Instrumentalizacja vs autonomia prawa, czyli co „mówi” do nas racjonalny prawodawca
Instrumentalization vs autonomy of the law, or what a rational legislator 'says' to us

Summary/Abstract: The paper traces the evolution of the concept of the rational legislator as shaped by Polish theoretical and legal debates. The research aims to show how this evolution has influenced the characterisation of the relationship between the instrumentalization and autonomy of law. Three phases in the development of the concept of the legislator's rationality are distinguished: scholarly, cultural, and pragmatic. Each phase corresponds to a different account of the relationship between instrumentalization and autonomy. The scholarly phase is dominated by legal instrumentalism, without recourse to arguments based on the autonomy of law. The cultural phase is marked by a strong opposition between instrumentalization and autonomy, where autonomy is presented as the limit of instrumentalization of law. In the pragmatic-communicative phase, the possibility of removing this opposition by reversing the relationship arises: autonomy is seen as conditioning the effective performance of acts of instrumentalization. However, this no longer concerns the instrumentalization of state legislation, but rather a pluralistic, democratic instrumentalization.

• Details
• Contents