Protection of Christian values – penal populism or a rational decision on criminalization?

Abstract

Arguments referring to natural law, (public) morality, religion or Christian values are very often put forward in debates on the existing or planned criminal law provisions criminalizing specific behavior. A prohibition on behavior contrary to the scriptures or the teaching of the Church on pain of criminal penalties encompasses not only abortion, but also euthanasia, (paid) surrogate motherhood, paid donation of organs for transplantation, sterilization, contraception, prostitution and bigamy. The arguments presented for the protection of Christian values are oftentimes correlated with the protection of human dignity. This article seeks to address the issue whether such a "pre-legislative" measure (reliance on the protection of Christian values) is a form of penal populism. Parliamentary and non-parliamentary discussions conducted during work on the particular provisions of the Criminal Code were form the basis for analysis, with particular emphasis placed on arguments in favor of criminalization of the aforementioned behavior. The findings were confronted with the concept of legal interest in criminal law and the concept of human dignity in the Polish legal system (and its place in repressive law). The said "religious values" and the need to protect them were subject to analysis conducted against this background and underpinned by the constitutional principle of proportionality of the limitation of human rights and freedoms. The operational tools were not only established definitions of populism, including penal populism, and a Weber’s ideal type, i.e. a set of empirically perceived properties of populist style and perspective, sometimes called "the populist syndrome." The ultimate objective of this article was to establish whether the cases under analysis involve religious populism or a rational decision on criminalization.