Rule of law as a consensus among elites: How political polarization and elites’ irresponsibility hinder the resolution of the rule-of-law crisis in Poland.

Special Issue: “Rule of Law and Rechtsstaat under Pressure”, Zeitschrift für Vergleichende Politikwissenschaft

Paper proposal:

Solska, Magdalena: "Rule of law as a consensus among elites: How political polarization and elites’ irresponsibility hinder the resolution of the rule-of-law crisis in Poland"

Why has Poland been stuck in the apparent crisis of the rule of law since 2016, even though its resolution is actually in the interest of every involved actor? The contested judicial reform has been introduced by the PiS-led government without any thorough consultations, nor a proper diagnosis of the real problems of the judicial system. However, most scholarly arguments related to intentional demolition of democratic standards and subordination of the judiciary to the executive fail to address the core of the problem of the rule-of-law crisis in Poland: The ongoing lack of functional consensus among political and judicial elites related to their systemic position in Polish democratic order. This missing consensus stems from the specific origin of the judicial system (including the Constitutional Tribunal) on the one hand, and the institutional design of Polish system of government, on the other.

Such consensus, however, requires a minimal agreement and uniformity among political elites as a whole, and their mutual recognition as legitimate opponents in electoral competition for power. Instead, the intensive political conflict in Poland has been deliberately sustained and expanded by main political rivals – the ruling party PiS and the main opposition party Civic Platform (PO) – which have consistently been trying to delegitimize each other. I explain the current impasse in the resolution of constitutional crisis in Poland with political polarization and proceed to unpack how the sharp division among political elites has hindered the constructive overcoming of the rule-of law-crisis. 

To this end the paper develops the hitherto understudied concept of responsibility of elites and applies it to political elites’ behaviour (both at power and in the opposition) in the context of the highly controversial judicial reform in Poland. The analysis shows that elites’ responsibility goes beyond their usual functions and performance. It has much broader, system-related implications, especially when it comes to the establishment of a balanced separation of power.