Metodologie teorii prawa a problem polityczności prawoznawstwa. Aspekt behawioralny i intensjonalny

Abstract

THE METHODOLOGIES OF THE THEORY OF LAW AND THE PROBLEM OF THE POLITICAL NATURE OF JURISPRUDENCE. BEHAVIOURAL AND INTENSIONAL ASPECTS

The paper is devoted to the problem of the impact of theory of law methodologies on the political nature of jurisprudence. The author seeks to demonstrate that some theory of law methods are more susceptible to politicisation than other. Referring to H. Hart, he introduces a distinction between the external and internal theories of law. Among the external theories he distinguishes the so-called integrating theories and cognitive theories, while dividing the internal theories into inten­sional and extensional, drawing on the division of interpretation theories. The author demonstrates that the so-called political nature of theories is aphenomenon most often encountered in internal and intensional approaches. In particular, theories based on the agonistic discourse concept C. Mouffe politicise the legal discourse by strengthening the illocutionary force of political arguments in com­parison with legal arguments. Only consensual discourse concepts R. Alexy avoid this danger.