The Axiological Problems of Observing the Law

Abstract

The paper takes up the ever present problem of some desirable relations between the law and morality. Is the law in itself an independent value, or does its value result from the good which it protects? The problem has been approached in a different manner by the members of legal positivism, normativism, legal functionalism, legal psychologism and the proponents of recognizing the natural law.

In the totalitarian and post-totalitarian states in which there is no care about the fairness of the law, the conflict between the proponents of legal positivism and the proponents of the doctrine of the natural law takes on a more severe character and is still present. There is still in these countries the problem of an appropriate approach to the norms which serve the enslavement of man, which are still in power or else have formally been lifted but their effects persevere. One cannot solve this problem on the grounds of the positivistic doctrine but on the basis of the conception of the natural law.

It is necessary to purify the Polish law from unfair norms, that is, it is necessary to verify it. This could be done by the Constitution Tribunal. To declare that some legal acts are invalid does not have to be necessarily linked with undermining all effects resulting from the observance of these norms. That one has to harmonize the law with morality is true also for the currently substantive norms. Each legal-political system should be subordinate to moral and ethical values.