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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.
- Transformation Bestowed and Transformation Integrated
2.1. Liberal Democracy as a Transplant
The history of the transformation that began in Poland in 1988 is the path leading from so-called “social democracy” toward the rule of law as it was prevalent (at that time) in Europe. That meant that the final goal was “liberal democracy,” which, in the political mainstream of those times, was the unquestioned model. This model emerged out of readings and the way democracy was imagined to function in the stable and prosperous democracies of the West. It was more a stereotype than a reflection of actually existing reality. The context of that observation was provided by the relatively stable period of the 1970s. For those who entered on the path of transformation, the most important was the escape “from” being perceived as the western frontiers of the East. The aversion to the existing system of “socialist democracy,” politically dependent on the Soviet Union, caused the idealization of the imagined model of liberal democracy, while dismissing different aspirations (economic, political and cultural) of its own society. The road to liberal democracy and to the rule of law, characterized by open society, emphasized the aspirations of pro-democratic peripheries to get closer to the center located in western Europe. That, however, needed time.
2.2. The End of One Climb in Order to Begin a New One Toward a Different Peak…
The ending of the period of real socialism, meant a change of course, one that had been shared by the entire socialist camp with its center located in the East. So peripheries wanted to change course and sail along with the West, the West as they had known it from the period of prosperity of the 1970s. That entailed giving up on what was referred to as “socialist democracy” and to reconstruct the system and laws in order to reach the level that would allow them to become a part of the West and its structures, such as the Council of Europe and the European Union. It was not just about reaching the level that would make joining the European Union possible, the goal of European integration is not just an economically motivated relationship that one enters into, it is a constantly evolving social and cultural project always under construction. It assumes not only the same goals and methods, but also their active implementation during and after the accession. Accession is not just about joining “something”; it is also a sense of obligation to work on behalf of the common life in that “something.” It is not just an integration based on shared cultural values – jointly defined, accepted and implemented – but what is most important and most difficult, is the ongoing development of the community. What is necessary here, looking into the future, is the capacity of active participation of the peripheries in the shared shaping of future standards, but now for the whole of Europe. Without this caveat, accession would be identical to the colonization and/or imitation. In order to avoid this conundrum, integration has to be backed by democratic legitimization within the accession country; it has to be approved by the country, in other words be based on broad consensus. This gets to the heart of the problem of transformation. It wasn’t enough to have legitimization at the time of transformation; the problem was how to sustain it. On the other hand, the European model itself, so to speak, did not stay in place; it evolved under the impact of its own economic and political crises, which plagued the West at the turn of the 20th and 21st centuries.
The states of Central and East Europe had to first descend from the mountain that they had been climbing on since the end of the Second World War, only to start the ascent again, this time toward the correct peak. But in the meantime, those who were already climbing on that right mountain, were constantly advancing higher and higher.
2.3. Obstacles: Recent and Distant History
These transformations assumed, independently from political and legal changes, the necessity to gain and to sustain in a durable way support for the idea of open society, which generally means the rule of law and liberal democracy. However, the support was to be extended by the people who were brought up in a closed society, and who thought of freedom and freedoms as something which were granted based on the good will of the regime. That of course, requires changes in the way people understand the relation between the individual and the power, and the internalization of the values of open society. But one cannot decree changes of mentality; one can work toward those changes gradually. But one has to be aware of its existence and consciously work on it.
2.3.1 Demobilizing Outcome of the Messianic Idiom
In Poland, we face specific challenges caused by both more recent and distant history. The two have one shared outcome – they keep society in a state of passivity while waiting for initiatives that are to be taken by external actors. The legacy of bestowed privileges granted by merciful powers, captures the concept of a passive society, which is steered from outside. From recent history, that of real socialism, we have inherited paternalistic demoralization. But we have inherited a second factor, which has favored the passivity of society, from more distant, 19th century history. Introduced by the Polish Poet-Prophet Adam Mickiewicz, was the fantasy of Poland as a “Christ among Nations,” suffering on behalf of others. The messianic idea, which exhibited a cult of suffering and the sanctification of victimhood, served to morally elevate the nation as a carrier of a particular salvational mission. This Polocentric cultural idiom constituted a dangerous element of the national consciousness, as it was Providence itself that has chosen that Poles are to fight with the evil of history. Throughout 19th century, when Poland — partitioned by the three neighboring empires — had lost its statehood, Messianism provided a was source of collective self-worth. However, the same Messianism played a demobilizing and disarming role. It was not through one’s own daily efforts and labors, but through divine Providence, that Poland’s position among other states was to be established. Perhaps the belief in this persistent fantasy was not a decisive one, but it was certainly conducive in not paying attention to wobbly institutions and structures, a crucial toolbox for the functioning of modern democratic state. If everything is in the hands of a divine power, it does not pay to deal with the nitty gritty of state governance. In the meantime, the poorly functioning structures of the modern state were in urgent need of repair, reinforcement and mobilization of resources. The phantom of the civilizational and messianic mission carries with it a variety of consequences in many different spheres of social life. It was and it is, as one can see in the most recent developments in Poland, fodder for populistic demonstration of national superiority, which cannot be reconciled with the vision of the state associated with broader European structures.
