1. The Temporary Fix, 1926-1930

In May 1926, the charismatic military leader Józef Piłsudski led a coup d’état overthrowing the elected government of Poland. Over three days of street skirmishes in Warsaw, Piłsudski’s troops overcame the government’s soldiers, and the leaders capitulated. Bullets and bayonets left young men dead, but in the days and even weeks after the coup, it was unclear why they had died.

Indeed, Piłsudski’s supporters, both before and after the coup, lacked a clear ideology.Footnote ⁷ The coup had been carried out ostensibly to prevent a right-wing takeover. Piłsudski argued that Poland needed to be saved from itself. Rather than become dictator, Piłsudski refused to take power personally, while trying to build allies among wary business elites and traditional conservatives. Instead of greeting the public with grand speeches, the Marshal sat in his villa outside of Warsaw and gave a series of opaque interviews to the French and Polish press. Piłsudski remained cagey about his intentions for the future, but two weeks after the coup he claimed to have achieved a ‘revolution without revolutionary consequences’.Footnote ⁸ When speaking to a correspondent from Le Matin, he threatened his opposition that he would use any means necessary while also committing to legality. His declarations contained a contradiction as he said, ‘I will not violate the constitution, but I will not shy away from my duty [to protect Poland]’.Footnote ⁹ At that point, Piłsudski had already violated the constitution, but he would continue to be concerned with the appearance of legality.

In Piłsudski’s public statements, there was no explicit enemy he was working to remove. In characteristic fashion, he referred to his coup d’etat as a ‘war against sons of bitches, scoundrels, murderers and thieves’.Footnote ¹⁰ Rather than a particular party or movement, his concern was with a moral failing that had led many of his countrymen to become corrupt, some enriching themselves at the expense of the state.Footnote ¹¹ He claimed that Poland needed a moral rejuvenation or cleansing, called sanacja in Polish. Not coincidentally, Sanacja became the name which historians have conferred on Piłsudski’s supporters, hangers-on, and other political elites in the years following the coup until Poland’s destruction in 1939. Due in part to Piłsudski’s ideological muddiness, the group that rallied behind him was extremely diverse; liberals, conservatives, and left-leaning radicals all found reasons to support the new order.

The 1926 coup and its aftermath eliminated all pretensions about the existing liberal parliamentary system. However, from its wreckage arose a new problem: there was no clear legal basis for the new state power structure. The 1921 March constitution established the ‘Nation (Naród)’ as sovereign within the state.Footnote ¹² In turn, the people were meant to delegate that power to representatives who could serve their interests in elected government. The coup severed those crucial ties by removing power from elected officials. The 1926 coup in Poland effectively overturned the existing political structure. Parliament was ignored, a new president installed, a new set of ministers took their positions, all in ways that violated the constitution. This effectively severed the connection between the ‘people’ and their government. At the outset, Sanacja derived its right to rule from pure force, by defeating its opponents on the battlefield. The elected government, led by Prime Minister Wincenty Witos and President Stanisław Wojciechowski, caved to Piłsudski’s demand for their resignation in order to avoid further bloodshed in the form of civil war or an external attack from abroad. This rupture created a hole in the legal order. Where did sovereignty lie? And could a person or a legal person (state, office of president, etc.) be endowed with the power to represent the people? On what grounds?

While other authoritarians of the 1920s and 30s employed radical nationalism in order to encourage unity around their person, the Sanacja group outwardly promoted the idea of state worship as its leading concept.Footnote ¹³ It is true that the constitutional order lost legitimacy in the eyes of wide swathes of Polish society because of the political chaos it brought forth. As Sanacja thinkers saw it, liberal democracy allowed the population to pursue many contradictory individual interests at the expense of the whole. Piłsudski’s supporters urged Polish citizens to succumb to the primacy of the state and work towards its continued improvement. Sanacja elites thus positioned themselves as stewards of the Polish state – the true essence of Poland.Footnote ¹⁴

