1. Poland. The Age of Disruption
For over three decades, the position of the Constitutional Tribunal seemed to be solidly grounded in the Polish institutional landscape and the pluralistic public discourse. The presence of the Tribunal at the heart of the delicate composition of the structural separation of powers seemed unassailable. However, with the recent demolition of the Tribunal which started with the insidious in intentions and systematic in execution, questioning of its competences and the attacks on its very integrity as a key institution of a democratic state, we are faced with an end of an era.
As a society, we are experiencing a certain feeling of vertigo, where an illusion of solidity of something that we have taken for granted is being brutally broken by the realities of politics in its most archaic form of unbridled struggle for naked power. It concerns all spheres of public activity, and includes various means – often the gems of political ingenuity in themselves –employed toward disempowering of the successive elements of the chains of democratic control. The Polish Constitutional Tribunal has been an important part of this system.
The once thought of as a solid construction, built on strong foundations, the Constitutional Tribunal is laid bare before us a fragile structure that can be destroyed in a matter of months by an actor(s) determined enough to do such an unimaginable deed.
As Machiavelli would have it, these are the “real facts” – affected by the current dispensation based on the supremacy of the majoritarian rule and propelled by the “souverenist” impulse of aiming at undivided power as the ultimate model of governance. There is little point in getting into the discussion with the factuality of the moment.
But, in a good Machavellian spirit, we should approach the situation unfolding before our eyes, with a cool analytic eye.
Why what happened was allowed to happen? Why something that seemed so grounded and solid, melted into air so quickly? And how to rebuilt what was lost?
Transcending, for the purpose of this analysis, the internal Polish determinants and bracketing the political will of power of the clearly defined actors (like the parliamentary majority or the governing party), we have to ascertain that, looking from a global perspective, the situation with the Tribunal is one of the signs of the new epoch.
We live in an age of disruption. All over the world, stability in itself is rapidly losing its value as the attribute necessary for the efficient functioning of institutions. Instead of being legitimized by a linear series of out-puts, they have to exercise imagination and ingenuity in building transversal competences in creating and applying knowledge in fast-changing contextual environment.
In other words, institutions, existing in the realm of temporality, discover themselves, their capacities, and their limits on a constant basis. In order to fulfill their mission, they have to be imaginative enough to remove, from their mainframe thinking, all the preconceptions about their own existence and the nature of the world around them. They have to quickly adapt to to the new environment, in which their longevity and viability will be less defined by stable perimeters (discoursive or institutional) and more by the push-pull dynamics of discourse, reflection, action, and contraction in the field of diverse forces.
Until now, democratic institutions have legitimized themselves by either the concrete results (in the case of representative institutions such as parties and parliaments) or by popular acceptance of their role as a norm creator/carrier (and that was the case of the Constitutional Tribunal in Poland). The conviction was that the norm-based legitimacy was more solid than the fleeting political legitimacy. Once gained, it was essentially never to be lost.
What recent events in Poland (but with wider applicability, I think) teach us, is that this kind of static legitimacy is not enough in an age of disruption, when all the certainties are gone.
With the encroachment of the politics on all spheres of life, especially in its populist garb, the lines of institutional responsibilities will tend to get more blurred, and thus the classic separation of powers will become more porous, for good or for bad. Norm-creation will be a more inclusive process, involving social input, peer pressure, persuasion techniques, consciousness raising, groupthink, etc. They will be representations of a social dimension of a “personal knowledge”1.
We actually have already had an experience with this type “behavioral” and “crowdsourcing” approach to norm-creation in the case of the Ordo Iuris project concerning the change of law on abortion. This is a quite new territory that we are entering here. And in this situation it will be necessary to think about the separation of powers in a more creative fashion.
Sociology of knowledge teaches us that we are in an advanced stage of transition from thelogic of procession to the logic of network.
According to Bruno Latour, “The logic of procession does not progress, except in intensity; it is afraid of innovation even though it continually keeps on inventing; it endeavors not to repeat tediousness, even though it continually keeps on repeating the same rituals. (…) It layers intermediaries, it does not capitalize on them”2. On the other hand, the logic of network, having its conceptual sources in both Bruno Latour and Thomas Kuhn3, redefines the procedure of attaining knowledge and introducing new protocols. Multiplicity of of layers of mediators is being replaced by the capitalization of mediations and gaining knowlege meant new information and not a different repetition of the same message. The message as such is to be treated as a piece of information in contrast to the previous mode of identification of message with the messenger.
The logic of network thus substantially changes and complicates the relations within the space of the separation of powers. It also significantly alters the mechanics inside.