2.3.2. Feeble Faith in Civil Society
The consequent weakness of civil society is then an outcome of the peripheral development dominating Polish history, especially in the 19th and 20th century. The combination of the legacy of the real socialism and historical messianism, does not favor the development of a strong, mindful democracy in Poland. It does however, promote the cause of populism motivated by tactical political cynicism. The current dismantling of the rule of law is not met by broad opposition in society. The party currently in power enjoys continuous support after introducing a broad social program known as “500 Plus,” which provides a monthly subsidy equal to approximately 125 Euros granted for the second and every consecutive child in every family. Another factor is the sustained criticism of the former ruling liberal political formations, portrayed as the chief beneficiaries of transformation guilty of economic and symbolic exclusion of the society at large. Society in general does not understand the principles of the rule of law and does not see it working on behalf of the common good. As a result, the extinguishing of the rule of law is not met with appropriately strong resistance.
2.4. Fertile Ground for Bestowed Democracy
The extinguishing of the rule of law incapacitates society and undermines the pace and the ability to continue the gradual introduction of changes. If one violates the rules of fair play, one opens the way for a bestowed democracy or autocratic democratic rule. That is democracy, in which the current rules no longer count, and citizens’ rights are determined not on a case-by-case basis by a court, but based on the views and decision-making power of individuals in given positions of authority.
- Time: Zero Hour and Later
3.1. To Be – To Be Able – To Be Willing: A Path to the State of Law
The entry ticket to the European Union, implemented to fulfill the Copenhagen Criteria for Accession to EU, can be expressed as a triad To Be -To Be Able – to Be Willing. At the moment of accession, the aspiring states had “to be” democratic states of law, guaranteeing the respect for freedom, democracy and human rights. These principles are embodied in the Treaty Establishing the European Community, which is binding to all European Union members. The guiding standard here is established by the body of laws (EU acquis) as practiced by the Tribunal of Human Rights (Strasbourg) and the Court of Justice of the European Union (Luxembourg). In addition, this is a necessary, though not sufficient, condition. What is also necessary is the capacity to accept and perform obligations by members in the future. So, in this regard, another criterion “to be able” is required, not to mention the will (“to be willing”) to act precisely in that manner. That concerns the internalization of the same vision of law of both, those who govern and those who are governed. And this requires changes in the way laws are perceived, applied as well as utilized.
However, law as a ruler’s word and a citizen’s shield, require different abilities of those who create them, those who apply them, and those who use them. The general definition of law in Poland prior to 1988 treated the law as the realization of the will of the working class, which was secured through the coercion of the state. This was a vision of the law as a sword. The law as a shield, which protects an individual from the caprices of the power, is a conception of the liberal rule of law. Both of those paradigms define differently the duties, the tasks and capacities of a legislator, an administrator and a judge, as well as the expectations, rights and duties of an individual. The assessment of the state of democracy in Poland in 1991, made it possible to join first the Council of Europe and, in 2004, the European Union. The markers indicating that Poland’s legal system was compatible with the rule of law were established on the basis of the legislative check list: the ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and its conformance to the norms of the legal system of the European Union. However, this did not end, nor did it exhaust, the changes.
3.2. Foundation of the Polish Constitution of 1997 (Open Society; Individual Freedoms; Universal Addressee; Checks and Balances)
The key assumption here is the idea of open society. It affirms a broad common denominator for diversity (you can read it in the preamble of the constitution) and recognizes the freedom of an individual as a fundamental principle of the system. The authorities, the state, is to guarantee the protection of individual freedom to the largest number of people living within the borders under the authority of the state.