Piłsudski did not hide his disdain for the parliament nor the constitution, but he was concerned about maintaining the appearance of liberal legality.Footnote ¹⁵ For example, the post-coup president, Ignacy Mościcki, used his executive power to issue declarations that were meant to have the force of law, even if they formally did not.Footnote ¹⁶ According to the 1921 constitution, the president could make unilateral declarations only when the legislature was dissolved and only with the prior approval of the previous legislature. These conditions were not always met, and it could be easily argued that Mościcki had violated the law. The solution was to legalise ex post facto these illegal actions through an amendment to the constitution that allowed for the president to make new laws entirely on his own, ‘in the event of a state emergency’.Footnote ¹⁷ The changes also opened the door for the president to dissolve the legislature at any time, therefore creating the required emergency. The pro-Piłsudski lawyer and legal scholar, Stanisław Car authored the constitutional amendment.

Car was a generation younger than Poland’s military hero, but attached his hopes to him at the right time thus finding himself embedded within the camp of key supporters. Car was born in Warsaw in 1887 and spent almost all of his life and career in the city. After gymnasium he studied law in Odesa, but quickly returned to his hometown. Before the outbreak of the First World War he managed to open his own law office, but turned to public service after 1914 when he served as a justice of the peace. In 1916, he met Piłsudski for the first time and came under his spell. The impression was mutual, since Piłsudski envisioned that Car would play a key role in the formation of a Polish justice system in the postwar period, and he served in various government positions after independence, including as Piłsudski’s chief of staff. But Car was not entirely satisfied with the new reality he found himself in.

Two years before the coup, Car penned a scathing critique of the liberal constitution with a set of new directions for the role of the president as an all-powerful executor.Footnote ¹⁸ Car was convinced that the partitions of Poland had retarded the country’s development of public law, and that the March Constitution of 1921 did not fulfill the important task of giving a solid Polish legal foundation to the state. The borrowings from abroad created a mismatch between ‘real’ conditions and law.Footnote ¹⁹ For example, Car believed that the democratisation of politics, and the fulfilment of the 1789 Declaration of the Rights of Man and Citizen was part of a particular French historical development.Footnote ²⁰ What was done for France need not be applied to the rest of the globe. Following that chain forward, France’s path led eventually to the Third Republic and its constitution, which became a model for many post-World War I constitutions around Europe, including in Poland. But, Car points out, this was hardly an example to follow since it had a terrible track record of instability. Thus the roots of Poland’s problem came from outside the country, Car claimed, because the constitution,

His solution was thus to find Polish solutions to Polish problems, including the allowance of a strong executive branch with equal power to that of the parliament. Car and nearly every educated Pole in the interwar period saw themselves as actively reconstituting the Polish–Lithuanian Commonwealth that fell apart at the end of the 18^th century. As a result, they were also hyperaware of having lost their country in the past.Footnote ²² One of the many reasons for the failure of that state was an overcommitment to a decentralised system of direct democracy (only available to noblemen). The failure of the old Sejm had led foreign enemies to lick their chops and repeatedly take bites out of Polish territory. In the 20^th century – surrounded by a revanchist Germany and a revolutionary Soviet state – Car’s aversion toward legislatures was coloured by elite historical memory and very present concerns.

In the summer of 1926, Car had the unenviable job of transforming Piłsudski’s vague statements and legally chaotic actions into a legislative act. Some clues can be found in early statements the Marshal made immediately following the coup, ‘After all, the president, like the king of old, must represent the entire country, with all its political parties and all its social classes’.Footnote ²³ In another interview with Le Matin, Piłsudski referred to the example of the United States, ‘where the great power of the central government is balanced by the broad autonomy of the various states’.Footnote ²⁴ In the following years, legal thinkers would continuously debate the role of the executive.Footnote ²⁵ Piłsudski expressed his desire that the president become more like a king and more like the American president. Both of these elements then appeared in Stanisław Car’s theorisation and justification for reformulating executive power.

Nearly three months after the coup, the parliament voted on amendments to the constitution that were intended to justify the aforementioned actions already taken. Car’s law ‘changing and complementing the Constitution’ was made up of eight articles addressing the language of the founding document.Footnote ²⁶ The first three, which are the most robust, deal with the issue of the national budget. In the law’s remaining articles, Car predictably gave much more power to the president, allowing him to issue decrees with the force of law and the right to unilaterally dissolve the parliament.

