The Strength of the Attack or the Weakness of the Defence? Poland's Rule of Law Crisis and Legal Formalism

Abstract

Many people wonder why Poland, which used to be a paragon of successful transition from communism to liberal democracy, descended so easily to an illiberal state via a rule of law crisis. How was it that the defences erected against relapsing into illiberalism, namely independent constitutional and judicial review, were so easily undermined? The majority of commentators point to the strength of the attack on mechanisms ensuring the rule of law, while few focus on the weakness of their defence. In this paper, I argue that one of the reasons why the attack on the rule of law was so successful was the formalistic legal mindset which prevailed among Polish judges and lawyers. This mindset, which is a post-communist legacy, is characterised by a reductionism of interpretative premises that can be taken into consideration in deciding constitutional hard cases. In the Polish case, the reductionism is conspicuous in two main areas: first, in the application of bright-line rules without consideration of general constitutional principles; and second, in the judicial acceptance of politician's use of formal legal tools without consideration of those actors' motives. The conclusion I come to is that judicial formalism, commonly perceived as a tool for establishing the rule of law, can nonetheless contribute to its destruction. The Polish experience shows that the development of a robust, non-formalistic methodology of legal decision-making - one which makes use of general constitutional principles and tests the motives of constitutional actors - is a prerequisite for defence of the rule of law.