6 March 2025
The seminar (webinar) “Lawmaking and the Rule of Law – Could Bad Legislation Serve to Restoration of Legality” took place hosted by Cardinal Stefan Wyszynski University in Warsaw on 6 March 2025 as part of the “Reversed Rule of Law” project conducted within the Central European Academy Professor’s Network (Budapest-Miskolc) and the I Polish-Hungarian Scientific Forum. A seminar on good and bad legislation was organized to explore the principles and challenges of legal drafting. The event brought together esteemed scholars from various academic institutions, whose expertise in legislative processes and the Rule of Law significantly contributed to the depth of the research.
The seminar was attended by:
- Professor Marta Osuchowska (Cardinal Stefan Wyszynski University in Warsaw), an expert in public law, comparative law, and religious law;
- Professor Karol Dobrzeniecki (Nicolaus Copernicus University in Toruń), an expert in legal theory and philosophy, constitutional law, and public law, and a member of the “Reversed Rule of Law” research team;
- Professor Konrad Walczuk (War Studies University), an expert in constitutional law, administrative law, military law and security-related legal issues;
- Dr. Oskar Kida (Academy of Social and Media Culture in Toruń), a lecturer and assistant to a Constitutional Tribunal judge specializing in constitutional law, EU law and legislation.
The seminar was moderated by Professor Aleksandra Syryt, a member of the “Reversed Rule of Law” research team and an expert in constitutional law, administrative law, human rights and legislation.
Professor Aleksandra Syryt opened the seminar. She welcomed all participants and expressed her gratitude to the distinguished scholars in attendance. She emphasized the importance of their expertise in legal drafting and the Rule of Law, noting that their contributions would greatly enrich the discussions.
Following these opening remarks, Professor Konrad Walczuk addressed a fundamental aspect of the legal system—the constitutionality of the law. He showed relations between the constitutionality of the law and a democratic state governed by the rule of law. He explained that this concept is not merely a legal formality but serves as the backbone of a legal system that upholds justice, protects individual rights, and fosters trust between the state and its citizens.
Professor Walczuk highlighted Article 2 of the Constitution of the Republic of Poland, which enshrines the principle of a democratic state ruled by law. He stated that all legal acts must comply with the Constitution both formally and substantively. Formally, laws must be enacted through the appropriate legislative process by competent authorities. Substantively, they must align with constitutional values such as justice, fairness, and fundamental rights. One of the key aspects of constitutional law discussed during the seminar was the principle of legal certainty. According to Professor Walczuk, laws must be clear, precise, and comprehensible to ensure citizens can foresee their actions’ legal consequences. The Constitutional Tribunal has repeatedly stressed that ambiguity in the legal system creates confusion and unpredictability, thereby undermining the rule of law.
Another crucial principle in that perspective was protecting citizens’ trust in the legal system. Laws should be enacted in a predictable and reliable manner, avoiding sudden and arbitrary changes that disrupt legal stability. The state must prevent “legal traps”—provisions that unexpectedly worsen an individual’s legal standing without allowing adequate time for adaptation.
Professor Walczuk discussed the principle of lex retro non agit. He explained that laws should not impose penalties or obligations for actions that occurred before their enactment, particularly in criminal and tax law. While exceptions may exist in cases where retroactivity serves a compelling public interest, these exceptions must not infringe on acquired rights.
A fundamental safeguard of constitutional legality is the protection of acquired rights. Once a legal norm grants a right, the state cannot arbitrarily revoke it. This principle ensures stability in legal relationships and prevents legislative unpredictability. However, in exceptional cases, restrictions on acquired rights may be justified if they serve an overriding public interest and adhere to the principle of proportionality.
Ensuring the constitutionality of law also requires adherence to proper legislative procedures, including the principle of vacatio legis. This period between the publication of the law and its entrance to the legal system allows citizens and institutions to familiarize themselves with new regulations. A reasonable vacatio legis period is essential for maintaining trust in the legal system, as abrupt changes can create uncertainty and hardship.
Professor Walczuk explained that the Constitutional Tribunal evaluates laws’ constitutionality using formal and axiological criteria. The formal aspect ensures that laws meet legislative drafting standards, including coherence and precision. The axiological aspect examines whether laws align with constitutional values such as justice, equality, and human rights. A law may be formally valid but still unconstitutional if it contradicts these fundamental principles.
