Our unwritten constitution
A fundamental problem in any democracy is how to prevent the tyranny of the majority—when a political force gains enough public support and power to enable it to trample on the fundamental rights of its opponents (and ultimately its own supporters).
In most democracies, protection against the tyranny of the majority is supposed to be provided by the constitution, a set of basic rights and institutions of the highest rank and last resort, which cannot be adopted or amended by a simple majority.
But any constitution can be amended with public support large enough to translate into a large enough majority in the legislative body. And more basically, as has clearly been shown in recent years, any constitution can be ignored, circumvented or violated, as long as a sufficiently large portion of the population remains indifferent. More precisely, if a large enough portion of the population is uninterested in the problem, or is even aware of the threat but sufficiently discouraged, irritated and disillusioned with the “system” not to stand up for it, or even to cheer with grim satisfaction for those who bring it down.
In addition to the constitution, there is international and European law, which also enshrines basic human rights and civil liberties. But the real impact of international treaties on the situation within states is limited.
So what is the solution?
Can the law ensure the rule of law?
It is necessary to face the facts and accept that in the final analysis, not even the most enlightened laws, treaties and conventions, nor the highest courts, will protect us from populism, authoritarianism and lawlessness. In a democracy, the only guarantee of basic rights and freedoms can be that the citizens, as a community including people with diametrically opposed views, are genuinely attached to these basic rights and consider them a common good.
In contrast, trying to ensure the rule of law, let alone restore it, with the law itself, is like pulling yourself up by your own bootstraps. Of course the rule of law must be protected by appropriate legal and institutional guarantees, but ultimately it cannot be ensured by laws, lawsuits, complaints and indictments alone. If society as a political community does not care about respecting the law and the judgments of the institutions applying it, such legalistic endeavours will come to naught, and may even prove counterproductive. Ultimately, only properly functioning social and political processes can guarantee us the rule of law. And excessive legalisation of public life may even interfere with the proper operation of these mechanisms. A good example is how attempts in the United States to prosecute and convict Donald Trump for violating the US Constitution seem to be having the opposite effect.
So why do we need a written constitution at all? Does it give us a false sense of security, and once having enshrined in it basic rights and the requirement of a high, almost unattainable parliamentary majority for amending the constitution, do we drop our vigilance and forget to care about the real guarantee of respect for these rights?
In the United Kingdom, the country most often cited as an example of a state without a written constitution, there is actually only one constitutional legal principle, and it is not derived from any Basic Law, but from centuries-old custom: the principle of parliamentary sovereignty. (This is a bit of a simplification, but sound enough for purposes of this discussion.) Legally speaking, in the UK the parliamentary majority is all-powerful. But this does not mean at all that there are no restraints on the power of the parliamentary majority in the UK. The difference is that these restraints are not legal in nature, but take the form of customs and conventions, the violation of which really risks only one sanction: social disapproval and the associated political consequences. Hence it is said that unlike other countries where constitutions are legal acts, in the UK the constitution is a socio-political concept. The effect is that the British have no illusions that their rights and freedoms are protected by legal incantations. Instead, they are aware, or should be aware, that to truly preserve their rights and freedoms they must nurture mutual interactions, a sense of community, and a political culture in their country.
In Poland, did we lack this vigilance, secure in the thought of our otherwise excellent written Constitution? Is it a coincidence that the last few years have been not so much a string of violations of the Constitution by the authorities (although they were that, too), as proof that we only thought we had a real Constitution in Poland? When in reality the Basic Law, which was supposed to reinforce a certain socio-political construct, has become merely a legal skeleton stripped of that substance?
It is not my purpose to suggest that we abandon the written Constitution. At most, in the short term, a written constitution can be gotten rid of, but it cannot be replaced by an unwritten constitution in the proper sense of the word. At the same time, such an unwritten constitution is an extremely fragile construct, difficult to preserve, and in recent times exposed to unprecedented threats resulting from the development of new technologies and their impact on social and political life.
But it is necessary to think about rebuilding the core, which is the Basic Law, a tissue which the Constitution is in this socio-political sense. Also, we should realise how a written constitution and other acts of similar stature (such as international conventions and treaties) can interfere with this tissue if not used properly.
Dangers of codification
First, the text of a written legal act of constitutional stature requires interpretation, and is therefore susceptible to abuse of interpretation. In a system based on an unwritten constitution, there is no such problem. In it, the constitutional principles are created and established in a “distributed” process that is not controlled by any one body. In contrast, in countries based on written constitutions, this problem is occurring with increasing intensity. The persons who are part of the bodies that decide how the basic law should be interpreted may be tempted to read into it additional values and concepts that are dear to them, but not necessarily universally accepted. This means that views opposed to the concepts thus added to the constitution are effectively “outlawed” and pushed outside the realm of what is acceptable in public debate. And when those views are cherished by an important part of society, excluding them from the debate makes it impossible to peacefully manage and resolve the resulting conflicts. It expels the members of the social group holding those views from the margins of public life, destroys the sense of community, and delegitimises the system in the eyes of that group. This erodes the constitution in the socio-political sense discussed here. (Lord Jonathan Sumption, a former justice of the Supreme Court of the United Kingdom and now an unabashedly controversial commentator on public life, made an excellent point on this issue in the Reith Lectures of 2019.)
Second, a peculiarity of a written constitution is that when it is violated, restoring compliance with the constitution may be hampered by the strict and rigid requirements of the constitution itself. But unlike legal norms, social norms, on which an unwritten constitution is based, are by nature flexible. Their biggest drawback, a lack of precision and a certain elusiveness, is also their biggest advantage. Within these norms, this makes it much easier to take into account the peculiarities and nuances of specific situations. We can easily imagine behaviour that undoubtedly violates social norms but which we nevertheless (sometimes without knowing how to explain it) consider justifiable when done under certain circumstances. Therein lies the flexibility of social norms, arising from their underdetermination. Conversely, legal norms are more precise and specific, and therefore inherently inflexible. From a legal point of view, in a crisis this can lead to a situation with no way out. This is precisely the situation Poland finds itself in today, without a purely legal way out.
Ban of abuse of law: Our unwritten constitution
But precisely because of its own inflexibility and its susceptibility to loop back on itself, the law saves itself by incorporating social norms. It does this through general clauses. The most important of these is the ban on abuse of the law. The abuse clause prohibits applying the law in a manner contrary to its purpose or principles of social coexistence. It prohibits circumventing the law and applying it instrumentally and unjustly. A key element of this ban is the “clean-hands” doctrine. In essence, it prohibits misuse of an abuse allegation, contrary to its purpose. Thus an allegation of abuse of law cannot be employed to defend or perpetuate the effects of one’s own prior illegal or abusive actions.
This is essentially what the constitutional dispute in Poland is about today. The two main camps accuse each other of abusing rights and justify their own constitutionally questionable actions by pointing to the opponent’s previous excesses. As a result of the actions of both parties, there is no credible constitutional arbiter to determine which of them is right, in a manner that inspires public confidence. Thus the only judge left in this dispute is the public. And the judgment will be entered based on the public’s understanding of the fundamental principles of fairness and justice, according to which public life should be conducted. This is nothing more or less than the unwritten constitution.
Thus in Poland we will soon find out whether we have a constitution in the socio-political sense, in addition to the Basic Law which has ceased to serve its function, and if so, what condition that constitution is in and whether we can rely on it. Will public pressure and our common need for certain basic principles to be respected in public life lead to forging a balance of forces in the political arena enabling repair of the state system? Whether we can protect our rights and freedoms, or will plunge into a spiral of populism and lawlessness, truly depends on this.
Stanisław Drozd, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
