07 August 2018

Open Letter

We, the undersigned, have learnt that Chief Justice of the Supreme Court of Poland Professor Małgorzata Gersdorf has had her constitutionally guaranteed term of office of six years prematurely terminated by a new statute on the Supreme Court rushed through the Polish Parliament and signed by President Andrzej Duda on 26 July 2018.

We also understand that the Chief Justice vigorously protests this unconstitutional act of forcing her into retirement half-way through her constitutionally defined 6-year term of office.

Such a politically motivated action is not only contrary to an express provision of the Constitution of the Republic of Poland (Article 183 (3)) but also constitutes a blatant violation of European standards on judicial independence which Polish authorities are under an obligation to respect.

We firmly hold the view that Professor Małgorzata Gersdorf is the only lawful and legitimate incumbent of the office of Chief Justice until 30 April 2020, i.e. until the end of her constitutionally designated term of office.

WOJCIECH SADURSKI, Challis Professor of Jurisprudence at the University of Sydney and Professor in the Centre for Europe, University of Warsaw.

LAURENT PECH, Professor of European Law, Jean Monnet Chair of European Public Law (2014-17) and Head of the Law and Politics Department at Middlesex University London

BRUCE ACKERMAN, Sterling Professor of Law and Political Science, Yale University

ALBERTO ALEMANNO, Jean Monnet Professor of EU Law, HEC Paris and Global Professor of Law, NYU School of Law in Paris

PETRA BÁRD, Visiting Professor, Central European University

LASZLO BRUSZT, Professor of Political Sciences, Central European University

TOM GERALD DALY, MLS Fellow, Melbourne Law School and Associate Director, Edinburgh Centre for Constitutional Law

GRÁINNE DE BÚRCA, Florence Ellinwood Allen Professor of Law, NYU Law School

GÁBOR HALMAI, Professor and Chair of Comparative Constitutional Law, European University Institute, Florence

R. DANIEL KELEMEN, Professor of Political Science and Law, Rutgers University

DIMITRY KOCHENOV, Professor of EU Constitutional Law at the Department of European and Economic Law, University of Groningen

TOMASZ TADEUSZ KONCEWICZ, Professor of European and Comparative Law, Director of the Department of European and Comparative Law, University of Gdansk

MARTIN KRYGIER, Gordon Samuels Professor of Law and Social Theory, University of New South Wales; Recurrent visiting Professor, School of Social Sciences, Institute of Philosophy and Sociology, Polish Academy of Science

MARCIN MATCZAK, Professor of theory and philosophy of law at the University of Warsaw, Faculty of Law and Administration

STEVE PEERS, Professor of EU Law & Human Rights Law, University of Essex

VLAD PERJU, Professor of Law, Boston College Law School and Director of the Clough Center for the Study of Constitutional Democracy, Boston College

KIM LANE SCHEPPELE, Laurance S. Rockefeller Professor of Sociology and International Affairs, Princeton University and President, Law and Society Association 2017-2019

JUSTINE N. STEFANELLI, Maurice Wohl Senior Research Fellow in European Law, Bingham Centre for the Rule of Law

MAXIMILIAN STEINBEIS, Founder and Editor of Verfassungsblog

NEIL WALKER, Regius Professor of Public Law and the Law of Nature and Nations, The University of Edinburgh


SUGGESTED CITATION  Sadurski, Wojciech; Pech, Laurent: Open Letter, VerfBlog, 2018/8/07, https://verfassungsblog.de/open-letter/, DOI: 10.17176/20180807-135152-0.

40 Comments

  1. Joseph Savirimuthu Di 7 Aug 2018 at 19:49 - Reply

    Please include me
    Joseph Savirimuthu
    Senior Lecturer in Law
    University of Liverpool

  2. Bart Di 7 Aug 2018 at 21:25 - Reply

    Its, sad that those lawyers dont understand polish law. Gersdorf is not anymore judge

    • Martin E.J. Krygier Mi 8 Aug 2018 at 03:22 - Reply

      It’s sad that Bart (and the Persident of Poland) don’t understand European law. Gersdorf is still chief justice of the Polish Supreme Court.

