- Judyta Papp talks with Professor Andrzej Zoll about social sense of the law
Judyta Papp: What are the optimal relations between the legal system and the political system in a law-abiding, democratic state?
: The State system depends on the legal regulations. The question is rather, what is the relation between the public authority and the legal order. You can put it this way: if the legal order is used by the public authority only to exercise power - as an instrument for achieving the political goals of the party, then we are dealing with an authoritarian system, the system that often takes a totalitarian form.
On the other hand, if the public authority does not treat the legal order only as an instrument of exercising power, but primarily as a way to limit this power - then the legal system protects the state against autocratic designs of the authorities. Therefore, if the law is, so to speak, above the public authority, then we have the system of a democratic law-governed state, or at least a law-governed state, because as whether it is truly democratic it depends on many other factors. The history shows us law-governed states that were not democratic. Take, for example, 19th-century Prussia. Especially in its first period, this state did not have much in common with democracy, but it was ruled by the law, which was above the state authority and those authorities were bound by that law. Another important issue is: in what form will this law be established. If the law is established in the democratic form, i.e. it is the majority of the society that decides on the law in force, and the society elects, in free and democratic elections, their representatives who establish the law, then we can talk about a democratic law-governed state. In such a state, the legal order limits the state authority in the public interest, in compliance with the principle of legality. This principle is expressed in Article 7 of the Polish Constitution of 1997: The organs of public authority shall function on the basis of, and within the limits of, the law. Which means that the public authority does not have the freedom of action. In this situation, we can say that if there is no specific regulation, no legal restrictions for the public authority, then in this case, the public authority may act guided by its own discretion.
JP: You can’t decree everything, which means that in this situation, the public authority can do whatever it wants?
AZ: No, because the public authority is equipped only with powers which derive from the legal norm, that is - the law must allow a particular action. Every action of the public authority must be supported by the law. For example, if we are summoned to appear before a public officer to make a statement or give explanations, in a law-abiding state such a summons begins as follows: Pursuant to article this and that, you are hereby summoned to appear in this office. The authority must refer to the legal basis of its action, expressed in the power to summon a citizen, and the powers to perform any other activity. Because, as I must stress again, the public authority is not free to act, it must have the powers designated by the law, and it can act only within the limits of those powers.
JP: Mazowiecki, Kuroń, Turowicz - authorities of Solidarność - once claimed: so much freedom as responsibility. How can citizens make officials of the judiciary system and ruling politicians guarantee justice, security, freedom and democracy? What may ordinary citizens do?
AZ: Citizens have a very important tool in the hands - elections. Here comes the matter of responsibility for elections. The fact that we are a society which ignores (i must admit it) this ultimate act of making decisions about its fate and does not participate in elections - is our huge loss. We claim for a democratic state while the essence of democracy are public, free elections and responsible voting. If in the most important elections in the last several decades (organized in June 1989), only 62 percent of people cast their votes, it means that rest of the society did not care what happened in Poland and with Poland.
JP: At the time, you could not have expected a massive civic attitude...
AZ: This does not justify such a low turnout. It was known what the dramatic and unequal fight was about. Many people simply used the fact that mandatory voting was abolished and just gave up. Such a civic attitude is confirmed by the fact that the low turnout was higher than in all the following elections - already in the free, democratic state.
JP: What is the reason why citizens do not want be involved?
AZ: As I mentioned, we do not feel obliged and responsible.
JP: Or maybe they decided that they had nothing to choose from as no party was credible for them?
AZ: But in 1989 there was neither Civic Platform nor PiS (Law and Justice)
JP: I mean the recent elections.
AZ: You may not want to vote for the Platform or PiS but respectable citizens of a serious country should take care to create a formation which they would trust and which would represent them. Citizens are equipped with a strong tool for making decisions about their fate - why don't they use them?
JP: Or why do they use them in such an irresponsible manner?
AZ: This is exactly the point. After all, the essence and point of a civic society is self-organization.
JP: No authorities or competent leaders whom they could trust?
AZ: This is not exactly the point. Who forms political groups? I am not a Kukiz enthusiast but his movement is a typical result of a “bottom-up” initiative. A result infected with no responsibility for the choice made by his supporters. And here we return to the starting point: false self-awareness, social alienation, to civic immaturity of too many Poles - regardless of their status. We do not learn from our mistakes and we do not want to learn from good solutions. We are not convinced...
JP: That something depends on us
AZ: .. that so much depends on us.
Photo by Judyta Papp