Hyperbole now surrounds Poland’s so-called constitutional crisis. “Poland’s democracy is crumbling,” declares Politico, which fulfills its own prophecy by demanding that Poland be supplied with “international help”—reminiscent of the “fraternal assistance” invoked by the Soviet Union in its 1968 invasion of Czechoslovakia. Accordingly, the unelected European Commission now invokes the “rule of law” and, in the name of democracy, proposes undemocratic measures against Poland.
“Rule of law” became a buzzword in East-Central Europe during the 1990s, when legal missionaries from the American Bar Association and similar organizations created projects to reform the post-Communist judiciaries. Undoubtedly, they achieved much good. But in retrospect they did not so much de-politicize judicial institutions as attempted to substitute their own, softer ideological agenda. From a Polish perspective, this might appear as a gentler version of the familiar scenario whereby one outside power “liberates” it from another.
Yet deeper problems are involved here. A judicial crisis is growing throughout the democracies, and Poland is simply the first to take action. Some measures do raise concerns, but the larger crisis is what needs discussion.
Judicial “activism” originated in the United States, but it is no longer confined there or to other Anglophone countries with judiciaries that are both (admirably) more independent and (less admirably) more powerful than elsewhere. Western democracies, including powerful international organizations like the European Union and the United Nations, have succumbed to what the late Kenneth Minogue called “legal salvationism”—the belief that political issues can be settled by judicial decree. In other words, public disagreements are to be decided by one of two methods that judiciaries understand: lawsuits and criminal accusations.
The result is not democracy but a new oligarchy. Poland is the first country to say no.
The growth of judicial authority marked an important stage in civilizational advance—the replacement of private justice, such as dynastic wars and duels, with public justice. Common Law countries led this change (as did Poland), with Magna Carta, the Petition of Right, and the English and American Bills of Rights. Judicial authority became especially integral to modern republics, when judges replaced kings and priests as the arbiters of power and voices of justice.
The problem comes when the arbiters of political power acquire power themselves, with their own interests to defend and augment. Then they become simply another competitor in the power game. Their actions may be just or unjust, moral or immoral, but they no longer command the authority and reverence of being above the competition for political power. This is now the status of judiciaries in the United States, Britain, and—as Poland demonstrates—elsewhere. It is the result of shifting from a liberalism and judiciary that limits government power to one that expands it.
Once this happens, no authority can rise above political competition, and it becomes impossible to sort out what is “constitutional”, let alone what is moral. It becomes purely a matter of agreement or disagreement. This is why the current hyperbole about Poland’s “threat to democracy” is hollow. One can agree or disagree with the current government, or with the judges, but neither has any unquestioned authority to speak for the “Constitution”.
The moral confusion is visible in the controversy surrounding President Andrzej Duda’s pardon of Mariusz Kaminski, who was criminally convicted for performing his official duties against corruption. A government “anti-corruption” agency is an invitation to trouble, since however “independent” (like the judiciary) it always involves foxes guarding the henhouse. It invites battles to control the machinery for accusing political opponents of “corruption” with the state imprimatur. Mutual accusations of ill-defined “corruption” are a well-known political weapon in underdeveloped governments, and mutual arrests among factions are familiar from Communism. (Read Le Carre’s, The Spy Who Came in from the Cold.) Kaminski may indeed have misused his power fighting corruption, because such power is an invitation to misuse, but the vague charges against him (“abuse of power”) also reek of politicization. So everyone accuses everyone of politicizing the law: Kaminski’s performance of his duties, the prosecution against him, the pardon by Duda—accusations invite accusations (self-justifying because each accusation is also political) of using the law for political ends.
The cutting edge of this trend is in the United States, and the vanguard issues now concern the family and sexuality, as Poles and others are also coming to understand. “Single-sex marriage, abortion, gender ideology—these are red lines for us,” an advisor to President Duda tells Politico. One can favor or oppose same-sex marriage, but when such a revolutionary innovation is imposed by the fiat of five judges (as the US Supreme Court did), they are no longer detached arbiters; they have becomes legislators implementing an ideological agenda. They are, like those pressuring them endlessly demand to be, “empowered”.
This unhealthy trend pervades democracies worldwide. We naturally demand that our governments possess some moral legitimacy that is above the sordid grab for power and rightly fear the Hobbesian chaos that underlies all political institutions. Having abolished the divine right of kings and cowed priests into passivity and silence from their role as gadflies of government, their sacral aura is now re-embodied in judges. Like kings and priests, judges wear gowns to be inviolable and, as Chesterton pointed out, “safely impressive”. We stand when they enter the courtroom and address them as “your honor”. In the US we make them priests of our secular Ten Commandments: the Bill of Rights.
The judiciary is still trading on this moral capital, but it is largely squandered. Ideologues in the media and academy who agree with the judges still afford them the authority of speaking for “the Constitution”, but everyone knows their reverence will evaporate if the rulings go against them. As for conservatives who claim to revere traditional institutions, they stand at the forefront of disbelief toward the holiness of judicial priests.
In the United States, this power has reached extreme dimensions, not only in politics but in ordinary people’s lives. “At all levels of American society…the idea that American courtrooms strive toward justice is no longer taken seriously,” observes the Wall Street Journal. “The courts are greatly feared for their ability to ruin, but they aren’t much respected anymore by the American people.” Americans who have any experience with the judiciary live in terror of it, knowing that courts are far less likely to dispense justice than injustice and that a summons to court means ruin if not incarceration. Walter Olson, author of The Litigation Explosion, writes that the aim of the judiciary,
has been not simply to encourage destructive wrangling but also to ensure that lawyers have more power to ruin your life in America than they do in any other advanced country…. Lawyers…are so widely disliked in this country because they are so very widely, and correctly, feared for the power without responsibility they wield.
In the United States, legally unimpeachable citizens—neither convicted nor charged with any legal wrongdoing, either civil or criminal—are routinely summoned to courts where possession of all their goods, including their homes and even their children, is summarily seized by courts that can punish resistance with indefinite incarceration without trial.
It is no accident that the pretext allowing this is also furnished by sexual radicals. I am describing the secretive family courts, dominated by feminists and adjudicating the “no-fault” divorce laws devised by feminist lawyers. Following from this, today’s most aggressive judicial decrees involve sexual innovations:
- court decisions that overturn democratic referenda, force citizens to accept same-sex marriage, loot those who refuse with lawsuits, and even incarcerate them;
- sweeping contraceptive and abortion decisions like Roe v. Wade;
- pseudo-courts in universities composed of faculty members and students that pretend to adjudicate serious criminal accusations like rape, that everyone knows are false;
- politicized military courts that resemble revolutionary tribunals and likewise pretend to adjudicate criminal accusations;
- lawsuits that plunder those who try to help people overcome same-sex attraction.
It is significant that the first country to dissent from the agenda of sexual radicalism is also resisting judicial aggrandizement. Judges and lawyers are the professional surrogate citizens whom we pay to perform our duties of citizenship. It is hardly surprising that they assume control over it. This is the real “threat to democracy”.
Stephen Baskerville is Professor of Government at Patrick Henry College and visiting scholar at the Jagiellonian University.
Photo Credit: Via the Chancellery of Senate of the Republic of Poland on Wikimedia Commons: Poland’s President Andrzej Duda during a meeting with the Council of Seniors of the Sejm and the Council of Seniors of the Senate at the Sejm on August 6, 2015.