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Between 2015 and 2023 the Law and Justice government significantly altered the composition of the Polish Constitutional Court, the Supreme Court and the National Council of Judiciary. It has also expanded the power of the executive branch in relation to the courts. This process – which the majority of scholars and legal practitioners saw as a period of deterioration of the rule of law – also had a transitional justice dimension. In this chapter, I claim that the decline of Polish liberal constitutionalism was possible because the Law and Justice party managed to create an alternative constitutional vision – a counter-constitution, to borrow the term from Kim Lane Scheppele – the cornerstone of which was the belief in ‘legal impossibilism’. ‘Legal impossiblism’ was often understood to refer to strict constitutional constraints supposedly preventing the parliamentary majority from introducing crucial reforms. The analysis of the Polish constitutional framework demonstrates that, in the transitional justice domain, ‘legal impossibilism’ perceived this way is a myth. However, I argue that the previous government perceived ‘legal impossibilism’ differently: as restraints upon a radical shake-up in political, social and economic hierarchies. For the Law and Justice party, without such a change the democratic transformation remained incomplete.
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