Constitutionalism as the limit of law and its interpretation (philosophical and methodological aspects)
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doktorantka Wydziału Prawa i Administracji Uniwersytetu Jagiellońskiego
Publication date: 2020-01-24
Studia Politologiczne 2012;23
In this essay the author tries to answer the question posed in the title and pays special attention to its philosophical and methodological considerations. The problem of the limits of law determined by the Constitution and its interpretation is a problem of cognizance limits. If law is treated as understanding and having “the nature of language” “being” (by which is closer to the philosophical than scientific reflection) so must necessarily take the form of philosophical explanation. That’s way author uses the philosophical and theoretical tools to limits of cognizance analysis. Author repudiate “hard” jusnaturalism formulations (essential inclusivism) which relate to mythical way thinking. She assume approppriate for a “soft” iclusive positivism attitude, where criteria of law identification must refer to social facts, includes refer to morality but don’t have to be necessarily incorporated into law. Law by itself includes (incorporates) many of them. Moral rules are sometimes directly incorporated into Constitution – supreme act of legal order. That’s the reason why limits of law acquire “another dimension”. Thus because of fact, to Polish Constitution goods like for example: representing universal value – human dignity and social justice clause are incorporated, in a different way we can determine “axiological dilemma” and role of “Radbruch’s formula” in polish constitutionalism.