On Rebuilding and … Keeping the Rule of Law

“The Constitution becomes the focus of our attention, the prism of our perspective. Our efforts are directed to understanding it – and many other things in society as well – in terms of its clauses, its concepts, its traditions. Through this focus, we achieve a sort of tunnel vision: a closing off to other possibilities that would speak in a different language and think in a different way, a closing off to worlds in which the Constitution is only one document among many, worlds in which the Constitution is no great thing, but only a first draft of something much greater and more noble. And to think and talk, and focus our attention on the Constitution, to be faithful to it, and not to some other thing, we must bolt the doors, shut out the lights, block the entrances.” (J. M. Balkin, Agreements with Hell and Other Objects of Our Faith)

Starting point – route – destination

When I think about the challenge of rebuilding the rule of law in Poland after years filled with unimaginably lawless legal and factual acts and hateful words tearing the Polish Constitution to shreds and offering adequate recipes, the starting point is framing the discussion. Given the scale of unconstitutional destruction of 2015 – 2023, the rebuilding must be about optimal rather than perfect solutions. Optimal due to the sum of what is possible from a legal and factual perspective within the framework set out by the Constitution, its principles and values, and the binding judgments of supranational and international courts. A correct description of the starting point determines the route and provides the background against which one can evaluate more detailed legislative choices made along the way.

The route must be determined by “fidelity to the Constitution”. Fidelity is an attitude of commitment, dedication, and submission, for as a politician, legislator, and citizen, I submit to the discipline of the constitutional document, which I pledge to uphold and restore its central place at the apex of the legal system.

Our avowed destination, in turn, must be framed in clear terms as restoring the meaning and respect to the basic elements of the Polish legal order. We must aspire and attempt to embed them now in the public consciousness better than before, because one day we would like to be in a position to assert that we have indeed reached a special state of voluntary “submission and surrender” to and respect for OUR Constitution. I argue that the latter must become the new narrative of lawyers, politicians and citizens alike if we are to succeed not only in the normative sense (the current discussion, undoubtedly important about the form (question how?) of restoring the rule of law: by law or by resolution, etc.), pragmatic sense (the question about the consequences of maintaining the current unconstitutional state of affairs) but also symbolic sense (the question why is the restoration of the rule of law of existential importance?).

Rebuilding the rule of law. Of signposts

First, we need to make it clear that between 2015 and 2023, the constitutional profile of the state in Poland has been altered. We did not have a mere crisis of the rule of law but rather a ruthless war against the Constitution. This has occurred with unconstitutional resolutions of the Sejm, constitutionally hostile “rulings” issued by the usurpers masquerading as constitutional judges and, most often, by de facto actions based on sheer and blunt unconstrained force. Together, they turned out to be lethal to the institutions and (as it turned out, extremely fragile and weak) culture of the rule of law on the ground. Therefore, when we talk about the rebuild today, our restorative measures must not be merely technical/normative in nature. Rather, any legislative solution adopted must pursue the primary goal of restoring meaning to the key elements of our legal and civic vocabulary, which have been stripped of any relevance and manipulated in the service of ruthless majoritarian politics: constitutional court – rule of law – Constitution – integration – respect – dignity of law – dignity of institutions – separation of powers – culture of limitation. This symbolic dimension of our starting point is crucial.

Second, we must look at the process of restoring the law from a situational perspective. The choice of strategies and methods must be determined by the distribution of constitutional values in each case, the consequences of maintaining a situation inconsistent with the constitutional document for the entire legal order, and, last but not least, by keeping fresh the memories of the unprecedented ruthlessness with which the system was destroyed per fas et nefas. These emotions and memories have nothing to do with revanchism, which I reject, but rather should be taken into account today when we make a good-faith calculation of how to act and what solutions to choose to restore the Constitution to its rightful place as the highest law of the land. It must be clear that those who leave with bad faith and arrogance in their hearts and a clear “track record” of the destruction of the rule of law cannot continue to have an advantage over those who want to restore the integrity of the Constitution. Unfortunately, they will continue to enjoy it, if we accept today with legalistic helplessness the many booby traps and poison they have left behind them. When the situation and the protection of constitutional values and the calculus of “doing more than something” against “doing not enough” and simply waiting, demand it, we must be ready to move decisively in the name of the Constitution.

Third, and finally, our methods must be proportionate to the extent of the lawlessness on the ground and the consequences of maintaining the illegal status quo. Our legal imagination might fuel change, but only when followed by a willingness to act and counteract outside the box. Thinking outside the box is only possible if we have the courage to critically reevaluate our existing language. Restoring the rule of law is a process that will be a combination of actions of different nature and intensity. Some of them will be the realization of legalism, understood as compliance with the letter of the law, and some will require something more to protect constitutional values. This does not mean, however, that what goes beyond the letter of the law must be automatically categorized as unlawful, just as not every interpretation that goes beyond the wording of a legal provision must be unlawful in a situation where our literal interpretation would lead to an absurd or obviously unjust result(s). Just as we accept that we can overcome a linguistic interpretation in order to exclude absurdity or injustice, the same must go for the choice of methods to restore the rule of law. Sometimes relying only on the letter of the law will lead to absurd consequences but, of course, in the name of formal and self-destructive legalism (e.g., the naïve “let’s wait until the compromised judges of the Constitutional Court are gone or let’s believe that they will now convert and all of a sudden become loyal servants of the constitutional document …”). Isn’t it, however, the case that by thinking this way, we impose on ourselves an overly formalistic understanding of what it means to act legally? Should not the “legal methods” adopted and accepted correspond to the extent of the destruction of the rule of law and go beyond the letter of the law? Such a rethinking of legalism requires effort and imagination and as such challenges lawyers to adapt their vocabulary in the search for solutions that would be optimal and appropriate to the scale of the destruction and to the costs of doing not enough in the name of misconstrued legalism.

