the constitutional value theory of Z. Ziembiński
3.10. Sixth dilemma: what is the lawyer’s or the judge’s universum of professionally significant the judge’s universum of professionally significant
values?
3.10.1. The scope of the axiological basics of law
Thus we reach the perspective of the sixth of the legal dilemmas that were identified, that concerning the question of the set of values belonging to the
“axiological foundation of law.” This point will also cover the related question about the scope of the “axiological foundation of legal ethics.” Further reflection will serve to bring into focus the dilemmas revealed in the comprehensively understood universum of a lawyer’s or judge’s professionally significant values.
In the light of previous reflections, a question arises: Is the “axiological basis of law” a given, once and for all, and may its possible change be the source of dilemmas in the process of law enforcement? The answer depends on the modus existendi of the postulated (objective, subjective, primary, secondary, etc.) values. Irrespective of the possible polarisation of opinions, Ziembiński draws
118 Sławomir Tkacz, O zintegrowanej koncepcji zasad prawa w polskim prawoznawstwie (od dogmatyki do teorii) (Toruń: Wydawnictwo Adam Marszałek, 2014), p. 285.
119 Pałecki, “Zmiany w aksjologicznych,” p. 20.
120 Ibidem, p. 21.
121 Ibidem, p. 21.
attention to the necessity of maintaining “axiological consistency,” which is “one of the elementary conditions of a legal system’s effectiveness.” This consistency, according to Ziembiński, means that the norms of a given legal system are axiologically justified by a correspondingly ordered system of values, which the realisation of legal norms is to serve.122
For example, (as has been said) in Radbruch’s opinion there is a three-element set of values specific for every positive law which form a hierarchy in which the highest value is justice, the second legal certainty, and the lowest – the purposiveness of the law in serving the public.123 Radbruch adds that justice requires that law be stable (sicher). The author indicates that, where there is a dilemma “between legal certainty and justice, between an objectionable but duly enacted statute and a just law that has not been cast in statutory form, there is in truth a conflict of justice with itself, a conflict between apparent and real justice.”124 The context for Radbruch’s diagnosis is the conflict between the positivist and “law of nature” views of the axiological basis of law.
In the Polish literature, Kordela undertakes probably the most detailed attempt at cataloguing “legal values,” which are derived by her from the Constitution’s preamble and regulations, as well as from sentences and judgments of the Constitutional Tribunal. According to Kordela, this set comprises:
freedom, justice, cooperation and dialogue, state security, legal order, the protection of the environment, health, public morals, freedom and the rights of other people, legal certainty and trust in the law, the public interest, the common good, every individual’s good, a child’s good, freedom of conscience and creed, freedom of speech, freedom of public debate, freedom of public meetings, party autonomy, the family and marriage, the protection of property, the reliability and efficiency of public institutions, the effective and uninterrupted functioning of organs of public authority for the public, the autonomy of local government units, the autonomy of communes, the good of the judiciary, the quest for the truth about an act and its perpetrator in a criminal trial, and the client’s good, the independence and impartiality of the judiciary, the independence of public radio and television, care of military veterans, the free and effective activity of trade unions, balancing the budget, the unity of the state’s financial economy, maintaining the political power of democratically chosen structures, and defence. Kordela also adds that “normative beings” gain the status of values, e.g. the general principle of social justice, the specific principle of equality, the
122 Ziembiński, Wartości konstytucyjne, p. 7.
123 Radbruch, “Statutory Lawlessness and Supra-Statutory Law,” p. 6.
124 Ibidem, pp. 6–7.
legality principle, and the right to education and information.125 The author also cites the opinion of Constitutional Tribunal, which stated that, in some cases,
“values are protected but not absolute,” which hints at the dynamic nature of the set of values forming the axiological basis of law.
