How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding

72 Pages Posted: 18 Jan 2018

See all articles by Wojciech Sadurski

Wojciech Sadurski

The University of Sydney Law School

Date Written: January 17, 2018

Abstract

A dramatic change occurred in Polish constitutional politics in 2015: a combined presidential and parliamentary victory of the populist Law and Justice party [PiS] began a series of deep political and legal changes which turned the constitutional order on its head in many respects. In this paper, I provide a detailed account (in Part 3) of how comprehensive and momentous the legal changes are, in particular going so far as to dismantle institutional checks on the government (including paralysis the Constitutional Tribunal, and then conversion of it into an active supporter of the government) and to erode a number of individual and political rights, such as the right to assembly and privacy. This account is preceded by first outlining the general characteristics of Polish transformation since 2015 (in Part 1), and then explaining why the concept of “anti-constitutional populist backsliding” is the most appropriate way of characterising it (Part 2): it is “anti-constitutional” because it proceeds through statutory “amendments” and outright breaches of the Constitution; it is “populist” because the ruling elite is actively concerned to foment societal support and mobilisation, and it is “backsliding” because it should be seen against the baseline of high democratic standards already achieved in the recent past. After providing this account, I offer tentative explanations of the sources of PiS electoral success and then of its strong popularity in the society (Part 4), and in the Conclusions, I take a step back from the detailed account to offer more general observations about what the Polish case can teach us about the vexed question hotly debated in political sciences and constitutional theory these days, namely whether a “populist democracy” or “illiberal democracy” is still a democracy tout court.

Keywords: Poland, Constitution, constitutionalism, democracy, illiberal democracy, democratic theory, Constitutional Court, judicial review, transitional democracy, rule of law, human rights, populism

JEL Classification: K10, K30,

Suggested Citation

Sadurski, Wojciech, How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding (January 17, 2018). Sydney Law School Research Paper No. 18/01. Available at SSRN: https://ssrn.com/abstract=3103491 or http://dx.doi.org/10.2139/ssrn.3103491

Wojciech Sadurski (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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