Nearly three-quarters of the parliament voted in favour of these changes.Footnote ²⁷ We should not read this vote as evidence that nearly all political parties backed the coup or Piłsudski, but rather as a clear sign of how a consensus had formed against the constitutional and the parliamentary order, even from those inside parliament.Footnote ²⁸ Indeed the moral bankruptcy of liberal democracy was a key argument that constitutional authoritarians returned to repeatedly over the next decade to legitimise a legal order that was not based on the will of the people.

This effectively gave Sanacja free range to take actions that were in violation of the 1921 constitution. The contradiction that emerged, whereby a statute amending the constitution allowed for unconstitutional actions, could not be resolved. There was no constitutional court. Theoretically, the supreme court could have ruled on the matter, but the legal pathways for such a case to arrive there simply did not exist. Nonetheless these inconsistencies remained a matter of discomfort for Piłsudski and other fellow travellers, and so they proposed a committee to design a new constitution. Car emerged as one of the leading legal ideologues for the Sanacja camp. The other was Wacław Makowski, who served as the first minister of justice after the coup.Footnote ²⁹

Makowski was born in the Russian empire in 1880 to a book seller in Wilno (Vilnius). As a young man he studied law in Warsaw, Kraków, Lwów (L’viv), and Paris. His education in France perhaps left the strongest mark on his thinking about law, state, and society; at first inspiring faith in the principles of the French Revolution, later more inspired by Leon Bourgeois and ‘solidarism’. After Polish independence, Makowski continued his career as a criminal lawyer and law professor in Warsaw. In 1921, he was appointed to the codification commission for criminal law, which was empowered to write a new unifying codex, since the three separate imperial legal systems remained in force.Footnote ³⁰

Privately, Makowski authored several pamphlets for broad audiences about the nature of the state and citizens’ roles in it. These works show a transformation of his views in the 1920s and 30s, from a more or less run-of-the-mill liberal democrat to an anti-liberal in full support of authoritarian government for the perceived greater good. In 1924, Makowski published a pamphlet entitled Citizen and Republic.Footnote ³¹ He began by quoting Article 2 of the March Constitution (1921), which declares that ‘supreme authority in the Republic of Poland belongs to the Nation (Naród)’.Footnote ³² Makowski delineates what it means to be a republic – namely that its form was born out of a fight against absolutist monarchy – and concludes: ‘The Republic is us’.Footnote ³³ The law professor contrasts life in a monarchy with that of republic commenting that, ‘in a Republic the deciding agent is the citizen and the state of the Republic, its blossoming or downfall, its material and moral strength or weakness are reliant on him and his civic characteristics’.Footnote ³⁴ He further praises parliament as a ‘citizenship school’, a forum where government can present ideas to be tested with the wider body of citizens.Footnote ³⁵ Makowski ended the pamphlet with an appeal to his readers to consciously act and live as citizens, and help others to realise their role as individuals in a system which requires their participation.Footnote ³⁶

After Piłsudski’s coup d’etat, Makowski was singing an entirely different tune. In the intervening years, Makowski observed the dysfunction of parliament and became a cynic. The first post-coup cabinet included Makowski as minister of justice, and in that capacity he gave a series of interviews and speeches on the subject of changes to the constitution. In early June 1926, he claimed that the very structure of parliament was outdated and a product of 18^th century battles with absolutist monarchs.Footnote ³⁷ While supporting a strong presidential position, he toyed with the idea of a small group of elder statesmen who would simply write law called a ‘Council of State’, a concept earlier proposed by the Kraków conservative law professor Władysław Leopold Jaworski.Footnote ³⁸ This reflected a broader disdain with party politics. In Makowski’s estimation, career politicians had destroyed the natural order of things. Parties intended to represent social interests, and their groups had separated from society. He claimed they were built on the ‘point of view of individualism, of naive liberalism’.Footnote ³⁹ This created a culture of competition among individuals instead of cooperation between individuals.Footnote ⁴⁰ Although Makowski recognised the social value of voting and democracy, he claimed that there were more important things than the ideal of democracy such as a functional government.Footnote ⁴¹ In another press interview, Makowski explained that Poland was still honouring a large body of law from the partitioning empires which was in violation of the constitution.Footnote ⁴² The only reason it was still in force was because no one had had time to rewrite the codices, and the parliamentary form was not meeting the needs of the people.

