Populism over Democracy: Poland and the Law and Justice Party

Opinion by Robert Malloy.

People walk underneath a large Polish flag that billows across the screen.

Poland’s democracy, once among the most promising in post-Soviet states, has stumbled. The right-wing populist Law and Justice party (Prawo i Sprawiedliwość, or PiS, in Polish) has slowly rolled back Poland’s status as a democracy. The party’s nationalist rhetoric has emboldened fringe elements of the far-right, curtailed civil liberties, and undermined the rule of law in the country. The result has been the replacement of a fledgling democracy that defeated a communist regime, with a nationalist government that threatens to undo decades of social and political progress. It is important to understand how PiS came to power in Poland, how PiS has threatened democracy in the country, and what this means for a European Union already under siege by populism. Poland has become another front in the struggle between populism and democracy. It is still possible to turn the tides and ensure a free and fair future for all of Poland’s citizens. If the rise of PiS is ignored, either by Poles or the EU, it could lead to a disastrous erosion of rights and liberties in Poland and elsewhere.

The Kaczyński Brothers and the Rise of PiS

Prawo i Sprawiedliwość has its origins in twin brothers Jarosław and Lech Kaczyński. Throughout the 60s, 70s and 80s, the two brothers worked tirelessly to oppose the communist regime in Poland. The brothers’ opposition to the communist regime in Poland drew on Polish conservatism; using elements of Polish culture, such as strong Catholic beliefs, to score political points. After the fall of the communist regime, the brothers established the Center Agreement party in 1990, a highly traditionalist and socially conservative party. In 1992, the Center Agreement-backed minority government under Jan Olszewski lost a vote of no confidence. This loss inspired a great deal of mythmaking among the Polish right-wing, as they argued the vote was a conspiracy between liberals and communists to undermine Polish traditions and nationhood [1].

In 2001, the brothers founded PiS and in the 2005 Polish elections, the party formed a coalition government in the Polish parliament. Lech Kaczyński was elected president and in 2006, Jarosław Kaczyński was elected Prime Minister of Poland, consolidating the brothers’ hold on the country [2]. In 2007, PiS lost control of parliament after an early election was called alleging corruption within the coalition government [3]. In 2010, President Lech Kaczyński was killed in a plane crash near Smolensk. This incident has been highly politicized by PiS under Jarosław Kaczyński, who uses conspiratorial rhetoric about the circumstances of his brother’s death to elicit distrust of the political elite in Poland [4]. This rhetoric, in combination with other political trends, allowed PiS to return to power in the 2015 Polish elections and stay in power during the 2019 parliamentary elections. In 2020, Andrzej Duda won Poland’s presidency. Despite being a self-declared independent, he is an open ally of PiS.

Since being elected, PiS has governed from a right-wing populist position. The party has advocated for a form of economic patriotism. PiS has offered a strong social safety net to Polish citizens, supporting large families, lowering the retirement age, and exempting a number of Poles from paying taxes. These programs are implemented in conjunction with a militantly right-wing agenda. Banks and international corporations are routinely scrutinized and weakened by the PiS government. PiS has pushed back heavily both on women’s and LGBT rights. The government has opposed the European Union, especially around issues such as encouraging multiculturalism and refugee integration [5].

Civil Rights and the Rule of Law Under PiS

Throughout its time in government, PiS has continually undermined and rejected Polish law. The party has resolved to accomplish its agenda regardless of any opposition and is not afraid of using questionable methods to do so. Shortly after its electoral victory in 2015, PiS amended a bill created by the previous parliament regarding nominations to the Polish Constitutional Tribunal. This amendment terminated the tenure of the current Chief Justice of the constitutional court and offered PiS new powers to nominate judges. The amendment passed unanimously as opposition parties in parliament boycotted the vote in protest over its constitutionality.

PiS nominated 5 justices to sit on the constitutional court based on provisions that were not yet in effect, meaning these nominations were technically not legal [6]. The actions of PiS demonstrate its utter lack of respect for Polish law and amounted to what was essentially packing the court. PiS did this to establish domination over the constitutional court in order to pass laws without opposition.

