Theoretical background
The definition of ‘illiberal’ refers to the notions of illiberal democracy[294] and illiberal constitutionalism[295] used in public and academic discussions on recent reforms (with or without quotation marks, depending on the side of the dispute).
The term illiberal democracy was initially used purely descriptively, to capture the nature of the political system of states undergoing systemic transition, where, however, the model of Western liberal democracy had not been adopted (defined as a political system marked not only by free and fair elections, but also by the rule of law, a separation of powers, and the protection of basic liberties of free speech, assembly, religion and property).[296] Currently, however, this concept has taken on a normative character and is used to describe a political project that postulates the necessity to reinterpret the main principles of democracy, such as national sovereignty, representation or separation of power, and to reject the liberal-democratic consensus that prevailed after World War II in Western Europe.[297] One of Hungarian Prime Minister Viktor Orban’s speeches, in which illiberal democracy is presented as a political project that constitutes the optimal solution for Hungarian society, is considered to have been the beginning of this approach.[298] It involves a thorough modification aimed in two directions simultaneously: restoring closer ties between the ruled and the ruling and increasing the effectiveness of the latter in solving pressing social problems.[299] Although the term illiberal democracy does not function in practice in the political language of Polish politicians, the arguments used in the rhetoric of Law and Justice supporters for returning to a ‘simple democracy’ - based on representation of the nation in society[300] and the legitimacy of all actions of the parliamentary majority and the government through selected parliamentary elections - refer to the political project of illiberal democracy.In turn, illiberal constitutionalism is defined as ‘capturing the constitution and constitutionalism with legal means such as formal and informal constitutional change and packing and paralyzing the constitutional court’.[301] Illiberal constitutionalism thus conceived is supported by the misunderstood concept of political constitutionalism, relying heavily on the emotional components of national identity and is conceived as a particular phase in the process of democratic decay or the backsliding from liberal constitutionalism towards an authoritarian regime.[302] However, as some academics highlight, by adding the illiberal epithet to the words democracy and constitutionalism, the neologisms ‘illiberal democracy’ and ‘illiberal constitutionalism’ are in fact oxymorons, as liberalism is not merely a limit on the public power of the majority, but also a constitutive precondition for democracy, which provides for the rule of law, checks and balances, and guaranteed fundamental rights.[303]
The term constitutional revolution is currently used in many different ways.[304] One of the most basic ones is Hans Kelsen’s understanding of ‘constitutional revolution’ as a change to, or a replacement of, the (formal, written) constitution in a way that is incompatible with the constitutional amendment process.[305] However, this definition of constitutional revolution is not helpful while examining significant systemic changes that take place without interfering with the text of the constitution. In this case, it would seem to be more appropriate to refer to the notion of ‘constitutional moment’ as defined by Bruce Ackerman.[306] The ‘constitutional moment’ is a phenomenon whereby - under the conditions indicated by Ackerman - the constitution is modified in violation of the procedural requirements of constitutional amendment or outside the constitutional amendment procedure.[307] Therefore, the concept of ‘constitutional moment’ allows constitutional revolutions that enjoy strong public support to be legitimised.
Ackerman bases his views on the assumptions of the dualist theory of democracy (distinguishing between higher lawmaking and normal politic) and reinterpreted popular constitutionalism. The traditional approach to popular constitutionalism recognises judicial review (or at least a version of it involving judicial supremacy) as an anti-democratic element of the political system.[308] On the other hand, Bruce Ackerman accepts that the sovereign (the People) at certain historical moments of political mobilisation may also bring about a significant systemic change (a kind of constitutional revolution) precisely through interpretation of the constitution in the process of constitutional review.[309] The jurisprudence of the US Supreme Court thus becomes an expression of popular lawmaking. The consequence of such a take on the role of the Supreme Court is a modified understanding of the basic ideas of the philosophy of law and political philosophy, such as representation or democracy. The concept of the people is separated from the relationship with a specific empirical community. It is worth adding that this process of conceptually transforming elite organs into representatives of the sovereign will go beyond the American context, as exemplified by the concepts of PierreRosanvallon and Dominique Rousseau.[310] In Bruce Ackerman’s theory, for the people to take over the constitutive power thereby enabling constitutional amendment, four phases must occur: signalling, proposal, general deliberation and codification. Ackerman presents these stages against the background of a model view, where the political movement has received sufficient support to guarantee its participation in the process of higher legislation.[311]
Bruce Ackerman’s theory of constitutional moment was originally formulated in relation to the US political system and takes into account its specificity.[312] Nevertheless, numerous academic attempts to apply Ackerman’s theory to systemic changes occurring in other countries[313] may justify asking whether Poland is now facing a constitutional moment, and if the activity of the Constitutional Tribunal after 2015 can be conceptualised as a manifestation of popular lawmaking.
It should be noted, however, that Bruce Ackerman’s theory of constitutional moment fits within the paradigm of liberal revolution.[314] Although revolution means the reorganisation of collective life according to new principles, according to Ackerman, in modern liberal democracies it is impossible to amend all these principles and that a revolution may be described as ‘total’. That is why liberal revolutionists insist on limiting the scope of the transformations as much as possible. Thus, a revolution in the liberal approach means that, despite significant systemic changes, it does not break with a certain continuity.[315]In the case of the systemic changes taking place in Poland since 2015, there is no doubt that there will be some systemic continuity, yet their nature and the accompanying political rhetoric prove that they are illiberal in nature and are described by most constitutionalists as a symptom of the crisis of the rule of law as well as democratic backsliding. So, one must consider whether, despite their illiberal nature, they fit within the model formulated by Bruce Ackerman. If not, then it is possible to conceptualise them as an (illiberal) counter-constitutional revolution, i.e. a revolution which, despite maintaining nominal systemic continuity, due to its illiberal nature, constitutes a breach of the essence of the current (liberal) constitution. Such a hypothesis requires consideration of the role of the Constitutional Tribunal in the ongoing process of change. Can the activity of the Constitutional Tribunal after 2015 be described as an element of the counter-constitutional revolution?
The question posed in the title (illiberal turn or counter-constitutional revolution) does not present a completely mutually exclusive alternative. Recognising the activity of the Constitutional Tribunal after 2015 as an illiberal turn (referring to the notions of illiberal democracy and illiberal constitutionalism) does not preclude its simultaneous classification as an element of the counter-constitutional revolution in the sense given above. However, such a conceptualisation means that the activities of the Constitutional Tribunal, as well as other systemic changes taking place in Poland since 2015, do not fit within the model of Bruce Ackerman’s constitutional moment and the constitutional revolution (carried out within the liberal paradigm).
The answer to the title question requires an analysis of the activities of the Constitutional Tribunal in a broader historical context.
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