Hyperpositivism as a Safety Valve in a Post- Communist Legal System: the Case of Poland

The present paper suggests that hyperpositivism, considered a metanormative legal survival of the Communist rule in the Polish legal system, might serve as a safety valve preventing activities by public authorities that could destabilise the system. Hyperpositivism may entail a mental (even if only imaginary) barrier that stops those applying law from departing too far from the lexical meaning of a legal text. While the dangers of extreme formalism (or “ultra-formalism”) in the application of law, characteristic of hyperpositivism, are well-known, it might be the case that in a post-Communist system that has not matured yet after the transition to democracy, this feature of the system is a necessary element that keeps a precarious homeostasis in it. Its hasty removal – without other checks being established – may lead to chaos. The present paper indicates that recent months have seen some more abrupt cracks in the barrier of hyperpositivism, which are motivated rather instrumentally by the willingness to remove the legal changes made by the previous government and, allegedly, to restore the rule of law in Poland. In this process, non-formalist readings of legal texts have led some public authorities to ignore the decisions or even the existence of others. This seems to be destabilising the state in a geopolitical situation where stabilisation and consolidation should be sought instead. Without engaging in the ongoing political dispute, the paper, using the case study and dogmatic methods and drawing on a review of selected legal theoretical and comparative law literature, analyses two examples of such activities, including the outright questioning of the so-called “neo-judges” and the removal and appointments of the National Prosecutor’s office holders in 2024. In both situations, a more formalist reading of positive law would prevent dangerous consequences these situations are likely to produce for the legal system, the state and its citizens.