Beyond Formal Legality

The Venice Commission’s position on Poland’s judicial reforms presents a paradox: it warns that measures to restore the rule of law could themselves violate it – even though the rule of law has already been undermined. To solve this paradox, I propose two conceptual clarifications. The first one consists in applying distinction between violating and departing from formal legality. The second one consists in recognizing that judges unconstitutionally appointed under an illiberal regime cannot be acknowledged as legitimate judges in the constitutional sense. Their status is not merely irregular but invalid because the constitutive rules defining judicial authority were never fulfilled.

The restoring dilemma

In the aftermath of Poland’s broken democratic polity, the Polish government has faced a dilemma: either maintain the stance of strict formal legality and in the process perpetuate the illiberal rule established by its predecessors or breach certain laws to restore the rule of law, as promised to the electorate. In February 2024, the newly elected Polish government proposed an Action Plan to address this challenge. The plan outlined the Sejm’s intentions to first adopt a resolution on the status of the Constitutional Tribunal and to introduce amendments to the Act on the Constitutional Tribunal as part of its efforts to restore judicial independence.

In July and September 2024, the Minister of Justice of Poland requested an opinion from the Venice Commission (VC) focusing on four questions relating to European standards regulating the status of judges (the October decision), and an opinion of the draft amendments to the Constitution concerning the Constitutional Tribunal, the draft Act on the Constitutional Tribunal and the draft provisions introducing the Act on the Constitutional Tribunal (the December decision). In response to questions from Justice Minister, Adam Bodnar, about judicial appointments and proposed reforms, the VC issued two opinions in October and December 2024. These opinions highlighted the difficult task Poland faces – dismantling an illiberal legal framework without causing systemic judicial chaos and infringing the rule of law.

Here the challenge begins

In fact, the VC emphasized in paragraph 22, 28-32 of the October Opinion, and paragraph 20, 31-33 of the December Opinion that (1) the restoration of the rule of law must not lead to the breakdown of the legal system, and (2) the process of restoration itself must not infringe on the rule of law by declaring “through a law that all the relevant appointments made by the National Council of the Judiciary (NCJ) in the particular timeframe are null and void, as, as this would represent an undue interference with the competence of the judiciary.” While the first point – the avoidance of a systemic breakdown – is broadly understandable, the second, to not infringe the rule of law, raises significant challenges.

In its analysis of Poland’s proposed reforms on the judiciary, the VC’s opinion seems to leave the Polish government with no options but to wait for illegally appointed judges to retire. Of course, for the Polish government, this is one of the most pressing challenges that it needs to face. And this is so for at least two reasons. First, restoring the rule of law depends on safeguarding judicial independence and ensuring manifest impartiality. Judicial independence is often the first casualty of illiberal regimes, making its restoration essential to reinstall the rule of law. Second, the judgment in Xero Flor w Polsce sp. z o.o. v. Poland by the European Court of Human Rights (ECtHR) underscores the urgency of this issue. The ruling declared that the Constitutional Tribunal, in its current form, fails to meet the standards of a “tribunal established by law”, highlighting the severity of the judiciary’s compromised legitimacy. As a result, Poland is internationally obligated to implement measures to comply with this decision.

This situation reveals a striking paradox: the Venice Commission (VC) appears to assert that the proposed reform would amount to a violation of the rule of law, even in the absence of the rule of law itself. Consider this: if judicial independence – a constitutive element of the rule of law – is currently not guaranteed in Poland, can the rule of law truly be said to exist? And yet, the VC seems to express concern that, even in this context of an absent rule of law, the proposed reform would constitute a violation of the rule of law. Such reasoning, it could be argued, borders on the nonsensical.

The claim isn’t nonsensical is we argue that judicial independence is not a constitutive element of the rule of law. But even the thinnest formal conception of the rule of law takes some minimal degree of judicial independence as one of the constitutive elements of the rule of law. And if we accept this view, we could paint the position of the VC with the following metaphor: by saying that reform would violate an absent rule of law, they are warning us from breaking a window that its already broken.

First challenge: realizing “rules departures”

In this context, where a system has been undermined, actions taken to restore its integrity – though they may involve stepping outside the framework of formal legality – are not equivalent to actions that violate the rule of law for the already mentioned reasons. Asserting that there is no rule of law, yet, claiming that efforts to repair it would violate it, would result in the nonsensical effect previously mentioned. However, the situation becomes even more complex when considered from the perspective of legality. Even if the rule of law is not being directly violated, restoring it may require deliberate departures from established rules. Such departures, while appearing to undermine legality, can be justified as necessary interventions to dismantle the remnants of illiberal practices and reestablish a lawful and impartial judicial system.