This is why the addressee of principles of the constitution are not only “Polish citizens,” not only “Polish men and women.” The constitution differentiates the addressees. At times, the constitution addresses only citizens as is the case when it considers freedoms to something (extradition, public service, participation in referenda, the establishing of political parties, the right to information, some social rights). However, often when it comes to freedoms from something – freedom from the interference of the authorities, the constitution provides a broader protective umbrella. We can read that “some things serve everyone” (for example, right to trial, right to privacy) or “that there are things that cannot be used against anybody” (for example, to use medical experimentation without consent). So, it is not only ethnic Poles who are the “receivers” of the constitution.
The division of power into three branches in the Polish Constitution is framed differently than in France or as it was in the Polish People’s Republic. Poland took a more radical path, and today, similar to the checks and balances in the US Constitution, all three powers are equal, and mutually check each other. And although it is quite natural that the two other powers may not like it, it is exactly the judiciary that can and ought to be an appraiser or reviewer of legislature, administrative decisions, the outcomes of parliamentary work, and of the executive. It is not the courts usurpation of rights – as sometimes politicians declare – but the implementation of an intended constitutional project. The Constitution of 1997 strongly emphasized the independence of the judiciary from political authorities. And it ordered the judges’ submission not only to parliamentary laws, but also to the constitution. So, they can – while examining the cases – refuse to implement parliamentary bills, which is in their opinion, unconstitutional. (Another question entirely is whether courts know how to and want to take advantage of judicial review).
3.3. The Rule of Law? What kind of Rule of Law?
According to Article 2 of the Constitution, “Poland is a democratic state of law,” but, at the same time, that it ought to be the state of law that “realizes the principles of social justice.” A liberal thread, when it talks about freedom, constitutes a unity with a social thread, when it talks about social justice. And this is where, in the last thirty years, a balance that would be accepted by the decisive majority of the population, has not been reached. As a result, “freedom” as often in immature democracies – and whether we like or not, the Polish democracy is an immature democracy – turns out to be drastically underestimated.
Disappointment is expressed prosaically through public opinion polls, pie charts, and the results from the voting booths. It is not only who we vote for, but whether we decided to go and vote at all. What was missing in Poland is a wise promotion of democratic values. And only if what the Constitution so easily guarantees on paper would be in reality, without major troubles, reachable for the beneficiaries; if only what was given to them on paper could be reachable without having to fight for it — then the faith in liberal, deliberative democracy, and the rule of law advantageous to all, would be more broadly disseminated and accepted in society.
3.4. Transition to Liberal Democracy – Many Were Disappointed
The disappointed were those who wanted only prosperity and security, but received freedom that required individual initiative without any guarantee of success. To those, transformation brought too little, too slow. And, in addition, the goods they got, were not the goods they valued the most. Transformation is an evolution – an evolution of attitudes and mentalities, which takes time. To take advantage of it, one has to have approval, not just political approval. Otherwise, one loses social legitimization. There is a good reason why those in the grassroots are growing impatient. The impatience brought about by the long awaiting for changes threatens the withdrawal of trust, and, consequently the collapse of the transformation project. The lack of trust in general is a feature of Polish society, which is made up of islands without bridges. Sociologists point to a deficit of capacities for cooperation and lack social skills in collaborative engagements on behalf of the common good, while research indicates that there is a weak dynamic to overcome this state of affairs. The deficit of trust is linked to the lack of elasticity in the strategic flow of capital in the economy and the “molecularization” of society, where trust exists only inside a group-molecule, making cooperation between groups difficult. The trust deficit is finally a symptom, and at the same time, an obstacle to expanding social capital, which is a pre-condition to social development.
The process of transformation also disappointed those genuinely engaged in transformation, as they were discouraged by the futility of their efforts. It often the intellectuals, thinkers and writers who were hopeful that the words would turn into flesh. Increasingly, especially recently, nationalistic and xenophobic sentiments, along with the anxieties brought about by the refugee crisis, skillfully created and used to benefit short-term political goals, complement the picture.
Destructive to the social support of liberal transformation was– above all – the shortage of sensitivity arising from the forcing through of the vision of a new human being, a self-made man, who should take care of himself, and who looks out for his own personal benefits. This model of personal success did not take into account that not everyone can and knows how to fight for themselves. As a consequence, an assistance in providing for public needs, even those written in the constitution, such housing, health, education and culture was significantly reduced. There was a good reason that disadvantaged groups felt excluded from the distribution of gains brought about by economic transformation. The objection to the transformation-leading elites, whether economic, political or cultural, was also brought about by a primitive media message that those excluded – young people without work or working on so-called junk contracts, larger families, the poor, the sick and people living in areas affected by structural unemployment – are guilty themselves, because they did not manage adapt to new conditions. Therefore, the social march to a better future was stretched; stragglers were left alone, far behind those for whom transformation turned out to be fortunate and profitable. The culture of managing human capital, which could alleviate the discomfort of economic disadvantage, was completely neglected. And there is a reason that a certain term – stosunki folwarczne – has returned to public discourse and the media. The term, which could be translated as “feudal relations”, captures well labor relations on estates run by the landed gentry. That term serves also as a perfect metaphor to characterize current relationships on the labor market between employers and employees.
