Employing David Dyzenhaus’ conception of the culture of authority and the culture of justification for analysing changes proposed by the Act on the Supreme Court

Abstract

The aim of this article is to describe two legal cultures, namely the culture of authority and the culture of justification, as formulated by David Dyzenhaus. This distinction between legal cultures proposed by the Canadian theorist of law makes an interesting contribution to the discussion on how to make headway with the problem of determining the limits of public authority and, consequently, the problem of implementing the principle of the separation of powers in such a way that conflicts do not arise. In general, with the culture of authority, justification of the actions of an authority is necessary only when it is being established, and once its authority has been established, the authority sees no further need to justify its decisions. Whereas in the culture
of justification, after an authority has already been established, the rules of the culture of justification require that the authority continue to justify all its decisions. The reconstruction of these conceptions of legal cultures are illustrated by the recently proposed Act on the Supreme Court in Poland. The conclusion of the paper indicates that the proposed changes to the functioning of the Supreme Court are clear examples of legislative action based on the directives of a culture of authority, which may lead to violations of the rule of law.