For over three decades, the position of the Constitutional Tribunal seemed to be solidly grounded in the Polish institutional landscape and the pluralistic public discourse. The presence of the Tribunal at the heart of the delicate composition of the structural separation of powers seemed unassailable. However, with the recent demolition of the Tribunal which started with the insidious in intentions and systematic in execution, questioning of its competences and the attacks on its very integrity as a key institution of a democratic state, we are faced with an end of an era.
As a society, we are experiencing a certain feeling of vertigo, where an illusion of solidity of something that we have taken for granted is being brutally broken by the realities of politics in its most archaic form of unbridled struggle for naked power. It concerns all spheres of public activity, and includes various means – often the gems of political ingenuity in themselves –employed toward disempowering of the successive elements of the chains of democratic control. The Polish Constitutional Tribunal has been an important part of this system.
The once thought of as a solid construction, built on strong foundations, the Constitutional Tribunal is laid bare before us a fragile structure that can be destroyed in a matter of months by an actor(s) determined enough to do such an unimaginable deed.
As Machiavelli would have it, these are the “real facts” – affected by the current dispensation based on the supremacy of the majoritarian rule and propelled by the “souverenist” impulse of aiming at undivided power as the ultimate model of governance. There is little point in getting into the discussion with the factuality of the moment.
But, in a good Machavellian spirit, we should approach the situation unfolding before our eyes, with a cool analytic eye.
Why what happened was allowed to happen? Why something that seemed so grounded and solid, melted into air so quickly? And how to rebuilt what was lost?
Transcending, for the purpose of this analysis, the internal Polish determinants and bracketing the political will of power of the clearly defined actors (like the parliamentary majority or the governing party), we have to ascertain that, looking from a global perspective, the situation with the Tribunal is one of the signs of the new epoch.
We live in an age of disruption. All over the world, stability in itself is rapidly losing its value as the attribute necessary for the efficient functioning of institutions. Instead of being legitimized by a linear series of out-puts, they have to exercise imagination and ingenuity in building transversal competences in creating and applying knowledge in fast-changing contextual environment.
In other words, institutions, existing in the realm of temporality, discover themselves, their capacities, and their limits on a constant basis. In order to fulfill their mission, they have to be imaginative enough to remove, from their mainframe thinking, all the preconceptions about their own existence and the nature of the world around them. They have to quickly adapt to to the new environment, in which their longevity and viability will be less defined by stable perimeters (discoursive or institutional) and more by the push-pull dynamics of discourse, reflection, action, and contraction in the field of diverse forces.
Until now, democratic institutions have legitimized themselves by either the concrete results (in the case of representative institutions such as parties and parliaments) or by popular acceptance of their role as a norm creator/carrier (and that was the case of the Constitutional Tribunal in Poland). The conviction was that the norm-based legitimacy was more solid than the fleeting political legitimacy. Once gained, it was essentially never to be lost.
What recent events in Poland (but with wider applicability, I think) teach us, is that this kind of static legitimacy is not enough in an age of disruption, when all the certainties are gone.
With the encroachment of the politics on all spheres of life, especially in its populist garb, the lines of institutional responsibilities will tend to get more blurred, and thus the classic separation of powers will become more porous, for good or for bad. Norm-creation will be a more inclusive process, involving social input, peer pressure, persuasion techniques, consciousness raising, groupthink, etc. They will be representations of a social dimension of a “personal knowledge”1.
We actually have already had an experience with this type “behavioral” and “crowdsourcing” approach to norm-creation in the case of the Ordo Iuris project concerning the change of law on abortion. This is a quite new territory that we are entering here. And in this situation it will be necessary to think about the separation of powers in a more creative fashion.
Sociology of knowledge teaches us that we are in an advanced stage of transition from the logic of procession to the logic of network.
According to Bruno Latour, “The logic of procession does not progress, except in intensity; it is afraid of innovation even though it continually keeps on inventing; it endeavors not to repeat tediousness, even though it continually keeps on repeating the same rituals. (…) It layers intermediaries, it does not capitalize on them”2. On the other hand, the logic of network, having its conceptual sources in both Bruno Latour and Thomas Kuhn3, redefines the procedure of attaining knowledge and introducing new protocols. Multiplicity of of layers of mediators is being replaced by the capitalization of mediations and gaining knowlege meant new information and not a different repetition of the same message. The message as such is to be treated as a piece of information in contrast to the previous mode of identification of message with the messenger.
The logic of network thus substantially changes and complicates the relations within the space of the separation of powers. It also significantly alters the mechanics inside.
