Statutory Anti-Constitutionalism

28 Washington International Law Journal (2019)

39 Pages Posted: 30 May 2019

See all articles by Maciej Bernatt

Maciej Bernatt

University of Warsaw, Centre for Antitrust and Regulatory Studies

Michał Ziółkowski

Kozminski University - School of Law

Date Written: October 31, 2018

Abstract

The article aims at demonstrating that unconstitutional results, marking an illiberal transformation may be achieved by means of a series of statutory amendments outside the constitutional amendment procedure, when the guardian of the constitution is deactivated. In other words, the evasion of the constitution becomes a means of illiberal change of the legal system. This process is referred to as “statutory anti-constitutionalism.” The article offers a detailed analysis of the legal methods which are used to evade the constitution. These include excessive use of transitional and intertemporal provisions in the statutes, shortening vacatio legis, shortening of constitutionally-determined terms of public institutions and creation of “mirror competences” or “mirror bodies” via statute in order to circumvent the activity of the constitutional bodies. The article is based on the 2015-2018 Polish experience.

Keywords: liberal democracy, constitutionalism, constitutional tribunals, courts, populism, Poland

JEL Classification: K10, K23, K38

Suggested Citation

Bernatt, Maciej and Ziółkowski, Michał, Statutory Anti-Constitutionalism (October 31, 2018). 28 Washington International Law Journal (2019). Available at SSRN: https://ssrn.com/abstract=3384304

Maciej Bernatt (Contact Author)

University of Warsaw, Centre for Antitrust and Regulatory Studies ( email )

Warsaw
Poland

HOME PAGE: http://www.cars.wz.uw.edu.pl/news_gb.html

Michał Ziółkowski

Kozminski University - School of Law ( email )

Jagiellonska 57-59 ST
Warsaw, 03-301
Poland

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