10 Jun 2024


Democracy Can Be Dismantled More Quickly than It Can Be Restored

Following the elections in Poland in October 2023, the electorate rejected the Law and Justice party (PiS) after eight years in power, signalling a will to halt the erosion of its constitutional democracy. However, in a recent  ‘View Point‘ published in the MaxPlanckResearch science magazine, Professor Dr Armin von Bogdandy  (Director) and  Dr Dimitri Spieker  (Senior Research Fellow) argue that restoring constitutional democracy and the rule of law is far from simple.

For example, one cannot simply remove the judges appointed for their political loyalty, as this would itself conflict with the rule of law. How? These judges would have made thousands of rulings, and to remove them would compromise the principle of legal certainty. The authors succinctly sum up the situation: ‘democracies can be dismantled more quickly than they can be restored’.

Despite this and other challenges, the authors propose a number of things to consider and bear in mind if Poland is to successfully undertake what they see as a new type of transition—’Transition 2.0′ (as compared to ‘Transition 1.0’, which involved the transition of Eastern European states following the fall of Communist rule). European law, particularly Article 2 of the Treaty on European Union, plays a dual role here in both supporting and constraining Transition 2.0.

A further essential component of transition 2.0 is ‘a highly prudent application of the relevant legal bases, standards, and procedures’.  They continue, ‘To ensure smooth operation, Poland’s new government should coordinate with the European Commission for Democracy through Law’.

Von Bogdandy and Spieker conclude by advising against repeating the technocratic errors of Transition 1.0, which neglected the promotion of democratic culture. They suggest that the Conference on the Future of Europe offers a promising format to mitigate technocracy through enhanced public participation:

This format allows the people to get involved in the restoration of an independent judiciary. Importantly, it could generate interesting ideas, counter accusations of technocratic decision-making with little democratic accountability, initiate a non-partisan dialogue, and put PiS in a difficult position: either the party boycotts the conference and, by doing so, demonstrates that it is not interested in improving the judiciary, or it participates, thereby endorsing the legitimacy of this process.

Read the full article here.

Illustration: Sophie Ketterer for MPG

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