Poland Shows that Restoring Democracy Takes More than an Election

In the European Union (EU), glimmers of democratic renewal have pierced a somber decade of democratic erosion. Since the illiberal Law and Justice (PiS) government in Poland was voted out of office in October 2023, scholars and policymakers have been grappling with how to restore liberal democracy and what role the EU should play.

After PiS came to power in 2015, it made systemic and often unconstitutional changes to Poland’s political edifice by undermining judicial independence, coopting the media, and dismantling the rule of law. The pro-democracy Civic Coalition’s electoral victory in October 2023 was therefore celebrated as a rare exemplar of democratic restoration in a context where liberal democracy remains threatened in Europe and around the world.

But undoing the damage of years of seeping autocratization and “democratic backsliding” is proving to be much harder than simply winning an election. In a new paper, we illuminate the promises and perils of what we call democratic “frontsliding”—the piecemeal restoration of liberal democratic institutions and practices after a period of democratic backsliding. Unlike other pathways to democratization that build democracy from scratch—sweeping revolutions, for example, that trigger the sudden collapse of an autocratic state—democratic frontsliding proceeds incrementally as a patchworked process that begins (but hardly ends) with electoral change.

Do not be misled by the “sliding” metaphor: the case of Poland shows that resuscitating democracy is very hard work. Indeed, Poland should serve as a warning to governments and international organizations that assume—wrongly—that democracy will automatically follow the election of a pro-democracy leader. Such a misguided assumption can prompt policymakers to embrace a hands-off approach to supporting democratic restoration, one that the EU has largely adopted in Poland. After the Civic Coalition promised to restore democracy, the head of the EU’s executive body—European Commission President Ursula von der Leyen—quickly declared victory, lauding “the ongoing restoration of the rule of law in Poland.” In turn, the Commission unblocked €137 billion in funds that it had suspended from Poland due to rule of law concerns—hoping that promises of democratic restoration would quickly turn into reality.

But the story was far from over.

The Problem of Autocratic Enclaves

What European policymakers in Brussels and member state capitals failed to grasp in late 2023 is a pernicious problem that faces all governments and international organizations committed to restoring liberal democracy after backsliding. Poland reveals how even when an election puts an end to autocratization, illiberal laws often remain on the books and power players supportive of illiberal policies can remain entrenched in state institutions. A democratic coalition that wins an election will only seize control of parts of a fragmented state replete with illiberal elites. And if unaddressed, these “autocratic enclaves” can obstruct and even derail democratic frontsliding.

For instance, Poland’s supreme judicial arbiter of constitutional disputes—the so-called “Constitutional Tribunal,” whose membership is packed with PiS loyalists and several unlawful appointees—has repeatedly blocked reforms by the Civic Coalition to restore judicial independence and even launched a bogus criminal investigation against the government. Similarly, PiS-aligned President Andrzej Duda, who remained in his post until recently, used his constitutional veto power to block legislation to restore the rule of law, an obstructionist policy that his successor, PiS-loyalist Karol Nawrocki, promised to continue after narrowly winning the 2025 presidential election.

The prospect of democratic restoration being derailed in Poland is real and arguably increasing. Illiberal policymakers remain in post throughout the Polish state, safeguarding irregular appointees and illiberal laws and weaponizing otherwise legitimate constitutional checks on the government in their obstruction. To maintain democratic momentum, a reformist government like Poland’s may need to defy recalcitrant officials or break laws that inhibit democratizing reforms. International organizations like the EU need to find ways to monitor, guide, and support these efforts. Yet, since rule-breaking and defiance are the hallmarks of autocratization, can such actions ever be justified in the name of democratization?

The Case for Restorative Disobedience

When a government committed to restoring liberal democracy is blocked from using ordinary legislative means to fulfill this goal, transgressive actions may be necessary to dismantle autocratic enclaves. We call these transgressive actions “restorative disobedience,” which could include ignoring the decisions of officials who abuse constitutional prerogatives to obstruct democratizing reforms, defying corrupted institutions and replacing partisan appointees to restore their independence, and disapplying or breaking national laws that either propelled autocratization or stand in the way of democratization.

Yet, restorative disobedience must fall within strict normative parameters to be justifiable and prevent abuses. Not unlike cases of civil disobedience by citizens, reformist governments seeking to restore democracy should be demonstrably conscientious by acting in line with the liberal democratic spirit of the law and justifying restorative disobedience with reference to public justice rather than self-interest. For instance, any rule-breaking or reforms to remove and replace illiberal appointees need to be designed as institutional hand-tying measures that make the self-interested abuse of public power costly or unlikely. This could include incorporating feedback from external bodies like the European Commission, European Court of Justice (ECJ), and Venice Commission when designing reforms, or replacing partisan appointees with demonstrably independent civil servants who can hold their own appointers accountable.

Restorative disobedience should also be civil, meaning that governments should use nonviolent means and publicize and justify their actions by appealing to citizens as moral agents. In the EU, this communicative requirement extends to EU institutions and member states, since restorative disobedience should aim to restore mutual trust and a state’s membership status as a liberal democracy.

