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in association with the Centre for Socio-Legal Studies and Wolfson College, University of Oxford

Poland’sConstitutional Crisis:

Facts and interpretations

Marcin Matczak

The Foundation for Law, Justice and Society

ContemporaryIssues

Policy Brief

www.fljs.org

www.fljs.org

This policy brief presents the crucial events of ‘the Polish constitutional crisis’, and what has

been widely described as a backsliding on the part of Poland into authoritarianism.

It attempts to explain the nature and possible causes of the crisis, offering three

explanations: (1) historical, originating from the smooth, non-punitive nature of the post-

Communist transition; (2) legal, relating to the excessive formalism of Polish legal culture;

and (3) sociological, as a crisis of liberalism and of political identification among the youth

and across society at large.

Executive Summary

POLAND’S CONSTITUTIONAL CRISIS: FACTS AND INTERPRETATIONS . 1

2 .POLAND’S CONSTITUTIONAL CRISIS: FACTS AND INTERPRETATIONS

Introduction

The Polish constitutional crisis began in November2015, just after Poland’s governing party Prawo ISprawiedliwosc (which translates as Law and Justiceand is commonly abbreviated to PiS) won thecountry’s parliamentary elections, and is characterizedby two principal phases. The first stage consisted incancelling the earlier appointment of fiveConstitutional Tribunal judges and packing theConstitutional Tribunal with new judges, as well as in aseries of attempts to commandeer the ConstitutionalTribunal by enacting six bills intended to paralyse itsoperations. This first stage ended in December 2016,when the new head of the Constitutional Tribunal wasappointed by the President of the Republic.

The second stage of the crisis started at thebeginning of 2017 and consisted in the politicaltakeover of the National Council of the Judiciary, aconstitutional body responsible for protecting theindependence of judges, and for their appointmentand promotion, as well as in commandeering theSupreme Court.

Stage I: Legislative offensive against theConstitutional Tribunal

The first crucial event of the Crisis came when thenewly elected Parliament, in which PiS gained amajority, cancelled the appointment of the fiveConstitutional Tribunal judges made by the previousParliament. Just after this, the new Parliamentappointed five new Constitutional Tribunal judges. Infact, the previous Parliament had overstepped itsconstitutional rights, as it only had the right toappoint three, not five judges to the ConstitutionalTribunal. However, the new Parliament’s responsewas both premature and disproportionate, andconstituted a clear example of court-packing. The

response was premature because a constitutionalreview of the previous appointments was alreadyunderway, and it was disproportionate becausethree out of five of the previous appointments wereabsolutely compliant with the Polish Constitution.

Some of the events that took place at the beginningof December 2015 would not seem out of place in apolitical thriller. In a late-night sitting just before theConstitutional Tribunal was to assess theconstitutionality of the appointments, the lowerHouse of Parliament (the Sejm) cancelled theappointments of the judges elected by the previousParliament and appointed five new ones. The newlyappointed judges rushed to the presidential palaceto be sworn in by the President later that night, andthen rushed from the palace to the ConstitutionalTribunal building to take on their duties. The newlyappointed judges were accompanied by the agentsof the Government Protection Bureau into theConstitutional Tribunal building and given officespace, despite the doubts concerning the legality oftheir appointments.

The following day, the Constitutional Tribunal issuedits awaited verdict confirming that three out of thefive previous appointments were entirelyconstitutional. It was against such a verdict that theParliament had taken such extraordinary eleventh-hour measures. Despite the positive verdict, thePresident refused to swear in the previouslyappointed judges on the grounds that all fifteenplaces in the Constitutional Tribunal were nowalready occupied, thanks to the late-nightappointments. This resulted in a legal limbo: threelegally appointed judges could not take their placesin the Constitutional Tribunal, and meanwhile thePresident of the Constitutional Tribunal, AndrzejRzepliński, did not assign cases to the three pseudo-judges with whom PiS had packed the court.

Poland’s Constitutional Crisis:Facts and interpretations


The months that followed were marked by apermanent conflict between the Parliament and thePiS government on the one side and theConstitutional Tribunal on the other. Thegovernment refused to publish the criticalConstitutional Tribunal verdict and neglected others.They also made six attempts to paralyse theoperation of the Constitutional Tribunal bylegislative enactments.

