On Rebuilding and … Maintaining the Rule of Legislation – Verfassungsblog – Cyber Tech

“The Structure turns into the main focus of our consideration, the prism of our perspective. Our efforts are directed to understanding it – and lots of different issues in society as effectively – by way of its clauses, its ideas, its traditions. By this focus, we obtain a form of tunnel imaginative and prescient: a closing off to different prospects that will communicate in a distinct language and suppose another way, a closing off to worlds by which the Structure is just one doc amongst many, worlds by which the Structure is not any good thing, however solely a primary draft of one thing a lot larger and extra noble. And to suppose and speak, and focus our consideration on the Structure, to be trustworthy to it, and to not another factor, we should bolt the doorways, shut out the lights, block the entrances.” (J. M. Balkin, Agreements with Hell and Different Objects of Our Religion)

Place to begin – route – vacation spot

Once I take into consideration the problem of rebuilding the rule of legislation in Poland after years full of unimaginably lawless authorized and factual acts and hateful phrases tearing the Polish Structure to shreds and providing ample recipes, the place to begin is framing the dialogue. Given the size of unconstitutional destruction of 2015 – 2023, the rebuilding should be about optimum relatively than good options. Optimum as a result of sum of what’s attainable from a authorized and factual perspective inside the framework set out by the Structure, its rules and values, and the binding judgments of supranational and worldwide courts. An accurate description of the place to begin determines the route and supplies the background in opposition to which one can consider extra detailed legislative selections made alongside the way in which.

The route should be decided by “constancy to the Structure”. Constancy is an angle of dedication, dedication, and submission, for as a politician, legislator, and citizen, I undergo the self-discipline of the constitutional doc, which I pledge to uphold and restore its central place on the apex of the authorized system.

Our avowed vacation spot, in flip, should be framed in clear phrases as restoring the which means and respect to the fundamental components of the Polish authorized order. We should aspire and try to embed them now within the public consciousness higher than earlier than, as a result of someday we wish to be ready to claim that we now have certainly reached a particular state of voluntary “submission and give up” to and respect for OUR Structure. I argue that the latter should develop into the brand new narrative of attorneys, politicians and residents alike if we’re to succeed not solely within the normative sense (the present dialogue, undoubtedly vital in regards to the kind (query how?) of restoring the rule of legislation: by legislation or by decision, and many others.), pragmatic sense (the query in regards to the penalties of sustaining the present unconstitutional state of affairs) but in addition symbolic sense (the query why is the restoration of the rule of legislation of existential significance?).

Rebuilding the rule of legislation. Of signposts

First, we have to make it clear that between 2015 and 2023, the constitutional profile of the state in Poland has been altered. We didn’t have a mere disaster of the rule of legislation however relatively a ruthless struggle in opposition to the Structure. This has occurred with unconstitutional resolutions of the Sejm, constitutionally hostile “rulings” issued by the usurpers masquerading as constitutional judges and, most frequently, by de facto actions based mostly on sheer and blunt unconstrained drive. Collectively, they turned out to be deadly to the establishments and (because it turned out, extraordinarily fragile and weak) tradition of the rule of legislation on the bottom. Due to this fact, once we speak in regards to the rebuild at the moment, our restorative measures should not be merely technical/normative in nature. Relatively, any legislative answer adopted should pursue the first objective of restoring which means to the important thing components of our authorized and civic vocabulary, which have been stripped of any relevance and manipulated within the service of ruthless majoritarian politics: constitutional courtroom – rule of legislation – Structure – integration – respect – dignity of legislation – dignity of establishments – separation of powers – tradition of limitation. This symbolic dimension of our place to begin is essential.

