Michał Bieniak: The Polish legal system has been ruined. What now?

My late advisor, Professor Witold Wołodkiewicz, once published a series of articles in "Palestra" under the collective title "Has Roman Law Cessated to Exist?" Today, shortly before Karol Nawrocki's inauguration , we must ask ourselves whether the Polish legal system still exists, and if not, what role should lawyers play in overcoming this crisis.

I don't think anyone needs convincing anymore that the Polish legal system has been ruined. The key issue now is no longer the dispute over whether the Constitutional Tribunal was properly staffed (I personally believe it wasn't) or the status of the so-called neo-judges. Nor is the question of who bears responsibility (though that seems rather obvious).

We can illustrate our situation in light of HLA Hart's concept. It assumed that the legal system comprises two types of norms: primary and secondary. Primary norms are simple commands and prohibitions, which we tend to identify with legal norms. Rules of recognition – in simple terms – encompass, among other things, the rules of lawmaking and dispute resolution. They are, to a certain extent, hierarchical in nature. Using the example of Poland, this can be illustrated this way: a statute determines which minister may issue a regulation and within what scope. The Constitution grants the Sejm, the Senate, and the president (to varying degrees) participation in the enactment of new laws and the procedure for amending the constitution.

Going back in time, we can find similar norms in previous constitutional provisions, until we reach the rupture of the state's legal continuity (around the beginnings of the Polish People's Republic or in the post-partition period). Therefore, we must, in a sense, accept the authority of the first Legislative Sejm on faith. It was it that first laid the foundations for the political system of the regained Polish State.

The structure of the judiciary is somewhat similar. The Constitutional Tribunal is authorized to rule on the constitutionality of statutes. It could be argued (in accordance with the concept of distributed constitutional review) that common courts also have this right. However, even accepting the concept of distributed constitutional review, we always end up with a body whose competence we must accept, as it were, on the faith or force of its authority. Regardless of how unwise the Constitutional Tribunal's decision is, no other state body has the right to review its correctness. Except, perhaps, for the obvious exception of exceeding its authority. Therefore, no matter how much we dislike the decisions of the Supreme Court or the Constitutional Tribunal, there is no other body with the authority to challenge them.

So much for theories. Now let's examine where we find ourselves today. As a result of the actions of the Law and Justice government from 2015 to 2023 (primarily the refusal to publish Constitutional Tribunal judgments), we find ourselves in a situation where each side of the political dispute (this applies not only to politicians but also to their supporters) has ceased to recognize the rulings of certain courts and judges. Above all, however, the question has arisen as to whether two of the most important judicial bodies (the Supreme Court and the Constitutional Tribunal) actually exist at all.

This disturbed system still functions to a certain extent in non-political cases at the level of district, regional and appellate courts, although dysfunctions appear here too, for example, refusals to grant an enforcement clause to final judgments or prolongation of proceedings due to the elimination of new judges from adjudicating. The legal system, however, has completely collapsed at the level of the Supreme Court and the Constitutional Tribunal.

At the same time, both in political rhetoric and in the practice of state bodies, we find ourselves in a situation where court rulings are being questioned on both sides of the political barricade, and officers of the Border Guard, Polish Army, and Police are being attacked by one or the other side of the political dispute, depending on the time and needs. At the same time, the highest state authorities are failing to provide them with the necessary support, refusing to take responsibility for their previous decisions. On every legally disputed issue, each side of the political dispute is also capable of presenting professorial opinions with contradictory conclusions.

It's safe to say, then, that Polish law has ceased to function, and the dispute over the presidential election results is a prime example. Regardless of which side wins the election, a significant portion of society would not (or does not) recognize its results.

Since the system has ceased to function, the question arises: how to find a way out of the current situation and what the role of the legal community should be in the current situation. First and foremost, let's establish one thing. For months, I've been repeating in subsequent publications that lawyers will not resolve an existing dispute. Every legal opinion will be countered by another legal opinion, coming from the other side of the legal barricade. Of course, I (like my colleagues) may have my own personal opinion on the validity of some of these opinions, but it won't penetrate the existing media and social bubbles.

We must therefore finally realize that this dispute will not be resolved by lawyers. Such illusions were possible in 2016, but not today, nearly 10 years later.

We must also realize that there is no returning to the pre-2015 situation. There are too many new judges whose removal from adjudication would mean the ultimate collapse of the justice system. The authority of the Supreme Court, and above all, the Constitutional Tribunal, has fallen too low to regain their authority without political compromise and a thorough overhaul (including personnel).

Blocking the emerging anarchy of law and the entire socio-political system is currently possible in only one of two ways. The first is to introduce an authoritarian regime and rebuild the state's authority through the use of brute force, underpinned by a specific socio-political message (likely nationalist or conservative). The second is to achieve a political compromise and create new legal structures, including constitutional reform.

If we want to avoid the first solution, the role of lawyers should be to seek new solutions that will strengthen democracy and the separation of powers in the future to the extent that a renewed attack on them will be more difficult. So that after eight years, proposals for legislative change do not turn out to be unprepared. However, lawyers alone will not restore the authority of the courts and the law, so we are left with organic work and the search for compromises. Certainly, for many, this is less attractive than a media career.

Otherwise, in a few years, we will either find ourselves in the situation of an authoritarian state, or when going to court, like Pawlak in the cult film scene, we will have to take two grenades, because "court is court, but justice must be on our side."

Dr. Michał Bieniak, attorney-at-law, editor-in-chief of "Palestra. Pisma Adwokatury Polskiej", member of the Supreme Bar Council.

The text expresses the author's private opinions.