Klauzula moralności (publicznej) w prawie polskim i europejskim jako przykład regulacyjnej, ochronnej oraz innowacyjnej funkcji prawa

Being a part of culture, law derives from it and at the same time has influence on it. In other words, law is both a product and a source of social axiology. Such liaisons are identified as social functions of law. The paper starts with some terminological remarks on legal system, legal order as well as on functions of law themselves. After dealing with characteristics of various functions of law the article turns into an attempt of describing the connection between (public) morality and law as such. A clause of public morality (morals) in the legal texts invites the social axiology into the legal order, which means both its protection, as a part of a legal system and risk of misinterpretation or even manipulation as an open texture term (a blurred phrase) with no legal definition attached. The aforementioned risk is even more significant since such clause serves the limitation of individual freedom named, depending on legal system as human rights and freedoms, fundamental rights or constitutional freedoms. The conclusion that derives from the paper is that the lack of the legal definition for (public) morality leads to making use of the established case-law that shows the alternative tendencies: one to unification or at least  europeanisation of the legal standards and another one to being interpreted in context of domestic social axiology that vary from state to state. Especially the European Court of Human Rights ECHR (but also the Court of Justice of the European Union CJEU)  avoids increasing its jurisdiction and focuses on proportionality principle issue and giving to the national bodies margin of appreciation in this area. Thus, the substance of (public) morality results from the social dialogue between various subjects within democratic state of law and its legal protection fulfills simultaneously guarantee, stabilizing, innovative, protective, motivational and educational function.