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Poland's Constitutional Breakdown$

Wojciech Sadurski

Print publication date: 2019

Print ISBN-13: 9780198840503

Published to Oxford Scholarship Online: July 2019

DOI: 10.1093/oso/9780198840503.001.0001

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Anti-constitutional Populist Backsliding

Anti-constitutional Populist Backsliding

Chapter:
(p.1) 1 Anti-constitutional Populist Backsliding
Source:
Poland's Constitutional Breakdown
Author(s):

Wojciech Sadurski

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198840503.003.0001

Abstract and Keywords

This chapter provides a general overview of the post-2015 changes in the Polish state. It demonstrates that they proceeded in an incremental way, without any clear ‘breaking point’. The most nefarious consequences stemmed from the cumulative effects of different changes, often with formal institutions intact, but which were hollowed out of their original function as checks and balances on the legislative and executive branches. Largely, it emulates similar changes in Hungary, except that in Poland, the ruling party has no majority sufficient to pass through constitutional changes. The chapter further argues that, overall, the negative transformation can be described by using three characteristics. First, it is unconstitutional because there have been multiple breaches of express constitutional provisions, constitutional conventions have been disregarded, the constitutional structure has been amended through statutory changes, and the real centre of political power is different from that constitutionally designed. Second, it is populist, in that the ruling elite cares a great deal about popular support, and uses traditional populist devices such as pretending to speak on behalf of the whole nation, and dismantles various institutional mechanisms of the separation of powers. Third, it constitutes backsliding, because trajectory and path-dependence are crucial to understanding Poland’s current state.

Keywords:   Poland, populism, backsliding, constitutionalism, separation of powers, Hungary

A dramatic change in Polish politics occurred after 2015, not as a result of a coup, but through a takeover by democratically elected politicians by and large playing by the democratic rules of the game. It started with two national elections. The first was the presidential election on 10 and 24 May 2015 that was won marginally (51.55 to 48.45 per cent) and unexpectedly by the Law and Justice (Prawo i Sprawiedliwość (PiS)) party candidate Andrzej Duda—a young and largely unknown political newcomer. The only pre-presidential public offices held by Duda were as member of the European Parliament, deputy minister of justice, and minister for legal issues in the office of President Lech Kaczyński. He was hand-picked by PiS leader Jarosław Kaczyński who, according to all accounts, did not want to run because most people expected a solid victory by the incumbent, Bronisław Komorowski, supported by the Civic Platform (Platforma Obywatelska (PO)) party, but who had run an apathetic, chaos-ridden campaign. The second step occurred soon after: in the parliamentary elections of 27 October 2015, with just 37.5 per cent of the vote (and 18 per cent of all those eligible to vote, with a voter turnout of only 50.9 per cent), PiS won with an absolute majority of five seats, giving it the authority to govern single-handedly. It ended the two-term, eight-year domination by the centrist-liberal PO, ruling in coalition with the politically moderate Polish Peasants’ Party (Polskie Stronnictwo Ludowe (PSL)).

Victorious populism in Poland is part of a broader surge of populism worldwide, and more specifically in Europe, with populism being in turn a species of a broader phenomenon of general global discontent with liberal democracy in recent years. From 2000 until 2017, the number of populist parties in Europe almost doubled, from thirty-three to sixty-three, and the share of the vote for populist parties reached 24.1 per cent (or 17.7 per cent if one considers right-wing populism only) while in 2000 it was only 8.5 per cent. This trend has been particularly pronounced in Central and Eastern Europe (CEE) where, between 2000 and 2017, populists’ vote share tripled, reaching more than 31 per cent in 2017, with five of every six populist votes going to the far right. The populist impact has been registered not only in the populist parties entering into ruling coalitions as junior partners (as in Austria and Switzerland), but also, as in the Netherlands, in the influence of their programme upon mainstream parties that, in order to compete for the vote, have gravitated towards populist agendas, such as anti-immigration policies and the protection of cultural or religious purity. In countries traditionally (p.2) considered liberal and tolerant, populist parties have succeeded in becoming the country’s second largest (as in Denmark) or third largest (as in Sweden).

But the Polish and Hungarian cases are different. Nowhere else in Europe did populist parties manage to dismantle the institutional system of checks and balances. In some countries (such as the UK Independence Party in the United Kingdom or the Freedom Party in Austria), populists did not even display any particular illiberalism when it came to the constitutional structure of government. The Hungarian-Polish assault upon constitutional checks and balances is special, and more specifically, Poland is unique in its ostentatious disregard for its own formal constitutional rules.

The Dimensions of Polish Constitutional Breakdown

The scope of the change after the twin 2015 victories in Poland was as huge as it was unexpected. In an article published at the beginning of 2016, and so written in 2015, two British scholars opined that ‘Hungary’s slide toward semi-authoritarianism is arguably an exceptional case reflecting a specific combination of a restrictive conservative-nationalist right wing, strongly majoritarian institutions, and economic recession.’1 The failure to include Poland into the ‘to watch’ list was understandable. No economic or political crisis of major proportions preceded the populist takeover: to the contrary, after the fall of communism, Poland had enjoyed a six-fold increase in gross domestic product, and was the only country in the European Union (EU) that did not experience negative growth as a result of the global recession of 2008. The country’s longing for embeddedness in supranational structures was met by membership in the Council of Europe, the EU, and the North Atlantic Treaty Organization (NATO), and the government changed hands six times since 1990, thus showing the exemplary characteristics of democratic alternation of power.

PiS had already experienced a previous episode of rule, in 2005–7, which to some extent prefigured the current regime (see Chapter 2). There were, however, three major differences that characterized the 2005–7 episode compared to that commencing in 2015. First, as the dates indicate, it was very short and, at the time, PiS clearly lacked any earlier experience of government—an experience that would teach PiS a lesson, which it clearly relied upon in 2015, that once you come to power, you need to introduce all the radical projects right at the start of the term. Second, PiS in 2005–7 did not have an independent majority, and was constrained in its rule by coalition partners, such as the Self-Defence (Samoobrona) and the League of Polish Families (Liga Polskich Rodzin (LPR))—a factor that exerted a gravitational pull upon PiS towards the centre of the political spectrum. Both Samoobrona and the LPR were parties of the populist right, so in order to distinguish itself PiS naturally gravitated towards the centre. By contrast, today there are (p.3) no serious PiS rivals on the right, so there are no strategic disincentives for PiS to adopting radical right-wing positions. The third difference has to do with personalities. Lech Kaczyński, Jarosław Kaczyński’s twin brother, was president at the time, and had a clearly moderating effect upon Jarosław. But for all these differences, the 2005–7 episode foreshadowed what was to happen with the next victory of PiS.

No time was wasted in 2015. The end of the year witnessed the beginning of a fundamental authoritarian transformation: the abandonment of dogmas of liberal democracy, constitutionalism, and the rule of law that had been so far taken for granted. And even if, as is usually the case, the practice of implementing these principles was far from perfect before the PiS victory, there had at least been a widespread consensus that these values were standards to be pursued. With the suffocating command of Jarosław Kaczyński over all centres of political power, these principles were abandoned in 2015, ostensibly in the name of a purely majoritarian democracy, and of the ‘sovereign’ people having a right to rule as it wishes. The use of the ‘sovereign’ as a legitimating factor became widespread, often reaching almost grotesque forms. In a newspaper interview, when asked about whether he liked PiS’s changes to the constitutional court, the Constitutional Tribunal (CT), Mr Maciej Mitera, one of the judge-candidates to the ‘new’ National Council of the Judiciary (Krajowa Rada Sądownictwa (KRS)) and later its spokesperson, answered: ‘If the representatives of the sovereign decided so, I submit myself to it.’2 The ‘will of the sovereign’, expressed allegedly through an electoral choice (‘winner takes all’), was declared a fundamental legitimation for a general transformation of the state (even if many of its aspects had not been announced in the electoral campaign) and as a reason to downplay checks and controls upon the executive and legislative branches. PiS’s campaigns against first the CT and later the regular courts have rested upon the idea that any restraints upon the political majority are by their nature anti-democratic.

Victor Orbán’s Hungary was declared the model to emulate, with Kaczyński promising ‘Budapest in Warsaw’ as its goal,3 and the copycat effect should not be underestimated. It is fair to describe PiS rule so far as ‘an accelerated and condensed version of what the ruling Fidesz party has accomplished in Hungary since 2010, when Viktor Orbán began his second stint as prime minister’.4 Indeed, the trajectory of Fidesz and PiS have followed a similar pattern. Both began as reasonably mainstream parties regarding themselves initially as moderate parties of the establishment, only later embarking upon radical shifts towards right-wing, conservative, and nationalistic populism, emphasizing sovereignty of the nation especially against larger EU structures and, at the same time, the exclusion of migrants. The sequence of the main ‘reforms’ in Poland in many respects closely parallels that in Hungary a few years earlier:

  • fast-tracking of radical legislative changes; attacks on non-governmental organizations (NGOs)

  • (p.4) new media legislation

  • disempowering and capturing the Constitutional Court; removal of the ‘old’ judges (of ordinary courts) by lowering the retirement age

  • specific attacks on the chief justices of the respective Supreme Courts

  • restructuring of the KRS through the politicization of its selection; altering the membership rules of the electoral commission with the effect of giving the ruling party control of the commission

  • identifying the EU as a foreign, hostile entity which illegitimately interferes in the internal affairs of its member states.

In late 2017 a leading Polish journalist assessed the situation:

Orbán’s state is Kaczyński’s Poland as it will be in 5 years’ time, because he ruled Hungary that much longer than PiS. In this period Orbán captured the supreme court and ordinary courts, got rid of the National Council for the Judiciary, set up an Office of National Media, and devoted [state] budget money to finance propagandist public TV. The last five independent newspapers were taken over by the Prime Minister’s people in August 2017. Advertising campaigns targeting political rivals are financed from public money. NGOs have fallen under state control, and electoral rules have been changed. … And the society? Over 40 percent still support Orbán. The Prime Minister has effectively scared the Hungarians by an alleged threat of invasion by immigrants …5

Still, there are important differences between the two cases. Most important, thanks to Fidesz winning a constitutional majority, there was formal constitutional change in Hungary, which made it possible ‘to transform the constitutional order and slide into some form of authoritarianism entirely through legal means’,6 with no such change or amendment available to Kaczyński. The new Hungarian Constitution—adopted in great haste and protected by a requisite two-thirds majority for changes—is deeply ideological, emphasizing conservative and Christian values, and is meant to constitute a quasi-sacred charter7 of Orbán’s self-avowed illiberal democracy: a symbolic and political asset that Kaczyński in Poland lacks. There are also other differences:

  • political power in Hungary is much more embedded in the economic power of ultra-rich oligarchs than in Poland (leading to the label of Hungary as a ‘mafia state’)8

  • Orbán is pro-Russian while PiS is ostentatiously anti-Russian; Orbán (whose party is a member of the European People’s Party in the European Parliament, while PiS is in the European Conservatives and Reformists group) acts more pragmatically in EU fora than PiS

  • (p.5) Polish centrist opposition is much stronger than the Hungarian opposition, and in Poland there is no strong party alternative any further to the right (like Jobbik in Hungary) that exerts right-wing pressure on the ruling party

  • the Church is dominant and has a strong political influence in Poland, but not in Hungary

  • commercial independent media are strong in Poland but weak in Hungary.

