Polish Martial Law on the Docket—Judging the Past and the Clash of Judicial Narratives

Abstract

The totalitarian regimes leave sometimes to the next generation a challenge of dealing with legal problems that lawyers will find later difficult to solve within the confines of democratic state governed by the rule of law. The authors analyse this process of coming to terms with the past through the prism of the Polish decree of 13 December 1981 on the Martial law. Two case studies chosen for their analysis show how two supreme Polish courts—The Polish Constitutional Tribunal and the Supreme Court—dealt with this very issue and each came up with its own understanding of how to look back on the martial law. The latter attempted to justify and uphold the judicial decisions made during the application of martial law in Poland, yet doing so, it violated basic tenets of legal axiology. The former, on the other hand, was determined to make good the damage wrought by the Supreme Court but while doing so it overstepped its own competences and in the process became a court of facts, rather than laws. The analysis shows how martial law continues to pose important conceptual and axiological questions and is everything but a matter of the past.