The Constitutional Tribunal applies a “legal certainty test” to assess legal provisions’ clarity, precision, and systematic coherence. If a law is too vague or ambiguous to allow consistent interpretation, it may be deemed unconstitutional. In extreme cases, such laws are removed from the legal system to prevent legal instability and potential violations of individual rights.
Professor Walczuk pointed out that unconstitutional laws undermine legal stability and predictability. They create legal chaos, erode public trust in institutions, and weaken the legitimacy of the state. He stressed that constitutionality is not only a legal requirement but also a moral obligation to ensure that the government operates within the bounds of justice and fairness.
In conclusion, Professor Walczuk reiterated that principles such as legal certainty, protection of acquired rights, prohibition of retroactivity, and adherence to proper legislative procedures are crucial safeguards of the legal system. A democratic state governed by the rule of law must ensure that all enacted laws comply with these principles. Only through strict adherence to constitutional standards can a just, stable, and trustworthy legal order be maintained, serving all citizens fairly and equitably.
Following this, Professor Marta Osuchowska addressed the necessity of considering constitutional principles related to the system of sources of law when drafting legislation. Professor Osuchowska stressed that good legislation must adhere to constitutional principles governing the system of sources of law. One of the most important requirements is that executive regulations must be based on explicit statutory authorization. Furthermore, the legislative process must involve proper consultations and advisory procedures, particularly when a law mandates that a regulation be issued in agreement with a specific entity.
Professor Osuchowska cited the recent regulation issued by the Minister of National Education concerning religious education in schools as an example of legislative abuse. She provided a detailed analysis of a specific case. In July 2024, the Minister of National Education issued a regulation amending the rules for organizing religious education in public preschools and schools. The new provisions allowed for the grouping of students from different classes for religion lessons and limited the weekly duration of these classes to one hour. This regulation was issued without following the legally required procedures, including mandatory consultations with churches and religious organizations.
According to existing regulations, any changes affecting religious education in public schools must be agreed upon with church and religious representatives. The failure to obtain such agreements constituted a violation of established legislative procedures, raising concerns about the disregard for the role of religious institutions in policymaking.
Professor Osuchowska elaborated on the legal requirements governing the issuance of such regulations. Under Article 12 paragraph 2 of the Education System Act, the Minister of National Education must consult and attain consent with the authorities of churches and religious organizations when determining the conditions and methods of organizing religious education.
Although public consultations were conducted, the final regulation did not consider the positions of individual churches, and no formal agreement was reached. This procedural shortcoming rendered the regulation legally questionable.
Furthermore, Article 25 paragraph 3 of the Polish Constitution mandates that relations between the state and churches should be based on cooperation. Additionally, the 1993 Concordat between the Republic of Poland and the Holy See requires that matters concerning religious education be agreed upon between the state and the Catholic Church. By bypassing these requirements, the Minister’s actions may have constituted a violation of Article 7 of the Constitution, which mandates that public authorities operate within the bounds of the law.
The procedural flaws in this case led to legal scrutiny. On 26 August 2024, the First President of the Supreme Court filed a motion with the Constitutional Tribunal requesting an examination of the regulation’s constitutionality. On 27 November 2024, the Tribunal ruled that the regulation was unconstitutional.
The Tribunal found that the Minister of National Education had acted unilaterally in developing the regulation, disregarding substantive input from church representatives. This failure to comply with statutory authorization requirements rendered the regulation unconstitutional and invalid.
Professor Osuchowska underscored that a normative act consists of both formal and substantive elements. The formal aspects pertain to the lawmaking procedure, including adherence to legislative rules, while substantive elements concern the act’s compatibility with higher legal norms, including the Constitution. A violation of either formal or substantive requirements affects the act’s constitutionality. The principle of legality, a cornerstone of the rule of law, requires that the legislative process be conducted strictly in accordance with constitutional and statutory provisions. If any of these elements are omitted or violated, the entire act may be deemed unconstitutional, regardless of the intentions behind its enactment.
Professor Osuchowska warned against the paradox of attempting to uphold the rule of law by violating legal procedures. Even when pursued with good intentions, the enactment of laws through improper procedures undermines the perception of legal stability and predictability. Regulations that fail to adhere to constitutional requirements can be challenged, annulled, or disregarded, leading to legal instability. Such practices weaken public trust in the legal system and erode the foundations of a democratic state governed by the rule of law.
In conclusion, Professor Osuchowska emphasized that the legality of the legislative process is not merely a technicality but a fundamental principle ensuring the constitutional order and protecting citizens’ rights. Proper legislative procedures, consultation with relevant entities, and adherence to constitutional and statutory norms are essential for maintaining a just and stable legal system. The case of the religious education regulation serves as a stark reminder of the necessity of compliance with legal formalities to uphold the integrity of legislative processes.
