Kryzys legitymacji prawa

Agnieszka Nogal


The problem of the obedience to law is one of the fundamental problems of contemporary political philosophy and the philosophy of law. The problem of the legitimacy can, in turn, be viewed from three different aspects: the psychological, collective or social. The concept of the obedience also refers to the concept of the legitimacy which is a narrower one. The legitimacy of law denotes a principle or principles under which the law applies and takes its shape. Legitimacy gives the law certain importance and makes it vivid by referring to a rule that is prior to the law. The debate on legitimacy takes on the form of the discussion on the source of law. Three stances are to be distinguished in this debate: that of legal positivism, that of natural law, and that of the discursive legitimacy. Legal positivists argue that the only source of law are procedures defned institutionally and not dependent on anything prerequisite thereto. On the contrary, the advocates of natural law theories argue that the law stems from something that is before the law, for example from nature. Supporters of discursive legitimacy refer to the debate and consent as the source of law. The discourse that leads to agreement must meet certain requirements, and the citizens speaking in public sphere should fulfl the normative requirements. The best known representatives of discursive legitimacy are Jürgen Habermas and John Rawls. Still, there is no concept that could be considered as dominant by the theorists belonging to the three indicated trends. To the contrary, their followers clash - refusing to acknowledge the ideas advocated by adversaries. If the discussion was purely philosophical and normative, it would not pose such a serious problem. The normative and social legitimacy of the law, however, are interlinked, and the philosophical positions refect, though indirectly, the attitudes of society. Thus, it can be said that the lack of agreement among legal philosophers refects the lack of consent among citizens, although, of course, the social attitudes studied with sociological methods might appear different than the positions on the map of philosophical-legal discussion. Both realms, however, lack a single source of legitimacy, and, moreover, after analysing the dominant concepts of legitimacy no level of a possible agreement is likely to appear. In such a situation, the search for the source of the legitimacy of the law should start from scratch, leaving aside the unsettled disputes conducted by modern legal philosophers.

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