Interview with prof. dr hab. Jerzy Zajadło from the Department of Theory and Philosophy of State and Law, Faculty of Law and Administration, University of Gdansk.

When we agreed to talk about the rule of law, I wanted to avoid references to current politics, but is this at all possible?

It is impossible to break away from it. The relevance of this topic stems from the fact that current politics has made some dangerous re-evaluations that are beyond our comprehension.

We, meaning lawyers?

Every field of knowledge has its paradigms. Currently, the core of our thinking about the law, its creation, limits of validity and rules of interpretation, which has been shaped over centuries, is being undermined. It could be compared to taking away the periodic table from chemists. I am not a prisoner of paradigms. If scientific research proves that better results can be achieved by reading a law backwards, I will accept it. I am speaking half in joke and half-seriously, of course, but the matter is serious. Our government says, for example, that there is no definition of the rule of law, so we do not know exactly what it is. But there is no definition of democracy either, yet we know what it is. It is certainly not majority rule, where the minority has no say. The Greek prototype of democracy was not a majority democracy at all. It was a typical deliberative democracy.

Can we measure the value of democracy in Poland?

We can measure the level of democracy using five basic criteria: free elections, the extent of civil liberties, public control over the government, influence on basic political dispositions and political culture. Each year, the results of the Democracy Index are presented - a ranking based on these criteria, published by the 'Intelligence Unit', a weekly annexe of 'The Economist'. Poland has been successively declining in this ranking for the last five years. On a scale of one to ten, we started at almost level eight, so close to a functioning democracy. Now we are closer to level six, which is a so-called limping democracy and almost on the borderline, beyond which are hybrid states. This result is very sad news for us as citizens.

Can the level of democracy be raised by respecting the rule of law?

The rule of law is inextricably linked to democracy. It is based on three elements: the supremacy of law over politics, equality of citizens in the eyes of the law and legal certainty. The supremacy of law over politics means that politicians are not allowed to do everything. Professor Ewa Łętowska often refers to a comparison from the Odyssey. Odysseus ties himself to the mast with ropes so that he will not be seduced by the siren's song. For politicians, such ties are the law. We can, of course, change them with the help of a simple parliamentary majority. However, these changes are limited by the provisions of the Constitution of Poland. We can also change the Constitution, but this is not easy as it requires a qualified majority and a special procedure. In a state governed by the rule of law, citizens also have a sense of equality before the law. But it turns out that in times of a pandemic, for example, the authorities and politicians are allowed more than ordinary citizens. Added to this is the instrumentalisation of the prosecution service. Finally, the third element, legal certainty, means that the law is inevitable and applies at a certain time. All these rules are currently being undermined.

Poles have long ceased to believe that they are equal in the eyes of the law or that the administration of justice is inevitable.

One of the biggest mistakes of each successive government after 1989 was that very little was done to ensure that particular social groups did not feel excluded. Just as very little was done to shape civil society.

We did not run away from politics, and the pretext for our discussion of the rule of law was the nomination of the IUSTITIA Polish Judges' Association for the Nobel Peace Prize in 2021. Does this nomination have a symbolic dimension?

IUSTITIA judges fight for the division of power into legislative, executive and judiciary, which is fundamental in a democracy. This division is currently under threat in Poland. The executive power is one with the legislative power. If we allow the independence of judges to be taken away, there will be no more control over politicians.

At the same time, you received an award in this year's Professor Tadeusz Kotarbiński Contest for the best book in the humanities for the publication Minima Iuridica. Reflections on some (un)obvious legal issues. This is a book that deals with imponderables, and thus also with the rule of law. Has the rule of law gained particular importance today?

The rule of law is fundamental. Let me return to my beloved Greeks. Greek history proves that there is an immanent connection between the rule of law and democracy. The greatest prosperity of Athenian democracy came in the fifth century AD but, at the same time, the Greeks had no legal system at that time. Law was extremely wobbly, changeable and even contradictory, not written down anywhere. Such an unrestricted democracy, which lacked the bonds of law, proved to be very fragile and prone to populism. The Greeks, persuaded by successive demagogues, returned to tyranny time after time. It was only when they began to take the law seriously - began to write it down, publish it, created something like our current legislative council to watch over the coherence of the law - that a sense of stability could be built. Today, populist rule, its influence on people all over the world, is the greatest threat to democracy. Its guarantor is law-abidingness, and therefore the state of law.

The Rector of the University of Silesia, professor Tadeusz Slawek, wrote in his review that Minima Iuridica is a book for us, for citizens who, as in Kafka's story, 'stand before the door of law'.

This is true, but the audience for this book is also the legal community. Some who share my point of view need no convincing. But there is another group that I would very much like to reach, but I know that I will not convince them because I see a certain element of hypocrisy there. The sentences that form the backbone of our thinking about the law are, after all, well known to these people.

They are familiar to everyone, such as Dura lex sed lex...

This is a slogan used more often by politicians than by lawyers. At the other extreme is Lex iniusta non est lex - 'An unjust law is not a law'. As lawyers, we are caught between these two poles. If we get too close to Dura lex..., we are accused of formalism, of being heartless, of sticking only to the letter of the law and not to its spirit. If we are closer to Lex iniusta..., we are accused of judicial activism or arbitrary judgments.

I cannot ask you about all the sentences, so I will refer to one that is not in the book, but which seems to be the most famous: 'Justice is blind'.

There is no such maxim. We took blind justice from a certain symbolism. The Themis holds a scale to weigh the arguments objectively, and her eyes are blindfolded to signify the impartiality and fairness of the judgment. The Romans, like the Greeks, were not familiar with this symbolism. For blind justice can be misleading. This is due to the philosophy of the understanding of the law. 'Summum ius summa iniuria,' - says Cicero. The established law, applied in a particular case, may turn out to be the ultimate lawlessness.

Should we still be looking for 'goodness and righteousness' in law?

Law is the art of goodness and righteousness. During my speech before the members of the jury who evaluated the books in this year's Professor Tadeusz Kotarbiński Contest, I said that Minima Iuridica grew out of my anxieties as a lawyer and a citizen. Since this book was awarded the prize, it means that these anxieties are shared by the members of the jury. And if people of such class share my anxieties, I can be optimistic. Humanities will win, we just need more time.

Thank you for the interview.

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Professor Jerzy Zajadło received the Professor Tadeusz Kotarbiński Award 2020 for his book Minima Iuridica. Refleksje o pewnych (nie)oczywistościach prawniczych, which was published by the University of Gdańsk and Arche Publishing Houses. This is a distinction of nationwide rank, and the prize is awarded for outstanding scientific work in the humanities. Minima Iuridica refers to Theodor Adorno's work Minima moralia. Reflections on a Damaged Life. The author recalls thirteen famous Latin legal sentences that constitute a kind of paradigm of legal knowledge. As he writes in the introduction: 'just as the trampling of moral minima (minima moralia) can result in a damaged life, so the violation of legal obviousness (minima iuridica) can sooner or later end in a damaged law'.