Makowski developed his ideas much more clearly as the years went on, but in 1926 he had clearly moved away from whatever knee-jerk liberalism he had espoused in the early 1920s. Conventional wisdom with regard to the liberal state placed the source of political power in the hands of the ‘people’, broadly and vaguely defined. In a system in which the communication lines between the ‘people’ and their government had been cut, a new legitimating force needed to be located. At this stage in Sanacja’s development, none could be found outside Piłsudski’s personal charisma, though since he was a polarising figure, spokesmen did not openly use this argument. In the aforementioned interviews and speeches he gave as minister of justice, Makowski was more or less improvising, trying to grapple with the implications of the coup, and to find political theories to match lived realities.

2. Legal and social theories

After his tenure as minister of justice ended, Wacław Makowski returned to his academic work and began promoting the idea of social solidarism and Heller’s social state.Footnote ⁴³ The former idea came to him decades prior while Makowski was studying in France. At that time, Leon Bourgois was one of the most influential political forces in the country and his mélange of ideas arising from the latest French sociology is often called ‘solidarism’.Footnote ⁴⁴ This broad set of values presented a critique and alternative to liberalism, Marxist socialism and radical conservatism. Its starting point was to address the lack of solidarity among people in society, a competitive nature that resulted in poor outcomes and injustice for most.Footnote ⁴⁵ Bourgeois proposed a redistributive justice through social welfare, higher taxes on the wealthy, and broader access to education. Though the Solidarists certainly shared some policy goals with socialists, they did so nominally for the achievement of more personal freedom. Ironically, however, their policies required a massive expansion of state intervention into the people’s lives to enforce the principles of solidarism and mould hearts and minds.Footnote ⁴⁶ Solidarism, with its goals and contradictions, became a key feature of Makowski’s thinking in the 1930s and appears prominently in the 1935 constitution.

These tendencies are clear in his many programmatic articles and pamphlets, especially in the era of the Great Depression. In the midst of economic cataclysm, Makowski identified that the country was entering a ‘new Europe’, characterised by an entirely different set of values from the one created in the wake of World War I. His 1930 essay, ‘New Poland in New Europe’ openly rejected liberalism for its failure to meet the needs of ‘society’.Footnote ⁴⁷ He lambasted contemporaries for continually returning to the ideals of the French Revolution, to Montesquieu and Rousseau, despite the fact that states and law should be responding to an entirely different set of conditions. Since ‘society’ became the new jumping off point for understanding all aspects of public life, of man, of state, of power, then clearly it was time to retire these tired old concepts.Footnote ⁴⁸ Moreover, he argued that nationalism in its ‘emotional’ form was not predicted by liberal democracy or socialism, then naturally neither of these systems has the tools to deal with this force in society.Footnote ⁴⁹ Since nationalism divides and may be one of the main forces behind the failure of parliamentary democracy, the goal of the state should be to provide for the solidarity of the entire society but not built on force alone. In another piece taking aim at Rousseau, he wrote that ‘the state created through the social contract of people with inherent rights, the state dedicated to defending the individual against the collective, the state whose only bond is power and whose only purpose is the creation, execution, and application of the law, belongs to the past’.Footnote ⁵⁰ In a single sentence, Makowski swept away the previous three centuries of Western wisdom on the mission of the state. He was also particularly cynical about the idea that there can be such a thing as the ‘will of the people’, a key concept in support of democratically elected politicians. Makowski publicly claimed that democratic politics was a fiction based on how people arrive at their opinions. In 1932, he said in a speech to his colleagues in parliament, ‘17 million voters is like sand that the political winds can move in various directions’.Footnote ⁵¹ But he was not one to simply complain, he offered a clear resolution to the crisis of liberal democracies: subordinating society to the state’s will, to ensure that the whole society will work together in proper harmony.

