BY WAY OF INTRODUCTION

On New Year's Eve of 2019, China informed the world of atypical cases of a pulmonary infection first appearing in the city of Wuhan, but now diffused throughout Hubei province. Some ten days later, on January 9, 2020, the World Health Organization (WHO) revealed that the cause of the spreading illness is a new Coronaviridae virus. Yet by the next day, the first fatality was already reported by China, by January 13 the first case outside of China was confirmed, and by January 27 the first cases were identified on the European continent. In early March the coronavirus was found to have spread to 84 countries, the number of cases globally had exceeded 95,000, and the number of deaths had risen to 3,000. Poland's “patient zero”—who did survive—was noted on March 4, but the first registered death from this new strain of SARS-CoV-2 occurred soon thereafter on March 12, 2020. Just the day before, the WHO had declared this a pandemic.

Concurrent with the early warning signs in Poland and in reaction to the threat posed by the pandemic, the Jagiellonian University called off all in-person classes for students and advised online instruction and interactions. The university's 656th academic year was upturned: literally from one day to the next, classes moved on March 12, 2020 from physical to virtual spaces. The COVID-19 era had begun.

A few days later, on March 15, Poland's borders were closed to air and rail traffic; on March 25 (with scarce exceptions) a ban on movement in public spaces was instated. Gatherings of more than two persons were forbidden, restrictions on public transportation were introduced, and the number of participants in a religious service or ceremony was limited to five. As of April 1, minors unaccompanied by an adult were not allowed in public. Parks, waterfronts, and beaches were closed.

Over the course of a dozen days at the cusp of March–April 2020, nearly all forms of social life were fundamentally disrupted. With the first, strictest lockdown (an old word with new meaning), a stillness set in which, in Poland, evoked the morning of December 13, 1981 when the communist government declared Martial Law. The country plunged into both silence and shock at how quickly everyday social behavior surrendered to administrative orders.

A FEW WORDS OF INTRODUCTION

The very word “welfare” (or as often described, albeit with some differences “social welfare”) is certainly very well-known and tossed about in mass discourse as something almost self-evident. This does not mean, however, that the subject matter lurking behind this term is interpreted unequivocally. In fact, the situation is quite the opposite and demands at least modest commentary.

Nevertheless, before embarking further, the potential reader is owed the briefest of possible working explications. It is for this reason that I have signaled that this would be an essay: that word serves as an indication that the text at hand has not been pondered and penned in the fashion of conventional academic articles. This pertains both to the manner in which thoughts will be expressed, but also to the referencing of written sources. With regards to the former, this means moving towards a rather freestyle presentation, setting aside defined or definitive methodological conceptualizations. This treatise will be composed in a more reflective spirit in hopes that it will inspire subsequent deliberations and debates. With regards to the latter, referencing will be limited to a short and select bibliography. In line with the premise that this is to be an unreserved reflection, the text itself will not be supplemented by the usual footnote apparatus directing readers to ancillary publications.

By way of introduction, I would like to also herald two additional premises underlying this essay, but of a substantive, contextual meaning. The first of these is an emphasis on the universality of the issue of welfare, but a universality known, above all, to the part of our global human community which is usually (but also aptly) described as the Western World. Phenomena taking place globally constitute a complex designatum, yet despite its internal diversity, the West does stand out with a certain, fundamental, and unbroken line of development of both ideas as well as specific, corresponding solutions. Let us immediately add that this also relates to Poland and its systems of intervention and support. Our own history—as with many other countries—is uniquely edifying, but also entwined with general Western trends and tendencies.

INTERPRETATIONS—A BATTLE FOR POWER TO SHAPE THE MEANING OF THE LAW

1. Being a normative phenomenon, the law speaks of how things ought to be—not how things are. Additionally, as a creation of the human mind, the law is itself an artifact, invented in order to be able to shape social reality by endowing behaviors and facts (in their various combinations) with some conventional meaning.

The genesis (at least contemporaneously) begins with a specific text passed by a parliament. Once signed into law, however, it will be a living instrument. That act—ratified by a legislature and inscribed into a legal code—goes out into the world, all the while altering its sense under the influence of those who use that law and whose interpretations bestow it with meaning. On the one hand, not always and not wholly are those shifts in accord with the expectations of the initiators or endorsers of the text. On the other hand, reduction of the law to its literal script would be a mistake. For this reason, among others, the object of constitutionality control is not the original text, but the version shaped by the constant and repeated practice of the law's application.2 The law-artifact thus undergoes correction (and occasionally distortion) as a result of the appearance of yet another artifact, i.e., interpretation. The text at hand deals specifically with this secondary artifactization as a result of interpretations—especially those leaning towards manipulation.

