Legal nihilism versus the state of constitutionality. Case of Poland.

https://doi.org/10.63189/ENOS8233

Every new government seeks to create, then maintain and defend its own narrative, a story that serves as the foundation for legitimizing its actions. One of the leading narratives of the current government in Warsaw is the thesis about the need to "restore the rule of law" after the period of the previous administration, during which this principle was said to have eroded or even been completely destroyed. According to this narrative—creatively and eloquently developed by some representatives of the legal doctrine supportive of this power—there is an attempt to create a sense of the extraordinary nature of the situation that emerged at the end of 2023. Sometimes it is concluded from this that extraordinary times require extraordinary solutions, actions on the edge of legality, or even violations of the law in the name of an ad hoc defined higher public interest.

The sense of the extraordinary nature of the situation is treated as a premise for the rulers to boldly step beyond the formally understood legalism, justifying the breaking of the limitations of constitutional impossibility. For the bold actions of the new government aimed at "recovering" state institutions, the "letter of the law" becomes an obstacle, as mentioned by the Prime Minister enchanted by the vision of militant democracy. Such actions (legally or not) are considered necessary (necessitas non habet legem), and after they are carried out, there is at most a "search for a legal basis" (as described by the present Minister of Justice).

One manifestation of such actions is the use of disproportionate measures. For example, due to doubts regarding the appointment of several judges of the Constitutional Tribunal in 2015, a paralysis of the entire institution was caused in 2024, granting the executive branch an unwritten right to decide whether and which judgments will be published. This occurs even when the executive is acting in its own case (in causa sua), as the Tribunal's ruling pertains to the legal basis of its actions.

In January 2024, National Prosecutor Dariusz Barski received a document from the  Public Prosecutor General Adam Bodnar stating that his reinstatement to active duty in 2022 by the previous Prosecutor General had no legal effect. A new person was appointed to the position of National Prosecutor. This decision is contested –  the Supreme Court and the Constitutional Court have also spoken out against it. Legal doubts have been raised about changes to the positions of presidents of common courts made after 2023 The decision of the Minister of Justice – Prosecutor General to dismiss members of the National Council of Prosecutors and appoint others in their place is also causing controversy. Constitutional doubts arise in evaluating certain actions of the Minister of Science. An example is the interruption of the statutory terms of bodies operating in the higher education system.

The political mindset and the legitimization of government actions described here are not uncommon in the philosophy of law. Historical analogies can easily be found. Whenever a political authority has assigned itself an extraordinary mission under extraordinary circumstances, the significance of legal norms has been diminished as being detached from real life and practical needs. This is referred to as legal nihilism.

The tendency of those in power to free themselves from restrictive regulations, to break the yoke of "impossibilism," and to do good on a different basis—as they understand it—is well-known. The idea of "escaping legal frameworks," "resetting" the law or specific institutions, understood differently than through legally permissible derogation procedures, is not new. The French Revolution of 1789 aimed to quickly regenerate power relations and introduce the principles of popular sovereignty, equality, and liberty. Robespierre explained that extraordinary measures were necessary to win the war of freedom against its enemies. In such moments, extraordinary measures were employed, resulting in the violation of principles in order to save them. The annulment of laws passed by the National Assembly was an achievement of the Paris Commune of 1871. Similarly, the Bolsheviks "reset" old laws and, acting "unconventionally," replaced them with laws based on revolutionary conscience and revolutionary consciousness, as they understood them.

In the interwar period, legal nihilism illustrated the attitude of the authorities toward the law after Piłsudski's coup in 1926. In constitutional practice, it manifested itself in the flexible interpretation of constitutional provisions and the depreciation of legal customs. This was driven by the belief that the meaning of legal provisions and the norms they express depended on the needs of the moment, constitutional practice, which should undergo situational transformations, and ultimately, the abandonment of legal formalism as a burdensome and unnecessary constraint. Similarly, breaking away from established patterns of conduct was implemented in Poland after 1944  Representatives of the "democratic camp," justifying legal changes made on the threshold of political stability, emphasized the restoration of the law's full sovereign force, arguing the inadequacy of existing legal solutions in terms of "democratic forms of exercising power" and the necessity of adopting forward-looking solutions.

The concept of establishing order in the state through parliamentary resolutions and accomplished facts echoes the Jacobin idea of the parliament as the highest state authority and the supreme expression of the people's will. However, in the constitutional system of the Republic of Poland—based on the separation and balance of legislative, executive, and judicial powers—we find no basis for this. Nor do we find a basis for the Sejm to adopt resolutions to create a legal foundation for "unconventional" actions by the authorities, such as introducing martial law to resolve a crisis and restore the rule of law as it was understood.

The "resetting" of the Constitutional Tribunal per fas et nefas creates a series of risks. A thin line separates actions within constitutional policy from politics in the strict sense, the realization of supreme constitutional values from expanding the scope of specific power, and removing constitutional traps from bypassing limitations inherently embedded in the constitution for those in power. (Dobrzeniecki, Zaleśny, Ostrożnie z zerowaniem Trybunału Konstytucyjnego, „Rzeczpospolita”, 28^th of February 2024)

The new constitutional judges, heads of prosecutor's offices, and courts, without constitutional authorization, are merely an expression of the currently shaped will of the parliamentary majority.

The reduction of restoring constitutional order to personnel changes within specific state organs (Constitutional Tribunal, Supreme Court, National Bank of Poland, National Prosecutor's Office) carried out in violation of constitutional procedures does not meet the constitutional standard. Conceptually, this assumption is clear and simple. However, constitutional practice is more complicated. Constitutionality is a complex phenomenon encompassing compliance with both procedural and substantive constitutional values, including the principles of representation and the common good. Simply replacing individuals deemed unfavorable to the new authorities with those favorable to it does not fulfill the definition of restoring constitutional order.