Following Professor Osuchowska’s presentation, Dr. Oskar Kida addressed the influence of European Union policies on constitutional changes in Member States. He highlighted that while European integration brought numerous benefits, it also generated tensions concerning the constitutional independence of Member States. He noted that EU membership could lead to constitutional amendments aimed at aligning the national legal order with EU law and changes designed to shield national legal systems from EU influence. His focus was on the latter category of constitutional changes.
As a supranational entity, the European Union strives to harmonize legal and political standards across Member States. However, policies concerning migration, economic regulations, and monetary matters often create tensions, leading some countries to amend their constitutions to protect national interests. Dr. Kida examined two specific cases: Hungary’s constitutional amendments in response to EU migration policies and Slovakia’s constitutional protection of cash transactions.
Hungary adopted a new constitution in 2011, replacing the socialist-era document. This constitution emphasized Hungary’s Christian heritage and national identity, sparking controversy domestically and within the EU. One of the most notable instances of Hungary reacting to EU influence was the seventh amendment to its constitution, which addressed immigration policies. These changes included: 1) a ban on the settlement of foreign populations in Hungary; 1) a rule stipulating that foreigners not covered by EU freedom of movement laws could remain in Hungary only based on an individual decision by Hungarian authorities.
These amendments were a direct response to the EU’s proposed refugee relocation quotas, which Hungary’s government, led by Viktor Orbán, strongly opposed. The European Commission and other EU institutions criticized these changes, arguing that they violated solidarity and human rights principles. Despite this criticism, Hungary maintained its stance, reinforcing its constitutional framework to resist EU-imposed migration policies.
Another example of constitutional amendments influenced by EU policy occurred in Slovakia. In response to the European Central Bank’s (ECB) 2020 announcement regarding the development of a digital euro and the European Commission’s legal proposal for its introduction in June 2023, Slovakia took steps to secure the right to cash payments at the constitutional level. On 15 June 2023, the Slovak National Council voted on a constitutional amendment guaranteeing the right to pay in cash. The amendment received overwhelming support, with 111 out of 150 deputies voting in favor, 3 against, and 17 abstaining.
One of the project’s initiators emphasized the importance of this amendment, stating: “It is very important to have a provision in the constitution on the basis of which we can defend ourselves in the future against any dictates from outside saying that there can only be digital euros and no other forms of payment.”
This decision reflected Slovakia’s concerns over EU-driven digitization efforts, which some perceived as a threat to monetary sovereignty and citizens’ privacy. By embedding cash payments into the constitution, Slovakia sought to ensure that EU policies would not override national preferences regarding financial transactions.
Dr. Kida concluded by emphasizing that the tension between national constitutional law and EU law is an ongoing issue within the Union. These conflicts highlight the need for a broader discussion on the balance between EU integration and national sovereignty. A key question remains: Should the EU continue to strengthen the supremacy of its law over national constitutions, or should it pursue legal harmonization while respecting the constitutional identities of Member States? Dr. Kida argued for the latter, advocating for a return to decision-making processes that require unanimous consent on crucial or controversial issues. This, he suggested, would enable Member States to defend their constitutional identity and independence without resorting to constitutional amendments or legal disputes with the EU.
Dr. Kida confirmed that constitutional amendments in response to EU policies demonstrate the challenges of balancing European integration with national sovereignty. As Member States navigate this complex relationship, discussions on decision-making mechanisms and legal hierarchies within the EU remain essential for ensuring mutual respect and stability within the Union.
After Dr. Kida’s presentation, Professor Karol Dobrzeniecki discussed the philosophical and theoretical aspects of recent legal transformations in Poland. He introduced two key concepts to analysed these changes: the acceleration of legal degradation towards what he termed legal nihilism and the instrumental use of law in the spirit of legal realism.
Professor Dobrzeniecki explained that one of the central narratives of the current government in Warsaw is the urgent need to restore the rule of law after what it describes as its erosion under the previous administration. This sense of extraordinary circumstances has led to arguments that exceptional times require exceptional measures, even if those measures operate at the edges of legality or involve outright legal violations in pursuit of a politically defined higher public interest. According to him, this justification allows political actors to step beyond legal norms under the premise of recovering state institutions, treating the written law as an obstacle rather than a guiding principle. He referenced the old Roman maxim necessitas non habet legem—necessity knows no law—as a rationale for retrospective legal justifications after politically motivated actions have already been taken.
