Lunch seminar with Michal Kaczmarczyk

Democracy and Adjudication


In my talk I will address the broadly debated problem of the mutual relationship between politics and law, and, in particular, between democracy and adjudication. In order to avoid too general statements, three specific meanings of the supposed tension between judicial activity and democratic legislation will be discussed: the difference of lawmaking by legislative bodies vs. by the judges, the limitations that courts and, in particular, international courts, impose on state legislation, and, finally, direct conflicts between judiciary and legislative bodies. As far as the first meaning is concerned, adjudication appears to be, despite its creative contributions, a conservative and order-oriented counterforce to state legislation and, also, its necessary supplementation. Nonetheless, domestic judicial review and international investment arbitration provide examples of far-reaching restrictive power that courts can exercise vis-à-vis democratic states. The discussion on the democratization of global governance is in statu nascendi and will be briefly outlined in my talk. For the sake of clarity I will argue that it is more convenient in the global context to understand judiciaries, companies and states as communication systems rather than persons or institutions. With regard to each of the systems specific deficits as well as unique contributions to democracy’s functioning may be indicated. In the course of globalization, as states are getting deprived of their omnipotence while enterprises and international courts are more and more involved in shaping social normativity, the question of democracy concerns the balance between the systems no less than their institutional traits taken in isolation. All the considerations inspired by systems’ theory do not exhaust, however, the possible forms of conflict between democracy and adjudication. As against the emerging ‘new global order’ direct struggles between legislative bodies and judiciaries are still possible. That phenomenon will be exemplified on the Polish case with reference to empirical results which lead to surprising conclusions.

All interested are welcome to attend. Registration is not necessary.