The dust has settled, the battle seems to be over. Jarosław Kaczyński has proved his point. With a few surprising moves, he led to a significant reduction of the role of the Constitutional Tribunal. Surely, speaking about “changing the Constitution without changing the Constitution” is a rhetorical exaggeration, but undoubtedly the authority of the Tribunal has been greatly weakened. As a result, its political role will be redefined. It is a good moment to step out of the jumble of paragraphs and legal traps obscuring the essence of this dispute. Let’s try to look at the “war for the Tribunal” from a broader perspective, reconstructing the general attitude of the head of the Law and Justice party (PiS, Prawo I Sprawiedliwość) towards the rule of law.
Before we do that, however, we must agree that in a matter of such importance for the political system, there was more than just the dispute of how many judges of the Constitutional Tribunal can the current ruling coalition choose (five, two or none?). We shouldn’t overlook the often overlooked fact that previous government formed by Civic Platform (PO) elected five judges whose term has passed on November 6th (three), December 2nd (one) and December 8th (one) 2015. The parliamentary elections were held on October 25th that year. It would be enough, therefore, if the president called the first sitting of the Sejm of the new term for November 3rd, and there would be no confusion. As Jacek Sokołowski rightly notes, “it would turn out – most likely – that the five chosen by the PO had been chosen incorrectly, because the terms of their predecessors were about to end on November 6th, that is – in this hypothetical scenario – in the new government’s term.” PiS could, therefore, gain influence on the choice of 5 judges of the Constitutional Tribunal without starting a political war.
Why did it not happen? Of course, it is possible that the chaos associated with the construction of a new government led to this development.
It is equally probable, however, that Kaczyński intentionally wanted to go against the Tribunal. He intended to use the opportunity to hit the symbol of the legal order of the Third Polish Republic, which he’s been criticising for many years.
What is even more surprising, when we look at the academic roots of Jarosław Kaczyński, we can discover that the origin of this dispute reaches back to the 1970s.
Against legal dogmatism
Every biography of the Law and Justice leader must mention the figure of prof. Stanisław Ehrlich. His seminars have become a key factor for young Kaczyński’s political development. Ehrlich was the supervisor of his master’s thesis and then the PhD thesis. He used to meet his seminarians on a private level, where academic issues gave way to political discussions. These long hours of meetings, often heavy on alcoholic beverages, were so important to Kaczyński that he called his supervisor one of his masters, along with figures such as Józef Piłsudski. It is hard to find a higher proof of recognition from a person who has such great respect for the Marshal.
Who was Stanisław Ehrlich? We must admit that this is an extraordinary figure to be the master for the future right-wing leader. Ehrlich came from a Polonised Jewish family of lawyers with clear leftist views. During the war, he served in the Berling army, fighting alongside the Red Army, where he became the deputy commander of the brigade for political affairs. After the war, Ehrlich continued his legal career by creating the “State and Law” scientific journal and becoming a professor at the University of Warsaw. From the very beginning, he was an important member of the political elite of the time, though he has been distancing himself more and more from communism since the 1960s.
In the context of the “war for the Tribunal”, however, Ehrlich’s expressive views in the field of legal theory are most important.
First, in numerous scientific works, he criticised legalism in its traditional meaning, i.e. questioned the view that law is the source of legitimisation of power. Instead, he was in favour of a contextual interpretation, seeing the origins of legitimacy in the political will, that is in the then realities – in the updated continuously will of the Party. Simply put, Ehrlich thought that the political will is superior to law and not a law to political will. It is best illustrated by an anecdote. After the war, Ehrlich came to Roman Zambrowski, the member of the Political Bureau of the Central Committee of the Polish Workers Party. Ehrlich shared his desire to create a legal journal. “Don’t you want to do politics?”, Zambrowski asked. “This is the way I understand politics,” said Ehrlich.
