Non-domination inside the Constitutional Tribunal? Dissent in the Polish Constitutional Tribunal

The aim of this paper is to critically approach the patterns of dissent in the Polish Constitutional Tribunal after its so-called capture by the governing Law and Justice party. The analysis departs from the mid-2015, when new judges started to be appointed by the new government, and continuous until until March 2020. It provides with the statistical overview on the number of dissenting opinions in the court, as well as briefly describes reasons for dissent. The paper tries to answer the question whether there is a fixed majority in the court jury that continuously agrees over the cases, or rather the dissent is possible and welcomed, what might be mirrored in different constitutional judges giving the vota separata. The analytical framework for this paper is the non-domination principle and its bearing on the majoritarian decision taken up in the court.

Integration as Promise: Temporal Nondomination in EU Constitutional Law

What might a temporal dimension of freedom as nondomination mean in the context of the EU and the law of treaties? Combining Arendt’s idea of new beginnings with external nondomination (that the body politic be undominated), temporal nondomination provides that bodies politic should commit to political ‘natality’ and action. That is, rather than eliminating their contingency through (sovereign) domination, bodies politic should instead structure it through mutual promise. It is argued that a constitutional treaty like the EU’s is a paradigm of this idea, and that the logic of nondomination extends to unions of states. At the same time, temporal nondomination elucidates the limits of such promises insofar treaties cannot ‘cover the whole ground of the future’, echoing known arguments against the purposiveness of EU law. The idea of new beginnings thus takes wide aim at rigid statism (including some strands of republicanism), thick cosmopolitanism, and purposive constitutionalism.

Pluralist Incommensurability and Non-Domination

The paper makes a claim for upholding an epistemic pluralist account of EU constitutionalism, and reinterprets it in the light of the category of non-domination. An underlying argument is that this vision of pluralism, initiated by Neil Walker, may be in many respects coherent with the tradition grounding the legitimacy of supranational relations on the lack of arbitrary power.
In order to further unfold the argument, a reference to the work of Alasdair MacIntyre will be suggested. MacIntyre, analysing ‘oppressive social relationships’, offers a version of the understanding of liberty as non-domination. Domination is equated with restrictions on actors’ possibility of engaging in practical reasoning.
What is common for Walker and MacIntyre is that both focus on incommensurability of axiological standpoints. MacIntyre’s ways of addressing domination in the context of incommensurability may help to elaborate the epistemic pluralist account.