Czy la bouche de la loi mają coś do powiedzenia w demokracji? Ćwiczenie w wyobraźni prawniczej

Abstract

The article uses the potential of spatial imagination to discuss challenges judicial power and judges face nowadays, due to fierce philosophical and theoretical debates over the future of democracy and various “democratic innovations”. To identify and discuss possible reactions to these new challenges, we refer to the three-level concept of the political universe. It is argued that the “modern” legal and political imagination has neglected the importance of the most basic of these levels, namely the level of commonly shared cultural values. In effect, as Montesquieu famously summarized, judges became “no more than the mouth that pronounces the words of the law”. This traditional view is still persistent in legal debates but proves to be more and more insufficient, as it does not allow lawyers to take an active part in contemporary political and constitutional debates. Unfortunately, the attempts to overcome it are often far from being satisfactory, as they focus on justifying or criticising allegedly inevitable “politicization” of the judiciary. In effect, both images encourage competition rather than a dialogue, which may in fact hinder understanding and responding to new political processes. In the conclusions of the article, we suggest that the history of European political and legal traditions offers a possibility to go beyond such neutral-political opposition towards a more complicated view, which is at the same time more attuned to unending struggles for and with democracy.