While individual aspects of Polish backsliding may have their counterpart in this or that democratic state, what makes Poland such a troublesome case is the comprehensiveness and the cumulative effect of the ways in which liberal democracy is being undone. Rather than carefully sequencing the changes and applying them seriatim, thus giving the system an opportunity to neutralize their effects, ‘reforms’ have been enacted more or less simultaneously, or at least through incremental changes where the timing of one change overlapped with another, and yet another. A question (articulated by a legal scholar with regard to a different constitutional system) could have been raised: ‘Could steady pressure against all these institutions, all at once, cause them to crumble because they cannot rely on one another for support?’9 In the case of Poland post-2015, the answer was, unfortunately, affirmative. A virus in a sick body reinforces pathologies in other parts of the body, while a virus in a healthy body is likely to be disabled from having a detrimental effect. A single illiberal change does not provoke a major breakdown if it takes place in the environment of a general liberal constitutional context. In Poland, however, it is a populist offensive tous azimuts: an all-out assault on liberal constitutionalism. And it is systemic: individual elements are functionally connected with the others. For instance, the paralysis of the CT was a prerequisite for the adoption of illiberal laws made immune from effective constitutional scrutiny. These illiberal laws, for example, on the right to assembly, make it more difficult to protest against capture of the CT. In this way, the sum is more than its parts. There is analogy here to Mark Tushnet’s description of Singapore’s authoritarian constitutionalism. He constructs the useful figure of ‘a fallacy of decomposition’ where ‘the components lack a property but the aggregate might have it’; he also uses the concepts of ‘a “slice and dice” or disaggregated approach’ which, with regard to the analysis of Singapore’s authoritarianism, ‘is almost certainly inappropriate’.10 The same can be said about Poland. At the same time, the fact that some individual legal provisions may exist in isolation from other problematic arrangements and practices in some unimpeachably democratic states is a powerful rhetorical instrument for regimes such as in Poland, and also imposes constraints upon critics, including those abroad. Foreign political actors may be loath to condemn democratic backsliding ‘if such practices enforce laws that exist in their own legal systems, lest they be criticized as hypocritical’.11

The change can also be incremental even if it occurs quickly. So it is often difficult to identify a precise tipping point: no single new law, decision, or transformation (p.6) seems sufficient to cry wolf. Only after the fact do we realize that the line dividing a liberal democracy from a fake one has been crossed: threshold moments are not seen as such when we live in them. As Aziz Huq and Tom Ginsburg note: ‘The precise point … at which the volume of democratic and constitutional backsliding amounts to constitutional retrogression will be unclear—both ex ante and contemporaneously’.12 They add, using a grim metaphor: ‘Like the proverbial boiling frog, a democratic society in the midst of erosion may not realize its predicament until matters are already beyond redress.’13 And then it is beyond redress. This, as Huq and Ginsburg further observe, also makes any opposition to democratic backsliding less effective because there is usually no single event or governmental conduct that could mobilize the resistance by sending a clear signal ‘that democratic norms are imperilled’.14 In Poland warnings about the fall of democracy have often been received with incredulity, or with objections of being hysterical or paranoiac. The language of democratic collapse has been seen by some as inflated, disproportionate, and counterproductively eroding the emotional content, which may be warranted in some unspecified future. As Nancy Bermeo puts it: ‘slow slides towards authoritarianism often lack both the bright spark that ignites an effective call to action and the opposition and movement leaders who can voice that clarion call’.15 But the effect of these multiple ‘slow slides’, rather than a clarion call, might render an obituary in order.

Many democratic backslides occur without a formal change of institutions and procedures, so they are invisible to a purely legal account. As Gábor Attila Tóth remarks: ‘many such regimes ostensibly behave as if they were constitutional democracies, but, in fact, they are majoritarian rather than consensual, populist instead of elitist; nationalist as opposed to cosmopolitan; or religious rather than secular’.16 Institutions and procedures remain the same but their substance is radically changed by practice. For instance, parliamentary legislative procedures remain, formally, the same as before, but by adopting a scheme whereby all important governmental initiatives are proposed as private members’ bills, the requirements of consultations, expert opinions, and impact audits are dispensed with. There is a discussion in the parliamentary legislative committee, but with PiS having an absolute majority, and the opposition MPs being given, for example, one17 or two18 minutes for their speeches, the discussion is turned into a sham. In this way, the intended meaning of many procedures and institutions is eroded, and they are converted into façades. Institutions become hollow.19 Toutes proportions gardées, it is like in the state of the ‘people’s democracy’: there were ‘elections’, but without competition and choice; a ‘parliament’, but no opposition and no open debate; a ‘president’, but supreme power was elsewhere. There was even (in Poland after 1985) a CT, but it would not invalidate any laws that were important to the ruling elite. As a result, for an external observer the radical shift in the meaning of institutions, procedures, and roles may be invisible because they often remain, legally speaking, the same as before. As Martin Krygier observes, ‘One striking novelty of these new populisms (p.7) is that, while like most populists they undermine constitutionalism, they do so with often striking attention to the forms of law’.20 But these ‘forms of law’ are used, in practice, to undermine the underlying values of the rule of law, which are to constrain arbitrary use of unlimited power. Kaczyński is no Leninist: just like Orbán, he knows and skilfully uses the legitimating value of formal legality—except when the political costs of legality are found by him and his advisers to be too high.

This may be translated into a ‘Martian’s test’: would an intelligent and otherwise well-informed Martian, having for herself all the information culled only from the formal structures of government, and knowing none of the practice, discern the non-democratic character of the regime? Probably not; she would see all the institutions and procedures she knows from the democratic toolbox available to her. Ozan Varol uses the concept of ‘stealth authoritarianism’, that is, a genre of authoritarianism that faithfully uses various democratic structures for non-democratic purposes: ‘Stealth authoritarianism refers to the use of legal mechanisms that exist in regimes with favorable democratic credentials for anti-democratic ends’.21 For instance, representatives of stealth authoritarianism ‘employ seemingly legitimate and neutral electoral laws, frequently enacted for the purported purpose of eliminating electoral fraud or promoting political stability, to create systemic advantages for themselves and raise the costs to the opposition of dethroning them’.22 Another example applicable to the Polish case is that stealth authoritarians ‘rely on judicial review, not as a check on their power, but to consolidate power’.23 As I show in Chapter 3, this is precisely the use of judicial review that the PiS regime conferred upon the CT: rather than acting as a constraint upon the government, the tribunal has become a constraint upon the opposition and an active helper of the government. But, formally speaking, judicial review is there, and unless one ascertains the actual substance and arguments of the decisions taken, as our Martian is unlikely to do, one will not see a difference between democracy and stealth authoritarianism, even though there was no stealth, naturally, in the ways the CT was taken over. As Varol puts it, ‘[s]tealth authoritarianism creates a significant discordance between appearance and reality by concealing anti-democratic practices under the mask of law’24—and this discordance is a predicament suffered both by our Martian and, more often in the real world, by well-meaning foreigners, often not knowing the language, the context, and the actual substance of practices they observe from the outside.

This immediately indicates why even those genuinely committed to democracy and acting in good faith may be sincerely confused about what is going on in countries captured by stealth authoritarians: there are no tanks on the streets, political opponents are not tortured or imprisoned, and there is no prior restraint on the media. The institutions seem to function as before, and the Constitution is not necessarily voided. To ascertain the reality one must inquire into the meanings of public actions, into the pedigree and character of actual persons who occupy key positions, and into how they are dependent upon a hierarchy of authority, at (p.8) the apex of which there is a leader unconstrained by constitutional rules. ‘Elected autocrats maintain a veneer of democracy while eviscerating its substance.’25 Understanding this substance takes time, effort, and requires certain skills, including knowing context, path dependence, and language.

Backsliding is all the more difficult to discern since many reforms are presented as a defence of democracy rather than a subversion. By returning obsessively to the figure of the sovereign who has elected a party to a parliamentary majority, the rulers claim a democratic legitimacy for dismantling the counter-majoritarian checks and balances in the system. By subjecting the election of judges to parliamentary control, PiS alleges that it is actually introducing more democratic mechanisms than those that were in place so far. By electing CT judges known for their pro-PiS political views, PiS alleges that it is imbuing the tribunal with better representation of actual societal preferences.

The institutional changes discussed in this book are a part of a broader populist syndrome in which a key role is played by a catastrophic drop in the norms of civility of discourse, with an accompanying loss of trust. When government’s opponents are treated as traitors and haters of their own nation, they feel that they have no choice but to respond in kind, and reciprocate with accusations of similar intensity. As a result, there are no shreds of mutual respect, or of the recognition that, while the government and the opposition differ in their interpretation of the public good, they are equally sincere in the quest for common interest. What is missing is mutual self-restraint, in which (in the words of János Kis in the Hungarian context):

the party in opposition can safely expect the party in government to refrain from taking advantage of its majority in order to permanently exclude its rival from power, while the party in government can safely expect the party in opposition not to strive toward debilitating day-to-day governance.26

No such mutual expectations, which are a key to democratic governance, exist in Poland now. Both sides deny legitimacy to each other: the opposition is seen by PiS as treacherous and non-patriotic and hence undeserving of ever returning to power, while PiS is viewed by its opponents as having transgressed the minimal conditions of democratic legitimacy. Jack Balkin’s words written about the United States under President Donald Trump also apply to Poland: ‘People not only lose trust in government but also in other people who disagree with them. Political opponents appear less as fellow citizens devoted to the common good and more like internal threats to the nation.’27 Polish politics is polarized along lines so fundamental that loyal cooperation between the main parties for a higher good is unthinkable these days. Supporting a party has become more a matter of essential identity than of policy preferences. As political scientists know all too well, (p.9) a low level of interpersonal trust is a favourable background for antidemocratic backsliding.28

This mutual distrust between the parties and the electorates radiates upon (and is partly reflective of) a more general societal distrust in politics and public institutions. Poland has one of the lowest levels of party membership in Europe (approximately 1 per cent of the adult population, compared to 2.3 per cent in Germany and 3.8 per cent in Sweden). Voters’ party loyalties are extremely shallow and devoid of strong commitments: for instance, 18 per cent of those who voted in 2011 for the Democratic Left Alliance transferred their votes in 2015 to the vehemently anti-communist right-wing PiS. The dominant form of societal mobilization in recent years was single-issue protests, which were often episodic and non-institutionalized (e.g. about Anti-Counterfeiting Trade Agreement, an anti-abortion legislative initiative). Moreover, those protests did not translate into increased support for opposition parties. In the words of the sociologist Maciej Gdula, ‘It is as if the opposition parties and society did not interact with each other. … It is as if the enthusiasm and energy of the protests did not match the actions and words of the politicians.’29 Such strong rejection of institutional politics creates a favourable social ground for anti-constitutional populism: when institutions matter so little, it is no wonder that the institutions that are there turn out not to be resilient in the face of a resolute and energetic assault.