Secondly, the professor put a strong emphasis not so much on the theory of law as on the practice of its application. In this way, he undermined a specific conceptual realism based on the assumption that it is enough to codify certain rules, to make them appear and work in the social reality. The practice, in his view, does not depend only on the letter of the law, but on the socio-political realities of its application. It is only by analysing the layout of the interests of principal actors that a realistic approach to the legal system can be adopted.
Thirdly, in the 1960s, Ehrlich became famous for his work analysing pressure groups functioning in the Polish People’s Republic. He then transferred these interests to his seminar, where he often told his pupils about the insides of the functioning of the communist state. A derivative of these interests was the Kaczyński’s master’s thesis on the way the Section of Science of the Polish Teachers’ Union worked. Years later, the chairman of PiS admitted that it was vital for him to discover how the Union fights for the status and influence in the realities of a one-party system. In the biographical interview “Alphabet of the Kaczyński Brothers,” he said that “The fights did not fit in the picture of a completely unconflicted reality of socialism.”
Knowing Kaczyński’s contemporary statements about the law, one can only smile, discovering their apparent concurrence with the views of Ehrlich from half a century ago.
The legal worldview of the PiS leader is still organised by the primacy of the political factor over the legal one, the primacy of the practice of applying the law over the theoretical approach and the rule of realistic approach over the idealistic (key role of interest groups in shaping the legal order).
“To this day, Jarosław speaks in his language, all those centres of political disposition, these interest groups are taken from Ehrlich,” says Maciej Łętowski, another participant in the famous seminars.
Nonetheless, the public doesn’t notice that fact. Our post-colonial public debate does not refer to such works as the Pressure Groups in the Social Structure of Capitalism (1962), Authority and Interests: Study of the Political Structure of Capitalism (1967) or Three Faces of Pluralism (1980). Although the continuity between these books by Stanisław Ehrlich and the contemporary diagnoses of the leader of the ruling camp is something obvious, nobody is interested in them today. The “legalistic paradigm” turned out to be so strong in our legal environment that the views represented by Ehrlich were pushed to the margins. This was combined with the antipathy towards Kaczyński, quite widespread among the legal elites. It’s easier to demonise him than to try to understand his motives. Ignorance, however, causes helplessness. When the “war for the Tribunal” started, most lawyers had difficulty understanding his paradigm of action.
The idea of the rule of law as a Polish reforms brake
Thinking from the Ehrlich’s point of view shapes Kaczyński’s attitude to the legal order of the Third Polish Republic. Even Kaczyński himself openly acknowledges such a dependence. Recalling the reactions of the legal community to the subsequent work of his supervisor published in the communist period, he will say: “legalism was defended, above all the lawyers’ scientific skills, and thus the sense of their work and their professional position. This discussion was a foretaste of the shaping of the way of thinking that continues to this day and often stands in the way of changes in Poland “(Alphabet of the Kaczyński brothers, 2006). Therefore, the question about how the law established in the PRL is to be the basis for the actions of future reformers building the Third Republic of Poland will become one of the key points in the disagreement after ’89. This issue was in the core of Kaczyński’s speech “Is Poland a state of the rule of law?” Delivered in February 2010 in Krakow at the invitation of the Jagiellonian Club, which we then published in the quarterly journal “Pressje”.
Kaczyński based his argument on rejection of a naive approach to the concept of the rule of law. Uncritical supporters of this idea explain the complex issue of the rule of law as the “process of applying the law by the courts while recognising the courts as institutions that by definition obey the law”. Guided by such thinking during the transformation of the political system, they led to the distortion of this idea.
Instead of creating proper standards for a young democracy, in fact, the doctrine of a “democratic state of law” has petrified the influence of the former communist nomenclature. Therefore, the PiS chairman contrasts the naive approach with a realistic approach to the rule of law, taking into account not only the theoretical model but also the entire socio-economic complexity.
“The rule of law is an attribute of a particular form of organisation of society. It is not something that can be enacted, imposed or arbitrarily decreed, “states Kaczyński.