The key moment of the Crisis took place in March2016, when the Constitutional Tribunal heard thecase concerning the constitutional review of the PiSgovernment’s amendment to the ConstitutionalTribunal law. The Constitutional Tribunal operatedwithout the three pseudo-judges in the panel andrefused to base their operations on the procedurestipulated by the new law while assessing it. Instead,the Constitutional Tribunal based its proceedingsdirectly on the Polish Constitution. TheConstitutional Tribunal’s objective was to avoid aCatch-22 situation: if it were to base its proceedingson the new rules and then find themunconstitutional, the legal validity of that veryverdict would be undermined.

The Constitutional Tribunal’s verdict was to strikedown the amendments proposed by the government.However, its decision not to apply the new law whensimultaneously assessing it provided the PrimeMinister, who claimed that the verdict wasprocedurally flawed, with a justification for notpublishing it. This claim was made with little regardfor the fact that the verdicts of the PolishConstitutional Tribunal are final and irreversible by anyauthority, including a hostile head of government.

Andrzej Rzepliński, the Head of the PolishConstitutional Tribunal, played a crucial role duringthis first year of the crisis. Not only did he bar thepseudo-judges from sitting on the ConstitutionalTribunal panels, he also strongly criticized the PiSgovernment for undermining the rule of law.Rzepliński’s term of office ended in December 2016,and with it ended the first stage of the Crisis.

Stage II: Assault on the independence of thejudiciary

The next stage of the Crisis, comprising thecommandeering of the National Council of the

Judiciary and the Supreme Court, began in January2017. After Rzepliński’s retirement, the ConstitutionalTribunal was fully taken over by PiS with theirappointment of a new head, Julia Przylebska, anddeputy head, who was one of the pseudo-judges.This raised significant constitutional doubts, notleast because Rzepliński’s Deputy, Judge Biernat,should have replaced him after his retirement.

Predictably, the first decision of the new head of theConstitutional Tribunal was to allow the threepseudo-judges to sit on its panels. Somewhat lesspredictably, several weeks later, the new headsuspended three judges appointed in 2010 inresponse to the Minister of Justice questioning thelegality of their appointment. In a further move toclear the decks, Ms Przylebska forced Judge Biernatto take leave from his duties.

The result of these three actions was that theConstitutional Tribunal operated with eleven judges,six of whom were appointed by the PiS government.Such a configuration allowed for the setting up ofnew panels or changing the previously set panels(the latter with no legal basis) in a way whichensured a majority of the judges elected by PiS oneach one.

The commandeering of the Constitutional Tribunalallowed the PiS government not only to remove anobstacle to promoting their often-unconstitutionalpolicies but to actively use the ConstitutionalTribunal for political ends. A particularly shockingexample of this – and the next step in underminingthe rule of law — took place on 20 June 2017, whenthe Tribunal heard a case concerning the election ofthe National Council of the Judiciary of Poland. Thisconstitutionally enshrined body is responsible forpreserving the autonomy of Poland’s courts and theindependence of its judiciary; its main power is toappoint new judges and make decisions regardingthe promotion of currently serving ones.

The Constitutional Tribunal decided that certainprovisions of the Act governing the National Councilof the Judiciary were unconstitutional. By doing so,the Tribunal conceded to the motion of the Ministerof Justice, who had questioned those provisions inthe course of work on reform of the Council. Themotion to the Constitutional Tribunal was asmokescreen to confuse the public and allow the

government to take control of the courts at a lowerpolitical cost. And so, with the help of the recentlysubjugated Constitutional Tribunal, the Ministerreceived a carte blanche to demolish the bodyconstitutionally responsible for the protection of anindependent judiciary.

As a consequence of the Tribunal’s verdict, theParliament was able to pass a bill which gavepoliticians full control over the appointment andpromotion of judges. Parliament also passed a bill ofamendment to the Courts Act which gave theMinister of Justice huge influence over thepresidents heading the work of the courts.

