Regardless of which side you sit on, it is undeniable that Poland's ruling Law and Justice (PiS) party has ushered in a revolution in the legal system. PiS has touted the idea of creating, as in Hungary, an "illiberal democracy." This is in opposition to liberal democracy that has served as the model for exiting communist single-party rule in the late 1980s and early 90s. In theory, a liberal democracy thrives off of the conflict between political visions. In an open liberal society and on the free market of ideas, people decide for themselves what is the best pathway toward the "good life" as each individual defines it. The British philosopher JS Mill (1806-1873), pointed out that it is through these "collisions of adverse opinions" that we can arrive at any sense of the truth.[1]
What is markedly different about the recent trend in populist politics around the world is the conviction that there is no room for dissent. Simple disagreements over policy are no longer permitted. In their hubris, populists seem to say that they are infallible.
The populist narrative claims that the "old" system has been so corrupted by bad actors over the preceding years, that the existing order can be treated with contempt. And precisely to that point, PiS transformed the legal system to ensure that their authority cannot be challenged within the normal system of checks and balances. PiS began by deconstructing the Constitutional Tribunal (TK), a body charged with ruling on the constitutionality of laws passed by the legislature. President Andrzej Duda, also from PiS, refused to swear in judges who were legally nominated to the constitutional court. The ensuing conflict paralyzed the court. If the TK did decide on anything, the prime minister Beata Szydło refused to "publish" the ruling, thus rendering it null and void. Then PiS nominated new judges, selecting a new head of the court. This all according to laws passed by PiS, when the only institution that could provide oversight was the Constitutional Tribunal itself. This opened the way for a series of laws that were clearly in conflict with the constitution, but can no longer be challenged because the Constitutional Tribunal has been completely neutered. PiS then went after the civil service, the state-owned media, the judiciary and a number of other institutions. All these changes could theoretically be challenged, if the president decided to refer these laws to the Constitutional Tribunal. But of course none of that matters at all in the current situation.
I doubt that even the most staunch supporters of the ruling party would disagree that these changes to legal system have taken place. The disregard for the constitution is rather a point of pride precisely because PiS views the constitution as unlawful in its own right. (PiS claims that secret Communists wrote the constitution, so it's corrupted) And if the constitution is not the basis of their authority, then they derive their power from a claim to represent the "people." As the story goes, the people gave them a majority in the parliament (though only 37% of votes in 2015), and thus endowed PiS with absolute sovereignty. Indeed the assertion that PiS represens the "sovereign", i.e. the "real people" or "real Poles," has been the common refrain from politicians in response to accusations of lawlessness.
All of this raises a more serious set of questions about what legality means. A recent cover article entitled "Lawless Law (Bezprawne Prawo)" in the Polish weekly Polityka claimed that PiS has shown itself to be eerily influenced by the writings of German legal philosopher Carl Schmitt (1888-1985). In particular, the article's author Ewa Siedlecka cites the concept of "political Decisionism" as the basis of PiS's legal theory. At first glance, this is simply the cynical view that because the government has done it, then it must be legal. But it is worth a brief historical exploration of what exactly this means because of its consequences for the rule of law.
Carl Schmitt's Legal Theory
Schmitt came to prominence in the turbulent years following the First World War. His home country of Germany had experienced a military defeat, an abdication of the Kaiser, a socialist revolution and then parliamentary malaise. It was a feverish period when the old structures of monarchy and empire had collapsed in Europe and liberal democracies popped up in nearly every country. In the centuries prior, the basis of legal systems could be said to be rather simple. In a traditional state, one could track the authority derived from every small state action up the ladder to the emperor or king, but this is no longer possible in a liberal democratic system. New political systems represented a problem for locating the source of legitimate authority on the continent without the rule of monarchs. In the 1920s, positivists, such as Austrian jurist Hans Kelsen (1881-1973) became the most influential legal theorists.
Positivist legal thinking fetishized the codex as a structure of perfect norms, or a series of “ought” propositions laid out in rational terms by the legislature. Kelsen proposed the creation of the Grundnorm, an extremely and perhaps purposefully vague term. The Grundnorm is the idea that a chain of legal norms can be traced down from the constitution, forming a chain (system) which would result in the “concretization of law.”[2] Kelsen skirts around the question of sovereignty by promoting the idea that all norms are valid based on their role in the legal system as a whole. So, for example, all laws governing taxation could be considered legitimate as long as they are laid out in a normative system, the codex.
The problems with this theory are many, but one particular issue arises when we consider what it means to be a rule of law state (Rechtsstaat). The concept of the Rechtsstaat describes a state which allows for negotiation between citizen and government through the use of an established legal system, presumably to limit the power of the state. The rule of law is also supposed to provide stability, some level of certainty about the carriage of justice and, perhaps most importantly, equality before the law.[3] In a liberal society, no one (theoretically) should be above the law.
Carl Schmitt, in many of his works, provides a biting critique of Kelsen and raises some uncomfortable questions for liberals. The center of the concern is how we arrive at Kelsen’s normative legal system, which in the 1920s took place through parliamentary procedure. Schmitt questions whether simple parliamentary majority can reflect the “popular will” as it was intended. Moreover, if proposals become law through the negotiation between political parties, some of whom may have no respect for the law, then can we say that these can be considered legitimate?[4] Schmitt raised the idea that even within the liberal constitutional order, there can arise parties or politicians who want to destroy that order from the inside. Schmitt had in mind the Nazi party as he wrote his book Legality and Legitimacy in 1932, but this legal cynicism has once again risen to prominence today.
Looking at the case of Poland, Schmitt might claim that by virtue of the fact that PiS has managed to circumvent the constitution without bearing any consequences, merely supports the legitimacy of these moves, even if their legality is questionable. As Schmitt wrote in one of his more well-known works, Political Theology, "Sovereign is he who decides on the exception."[5] In this case the exceptions are manifold. Take for example the fact that PiS leader Jarosław Kaczyński was accused of fraud by a would-be Austrian investor. Polish law requires that the prosecutor at least address the complaint within 30 days, but since February 2019 there has been no word from any official in this case. According to the law, the prosecutor should be disciplined or fired for this offense. Instead, this particular prosecutor has received a promotion. At the same time, there are no protestors in the streets demanding the government step down. No one is yet risking their safety to uphold the rule of law.
Ultimately what this experience with PiS shows is that popular opinion is more important than legality.
The rule of law is not under threat, it is essentially gone and returning it will be a matter of difficulty. As GWF Hegel warned, "it is a dangerous and false presupposition that the people alone has reason and insight and knows what is right; for each popular faction can set itself up as the People."[6] And this is precisely what has happened in Poland with PiS.
[1] Mill, John Stuart, On Liberty (New York, 1956), 24.
[2] Kelly, J M. A Short History of Western Legal Theory (Oxford, 1992), 386.
[3] Dyzenhaus, David. Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar (Oxford, 1997), 162.
[4] Schmitt, Carl, and Jeffrey Seitzer trans. Legality and Legitimacy (Durham, 2004).
[5] Schmitt, Carl. Political Theology (Cambridge, 1985), 18.
[6] Hegel, GWF. Reason in History: A General Introduction to the Philosophy of History Robert Hartman, trans. (New York, 1953), 57.