Uwagi o sprawiedliwości społecznej jako realizowalnym prawnie celu państwa demokratycznego
Some remarks on social justice as a legally feasible aim of a Democratic State

Summary/Abstract: The article is devoted to the relationship that occurs between social justice (as a target) and law (a tool for achieving this target). The fundamental problem is to determine the definition of social justice which is or should be implemented by law. Its understanding is influenced by different social factors which dynamics determines its redefinitions so there is no basis for the reconstruction of a single, general and indisputable theory of social justice. Therefore, the concept of social justice is “essentially contested”, which means that its significance and the criteria of an application always involve disputes and controversies. This weakness can be overcome through public deliberation which is an attempt to reconcile differences through discussion and persuasion. In this context, the Author has drawn attention to the Polish Constitutional Tribunal which applies its own arbitrary understanding of the principle when ruling on the base of the “social justice” clause (social justice becomes a matter of individual axiology and beliefs of judges in a given case). Nevertheless, social justice is foremost the aim of the state which should strive to achieve it. So the question must be posed: how the legislature should identify such aim and the manner of its implementation? Undoubtedly, it should be done in accordance with a democratic legislative procedure. On the other hand, it seems that the results of research conducted within the framework of social science (even taking into account the diversity and the adversarial nature of many theories) can significantly expand knowledge, inter alia, on the concept of social justice and associated problems. Social justice is, in fact, a “smooth” category subject to continuous redefinitions as a result of social conditions and people's greater awareness of their consequences. It can be illustrated by the issue of the legalization of same-sex couples, which has become a reality in some countries while in others it is still subject to increased number of litigations or a subject of public discourse. It seems that when searching the answer to the question of whether the legalization of same-sex couples leads to the realization of social justice it may be helpful to refer, for example, to the theory of Anthony Giddens concerning the transformation of intimacy. One way or another, the “essentially contested” issue of social justice as the aim of a state organization should be identified (at the stage of law-making, the stage of interpretation, including constitutional, and the stage of the application of law) as a part of the political and legal discourse. Referring to the Habermas’s concept of the idea of deliberative democracy, it should be noted that the legal implementation of social justice within available resources (for example economic) should be subject to democratic procedures and should take into account the possibility of popular participation in the legislative process.

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