As if this were not enough, soon another bill on thejudiciary was passed to the Sejm which furtherconsolidates PiS’s plans for unitary state power. Theparty’s executive takeover of the National Council ofthe Judiciary would be of little use if there were novacancies that board could fill. The aim of the latestbill targeting the Supreme Court was to createvacancies at the very top of the judicial hierarchy.Almost overnight, all Supreme Court judges, exceptthose chosen by the Minister for Justice, were to besent into retirement.

This flagrantly unconstitutional onslaught on theindependence of the judiciary showed how far PiS’smulti-stage process of violating the PolishConstitution had progressed. The government’sattack on the separation of powers was objected toin almost all legal environments: advocate andattorney-at-law councils and even prosecutors’associations. The changes were condemned by theparliamentary opposition, which has called for massprotests. Strong criticism has also come from abroad.

In 2017 I was sent a paraphrase of provisions of theConstitution that summarized the situation well. Theauthor wrote that after control has been taken of theNational Council of the Judiciary and the SupremeCourt, article 10(2) of the Polish Constitution on theseparation of powers will read as follows. ‘Legislativepower is exercised by PiS, executive power isexercised by PiS, and judicial power is exercised byPiS.’

Popular protests and presidential power grabsFollowing huge street protests in summer 2017against the legislative changes, President Dudavetoed the draft legislation that would have allowedPiS to commandeer the National Council of theJudiciary and Supreme Court. That glimmer of hopefor those increasingly disillusioned with thePresident’s distance from his own political stable wasin fact an ignis fatuus, a will-o’-the-wisp.

President Duda’s veto of the legislation did not signala refusal to sign it in on the grounds of merit: in fact,he did not present any criticism of the draft law, andhis silence on this matter showed his acceptance ofthe principle (promoted by PiS in their draftlegislation) that members of the Council should infuture be appointed by politicians rather than byjudges, as had previously been the practice. Rather,Duda’s objection was a means to his own politicalends: he chose to propose his own bills for takingpolitical control over the judiciary, thus wrestingcontrol over the Supreme Court from the Minister ofJustice, under whose power the legislation hevetoed would have placed it.

Ultimately, the President proposed new bills on theNational Council of the Judiciary and the SupremeCourt in September 2017, and after several weeks ofprivate consultations between him and the leader ofPiS – who does not even hold any public office –became law. The outcome of these entirely opaquenegotiations came in the final set of presidentialproposals, namely:

n the removal of 40 per cent of judges from the

Supreme Court, including its President, thereby

shortening her constitutionally enshrined term of

office;

n the establishment of a new Supreme Court

Chamber which will be responsible for assessing

the validity of elections;

n the appointment of a new National Council of the

Judiciary whose judicial members will be,

contrary to the Polish Constitution, elected by

Parliament.

This flagrant upsetting of the balance of powerbetween the judiciary and the legislature, where PiShave a majority, led judicial associations and the

4 . POLAND’S CONSTITUTIONAL CRISIS: FACTS AND INTERPRETATIONS


political opposition to call for a boycott ofappointments to the new National Council of theJudiciary.

The call was a success: out of 10,000 Polish judges,only eighteen agreed to stand for appointment tothe new National Court Register (KRS). Anoverwhelming majority of them have links to theMinister for Justice and their candidacies arequestionable to say the least. After it has beenappointed, the National Council of the Judiciary willbe completely dependent upon politicians, allowingthem to influence the process of appointment of allPolish judges. This influence will extend to thosewho take up seats in the new chambers of theSupreme Court.

To conclude, the commandeering of theConstitutional Trubunal and the National Council ofthe Judiciary displays two characteristics familiar tothose who study authoritarian systems. First, itdisplays a preference for mediocre appointments,the choice of second-rate actors to play starringroles. Second, the appointments represent aphenomenon known as the ‘hollowing out’ ofinstitutions responsible for protecting the rule of law.When the core of those institutions, which isindependence, is removed, they become usefulprops for the ruling powers to move about the stagein a purely theatrical show of legitimacy.

