Ill-judged: Poland’s rule-of-law crisis

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Hello and welcome to the Intelligence on Economist Radio. I'm your host, Jason Palmer. Every weekday we provide a fresh perspective on the events shaping your world. Who would dream of starting a traveling circus at the dawn of the 21st century? Nell Gifford would. Our obituary's editor looks back on the life of a woman who thought the circus could be more and better than sad animals and carnival barkers. And plenty of languages associate every noun with a gender, even those for inanimate objects. That doesn't sit well with modern gender sensitivities. Yet a push to strip the gender out of German is messy. The language just isn't suited to sexlessness. But first, In Poland this month, a battle over the rule of law is coming to a head. It carries some uncanny echoes of the country's past.

Poland used to be a communist country, so it is familiar with governments that run the courts.

Matt Steinglass is our Europe correspondent.

And there's this very funny phrase in Poland, lex telephonica, meaning rule by telephone. Basically, in the old days, if you had a court case, some politician or, you know, apparatchik at party central would often call up and tell the court how to rule. And what they're worried about is that that's the kind of thing that we're going to see again in the future.

Those fears are based on what the country's ruling law and justice Party has been up to. Despite its name, it's shown itself to be no fan of judicial independence.

Poland's governing party has been trying to take control of the courts basically since it came into power in 2015. And you can't do that in the EU, because every country in the EU has to have an independent judiciary. So that's a threat to the whole union. And it just keeps pushing things further and further. Gradually. This brings it into conflict with the European Commission and the European Court of Justice, which is. Which are the bodies that govern EU law. The most recent conflict, which is the sharpest conflict that's developed yet, is over a law that would institute a disciplinary chamber in the Supreme Court. Basically, if the Supreme Court took a decision that the government didn't like, then this disciplinary chamber, which the government picks, could suspend judges on the Supreme Court, strike down its decisions, and punish the judges who had voted against it.

It's controlling the judges through a veil of bureaucracy.

Basically, it can punish judges for taking decisions that the government doesn't like, which means judges are more likely to do what the government wants. Poland is already in trouble because of changes that the government has already made in the past. It doesn't pick its judges in a sufficiently independent way. In most countries, you have a sort of a judges association which helps select the people who are going to be appointed to be judges. And then maybe parliament and the government also play a role. The polls say that their system works exactly the same way, which is sort of true, but. But their judges association is now appointed by Parliament, which means that since the governing party controls Parliament, they control who gets appointed as judges. So the EU already has said Poland's judges association is not politically independent. Its judges are not being appointed in a fashion that's sufficiently independent.

And that's already the case, notwithstanding the most recent conflict.

Yes, that conflict comes out of changes that have already been made in the past. And if Poland doesn't do something to restore the independence of the process by which judges are picked in Poland, then it's going to face sharper and sharper consequences under EU law. Eventually, its courts are not going to be seen as being trustworthy parts of the EU legal system, which means that other countries courts might disregard decisions that are made by Polish judges. If a company lost a case in Poland, it could say, well, you know, the Polish judges aren't trustworthy. It can take that case to another country's courts. It might messes up the entire system of EU Integrity, and eventually it's going to effectively push Poland out of the EU system.

So where are things in terms of the conflict with the eu? Is it just sort of wagging its finger at the moment, or are there legal proceedings?

The EU has started to take steps that have real consequences. The crisis right now is a law that the lower house of the Polish Parliament passed on December 20, which would institute that disciplinary chamber and so forth. The European Commission has reacted very quickly. They went to the European Court of Justice, which is the top authority on EU law, and they asked for what's called an interim decision, which means it have immediate effect even without having to judge the merits of the case. They asked the European Court of Justice to suspend that disciplinary committee in the Polish Supreme Court. If the European Court of Justice does that quickly, which it could, then it means that the decisions that are taken by that disciplinary committee have no effect, and it would effectively be an order to the Polish government to suspend that measure.

And how did the Polish government respond to that?

The European Court of Justice hasn't made a decision yet. Other legal bodies that have told the Polish government recently this law is a problem have. Have not been met with a very positive response. The polls are still saying this is nonsense. You've misunderstood our law. What we're doing is similar to what exists in other European countries. But as I described earlier, there are reasons why the Polish system is actually different and gives the government more control. At the moment, it looks like they've still got their backs up, which is worrying. But there is a history in the past of this government backing away if the European Court of Justice shows enough spine. So it's possible that we could see a compromise.

And meanwhile, what about the country's judges whose independence has been under threat for all this time?

The country's judges are resisting, and I think the government might have been surprised by that. They have independent organizations of their own, besides the official national one. Those ones have organized marches. They've gotten support from judges across the EU who've demonstrated in their own countries and come to Warsaw to help with the demonstrations. And they've built a kind of a public relations campaign that has gotten a lot of support among the Polish people. And that was, I think, one of the big worries on the part of judges in Poland. It was a question of whether average people would understand what was at stake here and whether average people care enough about the rule of law to actually turn out and support it. And it looks like at this point, they actually do.