The level of political distrust in Poland is catastrophic—distrust in politicians, parties, institutions, and other fellow citizens (paraphrasing a line in The Economist after the 2016 US election, one could say that ‘Half of Poland can scarcely believe that the other half has chosen PiS’).30 Whatever the roots of this distrust, it has been used largely by PiS as a political-sociotechnical device aimed at returning to power. After the air crash of 2010 (discussed in Chapter 7) that killed a number of Poland’s most prominent political figures, PiS provoked mass hysteria by pointing fingers at leading politicians of the time as guilty of a conspiracy, as well as warning that they would be prosecuted after the political changeover. The party’s allegations without any evidence that the outcomes of elections had been systematically rigged served to magnify cases of corruption out of proportion to further undermine trust in the government, and they did. The generalized distrust towards politics gave rise to an attitude of ‘symmetrism’ (this is what the West used to call, before the fall of communism, moral equivalence): PiS may be bad, but its predecessors in power were not much better, so why bother fighting for the replacement of one with the other? This is yet another powerful, if only negative, source of PiS’s persistently good rankings in opinion polls, and the unlikelihood of a ‘Polish Macron’ (an idealized figure standing for a genuine pro-European, liberal-democratic saviour against illiberal, populist and nationalistic forces) emerging in the foreseeable future.

(p.10) This deep distrust is partly driven by the continued mass deception propagated by ruling party politicians. Prime Minister Mateusz Morawiecki, in office since late 2017, excelled at telling regular lies, and the fact-checking media have had a field day. Some examples of overt lies publicly uttered by Morawiecki are:

  • that he had been personally responsible for negotiations on Poland’s accession to the EU (in fact, he was just a low-ranking member of a large team in charge of accession negotiations at the time)

  • that when he was the CEO of a bank, that bank never granted loans in Swiss Francs (in fact, it did; the matter is highly sensitive in Poland)

  • that 80 per cent of the Polish media belongs the government’s enemies (a number never explained, and wildly implausible)

  • that he reduced central government bureaucracy (not true: his government had a record number of secretaries and under-secretaries of state, but some of them were transferred to the fictional position of ‘councillor’ in order to make the statistics look better), and so on.

Similarly, among other examples, in December 2017, President Duda announced that the work of the CT was now ‘back to normal’ (not true; as shown in Chapter 3, the number of judgments are much fewer than under the previous presidency of the CT).31

The other dimension of Poland’s post-2015 transformation is the active, deliberate, ideological, and cultural ‘counter-revolution’ that is displayed not only in official declarations but also in actual governmental acts.32 While it does not amount to any comprehensive ideological platform for PiS rule, it is nevertheless quite clear that the elected authoritarians have an agenda that is anti-modernist, anti-progressivist, and anti-liberal. A number of offices and programmes to combat discrimination were discontinued as soon as PiS came to power. For instance, in June 2016, just over six months after its electoral victory, PiS extinguished the governmental Council for Counteracting Racial Discrimination, Xenophobia and Intolerance. Significantly, this happened at a time when there had been a clear rise in acts of violence—verbal and physical—against non-whites in Poland. Public schools ceased to accept visitors from NGOs running workshops against intolerance and xenophobia while also opening their doors to radical nationalistic groups such as the neo-Nazi National-Radical Front (Obóz Narodowo-Radykalny (ONR)). The government stopped subsidies for civil society activities such as the so-called Blue Line, a phone-in for young persons in desperate psychological situations, often on the verge of committing suicide. In turn, governmental subsidies were generously conferred upon religious and right-wing groups, such as the network of organizations connected with Catholic-fundamentalist Radio Maryja. In their public, official statements, leading PiS politicians appealed to traditional and conservative values while distancing themselves from liberal and progressive ideologies.

(p.11) This was grotesquely articulated by Witold Waszczykowski, minister for foreign affairs until early 2018, who ridiculed ‘a Marxist pattern’ according to which the world is supposed to move towards ‘a new mix of cultures and races, a world of bicyclists and vegetarians’.33 Somewhat less comically, during a March 2016 state visit to Hungary, President Duda deplored the crisis ‘of the values on which European civilisation was built … that has Latin roots and is based on the stem of Christianity… All these ideals in today’s Europe are being lost, are being forgotten and trampled on by other ideologies that in fact distort the essence of humankind and humanity.’34 Similarly, in one of his first TV interviews after elevation to the office, Prime Minister Morawiecki asserted that Poland has a mission of ‘re-Christianising Europe’.35 All these manifestations of cultural counter-revolution have been enthusiastically promoted in public education, public media, and the pro-PiS commercial media.

The cultural counter-revolution led by PiS is connected with a significant reorientation of Polish foreign policy. In general, foreign policy is much more at the mercy of domestic policy than it was before; as some experts in the field noted, ‘[u]nlike any other post-1989 government, the PiS administration treats foreign policy as secondary to domestic objectives’.36 Re-orientation has affected official arguments about the strong alignment of Poland with the West. Since the 1989 transition, all governments and also all parties in power have emphasized an unconditional ‘return to Europe’ as the strategic trajectory of an independent and democratic Poland, accompanied by a strong hostility towards placing Poland in a sort of ‘twilight zone’ between East and West, with uncertain security commitments from foreign powers. But this rhetoric was embedded within a broader package of ideological commitment to liberal, constitutional democracy, to universal human rights, and generally, to the ideal of an ‘open society’. Now that these fundamental ideological commitments have been challenged and largely rejected by the ruling elite, Poland’s pro-Western orientation has also been put into question. As a report by an influential think-tank observes:

For the first time since 1989 the government and party in power are not only making use of or emphasising the language of national egoism, but also anti-Western rhetoric (occasionally strongly so). It is aimed squarely at those values and principles which were meant to be the anchor of Poland’s presence in the EU according to the philosophy of its integration, beginning in the ‘90s.37

This anti-Western orientation is undergirded by the ruling elite’s condemnation, supported by a large part of the population and in particular by the Catholic Church, of Western ‘decadence’ in its respect for procreative rights (defined by the traditionalist right in Poland as manifesting the ‘civilization of death’), and toleration of same-sex unions.38 The fact that many Poles, especially those who are pro-PiS, are at the same time strongly anti-Russian prevents these attitudes from (p.12) pushing Poland into alliance with Putin’s Russia, but nevertheless they erect important obstacles to strongly and unconditionally aligning Poland with ‘the West’, unless ‘the West’ is identified with Donald Trump and parties belonging to the European Conservatives and Reformists group in the European Parliament (of which PiS is a member). At the same time, the rejection by visionaries such as former Prime Minister Tadeusz Mazowiecki or former Foreign Minister Bronisław Geremek of a Poland placed somewhere in a twilight zone between West and East has given way to the fanciful idea of an Intermarium (Trójmorze). This is the idea of an alliance between a number of states in CEE with Poland taking a leading role, which stems from equal suspicion of Russia and Germany, both of which, according to PiS strategists, have equally domineering intentions for Poland. (Kaczyński, in his more fantastic rhetoric, even used to call Poland under the PO, the previous ruling party, a Polish-Russian ‘condominium’). This worldview was presented as an alternative to the PO’s vision of Poland being a co-equal partner in a ‘Weimar Triangle’ with Germany and France. Suspicion against Germany, often escalating into hatred, is frequently used for domestic purposes, with Germany being presented as a country that owes Poland allegedly unpaid reparations for the Second World War, or as unwilling to accept its responsibility for the crimes of Holocaust. In this way, foreign policy is viewed by PiS and its leader primarily as a tool of domestic policy imperatives—often with disastrous consequences for the position of Poland in Europe and its relationship with its closest allies and supporters.

This vision is primarily based on a suspicion of the outside world, and on the celebration of national sovereignty as the supreme value in a nation’s policy, which needs to be forever defended and strengthened. The outside world is represented as constantly trying to interfere in Polish affairs, partly for its own self-interest and partly out of instinctive ‘anti-polonism’ (a new term, coined by Jarosław Kaczyński), and often using internal political opposition (and also the media, NGOs, and judges) as its willing or unwitting agents of influence. The only exception to this dislike of universal, supranational or foreign powers is the Holy See.

What’s in a Name?

There are different characterizations in contemporary constitutional theory and political science aimed at grasping the essence of developments similar to those described in this book. Each of them captures an important aspect of Polish backsliding—though not necessarily its most significant characteristic. Some scholars talk about ‘constitutional rot’ (Jack Balkin)39 or ‘democratic decay’ (Tom Daly).40 The former has been used to describe the United States, the latter aims to include Poland and also Hungary as its manifestations. Both ‘rot’ and ‘decay’ connote a degradation that is slow and almost impersonal, occurring without a plan—a suggestion that does not do justice to the energy, enthusiasm, and designs (p.13) that PiS has for Poland. In turn, the concept of democratic ‘backlash’41 unhelpfully suggests revenge or a reaction against some excesses on the part of that against which the backlash occurs.

The label ‘illiberal democracy’, made famous by Fareed Zakaria42 and used by many more recent writers, to describe (among other things) Poland under PiS,43 is perhaps too charitable. It pre-empts that which needs to be shown, namely that illiberal backsliding maintains its essentially democratic character, and ignores the possibility that ‘illiberal democracy’ is an oxymoron. After all, it may be claimed that ‘illiberal democracy’ is, by its nature, only a temporary phenomenon and must either evolve towards liberal democracy or degenerate into illiberal authoritarianism: the illiberal factors in democracy, including the displacement of individual rights, must erode democracy at its core—the fairness of electoral process. (This is one of the propositions advanced in Chapter 9 of this book.)

Some writers emphasize the authoritarian character of the developments, and talk about ‘new authoritarianism’.44 The use of the concept of ‘authoritarianism’ may imply the insensitivity of rulers to the need for social support and their reliance on brute force. And yet, populists such as Kaczyński or Orbán certainly care a great deal about social legitimacy, in the sense of actual popular support for their rule, and the label ‘authoritarianism’ fails to distinguish between populist power and a regime predominantly based on naked coercion and political violence. Repression against opponents in Poland is a relatively minor phenomenon, and while it does happen (the treatment of demonstrators participating in anti-government rallies; harassment of judges defined by the rulers as enemies), it is far from being the main pillar of government. In contrast, the label ‘populism’ captures the fact that the regime is sensitive to public opinion; that it follows public opinion surveys with interest and concern; and that it occasionally changes some of its policies or withdraws policy initiatives if they turn out to be unpopular and the benefits of pursuing those policies do not compensate for the government’s loss of popularity.

David Landau’s concept of ‘abusive constitutionalism’45 is not adequate for Poland because it only takes account of those reductions in democratic qualities brought about by changes in the constitutional order (by constitutional amendments and replacements, as in Colombia, Venezuela, and Hungary); while in Poland an important fraction of the changes were achieved by extra- and unconstitutional measures. Some political scientists use the awkward concept of ‘democratic deconsolidation’ and explicitly apply this concept to Poland under PiS.46 But there are problems with this, too. First, it may seem fanciful to some to imply that before PiS’s ascent to power, Poland was a ‘consolidated’ democracy: consolidation by its very nature takes time. Second, while, for the democratic deconsolidation authors, its main indicators are found in low and shallow support in public opinion for democratic rule,47 the emphasis in this book is on the structural institutional transformation away from democracy.

