Pluralizm wartości a wola i racjonalność ustawodawcy – konflikt aksjologiczny w systemie i stosowaniu prawa

Abstract

By creating law, a legislator is guided by his own perception and understanding of legal values, which does not prejudge content-related power of particular legal solutions at all. Taking under consideration political and axiological changeability, concrete legal solutions disperse. Democracy only intensifies the conflict of values as far as law creation is concerned. However, applying of the law is based on changeable act and politics as well as differently understood legal values in the application of the law, which is proven by diversified jurisdiction or repealing judgements in appeal procedure. The author questions rationality of constituting the law and its application when such axiological fluctuations occur. Whenever subject-object evaluation happens, also certain rationality is lost, which does not mean that such rationality is unattainable. Rationality should not be “ the quantity” (voting) or “the power” of authorities (the last resort) but the quality of cause and effect relationship connected with normativity. The described traps of law application and ethical dilemmas in the present model of norm application prove the existing conflict of values which mainly decides about the ultimate legal decision. In such way, the essential value – justice – is lost. The author poses the question whether axiological accordance for example in court-litigant party relationship will not diminish the problem of value conflict. Those dilemmas have never been normalized by legislators. The author stipulates not to use the law through axiological “dissimilarity”, which is, in fact, the main factor in legal decision. Considering the present level of legal and moral development are we able to offer better legal solutions in order to maximize the rule of impartiality and gain the best of justice? The answer seems obvious but do we have enough courage in democracy to defend unjudgment through opposition or axiological “dissimilarity”, which also brings another unsaid partiality?