Poland: Constitutionally Conforming Interpretation in Times of Constitutional Crisis

co-authored with Marcin Matczak

The aim of this chapter is twofold. First, it intends to show how constitutionally conforming interpretation (CCI) is understood in the Polish theory of legal interpretation and how it is applied by the Polish courts. To this end, the purposive and systemic roles of CCI are discussed, two types of CCI in Polish legal theory are distinguished, and the manner and extent to which CCI is applied in the Polish courts is examined.

Second, given that Poland has been in a state of turbulent constitutional crisis in recent years, it is shown how CCI evolved into a tool for defending the rule of law against the unrelenting onslaught of the executive and legislative branches. This is partly achieved by analysing the altered perception of CCI within legal academia since the Law and Justice party came to power in 2015, and in particular, the tendency to use CCI as a tool to decentralise constitutional review and circumvent a subjugated and submissive Constitutional Tribunal. The chapter also attempts to determine whether this change in perception has influenced the decisions of the courts (ie whether practice has followed theory). This last aim is realized by a quantitative analysis of Polish case law that scans the linguistic corpus of court decisions and by measuring the frequency with which judges employ CCI.