(p.14) The notion of a ‘hybrid regime’48 lacks any substantive informative value: it says that there is a mixture but does not tell us of what. Finally, the concept of a ‘constitutional coup d’état’49 or merely ‘a constitutional coup’50 may be helpful in conveying the sense of outrage at the displacement of a constitutional frame of political change, but is not accurate to describe Polish developments because a coup d’état is normally launched by one group against a different group currently in power rather than consolidating (through anti-constitutional means) its own power. In the phenomena described here, the incumbent stays in power, though with greatly increased capacities of political action, and under different rules of the game. The continuity of the identity of the rulers both before and after the radical transformation of the regime renders the language of a coup misleading.51 It unhelpfully merges together two distinct models of democratic reversal: a coup and an incumbent takeover in which a democratically elected leadership undermines key tenets of democracy.52

My own formula lacks the crisp elegance of some of these labels but it better expresses, in my view, the essence of the developments in Poland after the 2015 elections. I call it ‘anti-constitutional populist backsliding’, and all three ingredients are equally important. They will now be discussed in turn.

‘Anti-constitutional’

The anti-constitutional character of the current regime has many facets. First of all, the real centre of power is elsewhere than constitutionally decreed. It is centred in one person, Jarosław Kaczyński, who is commanding the country without constitutional responsibility and accountability (his only state function is being a member of parliament) which makes it a significantly different case from that of Orbán’s Hungary. The constitutionally described central institutions of executive power are the president and prime minister who wield negligible power, except for that which is delegated to them by Kaczyński, and which can be withdrawn at any time. Occasional manifestations of a very limited ‘independence’ of the president are generally considered by acolytes of Kaczyński as breaches of an unwritten compact and as irritating cases of disloyalty.

This situation was prefigured in the writings by Stanisław Ehrlich, an important legal theorist in communist Poland, initially a devout Stalinist who became in his late years a disillusioned Marxist and self-avowed reformist, and who coined (without any negative or critical intentions) the concept of a ‘centre for political direction’ (centralny ośrodek dyspozycji politycznej) which is a de facto ruling entity—not to be confused with any formal institutions designed by the Constitution—issuing strategic directives for all state institutions. Ehrlich was Jarosław Kaczyński’s professor and doctoral supervisor, and both Kaczyński brothers participated in a privatissimo seminar of Ehrlich in the early and (p.15) mid-1970s.53 The irony of Kaczyński replicating such a pattern of power was not lost on some observers: ‘notwithstanding the anticommunist rhetoric of prominent members of the ruling Law and Justice party in Poland, this structure of power closely resembles that which was characteristic of the former, communist system, where the secretary of the communist party had the greatest power and prerogatives’.54

The everyday politics of PiS Poland provides constant, multiple proofs as to who wields the real power. When President Duda vetoed two of three laws on the judiciary by the government in July 2017 (see Chapter 4),55 to the surprise and irritation of Kaczyński, this mini-crisis within the ruling elite was followed by a series of face-to-face meetings between Kaczyński and Duda, aimed at forging a ‘compromise’. In these meetings, neither the prime minister nor the minister of justice, who nominally drafted the laws, took part. In another striking episode, when the newly formed Council of National Media tried to fire the chairman of public TV, Jacek Kurski (whose rivalry with the head of the council Krzysztof Czabański is well known), all three PiS members on the council were urgently summoned to see Kaczyński and then immediately, and humiliatingly, they cancelled the decision dismissing Kurski, who remains the chairman of public TV up to now.

This pattern has settled for good: Nowogrodzka (the Warsaw street address of the PiS headquarters, where Kaczyński has his office) has become synonymous with the true locus of power. When ministers need a strategic decision to guide their action, they ‘go to Nowogrodzka Street’. When they want to inform journalists that Kaczyński has not yet decided about this or that important issue within their portfolio, they use a proxy: ‘a political decision has not yet been made’. A decision by the leader conclusively ends any controversy and becomes official policy: Nowogrodzka locuta, causa finita. Occasional speeches by or interviews with Kaczyński (invariably, to the ‘friendly media’ who never ask embarrassing or difficult questions) are treated as programmatic guidelines for state policies. All major reforms (including those discussed in this book) are initially foreshadowed by Kaczyński in his public statements. Ministers obediently consider their role as that of turning Kaczyński’s announcements into policies within their portfolio, and if they publicly come up with their own initiative, it is only if Kaczyński has decided to leave them a specified scope of discretion in a given sphere. The paramount role of Kaczyński in the Polish political system, though totally invisible to the constitutional design, has also been accepted and recognized as such by foreign journalists or politicians who seek meetings with him in precedence to meeting the prime minister or the president, knowing that this is where the true power resides. It is also general knowledge that in all politically sensitive issues, the captured institutions, such as the CT or the Council of National Media, decide exactly as the political leadership wishes.

The second dimension of the anti-constitutional character of PiS power is governance through multiple breaches of the Constitution. As will be evidenced in this book, the Constitution has been routinely violated in a number of ways. The (p.16) takeover of the CT is one, though not the only, arena in which breaches of the Constitution have been committed: the parliamentary resolution of 25 November 2015 (with a PiS majority, of course) on the removal of ‘legal effects’ of the election of judges at the end of the previous parliamentary term violates the Constitution because the Constitution provides for an exhaustive number of instances in which a term of a judge can be extinguished, and the Parliament has no such power. The refusal by the president to swear in correctly elected judges violates the Constitution, which does not give the president any such role in designing the composition of the CT. It also unilaterally (by the president) changes the constitutional system for the appointment of judges of the CT because it assumes that the president has the prerogative of refusing to swear in some judges, hence to veto the election by the Parliament—a prerogative unknown to the Constitution. The governmental refusal to publish some of the CT judgments is another usurpation by the government of powers that it does not hold. These are just a few examples related to the dismantling of the CT, with many more discussed in Chapter 3. Put together, they confirm Mark Tushnet’s observation (based on other cases, not Poland) that an authoritarian regime ‘faces no constraints on abandoning law, courts, and constitutionalism when doing what would serve the regime’s interests – or, perhaps more interestingly, when law, courts, and constitutionalism appear to be interfering with the regime’s (other) goals’.56 That is precisely what has been going on in Poland. The regime’s use of the Constitution is highly selective, and coloured by its general distaste for the liberal checks and balances the Constitution enshrines. It is not that the Constitution carries no weight; rather, it could be easily trumped by whatever was considered an important regime goal.

The third dimension of the anti-constitutional character of PiS rule is the series of de facto ‘amendments’ to the Constitution via statutes that significantly alter constitutional dispensations. As former CT judge Mirosław Wyrzykowski wrote about one particular example of such an amendment (namely that of the law on the CT of 22 December 2015):57 ‘For the first time in the thirty-year history of Polish constitutional judiciary, the [Constitutional] Tribunal was confronted with a statutory regulation which changed the constitutional order of the state’.58 The distinction between this and outright breaches of the Constitution is of course blurred: ‘changing’ the constitution through statutory means is in itself a breach of the Constitution. But I am separating this category from the previous one in order to focus on those statutory actions that were meant to circumvent the Constitution, and to highlight an important characteristic of the PiS regime, namely that it has engineered fundamental ‘constitutional changes’ without having an electoral mandate to do so. In the absence of the super-majority necessary for a constitutional change, it proceeded by adopting statutes that in fact contravened constitutional provisions. The setting-up, by statute, of the Council of National Media, was a way of disempowering a constitutional body, the National BroadcastingCouncil, by endowing the former with many of the tasks of the latter (mainly, with regard to supervision of public (p.17) media, a task transferred fully to the new council).59 Several statutory provisions concerning the CT were meant to circumvent other constitutional provisions. For instance, in order to silence Professor Stanisław Biernat, then vice-president of the CT (a constitutionally designated office), a statute of 13 December 201560 invented the position of acting president who performed the actions normally falling upon the vice-president, with the difference that they fully met the expectations of PiS. To give another example: the statute on the KRS61 introduced a number of unconstitutional provisions fundamentally changing the composition and structure of that body compared to its constitutional design: it extinguished the constitutionally settled terms of office of the KRS judges-members and introduced, contrary to the Constitution, a system of electing KRS judges-members by Parliament rather than by their peers.62 In a similar way, a statute on the Supreme Court (SC) extinguished the explicit constitutional term of office of the chief justice of the SC by lowering the retirement age of SC judges from seventy to sixty-five, which affected Chief Justice Małgorzata Gersdorf, notwithstanding that her term of six years is conferred by the Constitution and only ends in April 2020.

The process of amending the Constitution by statute marks the main difference between Orbán’s Hungary and Kaczyński’s Poland: what Kaczyński occasioned by statutes, Orbán had brought about by a brand new Constitution followed by a number of constitutional amendments. For instance, the fundamental change of the composition of the Constitutional Court in Hungary by increasing the number of judges from eleven to fifteen and then prolonging the terms of office of already sitting judges from nine to twelve years was achieved solely by constitutional changes. This immediately allowed the ruling coalition to reach a target of eight out of fifteen judges appointed by it. The removal of the compulsory retirement age for Constitutional Court judges entrenched the domination of Fidesz-appointed judges into the future. As Grażyna Skąpska puts it: ‘The Hungarian case presents an example of an intelligent play with constitutional system as an instrument of political majority, and a hypocritical conformity with the requirements of constitutional democracy and civil rights protection – expressed in the constitution, but changed in the amendments to the constitution’.63

One may ponder over which of these two situations is worse: worse, that is, from the point of view of the standards of liberal constitutionalism. On the one hand, one may claim that the Hungarian style of illiberalism via constitutional changes is more damaging in the long term, because illiberal changes are being entrenched well into the future: a future non-Fidesz government may lack a constitutional majority and be straitjacketed in its conduct by the illiberal Fundamental Law. By changing not only the Constitution but also, for instance, the electoral law, Fidesz managed to lock in its advantage. The entrenchment also applies to a number of officials appointed for very long terms of office, and who are likely to maintain their offices even under a non-Fidesz government: for instance, members of the Council of National Media are appointed for nine years, as is the chief prosecutor (p.18) (previously, six years). On the other hand, however, one may speculate that constitutional amendments via statutes along with simple breaches of the Constitution, Polish-style, are more destructive of the principles of constitutionalism and the rule of law. In Hungary, the disempowerment of the Constitutional Court was done lege artis; in Poland, it was more a demolition job than the restructuring of an institution, in full disregard of the constitutional provisions.

In any event, there is no doubt that for the Kaczyński regime, the absence of a capacity to introduce formal constitutional amendments, or even bring about a new constitution, is seen as a burden and liability; something to overcome in the next elections. Having formal constitutional tools at its disposal is important for populist and authoritarian leaders. As David Landau shows, constitutional change often works in tandem with packing institutions such as the courts: formal constitutional amendments make changes in personnel and policies more durable, and render populist incumbents more difficult to dislodge.64 Venezuela and Hungary provide two examples used by Landau to make this point, while Poland is an example of a country where ‘governing populists have not yet carried out changes at this level’,65 that is, at the level of formal constitutional change.

