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What is Happening to the State of Law?
The title of my talk could be framed in a baroque manner: “Convulsions of the rule of law, which were not noticed and not prevented in time by lawyers, be they scholars or judges, which caused the breakdown of the democratic order in Poland.”
A foreigner asked me a question, actually a series of questions. “How is it that suddenly, out of nowhere, Poland, the precocious child of transformation, seemed to be returning to the culture of mono-power. A Parliamentary majority – elected by a minority – is changing the system. How could that have happened? Poland, a nation governed by the rule of law? Is law is a sword, the expression of force, or perhaps a shield, for the defense against anarchy? How this happened, nobody now knows. Parliament and governments push judges around, and society, which only yesterday was fighting for justice, does not seem to care. So, what happened? After all, you met all requirements of the rule of law when joining the European Union. That is…or perhaps it only looked like that to us?
I will try to answer those questions. And here is my general conclusion:
We did not succeed in making the rule of law a viable social project, not only for the general public, but also for the legal community, which had the responsibility of popularizing and supporting this project. We failed to realize that it is not simply enough to change a number of laws. What is imperative, is systematic work on developing a legal culture, based on legal precedence, and appealing to the hearts and minds of people. This is necessary in a country like Poland, which is haunted by the combination of both messianic and communist mentalities – two concepts that poisoned the capacity to act independently, to anticipate, to be able to notice the relationship between cause and effect. Unfortunately, Poland is one of those countries that never understood the role that both institutions and laws play in providing not only social glue, but foundations for democratic agency of the individual. Czytaj dalej