Second, we should have a look at the method of restoring the legislation from a situational perspective. The selection of methods and strategies should be decided by the distribution of constitutional values in every case, the results of sustaining a state of affairs inconsistent with the constitutional doc for the whole authorized order, and, final however not least, by protecting recent the reminiscences of the unprecedented ruthlessness with which the system was destroyed per fas et nefas. These feelings and reminiscences don’t have anything to do with revanchism, which I reject, however relatively needs to be taken into consideration at the moment once we make a good-faith calculation of find out how to act and what options to decide on to revive the Structure to its rightful place as the best legislation of the land. It should be clear that those that go away with dangerous religion and vanity of their hearts and a transparent “observe document” of the destruction of the rule of legislation can not proceed to have a bonus over those that need to restore the integrity of the Structure. Sadly, they may proceed to get pleasure from it, if we settle for at the moment with legalistic helplessness the numerous booby traps and poison they’ve left behind them. When the state of affairs and the safety of constitutional values and the calculus of “doing greater than one thing” in opposition to “doing not sufficient” and easily ready, demand it, we should be prepared to maneuver decisively within the title of the Structure.

Third, and eventually, our strategies should be proportionate to the extent of the lawlessness on the bottom and the results of sustaining the unlawful established order. Our authorized creativeness may gas change, however solely when adopted by a willingness to behave and counteract outdoors the field. Considering outdoors the field is just attainable if we now have the braveness to critically reevaluate our present language. Restoring the rule of legislation is a course of that can be a mix of actions of various nature and depth. A few of them would be the realization of legalism, understood as compliance with the letter of the legislation, and a few would require one thing extra to guard constitutional values. This doesn’t imply, nonetheless, that what goes past the letter of the legislation should be mechanically categorized as illegal, simply as not each interpretation that goes past the wording of a authorized provision should be illegal in a state of affairs the place our literal interpretation would result in an absurd or clearly unjust outcome(s). Simply as we settle for that we will overcome a linguistic interpretation in an effort to exclude absurdity or injustice, the identical should go for the selection of strategies to revive the rule of legislation. Generally relying solely on the letter of the legislation will result in absurd penalties however, in fact, within the title of formal and self-destructive legalism (e.g., the naïve “let’s wait till the compromised judges of the Constitutional Court docket are gone or let’s imagine that they may now convert and swiftly develop into loyal servants of the constitutional doc …”). Isn’t it, nonetheless, the case that by pondering this manner, we impose on ourselves a very formalistic understanding of what it means to behave legally? Mustn’t the “authorized strategies” adopted and accepted correspond to the extent of the destruction of the rule of legislation and transcend the letter of the legislation? Such a rethinking of legalism requires effort and creativeness and as such challenges attorneys to adapt their vocabulary within the seek for options that will be optimum and applicable to the size of the destruction and to the prices of doing not sufficient within the title of misconstrued legalism.

Constancy to Our Structure is the center of the rebuild

The important thing phrase for the reformers at the moment and tomorrow should be “constancy” to the Structure, which has been rejected and humiliated for years. My constitutional constancy means not what the Structure does to me however what I do to myself and round me to stay trustworthy to the Structure. Constitutional constancy arises on the intersection of apply, textual content, interpretation, and tradition. As Balkin has convincingly argued:

To develop into the trustworthy servants of the Structure, we should speak and suppose by way of it; we should suppose constitutional ideas, we should communicate a constitutional language. The Structure turns into the main focus of our consideration, the prism of our perspective. Our efforts are directed to understanding it-and many different issues in society as well-in phrases of its clauses, its ideas, its traditions.

So understood, constitutional constancy is way more than the attachment to the textual content of the Structure as a result of the Structure itself is a lot greater than only a dry textual content. It’s also the values, establishments, and traditions for which the Structure serves as a reservoir and which it expresses. Constancy is loyalty to those components as effectively. A great structure is a doc by which the previous (the place will we come from?), the current (who’re we at the moment?) and the long run (the place are we going?) meet. Every of those three components interacts with one another: we will’t perceive the current if we neglect the previous, we will’t uncover the long run if we misconstrue the place we’re at the moment. Our constancy to the Structure should subsequently be outlined by anchoring previously, creating and rising within the current and transferring into the long run. Such a break up between seeking to the previous and seeking to the long run is the hallmark of excellent constitutions which are based mostly on textual content, context, and custom. The intergenerational aligning between what was, what’s and what can be is a problem for every technology, which should draw out the results of the commitments expressed within the constitutional doc. One should now decisively body and consider these non-textual concerns within the means of deciding extra technical questions as to how and by what legislative means one must rebuild the rule of legislation.

