The Polish North and South
During the American Civil War, the leaders of the Confederacy rejected the US Constitution and the legitimate authority of the United States, and for four years exercised their own dominion over the South. When the rebellion was finally put down, US courts had to recognise that under the US Constitution and the Union’s understanding of it, the rebellion was illegal and the rebel leaders had no legal basis for participating in it. Using the terminology fashionable in Poland today, we could call these persons “neo-officials.”
But before the Civil War was decided on the battlefield, the laws established by rebel leaders shaped social and commercial dealings throughout the Confederate States. Despite the trauma resulting from this fratricidal war, American judges—including fathers, brothers and sons of those who lost their lives in the rebellion—were prepared to accept this reality and recognise that under certain conditions, this was required for the sake of commercial certainty, the welfare of citizens, and the smooth and concerted Reconstruction of the South.
For this purpose, the state and federal courts (with the US Supreme Court at the forefront) resorted to an ancient common-law theory of practical legitimacy, known as the “de facto doctrine.” It originated in medieval England, and was fleshed out further in the turbulent era of the Wars of the Roses, when the York and Lancaster families fought for the English throne. After the victory of the House of York, the English Parliament adopted a statute to indemnify those who had submitted to the supposed Lancaster kings. The justification was the need to secure the peace, and that prosecuting and holding accountable disloyal nobles and commoners who relied on the right of the de facto kings of the House of Lancaster, even if morally desirable, could cause “great public mischief” and incomparably greater harm to the public interest (S. Scheidt, “‘A Cloud of Constitutional Illegitimacy’: Prospectivity and the De Facto Doctrine in the Gerrymandering Context,” Duke Law Journal, 69:959 (2020)).
Lawlessness as a source of law
Over time, the de facto doctrine took modern shape in the case law of the English courts, and began to serve mainly to protect the legal certainty of those who relied on the decisions of supposed holders of various offices, whose actions created a sufficient appearance of legality, or “colour of law.” However, the de facto doctrine also served, and continues to serve, to resolve systemic problems, such as disputes over the effects of illegally elected authorities, parliamentary assemblies and governments. In essence, it states that in certain situations, due to the need to protect reliance interests, lawlessness can become a source of law.
The de facto doctrine is subject to a number of complicated exceptions that are difficult to explain without descending into theoretical meanderings. But to put it simply, the doctrine serves to perpetuate the effects of legal acts and determinations which, although unconstitutional, nevertheless were made under colour of law and aimed at maintaining order and commerce, justifying compliance by those concerned, even if they were aware of the more or less certain legal defectiveness of such acts and determinations. The doctrine effectively cures or ratifies purportedly sovereign actions that, although unlawful, did not constitute acts of pure usurpation, and thus were not undertaken solely for corrupt or subversive purposes.
The problem of “neo-judges”
It is worth looking at this doctrine from the Polish perspective, in light of the challenge of rebuilding the legitimacy of power since the October 2023 elections—in particular repairing the justice system and addressing the issue of “neo-judges.”
The reasoning behind the common-law de facto doctrine has already begun to prevail in deliberations in Poland on the validity of judgments entered by judges nominated by the National Council of the Judiciary (KRS) in the composition established by unconstitutional measures adopted by the previous parliamentary majority (in power 2015–2023). In the public debate, there were initially arguments that hundreds of thousands of judgments issued by such judges were automatically void, but now the tone is set by assurances from members of the new government that, in the interest of the citizens and legal certainty, such wholesale sweeping away of existing acts and rulings cannot be countenanced.
But the problem of the legal status of thousands of “neo-judges” still exists. Some commentators claim that all these judges should be subjected to vetting or disciplinary proceedings, because by choosing to accept appointments from the “neo-KRS” they acted opportunistically, contrary to the judicial ethos, while often denying an opportunity to compete for judicial appointments to colleagues who acted on principle and did not apply for a position under an unconstitutional authority. In terms of the de facto doctrine, the proponents of this view hold that there is no way to justify that judges based their actions and professional decisions on the unlawful conduct of the previous government, on unconstitutional acts adopted by the previous parliamentary majority, and on acts taken by the President of Poland in contravention of his oath of office. Thus, under this view, the appointments of such judges cannot be cured after the fact. They should be stripped of their appointments or promotions they received from the authorities in violation of the Polish Constitution, EU law and international law, and contrary to the principle of the rule of law.