Lawyers who are also academics teaching the law and focusing on the legal text and an extraction of its “correct” meaning pay too little attention to the artifactitious nature of the law itself and its interpretation. They are likely to associate the normativity of the law with a description of reality. This, in turn, leads to false conclusions made with reference to optimalization of the law (e.g., belief in actual agency in the adoption or revision of the law). This fact renders attorneys defenseless against many (especially political) manipulations of the law.

POPULISM AND MYTHOLOGY

How can we explain the rise in the magnitude of support for populism, especially right-wing populism today? Roger Eatwell and Matthew Goodwin propose four explanatory factors for the emergence of a demand for populism in a society: Distrust, Destruction, Deprivation, and Dealignment. In speaking of societies today, they point out a rising distrust alongside the alienation of the elites and the linkages between these two phenomena. When it comes to culture, the problem can be called destruction—a sense of an increasing threat to one's own culture associated with a painfully sentient loss of respect or status of which many a scholar has written. Deprivation is the consequence of an absence of economic security. This pertains to insufficient monetary means for living, disruptions on the labor market, and other negatively experienced economic phenomena. Finally, there is talk of a dealignment between political systems and social needs. Political scientists often write about the vast, recent changes in party systems (particularly in Europe), but also about the ineptitude of governments. Among other aspects, a subject of analysis is corruption which is a key reason for the explosion of populisms in South America.

Right-wing populism has already made an appearance on the political stage in several countries in the past, but its latest wave (which appears to still be picking up steam) is unprecedented. Never before have right-wing populists and their parties or movements enjoyed so many successes, forming governments in such different countries as India, Turkey, Brazil, Hungary, and Poland.

There are already a few useful definitions of populism, though the majority of scholars accepts some version of the definition proposed by Cas Mudde who views populism as a unique ideology. In my works, that definition has served as a foundation on which I have built somewhat higher. My own definition is best presented in two steps, the first of which involves an assumption that thin populism exists. In order to ascertain its existence, four conditions must be met; all four are individually necessary and jointly sufficient, in my view. This means that if only one of them is discovered in a narrative, then we are not yet dealing with the phenomenon of populist ideology. The first condition is vertical polarization: ordinary people and the elites are seen as separate, mutually exclusive collectivities. The second condition is these two groups remain in permanent antagonism.

AN EXISTENTIAL UNCERTAINTY

The astute reader will quickly register a paraphrasing of the title of Gabriel Garcia Marquez's celebrated novel, Love in the Time of Cholera. Still, this article will not be a literary work, but one of sociology. Moreover, whereas there was no need for Marquez to explain love, I must, in this introduction, shed light on my understanding of the categories of trust and risk. This text will, therefore, open with general considerations—both conceptual and theoretical—so as to lay the foundations for putting these categories to use while analyzing the pandemic situation in the world, but, above all, in Poland.

One might begin with the fact that human fate is full of uncertainty, peril, and menace. It was already in the 17th century that Thomas Hobbes observed in his classic, Leviathan that “the life of man [is] solitary, poor, nasty, brutish, and short.” Much subsequent philosophical thinking has entailed interpretation of the simple fact that life is always passing under the sign of that final and inevitable bane of existence: death.

Some threats are of an external nature, totally beyond our control: earthquakes, tsunamis or epidemics. Other threats are unintentional and unforeseen consequences of our own actions. Regarding the latter, key is the category of civilizational threats incurred by mass behavior, but affecting the individual: automobile accidents, nuclear plant failures or environmental pollution.

Yet risk is something different from dangers and hazards. Risk involves the possibly fatal outcomes we bring to bear upon ourselves through our own behavior. In this sense, we are at fault for the consequences which we take into account, but despite which we continue. This distinction is expressed well in Polish (and other languages) in phrases such as that we encounter a threat or come across danger, but undertake or take a risk.