Makowski’s influence on 1935 April constitution is clear. For example, Article 9 reads, ‘The state seeks to join all citizens in harmonious cooperation for the universal good’.Footnote ⁵² A textbook meant for training civil servants included the following explanation of the article:

In Makowski’s estimation, societal solidarity required that most people be disenfranchised and that instead groups of experts and elder statesmen could be left alone to rule benevolently without the influence of politics.Footnote ⁵⁴ Thus to provide protections for farmers from the global market, or a safety net for struggling workers, the state should cut off the lines of communication between society and government.Footnote ⁵⁵ No matter how strong his convictions were that the ‘old’ order had lost its legitimacy, Makowski had not yet found a way to legitimise his own propositions. This would take place during the debates over the new constitution, and required help from his colleague Stanisław Car.

3. The road to a New Constitution, 1928–1935

Preparations for a new constitution began already in 1928, but these were mostly a smoke screen. Debates took place over several venues, in the Sejm, Senate, a separate Constitutional Commission, inside the Sanacja party BBWR, and behind closed doors.Footnote ⁵⁶ Most political groups represented in the Sejm put forth their own draft constitutions or suggestions, but they were not taken into consideration. Even the BBWR’s draft was essentially ignored. There was only one venue that mattered: the inner circle around Piłsudski.

As usual Piłsudski provided few details.Footnote ⁵⁷ Over a series of press interviews in 1930, however, he did drop little hints. His most robust comments came in late November. As he understood it, the March 1921 constitution created a situation in which the president, Sejm and ministers would always be fighting one another.Footnote ⁵⁸ This was indeed part of the point of the separation of powers. Nonetheless, Piłsudski was interested in creating a system with much more legal flexibility and a reduction in the formal barriers to progress, as he defined it.Footnote ⁵⁹ He was somewhat more forthcoming when it came to the role of the president. Reiterating his comments from four years earlier, Piłsudski claimed that the president ought to be the ‘first citizen of the Republic’ with the power to intervene in all matters while standing above the fray of party politics as well as interpersonal disagreements.Footnote ⁶⁰ Based on these public statements and a few more private ones – about which we know little – Car was meant to translate the leader’s wishes into legal language.Footnote ⁶¹

That work officially began in March 1931 when BBWR nominated Car as the chairman of a constitutional commission. The actual authorship of the 1935 constitution is nearly impossible to ascertain.Footnote ⁶² It was the culmination of general dissatisfaction with the 1921 constitution, with ‘foreign’ models, and with the Montesquieu-inspired separation of powers. The exact train of influence is difficult to untangle. People from various backgrounds ended up in the same place, and it is therefore impractical to say who influenced whom. But there is relative agreement that the most important figures were the aforementioned Car and Makowski along with Walery Sławek – a long-time Piłsudski acolyte who was missing a few fingers and an eye from his bomb throwing days.Footnote ⁶³

Historians have often credited Sławek as one of the main authors and ideologues of the new constitution. In particular, an oft-repeated line in the literature is that Sławek wrote the ideological section of the constitution, that is the first ten articles. However, Sławek’s biographer limits his influence to Article 1.Footnote ⁶⁴ This confusion arose from the fact that Sławek was the first person to publicly announce the content of these first ten articles to a group of veterans in 1933.Footnote ⁶⁵ Sławek was someone Piłsudski trusted without reservation to represent (or defend) his interests. At the same time, Sławek had no legal education and was a revolutionary soldier turned army administrator. The contours of the conversation over the new constitution show more clearly the overwhelming influence of Car and Makowski.

