Academic journal article Polish Sociological Review

Sacred Law and Profane Politics the Symbolic Construction of the Constitutional Tribunal

Academic journal article Polish Sociological Review

Sacred Law and Profane Politics the Symbolic Construction of the Constitutional Tribunal

Article excerpt

Abstract: The paper presents the symbolic dimension of the (re)production of Poland's Constitutional Tribunal, which is considered to be a model legal-political institution. Paying close attention to meaning, narrative, symbolic codes, and rituals, the authors object to a reductionist explanation, based on instrumental thinking and conscious and material interests, of the legal institutions of power. In accordance with neo-Durkheimian cultural sociology, the Tribunal is presented here as an institution created through binary symbolic codes (sacred/profane), and reproduced, in crisis situations, in performative acts constituting moments of ritual purification. The dominant narrative legitimizing the Tribunal counterpoises 'sacred' law with 'profane' politics in order to superimpose subsequent homological classifications (rational/irrational, pure/impure, universal/particular). The Tribunal's symbolic power is thus hidden within a thick web of meanings, which invisibly reinforce its authority.

Keywords: Constitutional Tribunal, neo-Durkheimian cultural sociology, meaning, ritual, legitimization, symbolic code


In this article we would like to present the crucial, yet overlooked, symbolic dimension of Poland's Constitutional Tribunal (Constitutional Court). More broadly, our aim is to give an overview of the symbolic aspect inherent in social life, particularly in the context of law and its institutions, as this has been only partially noticed in numerous writings focusing on rational and instrumental questions.

We believe that in the field of legal studies, as in political sociology (viz. the neo-Weberian approach; for a critical review see Alexander 2013), there is a strong anti-cultural tendency to stress rational rules, clear interests, and objectives pursued by an informed choice of means, where the symbolic and cultural layers are only an addition (see Kertzer 1988). In this manner the symbolic and ritual features related to culture-determined emotions become mere epiphenomena of other elements, such as the social structure (Alexander and Smith 2003). When the 'cultural approach' is referenced directly (viz. cultural New Economic Sociology), the symbolic layer is rarely researched internally, with a detailed hermeneutic analysis of subsequent layers of meaning (Alexander 2011). However, a certain number of approaches have recently emerged which prioritize symbolism and the related ritualism. Similar claims can be made thanks to the revival of classical approaches, and especially references to the last works of Émile Dürkheim (2001), who stated very clearly that the modern world is not as 'disenchanted' as proponents of Enlightenment rationality might have expected. Thus neo-Durkheimian sociologists analyse symbolic dimensions and deep cultural meanings, codes, and narratives even in areas that seem to be dominated by conscious material interest, pure instrumental actions, and/or rational rules. This applies to the world of economy (Alexander 2011; Tognato 2012), politics (Alexander 2010), and war and punishment (Smith 2005, 2008).

These types of analysis, which object to materialist and instrumental reductionism, and thus enrich our understanding of the social world and human action, are only partially realized in the research field of law and legal institutions (see Skqpska, Czapska, and Kozlowska 1989; Carlson and Hoff 2000; Alexander 2006). This paper intends to follow this line of enquiry. As will be shown on the basis of Poland's Constitutional Tribunal, the law is not as 'rational' and 'disenchanted' as is commonly assumed, and the legitimization of legal institutions is not driven solely by formal procedures, heuristic models, ideal types, or by culture (perceived as static, instrumental, or functional). Legal institutions are based on almost mythical thinking, developed in subsequent legitimizing narratives, and supported, particularly in crisis situations, by rituals. This does not mean, however, as representatives of neo-Durkheimian cultural sociology might want, that power, interests, and culture can be separated (see Alexander and Smith 2003). …

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