  3. Michał Romanowski Di 7 Aug 2018 at 22:52 - Reply

    Please include me

    Michał Romanowski, Professor of Civil and Business Law, Faculty of Law and Administration, University of Warsaw

  4. Strach Mi 8 Aug 2018 at 06:18 - Reply

    the average retired age in all polish courts is 62 years, and maybe it’s time for gersdorf to quit and shut off mouth . nobody knows how she had been elected and become chief of supreme court , only narrow group of polish lawyers decided -it was really not like in normal European countries.
    According to new regulations the choise it’s more transparency than was. So state is more democratic, no more judges with communistic past in polish courts.

  5. Dawid Bunikowski Mi 8 Aug 2018 at 08:26 - Reply

    Some commentators are always malicious, using arguments ad personam or just wish to forget rules of legal interpretation in Western legal culture. I skip this issue. Let us focus on a good legal job. Article 183 para. 3 of the Constitution establishes that the First President of the Supreme Court shall be appointed for a 6-year term of office. Let us read it literally. Let us read the Constitution both literally and holistically. Take it seriously. This is about principles, not persons – about being governed by rules, not by arbitrariness of authorities. If we can change this particular term (the Gersdorf case) by an ordinary legal act, we can also change every other term from the Constitution, e.g. the term of office of the President of the Republic. This is ridiculous. This is bad and devastating for legal and political culture. And, this is sad. And, it will give someone food for thought – for more protests – as it is very frustrating for many citizens who disagree to such style of politics.

    • Chris Mi 8 Aug 2018 at 12:55 - Reply

      The retirement age is the same for all judges. Otherwise it would be a violation of the constitutional principle of equality before the law.

  6. Wojciech Sadurski Mi 8 Aug 2018 at 08:34 - Reply

    My big thanks to all those who already have, or who will, join our letter. I will add all these additional names to the final copy of the letter which will be sent to Professor Gersdorf and to Polish authorities.

    • Dr. Marcin Michalski Mi 8 Aug 2018 at 08:50 - Reply

      I guess they will be impressed 🙂

  7. Wojtek K. Mi 8 Aug 2018 at 08:40 - Reply

    To have the whole view of the situation there is also a need to mention article 180 (4) of the Polish Constitution: The act of Parliament establishes the age when the judges become retired.
    Why was it not mentioned in the letter signed by the professors?

    • Pawel S. Mi 8 Aug 2018 at 09:10 - Reply

      The act of Parliament establishes the age of retirement for judges, but that act – as all other legal acts – cannot have backward effect, it may affect only the judges elected after it becomes law, not earlier.
      That is the reason the said article 180.4 is pointless in respect to active judge.

  8. Dr. Marcin Michalski Mi 8 Aug 2018 at 08:46 - Reply

    The only purpose of the ‚Open Letter‘ is to generate news in Poland of the kind ‚Law professors from allover the world support Gersdorf‘. The fact is that the opposition in Poland cannot offer anything to the voters, and seeks any kind of obstruction, if possible backed by foreign powers. The bad news is, that this kind of ‚Targowica Confederation‘ won’t work anymore.

  9. Jurek Jakubowicz Mi 8 Aug 2018 at 08:50 - Reply

    Oczywiste jest to ze kadencja pani Gersdorf jest do 2020 , Polski rzad lamie prawo !!!

  10. Wojciech Sadurski Mi 8 Aug 2018 at 09:03 - Reply

    To Wojtek K.:
    You are wrong. A general norm which establishes the legislature’s competence to set the retirement age (Art. 180.4) cannot prevail over a very specific, express rule which sets the Chief Justice’s term of office as 6 years (Art. 184.3). Otherwise, we would have an absurd situation that any constitutional term of office could be shortened by statutory changes regarding the eligibility for that office. Further, there is a general constitutional rule of irremovability of judges (Art. 180.1) as a result of which the changes in the retirement age for judges under Art. 180.4 which you refer to can apply only to judges appointed AFTER the statutory change, not ex post to judges already serving in their office to whom the old retirement age must apply.

