Christian Demeter

Newbies to the Polish political drama need to understand how language is being misused (by both sides) to further their respective crusades. To the uninitiated, “restoring the rule of law” probably sounds like a noble objective. The framing makes it sound as though the previous government (despite being called the Law and Justice party) ruled without any regard for law and justice. Perhaps, even, that it abused its power by oppressing dissidents or confiscating assets. Who knows. Tusk’s accusation of “lawlessness” is even more sensational and misleading. In ordinary language, the term conjures up images of a mafia state, or worse, a failed state where it’s every man for himself. But no reasonable person assessing the period during which PiS was in power could honestly suggest that this was the case. Poland was not lawless in any ordinary understanding of the word. The sleight of hand lies in taking a specific legal and constitutional dispute and repackaging it as a sweeping indictment of an entire government. The accusation derives its legitimacy from genuine controversies over the rule of law, but its political force comes from the much broader and more sinister meaning that the phrase carries in everyday language. At the heart of the dispute is the question of whether Polish constitutional law can take precedence over EU law in areas where the EU maintains that its law has primacy, alongside controversies surrounding judicial independence. These are major legal questions, but they are a far cry from the impression of generalised lawlessness that Tusk’s rhetoric invites. “Restoring the rule of law” is an exceptionally effective piece of political messaging. It allows Tusk to present his government as the force restoring legality, while casting his opponents as people who governed outside the law. Yet, powerful states such as the US and China have long asserted their sovereignty against international legal constraints they consider unacceptable. The EU may be a distinct legal order whose treaties Poland voluntarily accepted, but the broader question of where national sovereignty ends and supranational authority begins is hardly unique to Poland. Of course, the ultimate source of the consternation lies in PiS’ judicial reforms during its time in power. Yes, breaking established procedures to pack supposedly independent courts with your own appointees is not a good look. But it becomes a little more understandable when you consider the historical context that Western media so often leave out when reporting on the story. Poland never underwent a comprehensive “lustration” of its judiciary after the fall of communism. The transition involved compromises that allowed considerable institutional continuity, with elements of the old judicial establishment, its professional networks and institutional culture surviving into the new democratic order. This is crucial because PiS did not regard itself as politicising an otherwise independent judiciary. Its contention was precisely the opposite: that the judiciary was already politicised, having never been sufficiently disentangled from the structures and networks inherited from the communist era. From that perspective, its reforms were intended to dismantle an entrenched establishment rather than create one. The opposition and the EU regarded those same interventions as an assault on judicial independence. Tusk and his allies have often challenged the relevance of the judiciary’s communist-era legacy by pointing out that most judges from that period are no longer serving. But this misses the substance of the argument. The concern is not necessarily about the survival of individual communist-era judges, but about the professional networks, institutional culture and entrenched structures that may have outlived them. The continuum.