It all began in the second half of the 1980s when the “process of constructing the legal order of the communist system was launched. Many previously unregulated matters were settled, and some new institutions were introduced, such as the Constitutional Tribunal, the Office of the Ombudsman, and administrative courts. This process has gone very far” Kaczyński says. It was not only about creating a facade of democracy and a desperate attempt to save the reputation of a communist state that was in decline. It was rather about preparing the ground for further changes. The next step happened in the last days of December 1989. It was the adoption of the law “on the change of the Constitution of the Polish People’s Republic” by the Contract Sejm (the parliament based on the agreement between the then ruling Polish United Workers Party and the oppositional Solidarity movement). The controversy was caused by the fact that that only 35% of seats in the Contract Sejm were chosen in free elections (the rest was reserved for the Communist Party and its satellites), so it did not have a full social mandate. The consequences of this decision were also grave. For the first eight years of a free Poland, the articles of the Constitution of 1952 (the so-called Stalinist constitution) were still in force. What is most important, however, the new Constitution, implemented in 1997, in its second article stipulated that henceforth “The Republic of Poland is a democratic state with the rule of law”. This fact was decreed in advance, it was not preceded by any dismantling of the structures of the communist state.
What were the consequences? Kaczyński points to two vital ones. First, the amendment of the Constitution has severely limited the field of action for the future reformers. Any further moves decommunising the state were to take place on the basis of the existing legal regime. Secondly, in the legal theory and jurisprudence, an interpretation of the “democratic state of law” that was adopted, focused on the protection of acquired rights. The introduction of this noble idea into life was therefore aimed, as Kaczyński believes, “to petrify social relations, so that the beneficiaries of the previous system would not lose the rights acquired thanks to it”.
Hence the dispute surrounding the beginning of modern Poland fits right into Ehrlich’s theoretical deliberations. What is more important at the time of the systemic reform of the state: the desire expressed by the nation in the June elections to reject the old system or faithfulness to the legal acquis of the Polish People’s Republic? Political will or legalism? As in the 1950s and 1960s, legal elites chose legalism, and Ehrlich and his concepts lost once again.
The top-down doctrine of a “democratic state of law”, not preceded by the real dismantling of the communist state, instead of serving the young democracy, really bound the hands of the reformers and guaranteed a “nomenclature pension” to the people of the previous system.
Let us add, by the way, that Kaczynski himself initially accepted the arguments of “legalists”. Together with his brother, they accepted the provisions of the Round Table negotiations between the opposition and the Communist Regime in 1989 and actively co-created new political institutions. “Their rejection of the Third Polish Republic on a moral basis – but also a philosophical and legal one – occurred only when that Republic started to outlaw them.” This happened in 1992-1993 due to the actions of the col. Lesiak’s team. This team formally set up in the Ministry of the Interior Affairs had the task of invigilating and disarming the right-wing opposition. The Third Polish Republic never condemned the former SB colonel for these actions, although the whole case was “a scandalous example of rape on democracy”. “If you look for a source of Jarosław Kaczyński’s contempt for the institutions of the Third Polish Republic – especially for institutions associated with guarantees of the rule of law – it is in this story”, says Jacek Sokołowski, describing the whole matter in the Jagiellonian Club journal.
Social conditions for the functioning of the rule of law
Let us return to Kaczyński’s argument about the rule of law. He points to four features of the rule of law, the existence of which is negated in the realities of the Third Polish Republic.
Firstly, social pluralism. “There must be many political, social, economic and media forces in society so that none of them is dominant enough to instrumentalise the law. There must be a stable balance in society. ” In the Third Polish Republic – according to Kaczyński – instead of introducing mechanisms guaranteeing pluralism, part of the solidarity elites joined the former communist elite.
Secondly, an elite rooted in society. “No system can be lawful, if there is no elite, which treats legal values related to social life, including moral ones, as autotelic, that is, applicable regardless of conditions, not serving any other purpose. If there is no such group, no control mechanism can be effective. ” In the Third Polish Republic – according to Kaczyński – elites are mostly focused on defending the particular interest of their group. Besides, their extremely liberal worldview separates them from the rest of society, which results in the lack of their social roots and the deficit of authority.