The burden of history weighed heavily on the decision makers as they were wary to repeat mistakes of the past, having in mind particularly the partitions of Poland at the end of the 18^th century. What went wrong, they asked? How can we prevent repetition of past blunders? How can we preserve our country long into the future? ‘Freedom’ in the sense of unbridled freedom is what led them to their chaotic end in the 18^th century. Various factions and magnate families fighting amongst each other and bringing in the help of foreign powers. Car in particular mentioned that this is not the type of freedom the country needed or wanted.Footnote ⁶⁶ Speaking to his colleagues in the constitutional commission he said, ‘We want to ensure the citizen full and free development, while limiting the intervention of the state into the realm of private or social life to only those necessary elements which influence our general objectives’.Footnote ⁶⁷

Considering their disdain for the liberal order, it is no surprise that the new constitution rejected individualism in favour of a system that concentrated power into the hands of an elite. There were concerns that they would push this too far, and be seen as dictatorial either domestically or by the international community. Makowski’s draft constitution was rejected in 1933 as being too extreme. In particular, his colleagues disapproved of his vision for the senate, which would be available only to a tiny elite and essentially self-selecting. Makowski compared this to the House of Lords in Great Britain, but in their own cultural environment it was too openly elitist and Sanacja pushed this idea aside. Responding to complaints from opposition politicians that their new constitution meant the formalisation of dictatorship in Poland, Car answered that this could not be true because there was no dictator.Footnote ⁶⁸ To those who claimed that Piłsudski was a dictator, Car answered that he was merely the country’s ‘moral authority’.Footnote ⁶⁹ Considering the limited role that Piłsudski played, especially as his health was failing after 1930, he can hardly be called a dictator. He was rather the glue holding together the diverse Sanacja group. More than anything Piłsudski provided his followers with their sense of propriety and superiority.

The constitution that became law in 1935 was meant to preserve this ‘moral authority’ into the future beyond the life of Piłsudski, who in fact died a month after it went into effect.Footnote ⁷⁰ So if sovereignty was not derived from the voice of the ‘people’ nor from the figure of Piłsudski, where from did the state derive its right to rule? In January 1934, Car addressed the Sejm answering that the president would ‘embody, personify the sovereignty of the Polish Republic. He and no one else’.Footnote ⁷¹ But who holds the president accountable? The citizens? Neither Car nor Makowski had any intention of allowing for a popular vote for the president, nor did they entertain the possibility of holding the president responsible to parliament. Though some within the BBWR camp proposed such a solution, Car proposed a kind of electoral college and referred to the American example to prove that his idea was not dictatorial. The 1935 constitution theoretically allowed for a popular election, but made it rather unlikely. Presidents were meant to run unopposed. The outgoing president had the prerogative to select a successor (or himself) and only an elite assembly of electors could decide if an opponent would be put forth. But if either the successor or assembly’s choice ran unopposed then it superseded the need for an election. Only in the case when the outgoing president and assembly put up two different candidates could there be a popular election.Footnote ⁷²

This opened the door for criticism that the president could not be held responsible politically, but instead the president’s accountability was metaphysical. Throughout the constitution – and in the discourse surrounding it – authors made reference to ‘moral authority’, either derived from God or the nation.Footnote ⁷³ According to the constitution, the president would only be ‘responsible before God and History’ for his actions.Footnote ⁷⁴ In an earlier draft, Car proposed that the president should take his oath in the Warsaw Cathedral in the presence of bishops, as was done with Poland’s kings of old.Footnote ⁷⁵ The references to monarchy are clear, and some critics took this line of attack. Rather than claiming that Sanacja was attempting to install a dictatorship, a Christian Democratic representative declared they were sneakily creating a monarchical throne, more powerful than any other in Europe.Footnote ⁷⁶ Article 2 of the constitution plainly lays out that in the person of the president ‘the unified and indivisible power of the state is concentrated’.Footnote ⁷⁷ Interpretations of this article – in line with Car’s public statements – claimed that the president was ‘the real bearer of state sovereignty’.Footnote ⁷⁸ The nationalist legal scholar Bohdan Winiarski was even more direct in his criticism when he stated in a parliamentary debate,

This figure was also meant to be unifying. Many Polish members of parliament had lived much of their lives as subjects of as Kaiser Franz Josef, the Habsburg monarch, who managed somewhat successfully to gather loyalty around his person from various nationalities and warring parties. The Sanacja vision of the office of president was in fact quite similar to the ‘national’ monarchs of central and southern Europe. Serbia (and later Yugoslavia), Bulgaria, and Romania all had paternalistic monarchies that were nominally dedicated to the cultivation, nurture and development of their respective nations. Unsurprisingly, Car and Makowski bristled at this comparison citing how their executive would embody the needs of the ‘people’, unlike a distant and aloof king.