Constitutional texts serve many other functions useful to authoritarians and populists, beyond entrenching them in power well into the future. These other functions may also be sought after by the PiS regime, and may add to the attractiveness of pursuing a constitutional majority. The first is of a purely symbolic nature: to manifest the break with the bad old days (liberal, cosmopolitan, elitist, etc.), and the genuine commitment of the rulers to traditional, national, and religious values. Hungary’s new Constitution contains a large number of such feel-good patriotic-nationalistic messages, mainly in its Preamble, and they constitute a sort of constitutional ‘cheap talk’:66 they are a low-cost investment in generating loyalty by citizens to the new order. Second, new constitutional texts also provide guidelines to the lower ranks of the party and electorate at large, which may be unaware of all the policy intricacies, and yet who may need to master the arguments in discussions and polemics with opponents.67 Third, constitutional texts provide signposts as to the desired trajectory even beyond the political life of the present leader; better than party programmes, with their inevitable sectarianism, new constitutions outline the perspectives for the regime to evolve towards. This signposting is an important tool for the mobilization of supporters, and at the same time (often) shaming the opponents who may be unable to counter with equally impressive sounding signposts. Fourth, and probably most importantly, new constitutions may facilitate political action, which under the old constitution is more costly and burdensome. By reducing political costs (both domestic and international) consequent upon the breaches of the old constitution, or having to find ways of subterfuge without openly violating its text, a new constitution may be better adapted to the preferences of populist leaders regarding the most effective procedures, mechanisms and institutions in the state they govern.68

(p.19) The functions of constitutions in a populist environment—entrenching personnel and policies into the future, symbolism, guidelines, signposting, mobilizing supporters while demoralizing opponents, and the facilitation of political action by lowering political transaction costs—make constitutional change a desirable action to pursue, but one which, these days at least, is unavailable to Jarosław Kaczyński in Poland. But it may be stated with almost complete certainty that each populist leader, knowing of the aforementioned repertoire of benefits of a new constitution, will aim at achieving constitutional change. Hence, the trajectory of populist systems lacking a new constitution will likely be along the lines of finding ways to equip itself with a brand new constitutional text, or at least (as second best) with deep constitutional amendments. This may explain why, in 2017, President Duda proposed to hold a referendum on a new constitution, preceded by a long period of public debate. The initiative was eventually crushed by his own party in 2018, for fear of the political fallout if the referendum turned out to be a fiasco, which would have been very likely.

Finally, and to state the obvious, perhaps the most striking aspect of the unconstitutional character of the post-2015 developments in Poland is the fact that changes have been preceded and facilitated by the incapacitation of the main device of constitutional maintenance in Poland after the fall of communism: the CT. As David Law and Mila Versteeg note in their pioneering work on ‘sham constitutions’, ‘abusive governments can be expected to combine sham constitutions with sham judicial reviews. Government disrespect for a right will therefore translate into cramped judicial interpretation or enforcement of the right’.69 Disabling the CT from being an effective and robust interpreter and enforcer of the Constitution must be seen as an instrumental step towards a situation in which the Constitution, while formally valid, does not matter when it conflicts with the government’s designs for rearranging the boundary between its own targets and the sphere protected by constitutional principles and rights as interpreted so far. Sham judicial reviews support the government in emasculating constitutional constraints upon its actions. As a consequence, the Constitution stops being ‘self-executing’ because it lacks an internal legal instrument of assuring its self-binding character; its domination is eliminated by a politically dominant force.

When PiS violates the Constitution, it does so not on behalf of some revolutionary goals that would trump constitutional provisions, but rather by claiming that it does so on the basis of its own interpretation of the Constitution, an interpretation that is as good as, indeed better than, that of the SC, the Ombudsman, numerous scholars and law faculties, or the Venice Commission. The public understanding of the transformation by PiS is largely legalistic;70 legal provisions are strictly adhered to even if they are depleted of canonical, traditional or even plausible interpretations of their meanings. By doing so, PiS has undermined the conditions for a rough consensus regarding constitutional meanings, which is a prerequisite of the subjection of politics to the Constitution, and hence of (p.20) constitutionalism itself. There are no longer solid definitions within the political class about what counts as a constitutional violation—and this is perhaps the main significance of the unconstitutional character of PiS rule in Poland post-2015.

‘Populist’

Populism is a vague and contested concept but, however understood, it is an important qualifier to my description of Polish anti-democratic backsliding. The notion of populism emphasizes that what is going on in Poland is not authoritarianism simpliciter, but that it is an illiberal condition whereby the rulers care about popular support. The notion of authoritarianism per se may apply to regimes that are totally insensitive to the level of societal support of their rule, and govern through considerable use of violence, but this is not the case of Poland post-2015. We need a language to distinguish between, on the one hand, authoritarianisms that rule by resorting to bare force and where a degree of societal support for the rule is not important for the rulers because they know that they can, and they do, rely on oppression and coercion; and, on the other hand, illiberal regimes that want to be liked or even loved, at least by a significant segment of the electorate. This does not necessarily render them democratic (once they begin dismantling separation of powers, constitutional checks, and democratic rights, they undermine democracy itself) but it makes them qualitatively different from the regimes that are authoritarian, and where public opinion does not count. In contrast, populists care a great deal about societal support, obsessively follow opinion polls to check their popularity rankings, and have a special weakness for mass rallies as a method of mobilizing ‘the people’.71

The manifestations of populism, so understood, are manifold in Poland. Firstly, the government has been actively seeking popular approval, aiming to increase its support base of eligible voters beyond the 18 per cent it obtained in the 2015 elections, in particular by setting in place various welfare policies, such as a spectacularly popular programme ‘500+’ consisting of monthly payments of PLN 500 (EUR 120) for child after the first—a programme that has benefited over two million families, poor and wealthy alike. This amounts to mass clientelism: ‘the exchange of material and immaterial favors by elites for mass political support’.72 And this clientelism is, in a typically populist vein, underwritten by moralized rationales, about the need to recognize those decent but poor, hard-working and long-suffering people, whose dignity has been, so far, violated by the insensitive elites.

Secondly, using the scholarly definitions of ‘populism’ as anti-pluralism, governmental propaganda has consistently applauded ‘unity’ and ‘community’ as paramount social values, and at the same time depicted the opposition as the enemy, as evil, and illegitimate. Anti-elite and anti-establishment sentiments were skilfully deployed against minorities and the opposition. Ironically, even the most excluded (p.21) and disadvantaged of all groups, that is asylum-seekers and refugees, have been depicted as part of a plan designed by the European and Polish elites to threaten the whole population of Poland, which has let virtually none of them into the country. To make the paradox even more telling, the PiS elite, controlling all levers of power, still exploits its allegedly outsider status. A sense of being an embattled, continuously endangered group fighting the vicious establishment has become so much a part of PiS’s identity and self-perception that even when in power it often presents itself (and is presented by pro-PiS media) as an outsider in opposition to the establishment.

Thirdly, political change has been managed through public propaganda campaigns aimed at winning the support of ‘ordinary people’. The ‘elites’ have been represented as the sole beneficiaries of the post-1989 transition, while the ‘ordinary people’ were allegedly excluded from the resultant benefits. The usual sequence in this management of change has followed a similar script. First, a campaign of hate against a particular target group (judges, journalists, civil servants appointed by the former government, ex-communists) is launched, usually by governmental media; then some selectively chosen defects and pathologies taken from different eras (often, long overcome) are presented in a pars pro toto manner; the promise of a large-scale ‘replacement of elites’ and a ‘redistribution of prestige’ is made by the rulers; mass mobilization of public resentment is then organized, followed by actual legal changes.73 This is why capturing the media (to start with, the public broadcasting media, having the largest coverage and impact) was the first and essential step in managing public sentiments, and in particular negative emotions of hatred, disaffection, and resentment. Just to give the reader an idea of the content of Polish public media propaganda, a typical news service on TVP (this stands for TV Poland, but its critics expand the initialism to TVPiS) these days is built on three elements, usually in this order: (1) the government and in particular the leader have had great successes and fulfil their promise to care for ordinary people; (2) the opposition is ignorant and treacherous, as well as divided by personal ambitions but, above all, it has no programme other than a return to the despicable status quo ante; and (3) ‘Europe’ is decadent and arrogant, and suicidal in allowing Islam to take over (and that is why many reasonable people abroad praise Poland so much).

The populist characteristics of the rhetoric employed by the ruling elite correspond to what many scholars, and in particular Jan-Werner Müller, describe as its fundamentally anti-pluralist character, and a usurpation of the role of true representative of the real identity of the people. As Müller observed, ‘The claim to exclusive moral representation of the real or authentic people is at the core of populism.’74 Kaczyński and his closest collaborators and propagandists have occasionally used this claim, in particular when denouncing the opposition and anti-governmental demonstrators. A favourite rhetorical tool has been to represent critics as foreign agents, even if unknowingly, and as those who simply dislike Poland—hence, have no claim to speak for Polish interests. The ruling elite does not often appeal to the (p.22) Stalinist-sounding concept of ‘enemies of the people’ but characterizations of the government’s critics come close to such invective.

The argument here has so far proceeded as if the concept of ‘populism’ were clear, uncontested, and consensually adopted. Of course, it is not. There are many understandings of ‘populism’, some of which simply identify it with ‘popular’ governmental initiatives; others, with state interventionism in the economy,75 or with a focus on a closeness to working people, ‘blue-collar workers’, farmers, and other lower or lower middle classes;76 or still others with an ideology that opposes bad elites to good people, and celebrates the ‘general will’ as the basis for policy-making.77 In recent years the most influential understanding is offered by Jan-Werner Müller who identifies populism with anti-pluralism, and more specifically, to repeat a quotation just used, with making the ‘claim to exclusive moral representation of the real or authentic people’.78 As Müller explains, not all anti-pluralists are necessarily populist, but all populists make such a claim to exclusive representation. Populists, Müller adds, attempt ‘to speak in the name of the people as a whole’ and ‘to morally de-legitimate all those who in turn contest that claim (which is to say: those who contest their involuntary inclusion in a “We the People”; such resisters to populism are effectively saying: “not in our name”).’79

While Müller is certainly correct that this type of rhetoric can often be found in populist manifestos and public statements, I doubt whether Müller’s criterion of populism is sufficiently stable and determinate to distinguish populist from non-populist politicians and governments: it focuses too much on what populists say as opposed to what they do. This is even more explicit in the claim by another eminent student of populism, Cristóbal Rovira Kaltwasser, that ‘populism is conceived of as a moral discourse, which by pitting “the pure people” against “the corrupt elite” defends the idea that popular sovereignty should be respected by all means.’80 Similarly, for Bart Bonikowski populism is ‘a form of political discourse’ which can be best ‘measure[d] … at the level of political speeches, or even speech elements’.81 I do not deny the importance of a specific discourse for populist politics. It matters a great deal, and it carries distinctive characteristics, with its own style of demagoguery, easy simplifications, enemy targeting, and unattainable promises, in addition to those features briskly encapsulated in the quote from Kaltwasser. But to hinge a characterization fully on either rhetoric, narrative or discourse is always risky: politicians often use their speech in a strategic or deceptive way, and in particular do not always reveal the deep understandings (such as that about exclusive representation of real people) that motivate them to action.