  11. Wojciech Sadurski Mi 8 Aug 2018 at 09:07 - Reply

    To Dr Marcin Michalski
    Thank you very much for your comment. You just gave non-Polish readers of Verfassungsblog a great sample of the quality and depth of arguments used by PiS supporters in public debate in Poland. I could not have done it better. And when I summarize such arguments to my non-Polish friends, they don’t believe me.

    • BRONISŁAW CHLIPAŁA Mi 8 Aug 2018 at 09:22 - Reply

      całkowicie błędne podejście i błędna argumentacja. Proszę odnieść się do Art.91 naszej Konstytucji i wówczas zrozumiesz , że to nasze instytucje a prawo europejskie jest nasze. Znamy prymitywną i z założenia opartą na kłamstwach, lecz ta propaganda nijak się broni jeśli pytany zwolennik PiSokleptokracji czy chce powrotu granic, zakazu pracy, braku ochrony prawnej umów w Europie robi wielkie oczy, że i to jego może dotyczyć

    • Dr. Marcin Michalski Mi 8 Aug 2018 at 09:37 - Reply

      Dear Prof. Sadurski: you are welcome. However, you completely missundersttod my point. My intention was not to participate in any debate about term of office of prof. Gersdorf. Maybe I am not even PiS supporter? My point is, that is lamentable for you and your milieu to conduct polish political debate on .de-site, after foreign goverments denied significant support to overthrow polish goverment.

  12. BRONISŁAW CHLIPAŁA Mi 8 Aug 2018 at 09:12 - Reply

    this appeal is very important for us in the country and it made an impression among many of my friends on FB. Thank you, wise and sensitive people for this appeal. we are all Europeans

  13. Piotr Mi 8 Aug 2018 at 10:00 - Reply

    Thank You <3

    we need in Poland your loud voice defending our freedom

  14. Henryk Jankowski Mi 8 Aug 2018 at 10:10 - Reply

    Thank you very much for your support and argumentation. We need it in Poland to stop the devastating policy of the current authorities. The voters have given them right to rule, but not to violate the Constitution.

  15. Michał Kurpanik Mi 8 Aug 2018 at 10:24 - Reply

    Thank You <3

    we,"the Peopel and Souveraign" need in Poland your loud voice defending our freedom !!!!

  16. J. Domaradzki Mi 8 Aug 2018 at 11:17 - Reply

    I see, it´s a new place of Targowica, „ulica i zagranica“.
    All the commentators are Polish. Is it necessary to write in a foreign blog? Don´t you know „foul one’s own nest“?
    I feel ashamed on your behalf.

  17. Jozef Mi 8 Aug 2018 at 12:21 - Reply

    Thank you

  18. Christian Boulanger Mi 8 Aug 2018 at 12:47 - Reply

    It’s saddening to see so many commentators here fall for the us-vs-them narrative of the governing nationalists (whether they believe their own narrative or just use it as a mobilizing ideological tool): as if the only „true“ Poles would be those who uncritically support everything the PiS government does! Whereas the real patriots, in my view, are those who support goals that make the whole country better off for all citizens. Which is most probably inside the European Union, which is a club that has rules that were agreed to when Poland joined. And last time I checked, a majority of Poles were in favour of staying in the Union. So before you accuse your fellow citizens of conspiring with the enemy again, think about that you might not represent your nation very well, neither in identity, nor in its common interest.

    • Dr. Marcin Michalski Mi 8 Aug 2018 at 17:42 - Reply

      It is interesting that in Poland even communists are ‚true Poles‘. Contrary, in Germany almost no-one would claim to be ‚true German‘. It is not easy to understand centuries-lasting polish debate about patriots and traitors. I recommend Norman Davies‘ ‚God’s playground‘ for historic background.

