Judicial Authority – Fundamental Dilemmas

Abstract

One of the fundamental dilemmas in judicial application of the law is to respect the principle of the rule of law and not only the principle of legalism. The principle of legalism as enshrined in Article 7 of the Constitution insufficiently protects the constitutionally guaranteed rights and freedoms of the individual, and therefore judicial activism is required, i.e. a correction of the established law in the process of interpretation and application of the law in order to give the law such content that is consistent with the constitutionally defined values underlying the axiology of the Polish Constitution. The correction of the legislated law involves going beyond the content of the principle of legalism and referring to such values as – equity, justice, goodness, human rights and freedoms. The judge, due to the fact that under the Constitution he is first and foremost subject to its provisions, and secondarily to the laws, may – if he is able to justify it – reject the content of the statutory provisions and base his decision exclusively on the provisions of the Constitution. This is justified when the Constitution protects individual rights and freedoms to a greater extent than the law. A judge may not invoke the rule dura lex sed lex in the process of interpretation, as it destroys the standards of legal culture. The correction of statute law in the process of its inter-pretation relates to judicial independence and responsibility for the issued decision.