In terms of form, 19^th-century national monarchies, with their strong executives, weak parliaments and written constitutions, seem to fit most closely to the Polish authoritarian model. But what is the role of nationalism or national rhetoric in justifying these systems? For the national monarchies in Serbia, Greece or Romania, national rhetoric, if not actually national feeling, was quite important as a foundational element both on the international and domestic stages. The same is certainly true in the Polish case. However, the 1935 constitution is particularly careful not to confuse the ‘Polish nation’ with ‘Polish citizens’, since approximately one-third of Poland’s population at the time identified as non-Polish. Increasingly throughout the 1930s, religious and ethnic minorities faced discrimination, outright oppression, and were generally dissatisfied with the Polish state. Makowski envisioned that Solidarism could solve the problem of nationalism, assuming that all peoples in Poland could be compelled to work for the ‘common good of all citizens’, as first article of the constitution reads.Footnote ⁸⁰ But not everyone was convinced. A Ukrainian representative stated flatly that this constitution ‘treats the Polish state as strictly national’.Footnote ⁸¹ This position is hard to defend based on the text alone. Given the context in which it was written and the views of its authors, there is no doubt that certain nationalist assumptions played a role, but nationalism was not deployed as a justifying ideology. Article seven lays out clearly that every citizen’s worth shall be measured by their contribution to the state alone, and ‘neither background, faith, sex nor nationality’ can be a reason for discrimination.Footnote ⁸² Nonetheless, Jewish parliamentarians also expressed their doubts. Zionist Iccak Grünbaum said,

Grünbaum and others envisioned a near future where they would have to go hat in hand begging for the government to protect Jewish rights. And thus far, even though many Jews had high hopes for the Sanacja government’s treatment of Jews, and Pilsudski was rather well-respected among assimilated Polish Jews, there was little to show for it. Parliament removed pre-war anti-Jewish legislation only in May 1931, finally achieving full legal equality for Jews after nearly 13 years of statehood.Footnote ⁸⁴ But this victory coincided with calls from nationalists to limit Jews rights, including those who believed the number of Jews needed to be reduced through forced emigration.Footnote ⁸⁵ Things only looked worse as time went on. After concluding a non-aggression treaty with Nazi Germany in January 1934, Poland officially resigned from its obligations to national and religious tolerance contained in the Minorities Treaty signed in 1919. In spite of the language of equality being written into the new constitution, the actions of the Sanacja regime proved that Ukrainians, Jews and other minorities were right to be skeptical.

That said, judging from the public discussions and the final product, the legitimacy of the authoritarian state did not rest on the Polish nation. Rather than nationalism, the constitution’s authors more openly justified their right to rule through elitism.Footnote ⁸⁶ Makowski’s publication Nowe Państwo issued a pamphlet in 1932 entitled On the new constitution that provides a window into what this elitism meant. The essay offers a history of governing systems and how they have been legitimated. Whether by the grace of God or by election, rulers have always been few and somewhat disconnected from their subjects. But that has not made them illegitimate rulers. The author writes,

The argument here is circular. The author tells us tautologically that all rulers are legitimate because they rule. And in that sense it is a perfect argument for an authoritarian. There is no need for either a metaphysical, legal, or rational argument as to why one has the right to power because whoever wields that power has the right to do so. All that is required is a ‘general belief’ that those rulers should be ruling, but there is no expectation that such belief can be tested or measured.

This author’s view represents a distillation of the elitist idea, which is itself circular. Sanacja leaders viewed themselves as morally superior to their opponents and as benevolent – perhaps even ideologically neutral – stewards of the Polish state. Therefore, in the interest of preserving, maintaining and developing Poland, they must remain in a position to rule. The constitution’s eighth article lays out what its authors expected citizens to do: work. The ‘people’ need not worry themselves about the details of what policies are being chosen, but focus instead on labour for the state. The president will rule compassionately, and the only information they need to retain is that this legal structure is indeed legitimate because it is the system of power. This kind of circular argumentation is the same as any system justifying absolutist monarchy, but another key ingredient was Solidarism. The president would foster cooperation around his person and serve as the sovereign. Thus, the neo-monarchist ideal was soldered to Solidarism, ostensibly to avoid further internal conflict.

