„AID” TO THE LEGISLATOR AS A PREMISE OF JUDICIAL LEGISLATION. PHILOSOPHICAL AND LEGAL INTERPRETATION OF THE RESOLUTION OF THE SUPREME COURT OF FEBRUARY 15, 2019

Abstract

The aim of the article is a philosophical and legal interpretation of the the resolution of the polish Supreme Court of February 15, 2019. It makes an element of the jurisprudenential tendency which going beyond both the linguistic interpretation and the established categories of civil law, significantly limits the possibility of exercising one of the rights enshrined in the polish Civil Code, namely the possibility for the owner of the land on which transmission facilities are located, getting remuneration for the establishment of transmission easement. The Supreme Court did not justify its decision with a specific way of understanding the right of the land owner, but with the need to correct a mistake made by the legislator almost thirty years earlier. The author claims that this judgment is an expression of the legal and political tendency to move away from recognizing the protection of subjective rights as the basic criterion for the legitimacy of power. He inscribes the ruling into the ideological and institutional phenomena of a global nature, which are expressed in concepts adopting a fluid content of subjective rights (the concept of Ronald Dworkin, neo-Marxism), as well as phenomena such as far-reaching restrictions on subjective rights in the name of fighting the so-called COVID-19 pandemic or climate change.