As a result, this definition is both over-inclusive and under-inclusive. It is, on the one hand, over-inclusive: Müller’s criterion is unlikely to provide a good distinction between populists and perfectly unimpeachable democrats who, in a pluralist democracy, often (though not always) claim that they have actually better grasped the true common interest than their opponents; they claim to find a better amalgamation between different ingredients of public good and more rational trade-offs (p.23) between incompatible preferences than their opponents. Such a claim is a common staple of democratic politics, and making it does not taint a politician or a party as ‘populist’. Especially in a democracy in which ideologically determinate political parties decline in importance, as is the case today, politicians will increasingly appeal to a broadly understood public good rather than to the sectoral interests of this or that constituency. As Stefan Rummens observes:

Since well-established ideological divisions have lost much of their appeal, it has thereby become almost unavoidable for politicians to claim to represent ‘the people’ (rather than some subsection of society) and to tell a story about the collective identity of the community they believe significant parts of the electorate night identify with.82

This does not necessarily render them ‘populist’; at most, it makes them appear to pursue popularity, which is a basic job requirement for all politicians. On the other hand, the definition is under-inclusive: populists such as Kaczyński or Orbàn do not necessarily say, ‘We and only we are the people’,83 and that those who disagree with them are beyond the pale of the nation, that they are not ‘real’ Poles, Hungarians etc. Rather, they may characterize, and try to delegitimize, their opponents by presenting them as corrupt, mistaken, treacherous, serving foreign powers etc. To hinge an understanding of populism on making anti-pluralist claims, as Müller urges, is to hook our understanding of populism to the shifting sands of public rhetoric.

My understanding of populism identifies it with actions, which usually speak louder than words: in this sense, it is different from Müller’s view because it sees populism not as an ideology but rather a form of political organization. But it overlaps with Müller’s understanding in that it is, inter alia, connected with anti-pluralism or, more specifically, hostility to institutional pluralism. Populists typically try to build bridges to the ‘real’ people above the heads of intermediary institutions that in a constitutional democracy mediate between the people and the exercise of power. They dislike and disparage these institutions even if, as Kaczyński does, they pay lip service to them, but in the process, erode them of the reasons that underlie the creation of these institutions in the first place. Their political action is usually of a plebiscitary character, aimed at translating the will of the mythical, pre-political people into political action; they ‘bypass all forms of intermediation’ and ‘rely on unmediated, quasi-direct appeals’.84 Society, as a complex web of diverse preferences, interests, and identities, which triggers a pluralistic structure aimed at aggregating those diversities in a compromise-based polity, is displaced by a homogenous entity, the interests of which are best grasped by the populists, that is, the ultimate leader. The people are one, and those who reject us are not the people; and we are their representatives, so no intermediation between or interference with our pure representation of them can be (p.24) countenanced. This, admittedly vague and under-theorized, understanding of populism will be adopted in this book.

It is also clear that when I speak of populism, I have in mind only its right-wing variant. According to some, ‘left-wing populism’ does not exist because left-wing parties do not appeal to the measures characteristic of populism, such as the style of politics that feeds on over-simplification and demagoguery. According to those critics, left-wing populism would be self-defeating because it would contradict what grassroots left-wing movements ultimately want, namely an expanded and inclusive public sphere with an active and critical role in checking government policies.85 I will not adopt such a restrictive definition, which excludes the very possibility of left-wing populism, but it is irrelevant for our discussion, focused as it is on Poland. In Poland, as virtually everywhere else in the post-communist world (as opposed to Western and in particular Southern Europe), left-wing populism has been almost non-existent. Some consider the movement Samoobrona, which was a coalition partner of PiS in 2005–7, to be left-wing (by its pro-redistributive slogans), and certainly in its political style, demagoguery, and violently ‘anti-elite’ approach it can be characterized as populist. But it was short lived, and made only an ephemeral impact on the Polish political system. Elsewhere in the region, during some of its various iterations, the Slovak party Smer (Direction) could have been viewed as left-wing populist movement, as in Lithuania, with the agrarian-populist Peasant and Greens Union as part of the governing coalition. Overall, however, the right-wing variety clearly dominates in the landscape of populism in CEE. This is explained well by Ben Stanley:

The relative absence of left-wing populism [in the CEE region] reflected the compatibility of nationalist, traditionalist, and authoritarian attitudes with anti-market economy stances. Right-wing populists were able to articulate this combination of ideological views without difficulty, whereas populists who laid claim to a left-wing identity had to be more careful in associating themselves with non-progressive political currents.86

Perhaps the main difference between left-wing populist movements (e.g. the Syriza in Greece and Spain’s Podemos) and right-wing populists is that, for the former, the targeting of an outsider as someone to be warned against is irrelevant or is of only small significance, while in the case of right-wing populists it is usually one of the essential elements of their programme. As John Judis puts it, ‘[l]eftwing populists champion the people against an elite or an establishment’, while right-wing populism is ‘triadic’ in that adherents ‘champion the people against an elite that they accuse of coddling a third group, which can consist, for instance, of immigrants, Islamists, or African American militants’.87 For those of a left-wing sensitivity, targeting the ‘other’, who are usually the weakest and the most vulnerable, would be against the most fundamental progressive values. In this way, left-wing populism (p.25) is neither necessarily exclusionary nor inegalitarian; left-wing populists generally ‘accept political liberalism’s commitment to equality’.88

In any event, a clear characterization of PiS as right-wing as opposed to left-wing is difficult because, while some traits of its programme are typically right-wing (nationalism, ostentatious religiosity, celebration of hierarchical authority and tradition), others may be seen as more of a left-wing variety (massive economic transfers towards the worse-off). This uncertainty of characterization is related to the fact that, as with any populism, and in particular any populism in power, PiS’s populism is only very thinly ideological. The general trend in Europe is for populist parties to combine redistributive policy and opposition to austerity measures with strong anti-immigration and anti-minorities impulses. In pursuit of vote maximization, which is its main aim, PiS explicitly uses appeals to the strongly ideological items of its programme only occasionally, whenever it needs to win (or win back) its most radical base, without however alienating the more moderate supporters. In this respect, Kaczyński is in line with other populist leaders who ‘put vote maximization ahead of ideological purity’.89 That is why Kaczyński himself is vague about his comprehensive vision of a society, except for some banalities about dignity or traditional values. Since today’s PiS is a new iteration of a centrist, mainstream party, no one expects him to enunciate such a vision.

In principle, it may be thought that the very idea of populism need not put it necessarily on a collision course with democracy and compel it to pursue authoritarian solutions. Some versions and manifestations dubbed as ‘populist’ do not imply authoritarianism. For instance, the campaign for Brexit was generally viewed as a strong manifestation of populism, and indeed carried certain features associated with populism: dislike of the existing political establishment, and in particular of mainstream political parties; fear of or hatred towards the ‘others’, in particular migrants and refugees; strong economic and political nationalism, associated with the dislike of globalization, European supranationalism, etc. The UK Independence Party’s populist appeal was based first and foremost on its anti-EU and anti-immigrant sentiments (two issues that were easily merged into one in the mouth of skillful demagogues),90 but there was very little about the pro-Brexit movement to suggest that its proponents were hostile to the idea of political democracy, to pluralism, and to the principles of political representation, even though the very idea of a referendum on Brexit was clearly a choice of a plebiscitary mode of politics.91 But the use of plebiscitary politics within a broader framework of parliamentary democracy is not, per se, evidence of a dangerous or invidious pluralism. Similarly, it is not clear whether left-wing populists in Greece or Spain are hostile to democratic processes (both parties took part in the parliamentary elections in their respective countries, and never questioned the outcomes, with Syriza even winning the general election in January 2015)92 even if they occasionally criticize specific democratic processes in their countries—something that is a legitimate matter for any democratic party or movement to pursue.

(p.26) But populism, Polish or Hungarian style, is anti-democratic and authoritarian, because it connects the usual populist repertoire (nationalism, plebiscitary style of politics, xenophobia, and fear of others) with dismantlement of the institutional mechanisms that are essential to political democracy. As is documented in detail in this book, and in particular in Chapters 3–5, both these instances of populists in power manifest, in addition to populism-defining characteristics, clear authoritarian traits: the dismantlement of institutional constraints on political power (especially, but not limited to, courts of various sorts), restrictions on political rights (including freedom of the media), and manipulation of electoral law in order to favour the incumbents and, above all, to concentrate virtually all of the political power in the hands of the leader of the electorally victorious party. Insofar as some of these assaults on the conditions of democracy are still in early gestation in Poland (especially as far as restrictions of political rights and freedoms are concerned), we may speak of a movement towards authoritarianism rather than a fully fledged authoritarian regime. As Bojan Bugarič says, ‘authoritarian populists in Hungary and Poland have successfully institutionalized, through legal reforms, a new version of semi-authoritarian regime, which is halfway between “diminished democracy” and “competitive authoritarianism”.’93 And if we adopt the realistic view that a characterization of ‘authoritarianism’ allows for judgments of degree, rather than being black-and-white, whether we define the Polish case as semi-authoritarianism or as a system on the road towards authoritarianism or as authoritarianism at an early phase of maturation, is a pedantic question. The choice of terminology may have a pragmatic use in expressing one’s degree of reprobation, but as an analytical matter it is of no import. What matters is that these authoritarian movements are, in Poland as in Hungary, part of a broader package that includes typically populist ideology and instruments. Whether populism is intrinsically related to authoritarianism of the sort that Orbán and Kaczyński espouse is something that is beyond the goals of this chapter to reflect upon, but such a discussion is offered in Chapter 9 of this book.

Bugarič, when reviewing contemporary studies about how populists in power undermine democracy, concludes that there are four symptoms of such a democratic degradation.94 All these four symptoms are present, to different degrees, in Poland and Hungary. The first is attacks upon the essential checks and balances of the executive and legislative branch. In Poland it was reflected mainly in the paralysis of the CT and in turning it into an aide to the government. Similarly, in Hungary the capture of the Constitutional Court proceeded through changing the rules for nomination of judges, then by restricting the court’s jurisdiction, and finally by court-packing, which included an increase in the number of judges, thus producing a safe Fidesz majority on the court. In both countries, an assault on regular courts proceeded along very similar lines, including the restructuring of the SC and the lowering of the retirement age for judges to get rid of possibly recalcitrant judges and create vacancies for loyalists. The second symptom is an attack (p.27) on free media. In Poland, this was reflected in the full colonization of public media, but is also at an early stage insofar as the commercial media is concerned. In contrast, in Hungary, almost all the main commercial media (including the second-largest private TV channel) found themselves in the hands of the government’s allies. In both countries, the regulatory institutional system of media was changed to suit the needs of the executive branch. The third aspect is a populist attack on civil rights and liberties. In Poland such assaults are visible in the changes in the law of assemblies, with some assemblies being ‘more equal than others, in freedom of speech (the law on the Holocaust), and the rights of NGOs. Finally, the fourth aspect is the degradation of the quality of elections. In Poland, it is reflected in a systemic change to the institutional system of the electoral process, with all central and local institutions of elections ‘dejudicialized’ and staffed by persons dependent upon the executive. In Hungary, changes in the electoral system were effected by a combination of gerrymandering, reductions in the parliamentary seats, and the capture of the Elections Commission. As one can see, the general observations regarding populism’s assault on democracy around the world have been reproduced in Poland and Hungary.