The historical explanation: Post-Communisttransition, lustration, and law as obstacle tojustice

In order to understand the current Crisis, one needsto go back to the beginning of the Polishtransformation, namely to the year 1989. That wasthe year of hope for everyone who had sufferedunder Communism. Both the key players in the PiSgovernment and their supporters believed that thecollapse of Communism would bring to justice allthe servants of that regime. Yet the Polishtransformation went in another direction — adirection marked out by the ‘thick line’, announcedby the first post-Communist Prime Minister TadeuszMazowiecki. This thick line was to be drawn betweenthe present and the past; the consequence was thatno revenge was taken and that a smooth transitionensued.

For those who support PiS, such an approach wastantamount to treason. At the time, they perceivedthe roundtable talks between the pre- and post-Communist regimes as collaboration. Thatperception never abandoned them, and their desirefor vengeance went unfulfilled. The realization oftheir desire came close to fulfilment in 1992, whenAntoni Macierewicz, then Minister of Internal Affairs,attempted to reveal the list of those who hadcollaborated with the Communist secret service.What followed, however, was not revenge, but thedeposition of revenge-seeking parties from power.What was even worse for those people who soughtretribution, was that the new Polish Parliament,elected in 1993, enacted the first post-CommunistConstitution, in 1997, without the involvement ofthose parties.

It is for these historical reasons that both PiS andtheir supporters perceive the current PolishConstitution to be illegitimate. From their point ofview, the Constitution (enacted in 1997) promotesleftist and liberal values, including the protection ofacquired rights and the safeguards of proceduraljustice. They believe the Constitution was enacted inbad faith: that its real purpose is to protect thebeneficiaries of Communism and to secure the statusquo.

PiS’s suspicions concerning the legitimacy of theConstitution found confirmation (at least in theireyes) after the party gained power as the dominantpartner in a coalition government in 2005. One oftheir crucial political projects was the so-called‘Lustracja’ bill: a piece of legislation aimed atrevealing the cooperation of Polish citizens with theCommunist secret service. This legislation was struckdown by the Constitutional Tribunal in 2006 on thegrounds of non-compliance with Article 2 of theConstitution — the principle of the rule of law. TheConstitutional Tribunal found the ‘Lustracja’ bill’sdefinition of cooperation with the secret service tobe too vague: a charge perceived by PiS as a pretextfor not bringing the collaborators to justice.

Shortly after this decision by the ConstitutionalTribunal, the leader of PiS, Jarosław Kaczyński,coined the term ‘legal impossibilism’ to refer to thesituation as he saw it: namely, that the principles ofprocedural justice make it impossible to bring about

real, material justice. In this view, the Constitution isan implement whose purpose is to protect post-Communist elites and to block the rescindment oftheir rights, the revocation of their benefits, and theredistribution of their ill-gotten gains.

Analysing the Crisis from a historical viewpoint leadsus to the conclusion that the subjective experienceof the rule of law in Poland — in particular the beliefthat the law is an obstacle on the road to justice —created in the leaders of PiS and their supporters avery peculiar understanding of the relationshipbetween procedural justice and substantive justice.

For historical reasons, PiS leaders and supportershave no faith either in procedural justice or in checksand balances. Their frustration concerning whatothers perceive as a great Polish success, namely thesmooth transition from Communism toconstitutional democracy, impelled them towards amassive assault on the rule of law when their time towield power finally came.

The legal explanation: Excessive formalism

Those following the Polish constitutional crisis fromabroad may see it as a traditional clash between lawand politics. Analysed in Schmittian terms, law as asystem of rules represents an obstacle to therealization of the current political will, and as suchmust yield to politics. When law and politics clash,politics represents a set of values external to law;law, in turn, represents its own values, mostly formal,which cannot be reconciled with the external valuesof politics. Analysed in Radbruchian terms, lawsecures legal safety; politics promotes effectiveness.When law and politics clash, politics trumps law tochange the society in accordance with the politicalwill, even if this involves breaking the law.

