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ABSTRACT
Between 2007 and 2015, the ruling party of Poland was the pro-European, liberal-conservative and strict fiscal policy-oriented Civic Platform. In 2015, Civic Platform lost in both the presidential elections (10 May) and the parliamentary elections (25 October). The winner was the conservative-nationalistic and EU-sceptical ‘Law and Justice’ party (PiS) led by Jarosław Kaczyński. A constitutional crisis began when the newly elected parliament changed the five members of the constitutional court, and the crisis deepened as a result of many new reforms, dividing the nation. This paper argues that this division of the citizens has a Schmittian nature. The aim of the article is to analyse the recent constitutional crisis in Poland, focusing on the Schmittian debate that has appeared in the academic, intellectual and judicial discussions and seeking to understand the political and legal philosophy behind the actions of Kaczyński. The paper considers three main questions: (1) What happened between 2015 and 2017? (2) What are the Schmittian questions in the debate about the rule of law? (3) How is Kaczyński’s political philosophy formulated? The language of the debates is at times brutal. This, but not only this, reminds the reader of Schmitt’s friend–enemy division. Moreover, Kaczyński’s political power reminds us of the power of Schmitt’s sovereign.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. The new judges, closely related to PiS, were Professors Lech Morawski, Mariusz Muszyński and Henryk Cioch, the advocate Piotr Pszczółkowski and the former judge of the lower courts Jolanta Przyłębska. Morawski and Muszyński had openly supported PiS by, respectively, taking part in a scientific committee of the PiS conferences and positively writing about the PiS idea of personnel changes in the constitutional court. Pszczółkowski had represented the PiS leader before the courts in the case of the 2010 Smolensk catastrophe (among the victims were the President of Poland Lech Kaczyński and his wife Maria). Przyłębska’s husband had been a member of academic clubs supporting PiS and was nominated as an ambassador to Germany in mid-2016. According to the Constitutional Tribunal (judgement K 34/15 of 3 December 2015), a constitutional court in Poland, Morawski, Muszyński and Cioch were appointed in a controversial way as they assumed positions that had been filled by judges chosen by the old parliament.
2. There is no the page number for this quote in a citation at the end of the quote because the whole text is available at the website (the text without pages). This concerns also the other quotes in this part of the paper.
3. There is no the page number for this quote in a citation at the end of the quote because the whole text is available at the website (the text without pages). This concerns also the other quotes in this part of the paper.
4. There is no the page number for this quote in a citation at the end of the quote because the whole text is available at the website (the text without pages). This concerns also the other quotes in this part of the paper.
5. In book III, chapter 15 (‘Deputies or representatives’), Rousseau claims that sovereignty ‘lies essentially in the general will, and will does not admit of representation: it is either the same, or other; there is no intermediate possibility. The deputies of the people, therefore, are not and cannot be its representatives: they are merely its stewards, and can carry through no definitive acts’. It is the online version of the book: no page numbers are available.
6. However, would it not be the case that this was true in Constant’s time in the case of the USA?
7. The text can be found at http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm (12 February 2017): ‘Article 126. 1. The President of the Republic of Poland shall be the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority. 2. The President of the Republic shall ensure observance of the Constitution, safeguard the sovereignty and security of the State as well as the inviolability and integrity of its territory. 3. The President shall exercise his duties within the scope of and in accordance with the principles specified in the Constitution and statutes’.
8. There is no the page number for this quote in a citation at the end of the quote because the whole text is available at the website (the text without pages).
9. Adam Czarnota, a legal sociologist and PiS supporter, thinks that PiS is not sufficiently radical in making reforms in Poland, demanding more radical reforms even in the judiciary, as well as in the whole of society, in the name of justice and democracy.