Those who are rebellious were not able to experience and understand the meaning and value of the Constitution. And in this absence of knowledge and understanding are implicated those whose responsibility it was to teach, to explain and to promote as they did not do it. The Polish intelligentsia, whose vocation was to educate the society, did not do it. The media, seduced by the promise of commercial success, slipped into infotainment, and did not do it. The courts did not do it as they overly trusted in the power to adjudicate ratione imperii (using the argument of force), while ignoring the imperio rationis (using the force of argument of persuasion).
3.5. Changes of Azimuth Angle and the Prompting of the Constitutional Crisis
What happened in Poland was a change in the direction of the march. At first the road slightly deviated from the original route of transformation. With time, however, the distance began to grow. Characteristically, the changes did not affect the text of the constitution itself. On the other hand, they did cover a wide range of ordinary legislation such as rapidly changing standards in which the state functions, systematic change of the ruling elites, limiting the transparency of state activities for possible critics, and the exclusion of traditional safeguards.
3.5.1. From Open to Closed Society
Thus, a fundamental reversal is taking place, from an open towards a closed, not inclusive society. It takes place both literally and culturally, as it includes a reluctance to accept strangers or new arrivals as well as presenting the universal humanistic values to native historical traditions. The non-inclusive society is characterized by a lack of openness to minorities and a refusal to use a broad “common denominator” for law and state policies that enable law and standards to be pluralistic on behalf of a pluralistic, diverse society. Instead of applying the ways of deliberative democracy predicated on discussion and persuasion, other methods are put to use, such as divide and rule, exclude and differentiate, insinuate, or scare tactics by invoking enemies who must be destroyed on behalf of the common good. A final directive is to manage the doubts and the chilling effects in order to ensure that there will be no opposition and protest.
3.5.2. The Individual and the Minorities Are to Subjugate Themselves to the Majority
The individual and the minority should simply surrender to the majority. It is true that the constitutional preamble requires the parliamentary majority to be cautious when using the numerical advantage in order not to marginalize the minority. However, the current practice is quite different– institutions, mechanisms, “independent” constitutional procedures are treated with mistrust. This concerns especially the Constitutional Tribunal and the Judiciary. A populist slogan “the will of the sovereign” is considered sufficient to legitimize a single party parliamentary monopoly.
3.5.3. Majority as the only Legitimate Voice in a Society
Thus, the “will of the sovereign” invalidates the legitimacy of law based on other constitutional principles, such as subsidiarity, checks and balances, the autonomy of certain bodies and agencies from the executive branch or the activities on behalf of common interests with a more pluralistic dominator. The electoral victory and the formation of absolute parliamentary majority means the absence of the inclination – even at the parliamentary level — to compromise, or even to carry out any discussion with the opposition. A good example might be a completely empty hall during the parliamentary debate on June 6, 2017 concerning the proposed changes in the law of the system of the common courts, which greatly weakened the independence of the judiciary from the executive branch. The refusal to even conduct hearings indicates the vanishing of deliberative democracy and disrespect for the sovereign, except for those who are members of the ruling party.
3.5.4. Limiting Autonomy and Independence by Imposing Control and Making Them Conditional
Limiting autonomy and independence by imposing control and making them conditional – whether it is the local government, courts or even the non-governmental sectors and independent media, is done not only directly, but also through personal appointments, and financial dependencies such as the centralized distribution of grants and funds and the promotion of select organizations.
3.5.5. Relocation of the Decision-making Center Outside the Structures of State Agencies
The center of political decision making is currently located outside the structure of state bodies. Neither the program of the winning party nor, for example, the 2010 draft of the constitution promoted by the Law and Justice Party (as already mentioned, after the elections it was removed from the party’s website) are not the source of the implemented strategy for change. Its sources are programmatic statements of the leader of the ruling party, Jaroslaw Kaczynski. His statements (lectures, speeches, interviews) serve in the public discourse to set political and ideological directives, and, in any given moment, specific goals of reforms. The leader does not have any official state function, but de facto, he decides how to navigate the realm of the state. And this is accepted by foreign guests in Poland’s foreign relations.
