How Poland can restore the Rule of Law by referring to its constitutional foundations
The current debate on how to restore the standards of a democratic state under the rule of law in Poland reminds me of the dilemma faced by King Rex, as described by Lon L. Fuller. Like the king constantly falling into a trap we equally seem to be trapped. We know what should be done and what compliance with the rule of law means, yet we try to convince each other that every conceivable way out is bad. So do we need to refrain from taking any action and look in frustration at the systematic deformation of mechanisms that have worked quite well in Poland for a quarter century and protected us from pathology and the abuse of law?
To consider that nothing can be done until the end of President Duda’s term of office would be tantamount to admitting full-scale failure. All our thoughts, ideas and laborious institution building after 1989, the development of effective fundamental rights protection, the independence of the judiciary and the balance of powers would prove to be a house of cards that can be brought down easily by a new political arrangement adhering to a different legal axiology. We would also tell all those who, over the past few years, have not given up in their heroic efforts to uphold the ethos of the rule of law, often paying a high price (I think above all of many judges and prosecutors) that their fight was useless because we cannot do anything today.
I do not share the view that restoration of the rule of law is impossible. The legal system – its general principles and values – makes sense when it can fulfil its function as a guarantee: It is not just a beautiful idealist story of individuals having fundamental rights and freedoms, but both the foundation and an instrument for a healthy democratic life.
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