<abstract xmlns="http://www.w3.org/1999/xhtml"><p>This article does not to seek a universal answer to the question of what morality or public morals are; rather it focuses on the issue of morality as grounds for limiting constitutional rights and freedoms. We narrow the problem to constitutional practice, and in particular to the judgments of the Polish Constitutional Tribunal, which settles disputes centered around the freedom of humans and public morals. Public morals as grounds for limiting personal rights or liberties rarely appear on the Constitutional Tribunal’s docket. The Constitutional Tribunal does not conduct philosophical, moralistic or ethical discussions in search of the meaning of public morals. Judges tend to apply the concept in an intuitive manner. We argue that they limit it to a folk understanding, which may be explained as follows: do good and avoid evil. Judges assign meaning to the public morals clause by referring to their own experiences or seek insight into morality in public opinion polls, which may not be a reliable source of knowledge about what is good and what is evil (the primacy of the “will of the majority”). Two difficult cases await the judgment of the Constitutional Tribunal. Each of them concerns major ethical and moral dilemmas. The first one relates to eugenic abortion, which is legal in Poland under certain conditions, while the second one involves the relationships of homosexual couples, which are not currently subject to legalization. The Constitutional Tribunal is not ready to solve these cases, making uses of public morality as grounds for limiting constitutional rights and freedoms.</p></abstract>

This article does not to seek a universal answer to the question of what morality or public morals are; rather it focuses on the issue of morality as grounds for limiting constitutional rights and freedoms. We narrow the problem to constitutional practice, and in particular to the judgments of the Polish Constitutional Tribunal, which settles disputes centered around the freedom of humans and public morals. Public morals as grounds for limiting personal rights or liberties rarely appear on the Constitutional Tribunal’s docket. The Constitutional Tribunal does not conduct philosophical, moralistic or ethical discussions in search of the meaning of public morals. Judges tend to apply the concept in an intuitive manner. We argue that they limit it to a folk understanding, which may be explained as follows: do good and avoid evil. Judges assign meaning to the public morals clause by referring to their own experiences or seek insight into morality in public opinion polls, which may not be a reliable source of knowledge about what is good and what is evil (the primacy of the “will of the majority”). Two difficult cases await the judgment of the Constitutional Tribunal. Each of them concerns major ethical and moral dilemmas. The first one relates to eugenic abortion, which is legal in Poland under certain conditions, while the second one involves the relationships of homosexual couples, which are not currently subject to legalization. The Constitutional Tribunal is not ready to solve these cases, making uses of public morality as grounds for limiting constitutional rights and freedoms.

Freedoms and Rights Versus Public Morals: Notes on Constitutional Practice in Poland

University of Warmia and Mazury in Olsztyn, Faculty of Law and Administration

University of Warmia and Mazury in Olsztyn

Baltic Journal of Law & Politics

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

This article does not to seek a universal answer to the question of what morality or public morals are; rather it focuses on the issue of morality as grounds...

Freedoms and Rights Versus Public Morals: Notes on Constitutional Practice in Poland

Publié en ligne: 23 oct. 2019

Pages: 137 - 154

Reçu: 29 avr. 2019

Accepté: 19 août 2019

DOI: https://doi.org/10.2478/bjlp-2019-0006

Mots clés
Public morality, rights and freedoms, Constitutional Tribunal, morality, constitutional rights and freedoms

© 2019 Dorota Lis-Staranowicz et al., published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Freedoms and Rights Versus Public Morals: Notes on Constitutional Practice in Poland

Publié en ligne: 23 oct. 2019

Pages: 137 - 154

Reçu: 29 avr. 2019

Accepté: 19 août 2019

DOI: https://doi.org/10.2478/bjlp-2019-0006

Mots clésPublic morality, rights and freedoms, Constitutional Tribunal, morality, constitutional rights and freedoms

© 2019 Dorota Lis-Staranowicz et al., published by Sciendo

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License.

Mots clés
Public morality, rights and freedoms, Constitutional Tribunal, morality, constitutional rights and freedoms