From the Facade to Solid Foundation? The Evolution of the Polish Constitutional Law Discourse in years 1944-1989

Abstract

Contrary to the widespread narrative in both Polish and European constitutional law discourse, this chapter argues that Polish constitutional law theory, as it evolved in the years 1944-1989, was an active subject rather than a passive object in the process of the transition from the authoritarian socialism to constitutional democracy. In order to depict the role that the Polish constitutional law discourse played in preparing grounds for the transition, I confront its evolution with the legal and political reality of the Polish People’s Republic (1944-1989). I describe the way the Polish constitutional law discourse went through in that period as a path from a façade to the foundation for constitutional democracy. The crucial role in this regard was played by a scholarly doctrine of constitutional review, unfolding from the late 1960s. It allowed the political elites, acting under vast internal and external pressure, to become a precursor of institutional changes in the region. The essential ingredient of these changes, namely the setting up of the Constitutional Tribunal, made Poland the only country in the Warsaw Pact with constitutional review. Despite the original intentions of the socialist political elites, the Polish Constitutional Tribunal played a crucial role in transforming Poland towards constitutional democracy in the years following its establishment. Thus, as I argue, the reforms of the 1980s might be treated not as a rejection but rather as an institutionalization of the Polish constitutional law theory as it evolved over the years. On the final note, I also consider how this evolution of Polish constitutional doctrines helps understand the constitutional law discourse regarding Central and Eastern Europe, including the recent debate on the origins of the rule-of-law crisis.

Keywords: Polish constitutional law discourse, constitutional review, transition towards constitutional democracy, Central Eastern Europe, academia, legal science, rule-of-law crisis