  19. Prof. Dr. med. Leszek Wojnowski Mi 8 Aug 2018 at 14:44 - Reply

    The older ones among us will remember the rethoric of the Gomulka regime in 1960s: traitors acting on behalf of certain (German, Zionist: chose one) circles, slandering the good name of Poland, with the support of foreign press. PiS is like PZPR of the 1960s, both in form and in parts of the program, and in the arguments of its supporters.
    If we ignore law in favor of the will of a majority ruling at a given moment, we will return to our default state of a failed country. Let us talk about it as long as possible – the next „reform“ will target the press and social media.

    • Dr. Marcin Michalski Mi 8 Aug 2018 at 17:47 - Reply

      The older and younger should also remember the lack of free elections and free press in 1960s. If you are afraid about the current situation, why not vote for opposition?

  20. Prof.Dr. Adam Kapuczynski Mi 8 Aug 2018 at 16:47 - Reply

    The new president of the Supreme Court is Prof. Donald Duck.

  21. I fully support your efforts for Democracy and the rule of law in Poland. pls include me in your letter if it isn’t too late Best prof Marlene wind

  22. Zbigniew Lisiecki Do 9 Aug 2018 at 02:53 - Reply

    One can read the polish Constitution in two ways: 1. that the retirement age touches the 6-years term of the Supreme Court President. It’s hard to guess, what exactly the creator of the Constitution wanted. Yet citizens, who voted for this Constitution seem dramatically to want substantial reforms of polish courts and to throw old judges away, as this system generally did not work properly not just.

  23. Christian Boulanger Do 9 Aug 2018 at 13:11 - Reply

    @Zbigniew Lisiecki

    I haven’t seen any convincing proof of the claim that the majority of Poles wants the current onslaught to happen. They do not seem to care much, because other issues (like social welfare) are more important to them. PiS maybe had an electoral mandate for a „reform“, but not for a full-scale attack on the independence of the judiciary (that explicitly was not part of their election programme). According to opinion poll data[1], there existed discontent in the population with the protracted nature of trials, court proceedings being too complicated, and with judicial corruption. However, there is little empirical proof of actual endemic corruption, and almost none of the „reforms“ of the government address the problems that do exist[2]. Instead, they are about undermining the independence of the judiciary and taking control of it in a way that is incompatible with European standards. Kaczynski has been explicit on this, and most of the arguments („corruption“, „communist judges“[3], etc.) are just talking points that are fed to uncritical supporters and are stereotypically repeated over and over again in forums like this without any thought on whether they are actually true.

    [1] https://polishpoliticsblog.wordpress.com/2018/07/31/how-is-polands-judicial-reform-conflict-affecting-its-political-scene/
    [2] https://twojsad.pl/wp-content/uploads/2018/03/iustitia_response_whitepaper.pdf
    [3] https://www.iustitia.pl/en/118-information/2274-the-arguments-of-polish-judges-association-iustitia-related-to-the-pm-mateusz-morawiecki-statements-at-the-meeting-with-foreign-journalists-on-january-10th-2018

    • Dr. Marcin Michalski Do 9 Aug 2018 at 14:22 - Reply

      The majority of Poles have heard about the yesterday’s scandalous mild sentence for prominent journalist who caused car accident while not possessing the driving license. Majority of Poles want the ‚holy cows‘ to be sentenced as ordinary people. Majority od Poles wants consequences for corrupt judges and welcomes newly introduced ‚disciplinary chamber‘ at supreme court. Lot of Poles believes that politically engaged judges like Gersdorf would obstruct the necessary reforms and want them go.

  24. Christian Boulanger Do 9 Aug 2018 at 14:58 - Reply

    @Marcin Michalski I understand that you and lot of people you know think like this and that is ok. But it is not an argument in the discussion whether the current behaviour of the government is legal or legitimate, since people have all kind of opinions and I can point you to many Poles who do not think like you. Your assertion that a „majority of Poles“ want something is just that: an assertion.

