it is militarisation of political conflict, politics is yet understood as a continuation of war by another means. “In ultrapolitics, the ‘repressed’ political origin returns in the form of a quest to exit the blind alley of political conflict by means of its false radicalisation, i.e. by transforming it into a war between ‘Nami’ and ‘Nimi’, into a war with our Enemy in which there is no common ground for symbolic conflict; it is very symptomatic that alternatively of class struggle, the extremist Right speaks of class (or sexual) war”[4].
Antagonism continues
According to Žižk, in those attempts to destruct antagonism which does not actually destruct it, "So we have an effort to refine the authentically traumatic dimension of politics", "to suspend the destabilising possible of what is political, to deny it or to control it 1 way or another". This is about "Strengthening the principles of political competition, etc." and certain “therapeutic experiences”. "Arche-, para-, meta-, and ultrapolitics so consist of a circumstantial logical square of Greimas, in which on 1 axis arche- and ultra- are 2 faces of traditionalist attitudes (a closed community opposed to war with external enemies), a para- and meta-, and 2 versions of modern politics (democratic formal principles argue in turn the belief that the field of democratic play simply expresses and/or distorts another level of pre-political socio-economic processes where real problems are ‘actually occurring’), while on another axis meta- and ultrapolitics imply the notion of inevitable struggle, conflict and antagonism, contrary to the assertions of harmonious cooperation formulated on the basis of arche- and parapolitics"[5].
In the postmodern reality of postmodern politics, we are dealing not only with the "repression" of what is political, but with the fresh "ethnic violence". "In postpolitics, the conflict of global ideological visions, embodyed in various parties competing for power, is replaced by the cooperation of enlightened technocrats (economicists, public opinion professionals...) and liberal multiculturalists; a compromise is reached in the process of negotiating interests in the form of more or little universal consent. What is political (the space of the marketplace / dispute in which the excluded may protest against the wrongs / injustices caused to them), excluded from the Symbolic sphere, then returns in reality in the form of fresh forms of racism. It should be noted how ‘postmodern racism’ emerges as the eventual consequence of post-political suspension of what is political, of the State's simplification to a police defender solely on services (established under contract) of the needs of marketplace forces and multicultural tolerance of humanitarianism: ‘foreign’, whose position is never properly, ‘regulated’, is simply a ‘indivisible remnant’ of the transformation of democratic political conflict into a post-political procedure of negotiation and multicultural supervision. alternatively of a political ‘working class’ demanding universal rights, we have a variety of circumstantial social strata or groups on the 1 hand, each with its problems (reducing request for unskilled labour, etc.), on the another hand immigrants who are increasingly prevented from politicising their exclusion situation"[6].
The slogan of depoliticization of the judiciary under neoliberal conditions is only a fragment of postpolitical demands. Depoliticism demands include administration, government, mass media, army, police, etc. They may be an effort to hide existing class antagonisms and to replace them with fresh cultural ones.
Dr Edward Karolczuk
[1] W.I. Lenin, Three Interventions, in: W.I. Lenin, Works All, Vol. 21, Book and Knowledge, Warsaw 1986, p. 120.
[2] Ibid. p. 103.
[3] Slavoj Žižek, The curse of fantasy, translated by Adam Chmielewski, Wydawnictwo Uniwersytet Wrocławskiego, Wrocław 2001, pp. 89-90.
[4] Ibid. p. 91.
[5] Ibid., pp. 91-92.
[6] Ibid. p. 92.
