Since the parliamentary elections in 2015 and the subsequent change in the personal composition of the Polish Constitutional Court, this institution has been in crisis. The Court, once one of the main guardians of the rule of law and a model for the constitutional judiciary in the region of Central and Eastern Europe, has been slowly losing its prestige and privileged position. The observed changes are most often described as part of the processes connected with illiberal democracy and populist constitutionalism. However, what is often overlooked in this type of analysis is the internal perspective of jurisprudence. What kind of decisions does the ‘populist’ constitutional court issue? How does it justify its decisions? What kind of ‘theory’ does it use?
This paper presents an interpretation of the so-called “constitutional crisis” in Central-Eastern Europe from an historical perspective. The author argues that the constitutional crisis is due to the peripheral character of constitutional liberal democracy installed after 1989. The “illiberal” turn is treated as side effect of a struggle for a democratic
This paper examines the implications of certain forms of liberalism and illiberalism for the rule of law. The rationale of the rule of law is to reduce the possibility of arbitrary exercise of power. That is why liberals like it. The paper discusses, two forms of illiberalism that do not like it, and explores convergences and differences between them: ‘eliminationist’ illiberalism, particularly Marxism, and ‘unbinding, unleashing’ forms of illiberalism, among them those bequeathed by Carl Schmitt and contemporary heirs, including the ‘populist’ regimes of Jarosław Kaczyński and Viktor Orbán. Finally, the paper discusses how we should conceptualise the distinctive (though not unique) attempts of contemporary illiberal populist regimes to use law and rule of law rhetoric for illiberal purposes, rather than openly reject or blatantly bypass it.
The conditions of constitutionalism do not depend solely on the state formation in the political sphere but also on ideas embodied in social practices regarding the relationship between the individual and public authority. The adoption of the liberal transitional constitution has reconstructed the hierarchy of values; however, legal practice maintained old rules of its interpretation. Because of the lawyers, the implementation of the rule of institutional law framework was understood as being located inside an institutional formal context of stability, already known from legal dogmatics. This perception of the constitution in a narrow sense, limited to logical-formal analysis, cannot exist anymore
In this paper, colored as it is by my knowledge and experience of democratic backsliding in Poland, I reflect upon the rise of autocracies characterized by electoral pedigree, and consider some consequences of these developments. I focus in particular upon its relative invisibility, which is due, among other things, to the fact that autocratic changes proceed incrementally, that their truly invidious effects are triggered by mutual interactions between various discrete changes, that institutions are not formally dismantled but hollowed out of their original meanings, and that assaults upon various pillars of democracy