Sovereign presidential lawfare in the populist context
Sovereign presidential lawfare in the populist context
Journal: Legal Ethics. Legal Ethics is an international and interdisciplinary journal devoted to the field of legal ethics, and provides an intellectual meeting ground for academic lawyers, practitioners and policy-makers to debate developments shaping the ethics of law and its practice at the micro and macro levels. More on the Journal can be found here.
Date of Publication: June 24, 2026.
Authors: Michał Stambulski. Stambulski is an Assistant Professor in Legal Theory at the Erasmus School of Law, Erasmus University Rotterdam, Rotterdam, Netherlands, and a visiting professor at West University in Timisoara, Romania, and Oñati International Institute of Sociology of Law, Spain. More on Stambulski can be found here.
The article can be found here, and a PDF of the article can be found here.
Photo by Aliaksandra Yadzeshka on Unsplash.
Abstract: This article develops the concept of “sovereign presidential lawfare” through a case study of the 2015–2024 Kamiński and Wąsik case in Poland. It reconstructs how President Andrzej Duda’s use of the pardon power, through a pre-conviction “individual abolition” in 2015, became a tool for restructuring relations between the executive and the judiciary. The analysis situates the case within a broader conflict between a normativist understanding of constitutional authority, advanced by the Supreme Court and ordinary courts, and a decisionist understanding, endorsed by the President and a politically captured Constitutional Court. Drawing on contemporary readings of Carl Schmitt, the article argues that pardon powers can be repurposed to suspend judicial processes, generate de facto immunities, and reconfigure accountability without formal constitutional amendment.
The article makes three contributions. First, it identifies a subtype of presidential lawfare distinct from self-protective criminal lawfare. Second, it demonstrates how constitutionally grounded prerogatives, especially those traditionally understood as exceptional or symbolic, can operate as instruments of structural constitutional change. Third, it conceptualises this dynamic as a shift from commissarial to sovereign uses of executive power.
Why ISSE Is Recommending This Article: ISSE is recommending this article because it offers an important theoretical framework for understanding how constitutional systems can be transformed through the ordinary exercise of executive authority rather than through overt constitutional rupture. By connecting presidential prerogatives, Carl Schmitt's theory of sovereignty, and contemporary debates over democratic backsliding, the article advances an important contribution to the study of how exceptional executive powers can gradually reshape constitutional governance while remaining formally grounded in law.