Fidelity to Our Constitution is the heart of the rebuild

The key word for the reformers today and tomorrow must be “fidelity” to the Constitution, which has been rejected and humiliated for years. My constitutional fidelity means not what the Constitution does to me but what I do to myself and around me to remain faithful to the Constitution. Constitutional fidelity arises at the intersection of practice, text, interpretation, and culture. As Balkin has convincingly argued:

To become the faithful servants of the Constitution, we must talk and think in terms of it; we must think constitutional thoughts, we must speak a constitutional language. The Constitution becomes the focus of our attention, the prism of our perspective. Our efforts are directed to understanding it-and many other things in society as well-in terms of its clauses, its concepts, its traditions.

So understood, constitutional fidelity is much more than the attachment to the text of the Constitution because the Constitution itself is so much more than just a dry text. It is also the values, institutions, and traditions for which the Constitution serves as a reservoir and which it expresses. Fidelity is loyalty to these elements as well. A good constitution is a document in which the past (where do we come from?), the present (who are we today?) and the future (where are we going?) meet. Each of these three elements interacts with each other: we can’t understand the present if we forget the past, we can’t discover the future if we misconstrue where we are today. Our fidelity to the Constitution must therefore be defined by anchoring in the past, developing and growing in the present and moving into the future. Such a split between looking to the past and looking to the future is the hallmark of good constitutions that are based on text, context, and tradition. The intergenerational aligning between what was, what is and what will be is a challenge for each generation, which must draw out the consequences of the commitments expressed in the constitutional document. One must now decisively frame and factor in these non-textual considerations in the process of deciding more technical questions as to how and by what legislative means one ought to adopt to rebuild the rule of law.

Beyond the rebuild: How to sustain the rule of law for the future?

In 2015 – 2023, we were taught a very painful lesson: Our Polish rule of law, built from the top down, resembled a castle built on sands that could collapse at the slightest shock. Therefore, discussing today “how to rebuild”, we cannot afford once again to reduce this discussion only to a technical dispute between lawyers flipping arcane legalistic arguments hardly understandable by the most important stakeholders of this discussion – the citizenry. We must, drawing on the great potential of KONS-TY – TUC – JA, ask ourselves how our discussion about the rule of law can be better embedded socially and become a lived experience in order to be “sustainable” beyond today? This question goes beyond our legalistic exchanges and rather challenges us much more demandingly: figuring out how to explicate the rule of law, what language to speak to the people and how to reach them?

All this at a time when eight years of dismantling the rule of law, as well as the earlier period of legal passivity, do not work in our favour and are not conducive now to building the social legitimacy and credibility of the legal profession or convincing the citizens that we do indeed care. Therefore each of us today should ask what he can do around himself to make things better. What can I do right here, right now? Not only write, but also accept invitations to go to small towns and talk to those who are fearful, distrustful, and resentful, to at least try to explain and, crucially, to listen. They and their voices are also part of “We the People”. Be ready to say “no” when injustice happens. Speak out. Do not accept “no, that cannot be done” because such soothing “business as usual” will lull you into passivity and escapism so craved by the would-be autocrats.

Let’s finally remember that for any socially “good change” to be lasting, it must start and grow in the hearts and attitudes of the people and never be brought “as a gift” from the allegedly benevolent authorities. Any change begins at the micro level around me and in me: at the level of family, friends, neighbors, community and municipality. Such a change takes infinitely longer than any social top-down engineering and, as such, is a scary proposition for lawyers who relish such a top-down approach to the institutions and the rule of law. Are we lawyers ready to frame and embed the rule of law along these conceptual and imaginary lines that call for sustained effort, patience, and organic work?

When we argue about how to rebuild the rule of law in Poland, we aspire to read not only the law but, above all, “the Constitution forward” in the context of a political-legal-social system that has been corrupted in ways that our traditional legalistic approach cannot adequately capture and express. Such reformative “Reading the Constitution forward” is of paramount importance as it focuses our discussion not simply on the restoration of the rule of law today and tomorrow but also on the maintenance of the rule of law as a social practice for future generations. This latter aspect is crucial to the long-term prosperity and survival of the rule of law in Poland. If things are to get better, this should be our most important signpost not only for 2024 but also beyond. Only then will the constitution become OUR CONSTITUTION to which I profess my loyalty, will a judge accept the mantle of OUR JUDGE whom I/we want to defend, and will Poland aspire to be a decent state under OUR RULE OF LAW.

Tall order and highest stakes possible. They must not be swept under the rug of legislative fervour this time around. Instead, let’s bolt the doors, shut out the lights, block the entrances and think and talk the Constitution and our fidelity to it. The technical aspect of the rebuild will then follow.