From this perspective, the nature of the politicalattacks aimed at the rule of law in Poland may seemfamiliar: they are attacks through which politicalvalues prevail over legal values, and proceduraljustice yields to the promotion of material justice.The meaning of material justice is defined by thosewho won the elections. During the debate onnullifying the appointment of five ConstitutionalTribunal judges on 26 November 2015, theparliamentarian Kornel Morawiecki, said:

Law is something important but it is not sacred. (…)Above law stands the good of the Nation. If lawinterferes with this good, we shall not treat law assomething inviolable or unchangeable. What I sayis this: law shall serve us! Law that does not servethe nation is lawlessness!

A similar position was presented in the Report of theTeam of Experts appointed by the Speaker of theSejm (lower parliamentary chamber) to respond tothe Venice Commission’s 2016 reports concerningthe rule of law in Poland. ‘In the construction of ademocratic state based on the rule of law (such asPoland), the principle of democracy prevails over theabstract legal order, the latter being thequintessence of constitutional democracy’.

The above quotations may suggests that the currentattack on the rule of law in Poland resembles theold-school totalitarian attacks seen under theWeimar Republic or Communist Russia. Thoseattacks consisted in establishing a clear and explicithierarchy in which law is subservient to politics, andthe values of the latter prevail over those of theformer. However, the kind of attack on the rule oflaw we currently encounter in Central and EasternEurope is different: even if in unguarded momentspoliticians explicitly declare that politics shouldprevail over law, when they execute their policy andjustify it, they rather pay lip service to the law thanignore or dismiss it completely.

The reason why illiberal governments incontemporary Europe do not openly proceed withillegal action is easy to identify. The rule-of-lawvalues are well entrenched in public life andmemories of the totalitarian regimes that precededand followed World War II have not yet faded fromthe public memory. Politicians who wish to achievean unconstitutional goal, such as commandeeringthe judiciary, have to use a much more sophisticatedtechnique than overtly disregarding the rule of law.To succeed, they have to convince the general publicthey are acting in accordance with the law, whetherit takes the form of a national constitution or of EUregulations. The impression they want to produce isthat politics is subservient to the law, thus allowingtheir actions to appear legal even if their effects arenot. To do so, they draw on ostensibly legal tools toachieve illegal (unconstitutional) goals.



Paying lip service to the rule of law allows Poland’spoliticians to mask their attacks on theindependence of the judiciary. The disguisedcharacter of their attack makes it difficult for thegeneral public to recognize that an attack is reallytaking place. As a consequence, the public is notmotivated to defend the judiciary or itsindependence, thus giving free rein to politicians.What is more, the fact that that the attack on judicialindependence is carried out in a way that seems tosecure its superficial compliance with the letter ofthe law makes it difficult for the judiciary itself toexpose the real nature of the attacks.

The perpetrators of the new-school attack on therule of law go to great pains to convince others thattheir actions are justified within the existing legalframework. The main argument they provide is thattheir actions are compliant with the letter of the law— even if the consequences of those actions cannotbe reconciled with its spirit, as expressed in theConstitution.

The illegality of the new-school attacks on theindependence of the judiciary can be revealed onlyby a non-formalistic strategy, namely by showingthat those attacks infringe constitutional principles,even if they are compliant with isolated, bright-linerules, and by considering the real-life effects of theapplication of those bright-line rules. As severalstudies have shown, however, including a FLJS PolicyBrief published in 2005, judges in Central andEastern Europe have been trained in the tradition ofjudicial formalism, according to which formalcompliance of one’s actions with the law is sufficientbasis for their legality. In other words, to repel theattacks, judges must go beyond the letter of the lawand into the realm of its spirit. Yet, this is a step toofar for formalistically trained judges.

My thesis is that the rule of law crisis in Poland hasnot been caused so much by the strength of thepolitical attack on the rule of law but by theweakness of the defence mechanisms that shouldhave been triggered once that attack started. This isnot to say that all attempts to exploit formalisticjudicial reasoning as a basis for political attacks onthe judiciary were successful. The ConstitutionalTribunal, for instance, was able to defend itself

against the isolated interpretation of Article 197. Itdid so by refusing to base the constitutional reviewof the new law concerning the ConstitutionalTribunal’s operation, and based it directly onconstitutional principles. Alas, the ConstitutionalTribunal’s readiness to deploy a principle-basedargumentation to protect the independence of thejudiciary should be perceived as an exception ratherthan a rule. As a constitutional court whose sourcetext is principle-based, the Constitutional Tribunalhas a particular inclination to use principle-basedreasoning, but this inclination is not an entrenchedelement of the Polish legal culture as a whole.