A month after the constitution came into force, Pilsudski died and so too did the moral authority of Sanacja. Ignacy Mościcki continued to serve as president under the new constitutional authority, though no procedures took place to insert him in that role. Despite the calls for Solidarist social harmony in the 1935 constitution, the last four years of the Polish Second Republic were some of its most turbulent.

4. Coda: justifying the Stalinist Constitution of 1952

Curiously, the arguments for authoritarianism in Poland remained relevant after the Second World War. Car passed away in 1938. Makowski perished in Romania, after evacuating with the government there in 1939. The rest of Sanacja’s leadership was either dead or in exile by 1945. But the establishment of a new system of government showed some continuity.

Poland was among the last countries in the Soviet sphere to establish a new constitution after the war. Its general principles were based on the Soviet 1936 constitution. Much like the Sanacja-era debates, the Sejm was consulted on its content, but not listened to. A select elite of communist party leaders, Bolesław Bierut and Jakub Berman, in particular, had the deciding voice. Bierut also shared the draft constitution several times with Josef Stalin, who made his own additions.Footnote ⁸⁸

By the end of 1951 the work was mostly completed, and the party began the public campaign to educate people on the new order. This was not directed at legitimating communism per se, but rather on ensuring a ‘general belief’ that those in power should be, as Sanacja claimed in 1932.

One of the few lawyers on the communist constitutional commission, Leon Chajn, became the new constitution’s chief promoter. Chajn was a Polish Jew from Warsaw, who escaped the Holocaust in Soviet Bashkiria. Though he was a long-time Communist Party member, his justifications contain surprisingly little Marxist rhetoric and mirror the discussions of the 1930s that questioned Enlightenment legal theory. Chajn wrote, ‘Law is the principle of human conduct, corresponding to the interests of the ruling class, sanctioned by the power of the state, and based on the coercive power of the state’.Footnote ⁸⁹ And for that reason, Chajn questioned the idea that law can represent the will of the people; as he wrote, ‘law cannot be considered the sum of the individual will of the members of that class’.Footnote ⁹⁰ Therefore even in a working-class ruled socialist country, which Poland was transforming into, there can be no expression of the democratic will when formulating new laws.

In January 1952, Chajn penned a front-page editorial in support of the new constitution. Rather than talk of Stalin and Marx, his piece begins by recalling the debate over the 1935 constitution and even more surprisingly, Chajn uses Makowski’s words as justification.Footnote ⁹¹ During a 1934 senate session, a peasant party representative issued the complaint that Sanacja was planning to take power away from 33 million people and give it to one man, the president. To which Makowski replied:

Obviously, Makowski says, power cannot be held in the hands of 33 million people simultaneously, this is simply liberal trickery. He continues,

Makowski, and in turn Chajn, appealed to a cynical realism that rejects democratic politics as merely a naïve fantasy. Of course, voting and representation are not the same thing as wielding executive power. However, it is necessary for both authoritarians to discredit these forms of governing in favour of some higher ‘truth’ they believed in. Chajn writes, ‘Professor Makowski well anticipated that a moment would come when the nation turned away from a state built on lies and will build a different new state based on truth’.Footnote ⁹⁴ And the truth of that moment was Stalinism and the dominance of the Polish United Workers’ Party (PZPR) over all organs of power in the country. In a similar manner to the Sanacja-era constitution, Chajn considered their work to be the ‘legal sanctioning of that which has already been won and achieved’, meaning a people’s republic dedicated to the working class.Footnote ⁹⁵

Both Polish communist and Sanacja elites believed that ‘politics’ was an impediment to higher principles. The one-party state that lasted until 1989 was justified in part based on the same ideals as the pre-war Polish authoritarian state. The legacy that carried through was a technocratic mission to provide for the improvement of Poland and Poles, but without the input of the Poles themselves.