Finally, restorative disobedience should also be proportionate. Any transgressive action that a government takes needs to have a legitimate aim and be demonstrably necessary, targeted, and temporally limited. This means that restorative disobedience must be sensitive to the degree of legitimate authority possessed by the actors and laws being defied. For example, far-reaching noncompliance with the Polish “Constitutional Tribunal” and efforts to replace irregular judicial appointees is justified because the legitimacy of much of the judiciary was lost when PiS undermined its independence. By contrast, when faced with a democratically elected president who abuses legitimate constitutional checks to block essential democratic reforms, a proportionate response might just entail a one-time act of disobedience in order to neutralize the obstructive act.

The Role of the European Union

Should the EU itself incentivize democratic frontsliding and restorative disobedience by member governments in order to advance democracy? In a word—yes. As we elaborate in our paper, the EU’s own democratic pedigree hinges on the democratic credentials of its members, and the EU treaties are clear that respect for liberal democracy is a prerequisite for membership. Restoring democracy is not only a responsibility for governments like Poland’s, but also a responsibility of the EU itself.

There are three things the EU can and should do to support member governments’ efforts to restore liberal democracy. To begin, EU law legally mandates the disapplication of illiberal rules and defiance of autocratic enclaves in order to restore democracy. The ECJ has found that governments bear a duty of non-regression from the values of democracy, the rule of law, and fundamental rights, stipulated in Article 2 of the Treaty on European Union (TEU). ECJ rulings thus require governments to disapply and remove national provisions corrosive to liberal democracy, and the court may soon expand the legal basis for member governments to replace irregularly appointed judges to restore judicial independence.

Next, the EU can provide incentives for restorative disobedience by making EU funds contingent on restoring the rule of law. The EU created such an incentive when it suspended €137 billion to Poland using three separate legal instruments—a massive sum equivalent to 16 percent of the country’s GDP. Indeed, the PiS government’s plummeting approval rating before the 2023 parliamentary election occurred as 61 percent of voters blamed it for jeopardizing EU funds. Funding conditionality also enables the EU to specify where reforms are most needed, complementing the targeted nature of restorative disobedience.

Finally, the EU can activate an institutional forum to support the communicative, trust-rebuilding function required for restorative disobedience: the Article 7 TEU procedure, a dialogue-based forum for EU member states and institutions to discuss breaches by a member state of Article 2 TEU and the prospect of suspending membership rights. The procedure certifies the exceptional situation confronting a reformist government, thereby legitimating its turn to extraordinary means to restore liberal democracy. Reciprocal, good-faith engagement under Article 7 enables a reformist government to restore trust with fellow member states and EU institutions by distinguishing itself from the intransigence of its predecessor.

The Perils of Celebrating Early

Given all the EU tools to support democratic restoration, Brussels’ hands-off approach has arguably proven to be a dereliction of its duty to defend and restore democracy within the bloc. When the Commission decided in 2024 to unfreeze EU funds to Poland, it gave up a key source of leverage well before democracy had been restored. By banking exclusively on the goodwill of Poland’s democratic government, the EU conflated promises of reform for the hard work necessary to turn promises into reality and underestimated the durability of illiberal actors and policies. As reforms stall but EU funds continue to flow, it is now clear that the EU’s premature celebration of the 2023 Polish election undermined its credibility as a democracy enforcer, especially with respect to illiberal member governments like Hungary’s.

Arguably, the EU also inadvertently undermined the Civic Coalition’s efforts to restore liberal democracy. For instance, the continued suspension of EU funds absent the full restoration of the rule of law would have legitimated the Coalition’s extraordinary use of restorative disobedience—such as its repeated defiance of the Constitutional Tribunal’s rulings and efforts to replace irregularly appointed judges. In this way, a more active EU stance could have possibly neutralized some of PiS’ criticisms in the leadup to the 2025 presidential election—namely its allegation that the Coalition’s reforms are as needless as they are illegal. Absent this supranational pressure, legal mandate, and institutional support, the Polish government has struggled mightily to justify its actions.

In the end, the EU has one forceful resource left to sustain the prospect of democratic frontsliding in Poland: the legal mandate charted by the ECJ to support far-reaching restorative reforms, including restorative disobedience. This is heartening, because governments committed to the arduous task of restoring liberal democracy need all the guidance and support they can get.

Yet in our eyes, the major lesson from Poland is that democracy does not simply return once an illiberal government is voted out of office. Restoring a resilient liberal democracy—one that will prove less vulnerable to future decay—is a difficult and lengthy process, one that requires a coordinated effort from national policymakers, international organizations, and citizens alike.

Christophe Hillion is professor of European law at the University of Oslo Faculty of Law and at the College of Europe. He is co-Coordinator of the ENROL Project, “Enforcing the Rule of Law: What can the European Union do to prevent rule-of-law deterioration from within?” at the ARENA Centre for European Studies and Centre for European Law at the University of Oslo.

Tommaso Pavone is assistant professor of European politics in the Department of Political Science at the University of Toronto, where he is director of the Centre for the Study of France and the Francophone World (CEFMF), an associate graduate faculty member of the Centre for European and Eurasian Studies (CEES), and senior researcher in the ENROL Project at ARENA at the University of Oslo.

Antoinette Scherz is associate professor of practical philosophy at Stockholm University and senior researcher in the ENROL Project at ARENA at the University of Oslo. She also serves as a research committee member for the Stockholm Center on Global Governance (SCGG), where she leads the theme “enhancing global governance.”

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