The sociological explanation: Neo-authoritarianism and the crisis of liberalism

No constitutional crisis is only about the law. Even iflawyers in Poland and in the European Union have atendency to perceive the Polish crisis as solely a legalone, it is not. The violations of the Polish Constitutionand obligations arising from EU law have deepsociological grounds. This needs to be be kept inmind, especially by those responsible for building anargumentation that could alleviate the conflictbetween the Polish government and the EuropeanCommision.

Lawyers struggling with the assault on the rule oflaw in Poland face a multidimensional problem,resulting from the fact that a large section of Polishsociety has no time for the niceties of theconstitutional order, instead seeking reform toaddress social problems. The government’s narrativepresents the dismantling of the rule of law as thecure for several social ills, including historicalinjustice and the dangers of globalization. Withgovernmental propaganda presenting the assault onthe rule of law as a cure for multiple ills, thoseopposing the treatment are at risk of losing theirpatient. By perceiving the dismantling of the rule oflaw as a purely legal problem, the defenders of therule of law seem to be denying the very need fortreatment. The failure to take into consideration theunderlying social problems which have motivatedthis attack on the rule of law is a dangerousoversight on the part of those who wish to putPoland back on the road to recovery.

http://www.fljs.org/content/strategies-judicial-review

http://www.fljs.org/content/strategies-judicial-review

A recent sociological study carried out in a medium-sized Polish town may be of some help. According tothis study, the supporters of the governing partydisplay features of a neo-authoritarianism syndrome.What is neo-authoritarianism? The Polish people areready to provide their elected representatives withan absolute right to change the rules, including theconstitutional ones, even without the formallegitimacy to do so. The abstract legal order mustyield to the will of the people.

As for regular authoritarianism, its main elementsare:

n domination over the weak and the alien,

including ethnic and sexual minorities, refugees,

and whoever else can be perceived as an enemy;

n a preference for a politically effective strong-hand

approach to social problems;

n belonging to a national community that provides

its members with aspirations far beyond the

typical needs of a middle class.

All those elements can be explained by ErichFromm’s concept of ‘the authoritarian personality’.This concept, originally constructed by Fromm toexplain the psyche of the Germans under theWeimar Republic, provides an excellent basis for adiagnosis of Poland’s reversion to authoritarianism.

In essence, whenever social unrest occurs (the threatof terrorism, an immigration crisis, a difficult labourmarket) a feeling of uncertainty and danger spreadsand the government deftly capitalizes on it(Islamization of Europe, the threat of unemployment,and fear of disease). The broader social uncertaintyreinforces what Fromm identified as the socialmasochistic component of the authoritarianpersonality — the wish to dissipate in somethinglarger than oneself: in the idea of a nation,patriotism, in some grand plan imposed by acharismatic leader. This leader’s plan brings order tothe lives of those who cannot muster the strength toorganize their own. By making their world moreclearly defined, by making it clearer who is friendand who is foe, the leader’s plan gives suchindividuals the impression of being able to regaincontrol over their fate.

Aggressive criticism of supporters of the leader onlyincreases the sense of danger that has been instilledwithin them; in confirming the existence of enemies,such criticism enhances trust in the leader whointends to combat them. In Poland’s case, thismechanism explains the positive correlationbetween intervention by EU authorities into thePolish affairs and popular support for the governingparty.

The narrative provided by the neo-authoritarianparties also appeals to our youth. Young people are ageneration more interested in ‘freedom to’ than‘freedom from’, to use Isaiah Berlin’s famousdistinction. Unlike their parents and grandparents,they have never needed to fight for freedom fromcoercion, nor have they experienced oppression.Free from coercion and oppression, they have beenleft to organize their lives as they want. The problemis, they do not really know what to do with thisexcess of freedom and, returning to Fromm, theymay feel an urge to escape from it. Escape routes areprovided by such normative ideologies as patriotismand nationalism, which provide clear paths forthinking and acting. However anachronistic it maysound, patriotic values appeal to today’s youth, evenif the patriotism peddled to them by ourauthoritarian-inclined leaders is one of failure,sacrifice, struggle, and hate, not the patriotism ofvictory, tolerance, cooperation, and openness.