He noted that a striking example of this approach was the paralysis of Poland’s Constitutional Tribunal in 2024. Due to ongoing disputes regarding the legitimacy of judges appointed in 2015, the executive branch effectively assumed an unwritten right to determine which Tribunal rulings would be published and enforced. This, he argued, widened the gap between the actual state of governance and the constitutional framework, leading to a prevailing trend of legal nihilism in executive decision-making.
The second key issue Professor Dobrzeniecki explored was legal realism, a perspective that highlights the divergence between the real motivations behind legal decisions and their formal justifications. He explained that this doctrine underscores how laws written in legal codes often serve as post hoc rationalizations rather than genuine reasons for political actions. In practice, government decision-makers treat law as merely one factor among many in their policymaking, using it selectively to justify pre-determined actions while disregarding legal constraints that might obstruct their political objectives.
As an example, he pointed to the Polish Minister of Justice’s recent request for guidance from the Venice Commission regarding constitutional amendments related to the Constitutional Tribunal. The government framed these changes as essential to resolving a long-standing constitutional crisis. However, the Venice Commission rejected this rationale, emphasizing that genuine rule-of-law restoration requires addressing the causes of its decline rather than replacing institutions wholesale. The Commission further warned against a winner-takes-all mentality, stressing the need to respect minority rights and preserve institutional continuity rather than pursuing abrupt institutional overhauls.
Professor Dobrzeniecki concluded by noting that these patterns—disregarding traditional legal bodies such as the Constitutional Tribunal and the Supreme Court in favor of executive discretion—are characteristic of political systems shifting toward authoritarianism. In such systems, he argued, the rule of law is no longer a check on power but a tool for consolidating control, thereby undermining its very essence.
Professor Aleksandra Syryt provided a comprehensive conclusion to the seminar discussions by emphasizing the fundamental relationship between law and the rule of law. She underlined that law is more than just a set of rules; it must be applied fairly, consistently, and without arbitrariness to ensure justice and safeguard individual freedoms. A true state governed by the rule of law is characterized not merely by the existence of laws but by their transparency, stability, predictability, and equal application to all citizens.
Professor Syryt stressed that the rule of law is essential for a functioning democracy. When laws are manipulated to serve political interests rather than the common good, democracy itself is put at risk. She warned that undermining constitutional legality, disregarding constitutional courts, or introducing arbitrary legal interpretations weakens the very foundations of the legal order.
One of the key threats she highlighted is the potential for governments to pass laws that violate fundamental rights when constitutional tribunals are disregarded or stripped of their authority. Another danger lies in shifting from a concentrated constitutional review—where an independent body ensures the compliance of laws with the constitution—to a dispersed review, where courts issue conflicting interpretations, creating legal uncertainty for citizens.
Professor Syryt identified several threats that undermine the rule of law:
- Manipulation of the legislative process—When laws serve political agendas rather than the common good, they erode public trust and distort the balance of power.
- Non-legal mechanisms of control—political pressure, informal guidelines, and expert opinions without legal authority can replace established legal procedures, leading to unpredictability and unfairness in the legal system.
- Distortion of the hierarchy of sources of law—The legal hierarchy, from the constitution down to regulations and local laws, is meant to maintain order and prevent legal chaos. Legal certainty is compromised when governments bypass this hierarchy by issuing executive orders that contradict constitutional principles or granting undue authority to lower-ranking legal acts.
Professor Syryt emphasized the need to adhere strictly to constitutional principles, respect the separation of powers, and uphold judicial independence to ensure the proper functioning of a democratic legal system. Laws must be created, interpreted, and applied within a clear legal hierarchy framework to protect citizens from arbitrary governance.
She concluded by urging that the rule of law be defended through an unwavering commitment to legal integrity. Only by maintaining adherence to constitutional principles can laws remain instruments of justice rather than tools of oppression. Governments must remain accountable to the people, and the legal system must serve society as a whole, rather than the interests of the powerful.
Professor Syryt’s final remarks strongly reminded us that the rule of law is the backbone of a democratic state. Any deviation from established legal norms threatens not only legal stability but also the very foundation of democracy. Upholding the principles of legal certainty, transparency, and accountability is crucial in ensuring that the law protects rather than oppresses, fostering a just and democratic society.
The host thanked all participants for their valuable contributions and looked forward to further collaborative discussions on enhancing legislative quality in the region.