Thirdly, healthy court elites. The judicial system should be free from entanglement in the communist regime. In the Third Polish Republic – according to Kaczyński – the majority of the judiciary’s milieu “participated in the process of applying repression and implementing martial law. The environment has not been cleaned. Until today, we are dealing with the effects of the tasks ordered to fulfilled by the judges back in the communist state and with the connections that arose at that time.” The judges who ruled in the 1980s then shaped the next generation of their successors in “a deep dislike to perform the repressive function of the state,” which is a consequence of their guilt for “the use of repression during martial law”.
Finally, the existence of public opinion as an internal mechanism, a non-state control. The heart of such public opinion is pluralism in media. In the Third Polish Republic – according to Kaczyński – the media is one-sided, which results in the lack of real internal control. This is especially visible on a regional level. “It is not that there is no local press, but that it is completely subordinated to the local centres of power – either directly to the local government or to certain individuals who stand out from the community, most often because of their strong economic position.” The lack of pluralistic media means that there is no firm social control.
The lack of these four elements – social pluralism, socially entrenched elite, healthy judiciary system and strong public opinion – pushes Kaczyński to a very radical conclusion: “There are no premises in Poland for the existence of a state of law, the rule of law.”
This results in impossibilism, or inability to act. It is both impossibilism towards solving social pathologies; impossibilism in the dimension of law enforcement, since the powerful have been granted special immunity and de facto “are above the law”; impossibilism involving the introduction of further restrictions for small and medium-sized enterprises, which has a negative impact on economic turnover; and finally, the impossibilism regarding the “inability to carry out large collective tasks”.
The Constitutional Tribunal on the bench of the accused
Kaczyński’s speech, delivered in the realities of 2010, was not necessarily focused on the issue of the Constitutional Tribunal. However, understanding its axis of criticism of the legal system of the Third Polish Republic allows us to reconstruct the intentions of starting the “war for the Tribunal”.
There is something more important than just the urge to use the “gift” provided by PO (the election of judges that was against the law) or even the intention to limit the role of an institution that could potentially hinder the reforms of the new government. In essence, it was about hitting the symbol of the legal order of the Third Polish Republic.
The Constitutional Tribunal played an important role in the process of shaping the current system. Jacek Sokołowski reconstructs its changing function very neatly, pointing to three distinct stages: “unsealing of communist dictatorship (1986-1989); “co-founding of the system” (1989-1999); “moderating public policy” (1999-2015). The middle period is particularly interesting for our debate. At that time, seeing the fragmentation of the parliamentary representation and very imprecise legal norms, the Tribunal assumed the role of “co-legislator”. “The CT defined and re-defined the system in many judgments, in which it made very far-reaching interpretations of norms”. Often using the already cited article that “the Republic of Poland is a democratic state of the rule of law” it has made “many interpretations of purely ideological views, which justifications were philosophical, not legal”. Sokołowski sums up: “In this way, the Tribunal became a co-creator of the system, because it set the limits of the state’s action not in the legal, but axiological, ideological”.
Conclusions arise on their own. If Kaczynski claims that in the Third Polish Republic “there were no premises for the existence of the rule of law”, and the Tribunal played an active role in the process of shaping this legal order, its role must be assessed negatively. And this was the primary stake of the “battle for the Tribunal” observed over the last weeks. It was about the systemic limitation of the role of the institution, which – according to Kaczyński – instead of upholding the rule of law, through its sanctions was sanctioning the specific impossibilism of the state.
Revolution or evolution, to demolish or to build?
Up until now, we have only tried to recreate Jarosław Kaczyński’s way of thinking. Now let’s try to face his ‘rights’ and ‘wrongs’.
Kaczyński is very keen in his diagnoses regarding the shape of the political transformation. However, it is difficult not to get the impression that this criticism is primarily historical and is at least 15 years late.
