The Social Construction of Femininity in the Discourse of the Polish Constitutional Court

The paper outlines discursive strategies employed by the Polish Constitutional Court in its judgments in cases involving the concept of femininity. Application of Pierre Bourdieu’s perspective and Critical Discourse Analysis (CDA) allows for a reconstruction of the Constitutional Court’s ideological patterns, and, consequently, hidden political contents. It also reveals an area of symbolic power and the role of legal institutions such as Constitutional Court in shaping gender relations.

Both concepts (Bourdieu’s and CDA) seem to be compatible with each other. Bourdieusian perspective provides an explanation of how a legal institution, hidden behind universal and impartial structures, can use its structural position to impose several ideological visions of the world on society. Critical Discourse Analysis, in the perspective of Norman Fairclough, offers a general systematic framework which can be used to conduct innovative qualitative research of the Constitutional Court judgements.

The article argues that the Constitutional Court, being a legitimised interpreter in the legal field, is also one of the key institutions of power. By using neutralising language procedures it often contributes (occasionally in a way imperceptible to itself), to preserving social order, differences, and inequalities, particularly in cases regarding femininity. By identifying several argumentative strategies, the research shows how one vision of “femininity” and “female” (as well as other implied terms, such as “motherhood”, “family” etc.), is constructed, and consequently supported in selected judgements. This aspect goes unnoticed by the traditional legal theory which does not allow for reaching the subsurface structures of argumentation. The effectiveness of symbolic power stems directly from these surreptitiously imposed mental schemata. Resulting from these argumentative strategies is a naturalised social order, arbitrariness of which is misrecognised, and particularisms universalised. They are taken for granted and because of this, there can be no social discussion regarding them.