3.10.2. Constitutional values as an axiological basis in the view of Z. Ziembiński
On the other hand, the most theoretically elaborate attempt to catalogue legal values, especially constitutional ones, can be found in Ziembiński’s views. He claims that law has to serve the realisation of human interests, and for that reason it has to allow for the realisation of certain values. According to Ziembiński, these are both “independent values” as well as “instrumental values of the higher order.”126 It is worth remarking that, in his opinion, law in itself may be an instrumental value, since it authorises an individual to carry out certain conventional actions.127 The author specified that law may be a value because it orders other subjects’ conduct in a manner that is advantageous for a given individual, both passively, in the case of legally protected freedom, as well as actively.128
As has been pointed out, Ziembiński analyses the issue of the axiological basis of a legal system in the context of the set of constitutional values, among which he discerns three categories: first, values that directly boil down to fulfilling the interests of particular citizens (respecting those human rights which are in a given country’s jurisdiction); second, instrumental values, which serve the realisation of those interests, and institutional values connected with organising actions leading to the realisation of the good of an individual and the public; third, ideological values related to the ideological goals that the state power is to serve.129 Ziembiński additionally points out special “legal values,”
worked out by doctrine, such as the “adversarial system” and the “principle of substantive truth” in criminal law.
Ziembiński develops and specifies the above catalogue of constitutional values. The author puts in first place the values directly determining the social situation of particular individuals. In particular, he draws attention to the value of providing freedom of action within a certain area. Simultaneously, the author
125 Kordela, Zasady prawa. Studium teoretycznoprawne, pp. 125–127.
126 Sławomira Wronkowska, ed., Z teorii i filozofii prawa Zygmunta Ziembińskiego (Warszawa:
Oficyna Wolters Kluwer Business, 2007), p. 247.
127 Ibidem, pp. 249–250.
128 Ibidem, p. 249.
129 Ziembiński, Wartości konstytucyjne, p. 29.
distinguishes between the freedom “to” carry out certain actions (deriving from equality before the law) and the freedom “from” certain risks, including formal-legal and substantive limitations (concerning life, health, threats to security of economic existence). Ziembiński states that the value founded on the first category of values is the supreme value of the personal dignity of citizens (art. 30 Constitution of Poland).130
The second group includes instrumental and institutional values, the primary goal (and measure of importance) of which is the protection of values of the first category. Among instrumental values “mentioned in constitutions” Ziembiński names the obligations of the state to: provide proper ecological conditions, means of supporting the development of science, culture, and education, and to provide the necessary infrastructure for economic activity. Among institutional values the author includes: guaranteeing the democratic character of the state’s ruling institution and of administering public affairs. In the case of the “legal state postulate,” this is related to, inter alia, institutions securing respect for a citizen’s rights, and to institutional values which are created by the principle of the tripartite separation of powers.131 Ziembiński adds that “an instrumental value of further order” is the creation of legal institutions which allow for the realisation of justice postulated according to a defined, usually complex, formula of justice.132
As was mentioned above, the third group includes “ideological values,”
meaning that a state assumes responsibility for the promulgation of certain values within society. This form of values is controversial, according to this author, since it may lead to imposing unrecognised values on citizens by coercive means. Ziembiński emphasises the importance of “autonomous values,” belonging to the closest, constitutional axiological basis of law.
According to him, these include: freedom, security (personal, social and legal), equality (in law and before the law), property (with certain functional limitations). Ziembiński also includes in the strict axiological basis of law the fundamental instrumental and institutional values such as
“realisation of social rights,” “democratic institutions and procedures,” (e.g.
the procedure of constituting state organs and the procedure of lawmaking), and “self-governmental institutions.”133 With the perspective of corporate ethics problems in mind, one may entertain the thought that maybe those institutions of professional self-government mentioned in Art. 17. Section 1 of
130 Ibidem, p. 58.
131 Ibidem, p. 59.
132 Ibidem, p. 59.
133 Ibidem, pp. 60–80.
the Constitution of Poland are also institutional values in the axiological basis of a normative legal system.
Ziembiński, when tackling detailed questions, points to the complex nature of a fundamental value, namely procedural and substantive “rule of law.” In a similar vein, the author writes about “social justice,” indicating not only its procedural and substantive concept, but also the distributive as well as commutative foundations. In the latter case, he shows that the constitutional idea of justice is multidimensional and combines “in roughly undetermined proportions” “egalitarian and merit” elements (depending on one’s “effort and achievements”).134 Thus, according to the author, the idea of social justice is a concept of “underspecified semantic reference.”135 Ziembiński uses an understanding of the above concept to signal the influence of economic criteria that are, for instance, contradictory to some assumptions of Catholic social doctrine.136 He complements the catalogue of basic values with independence and sovereignty, of which the former is political, the latter a concept arising from international law.137