Change of Law in a Democratic State: Normative Foundations and Factual Processes
Prof. Maciej Chmieliński, PhD, University of Lodz, Poland
Michal Rupniewski, PhD, University of Lodz, Poland
Beyond doubt, all democratic legal systems are nowadays being subject to rapid and multi-directional processes of change. The reasons for this may be of various kinds, and one could point at numerous sociological, technological, ideological, or purely political processes which result in law’s amendments. In our view, however, to understand this dynamics one should first look into political philosophy which provides justification of these changes and thus shapes the heuristic background of the processes of change – the various traditions of political thought, we assume, shape the way we understand the law and deal with day-to-day demands for legislative or judicial action. Taking this for granted, the aim of the workshop is twofold – firstly, we aim at deeper understanding of change of law in political and legal thought; secondly, we aim at interpreting the factual processes of change of law in democratic states.
The first workshop’s step would be to enhance the politico-philosophical understanding of change of law by examining normative accounts on law’s justification and legitimacy. As we assume, the justification of change of law is for the predominant part the same as the justification of law itself, however only in the former case one can see clearly its strong and week parts. Whereas the law itself can be socially efficient (considered as justified and legitimate) basing or nothing but habits of compliance, the change of law requires proper justification at all times, therefore the insight to the problem of its legitimacy is deeper and clearer here. The workshop will hopefully sort out how change of law is evaluated in different streams of political philosophy and political thought (that includes the questions of legislation, limits of judicial activism, and theory of constitutional change, among others). The second step would be to look at the factual processes of change in democratic societies in different legal cultures. Hopefully, the normative-heuristic background provided in the first step will enhance the interpretation provided in the second step.
The workshop’s aim is to gather papers addressing the following issues:
- Justification of law and limits of change of law in different traditions of political thought (e.g. natural law theory, critical theory, liberalism, republicanism, conservatism, political theology, Confucianism)
- Relations between justification and legitimacy
- Legislation: its critique and appreciation in legal theory
- Implicit change of law – how does legal practice and interpretation change law?
- Change of law in different legal traditions (e.g. common law, civil law, Islamic law, Talmudic law, Chinese law)
- Judicial activism: the limits of court’s power to change the law
- Human rights: historical changes in understanding and enforcement thereof
- The constitutional change: different normative approaches and factual processes of constitutional change
- The problem of excessive legislation known as “legal inflation”
- Technology: how it changes law and its legitimization
Although we invite all different approaches of thinking on problems listed above, we would like to present very briefly our own view (presented at length in the paper: M. Chmieliński, M. Rupniewski, Three Models of Change of Law: A Study of Political Justification, forthcoming). We believe that the inquiry into the problems of change of law can be systematized by distinguishing politico-philosophical models of change of law. The first model we distinguish is the communitarian model, rooted mostly in the work of A. MacIntyre, M. Sandel or M. Walzer. Political community, and the common good (understood substantially), constitute here the primary source of law’s justification. The law is seen as rooted in long-lasting traditions of a concrete society, its practices and “natural laws” decoded from these practices and traditions. A change of law is rational and justified only if it follows a change in these primary spheres. The second, antithetic model is the “contractarian” one, rooted in the work of J. M. Buchanan and G. Tullock. It’s basis is pure legal voluntarism – the actual agreement of the people is the sole sufficient reason for change. The justification rests here on procedure – to maintain the new law justifiable, constitutional and other rules must be obeyed. Also, a fundamental assumption in this model is that of universalistic and non-historical economic rationality of the agents reaching agreements. As we further argue, none of those models is adequate to the complex reality of modern democratic states, and there is a need of a middle-ground. Therefore we propose the third, cooperative model of law, as one such solution. This model is rooted mostly in John Rawls’s political liberalism. The notion of cooperation which is crucial to this model assumes both factors – the tradition of community practices as well as legal voluntarism of the contractarian view as equally important determinants of democratic law. The change of law is here understood as a result of an interplay between public reason and background culture, each having an independent justificatory power. The law is understood as a device of cooperation of the society, certainly influenced by traditions and historically evolved practices, but at the same publicly rational and open to the current, actual needs of cooperating individuals and groups. In our view, the two antithetic models (communitarian and contractarian) are “extremes”, and many alternative “middle-grounds” can be proposed.
DATES and PROCEDURES:
- Potential Participants are asked to submit a proposal and abstract of the presentation (up to. 500 words) until June 1, 2017 to the email address: firstname.lastname@example.org. The workshop’s conveners intend to give the acceptance note within two weeks.
- The workshop is part of MANCEPT Workshops 2017, taking place in Manchester, 11-13 September 2017. All the details concerning the registration, fee, accommodation, bursaries, as well as other workshops, can be found at the MANCEPT website (http://www.mancept.com/mancept-workshops/) where you may also find the contact information.
- Accepted contributors are kindly asked to deliver a full working paper (an extended handout with main ideas and arguments is another, though secondary, option) until August 20, 2017. The papers will be subsequently distributed among the participants to ensure a fruitful exchange during the workshop.
- The intended time for each presentation and discussion is 60 minutes (participants are kindly asked to prepare a 30-minute presentation in order to leave time for discussion).
- Provided there is a fair level of cohesiveness, the conveners plan to publish a monograph comprising the papers presented at the workshop. If you wish to provide an extended commentary on one of the papers presented, it can also be a part of the monograph. Therefore we encourage the participants to read the working papers before the workshop.
We hope to see you soon in Manchester!