A recent notorious example of the appeal to patrioticemotions was Poland’s so-called Holocaust law, anew piece of legislation which criminalized the act ofaccusing the Polish nation of crimes againsthumanity. From a practical point of view, the lawdidn’t make much sense: the phrase ‘Polish deathcamps’ was only used sporadically before the lawwas enacted, and was effectively combated by acombination of NGOs, state bodies, and strategicallies. However, the law allowed PiS’ aggrievedsupporters to unite in an unprecedented defence oftheir nation against the whole world when its narrownationalistic agenda and ham-fisted promulgationraised eyebrows — and protests — worldwide. Thisfeeling of unity is exactly what the authoritarianpersonality craves, and what the current Polishgovernment is pleased to deliver, at whatever cost.



Returning to ideologies, but of the non-rule-imposing variety, liberalism joins the rule of law inbeing in crisis. Unlike nationism and patriotism, it is asocial notion for individuals who know how to leadtheir lives. The rule of law and constitutionalismunderpin the liberty of living one’s life without thethreat of coercion. However, a large number of ourfellow citizens do not have a clear idea of how tolead their lives and are relieved to be provided withready-made solutions. Liberalism has nothing tooffer them. Creating plans for people’s lives would bean anomaly in the liberal DNA, as it would limitpeople’s freedom.

Thus, liberalism by definition fails in creating anattractive narrative for people who are unwilling orunable to create one for themselves. In fact, forsome, the target of creating a social space free fromcoercion threatens them, as it obliges them to takeresponsibility for their own lives.

Conclusion

What lessons can we derive from Poland’spredicament? In line with my interpretations of thecrisis, I would propose three. First, the historicalinterpretation teaches us that there is no such thingas a complete and successful post-authoritariantransition. Transitional societies are like cancersurvivors — even when they seem healthy, theyrequire constant monitoring. Social frustrations need

to be addressed, especially if the style of thetransition did not give them room for adequateexpression.

Second, the legal explanation I propose teaches usthat to transform a legal order from a totalitarian oneinto one based on the rule of law requires more thanthe changing of the law in the books. The way thelaw is applied by the courts and the way the legalreasoning is carried out is of at least equalimportance. The promotion of the rule of law in thepost-Communist countries must transform what wecall the law in action by encouraging judges toembrace a more holistic, principle- andconsequence-based approach to applying laws. Aswe have seen, a superficial understanding of the ruleof law as compliance with bright-line rules only, anda lack of understanding of the role principles play inthe legal system, may both contribute to backslidinginto authoritarianism.

Third, the sociological interpretation teaches us thatfreedom never can be taken for granted. Even if mygeneration remembers a world in which, as ourConstitution states, ‘fundamental freedoms andhuman rights were violated in our homeland’, ourchildren do not. To secure the freedoms of thosewho, for historical reasons, do not fear that they willlose it, we need to rewrite the liberal values into anew language. This is no easy task.

The Foundation The mission of the Foundation is to study, reflect on,and promote an understanding of the role that lawplays in society. This is achieved by identifying andanalysing issues of contemporary interest andimportance. In doing so, it draws on the work ofscholars and researchers, and aims to make its workeasily accessible to practitioners and professionals,whether in government, business, or the law.

Marcin Matczak is an associate professor at theUniversity of Warsaw and a partner in DZP, one of thelargest Polish law firms. His academic interests coverlegal theory and legal philosophy. His publicationsinclude articles and books on theories of legalinterpretation, judicial reasoning and judicialformalism, with special focus on the application ofphilosophy of language in legal philosophy. He hasbeen involved in the Polish constitutional crisis sinceits beginning, first as attorney representing NGOsbefore the Constitutional Tribunal, and later ascommentator publishing among others onVerfassungsblog (verfassungsblog.de).

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