On the Relative Irrelevance of Constitutional Design: Lessons from Poland

Abstract

The paper begins with a reflection on whether there had been a proper constitutional ‘design’ in the case of Poland, considering the path-dependence and contingencies of the current constitutional set-up. It then provides an account of certain patterns of constitutional breaches which have been commonplace since 2015, and which render reflections on the resilience of constitutional design problematic. A case study of one institution follows, namely of the Constitutional Tribunal, and it is shown how the authorities managed to convert it (basically, with no formal changes in its institutional design) into an active and enthusiastic helper of the legislative majority and executive. More general observations are offered on the relationship between constitutional design and the ‘human factor’ occasioned by Polish democratic backsliding, and on the possibility for ‘institutional self-defence’ within democratic constitutional design. The paper concludes that formal institutions must be underwritten by norms which are by-and-large shared, and by common understandings about what counts as a norm violation, even if formal legal rules are silent about it.

Keywords: constitutional design, constitutional theory, Poland, Constitutional Tribunal, unwritten norms

JEL Classification: K10, K30, K40