- Quality of legislation following a transition from really existing socialism to capitalism: a case study of general clauses in Polish private law
- International scientific conference: The Quality of Legal Acts and its Importance in Contemporary Legal Space
- Book/source title
- The quality of legal acts and its importance in contemporary legal space
- Pages (from-to)
- Riga: University of Latvia Press
- Document type
- Conference contribution
- Faculty of Law (FdR)
- Centre for the Study of European Contract Law (CSECL)
Quality of legislation is understood as its fitness for a given purpose. In general, legislative acts as texts of legal culture can be said to fulfill two main functions: regulatory (instrumental) and ideological (symbolic). Quality of legislation becomes a particular challenge during a period of radical socio-economic transition, e.g. the transition from state socialism (Really Existing Socialism) to capitalism which occurred in Central Europe at the turn of the 1980s and 1990s.
The case study analysed in this paper focuses on general clauses (general standards) in Polish private law, such as "principles of social intercourse", "good morals" and "equity". After the transition from state socialism to capitalism in 1989, the legislature chose not to abrogate but to amend the Civil Code of 1964. As a result, the chief general clause of the socialist period, the "principles of social intercourse" (a concept created by V.I. Lenin) was not only upheld as the Civil Code's main general clause but was even used in new legal rules. However, after 1999 new general clauses began to be added in newly amended or created provisions, including "good morals", "equity" and "reasonableness". Nevertheless, the "principles of social intercourse" have not been repealed.
This has led to the emergence of an incoherent, patchwork system of general clauses which is perplexing academic lawyers and judges. This pluralism of general clauses, in contrast to the pluralism found e.g. in German law, does not allow the judiciary to develop a nuanced approach to general clauses, in which one general clause corresponds to one standard or judicial approach. To the contrary, judges have been forced to treat all general clauses as more or less interchangeable, becoming actually indifferent towards the linguistic form of general clauses.
As regards the regulatory function of general clauses, the paper expresses the fear that after the adoption of a new Polish Civil Code (which is currently being drafted) or, possibly, a European Civil Code (based on the Draft Common Frame of Reference), Polish judges and scholars could actually stand out from their colleagues from other member state of the EU due to their indifference to the linguistic form of general clauses. An analysis of the draft Polish Civil Code and the DCFR both reveal that their authors have deliberately used numerous different general clauses which correspond to different standards and different methodologies which are to be employed in their application. However, Polish judges - used to the interchangeability of general clauses and immune to their linguistic form - might actually overlook the legislative's intent of creating a more nuanced system of general clauses which could lead to an oversimplifying interpretation of the future Civil Code.
As regards the ideological function of general clauses, the paper draws attention to the metaphorical nature of general clause and points out that different linguistic forms of general clauses correspond to different visions of the socio-economic order. Therefore a patchwork system comprising both general clauses of state-socialist origin and those of capitalist origin leads to a blurred ideological message.
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