Playing with Schmitt’s ideas, it is worth remembering that nothing will limit those who will take power after Tusk.
Three golden thoughts from representatives and supporters of the new government are making a career on the Internet. Here they are: “Everything will be in accordance with the law, as we understand it” (written by Prime Minister Donald Tusk); “We are restoring this constitutionality and looking for a legal basis” (this is law professor Adam Bodnar, Minister of Justice); “We must free ourselves from the trap of legal formalism” (this is Prof. Marek Safjan, former President of the Constitutional Court, judge of the CJEU). It would only be curious if these golden thoughts did not become more important than the constitution and laws in force in Poland.
What is expressed by three golden thoughts, in early March 2016, Prof. Andrzej Zoll (former Ombudsman and President of the Constitutional Court) said he considered it “the 1930s in Germany, when Decisionism was introduced after Carl Schmitt, that is, is not an abstract general norm that applies, but the decision of the person in power.”. It was intended as a mockery against the PiS government and its political base. At the end of 2012, Prof. Jadwiga Staniszkis formulated an even more serious accusation against the government of the then Prime Minister:
“The government of Donald Tusk and its entourage are creating a terrible climate around the law: impunity, non-compliance and lack of procedures. The Prime Minister said in the Sejm that his power is limited by law. It’s not true. Tusk rules in an arbitrary manner and avoids creating procedures in matters as important as relations with the European Union, or choosing the path of the Smolensk investigation without any procedural rules. A similar resistance to applicable law can be seen at the very bottom, in the actions of courts, prosecutors, and probation officers in the Amber Gold case.
After the elections of October 15, 2023, what is happening in Poland is pure (dirty) decision-making, with the accusations of Prof. Zolla from March 2016 seems to be a complete misunderstanding. Tusk’s decision-making in late 2023 and early 2024 is full of murderousness and mockery of the law, including the constitution, but also of undisguised satisfaction over the brazen violation of the law and the constitution and overthrowing people.
It would of course be complete nonsense, or even grotesque, to suspect Donald Tusk of drawing inspiration from reading Schmitt himself, and even more so from, among others: Schmitt from the text “Autoritas non veritas facit legem: Thomas Hobbes, Carl Schmitt und die Idee der Verfassungsstaates” by Martin Rhonheimer, a Swiss philosopher and preacher (from 2000). It is also impossible to assume that Tusk read and understood Thomas Hobbes’s “Leviathan,” which Schmitt and Rhonheimer refer to. For him the principle “not the truth, but the might the law” (if it is known at all in the sense of who formulated and developed it) has meaning only as a cudgel, that is, as an instrument of practical murder.
The point is not to teach Donald Tusk, for that would be a pointless task, but to deconstruct what acceptance of the principle that might makes law leads to. And where did it come from? And it came from Hobbes (from Chapter XXVI of “Leviathan”), but later it was completely prostituted. Hobbes recognized that constitutional law, entrusted to the ruler by citizens, is intended to protect the natural (private) rights of all to defend life and welfare and maintain peace. The government does not enforce or interpret the law, but citizens entrust it with tasks arising from the social contract. Hobbes does not give state authorities the freedom to enact any law, only laws that reflect ‘public reason’ and the public interest.
Carl Schmitt makes a mockery of Thomas Hobbes, as does Donald Tusk of the Constitution and laws, assuming that “a decision in a normative sense arises from nothing”. Schmitt wrote: ‘A sovereign decision is an absolute beginning, and a beginning is nothing but a sovereign decision. It arises from normative nothingness and concrete disorder. However, this is absolute abuse, because Hobbes only carries out certain orders given by citizens in the social contract. Nothingness would lead to pathology, and the protection of the laws of nature would have to be guaranteed. Schmitt and Tusk’s decision-making capacity (although in Tusk’s case it is merely Schmitt’s washes) derives solely from the will. If the government succeeds in imposing its own order (murder), it justifies everything else. You can do anything because power operates in a normative void and is not limited by anything.
Schmitt’s decision-making, which misinterpreted Hobbes, was an excellent alibi for the Nazis, who believed that only power and will mattered, and that government could take any form, including the most oppressive, because it operated in a normative void. The golden thoughts, or rather ‘principles’ of Tusk, Safjan and Bodnar also assume a normative void, so ‘have fun, soul, there is no hell’. Power can do anything because nothing limits it. People forget that nothing will limit those who take power and judge their predecessors. But if someone works really hard at it, they’re likely to take into account the epilogue that will inevitably come.
Source: wPolityce