Problemy prawa zamówień publicznych. Uwagi z perspektywy teorii i filozofii prawa
Problems of public procurement law. Remarks from the perspective of legal theory and legal philosophy

Summary/Abstract: In this paper, I address the issue of the status of public procurement law as an autonomous branch of law. Public procurement law has the characteristics of the so-called “complex branch of law”, combining the attributes typical for public and private law. It is not anything special in this respect. Postmodern times reveal more and more areas of legal regulation that do not comply with the traditional criteria of differentiation of law on branches based on the so-called “logical division” (completeness and separateness of the division). This phenomenon can be treated as a manifestation of the crisis of legal-research apparatus, on which the previous achievements of analytical jurisprudence were built. In this paper, I propose changes of the research perspective; replacing the logocentric approach with a pragmatic (pragmalinguistic) one. This means replacing the binary distinctions (public law vs. private law, national law vs. European law, static interpretation vs. dynamic interpretation etc.) with a research approach in which we refer to such concepts as subject and purpose of legal action, social and institutional context or economic optimization of the understanding of the text. Such modification allows for the conceptualisation of law as a medium for the implementation of divergent economic interests, controlling the activity of participants in the process of applying the public procurement law. Therefore, the proposed approach is coherent with the market model of the perception of the functions of law. As a consequence, it will lead to a departure from the traditional paradigm of practicing dogmatics of public law (administrative law) and civil law.

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