PiS has used its control over the legal system in Poland to push its right-wing agenda. The PiS government has tolerated and encouraged the existence of so-called “LGBT Ideology Free” zones within Poland. Over 100 municipalities in Poland have passed legislation advocating against things such as pride parades and education about same-sex relationships in schools [7]. President Duda has vowed to prevent the legalization of same-sex marriages, to ban gay couples from adopting children, and has declared LGBT ideology to be worse than communism [8]. Feminist ideologies are also subjected to attacks and repression by the PiS government. PiS heavily discourages discussion on gender inequality, arguing that Polish women are equal under the law and therefore equal in all aspects of life. The party views the preservation of the traditional Polish family as essential for the survival of the nation. PiS has claimed that “gender ideology” is a corruptive force in Poland [9]. In fall 2020, PiS implemented a near-total ban on abortion, sparking widespread protest in the country [10].

The popular resistance to these actions has led PiS to crack down on journalists, protestors, and to severely threaten independent media in Poland. During the protests against abortion legislation, police used tear gas and excessive force to dispel protestors. Accusations of arbitrary arrest, police intimidation and use of force by unidentified plainclothes police officers surfaced. Reporters covering the protests were also attacked by riot police and arbitrarily detained [11].

The PiS government has gone to great lengths to suppress dissent towards its policies. Telewizja Polska, the Polish public broadcasting service, has become a mouthpiece of PiS propaganda by promoting conspiracy theories about leftists, the LGBT community, and other groups that PiS opposes [12]. Poland attempted to pass legislation that restricts foreign ownership of media outlets in Poland, disproportionately affecting media outlets who have been thus far critical of PiS--President Duda was forced to veto the legislation after mounting international pressure from the US and EU [13]. PiS has begun a dangerous trend of repression and silence in Poland, undermining Polish law and democracy through efforts to eliminate any and all opposition to PiS control.

The European Union and PiS

Poland was once the most promising democracy in the post-Soviet space. The country joined the European Union in 2004, signalling an upward trend for the country. The election of PiS has derailed this process. PiS and the EU have repeatedly come to blows over the political situation in Poland, with PiS’s erosion of democracy in Poland posing a significant threat to the European political order. Poland’s constitutional court ruled in October of 2021 that Polish laws should take precedence over EU laws, which prompted a sharp

rebuke from the EU and worsened relations between the Polish government and the EU [14].

Since 2017, The EU has debated blocking Poland’s voting power. However, Hungary, governed by the populist Fidesz party under Viktor Orbán, has vowed to veto any legislation against Poland. The support PiS and Fidesz share for one another prevents the EU from taking concrete steps to counteract Poland and Hungary [15]. With the EU and Poland now poised to duke it out in court, the situation looks as if it will get much worse before it gets better. In late December of 2021, the European Commission announced it is beginning an infringement procedure against Poland; the commission will send Poland a formal notice, which the Polish government is obligated to respond to within two months. Polish government officials have denounced the measure as an attack on Poland’s sovereignty [16].

Considering these rising tensions, some analysts have explored the possibility of Poland leaving the EU, as prominent figures within the Polish government have recently espoused anti-EU rhetoric. One PiS parliamentarian referred to fighting an EU occupation in Poland [17]. However, such a move is unlikely; Poland has seen an impressive economic takeoff after joining the EU in 2004 and the country still heavily depends on the EU. More than 80% of Poles support EU membership and nearly 100,000 protesters took to the streets of Warsaw to protest the constitutional court’s ruling that Polish law was above EU law [18].

The Next Elections

2023 is Poland’s next scheduled parliamentary election. In 2025, the country will elect a new president as incumbent Andrzej Duda reaches the end of his term limit. This will allow the Polish people the opportunity to correct their country’s course and restore democratic law and order in Poland. Studies carried out on PiS voters indicate that many are not staunch traditionalists, but rather enjoy the welfare state created by PiS and are willing to tolerate social conservatism in exchange for material subsistence [19]. This presents an opportunity for opposition parties in Poland, who could combine a progressive social agenda with adequate social supports to develop winning campaigns in 2023 and 2025. With regards to the EU, the organization must remain steadfast but tread lightly. While Poles overwhelmingly support the EU, overpowering PiS may give the party exactly the material it needs to create more anti-EU rhetoric, which could be immensely influential as Poles prepare for a campaign year in 2022. Instead, the EU should attempt to use all the soft power at its disposal; Poland’s citizens very clearly want their country to remain a democracy and a member of the EU, demonstrated by the widespread protests against PiS and in support of the EU. The EU should portray itself as the best hope of maintaining democracy in Europe, willing to help Poles restore it. It is necessary to successfully combat PiS in the courtroom; however, it is equally necessary to assure the Polish people that democracy is something worth fighting for. Demonstrating to Poles that they can rely on their EU allies will do more to preserve democracy than any sanctions could hope to accomplish.