This distinction between violating the rule of law and departing from formal legality shows the importance of what we call “rule departures.” These actions, far from perpetuating violations, aim to restore the rule of law rather than infringe upon it anew. They are applied in exceptional circumstances where the previous legal framework was itself rooted in arbitrariness. In such exceptional circumstances, where restoring the rule of law requires departing from formal legality, the concept of rule departures can be appropriately applied without constituting a violation. That is because a violation, by definition, implies an action that ought not to have been taken. Rule departures involve actions that break, bend, or disregard established rules or legal norms, yet remain aligned with the moral ideal of the rule of law and its restoration. In exceptional contexts such actions can be justified. Putting in Papineau’s words “There are rule violations that count as fair, and unfair strategies that don’t break the rules.” (p.82)

Rule departures are not merely about breaking with an illegitimate legal framework but taking deliberate actions that actively rebuild the rule of law. They must be guided by strict conditions to ensure their legitimacy and minimize their potential for abuse by being proportionate and limited to the specific measures required to dismantle illiberal structures that obstruct the restoration of democratic accountability and basic liberties. Moreover, they must remain accountable and publicly justifiable, ensuring that such measures are clearly understood as temporary deviations aimed at safeguarding the rule of law rather than undermining it. Finally, rule departures should be accompanied by a commitment to institutional reforms that prevent future abuses of power, thus ensuring that the restored legal framework is both democratic and resilient. By adhering to these conditions, rule departures can serve as a moral and political tool to rebuild the rule of law in societies emerging from the grip of illiberalism, and at the same time guarantee that the departure will not actually be a violation.

These measures, while temporarily departing from formal legality, must remain focused on dismantling illiberal structures and restoring the rule of law ideal. Rule departures serve as a solution for the present, addressing immediate challenges, while also preventing future autocratic governments from arbitrarily altering the legal order by establishing principles and safeguards that restrict the use of such measures to truly exceptional circumstances.

It is worth stressing that departing from former and formal legality has different consequences than violating the rule of law. Unlike violations, rule departures do not inherently cast the situation as one of conflict or rivalry (as suggested in Paragraph 20 of the Venice Commission’s December decision, which implies that the Polish government could align its actions with concepts of “playing hardball” or “winner takes all” (p. 8) approaches), but instead open a path for constructive restoration.

Rather than embracing a “winner takes all” mindset, which frames the situation as a zero-sum competition, bending the rules might sometimes be justified, but only within clear limits. “Maybe you can break some rules, but you can’t win by shooting the referee and carrying the ball over the goal line.” This is not about rivalry or competition but about repairing the damage caused. The aim is not to “win” at any cost but to restore judicial independence and, in doing so, the rule of law, rather than further undermining it.

Additionally, a fundamental difference comes down to intent and scale. Stepping outside formal legality in a limited, temporary way to fix a broken system is not the same as systematically dismantling the rule of law. Departing from formal legality implies an episodic departure to restore the rule of law, manifested as isolated instances. In contrast, the previous government’s actions amounted to a systemic violation of the rule of law – widespread, persistent, and embedded across the entire legal system, distorting its fundamental principles.

Second challenge: the trap that a judge is a judge

Part of the illiberal strategy is to shift the burden of addressing unlawful or illegitimate rules onto the next liberal government. As Wojciech Sadurski explains, illiberal regimes set legal “landmines” – traps – throughout the legal system. However, in the context of judicial independence, what is often called a “trap” is not a trap at all – it is a gap.

The distinction is crucial because judges appointed by the National Council of the Judiciary (NCJ) in violation of the constitutive rules governing their appointment were never truly judges in the constitutional sense. This implies that the Polish government’s task is not to dismantle a trap but to address and fulfill an institutional gap.

The difference between a trap and a gap becomes clear when we introduce the distinction between constitutive and regulative rules. While constitutive rules are associated with gaps, regulative rules are linked with traps. Constitutive rules establish the very conditions under which something can exist within a particular framework, being an entity or institution – such as what it means to be a judge or why a blue piece of paper is recognized as a 20-euro bill – regulative rules govern behavior within an already established framework. Regulative rules do not define the existence of entities or activities but rather regulate their functioning and interactions providing guidance, constraints, or permissions for actions that occur within the framework created by constitutive rules.

For the sake of the argument, a key difference between constitutive and regulative rules lies in the nature of the sanction for their violation. For constitutive rules, the sanction is ontological rather than punitive: noncompliance leads to the nonexistence of what the rule seeks to establish. In contrast, regulative rules govern behavior within an already established framework, and their violation typically results in a punitive sanction, such as a fine or penalty, without affecting the existence of the system or activity itself. If judicial appointments were made in violation of constitutive rules, it follows that the appointees were never truly judges.

This distinction has significant implications: the constitutional protections designed for judges who may violate regulative rules in the exercise of their legitimate judicial functions do not apply. Conceptually, someone who was never a judge cannot be deprived of the status of a judge. Instead, the focus must be on addressing the fundamental illegitimacy of their appointments, which renders such protections inapplicable in this context. Importantly, balancing the need to address the illegitimacy of these judicial appointments with the broader implications of invalidating decisions made by such appointees raises a question of proportionality between legal certainty and legality. This is a question of proportionality since it needs to balance two competing aspects of the rule of law: on one hand, the principle of legality, which demands that judges must be properly appointed, according to the constitutive rules; on the other, the need for legal certainty, given that for nearly a decade, Poland’s judiciary has operated under a compromised framework. A sound approach should seek to minimize sacrifices, preserving what is least affected by the illegitimacy – whether by considering a temporal limitation (evaluating rulings based on when they were issued) or by differentiating by scope (focusing on the nature and impact of specific judicial decisions) – while prioritizing the core principles that must be restored.