For the logic of precession to succeed, the powers had to do their work in clearly defined areas. The mode of relation was based on remoteness and distance of all powers from each other. Each had different protocols of proceeding. The main instrument was cold exchange on statements, bills, verdicts, and other forms of what from the historical point of view can be called “archival paraphernalia” (materials destined for the archives from the very beginning).
The logic of network short-circuites this prolonged, and often burdened by symbolic meanings, process. The cold, remote model of exchange between institutions guarding its principles based on hierarchical structure, is being replaced by the goal of creating a close, virtuous circle of democracy where there is a constant flow of information and added-value capitalization of knowledge between institutions of the state. The state, and its structures, on the other hand, is also no longer a standoffish actor, but an active participant in what may be termed a “sacred conversation of democracy” on a global scale.4
The transnational aspect is one of the expressions of the “sacred conversation” that gains in value within the logic of network, but it certainly gives more immediacy to emerging discoursive practices on a local level. To form a virtuous circle of “sacred conversation”of democracy, it is crucial that the public opinion is involved in the process. All over, but especially in the craddle of constitutional government – the United States, there is a call for “bringing the people in” into the areas that they were previously excluded from5. What does it mean for the evolution of the separation of powers?
The age of disruption forces us to leave behind all the absolutist uses to which we have been accustomed: the hermetic sealing off governmental functions from one another is no longer tenable. Nowadays, there has to be a seamless flow of cooperation, mutual reassurances and committments, constant feedback, as well as durable links built with various communities beyond the three branches of government (NGOs, transnational actors, crowdsourced norm carriers ). It is unavoidable, though, that at all points of interactions there may appear some pitfalls resulting from the dialogical inadequacies of particular branches.
In the case of the legislative branch, the danger is that of giving in to populist impulses (or even creating/ enabling them on its own without preparing the viable mechanisms of control – it can be called the Frankenstein temptation). In the case of the executive branch, the obstacle is a drive for dominance. Especially when the state plays an important role in managing large sectors of economy (like in Poland), this drive for dominance can be an unbalancing factor.
When it comes to the judicial branch, the problem may be an exalted position of constitutional courts in social conscioussness (Germany is a case in point, as well as the U.S.), low personalization (relative anonimity of judges), and a certain austerity when it comes to playing the affective (as distinguished from effective) part of politics.
The thing is, though, that the effectiveness and the affective dimension of politics actually go hand in hand in the “sacred conversation” of democracy, governed, as it is, by the logic of network. In order to achieve fluency in that conversation, and carry on their mission (that is, being effective in extended world of networks), the institutions have to be able to forge attachments to themselves. Legitimacy is no longer given once and for all, and thus it has to be treated as a renewable resource. Obviously, it is quite difficult for constitutional tribunals to create an environment that would naturally encourage the display of affection on a large scale (except an emergency situation, when the very existence and public meaning of the Tribunal is in danger – as it is now in Poland). But the efforts have to be undertaken in that direction, not only when in crisis mode.
Actually, the level of broad-based popular support is increasingly important for mantaining the capacity for long-term resilience in the age of disruption. The affection of large swaths of society can form a protective wall around the institutions that do not have inbuilt defense mechanisms in confronting the illegitimate encroachments from other branches of the government.
As the case of the Polish Constitutional Tribunal and its tribulations show, the extreme political challenge to the legitimacy of the independent constitutional judiciary can unleash a wave of sudden popular support. But such a mobilization, although of high emotional quotient, is of short duration. Especially if faced with a really determined legislative branch joined at the hip with the executive.
Such an attachment will not be created overnight, of course. It has to be worked out. And it has to be understood not as a simple emotional response to some sort of one crisis or the other, but as an overall attitude, capable of withstanding both good and bad weather.
It would demand an adjustment both in society and in the constitutional judiciary. We must recongize that Constitutional Tribunal is only the last element of the whole constitutional process.
One of the questions at the beginning of this article was: why what happened was allowed to happen? It seem that the governing party has correctly identified a sort of a “Suwałki Gap” that exists at the axis between the Tribunal and the rest of the judicial system. As Tomasz Tadeusz Koncewicz wrote: “The minds of Polish judges continue to be hostage to the belief that the Constitution is a purely declaratory document with no normative content and no role to play in the judicial resolution of disputes. As a result, constitutional document is often relegated to the margins of the judicial practice6”.
The governing party precisely aimed its blasting guns at this “Suwałki Gap” of Polish lawmaking, blinding both the judges and the citizens.
