Reflections on constitutional design

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“Definitely a page turner” – perhaps I need to get out more, but to my eye Wojciech Sadurski’s latest working paper is gripping stuff. It should probably be required reading for those sitting comfortably, looking at Poland and thinking “it couldn’t happen here” – especially as his conclusion includes the observation that is a timely reminder to us all:

Institutions without a degree of consensus as to what counts as norms transgressions become hollow, i.e. eroded of their potential to serve the purposes for which they were originally set up, because the norms that supply the rules of behaviour cannot be captured by written rules constitutive of these institutions.

Entitled On the Relative Irrelevance of Constitutional Design: Lessons from Poland, in it Sadurski particularly highlights the lack of change to constitutional arrangements behind many of the most worrying recents developments in Poland.

All the main features of the constitutional compromise of 1997, including semi-presidentialism, bi-cameralism and robust judicial review by a ‘Kelsenian’ constitutional court have in fact been prefigured by the purely pragmatic, contingent and context-sensitive political compromise of 1989 … 

With a range of call backs to many of the leading scholars in this area, it is the incidence of de facto change that is crucial:

Another dimension of the anti-constitutional character of PiS rule is the series of de facto ‘amendments’ to the Constitution via statutes that significantly alter constitutional dispensations.

Don’t take my word for it – read the full paper, available from SSRN