    • Dr. Marcin Michalski Do 9 Aug 2018 at 17:20 - Reply

      The new law and its prossecution is legal and legitimate, because of correct elections and correct legislative process. Almost no-one has doubt here. The people not supporting current government are free to participate in next elections and vote for different solutions. The dispute is about the question, if the new law is constitutional. In Poland, the law is constitutional by default, until constitutional tribunal decides opposite. Normal procedure would be put the tribunal in charge to prove the new law, which would have then to be changed (as happens in most cases for example in Germany). However, political opposition in Poland prefers street protests and support from abroad, like this ‚open letter‘ of communist system beneficiary Prof. Sadurski and his friends.

  25. Christian Boulanger Fr 10 Aug 2018 at 12:24 - Reply

    @Marcin Michalski „Almost no-one has doubt here“. Except the Association of Judges, the Congress of Polish Lawyers, almost all respected constitutional law experts, and a substantial part of the population. I know, their voices won’t convince you. But let’s stick to the facts, please.

    • Dr. Marcin Michalski Fr 10 Aug 2018 at 21:18 - Reply

      Dear Christian, it is pleasure to discuss with you. Repeated, due to my best knowledge, the current dispute is contitutional only. But I am convincable, please provide some links, if there are doubts of other kind. About the lawyer guilds: as all guilds, they defend status quo. Lawyer guilds are very efficient to lobby in own case (which is lot of money and no liability). And lawyers in general are trained and paid to argue for any case or its opposite, not to pursue for the truth. Which constitutional law experts do you exactly mean? Maybe those from Central European University? Would you really believe they would dare to represent views different from their sponsor, Mr. Soros? Substantial part of the population? They are represented in polish parliament, and free to vote in next elections. Regardless of the current crisis, I think you do not understand well the cultural difference between Germans and Poles. I lived in Germany for 15 years and I saw that you Germans have great need to convince all yourselves for certain solution (history proved that you can also be almost all wrong). We in Poland prefer rather republican approach, typical for USA: apply an idea of majority (even if just majority) without too much concern about even substantial minority.

      BTW, what do you think about following situation: a new law broadly accepted in society is renederd non-contitutional by contitutional tribunal. The lawmaker decides to ignore the tribunal sentence, and this decision is bradly accepted in society. What should constitutional experts do? Stand for popular (and their own) political views, or for legality?

  26. Christian Boulanger Sa 11 Aug 2018 at 13:15 - Reply

    @Marcin: I welcome very much if it is possible to discuss these questions in a polite and reasonable way, and it is a pity that both in Hungary and in Poland this kind of discussion has mostly destroyed by the political polarisation of the last twenty years, for which all political camps are to blame, but the nationalists in particular.

    But if we want to have this kind of conversation, one thing doesn’t work: Trying to discredit arguments by referring to the supposedly evil source of the argument. It’s called Ad Hominem Fallacy and it’s worthless and damaging for a discussion. As well as I have to take serious the arguments of the right-wing Ordo Iuris Think Tank, those of the PiS government or, if you want, of Carl Schmitt. You will have to take serious the arguments of Polish (leftist or centrist) lawyers, judges, CEU university professors, or Mr. Evil Soros himself (who is completely overrated by the right or simply used as a convenient scapegoat or for conspiracy theories). It is not to your advantage if you argue that CEU professors will automatically echo the views of „their sponsor“ (they do not), but even if they did, you’d have to take these views at face value.

    Some lawyers are in for the money, of course, but so is everybody – or are you doing your job for free? You don’t, for one thing, seem to know how legal academia works. The currency there is reputation, no money, and reputation is gained by making good and convincing arguments in articles and books. Of course, people are people and some will write what the government wants to hear, in hope of a promotion once the government gains control over academia or over the judiciary, Some will accept money to write whatever the client(government, opposition, or the devil) requests, but if they do it poorly, it will destroy their academic reputation. The law is ambiguous, and people have their views and interests, so the interpretation of the law will differ. But each interpretation has to hold up against criticism and sometimes consensuses develop about, for example, the interpretation of constitutional norms or the relationship between constitutional and ordinary legislation.