Now, the judges did not come from nowhere, they are the sons and daughters of the Polish people. In the Polish society there never was a high identification with the judicial system and the Constitutional Tribunal. The Tribunal ‘s perception was that of an abstract, anonymous body, remote from daily concerns of so-called average people. Who would actually have been able to recall one or two names of the judges of the Tribunal, including its President, before December 2015, when the crisis erupted? Thus the Tribunal became an easy prey for political vultures.
As a follow-up of the crisis around the Tribunal, we should understand that the constitutional review is a complex process that has at its basis the affection of the people.
Harold Laswell’s famous question was: who gets what when and how7? It was mostly understood as related to distribution of political power and material goods, and – in the hierarchically-oriented logic of procession – a distribution of prestige.
In the logic of a network, this question will more and more turn towards the issue of distribution of sentiments.
The sentiments of the population and its level of attachment to particular institutions or branches of government will more and more define the sustainability of different forms of governance. This will concern especially the institutions the legitimacy of which is not validated by direct elections, like the Constitutional Tribunal.
Now, the Tribunal has been rendered impotent. But when the current storm is over and its true legitimacy is regained, the Tribunal would have to work out, with the assistance of the whole judicial sector and the public opinion, the new modes of imprinting its role in the hearts and minds of the people as a key interlocutor in the “sacred conversation” of democracy for years to come.
This article reflects author’s personal views.
REFERENCES
[1] Ackerman B., The New Separation of Powers, Harvard Law Review, Vol. 113, January 2000, No. 3,
[2] Harman G., Prince of Networks: Bruno Latour and Metaphysics, Melbourne: .Press, 2009,
[3] Koncewicz T. T., Polish Judiciary and Constitutional Fidelity: beyond the institutional „Great Yes”?,Verfassungsblog on Matters Constitutional, 12 June 2016, http://verfassungsblog.de/polish-judiciary-and-constitutional-fidelity-beyond-the-institutional-great-yes/,
[4] Kuhn T. S., The Structure of Scientific Revolutions, Chicago: University of Chicago Prerss: 1962,
[5] Laswell H. D., Politics: Who Gets What, When, And How, New. York: Whittlesey,1936,
[6] Latour B., On a crucial difference between instruments and angels: A sermon, RES, No. 79, March 2001 , p. 15,
[7] McCaffrey S. C., There is A Whole World Out There: Justice Kennedy’s Use of International Sources, 44 McGeorge Law Review 201, Pacific McGeorge School of Law, 2013,
[8] Polanyi K., Personal Knowledge: Towards a Post-Critical Philosophy, Chicago:University of Chicago Press, 1958
1 In contemporary understanding of knowledge, presented most fully by Karl Polanyi in his influential book Personal Knowledge: Towards a Post-Critical Philosophy, Chicago:University of Chicago Press, 1958, truly game-changing forms of knowledge come about as results of personal committments. We have entered the post-postivist understanding of science, that appreciates the personal dimension of knowledge-creating and sees it as indispensable element of the discovery processes.
2 Bruno Latour, On a crucial difference between instruments and angels: A sermon, RES, No. 79, March 2001 , p. 15.He explicates the matrix of differences between the logic of procession and the logic of network on p. 18.
3 Thomas S. Kuhn, The Structure of Scientific Revolutions, Chicago: University of Chicago Press, 1962. Bruno Latour, Reassembling the social: an introduction to actor-network-theory. Oxford New York: Oxford University Press, 2005.The most comprehensive treatment of Latour’s concept of networks can be found in Graham Harman, Prince of Networks: Bruno Latour and Metaphysics, Melbourne: Re.Press, 2009.
4 When it comes to jurisprudence, one of the most prominent proponent of infusing the international perspective into „localized” circumstances, is Justice Anthony M. Kennedy of the US Supreme Court, who, to the dismay of his more conservative colleagues on the bench, like, for example, late Antonin Scalia, methodically uses the cases from other countries or the European Court of Human Rights in his opinions. See:Stephen C. McCaffrey, There is A Whole World Out There: Justice Kennedy’s Use of International Sources, 44 McGeorge Law Review 201, Pacific McGeorge School of Law, 2013.
5 See, for example: Bruce Ackerman, The New Separation of Powers, Harvard Law Review, Vol. 113, January 2000, No. 3. and his idea of „constrained parliamentarism”.
6 Tomasz Tadeusz Koncewicz, Polish Judiciary and Constitutional Fidelity: beyond the institutional „Great Yes”?,Verfassungsblog on Matters Constitutional, 12 June 2016, http://verfassungsblog.de/polish-judiciary-and-constitutional-fidelity-beyond-the-institutional-great-yes/. Accessed Oct.15, 2016.
7 Harold D. Laswell, Politics: Who Gets What, When, And How, New. York: Whittlesey House, 1936.