But do you get the sense that since the Law and Justice Party has been trying to do this since it got into power, that it'll just be some other bureaucratic end run next time around, that this kind of thing will continue.

The Law and Justice Party has form in working out very complicated ways to evade constitutional restrictions, and they've taken their cues from the Hungarian government, which has been doing this sort of thing since 2002. 10 what they often do is pick bits and pieces from the governing systems of other democracies and rearrange them in ways that make them amenable to party control. So you basically take a democracy and turn it into an effective autocracy, but it still looks like a democracy from the outside. One political scientist, Kimlayn Shepola, describes this as the Frankenstein strategy. Sort of take bits and pieces from here and there and you turn it into a monster.

But if the Polish people have seen through the latest judiciary ruse anyway, are they starting to see through the rest of this? Is there any hope of a genuine popular response to that whole ethos?

Most polls still support the Law and Justice Party. They get about perhaps a little bit more than 50% of the vote. There's a substantial segment of the population that is willing to stand up for constitutional restraints. That doesn't mean it's a majority. It might, however, be enough to at least slow down or frustrate the party's efforts to completely take over the judiciary system. And that could keep democracy in Poland strong enough that in the future it'll still be possible for other parties to win an election.

So what's the state of the law now?

The law has passed the lower house of the Polish Parliament. It still has to be approved by the Senate. The government does not have a majority in the Senate and the opposition is likely to vote against it, but they can't reject it. All they can do is send it back to the lower house for amendments. At that point, the lower house might be able to push it through. They can delay it, but they can't knock it out.

And what's your guess as to whether or not it will eventually get squeezed through?

I think there's no way to know what's actually going to happen here. But this is the moment when Poland's crisis of rule of law has come to a head. And this is the month when that question is being decided. So right now is the moment when they need to hear from the eu, they need to hear from other countries, they need to hear from people in general that they care about the rule of law, because this isn't just a problem for Poland, this is a risk to the European Union itself.

Matt, thank you very much for your time.

Thanks, Jason.

I think most of us have childhood memories of the circus as perhaps a rather overwhelming and slightly depressing place.

Anne Rowe, our obituary's editor, has been writing about an entertainment pioneer.

I certainly remember going to enormous big tops with very loud music, the clowns tumbling about and never being very funny. The animal's always looking rather dejected. The wonderful thing about Nell Gifford was that she invented or restored or rediscovered a completely different sort of circus. When you came into one of Nell Gifford's circuses, first of all, you were greeted by a wonderful fleet of burgundy colored wagons, all shiny and hand painted. And then you progress towards the tent, which was only a small one, only 30ft across. You go inside, there'd be a sawdust ring, you'd sit round it on fairly simple benches, and then the performers would come in. And so you would get a fabulous acrobatic troupe, knife throwers who took your breath away. And everything about this circus was handmade, the costumes, the sets, everything was done with love and everything was done as a company. And at the end, the audience too would be invited to come into the middle of the ring and dance. So it was a complete community event of the sort that English villagers haven't really seen for a long time. Nell Gifford had had a dream of the circus. Her mother was very bohemian and liked to dress the children up as little troubadours. She was dreaming as a child of traveling in a gypsy caravan under the stars and dressing up and performing in a candy striped tent. She went to Oxford and read English and you would think that that would put the dreams of circus out of her head. In fact, in the intervals between university and in her gap year, she went off and did odd jobs for circuses wherever she could find them, which were rolling up rubber mats and dealing with elephant pee and raking sawdust, any sort of job, just so she could be in the environs of a circus. She did that for some time. Then she went to a circus in Germany, Circus Round Kalli, which impressed her a good deal because it was so elegant. She began to see there could be another sort of circus which was beautiful, but which could also be fairly small scale because she liked the idea of it being a little unit. So the idea gradually came together in her mind. She got married, and with her husband they gradually formed the idea that they would set up a circus. Gradually they found first a tent secondhand, and then they Found an old wagon in a hedge and they renovated that. They were spending an awful lot of money at this time. They didn't have anywhere to live because they got thrown out of their cottage. They couldn't pay the rent. They ran up debts of £100,000. And all the time, too, they were trying to find performers for their circus. So that was a matter of going round riding stables, hearing about strong men who might turn up somewhere, or acrobats who might turn up somewhere else. So slowly, she got a little company together. But everything changed when she got a booking to appear at the Helm Wife Festival, which is a huge literary event which happens every summer on the Welsh borders, an extremely big event in the English social summer calendar. And that was the real making of Gifford Circus, which has now become an absolute institution all around the southwestern counties of England and in London, there are performances, too. There were certainly other reasons why she began the circus other than that she had fallen in love with the magic of it. But it did have a much deeper meaning for her, because the family had undergone a tremendous tragedy. In 1991, her mother, Charlotte, had a fall from a horse, which was so bad that she was permanently brain damaged and had to be looked after in residential care from then on for the rest of her life. But the whole family was devastated by this. Charlotte, the mother, had been the pillar of the place. She had brought the children up in such a wonderfully artistic, bohemian way. They had all, in a way, drawn their creative spirit from her. They all felt they had to build some new world for themselves and, in a way, find another family to replace the one that their mother had built. And Nell's family was the circus, because a circus she found, and in fact many other people find, is, in fact, in itself a family unit. When she and her husband were trying to wrestle with a name for it, they went through many, many different ones. But in the end, it obviously had to be Giffords, because they were starting up a new family. She was still very young. She was only about 40 when she was diagnosed with breast cancer. And she was pretty determined that it wouldn't get her down. It wouldn't stop her doing anything that she did in the circus. So she did have to endure a lot of chemotherapy, radiotherapy, and all the things one has to do. But somehow she couldn't stop either performing or, in fact, finding other ways of being creative. She went quite deeply into painting and drawing, and when she was sitting at the hospital, she would draw the other patients. And when she got back to the circus, she would paint the scenes at the circus so she could never stop thinking about it. And as late as last summer, she was still appearing in the ring and dressing in a white robe, riding on a wonderful white horse, because riding horses had always been one of her major reasons for loving the circus. So that was her apotheosis, almost her appearance in the ring in these wonderful robes, on this white horse, just showing that her love of circus could overcome everything, and it would overcome death in its way.