    Others will be much better in pointing you to the relevant links in Polish, but every and each article that has been published here at the Verfassungsblog on the issue has been pointing out the unconstitutional nature of the replacement of TK judges, of the dismissal of Supreme Court judges, and of the so-called „judiciary reform“. I invite you to read them, and then point out the flaws of the arguments. So far, the proponents of the government have come up with little more than „politics/the will of the majority is above the law“, „all all critics are traitors“ etc.

    I do agree with you that parliament is the legitimate representative of the population, and that the most important political questions should be decided there. But parliament is constituted by the constitution and must play by the rules of the constitution. If PiS don’t like the constitution, it must get a majority that is sufficient to change it. They don’t have it, they don’t even represent half of the Polish population. As you say, „The law is constitutional by default, until constitutional tribunal decides opposite.“ The (previous, independent) TK has ruled repeatedly that the legal actions of the Government were unconstitutional, but the government has disregarded these rulings and replaced the TK judges, destroying judicial independence this way.

    I know that German political culture can be puzzling, but I am not convinced of your juxtaposition of „we Poles“ and „you Germans“. Political culture is always changing and even if a specific notion of the political is dominant during one period of a nation’s history, it can quickly change (as German History shows as you sure will agree). Political culture is also very heterogenous and diverse („the Pole“ or „the German“ do not exist). I am not interested in imposing anything German on Poland, I am just interested that Polish politics is in line with European standards so that my Polish friends who do not share the majoritarian vision of politics (and there are quite many of them – PiS represents only 40% of the population) will have their views heard – which for example is not the case in Polish state media. And that the rules are not retroactively changed without the constitutionally required majorities.

    As to your question: That’s a very important that question that has been discussed in the legal and political science literature for decades. The general answer would be that constitutional lawyers would vote for legality (i.e. the judgement holds), even if they think that the decision is wrong in substance. Political scientists will tell you that courts generally do not decide against what they assume to be a clear consensus within society and politics. The problem with your example is that you do not define „broadly accepted“ – how do you measure that? By opinion polls? By reading the op-eds of major newspapers? In particular, it wouldn’t apply to what we have seen in Poland in recent months. The government has a clear majority in Parliament and is leading opinion polls, but that is far from „broadly accepted“.

    • Dr. Marcin Michalski Mo 13 Aug 2018 at 08:28 - Reply

      Dear Christian,
      1. I agree it is a bit of pity, that polite discussion is fading. However, I don’t regret the polarization. It is positive to maintain political pluralism, which is greater in Poland compared to western Europe (I don’t know the situation in Hungary). My personal experience is a bit different at this point. Few years ago I purchased subscription of liberal ‚Gazeta Wyborcza‘-online and started to discuss on their internet forum. There was some hate there, but lot of reasonable people, too. Once I got a bit renowned, the moderators started to remove my contributions, which were just inconvenient, not unpolite. Even my adversaries complained about it, but it didn’t helped. Of course I resigned from the subscription. Now they have what they wanted – no discussion, only short contributions confirming they are right.

      2. I partially agree with you to not abuse ad hominem arguments. However, I think it is always halpful to understand personal and historical context, because I think the views are primary, and arguments secondary (I am not sure, but possibly it has been proved scientifically). About people involved in former polish communist regime – I respect their arguments, but claiming they are not biased is not acceptable for me (we are biased too). Of course I am aware that standards in democratic Germany are a bit different than anywhere else. Some people received another chance, based on their competence, regardless of the past. For example Heinz Reinefarth: lawyer, Westerland community major, formerly SS commander, responsible for killing tens thousands of civilians during Warsaw uprising (illegal uprising, of course). It is bold, but you already proved to understand sarcasm.