Trust, in turn, is a panacea for uncertainty and risk since, despite everything, we must or want to act. Speaking metaphorically, trust is a bridge over the chasm of precariousness. In other words, it is an optimistic bet placed on the future, indeterminate actions of others.

I am aware of the fact that the issue of community has already been addressed by the greatest philosophers, followed by many a historian of philosophy. Holding a special place in my heart is Bronisław Baczko's book (which I witnessed in the making) on Jean-Jacques Rousseau. Coming also to mind is a statement by Leszek Kołakowski (recently recalled by Zbigniew Mentzel) that a thread linked to the thinking of the classic philosophers should be preserved in order to draw impetuses for one's own reflections. Kołakowski—as Mentzel underscores—valued philosophical wisdom more than “observational intelligence.” After a few decades of working as a historian, I will allow myself a somewhat different approach. Perusing pieces known well to me, I will pose questions regarding the social phenomenon of interpersonal communities. After all, history is a grand experiment in the field of social studies—even if without clearly formulated postulates, without controlled variables, and, unfortunately, most frequently without the consent of the subject-participants (not to mention the approval of an ethics committee).

The word “community” is applied very often. Generally speaking, it carries a positive tone. Although we know that something like, for instance, a “community in crime” or a “mafia community” exists, we most often speak of a “familial” or “intellectual” or “national” community. At the same time, this phenomenon is very difficult to define—which is not a rarity in the social sciences and humanities (may this trivial distinction remain which divides precisely our community).

Participation in a community need not be conscious and a community's symbolic dimension need not coincide with reality. One can be symbolically against an individual, yet remain with that person within a community. After all, those whom we like are sometimes those with whom we bicker. One can belong to a community for some reason (e.g., due to certain traits never willfully chosen), yet hold it at a distance for other reasons. It is possible—for a single individual or a smaller or larger group—to not want to be in a given community, but be deprived of a way out of it. It is not uncommon to hold mutual grudges within a family, but still remain one after all.

In his review of my book on the Roman Catholic Church system, Leszek Koczanowicz raised a question regarding the sources of success for what he called the “phantasmal bubble” of church Christianity. Encouraging me to undertake this topic in a subsequent work, Koczanowicz wrote then,

In accord with the suggested line of inquiry, Beata Anna Polak and I have undertaken the challenge and are preparing a new treatise. The goal is to address this question about the criteria behind the success of the system of the church as well as similar systems organized around a phantasmic consciousness. The subject matter (as evident) is ponderous—just right for a book. Within the timeframe of a lecture, however, I can only point to the premises of our analysis, supplementing those with a few illustrative examples. This text, therefore, will merely serve as a sketch with a few roughhewn details.

In the work reviewed by Koczanowicz I had used Bertolt Brecht's Stories of Mr. Keuner as both an ironic and astute commentary accompanying my investigation. In our forthcoming volume, we have also decided to employ a Brechtian annotation. Breaking down the sources of this ecclesiastical system's success, we refer to “Mr. Keuner and his niece's drawing”: “Mr. Keuner looked at the drawing his little niece had made. It depicted a hen flying over a farmyard. ‘Tell me, why does your hen have three legs?’ asked Mr. Keuner. ‘Hens can't fly, of course,’ said the little artist, ‘and so I needed a third leg to give it a lift.’ ‘I’m glad I asked,’ said Mr. Keuner.”

The primary incentives provoking mass protest movements in Poland over the last few years have revolved around three things: threats to democracy and the rule of law, climate change, and changes in the law regulating pregnancy termination. Protests with regards to the last two of these have been assembled (it would be hard to describe them as “organized”) by youth, sometimes quite young people.

“Strike” was the label attached to street marches in the case of climate change, because (among other things) pupils and students were leaving their lessons or lectures for demonstrations—that is, they were striking and not performing expected, routine functions. The 2016 protest against further restrictions on access to abortion bore similar traits: on a set day, women left work early, taking advantage of various legal solutions (most frequently with the permission of sympathetic employers, teachers or lecturers), and went out on the streets of Polish cities and towns. Those who could not go into the streets photographed themselves dressed in black and posted their selfies on social media—thus participating in the physical events.

