Tomasz Tadeusz Koncewicz

The paper asks when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level such critical juncture obtains when polity’s founding document (treaty, convention, constitution) protects against the dangers that no longer exist or does not protect against the dangers that were not contemplated by the Founders. The paper asks the question whether whether the capture of state institutions in Poland (and Hungary before it) is an outlying case, or if it portends the future of Europe more generally. Whatever the case, Poland matters, and more than for just the Poles. The case illuminates salient features and fissures in the bases for democratic government, the rule of law, and constitutionalism when confronted with the sweeping politics of resentment. Courts play a pivotal role in the process because of their supervisory functions and the embedded lowprofile and arcane language of the law. There is always a bona fide assumption that law will speak louder than any transient urges of the powers that be and that in the end the law will enforce its primacy. That assumption might be correct in the best of times when everything goes according to plan. When it does not, courts look fragile and vulnerable, as the only protective tool they wield – ‘the law’ – is taken away from them by the sheer power of political sleight of hand. The question then arises as to whether political exigencies could bring about self-re-imagination on the part of the courts so as to make them protectors of constitutional essentials in such emergency situations. In other words, could capture of the state and institutions be countered by judicial recapture? The Polish example is instructive here and shows how existing mechanisms open important legal avenues to strike back at capture. Yet embarking on any such recapture must be linked not only to the normative and technical (here the question would be: “Does the system contain enough to build a good legal case for exercising such powers?”), but also to the mental (here we would ask the uneasy question “Are judges willing and ready to use these mechanisms to protect democracy?”). The paper will argue that even a symbolic act of resistance in pursuit of a judicial promise is crucial. It builds institutional memory and a legacy that goes beyond disappointment and failure ‘here and now.’ For the system to regain its liberal credentials, the courts and the public must have something tangible to fall back on. Such act of resistance serves as an example of ‘symbolic jurisprudence’ because it reminds us that survival of the system must be anchored in a long-term fidelity, which goes beyond and transcends the events of here and now.