      I am afraid you try to impose kind of moral advantage at this point. You can be noble-minded to claim that only arguments are important, not the persons, and demand it from others. But let us go step further in that direction. Imagine that you are hired to argue for a good thing, extension of superhighway network. You do your job well, and finally you mention that your convincing arguments originate from plans sketched by Adolf Hitler. I guess it would be the end of your career 🙂 Of course I am aware that I loose this thread of discussion pulling ‚ad Hitlerum‘ argument 🙂

      Also, I am aware that arguments involving not the adversaries itself, but also their relatives are even more unpolite, and actually very tabu in Germany. But I understand this historically: the question which moral standard is represented by someone’s father or grandfather obviously leads to the question, what father/grandfather did during WW2. And of course, harmless positions at military hospitals or kitchens are sparse….
      We are much easier at this point in Poland.

      3. You actually convinced me to take arguments seriously regardless of source. However, I will claim the right to exploit the boundaries of public discussion defined by prominent ‚Annen vs Germany‘-case, which secures freedom of expressing unconvenient facts about the adversaries. I hope you respect it (actually, I hope this is checkmate 🙂 ). BTW, ‚Annen vs Germany‘ proved just (ausgerechnet) german authorities (both administration and courts) restrict freedom of speech too strongly.

      4. You laugh at conspiracy theories, but let you consider it seriously for a moment. Is it really possible to prove they are not existing? Or, in general, is it possible to proove with certainty, that anything (God, unicorns, Yeti, Devil….) does not exist? Contrary, conspiracies are known in history. One prominent example in recent polish history is former president, Lech Wałęsa. Without going into details, some of his decisions were controversial, but clearly understood if his former collaboration with communist secret service is taken into account. I don’t claim he was not the patriot, but at least vulnerable for blackmail. Please understand me, I don’t see conspiracies everywhere, but they are at least a possibility.

      5. I am very curious about CEU professors which are not in-line with Mr. Soros. Can you provide any name?

      6. Of course I am not working for free. However, I offer my servces on the free market, and try to convince my customers by combination of high quality and acceptable price. Also, if I do some statement for the customer, I wouldn’t claim the opposite for another one. Contrary, guilds are convincing the lawmaker to secure their monopoly, which is simply unfair and devastating for the economy. My personal experience in Germany is following: I have had rather simple dispute with the bank, which could be resolved in civilian court. Unfortunately, it was not possible to represent myself because of the ‚Anwaltszwang‘. The nice attorneys I consulted demanded around 20000 € for few days of work, and were cheeky apparently sorry not to be allowed to offer lower price due to the law. I am trying to be as polite as possible, but I f**k such law and despise people responsible for it.

      7. About scholars: I agree the money is not the primary incentive at reserch institutes. You are right about the reputation derived from argumentative work. However, you can get reputation easier, if you work in politically correct direction. Hence, you get your goals easier following the stream. Scholars can be courageous, but they do not need to. Hence, very most are not. No wonder that really brillant intelectuals, like Dr. Thilo Sarrazin are no more scholars.

      8. About TK: Some goverment actions could have been unconstitutional, but the core of dispute is the question, if TK can decide in its own case. Also remember that first unlawful judge replacemnt was conducted by today’s opposition with time advance just before elections (president Obama did exactly the same with supreme court candidate, and then cheeky critisised polish government). If I remember well, PiS has had a choice to accept unlawful action and take own disadvantage or counter with another unlawful action. As both options are unlawful, only political decision is possible and appropriate. I also think it is interesting to think about the consequences. If the opposition does not recognizes TK, does it mean it accepts the new laws as constitutional? In my opinion it should. Or do they not recognize any new law?

      9. However, even if TK judge replacement was unconstitutional, I dissagree that it makes TK or their judges automatically dependent. In TK, like in BVerfG, the judges have some political background, but once elected, their term of office cannot be shortened, which makes them immune to direct political pressure.