[1] Bartek Pytlas et al., “From Mainstream to Power: The Law and Justice Party in Poland,” in Aufstand Der Außenseiter: Die Herausforderung Der Europäischen Politik Durch Den Neuen Populismus, 2021, 401–14.

[2] Adam Folvarčný and Lubomír Kopeček, “Which Conservatism? the Identity of the Polish Law and Justice Party,” Politics in Central Europe 16, no. 1 (2020): 159–88. https://doi.org/10.2478/pce-2020-0008.

[3] Michał Broniatowski, “Banking Corruption Scandal Throws Polish Politics into Turmoil,” Politico, August 13, 2020, https://www.politico.eu/article/banking-corruption-scandal-throws-polish-politics-into-turmoil/.

[4] Monika Sieradzka, “Smolensk: The Tragedy That Defined Polish Politics,” Deutsche Welle, 2018, https://www.dw.com/en/smolensk-the-tragedy-that-defined-polish-politics/a-43328611.

[5] Czesław Kulesza, and Gavin Rae, The Law and Justice Party and Poland’s Turn to the Right (Vienna, Austria: transform! Europe, 2017).

[6] Konrad Kobyliński, “The Polish Constitutional Court from an Attitudinal and Institutional Perspective before and after the Constitutional Crisis of 2015–2016,” Wroclaw Review of Law, Administration & Economics 6, no. 2 (2016): 94–107. https://doi.org/10.1515/wrlae-2018-0006.

[7] Lucy Ash, “Inside Poland's 'LGBT-Free Zones',” BBC News, September 20, 2020, https://www.bbc.com/news/stories-54191344.

[8] “Polish Election: Andrzej Duda Says LGBT 'Ideology' Worse than Communism,” BBC News, June 14, 2020, https://www.bbc.com/news/world-europe-53039864.

[9] Anna Gwiazda, “Right-Wing Populism and Feminist Politics: The Case of Law and Justice in Poland,” International Political Science Review 42, no. 5 (2020): 580–95. https://doi.org/10.1177/0192512120948917.

[10] Urooba Jamal, “Poland Abortion Laws: Woman's Death Spurs Calls for Change,” Al Jazeera, December 2, 2021, https://www.aljazeera.com/news/2021/12/1/poland-abortion-laws-womans-death-spurs-calls-for-change.

[11] “Poland: Authorities Must End Police Brutality and Persecution of Protesters and Journalists,” ARTICLE 19, November 26, 2020, https://www.article19.org/resources/poland-authorities-must-end-police-brutality-and-persecution-of-protesters-and-journalists/.

[12] Janek Lasocki, “Turning Propaganda into Public Service Broadcasting in Poland,” Notes From Poland, November 18, 2021, https://notesfrompoland.com/2021/11/12/turning-propaganda-into-public-service-broadcasting-in-poland/.

[13] “Polish President Vetoes Media Law Criticised by US and EU,” Guardian, December 27, 2021, https://www.theguardian.com/world/2021/dec/27/polish-president-vetoes-media-law-criticised-by-us-and-eu.

[14] “EU Chief Says Polish Court Ruling Is a Threat to the Bloc,” Al Jazeera, October 19, 2021, https://www.aljazeera.com/news/2021/10/19/eu-chief-says-polish-court-ruling-is-a-threat-to-the-bloc.

[15] Zosia Wanat, “Poland's 'Russian Roulette' with the EU,” POLITICO, October 20, 2021, https://www.politico.eu/article/poland-rule-of-law-judicial-system-eu-pis-jaroslaw-kaczynski/.

[16] “EU Starts New Legal Action against Poland over Rule of Law,” Deutsche Welle, December 22, 2021, https://www.dw.com/en/eu-starts-new-legal-action-against-poland-over-rule-of-law/a-60220102.

[17] Adam Easton, “Poland Stokes Fears of Leaving EU in 'Polexit',” BBC News, October 8, 2021, https://www.bbc.com/news/world-europe-58840076.

[18] B. Kamath, “Could Poland Leave the European Union next?,” Observer Research Foundation, December 22, 2021, https://www.orfonline.org/expert-speak/could-poland-leave-the-european-union-next/.

[19] Slawomir Sierakowski, “Why Poland's Populists Keep Winning,” Foreign Policy, October 9, 2019, https://foreignpolicy.com/2019/10/09/polands-populism-winning-welfare-state/.