Past the rebuild: How you can maintain the rule of legislation for the long run?

In 2015 – 2023, we had been taught a really painful lesson: Our Polish rule of legislation, constructed from the highest down, resembled a fortress constructed on sands that would collapse on the slightest shock. Due to this fact, discussing at the moment “find out how to rebuild”, we can not afford as soon as once more to scale back this dialogue solely to a technical dispute between attorneys flipping arcane legalistic arguments hardly comprehensible by a very powerful stakeholders of this dialogue – the citizenry. We should, drawing on the good potential of KONS-TY – TUC – JA, ask ourselves how our dialogue in regards to the rule of legislation may be higher embedded socially and develop into a lived expertise in an effort to be “sustainable” past at the moment? This query goes past our legalistic exchanges and relatively challenges us way more demandingly: determining find out how to explicate the rule of legislation, what language to talk to the individuals and find out how to attain them?

All this at a time when eight years of dismantling the rule of legislation, in addition to the precedent days of authorized passivity, don’t work in our favour and aren’t conducive now to constructing the social legitimacy and credibility of the authorized career or convincing the residents that we do certainly care. Due to this fact every of us at the moment ought to ask what he can do round himself to make issues higher. What can I do proper right here, proper now? Not solely write, but in addition settle for invites to go to small cities and speak to those that are fearful, distrustful, and resentful, to at the very least attempt to clarify and, crucially, to hear. They and their voices are additionally a part of “We the Individuals”. Be able to say “no” when injustice occurs. Converse out. Don’t settle for “no, that can not be completed” as a result of such soothing “enterprise as normal” will lull you into passivity and escapism so craved by the would-be autocrats.

Let’s lastly keep in mind that for any socially “good change” to be lasting, it should begin and develop within the hearts and attitudes of the individuals and by no means be introduced “as a present” from the allegedly benevolent authorities. Any change begins on the micro stage round me and in me: on the stage of household, buddies, neighbors, group and municipality. Such a change takes infinitely longer than any social top-down engineering and, as such, is a scary proposition for attorneys who relish such a top-down method to the establishments and the rule of legislation. Are we attorneys prepared to border and embed the rule of legislation alongside these conceptual and imaginary strains that decision for sustained effort, persistence, and natural work?

After we argue about find out how to rebuild the rule of legislation in Poland, we aspire to learn not solely the legislation however, above all, “the Structure ahead” within the context of a political-legal-social system that has been corrupted in ways in which our conventional legalistic method can not adequately seize and categorical. Such reformative “Studying the Structure ahead” is of paramount significance because it focuses our dialogue not merely on the restoration of the rule of legislation at the moment and tomorrow but in addition on the upkeep of the rule of legislation as a social apply for future generations. This latter facet is essential to the long-term prosperity and survival of the rule of legislation in Poland. If issues are to get higher, this needs to be our most vital signpost not just for 2024 but in addition past. Solely then will the structure develop into OUR CONSTITUTION to which I profess my loyalty, will a choose settle for the mantle of OUR JUDGE whom I/we need to defend, and can Poland aspire to be an honest state below OUR RULE OF LAW.

Tall order and highest stakes attainable. They have to not be swept below the rug of legislative fervour this time round. As an alternative, let’s bolt the doorways, shut out the lights, block the entrances and suppose and speak the Structure and our constancy to it. The technical facet of the rebuild will then comply with.