the constitutional value theory of Z. Ziembiński
3.8. Fourth dilemma: values towards norms – generic or derivative?
3.8.1. “Thinking in accordance with norm” and “thinking in accordance with values”
The fourth dilemma concerns the issue of the primary or secondary existence of values. At its core is the question of whether values are the source of norms and valuations, or the contrary – the product of their generalisations? This dilemma, closely tied to the problem of the objective and subjective existence of values, has important consequences for the creation and application of law.
The acceptance of the thesis of the fully secondary nature of values, especially substantive ones, gives scope for arbitrary law-making at the “sovereign’s will,”
in extreme cases “including every despotic whim and caprice.”94 The secondary character of values will be also assumed by scientific anti-metaphysical currents, including philosophical and legal positivism. A similar stance is taken by conventionalism, in which, as has been indicated, values are the result of a social contract. Of course, the primary nature of values will be postulated by the supranaturalistic law of nature, as well as by those naturalistic currents that regard values as irreducible facts (social, mental, etc.), and by phenomenological views of values as primary, irreducible, and a priori.
To illustrate the essence of the dilemma between the primary and secondary nature of values and its implications for the lawyer’s or the judge’s activity, one may refer to the phenomenological theory of values, developed in opposition to the scientific assumptions of philosophical positivism. In this context, attention is drawn to the ideas of the Polish phenomenologist J. Tischner, who compares
“thinking according to values” with “thinking according to norms.”95 According to Tischner, the influence of a positivist paradigm caused humanistic “ethical thought” to fall under the influence of the model of the technical sciences. This influence is also manifested in a tendency to change man to certain actions through external stimulation. Tischner claims that the basic concern of such thinking about man is the formulation of universal norms which “like machine instructions are to provide order in society.”96 According to the philosopher, the
94 Gustav Radbruch, “Five Minutes of Legal Philosophy,” Oxford Journal of Legal Studies 2006 Vol. 26, No. 1, p. 13.
95 Józef Tischner, “Norma i wartość,” in O człowieku. Wybór pism filozoficznych (Wrocław: Zakład Narodowy im. Ossolińskich, 2013), pp. 241–243.
96 Józef Tischner, “Sztuka etyki,” in O człowieku. Wybór pism filozoficznych (Wrocław: Zakład Narodowy im. Ossolińskich, 2013), p. 235.
flaw in this “technical ethics” based on the above assumption is that it starts with a norm referring to human conduct, namely it tries to formulate general, abstract rules of conduct towards man. In the phenomenological and dialogical perspective, Tischner accentuates that, in a situation of contact with another human, “we first intuitively perceive values that this man has in himself.” We do not try to “recall from memory” any norm of conduct, which according to the philosopher is “technical and void.” In other words, in our perception of another man’s “being” we intuitively grasp the objective and primary value that our behaviour has towards him.97 A similar point of view was promoted by the currents of the phenomenologically-oriented legal hermeneutics, which include primary values in the ontologically-conditioned process of the realisation of law.
For example, M. Piechowiak, quoting A. Kaufmann, says that “in the process of finding resolutions, a legal norm meets concrete life conditions.” The “sense”
found in the result, in which “the idea of law, alternatively legal norm and life conditions must be identical,” makes the “nature of things.” This nature is
“a methodical place of the connection of reality with value,” and simultaneously
“a proper carrier of objective legal sense.”98
One should also mention the idea that legal axiology is secondary to norms and follows from the act of law-making. For instance, M. Kordela claims that “The only way to gain the status of a legislator’s value is his clear decision, typically simply being a constituting act. In this view, every value comes as an effect of creation. All in all, a legislator creates values and does not protect, guarantee or enforce [them].”99 Kordela continues that “As long as the legislator does not give […] values the rank of legal value, out of his own clear decision made in the form that is precisely determined by procedural norms, a certain sphere remains extralegal. It is this law-making fiat that transforms, constitutively and not declaratorily, certain values, primarily moral ones, into values belonging to the axiology of law.” Therefore, according to the author, the above process is determined not by the content of values but their form.100
97 Cf. Tischner, “Sztuka etyki,” pp. 361–372.
98 Marek Piechowiak, “Arthura Kaufmanna próba przezwyciężenia pozytywizmu prawniczego,”
Studia Prawnicze 1993, vol. 1(115), pp. 9–10.
