Midway assessment - "Judicial Resistance against the Rule of Law Backsliding - Judges and Citizens - the case of Poland"
PhD candidate Lukasz Bojarski at the Department of Private Law will on Friday 4 February present his doctorate Project: "Judicial Resistance against the Rule of Law Backsliding—Judges and Citizens—the case of Poland".
Due to Covid restrictions this will be a digitally event.
Professor Eirik Holmøyvik, University of Bergen
Leader of the assessment
Professor John Asland, Department of Private Law
Professor Hans Petter Graver, Department of Private Law
Professor emeritus Mirosław Wyrzykowski, University of Warsaw
Lukasz Bojarski is a PhD research fellow at the Department of Private Law within the project ‘Judges under Stress JuS - the Breaking Point of Judicial Institutions’. The project seeks to answer the following questions: How do rulers seek judicial compliance with authoritarian measures, how do judges react to such measures, and what are the conditions under which an independent judiciary breaks down?
In his PhD project Lukasz focuses on two issues. On the Judicial Resistance of Polish judges. And on participation in this resistance by social organizations (Civil Society Organizations, CSOs). The research focuses mainly on the current situation (since 2015), but takes into account also the historical aspect, especially (but not only) the 1980s (the times of "Solidarity" and the era of martial law).
Łukasz argues that the case of Polish judges is a unique one, both in terms of the scale of judicial resistance against the ‘rule of law backsliding’ and the resisting measures used. Łukasz proposes a definition of judicial resistance (compared to the findings of academia so far) and a classification of forms of resistance: activities of judges undertaken individually or collectively, in court or out of court, against measures aiming at limiting judicial independence or, more comprehensively, backsliding the rule of law. Measures that we can characterize as breaching the rule of law standards accepted by the state and enshrined in the constitution, national and international law.
One of the research findings is participation in the judicial resistance of civil society. Łukasz shows the key role, as he argues, of CSOs in initiating resistance and building its strategy. He analyzes the cooperation of CSOs with judges and proposes to extend the concept of the 'legal complex' (Halliday and Karpik) so it includes CSOs. The concept took into account a civil society if the action leaders were lawyers (for example CSOs leaders). Łukasz proposes to expand the concept so it incorporates CSOs, including non-legal ones, and to focus more academic attention on the role of CSOs.
The PhD project is based on articles. Some of them were already published, others are under the preparations. Published articles include:
- Bojarski, Ł. (2021). Civil Society Organizations for and with the Courts and Judges—Struggle for the Rule of Law and Judicial Independence: The Case of Poland 1976–2020. German Law Journal, 22(7), 1344-1384. doi:10.1017/glj.2021.72
- Bojarski, Ł. (2019). „To jest nasz sąd”. Sąd rozumiejący i zrozumiały [‘This is our court’. The court that understands and is understandable], w: Konstytucja. Praworządność. Władza sądownicza. Aktualne problemy trzeciej władzy w Polsce, red. nauk.: Ł. Bojarski, K. Grajewski, J. Kremer, G. Ott, W. Żurek, Warszawa 2019, s. 197-246 [in: Constitution. Rule of law. Judicial authority. Current problems of the third power in Poland, editors: Ł. Bojarski, K. Grajewski, J. Kremer, G. Ott, W. Żurek, Warszawa 2019, pp. 197-246].
- Bojarski, Ł. (2017). Udział obywateli w zarządzaniu sądownictwem—społeczeństwo obywatelskie czy polityczny suweren? [Participation of citizens in judicial governance – civil society or political sovereign], in: „Krajowa Rada Sądownictwa. Kwartalnik” [National Judicial Council. Quarterly], 2/2017, pp. 48-64.
All published articles can be accessed from academia.edu or researchgate.net. Articles published in Polish are being translated into English and updated (if you are interested in draft English translations please contact Lukasz Bojarski).
 See Hans Petter Graver, Why Adolf Hitler Spared the Judges: Judicial Opposition Against the Nazi State, 19 german L.J. 845, 864 (2018) discussing other possible terms in the section ‘A Typology of Judicial Opposition’.
 See Lucien Karpik & Terence C. Halliday, The Legal Complex, 7 ann. rev. l. & soc. sci. 217 (2011). “The legal complex denotes legal occupations which mobilize on a given issue at a given historical moment, usually through collective action that is enabled through discernible structures of ties.”