From Legal Impossibilism to the Rule of Law Crisis: Transitional Justice and Polish Counter-Constitutionalism

Abstract

Since 2015 the Law and Justice government has significantly altered the composition of the Polish Constitutional Court, the Supreme Court, and the National Council of Judiciary. It has also expanded the power of the executive branch in relation to the courts. This process – which the majority of scholars and legal practitioners see as a period of deterioration of the rule of law – also has a transitional justice dimension. In this paper, I claim that the decline of Polish liberal constitutionalism was possible because the current government managed to create an alternative constitutional vision – a counter-constitution, to borrow the term from Kim Lane Scheppele. The cornerstone of this counter-constitutionalism is the belief in ‘legal impossibilism’: strict constitutional constraints supposedly preventing the parliamentary majority from introducing crucial reforms, including mechanisms for dealing with the communist past. The analysis of the Polish constitutional framework demonstrates that ‘legal impossibilism’ perceived this way is a myth. However, under closer scrutiny and contrary to popular assumptions, in the transitional justice domain ‘legal impossibilism’ becomes interpreted by those currently in power not as restrictions preventing any reckoning with the communist past. Instead, it appears as restraints upon a radical shake-up in political, social, and economic hierarchies. For this government, without such a change the democratic transformation remains incomplete.

Keywords: transitional justice, constitutional crisis, counter-constitutionalism, legal impossibilism, constitutional sociology