In the 1990s, the dispute about the attitude to the Polish People’s Republic acquis was indeed the starting point for any diagnosis of the state’s weaknesses. This is probably not the case today. Currently, the impossibilism of the Third Polish Republic manifests itself in the subordination of strategic thought to European funds and automatic transposition of EU directives into the Polish legal order, not in the influence of the “Stalinist constitution”. Today, the special immunity for the strong does not concern, in the first place, the former communist nomenclature, but global corporations with which Polish companies have no chance to compete due to their legislative and fiscal privileges.
Of course, Kaczyński, without closing his eyes to changing circumstances, may argue that new challenges can’t be met without a complete change in the existing legal order. You can’t renovate the upper floors of the house when the foundations are defective. Additionally, there is an issue with the case law, the legacy of all existing justifications and detailed interpretations of legal norms enshrined in legislation. Of course, the case law is not a source of universally binding law, but it is often reproduced by lower-level courts. Therefore, the entire Court’s jurisprudence is a significant point of reference for Polish courts, which makes it impossible to detach the present from the legacy of the 1990s.
This is a powerful argument. However, the importantly doubting question is: is such a radical diagnosis shared by broad circles of the society? Is there a social consent for a complete change in the constitutional order? Of course, the core PiS electorate, accustomed to the ruthless criticism of the “Round Table agreement”, enthusiastically accepts the proposal of an amendment to the Constitution. However, it is still too little to regain the “centre” necessary to win the constitutional majority. This was best shown by the last presidential and parliamentary elections. Andrzej Duda won because he avoided the slogans of a radical change, promising to overcome disputes, “uphold the Constitution”, possibly its pro-citizen correction (e.g. in the field of referendums or electoral regulations), and not “dismantling the Round Table republic”. Similar rhetoric is behind the popularity of Beata Szydło. That is why Duda – as Łukasz Warzecha correctly pointed out – bears the biggest political cost of the “war for the Tribunal”, which was quickly reflected in the public trust research. Most of the “centre” voters who voted for Duda in the second round of the previous elections are not ready for a shock therapy of the kind proposed by Kaczyński today.
And now we come to the peculiar paradox of the current situation.
The road to the legal change of the Constitution leads through the political “centre”, which at the same time receives Kaczyński’s actions in the revolutionary paradigm with distrust. The more the PiS president is effective in bending the current rules, the more he loses the chances of proposing new rules of the game.
The more active he is in “changing the Constitution without changing the Constitution”, the more he loses the credibility as a potential architect of the new basic law. These promising “centre” and revolutionary activities of Kaczyński can be shown in at least four areas.
First, if one wants to change the Constitution, one needs to do a thorough intellectual and social work to convince the Poles to take such a step. To this end, it would be necessary to broaden the social knowledge of both the beginnings of the legal order of the Third Polish Republic, the backstage of work on the current Constitution, and the structural problems of the state that it generates. This work would have to be done not only in the intellectual sphere. It should cover as many opinion-forming centres as possible and reach every citizen at the cultural level. Considering that this is a very ambiguous and complicated matter, such a process requires a sufficient amount of time. This is what Kaczyński does not have. He realises that crucial decisions must be made within the upcoming months, as the term of the current Parliament limits it. That’s why he chooses the revolutionary way of working over a long-term social change.
Secondly, if one wants to reach the “centre”, one should present a positive vision. Its lack was very evident during the “war for the Tribunal”, when PiS didn’t present the target model of the functioning of the Constitutional Tribunal, which made his actions difficult to defend outside of the hard electorate. That is why Jarosław Gowin, feeling the “centre’s” mood, wrote in an important open letter: “I am aware that the solutions we have used in recent weeks are a defective and temporary prosthesis. An urgent and in-depth debate on the model of constitutional justice is needed”. The problem of the lack of a positive vision, however, doesn’t concern the Tribunal only. Kaczyński accurately diagnoses that the state of the judiciary is one of the critical problems of the Third Polish Republic (according to CBOS surveys from 2015, the functioning of courts is positively assessed by only 25% of Poles!). However, we do not know the detailed plan of justice system reform that PiS should have presented a long time ago. Kaczyński is very precise in his diagnoses. Just as a professional revolutionary, he knows what needs to be demolished to overthrow the old order. However, he talks less about what needs to be built to create a new order.