‘Backsliding’

The concept of ‘backsliding’ is also central to the characterization of Polish developments in recent years because its dynamism and path-dependence is essential. In Poland, just as in Hungary, in contrast say to Russia or Belarus, we deal with instances of significant deterioration in democratic qualities already attained. In fact, it had been generally acknowledged that both Hungary and Poland were among the most successful post-transitional democracies in CEE, and indeed achieved the greatest successes of their entire respective histories: never before had either of these countries attained a combination of democratic governance generated by free and fair elections, rapid growth in standards of living, and safe international environments secured by membership both in the EU and NATO. In an article back in 2002, a prominent US political scientist listed Poland and Hungary in the category of ‘the leaders of the group’ of countries that were ‘en route to becoming successful, well-functioning democracies’ within a broader ‘transitional’ category.95 Without any exaggeration, one may say that both countries have never had it so good in their past, all the more in their recent past.

This fact is significant to understand the specificities of the situation, because the trajectory of backsliding has to be distinguished from the absence of democratic progress in countries that have not achieved a satisfactory level of democracy in the first place,96 or where the current status quo has emerged as a result of the relative democratization or liberalization of an oppressive regime. Path dependence matters a great deal and we need a language to distinguish cases such (p.28) as Poland and Hungary (with recent high, though not yet strongly, consolidated democratic achievement fresh in its collective memory and in institutional legacies) from states that are ‘stuck somewhere on the assumed democratization sequence, usually at the start of the consolidation phase’.97 The trajectory in the form of a bell curve that Poland has traversed is completely different from a static plateau of Belarus, Moldova or Russia, and these differences produce salient political and constitutional consequences/effects. The states that have backslided from a superior position are held to higher standards by their citizens and by the outside word, because these higher standards had once been achieved or approximated. There are institutional legacies, such as constitutional interpretations in the case law or practices of good conduct by authorities, which exert normative pressure upon the current authorities. The coexistence and interactions of authoritarian leaders with the democratic institutions that evoke fully democratic standards latent in the collective memory of the society yield distinctive patterns of political behaviour and legal actions not found in the authoritarian states without such a past.

The use of the notion of backsliding emphasizes a temporal dimension, and highlights a retrogression that is not visible in a time-slice account. As Renata Uitz observed acutely (with regard to Orbàn’s Hungary), ‘[r]eflecting on the changes introduced by the new constitutional rules (rather than simply taking a snapshot of these rules) and accounting for the practical consequences of these changes, have revealed a pattern of elimination of constitutional constraints on the exercise of political powers and the resulting instances of self-perpetuation through constitution-making’.98 This reference to a ‘snapshot’ is important because a system, if not viewed in a diachronic way, may bear a resemblance to some similar systems in perfectly democratic countries. What is missing in a snapshot account is that the removal (or hollowing-out) of certain institutions in comparison to the previous status quo erodes the system of safeguards, while in a different system that may bear superficial resemblances to a country that slid back, the role of such safeguards is played by different mechanisms or by legal and political culture. This is, for instance, the case of constitutional review which, when emasculated in Poland or Hungary, leaves a gap because the system had used such review to provide crucial protections that elsewhere (e.g. in legal systems lacking a constitutional court) has been provided by other institutions.

The word ‘backsliding’ accurately describes the process of reversal, and the fact that there is no rapid, immediate rupture, as in a coup. It also emphasizes a process as opposed to a state of affairs. As Ellen Lust and David Waldner describe it: ‘Backsliding occurs through a series of discrete changes in the rules and informal procedures that shape elections, rights and accountability. These take place over time, separated by months or even years.’99 But at the same time, one should be warned that the use of the word ‘backsliding’ should not connote (as the word may suggest to some) something impersonal, purposeless, almost haphazard.100 (p.29) There is energy, restlessness, zeal, and purposefulness in Poland after 2015—as is evidenced in the rest of this book.

It is also important to resist a possible, but potentially misleading, implication of the concept ‘backsliding’ that it is some form of reversal to the ancien regime, or at least that ‘backsliding can be directly traced back to the survival of structures, mentalities, and habits of [sic] rooted in communism’.101 This idea may be one among many possible characterizations of the populist breakdown of constitutionalism in Poland or Hungary, particularly salient for the purpose of political rhetoric and polemics, but any analogy with the communist or immediate post-communist structures is a non-starter. Both supranational and domestic institutional structures are completely different, and if the notion of backsliding may be seen as a reversal of democratic practices and achievements, it is not in the direction of state socialism or communism. It does not follow that one should abstain from analyses of sources of the backsliding as being connected, inter alia, with value formations, which have their sources in the pre-1989 period: both in the sphere of ‘demand’ for policies and ‘supply’ of political programmes, the attitudes and expectations of political actors and their constituencies are shaped, constrained, and affected, among other things, by attitudes formed under communism.102 But today’s backsliding is not along a road back to communism.

(p.30)

(p.31)

(p.32)

(p.34)

Notes:

(1.) James Dawson and Seán Hanley, ‘The Fading Mirage of the “Liberal Consensus” ’ (2016) 27/1 Journal of Democracy 20, 20.

(2.) Agata Łukaszewicz, ‘Dobra muzyka … zawsze się obroni’, Rzeczpospolita (Warsaw, 22 February 2018) 15.

(3.) ‘Przyjdzie dzień, że w Warszawie będzie Budapeszt’, <https://www.tvn24.pl/wiadomosci-z-kraju,3/przyjdzie-dzien-ze-w-warszawie-bedzie-budapeszt,186922.html> (accessed 2 August 2018).

(4.) Arch Puddington and Tyler Roylance, ‘The Dual Threat of Populists and Autocrats’ (2017) 28/2 Journal of Democracy 105, 112.

(5.) Jerzy Baczyński, ‘Niewygodne przesłanie’, Polityka 7 (Warsaw, 7 November 2017) online edition.

(6.) Grażyna Skąpska, ‘The Decline of Liberal Constitutionalism in East Central Europe’ in Peeter Vihalemm, Anu Masso, and Signe Opermann (eds), The Routledge International Handbook of European Social Transformations (Routledge 2017) 130, 134.

(7.) See Bogdan Góralczyk, ‘Axiological Disintegration of the EU? The Case of Hungary’ (2015) 18 Yearbook of Polish European Studies 81, 87.

(8.) Balint Magyar, Post-Communist Mafia State: The Case of Hungary (CEU Press 2016).

(9.) Eric A. Posner, ‘The Dictator’s Handbook, US Edition’ in Cass R. Sunstein (ed.), Can It Happen Here? Authoritarianism in America (HarperCollins 2018) 1, 16. Posner raises this question with regard to a hypothetical he formulated regarding President Trump’s assault on institutions.

(10.) Mark Tushnet, ‘Authoritarian Constitutionalism’ (2015) 100 Cornell Law Review 391, 409–10 and 410, footnote 101.

(11.) Ozan O. Varol, ‘Stealth Authoritarianism’ (2015) 100 Iowa Law Review 1673, 1734.

(12.) Aziz Huq and Tom Ginsburg, ‘How to Lose a Constitutional Democracy’ (2018) 65 UCLA Law Review 78, 118, footnote omitted.

(13.) Ibid. 119.

(14.) Ibid. 119, footnote omitted.

(15.) Nancy Bermeo, ‘On Democratic Backsliding’ (2016) 27/1 Journal of Democracy 5, 14.

(16.) Gábor Attila Tóth, ‘The Authoritarian’s New Clothes: Tendencies Away from Constitutional Democracy’, Policy Brief (The Foundation for Law, Justice and Society 2017) 2.

(17.) The parliamentary discussion on the Supreme Court Act on 19 July 2017, <http://orka.sejm.gov.pl/Zapisy8.nsf/0/FD57E6B95B10AB16C125816F003ACDF4/$file/0215108.pdf> (accessed 25 April 2018).

(18.) The parliamentary discussion on the Constitutional Tribunal Act on 21 December 2015, <http://orka.sejm.gov.pl/Zapisy8.nsf/0/CBCDE2C33B340E53C1257F37004B0580/$file/0011008.pdf> (accessed 25 April 2018).

(19.) For the concept of hollow institutions, see Dawson and Hanley (n. 1) 23.

(20.) Martin Krygier, ‘Institutionalisation and Its Discontents: Constitutionalism versus (Anti-) Constitutional Populism in East Central Europe’, Democratic Politics in Global Crisis? Challenges, Approaches, Resistances, lecture delivered to Transnational Legal Institute, King’s College London, Signature Lecture Series, 17 November 2017; on file with the author, 4.

(21.) Varol (n. 11) 1684.

(22.) Ibid. 1679.

(23.) Ibid.

(24.) Ibid. 1685.

(25.) Steven Levitsky and Daniel Ziblatt, How Democracies Die (Crown Publishing 2018) 5.

(26.) János Kis, ‘Introduction: From the 1989 Constitution to the 2011 Fundamental Law’ in Gábor Attila Tóth (ed.), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (CEU Press 2012) 1, 15.

(27.) Jack M. Balkin, ‘Constitutional Rot’ in Cass Sunstein (ed.), Can It Happen Here? Authoritarianism in America (HarpersCollins 2018) 19, 26–27.

(28.) See Ellen Lust and David Waldner, ‘Unwelcome Change: Understanding, Evaluating and Extending Theories of Democratic Backsliding’ (USAID, 2015) [PDF] <http://pdf.usaid.gov/pdf_docs/PBAAD635.pdf> 21–22 (accessed 9 November 2017).

(29.) Maciej Gdula, Nowy Autorytaryzm (New Authoritarianism) (Wydawnictwo Krytyki Politycznej 2018) 10–11.

(30.) ‘Election 2016: How it Happened’, The Economist (London, 12 November 2016) (‘Half of America can scarcely believe the other half has chosen Mr. Trump’).

(31.) For these, and many other examples of lies, deceptions, and manipulations, see Dominik Uhlig, ‘Pinokiowie’, Czarna Księga, Gazeta Wyborcza (Warsaw, 17 October 2018) 10–11.

(32.) I am grateful to Mr Eugeniusz Smolar for pointing my attention to the facts and statements referred to in this paragraph, personal communication, 4 March 2018.

(33.) See ‘Poland’s New Government Dislikes Critical Media, Vegetarians and Cyclists’, The Economist (London, 4 January 2016), online edition, <https://www.economist.com/europe/2016/01/04/polands-new-government-dislikes-critical-media-vegetarians-and-cyclists> (accessed 4 July 2018).

