On the Looming Split in the Polish Constitutional Order: Harris v Dönges in Central Europe?

As has been widely reported (see, e.g., here), the Polish Constitutional Tribunal is now headed and effectively controlled by the judges appointed in a controversial manner by the Law and Justice (Prawo i Sprawiedliwość, PiS) party. This means that PiS is in a position to view the Tribunal as captive. Accordingly, all state organs controlled by PiS are likely to respect and follow the Tribunal’s new decisions, which was not necessarily the case before (see, e.g. here and here). However, not all public bodies are controlled by PiS. The judiciary and many local governments have a good deal of independence. It looks like we will see exactly how much independence they have in practice, because some of their representatives vowed to ignore judgments of the ‘new’ Constitutional Tribunal.[1] Will this mean a split in the Polish legal system? In this short note, I argue that even though it may mean a ‘partial’ split, it will still be the case that in an important sense there is one Polish legal system.

For a constitutional theorist, the current situation in Poland provides fascinating material. Conflicts of this kind are nothing new in legal history. Theorists and constitutional scholars, like HLA Hart or Hans Kelsen, have been writing on similar cases for a long time. I will not attempt to present here the whole debate on revolutions and continuity of legal systems with all its intricacies (for that, I recommend works by Peter Oliver and Benjamin Spagnolo). Here, I shall limit myself to presenting the analogy between the situation in Poland with the famous South African case of Harris v (Dönges) Minister of the Interior [1952] 1 TLR 1245. I will also sketch a theoretical argument for the proposition that no split in a legal system happened in either of the two situations.

Harris v Dönges

In 1952, the Parliament of the Union of South Africa enacted a statute restricting franchise of ‘non-European’ voters (the Separate Representation of Voters Act 1951). However, according to s. 35 of the South Africa Act 1909 such a legal change required a special legislative procedure, including an affirmative vote of ‘not less than two-thirds of the total number of members of both Houses’ [of Parliament] at a joint sitting. The 1951 Act was adopted by ordinary majority. Just like in Poland today, the ruling party did not have the kind of majority in Parliament required by law to make constitutional changes. In 1952, the Appellate Division of the Supreme Court of the Union of South Africa unanimously decided in Harris v Dönges that the 1951 Act was invalid.

The South African government reacted to the judgment in a similar way that the Polish PiS government reacted to some of the previous judgments of the Polish Constitutional Tribunal – by refusing to abide by it. In the current Polish situation, the ‘mantle of disobedience’ is likely to be taken up by those independent of PiS – the judiciary and local governments. An important difference is that disobedience towards the Polish Constitutional Tribunal, both by PiS before and by non-PiS parties now, has been premised on an argument that the Tribunal is wrongly constituted, that either it violates the rules of procedure in a manifest way or that the judgments are given by people who are not judges. On the other hand, the South African government’s disobedience was based merely on its conviction that the content of the Appellate Court’s judgment was manifestly wrong.

To remedy the situation, the South African Parliament enacted the High Court of Parliament Act, vesting itself with the powers to hear and decide appeals from decisions of the Supreme Court. It will not come as a surprise that the High Court of Parliament quickly reversed the Appellate Court in Harris v Dönges. In turn, the Appellate Court, in Minister of the Interior v Harris [1952] (4) SA, 769 (AD) invalidated the High Court of Parliament Act. Finally, the government budged and accepted both judgments. However, after the elections, they found a way to achieve the same goal that was acceptable to the courts (by packing the Senate).

Splits in Legal Systems

In both cases, of 1952-1953 South Africa and of Poland since 2015, there was (and is) a risk that legal officials will split in two camps regarding a constitutionally important legal question. Of course, from the perspective of each side, the law is not affected by that disagreement – the other side is simply wrong. However, the problem is that a certain degree of acceptance is a necessary condition of existence of a legal system. This condition does not pertain to individual legal norms, unless the legal system in question contains a norm of derogation by disuse (desuetude).

In respect to both cases, the following argument is tempting: if there is a conflict regarding the ultimate criteria of validity of a legal system (i.e. over the content of what HLA Hart called ‘the ultimate rule of recognition’[2]), then such conflict means a split in the legal system. If future decisions of the Polish Constitutional Tribunal, e.g. striking down statutes for unconstitutionality, will be held by other Polish judges and non-PiS officials as unlawful or even non-existent, will that mean that there are two incompatible legal systems in Poland?