Ann Rowe on Nell Gifford, who's died aged 46. Nouns in the English language don't have a gender as they do in many other languages, indicated by changing a word spelling or by inserting a feminine or masculine article. In Italian, for example, il pyjama means pajamas and is masculine, whereas la pantofola means slipper and is feminine. Simple enough if you memorize them. But the rules governing gender in other languages can be tricky to get your head around.

Mark Twain once quipped in German, a young lady has no sex while a term Barnard has.

Tom Nuttall is the Economist's Berlin bureau chief.

As I can personally testify, German is not the easiest language to learn. There are three genders, four cases, extremely long and complicated compound nouns, as Twain pointed out, endless rules that you have to learn, and then endless exceptions to all of those rules.

But what Mr.

Twain was railing against was specifically this notion of gender. Why is that so tricky?

In Germany, there are three genders, and they do not, in most cases, appear to correspond to any particular quality of the object that they describe. And in fact, some cases they seem to go against it. So, for example, the German word for girl, medschen, doesn't take a feminine article, but rather a neuter one. It's Das Medschen. There are countless other comparable examples. So when you're learning the language, really all that you can do is just learn every single one, one by one. There are very few rules to follow. You now have all sorts of contemporary sensitivities around gender which extend way beyond the concerns over male female equality that people in Germany have been relating to language for decades. This is now on things like whether the language is appropriate for transgender people, for intersex people, people sitting in various places along the gender spectrum. There are several other problems in the German language that mean that the language is particularly susceptible to these sorts of difficulties. So, for example, job titles typically are gendered. When Helmut Kohl was running Germany, he was the Bundeskancellor, but now Angela Merkel is in charge. She's the Bundeskanzeller in generally sort of institutions, organizations come up with very complicated formulations to deal with these sorts of problems. But some people don't find them adequate. And so they're now calling for slightly more radical solutions.

What is the proposed way to address this inadequacy?

One way to get around the, as it were, genderisation of the language is simply to use a slightly clunky formulation of taking the male and the female form. So, for example, if I get a press circular here from a ministry, it might begin liebe, colleginen und collegen. That's the word for colleague. The plural form can take a masculine or a feminine form. They use a slightly clunky formulation of using both. Whereas in English you would just say dear colleagues. Now, one proposed solution to that is simply to insert a bit of punctuation into the middle of the word. You would have colleagues asterix inen. Other people have come up with different ideas. There's an underscore the city of Lubeck has proposed, which is to have a colon. Germany's culture wars spotted that this is a very sort of ripe territory. So you have on the one hand kind of third gender theorists who are coming up with all sorts of ideas for how to reinvent the language, and then on the other hand, traditionalists who say that this is an appalling piece of violence that's being perpetrated on the German language and it must be resisted to their last breath.

But I mean, we see lots of.

Wrestling with gender and language issues elsewhere in the world. Is there something particular to German that makes this a particularly thorny problem?

You see these sorts of disputes in other languages. Of course, in America, where Latinos and Latinas become Latinxs, French has had comparable arguments where obviously nouns are gendered as well. But I think Germany is particularly prone to these sorts of disputes. Back in 2017, Germany's Constitutional Court decreed that third gender or intersex people needed to be recognised in official law. And the Official Council on Orthography was then asked to come up with a ruling on whether the gender asterisk was the best way to reflect that ruling in the German language. They took several months to think about it. They had 40 strong expert panel and in the end they decided that they weren't going to offer any sort of ruling at all, because it shouldn't be for a council like them to issue top down rulings. The battle just rages on. But in the meantime, what you do see is a steady creep of institutions like the city of Lubeck, like the University of Vienna, various other bodies who are instigating their own practices, causing a pretty substantial stir as they do so. So all I could really say is watch this space.

Tom, thank you very much for joining us. That's all for this episode of the Intelligence. If you like us, give us a rating on Apple podcasts and you can subscribe to the economist@exterator.com radio. Offer 12 issues for $12 or 12 pounds. See you back here on Monday.