Krytyka Prawa. Niezależne studia nad prawem

The Political as an Analytical Category in the Critical Study of Case Law (Theoretical Model and Case Study)

Mańko, Rafał

University of Wroclaw

319.71 KB

382 downloads

Abstract

The aim of the present paper is to operationalise the concept of the political in
order to make it available as an analytical category for the critical study of judicial
decisions (case law). The concept of the political is understood here, following, in
particular, Chantal Mouffe’s agonistic theory, whereby it is a dimension of a social
antagonism. Such an antagonism can be played out not only in the process of
legislation (creation of abstract and general legal norms), but also in the process of
adjudication (the so-called ‘application of law’, which, however, always has a creative
element to it). As an analytical category, the political can be operationalised
in order to subject judicial decisions to a critique which goes beyond the question
of the ‘correct’ interpretation and ‘application’ of law in a given case, but puts in the
spotlight real social, political and economic conflicts that are at stake. The analytical
framework is exemplified by judicial decisions of the European Court of Justice.

Metadata

Journal Krytyka Prawa. Niezależne studia nad prawem 
Volume 12 
Issue 3 
Issue date 11/2020 
Type Article 
Language en
Pagination 90-108
DOI 10.7206/kp.2080-1084.397
ISSN 2080-1084
eISSN 2450-7938