      10. You apparently want the idea of nation to dissappear (like Mr. Soros). I understand it, it is because german history. But your experiances are not of universal nature. I find the nationalism meant as love for cultural, political and teritorial community very positive, provided the love is without hate against other nations. Of course, we are all humans. Due to my personal experiance I find Germans and Poles have very similar, a bit pessimistic mentality, and actually I like Germans (sometimes it is ‚Hassliebe‘). However, there are differencies, which are much deeper as cultural changes over last century. They originate from centuries of histrical experiences. I believe the german strong need for concensus originates from XVII century, the times of 30-years war. Poles are half-anarchists from the golden age of Poland in XVI century, and became even more suspicious against any authority in XIX century, as Poland did not exist. It is your choice to respect it or not, but I think it is easier to understand the world applying the common sense. However, I don’t want to convince you. I just find cute to claim something like ‚“the Pole“ or „the German“ do not exist‘. I you want, let „the German“ not existing, but don’t deny „the Pole“ the right to be real.

      11. Speaking about ‚european standards‘ is another sensitive point. The citizens of Poland and Hungary are Europeans in the same extent as citizens of other european countries. So our standards are european per definition. Agree, there was times that lot of Poles have a need to aspire for apparently higher western european standards. The times are gone. If you claim you are somehow wiser to know what are ‚european standards‘, let us begin discussion how the european standards (as you define them) are applied in your country.

      12. I guess your polish friends actually supported republican or marjoritarian system. Now they changed their minds, but they will change it again when their repressentatives win the elections 🙂 Thank you for 40% support for PiS. Lot of people in Poland are speaking about 18%, manipulating number of those who didn’t participate in elections. Polish opposition have very broad access to media. The majority of media belong to international investors and/or are opposition-friendly (for example televisions TVN (10% share), Polsat (11% share), newspaper Gazeta Wyborcza, internet site Interia). The public television in Poland (17% share with 2 channels) is government-controlled, but some limited access for opposition is guaranteed by law. Exactly this minimum was available for PiS prior to last elections. Did your polish friends or anyone at Verffasungsblog complained about it? BTW, what do you think about AfD-bashing in ARD and ZDF?

      Even if there were problems with media freedom in Poland, in the age of internet everything is available there. BTW, why pi-news.net is not pi-news.de, hosted in Germany?

      BTW, I am interested, how many of your polish friends (besides of me, of course 🙂 ) resides in smaller towns, say below 20k inhabitants?

      13. I can confess now, that my question was just prelude to bold provocation. You are surely aware of the fact, that murdering of humans prior to their birth is vorbidden in Germany (§218 StGB). You also know, that punishemnt will not be imposed, if the murder is informed about other available options (§218a StGB – weird, isn’t it?). Surely you also know that BVerfG sentenced abortion to be unconstitutional in 1990s and demanded EFFECTIVE protection for not-yet-born human beeings. However, the lawmaker ingored the issue, because the current law is broadly accepted (take the measure of your choice). BVerfG has of course no instruments to prossecute its sentences, so the liability for the current situation is on goverment side, and indirectly by virtually all of german voters (as all political parties are happy with the solution). My next question is, where all constitutional law experts are??? Hundreds of your children are killed each day, but it seems more important, if few polish judges retire at the same age as ordinary workers.

      • sv Mo 13 Aug 2018 at 20:25 - Reply

        „No wonder that really brillant intelectuals, like Dr. Thilo Sarrazin are no more scholars.“

        Mr Sarrazin has never been a scholar, but he is a good example for what you seem to find „brillant“. He scrambles nonsense together and labels it „unspoken truth“ or „anti-mainstream“ and can rely on the sheep to buy it.
        In fact, he became so rich that he publicly states that 800,000 € would have a mere symbolic value for him.

        You made a page long rant about how rules are obsolete and can be broken as long the „right“ people are trying to break them. That’s plain but not a serious argument.

        and btw: You have no f**king clue about the state of Germanys discussion about its past.

  27. Christian Boulanger Fr 17 Aug 2018 at 11:07 - Reply

    Sorry, I cannot answer at the moment because of a death in the family.

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