First, it is not obvious that we are dealing with a conflict over the ultimate criteria of validity. It could be that both sides agree on the content of the criteria of validity, they just disagree on their application. Thus, perhaps there has never been disagreement between the various parties in Poland regarding that the criterion that norms held unconstitutional and void by the Constitutional Tribunal are no longer binding norms of the Polish legal system. Both sides would likely accept decisions of a properly constituted and acting in accordance with the rules of procedure Constitutional Tribunal. On this view, they disagree on questions of fact and on questions of constitutional and statutory interpretation – but not on issues of ultimate criteria of validity.

In response, one could suggest that it is part of the Tribunal-related criterion of validity of legal norms that the Tribunal is the only arbiter of its own procedure and of the question whether it is properly constituted. Setting aside whether this view is correct (which is debatable), my rejoinder (following Hart) would be that a certain degree of indeterminacy of the criteria of validity is unavoidable. But it does not follow from this that existence of common criteria of validity is impossible (e.g., between the current judges of the Constitutional Tribunal and other judges).

Secondly, even if this is a conflict regarding the criteria of validity, it is much less significant for the functioning of the whole legal system than it may seem. This was true also for the South African crisis. Just like in the South African case, it is likely that contracts will be entered into, wills executed, criminal suspects put on trial and convicted and so on. It is easy for constitutional scholars to overstate the importance of constitutional ‘crisis’ for day-to-day life of the law.

Thirdly, even if this is a real conflict regarding the criteria of validity and if it grows to affect the law in a significant manner (e.g. if other judges refuse to follow decisions on unconstitutionality of some private law statutes, while the government obeys), it will still not entail that we will end up with two legal systems. In this I go beyond Hart, following his students Joseph Raz and John Finnis.[3] Continuity (the Polish legal system today is continuous with the Polish legal system yesterday) and unity (Polish legal norms belong to the Polish legal system) of a legal system are not a function of the common criteria of validity shared by legal officials. Both continuity and unity of legal systems are a function of continuity and unity of the community (e.g. the community of the citizens of Poland) the legal system to which this legal system belongs. Even the most radical, and seemingly ‘revolutionary’, changes in a legal system are compatible with continuity of the legal system if continuity of the community is preserved. This works in reverse, too: even without major changes in the content of individual legal rules it can happen that legal systems split (e.g. arguably, independence of the Australian legal system obtained without violating any rules of the British Imperial legal system).

Therefore, as long as the judges of the Constitutional Tribunal, PiS officials and other judges and non-PiS officials (as well as their partisans in the broader society), all accept that they are in a disagreement over law of the same community, there is no possibility of a split of the legal system in the sense used by general jurisprudence. However, there is a possibility, or even risk, that there will be no uniquely correct legal answer regarding the criteria of validity of legal norms in Poland and that there will exist incompatible legal norms (a ‘partial’ split within what is still one legal system). Perhaps this has not yet come to pass. It is not my goal to argue that this is a trivial conflict or that it is a good thing. I merely wanted to show that a legal system, through its organic connection to the life of the community, is much more resilient to crises and revolutions than it might seem without deeper reflection.

Suggested Citation: Mikołaj Barczentewicz, On the Looming Split in the Polish Constitutional Order: Harris v Dönges in Central Europe?, Int’l J. Const. L. Blog, Feb. 18, 2017, at: http://www.iconnectblog.com/2017/02/Polish-looming-split.

This text is partially based on a text published, in Polish, on the author’s private blog in March 2016.

[1] See, e.g., Dziennik Gazeta Prawna, ‘Sądy nie podporządkują się trybunałowi PiS. Sędziowie będą ignorować wyroki TK?’ (22 December 2016); Dziennik Gazeta Prawna, ‘Zmiana kierownictwa Trybunału? Samorządy już nie będą słuchać TK’ (8 Ferbuary 2017).

[2] H.L.A. Hart, The Concept of Law (OUP, first edition 1961), chapter 6.

[3] Joseph Raz, The Concept of a Legal System (OUP 1980) 209–211; Joseph Raz, The Authority of Law (2nd edn, OUP 2009) 100; John Finnis, ‘Revolutions and Continuity of Law’, Philosophy of Law: Collected Essays Volume IV (OUP 2011) 428–29.