5 October 2018
Agata Poznańska graduated in July 2018 with a first class LLB Law degree. In September she started studying for an LLM in International and European Union Law at the University of Amsterdam. Her dissertation was supervised by Dr Agata Fijalkowski.

The Rule of Law is one of the core tenets of each democratic system. John Locke famously said that “wherever law ends, tyranny begins” – hence  law being placed at the centre of governance, as a primary source of States' harmony. According to Article 2 of the Treaty on the European Union it is also one of the quintessential values on which the Union has been founded.

Problems around the Rule of Law are growing in modern societies, especially among the Central and Eastern European (CEE) states. There is a visible negative trend in the CEE region towards the Rule of Law, which can be illustrated by two countries – Poland and Hungary – that have particularly attracted the attention of the political world in the recent years. Quite clearly, one commonality shared between the CEE states is their communist past, in systems where the Rule of Law did not exist in practice. Whilst Communism collapsed in Europe twenty nine years ago, the question of whether the contemporary Rule of Law crises can be in any way linked with the communist legacy still arises. If they can, the further question then occurs of the impact of Communism on the current crises.  And finally, whether the shape of the process of transition from Communism to Democracy had any influence on the present situation?

These questions formed the core of the discussion embarked upon in my dissertation. Indeed, there is a wide spectrum of interesting factors present in each of the CEE countries, however in order to narrow down the field of research I chose Poland as the main case study. Changes within this country are abrupt and ongoing. It was thus the aim of my work to analyse the current Polish context in terms of the Communist past and to seek an answer to the question of why the Rule of Law crisis happened at all.

In the course of my work I analysed and evaluated three different theories concerning the research problem, firstly the theory of 'two transformations' developed by Adam Czarnota;  secondly Bojan Bugarič’s claim on flaws in the institutionalisation of the Rule of Law within CEE countries; and finally Piotr Sztompka’s sociological perspective of ‘civilizational incompetence’. Through my research and analysis I came to the conclusion that the latter theory best explains the current political mood in the centre of Europe.

Sztompka forms an interesting judgment, claiming that the problem in fact lies within the society itself. He rightly acknowledges that after almost half a century of living under oppressive rule, it is not so easy for the Eastern European countries to attain the Western standards of democracy. While entering the European ‘house’ – i.e. the structures and formalities of the Union, might have been straightforward, entering the European ‘home’, namely obtaining certain political but also cultural mechanisms, is much more demanding. The problem thus lies in the post-communist mentality – the legacy of Communism created bad habits in society’s thinking – habits of justifying certain behaviours which disregard the authorities, as well as habits of disregarding the Rule of  Law. There was a common social awareness within Communist states, that the law was being treated as a political tool, and that it was by no means a guardian of society. "If the is law unjust - why should one comply?” – was the common societal attitude. Sztompka claims that the result of this is what, by analogy to the idea of ‘language competence’, he calls ‘civilizational incompetence’.

Clearly, this theory has a very visible application in the current Polish context, an example of which is the attitude of the Polish authorities towards the EU. Whenever the Union addresses Polish disobedience and asks the authorities to redefine their policies, they pursue the argument that since Poland is a sovereign state, it does not need to adhere to the EU’s demands. Such attitudes point exactly to Sztompka’s theory of disregard for law as part of the post-communist legacy, which leads to the contention that if law is unfair (in this case EU law), there should be no obligation to comply.

It can therefore be said that the one of the biggest obstacles to the full democratic progress in the CEE is the mentality of post-communist societies, which impedes the development of national consciousness on the importance of freedom, democracy, and the Rule of Law. Undoubtedly therefore, the current Rule of Law crisis in Poland, as well as in other CEE states, is deeply rooted in the communist past of those countries, and cannot be looked at without considering the influence of communist legal systems.