Is Judicial Independence Possible in a State which Is Not a Rule-of-Law State?

Abstract: Is Judicial Independence Possible in a State which Is Not a Rule-of-Law State?

In Poland, from the start of the democratic transformation in 1989, the rule of law became a fundamental, leading principle of the Polish constitutionalism. The last decades have been a period of constitutional evolution of the judiciary in Poland. Courts, which were to administer justice in line with Montesquieu’s formula of court as the mouthpiece of the law, became the basic guarantors of human rights. The Polish constitutional crisis, which began in 2015, is part of the phenomenon of constitutional abusivism, that is, undermining the fundamental values of constitutional democracy. The Polish legal order displays the features of what E. Fraenkel called a dual state. The characteristic feature of the Polish constitutional crisis is that the constitutional disputes about judicial independence are transferred to the supranational level. The dualism of law presents particular challenges for the judiciary. A question arises whether it will be possible to apply constitutional rules after independent institutions in charge of their observance cease to function.