Thirdly, to permanently change the Polish legal system, it is necessary to win the battle of the paradigms among lawyers, to arrive at a universally binding set of views and a particular way of thinking. It is not true that the Constitutional Tribunal has been dominated by the PO. In fact, since the 1990s, it is not ruled by politicians, but a specific hierarchy of values professed by the legal elite who sits mostly in the Tribunal. Again, Jacek Sokołowski described this accurately: “If the judge of the Constitutional Tribunal had to interpret a huge bill, he was mostly concerned about the opinions of his equally titled colleagues. The opinion of politicians or the media was of little importance”. The quality of the legal interpretation is of key importance in this environment. “This is very characteristic for lawyers in general, and completely hermetic for laymen – that a man is judged by the type of argumentation he uses. The judge in the CT could quietly, more or less consciously, foster a solution, but he had to justify it following the rules of legal argumentation. And if he justified it well, his colleagues were ready to agree with him, even if they disagreed with his sympathies”. And this is a goal that every politician who wants to change the legal order permanently must set for himself. He must establish a new legal elite who would be able to use elaborate arguments respected by the whole environment. However, neither Stanisław Piotrowicz nor Marek Ast, the two loudest tribunes of the PiS changes, were using this way of arguing during the “war for the Tribunal”.
Finally, to develop a new fundamental law, a number of circles outside the PiS core should be united for this project. The example of work on the Constitution of 1997 shows that it was a compromise between “Kwaśniewski’s camp” and “Wałęsa’s camp”. Mazowiecki, in turn, added an important brick, proposing the final shape of the preamble. The vital political actors had a part in the elaboration of this document. As a result, it had a broader mandate than just the support of only one political circle. Analogically this kind of work would have to be done this time. Previously, conditions for the reconstruction of a strong public opinion independent of the state should be created, because Kaczyński himself considers it one of the requirements for the existence of the rule of law. A constitution suited for the 21st century would, therefore, have to arise in substantive discussions, stepping over at least a part of the current divisions.
“War for the Tribunal” shows that there is no place for a broad consultation of key decisions in Kaczyński’s nature. It is based on a small group of close associates so that decisions made thereafter can be enforced with iron-like consistency. In this way, it puts public opinion and the rest of the political class before what had already been decided.
Such a model works perfectly in the paradigm of the revolution. However, it hinders activities requiring consultation, the aim of which is to cross divisions and build a broad consensus.
The last revolutionary of the Third Polish Republic
Jarosław Kaczyński ultimately did not follow his intellectual master. Despite the many incentives of prof. Stanisław Ehrlich, he didn’t remain faithful to an academic career. Somewhere in the mid-1970s, he began to say that he had chosen the path of a “lonely revolutionist”. In the “war for the Tribunal” you can see all the strength, and at the same time weakness, of that choice. The “lonely revolutionist” has enough courage to challenge the entire legal order of the Third Polish Republic. He has enough strength and determination to undermine the role of the institution that the legal professionals have previously regarded as an inviolable foundation. The “lonely revolutionist” does not have enough strength to propose a new institutional order that would change Poland for upcoming decades. Jarosław Kaczyński is thus the last revolutionary of the Third Polish Republic. Sufficiently penetrating, firm and consistent, to win a historical war with Adam Michnik. Nonetheless too weak to build his dreamed Fourth Polish Republic.
Translation from Polish: Jędrzej Pyzik
This publication has been cofinanced by the Ministry of Foreign Affairs of the Republic of Poland within “Cooperation in Public Diplomacy 2018” programme.
This publication reflects the views of the author and not the official stance of the Ministry of Foreign Affairs of the Republic of Poland.