99 Marzena Kordela, “Zasady prawa jako normatywna postać wartości,” Ruch Prawniczy, Ekonomiczny i Socjologiczny 2006, LXVIII – vol. 1, p. 43.
100 Kordela, “Zasady prawa,” p. 44.
3.8.2. Are values necessary in a normative system of law?
As has been indicated, extreme stances that are purely normative and simultaneously anti-axiological are hard to support (this is the problem that was revealed even in Kelsen’s theory in relation to Grundnorm in the
“static system”). At the same time, many legal-theoretical concepts assume the existence of axiological foundations of a normative system of law, where the mode and justification of their existence may vary and be the subject of a dilemma, for the spectrum of ideas spans from the law of nature to naturalist legal-sociological concepts, and from substantive to procedural concepts.
Nevertheless, according to Ziembiński, the content of a legal system comprises a definite and inherent set of values even if it is not articulately stated in regulations.101 Also, according to Radbruch, who represents the axiological current in neo-Kantism, law always aims at the realisation of certain values, while value refers both to the empirically existing being and to the ideally-formally existing duty.102 Radbruch names three values “characteristic of every positive law-statute.” justice, legal certainty and “the purposiveness of the law in serving the public.”103
The relation between values and a normative system was also captured by R. Dworkin in his concept of law consisting of rules (norms) and “principles, policies and other sorts of standards”104). In this theory, the problem of values is revealed in “hard cases,” in which the zero-one binding character of legal rules cannot be applied,105 for values are a store of relevant principles that are weighed in hard cases. G. Maroń observes: the “weighing of principles by a judge only partially, though lege artis, answers the need to satisfy the values protected by that of legal rules.”106 In the same vein, M. Dybowski notes: “a judge’s decision in Dworkin’s concept is ‘political’ due to the political character of rights which in turn are axiologically justified in the system of values expressed in a normative social structure – ‘political morality’.”107 This means that, in Dworkin’s concept, political rights are integral parts of moral values accepted by a society.108
101 Zygmunt Ziembiński, Wstęp do aksjologii dla prawników (Warszawa: Wydawnictwo Prawnicze, 1990), pp. 71 et seq.
102 Sarkowicz, Stelmach, Teoria prawa, p. 33.
103 Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” p. 6.
104 Ronald Dworkin, Taking Rights Seriously (London: Bloomsbury, 2013), pp. 38 et seq.
105 Ibidem, pp. 105 et seq.
106 Grzegorz Maroń, Zasady prawa. Pojmowanie i typologie a rola w wykładni prawa i orzecznictwie konstytucyjnym (Poznań: Wydawnictwo Ars boni et aequi, 2011), p. 80.
107 Maciej Dybowski, “Ronalda Dworkina koncepcja zasad prawa,” Ruch Prawniczy, Ekonomiczny i Socjologiczny 2001, LXIII — vol. 3, p. 112.
108 Dybowski, “Ronalda Dworkina koncepcja zasad prawa,” p. 107.
The relations between values and fundamental legal rules are also outlined in R. Alexy’s theory. Maroń points out that, in the light of the philosopher’s opinions, the rules of law are “optimising requirements,” indicating not exactly how to act, but requiring that a certain desired state of affairs (goal, value) be realised to the greatest extent possible within the legal and factual possibilities.109
As has been said above, even legal positivism is not free from specific axiology in the foundations of a normative system of law. Also, in the light of H.L.A. Hart’s positivist concept, law, as a minimum standard, has to contain rules that protect an individual, their life, security, property, maintenance and functioning within society.110 The “protected goods” that he mentions may thus, in Hart’s concept, be regarded as “valuable” and correlated with the “minimum content of natural law.”111 Moreover, Hart directly points out the relations between moral values and a positive law system: “The law of every modern state shows at a thousand points the influence of both the accepted social morality and wider moral ideals. […] In some systems, as in the United States, the ultimate criteria of legal validity explicitly incorporate principles of justice or substantive moral values.”112
Furthermore, on the grounds of legal sociology, Pałecki claims that a certain set of values is a “hidden element” of a legal system, being incorporated into law through the processes of rationalisation and legitimisation. However, these must be values having some special relation to norms, namely the multiplication, maintenance or occurrence of these values due to the realisation of relevant norms. Pałecki suggests calling the set of values that have such a relation (rationalisation and legitimisation) with a certain legal system the “axiological foundation” of this law.113 This term will be used in further discussion.