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Issue 1 (2024)

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Publication date: 30.06.2024

Description
The publication was supported by the Priority Research Area Society of the Future under the program “Excellence Initiative—Research University” at the Jagiellonian University in Krakow.

Licence: CC BY  licence icon

Editorial team

Secretary Marcin Krzemiński

Editor-in-Chief Piotr Tuleja

Issue content

Studia i artykuły

Jerzy Zajadło

Przegląd Konstytucyjny, Issue 1 (2024), 2024, pp. 7-18

https://doi.org/10.4467/25442031PKO.24.001.1998

In the discussion on the procedure for determining the risk of violating the rule of law under Article 7 (1) in connection with Article 2 TEU, it is sometimes alleged that it is difficult clearly to determine the content of the term “rule of law”. Thus, according to some, the whole procedure suffers from the flaw of arbitrary assessment, since allegedly there is no precisely defined standard of assessment.

The main purpose of this article is to show that despite everything we are able to reconstruct the hard core of the rule of law, because its concept is deeply rooted in the long history of European legal culture. The author shows it on the example of Cicero’s political philosophy, especially on one sentence from his famous Oratio pro Cluentio: “The law has its ministers in our magistrates, its interpreters in our jurors; it makes servants of us all only to set us free”.

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Anna Tarnowska, Michał Gałędek

Przegląd Konstytucyjny, Issue 1 (2024), 2024, pp. 19-50

https://doi.org/10.4467/25442031PKO.24.002.19986

The publication is devoted to several examples of the practice of criticism of the Head of State and executive power in Polish history. The authors have chosen three moments of interest: the first one is the first decade of the “Congress” Polish Kingdom established in 1815, and the second refers to the Second Polish Republic in the period after the coup d’État by Józef Piłsudski in 1926. Finally, the authors refer to some practical aspects of criticism of the authority in the public space in recent times, also recalling the high-profile criminal trial that reached the highest instance – the Supreme Court in 2023. In these examples, the authors focus on aspects of the permissibility of criticism, its specific forms and the reaction of the executive in the early history of the constitutional state and camouflaged criticism of power respectively, through the interwar liberal model of protection of freedom of speech and of the press, which failed in the face of authoritarian changes and the political will to protect the good name of one particular individual; after the death of Piłsudski, the lack of adequate legal protection post mortem was finally “remedied” by a particular repressive law. The last section of the discussion refers to the contemporary Polish state of law, and here the focus is on the faces of criticism and the forms of its suppression. In particular, attention was paid to the problem of the extensive use of means used by the police against criticism particularly unpleasant to the power camp (up to the bizarre action with the hiring of a jib) and the question of maintaining specific protection of the Head of State against defamation in the Criminal Code.

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Natalie Fox

Przegląd Konstytucyjny, Issue 1 (2024), 2024, pp. 51-70

https://doi.org/10.4467/25442031PKO.24.003.19987

Brexit as a hybrid phenomenon, that is, both legal and political, is the next stage in the debate on the place and role of the European Union (EU). The analysis of the impact of EU legislation on the shape of British constitutional law requires establishing the admissibility of reversing existing constitutional modifications. The author will argue that the age of globalisation and establishing legal network links, the participation of states in supernational organisations can result in irreversible modifications of the scope and meaning of constitutional law. In a simplified way, individual legal systems in a legal pluralism are “open”. The changes taking place are irreversible because they concern the foundation of competences as well as the system position of individual national authorities.

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Konrad Rydel

Przegląd Konstytucyjny, Issue 1 (2024), 2024, pp. 71-84

https://doi.org/10.4467/25442031PKO.24.004.19988

The concept of sustainable development is multidimensional. It can be thought of as actions taken at the social, environmental, and economic levels to ensure that the needs of future generations are met like those of current generations. Sustainable development appears in numerous acts at national and international levels. The most comprehensive approach to this issue was presented by UNESCO, which presented a list of seventeen sustainable development goals. The implementation of the Sustainable Development Goals is also an objective of the Council of Europe. The body of particular importance for their implementation is the ECtHR. This article addresses only a selected issue relating to one of the tasks of sustainable development, i.e., environmental rotection. The Convention does not contain provisions relating to environmental protection. Nevertheless, the ECtHR directly refers to environmental issues in its case law. The text considers how the Court tries to protect the environment. At least two such situations can be distinguished. Firstly, the Court refers to the possibility of limiting conventional freedoms and rights for the protection of the public interest, which is environmental protection. Secondly, the ECtHR forces states to need to protect the environment due to the inability to exercise the freedoms and rights conventional (in particular those expressed in Articles 2 and 8 ECHR). The text also analyzes the potential effects of complaints brought from 2020 on stopping climate change.

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Tomasz Tadeusz Koncewicz

Przegląd Konstytucyjny, Issue 1 (2024), 2024, pp. 85-120

https://doi.org/10.4467/25442031PKO.24.005.19989
The ambition of this analysis is to move beyond the dominant perspective of human rights and instead embrace the neglected dimension of the axiology of the supranational integration. The technical question “how” supranational governance must today respond to the changing context of the law of integration and  go hand in hand with revisiting the “why”, despite all our differences, we are still ready to live together within the supranational community. Such a shift in the emphasis is necessary given the fact that the law of integration read only through the prism of market has proven ineffective when it comes to counteracting new kinds of legalistic dangers that feed off „the politics of fear”, where the law is used not to empower but to disempower, not to liberate but to oppress, not to bring to the surface, but to hide and manipulate. In these circumstances one of the major scientific and political tasks is thus to improve the understanding of the novel threats on the individual, social and political levels and in this way to develop counter strategies and counter narratives. In other words, supranational governance needs a new conceptual justification that would explain the ethnography and the practice of supranational law of integration when faced with the novel forms of contestation. It is argued that the value discourse associated with supranational legality provides a truly paradigmatic turn in the studies on the supranational governance and design. In this spirit the analysis invites attention and more robust research to the neglected first order questions of belonging and identity in a common  legal order where all the actors are being challenged to rethink their allegiances and anchor them firmly within the framework of common values and aspirations. For that to happen, though, a new narrative is needed, one that would provide all the actors of the law of integration with the discursive framework and a point of reference to defend and better explicate transnational democracy and the rule of law, and not just human rights, as the constitutional essentials (“First Principles”) of the supranational legal order.
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Agnieszka Bień-Kacała

Przegląd Konstytucyjny, Issue 1 (2024), 2024, pp. 121-138

https://doi.org/10.4467/25442031PKO.24.006.19990

Two years after the abortion decision of the Polish Constitutional Tribunal and just after the mid-term election in the USA, there was a calculation that the abortion issue might play a pivotal role in the parliamentary election in Poland in the Fall of 2023. Analysis of the USA election showed that the Dobbs v Jackson Women’s Health Organization decision of the Supreme Court of June 2022 and discontent among voters on its result violating women’s rights significantly contributed to the electoral achievement of Democrats. On the eve of the electoral campaign in Poland, there was a hope that a similar trend might occur in the next election and might contribute to the loss of the majority of illiberal rulers. The paper focuses on using abortion arguments within the electoral campaign by competing political parties. The main question is, to what extent did the abortion issue influence the result of a general election in Poland in 2023 and the change of the ruling majority?

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Funding information

The publication was supported by the Priority Research Area Society of the Future under the program “Excellence Initiative—Research University” at the Jagiellonian University in Krakow.