Dr hab. Maciej Wojciechowski from the Department of the Theory and Philosophy of State and Law at the Faculty of Law and Administration of the University of Gdańsk has won first prize in the prestigious competition - organised with two interruptions since 1950 - of the 'Państwo i Prawo' monthly for the best habilitation thesis. The book " Judicial disputes. Separate sentences in Polish courts' was published by the UG Publishing House.

The 'Państwo i Prawo' (TN: 'State and Law') monthly is a legal journal in Poland covering all areas of law. It has been published uninterruptedly since 1946. It addresses the most important and up-to-date theoretical and practical problems of interest to the legal world.

Elwira Romaniuk: - What does this award mean to you?

Dr hab. Maciej Wojciechowski: - It is not easy to say briefly. Certainly the crowning of hard work. I devoted several years of my life to this, so I would say that it is also a sweetening of the bitterness of passing. I wrote the application for the research grant in 2014 when Poland was a different country. The grant started in 2015. My children were young. Today, my son is a teenager and my daughter is a woman. The book I finished in 2018 and published in 2019 cost me a lot of health, stress and uncertainty. When I started, habilitation was an obligation, so there was extra time pressure. I felt great energy to pursue the project, but I wasn't sure what to look for, what to focus on and what to leave out. There were many things I was doing for the first time, many things I didn't know or know how to do. Lawyers in Poland don't do empirical research, and I made such an attempt. I think that determined the award for me. At the same time, I learnt a lot about what I was researching, which was the judicial environment, but also about myself. In a nutshell, it was such a great adventure that, in the end, this experience became more important than just getting a habilitation, which in the so-called meantime was no longer obligatory.

- There is a note about your book on the website of the UG Publishing House. I will quote from it: "an attempt is made in the work to describe the role of the participants in the deliberation, their feelings, motivations or strategies with which the dissenting vote is sometimes submitted". What are the motives for filing a dissenting opinion?

- I mainly studied administrative courts, which deal with taxes, construction law, etc., so rather technical issues. The way judges talk about it is that they file them when they want to stay in line with themselves. It is not about issues such as the death penalty and conscience. It is about the consistency of their actions as judges. The condition for filing a dissenting opinion is the way the work is organised in the administrative court. For example, a judge in a given 'A' formation (administrative courts adjudicate by three judges), was the rapporteur judge, i.e. the one who prepares the draft decision. Let us say that the 'A' formation decided in accordance with his proposal. Six months later, the same judge deciding a similar case, but already 'B', sits in a different formation and wants to take the same position as in case 'A'. The judges in case "B" disagree with him. And then the judge considers whether he wants to take such a strong position and file a separatum to defend his view from 'A', whether the case is important for the system or whether it is necessary to signal to the higher instance that it might be worthwhile to approach the case from another side. However, we have to remember that this is a very rare situation in the Polish administrative judiciary. Above all, judges must be very confident in their own right and have knowledge of the case in which they were to submit a vote of separation, which is not at all obvious. Looking from the outside, we assume that each judge knows the case at about an equal level with the other two. It turns out that this is not necessarily the case. The rapporteur judge is the best informed, and the others know the case from his account of it in deliberations. The rapporteur knows the case from the file, they generally do from his mouth. 'Generally', because they can look at the file, check, etc. We do not know how often they do this. The level of knowledge of these judges is a delicate and ambiguous matter. At the same time, judges genuinely value collegial decision-making. I write more extensively about this in the book.

- 'In the cross-section of the entire work, the dissenting opinions appear as an example of 'disputes within the family' - what does this mean?

- When one reads the reasoning of a dissenting opinion one thinks to oneself that it might as well have been the reasoning of the panel. The justification of a dissenting vote is not some crazy invention of a maverick judge. Judges know that a case can be looked at differently, but they make a certain choice when it comes to e.g. how to interpret a rule. Judges have told me of interesting situations where they have agreed on who would file a dissenting opinion because they thought the case called for it, but the wording of the judgment could not be different because of the wording of the rules. The law is not mathematics, it is about axiology, it is not the case that someone will write something completely implausible in a dissenting vote. However, it should be noted that the term 'family disputes' was current until 2015. Leaving aside individual situations from earlier years, disputes were no longer exclusively 'family'. Very sadly, they can now also be between two 'families'.

- I would still like to ask about the age of the judges submitting the vote of separation, does the older one gets, the more he or she leans?  

- My data shows that in the administrative courts, the dissenting opinion is most often submitted by representatives of the middle age bracket, from 41 to 50, which can be very loosely interpreted to mean that young judges may feel various roadblocks to making such a decision, while older judges, on the other hand, may lack motivation because, among other things, they have to write a justification for their separatum, and this always takes time and does not bring any splendour. It is different at the Tribunal, but that is a separate and complex story.

- Are there any of the most common cases where the dissenting opinion is an integral part of the process?

- As far as the Tribunal is concerned, it is well known that these are topics that can be described as great disputes, such as abortion, vetting, the relationship between the Catholic Church and the state, the relationship between the executive and the judiciary. It is worth noting that the bans of the executive against the judiciary did not start at all in 2015. They had been there before, but before that, it was precisely the kind of crusade that I refer to in the paper as a dispute over trust. In 2015, the undermining of the foundations began on a completely different scale. Interestingly, I have also included matters relating to allotment gardens among these 'great disputes'.

- Allotment gardens the subject of a big dispute?

- I have used the term 'great disputes' to describe situations of 'cyclical returns' to the Tribunal of laws on an issue and the fact of dissenting sentences to judgments on those laws. And this was the case with the laws on allotment gardens. I called them disputes about the social past. Contrary to appearances, these were interesting cases that led me to formulate the thesis that often the very subject of the dispute escapes clear definition. In dissenting opinions, one can often read that 'the subject of the dispute is X', while another judge or the reasoning of the panel states that 'the case is about Y'. The disputes around allotment gardens can be read in purely legal terms and then relate to the question of whether the legislator, by granting the Polish Allotment Association a claim to establish perpetual usufruct in its favour, has violated the ownership rights of municipalities. But more broadly, it can be interpreted as a dispute over the social commune's communist past and the modernisation that opposes it. This is compounded by the environmental discourse related to the way allotment holders (generally older people) spend their leisure time, but also by the way the allotment association itself is perceived as a monopolist and a relic of the communist era. Complex and multifaceted were these issues.   

- Thank you for the interview.

The award ceremony took place on June 27 this year in Warsaw at the Staszic Palace.