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Poland. A State under the Rule of Law -1

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GEOMETR.IT  4liberty.eu

There is no such thing (nor ever will be) as an ideal state under the rule of law. There existed, however, ideal visions of a just and well-governed state – eg. by Jean-Jacques Rousseau (see: Considerations on the Government of Poland, for the first time published in Poland in 1789) or in the works of the 17th-century British historian Bernard O’Connor (The History of Poland, published in London in 1689, which presented an idealized vision of Poland as a state where Lex est Rex).

When describing a state under the rule of law, a negative definition has often been employed – it used to identify the features of governements that were undoubtedly contrary to the principles of the rule of law as such. Lon Fuller did precisely that in his work devoted to “internal morality of law” – by providing an example of a fictional ruler, king Rex, he has shown in what way a state under the rule of law should not be formed. Fuller has well identified all minimal and necessary features which when not followed, we cannot neither speak sensibly about the rule of law, nor about the very existence of law as such (such as introducing a law, prohibition of introducing retroactive laws, non-contradictory laws, possibility to execute the law, understandability, predictability).

The creation of a real form of a state under the rule of law was born in pain, as a result of a long historical process. It did not involve the trasfer of an abstract idea intro a political-legal reality, but was rather the consequence of a clash of fundamentally different interests and was aimed at establishing a framework for power that did not want to be limited in any way – it was therefore an attempt to limit autocracy by setting up the rules that would bind also the sovereign. Instituting a state under the rule of law was therefore nothing else but the creation of the rules of the game that all participants of public life agree to abide by, including the sovereign.

It is worth to mention several breakthrough moments in the process of forming the mechanisms of a state under the rule of law. It is said that the idea came to life with the adaptation of Magna Carta Libertatum in 1215 – an act enforced by the king of England, who – for the first time in the European history – recognized that an absolute rule of a king shall also comply with the law. And so the king committed himself to respect the law he introduced and to comply with the rulings of courts made in his name and therefore also to accept the verdicts which may not have been entirely compliant with his expectations or preferences.

In the history of Polish Republic such an act that introduces an obligation for the sovereign to comply with the law in force can be found in the famous Henrician Articles from 1573, which asserted also a principle enabling the Polish gentry to refuse the king’s orders and act against him, should he transgress any of the cardinal laws and liberties guaranteed by the act. In creating the mechanisms that would successfully guarantee the functioning of a state under the rule of law (thus the possibility to control the actions of a sovereign by an independent judiciary based on the supreme norms featured in the Polish Constitution).

A breakthrough in the history of the Western civilization was constituted undoubtedly by the ruling of the Supreme Court of the United States in the Marbury vs Madison case (1803), according to which for the first time the judiciary conducted an evaluation of a normative act from the perspective of constitutional principles. The hierarchical control of constitutionality of the law was many decades later theoretically developed and formed in Europe by Hans Kelsen – the founder of a modern concept of a constitutional court.

Finally, after having faced the World War II and the 20th-century crimes of totalitarisms, yet another indispensible component was added to the principles of a state under the rule of law – the Radbruchian theory of an unjust state, which states that in a state under the rule of law there cannot be a law that violates the fundamental, rudimental moral principles and justice and thus a law that shall be labelled as unjust. Statutory lawlessness therefore means that there is no obligation to submit oneself to such a law (or there even exists a necessity to disobey it!) if it clearly turns out that it is unjust. The theory of Gustav Radbruch can be considered as a key element for specifying the rule of a democratic state under the rule of law in modern constitutionalism.

The principle of a democratic state under the rule of law assumes therefore limiting the legislator him-/herself, who must comply with the supreme norm, hence: the constitution.

The legislator, chosen democratically and legitimized to impose laws cannot act arbitrarily, must respect basic laws and his/her actions with regard to compliance with the constitution are subject to control of independent judiciary.

The very existence of independent judiciary, a result of a tripartite separation of power, is thus at the core of a state under the rule of law. The whims of a democratically elected legislator in a system constructed in this manner will meet a blockage in the form of the principle of the balance and separation of powers.

Only by such an assumption can a state under the rule of law efficiently protect the rights and liberties of minorities and protect them from the abuse of the parliamentary majority. It can be therefore easily observed that creating any theory of a modern state under the rule of law based on the principle of the will of the people as a sovereign, expressed by the means of an actual parliamentary majority and eventually determining the content of the law, is a contradiction of a democratic state under the rule of law.

The current constitutional crisis in Poland is a sign of an especially dangerous form of violatng the principles of a state under the rule of law. It is about an open, embedded in the governing’s party ideology denouncement of abiding by the law and atributting to the executive power and the parliament the highest attributes of control and decision making at the same time disregarding the most important authority of the third power, namely the Constitutional Tribunal.

It was therefore neither a personal conflict with the former president Andrzej Rzepliński, nor a dispute over the technical procedural regulations – as the government wishes it to be perceived. It is a dispute

over the very existence of a state under the rule of law. If the arguments of the ruling party  are to be accepted and the rulings of the Constitutional Tribunal were to be passed and executed, we must clearly state that a new era has started.

The creation of a real form of a state under the rule of law was born in pain, as a result of a long historical process. It did not involve the trasfer of an abstract idea intro a political-legal reality, but was rather the consequence of a clash of fundamentally different interests and was aimed at establishing a framework for power that did not want to be limited in any way – it was therefore an attempt to limit autocracy by setting up the rules that would bind also the sovereign. Instituting a state under the rule of law was therefore nothing else but the creation of the rules of the game that all participants of public life agree to abide by, including the sovereign.

It is worth to mention several breakthrough moments in the process of forming the mechanisms of a state under the rule of law. It is said that the idea came to life with the adaptation of Magna Carta Libertatum in 1215 – an act enforced by the king of England, who – for the first time in the European history – recognized that an absolute rule of a king shall also comply with the law. And so the king committed himself to respect the law he introduced and to comply with the rulings of courts made in his name and therefore also to accept the verdicts which may not have been entirely compliant with his expectations or preferences.

In the history of Polish Republic such an act that introduces an obligation for the sovereign to comply with the law in force can be found in the famous Henrician Articles from 1573, which asserted also a principle enabling the Polish gentry to refuse the king’s orders and act against him, should he transgress any of the cardinal laws and liberties guaranteed by the act. In creating the mechanisms that would successfully guarantee the functioning of a state under the rule of law (thus the possibility to control the actions of a sovereign by an independent judiciary based on the supreme norms featured in the Polish Constitution).

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