10. This was a very controversial lecture at a seminar on the Polish constitutional crisis held at the University of Oxford in mid-May 2017. Professor Lech Morawski, presented as ‘the Honourable’ by the organisers on the spot, was one of the controversially appointed new constitutional judges, and, for many lawyers and critics, he was not a judge at all. He put on the table four theses, for which he was immediately condemned in a special resolution of his own Alma Mater, the Faculty of Law at Nicolaus Copernicus University (in Poland), as well as by many other academics, politicians and journalists. The four theses are as follows: 1) As a constitutional judge, he tries to ‘represent the point of view of the government’ because he belongs to this political movement (‘political neutrality of judges is a myth’); 2) The Polish constitution is ‘an interpretative tragedy’ (there are so many open-texture terms); 3) The Polish government ‘is against homosexuals but does not investigate them’; 4) Many judges of the Constitutional Tribunal and the Supreme Court ‘are corrupted’. Afterwards, due to the massive critique in the media, he made the point that he had meant ‘a moral corruption’ rather than taking bribes. However, this was still unclear as the context had concerned bribes (e.g. he said that ‘corruption is destroying my country’ and ‘the government is fighting with corruption’). Morawski died suddenly in July 2017. In my opinion, as one of his pupils who disagreed with him because of his PiS-oriented political actions, Morawski – a great and inspiring legal philosopher, researcher and teacher – has since become a taboo with regard to the Polish legal doctrine. There is a veil of silence and a curtain of embarrassment surrounding him. There is also a hidden admiration on the part of more conservative scholars. Undoubtedly, Morawski was a great scholar, who was recognised for his achievements in the study of legal interpretation and argumentation but who at the end of his life supported PiS and joined the PiS reforms in the Constitutional Tribunal. Indeed, as some of his pupils claim, he played the role of Carl Schmitt in Poland. It is too early to confirm this, and history will assess him better (see in the other sources: ‘Appointed as Constitutional Judge Lech Morawski’s lecture in Oxford’ Citation2017).
11. Rzepliński is a professor at the University of Warsaw (a full professor since 2000). He conducts research in the fields of criminal law, criminology, sociology of law, human rights and constitutional law. He was a constitutional judge during 2007–2016 and the chief justice during 2010–2016. He is commonly recognised as both a PiS opponent (by his PiS critics) and a defender of the constitutional court (by his supporters in the opposition).
12. Przyłębska was elected as a constitutional judge in December 2015 and was appointed as chief justice in December 2016. She has been criticised by many commentators for her weak skills for such a position. She had only been a lower judge before, and she had been lowly assessed in the lower courts.
13. A PiS opponent.
14. A PiS opponent.
15. According to these new by-laws, it is forbidden to claim that the composition of the Tribunal was established in an unconstitutional way and that some judges are unconstitutional.
16. In Poland, there are doctrinal ideas of ‘dispersed’ (rozproszona) constitutional control. They base on Article 8 par. 2 of the Constitution: ‘The provisions of the Constitution shall apply directly, unless the Constitution provides otherwise’.
17. See e.g. point 128 of the opinion of 14–15 October 2016 (p. 24): ‘Individually and cumulatively, these shortcomings show that instead of unblocking the precarious situation of the Constitutional Tribunal, the Parliament and Government continue to challenge the Tribunal’s position as the final arbiter of constitutional issues and attribute this authority to themselves. They have created new obstacles to the effective functioning of the Tribunal instead of seeking a solution on the basis of the Constitution and the Tribunal’s judgments, and have acted to further undermine its independence. By prolonging the constitutional crisis, they have obstructed the Constitutional Tribunal, which cannot play its constitutional role as the guardian of democracy, the rule of law and human rights’.
18. Unfortunately, there is not enough space to properly discuss the EU’s response to the rule-of-law crisis in Poland and Kaczyński’s reaction to the EU’s pressure. There are many exhaustive sources concerning these recent developments, including Sadurski (Citation2018), who writes that ‘democracy in Poland dies’ due to the ‘anti-constitutional populist backsliding’, Pech and Scheppele (Citation2017), who show ‘the responses of the major European Union institutions’ to Poland and Hungary ‘as their governments removed checks on their power, eliminated the independence of judiciaries and failed to honour their European commitments’, and Scheppele (Citation2016), who demands more actions from the EU. Scheppele, a Princeton professor, suggests that ‘[i]t’s time to invoke Article 7(1) against both Poland and Hungary’. She believes in EU sanctions against Poland and Hungary for the violation of the rule of law.
19. The text of the news is available online (without a page number provided).
20. Erhlich’s other Master’s students and PhD candidates included one of the former chiefs of the Polish constitutional court, Professor Marek Safjan, currently a judge in the European Court of Justice, and Professor Wojciech Sadurski, a current professor of philosophy of law at the University of Sydney.
21. Mazur’s text is available online without page numbers provided. This page number issue concerns all the quotes from the mentioned text in this part of the paper.
22. This, of course, is not exclusive to Poland. The Brexit referendum in the UK has had similar consequences in terms of polarisation of political debates and the division of the population among those who accept and those who don’t accept the ‘will of the people’, etc. However, while there have media attacks on judges, the government itself has not taken measures to weaken the judicial system, etc.
23. The text of the news is available online (without a page number provided).
24. It can be argued that this approach (this vision-the Intermarium) to Polish security is not altogether unrealistic (particularly in the face of a potentially weaker Europe and the threat from Russia).