3.5.6. The Program: Re-Polonization of Media and Economy; Concentration of Power; Emphasizing the Value of Historical Tradition.
The statements of the leader promise to further re-Polonize the economy, the media and culture, to espouse national traditions, to concentrate power and its economic base in the form of state property. At the same time, the reform of the judiciary is in progress and the rights of free assembly have been curtailed. Such fundamental systemic reconstruction distances Poland from liberal democracy, both in view of its goal, the subject and scope of reform as well as how it is being implemented. All of these activities are violating the procedures of the rule of law, and they will be continued, even if, as was announced expressis verbis, they lead to a slowdown of economic growth. At the same time, any efforts at curtailing this is automatically qualified as non-democratic. It is the use of this rhetoric that served to build a campaign, run over a dozen of months, against the Constitutional Tribunal. The identical modus procedendi (manner of proceeding) was reproduced when preparing the reform of the judiciary.
3.5.7. Chilling Effect as a Tool of Change
The sequence of events is characteristic when it comes to reform, whether of the Constitutional Tribunal, the judiciary, local self-governments, the third sector (institutions of civil society), the scenario is the same. First, there is a media campaign indicating various irregularities and dysfunctions. The information is often true, but it is picked up from different periods, selected and juxtaposed and often exaggerated. At the same time, allegations are suggesting thirst for power, corruption, personal interests, cast-like divisions and democratic deficits in the operation of institutions in need of reform.
3.5.8. Purges to Favor Younger Cadres
The campaign highlights the blocking of promotions of young cadres by pathetic old elites with inappropriate (post-communist) pedigrees. These stigmatizations are part of the tactics to garner support of “young Turks” – youth, who are promised promotions once the old elite are eliminated. The planned replacements of elites are one of the universally applied reform measures. It is done using many instruments – through the shortening of tenures, the exchange of managerial staff, such as civil servants, prosecutor’s office or the army. While in many cases, the social diagnoses that accompany the reform is correct, the choice of corrective measures and the manner in which they are used, are objectionable.
3.5.9. Paying Lip Service to Democratic Reform
Reform is always conducted in the name of verbally preached defense of democracy from its appropriation by the elites, or to protect the reforms from the retaliation by the elites that are pushed away from power. The political opponents are painted as having ill intentions and an incapacity to be motivated by the common good.
3.5.10. Appropriation of Language
Characteristic are rhetorical shifts of the language in the official political declarations. The rulers speak more readily to “Polish women and men” than to “citizens”. We are witnessing here a well-known Orwellian observation concerning manipulation of language. Because the words, whether in constitution or law in general, are able to change their meaning, they can also be manipulated. The word can change its role and instead of providing explanation, communication, or even misinformation, it can be become a tool of control and oppression. The language of debate is currently both brutalized and personalized. The opposition, whether parliamentary, or just citizens who are exercising the right to protest, is called by the ruling politicians as ill-intentioned, a “worse sort of citizens”, “communists and thieves”, “people who require special care” (or attention), “people with blood on their hands,” who should be isolated and re-socialized.
- Coda: Absence of Writings on How to Internalize the Rule of Law
In 2011, a Polish sociologist based in Krakow published a book The Phantom Body of the King: Peripheral Struggles with Modern Form. The author of this fascinating book, Jan Sowa, describes a failed artistic experiment conducted in 1996 in Stockholm’s Fabriken Gallery. The exhibit entitled “Interpol,” produced jointly by Swedes and Russian, was to promote, at the end of the 20th century, intercultural dialog between the East and the West. Yet the exhibit ended in fiasco. The two sides could in no way agree on the terms and space of cooperation. Not only was there a “fundamental lack of compatibility between East and West” resulting from the cultural stereotypes and prejudices on each side. But worse, both sides demonstrated a robotic readiness to enter their roles assigned by these stereotypes. So, the East turned out to be, according to the ascribed stereotypical expectations, wild, rude, authoritarian and forcing through their own solutions. The West, unaware of the trap, happily took advantage of this stereotype, sinfully repeating its own prejudices. The bleak example was used by the author as a background for reflection on the situation of lands and societies belonging neither to the East or the West, unable to establish a dialogue, with no common “identity – religious, ethnic, lingual, cultural or any other.” And it is this “any other” that is of interest to me. It is here that legal identity, revealed through the fate of post- 1988 transformations, is situated.