By 2020, therefore, it was no coincidence that a large role in calling up and influencing the course of events—in reaction to yet another attempt to introduce legal constraints—was played by an organization calling itself the Women's Strike (Strajk Kobiet). Even if the goals and the form of action were far from the original sense of the word (these were neither long-term refusals to work until demands were fully met, nor dealing with work conditions and pay), the word “strike” seemed to reflect the broader sense of the rebellion. After all, this was a kind of “letter of resignation” from the stipulations of the “gender social contract” heretofore in place. This also involved a deep change in especially women-government relations (broadly understood).

Yet before we delve into the most recent demonstrations referring to reproductive rights, there is a need to briefly review the history of legal regulations of abortion in Poland, the actual practice of these laws, and previous reactions anytime that abortion law restrictions were proposed.

INTRODUCTION

It was a certain experience of deja vu that instigated an idea to compare and contrast the model of cultural legalism (i.e., the deeply rooted in European culture perception of the law as an autonomous institution) with the model of legal nihilism. In Poland (as well as in other postcommunist, Central Eastern European states), the surrounding legal reality (i.e., the creation and application of law) has come to resemble a passing ethereality even though the preexisting reality had been overcome with great difficulty. It was a journey over a bumpy road to establish constitutional democracy and the rule of law in the region after 1989.

Accompanying the unsettling sensation of deja vu was a question: how is it possible that—after three decades of relatively successful efforts to construct a democracy functioning on the principle of the rule of law—we are witnessing blatant abuse of the constitution, open contempt for the law, and a consciously coordinated destruction of the authority inherent to the system of justice (especially of judges, but also other legal professionals)? Another matter coming to mind is whether a return to legal nihilism is reflected in the general consciousness. If so, then this would mean a definitive reversal—from a pro-Western to a pro-Eastern stance—in the transformative direction taken in Poland after 1989. Do the opinions of Poles complement the social, systemic, and psychological changes orchestrated by the government? These are big questions and difficult ones.

My lecture stands as an attempt to delve deeper into these issues, to better understand the current situation, and to unveil possible ways out of this predicament. Undertaking this endeavor, I will refer to two ideal models of sociological concepts of law in society. The findings of my analysis will be illustrated by statistical data documenting the process of lawmaking in Poland as well as by the results of a survey conducted between July and August 2020 on Polish attitudes towards the law.

As for legal nihilism, I define it here as something more than the mere instrumental subordination of law by politics or the mere disavowal of a normative legal certainty. Instead, it is the negation of the law as a value and an important cultural and civilizational achievement—an effect of a specific civilizational process experienced by Europe (and the West writ large).

INTRODUCTION

The title of my lecture alludes to a well-known work by Theodor Adorno—even if some will find the very comparison too far-reaching, completely inappropriate, and, therefore, wholly unlicensed. Consider this nothing more than a simple paraphrasing or wordplay serving to rouse the author's imagination—reflections and loose associations inspired by the title (but unconnected with the contents) of the German philosopher's treatise. Upon my first contact with Adorno's book, the phrase minima moralia evoked associations with an elementary morality; only later did I realize that the volume is about something else entirely. Nonetheless, the initial impression has remained and become a source of inspiration. For Adorno, the minima moralia concept pertained more to form than content; in the ponderings at hand, however, the Latin words reference both—brief forms (minima) regarding legal fundamentals (minima iuridica).

However, inasmuch as Adorno's book was very pessimistic and dealt with “reflections on damaged life,” this text aims to be optimistic and to comment on the “legal obviousnesses” embodied in familiar Latin sayings and phrases. Yet, just in case, the prefix “un-” is parenthesized because, as life has often shown, these obviousnesses are not so obvious (although they should be) for all lawyers. Both titles (Adorno's and mine) share, however, a certain idea awakened in the author's mind: just as a trampling of moral minimums (a minima moralia albeit bearing a completely different sense than in Adorno) can lead to damaged life, so, too, violations of legal obviousnesses (i.e., the minima iuridica, applying precisely this meaning herein) can, sooner or later, result in damaged law.

The best attestation to the possibility of linking minima moralia with minima iuridica thus understood is (in some symbolic sense), on the one hand, the celebrated novella by Louis Aragon, Le droit romain n’est plus (Roman law has ceased to exist), and, on the other hand, a well-known poem by Mieczysław Jastrun, Z pamiętnika byłego więźnia obozów koncentracyjnych (From the diary of a former concentration camp prisoner). These are linked symbolically because, when confronted with the barbarianism of Nazism, Roman law must indeed have ceased to exist momentarily.