(34.) ‘Poles and Hungarians have preserved good values’, speech by Andrzej Duda (19 March 2016) <http://www.president.pl/en/news/art,126,poles-and-hungarians-have-preserved-good-values.html> (accessed 4 July 2018).

(35.) As reported in ‘Poland’s New Prime Minister: Return to Christian Roots Only Way to Stop Europe’s Decline’ (LifeSiteNews, 14 December 2017) <https://jtcontracelsum.blogspot.com/2017/12/polands-new-prime-minister.html> (accessed 4 July 2018).

(36.) Andrzej Balcer, Piotr Buras, Grzegorz Gromadzki, and Eugeniusz Smolar, Change in Poland, but what change? Assumptions of Law and Justice Party Foreign Policy (Stefan Batory Foundation 2016) 2.

(37.) Ibid. 14, emphases omitted.

(38.) As recently as 2016, over 60 per cent of Poles were against same-sex partnerships, while over 25 per cent were in favour, ibid. 11.

(39.) Balkin (n. 27).

(40.) Tom Gerald Daly, in a number of I-CONNECT blog posts and columns, including ‘Enough Complacency: Fighting Democratic Decay in 2017’ (I-CONNECT, 11 January 2017) <http://bit.ly/2uuLGXe> (accessed 9 January 2018).

(41.) See Jacques Rupnik, ‘Is East-Central Europe Backsliding? From Democracy Fatigue to Populist Backlash’ (2007) 18/4 Journal of Democracy 17.

(42.) Fareed Zakaria, ‘The Rise of Illiberal Democracy’, Foreign Affairs (November/December 1997) 22.

(43.) Bojan Bugarič and Tom Ginsburg, ‘Assault on Postcommunist Courts’ (2016) 27/3 Journal of Democracy 69, 73–75.

(44.) Tóth (n. 16).

(45.) David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189.

(46.) Roberto Stefan Foa and Yascha Mounk, ‘The Signs of Deconsolidation’ (2017) 28/1 Journal of Democracy 5, 11–12.

(47.) Ibid. 5–8.

(48.) See Larry Diamond, ‘Thinking about Hybrid Regimes’ (2002) 13/2 Journal of Democracy 21.

(49.) With respect to Hungary, see Magyar (n. 8) 113.

(50.) See e.g. Kim Lane Scheppele, ‘Constitutional Coups and Judicial Review: How Transnational Institutions Can Strengthen Peak Courts at Times of Crisis (with Special Reference to Hungary’ (2014) 23 Transnational Law & Contemporary Problems 51.

(51.) But see Scheppele: she defends using the word ‘coup’ because ‘the end result turns the prior constitutional order on its head without a legitimating process to confirm the changes’, ibid. 51–2.

(52.) For insistence on the need to distinguish between coups and ‘endogenous termination’ where democratically elected leaders end the democratic process themselves, see Ko Maeda, ‘Two Modes of Democratic Breakdown: A Competing Risks Analysis of Democratic Durability’ (2010) 72 Journal of Politics 1129.

(53.) Personal disclosure: so did I.

(54.) Skąpska (n. 6) 140.

(55.) For more about the veto, see Marcin Matczak, ‘Is Poland’s President Duda on the Road to Damascus?’ (VerfBlog, 26 July 2017) <http://verfassungsblog.de/is-polands-president-duda-on-the-road-to-damascus> (accessed 9 January 2018).

(56.) Mark Tushnet, ‘Authoritarian Constitutionalism: Some Conceptual Issues’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) 36–40.

(57.) Act of the 22 December 2015 amending the Act on the Constitutional Tribunal.

(58.) Mirosław Wyrzykowski, ‘Antigone in Warsaw’ in Marek Zubik (ed.), Human Rights in Contemporary World: Essays in Honour of Professor Leszek Garlicki (Wydawnictwo Sejmowe 2017) 370, 380.

(59.) Act of 22 June 2016 on the Council of National Media. The council is charged with the control of national broadcasters (Polish Television, Polish Radio, and Polish Press Agency) having the competence to appoint or dismiss presidents, members of supervisory boards, and management boards as well as other members of public broadcaster’s statutory bodies.

(60.) Provisions on Introduction of the Act on the Organisation and Proceedings before the Constitutional Tribunal and the Judges of the Constitutional Tribunal Status Act. (After Sejm had passed the statute and the Senate had not submitted amendments, the President signed the statute on 19 December 2016.)

(61.) Act of 8 December 2017 on the amendment of the Act on the National Council of the Judiciary and some other acts.

(62.) See more: Marcin Matczak, ‘President Duda is Destroying the Rule of Law instead of Fixing it’ (VerfBlog, 26 September 2017) <http://verfassungsblog.de/president-duda-is-destroying-the-rule-of-law-instead-of-fixing-it> (accessed 9 January 2018); Wojciech Sadurski, ‘Judicial “Reform” in Poland: The President’s Bills Are as Unconstitutional as the Ones He Vetoed’ (VerfBlog, 28 November 2017) <http://verfassungsblog.de/judicial-reform-in-poland-the-presidents-bills-are-as-unconstitutional-as-the-ones-he-vetoed> (accessed 9 January 2018).

(63.) Skąpska (n. 6) 134.

(64.) David Landau, ‘Populist Constitutions’ (2018) 85 University of Chicago Law Review 521, 532–37.

(65.) Ibid. 536.

(66.) On constitutional cheap talk, see Tom Ginsburg and Alberto Simpser, ‘Introduction: Constitutions in Authoritarian Regimes’ in Tom Ginsburg and Alberto Simpser (eds), Constitutions in Authoritarian Regimes (CUP 2014) 1, 7.

(67.) This function corresponds, roughly, to what Ginsburg and Simpser describe as ‘set[ting] up institutions to control lower-level agents’, ibid. 4.

(68.) This corresponds roughly to the ‘operating manual’ function of constitutions, ibid. 6.

(69.) David S. Law and Mila Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863, 877.

(70.) In public discourse, though, there were exceptions. At the beginning of the constitutional crisis in Poland, in November and December 2015, some MPs referred to the theory of the Sejm’s (Parliament’s) supremacy over the tribunal and other constitutional bodies. Their justifications were based directly on the concept of the primacy of the nation’s will over the law, see e.g. Konrad Morawiecki, in Sprawozdanie Stenograficzne z 2. posiedzenia (p.33) Sejmu Rzeczypospolitej Polskiej w dniu 25 listopada 2015 r. (Minutes of the Meeting of Sejm of the Republic of Poland on 25 November 2015) 78; Marek Ast, in Sprawozdanie Stenograficzne z 3. posiedzenia Sejmu Rzeczypospolitej Polskiej w dniu 2 grudnia 2015 r. (Minutes of the Meeting of Sejm of the Republic of Poland on 2 December 2015) 14–15.

(71.) See Kurt Weyland, ‘Populism: A Political-Strategic Approach, in Cristóbal Rovira Kaltwasser’ in Paul Taggart, Paulina Ochoa-Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017) 48, 56–8.

(72.) Jan-Werner Müller, ‘Populism and Constitutionalism’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa-Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017) 590, 596.

(73.) For repeatability of this sequence, see Ewa Łętowska, ‘Zmierzch liberalnego państwa prawa w Polsce’ (2017, no. 1–2) Kwartalnik o prawach człowieka 5, 11.

(74.) Müller (n. 72) 593, emphasis in original.

(75.) See e.g. Ross Douthat, ‘The Pull of Populism’ New York Times (New York, 14 February 2018), online edition (accessed 16 February 2018). The New York Times columnist writes about ‘a nationalism-infused deficit financed populism’ as a strand in current American conservatism, opposed to libertarianism; its programmatic claims are promises of ‘infrastructure spending, universal health care, protectionism, middle-class tax cuts—a right-wing Keynesianism for the common man’.

(76.) In his monumental biography of Stalin, Stephen Kotkin notes that ‘Stalin had never been a worker himself, had clashed bitterly with the one genuine worker in the politburo (Tomsky), and rarely visited factories. But he nurtured a deep populist streak’; Kotkin goes on to describe Stalin’s writing a preface to a female textile worker pamphlet on socialist competition. This subsection of the chapter in Kotkin’s book is entitled ‘Populism’, Stephen Kotkin, Stalin, vol. 2 (Allen Lane 2017) 18.

(77.) Cas Mudde, ‘Populism: An Ideational Approach’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa-Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017) 27–47.

(78.) Müller (n. 72) 593, emphasis in original.

(79.) Ibid. 601.

(80.) Cristóbal Rovira Kaltwasser, ‘Populism and the Question of How to Respond to It’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa-Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017) 489, 490, emphasis added.

(81.) Bart Bonikowski, ‘Ethno-nationalist populism and the mobilization of collective resentment’ (2017) 68 (Suppl. 1) British Journal of Sociology S181, S186.

(82.) Stefan Rummens, ‘Populism as a Threat to Liberal Democracy’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa-Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017) 554, 560.

(83.) Müller (n. 72) 601.

(84.) Weyland (n. 71) 58.

(85.) Albert Ogien and Sandra Laugier, Antidémocratie (La Découverte 2017) 73–4.

(86.) Ben Stanley, ‘Populism in Central and Eastern Europe’ in Cristóbal Rovira Kaltwasser, Paul Taggart, Paulina Ochoa-Espejo, and Pierre Ostiguy (eds), The Oxford Handbook of Populism (OUP 2017) 140, 147.

(87.) John B. Judis, The Populist Explosion (Columbia Global Reports 2016) 15.

(88.) Mark Tushnet, ‘Comparing Right-Wing and Left-Wing Populism’ in Mark A. Graber, Sanford Levinson, and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018) 639, 645.

(89.) Weyland (n. 71) 50.

(90.) See Judis (n. 87) 140.

(91.) See Gráinne de Búrca, ‘How British was the Brexit Vote?’ in Benjamin Martill and Uta Staiger (eds), Brexit and Beyond: Rethinking the Futures of Europe (UCL Press 2018) 46.

(92.) Judis (n. 87) 114–30.

(93.) Bojan Bugarič, Central Europe’s Descent into Autocracy: On Authoritarian Populism, 2018–2019 CES Harvard Open Forum Paper Series 5, footnote omitted.

(94.) Ibid. 12–14.

(95.) Thomas Carothers, ‘The End of the Transition Paradigm’ (2002) 13/1 Journal of Democracy 5, 9.

(96.) See Steven Levitsky and Lucan Way, ‘The Myth of Democratic Recession’ (2015) 26/1 Journal of Democracy 45, 53–4.

(97.) Carothers (n. 95) 10.

(98.) Renáta Uitz, ‘Can You Tell when an Illiberal Democracy is in the Making? An Appeal to Comparative Constitutional Scholarship from Hungary’ (2015) 13 International Journal of Constitutional Law 279, 296.

(99.) Lust and Waldner (n. 28) 7.

(100.) I owe this observation to Martin Krygier.

(101.) Zsolt Enyedi, ‘Populist Polarization and Party System Institutionalization: The Role of Party Politics in De-Democratization’ (2016) 63 Problems of Post-Communism 210, 216.

(102.) See similarly ibid. 216.