The Culture of Private Law in Central Europe After Enlargement: A Polish Perspective

Abstract

On the basis of an analysis of selected pieces of legal discourse produced by the principal practices of Polish legal culture, the paper concludes that the said culture can be characterised as being highly positivist and dogmatic (formalist). This includes such features as a very narrow understanding of the notion of ‘sources of law’ (which are limited to written law but exclude e.g. precedent), textualism as the main approach to legal interpretation, as well as a high degree of abstraction of legal thought. These characteristics of Polish legal culture are explained by historical factors, especially the influence of 19th century Western European legal formalism, subsequently strengthened and preserved during the period of Actually Existing Socialism. In contrast, the style of the European Court of Justice is described as more pragmatic, and in particular open to the idea of precedent. It is argued that the exposure of Polish judiciary to European law will help to move the judicial discourse from formalism and dogmatism towards transparency and realism. The paper also notes the frequent use of Latin maxims in Polish case-law and treats it as a characteristic feature of Polish legal culture.

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