But, firstly, the view that the Constitutional Tribunal ultimately decides what is consistent with the highest law in force in Poland is not at all unreasonable. Nor is the view that defects and abuses (even obvious ones) in the membership of the Constitutional Tribunal do not preclude submission to the tribunal’s de facto authority, including with regard to rulings on the manner of nominating judges. At the least, these views do not exclude submission to the tribunal’s authority to the extent necessary to preserve public order and ensure legal certainty for citizens until the state system can finally be repaired when the necessary political consensus is reached.
Second, judges who did accept appointments from authorities recognised as violating the standards of the rule of law could have been motivated by a range of different considerations.
In this context, it is worth mentioning another example from the common-law world, namely Hong Kong.
The citizens’ interest
Due to Hong Kong’s historical ties with the United Kingdom and the common-law sphere in general, the legal system of this autonomous region of the People’s Republic of China is organised in such a way that retired and even active judges from countries such as the UK, Australia, Canada or New Zealand can sit as non-permanent judges on the region’s Court of Final Appeal. When in 2020 the Chinese authorities began restricting Hong Kong’s autonomy and introducing anti-democratic legislation, voices were raised that foreign judges should resign from the Court of Final Appeal, and new candidates should not accept appointments to the court, to disassociate themselves and not legitimise these authoritarian actions. This will sound familiar to observers in Poland.
But a significant number of the judges affected by these calls decided not to comply with them. They explained that they would then be abandoning the mission they were obligated to carry out of upholding the rights of Hong Kong citizens. They argued that resigning or refusing to accept appointment would be a popular and relatively easy act of protest on their part, but the ultimate stakeholders—Hongkongers appearing before the local courts—would lose rather than gain. And the citizens’ interest should take priority.
Who should be held accountable?
Obviously, not everyone who accepts a judicial appointment in a dilemma such as that facing foreign judges and judicial candidates in Hong Kong, or candidates for appointment or advancement in the Polish judiciary in recent years, does so to express zealous support for an oppressive government. Any profession of public trust carries certain prestige and other benefits that play a role in selection of that career path and are more or less consciously taken into account by candidates.
But wouldn’t it be reasonable to assume that at least a significant number of the thousands of Polish judges who accepted appointments or promotions in recent years simply wanted to honestly pursue a socially necessary calling? That in assuming the functions entrusted to them, they were more or less guided by the need to ensure the operation of the legal apparatus that is supposed to protect citizens also in times of crisis and political turmoil? Because the authority appointing them to these positions actually performed this function, even if established unconstitutionally? And if we are not prepared to accept such a rebuttable presumption—even towards judges who have properly entered the profession—then doesn’t this point to a deeper problem affecting the standing of judges in Poland and, in general, the model of the judiciary adopted in the country? If this broader problem exists, it affects not only “neo-judges.”
Appropriate consequences should always be drawn against those who share responsibility for bringing about a state of systemic lawlessness. However, it is necessary to distinguish between those who are wilfully complicit in establishing that state of lawlessness purely for their own benefit, and those who seek to find a role for themselves in that system primarily with the intention of performing a socially useful function—even if they do benefit in some measure from that system.
Holding judges accountable for going along with this unconstitutional situation might be morally desirable in some cases. But it should also be considered whether attempts to hold accountable judges who have accepted appointment or advancement in that system more or less in good faith—stripping them of promotions and benefits they have obtained—would undermine the solemnity and independence of the judiciary to the point of causing incomparably greater harm.
The focus could be instead on drawing legal, and above all political, consequences against the main usurpers—the politicians who deliberately, in pursuit of their own gain, brought about a state of lawlessness persisting for years, and those who, for their own benefit, perpetuate or exacerbate this lawlessness, instead of actually rebuilding the rule of law.
Stanisław Drozd, adwokat, Dispute Resolution & Arbitration practice, Wardyński & Partners
