1It is impossible to change a regime without “making” law. Redefining the limits of powers and the relationships between them, shaping new political roles, defining the nature of legitimate political players and the boundaries within which they may operate and organising elections are all tasks frequently observed in any democratisation process. To be successfully completed all require certain actions involving the law to be undertaken. Making law means first, upstream, conducting a codification process – in other words, enacting rules which have authority : declaring the Constitution of the fallen regime invalid, adopting a new constitutional text, enacting an electoral law and a law on political parties are all frequent legal acts. However, downstream, making law also involves actively using these rules and thus, for the political actors involved, participating “in the process of the construction of legality”. 
2It is not difficult to apprehend the major challenge which both the codification and the reception of the law represent for those involved in a democratisation process, whether they are actors in that process or simple observers. As far as the production of law is concerned, the appointment of actors qualified for the task, the (often tight) schedule according to which they must work, the extent of their powers and their degree of legitimacy are among the main questions which relevant stakeholders are forced to consider, and to which they must respond quickly and in a volatile political climate. When it comes to the use of law by the stakeholders concerned, this challenge is no less complex. For example, any individual who intends to stand for election must understand whether he or she is entitled to do so ; and anybody wishing to found a political party must determine whether they and their colleagues have sufficient political and material resources to satisfy legal requirements. In view of the fact that “codifying a practice, taking the trouble to enshrine it in a text and making it law ultimately leads to the authorisation of everything which is not expressly forbidden”,  using the law also involves individuals changing their behaviour and even, in certain cases, circumventing or eroding the law.
3One thing is clear : both the codification of regime change and its effects (less in terms of how effective the new law proves to be and more in terms of its social and political effects) have raised significant academic questions. And yet, one cannot help but notice the relatively small number of publications, among the vast body of literature on transitions to democracy, which make a serious attempt to deal with this issue. Beyond the works produced on reforms of the justice system  or on the specifically legal aspects of “transitional justice”, it is constitutional processes which have traditionally inspired the most literature. Several authors within the institutional design tradition view the adoption of a democratic constitution (and consequently an electoral law) as the indicator par excellence that the democratisation process is moving forward.  Rarely studied in isolation, the law is viewed more as a yardstick than a subject of research in its own right.  Electoral law is another subject which can be linked to this neo-institutional school of thought. In this field too, a normative perspective prevails over and above a sociological analysis of the laws. Where post-communist Europe is concerned, it is not so much the development of legal standards for elections that is studied as the effects of this law on the structure of the party system. Such analysis is conducted from a traditional perspective often inspired by the seminal works of Maurice Duverger and Douglas W. Rae. 
4In these works the law is presented both as something obvious, and as devoid of all substance. Obvious, in the sense that the content, the meaning and the effects of the law are never viewed as enigmas to be resolved in this literature : the only issue deemed important is that of measuring the effectiveness of the regulation in question. As far as the codification process is concerned, this is studied solely, from a rational choice perspective, through the lens of the calculations made by the key political actors involved : each actor’s independence is taken as a given and rarely questioned. And devoid of any substance as a result of a normative framework which completely overlooks the variety of legal practices which have the potential to affect political life. Researchers focus on electoral law to the detriment of texts which govern, for example, the running of political parties or the funding of political organisations. And, within electoral law, political scientists continually focus on voting systems. Notions of eligibility and constituency size, for example, which have sparked significant debate and extensive political manoeuvring, are almost entirely neglected, along with the practical effects which these choices have inevitably produced within the context of electoral competition.
5This article aims to contribute to the political sociology of “political law” in the context of regime change.  It tackles both the sociology of law and that of “critical conjunctures”.  In so doing so, I hope to avoid the methodological exceptionalism which jeopardises both analysis of the law  and of political crises. 
6Political science has recently been inundated by socio-legal approaches to politics – encouraging academics to characterise this trend as “politics apprehended through law”  rather than law apprehended “through politics”.  Whilst the “law of political competition” has aroused only feeble interest, apart from within a socio-historical perspective, it has given rise to a number of innovative works, which together provide the broad brushstrokes of a research programme which has yet to be completed.  There is no doubt that analysis of the codification of the political game would benefit greatly from further attention, in view of the fact that law is primarily studied “downstream”, as a resource/constraint of the political game, rather than “upstream” or prior to its production.  This analysis of codification could also be extended to the study of the legal formalisation of political organisations but also, more systematically, to an analysis of the way in which the financing of political life is regulated.  In addition, the concept of “political use” of the law is too often limited to the “use” of law “already in place”. I believe that analysing the processes which precede and follow the adoption of a legal text with the same level of detail and as part of the same study can prove hugely beneficial. Nevertheless, on certain specific points, these works make it possible to shed new light on the political professionalisation process or that which defines the rules of the political game :  here, the law becomes a “revealer, a privileged indicator of broader socio-political phenomena”. 
7How and on what basis is electoral law produced in a context of political volatility ? How, once produced, does this law give rise to certain political uses which themselves produce paradoxical effects ? The unique nature of the political context, the electoral law in question and the unexpected outcome of the vote mean that Poland’s June 1989 elections offer a case particularly suited to answering these questions.
8Organised in accordance with the Round Table Agreements,  these elections – sometimes called “founding elections” insofar as the opposition, embodied by the Solidarity union, emerged victorious against the expectations of the key players and commentators of the time – were not initially perceived as elections of regime change. In fact, quite the opposite was true.  The communist negotiators involved neither planned for nor predicted this change. And neither, incidentally, did the opposition. As those in power saw it, the aim of the vote was to co-opt a party from the so-called democratic opposition in order to share the political cost of the economic reforms which General Jaruzelski’s people were preparing to enact, in a country crippled by debt. By agreeing to participate in the elections, the opposition’s spokespeople obtained the legal recognition of their union, which had been banned and operated underground since a state of war was declared on 13 December 1981. According to those in power, the urgency of the situation required the implementation of a form of liberalisation process, involving the construction of socialist “pluralism”. The unique nature of the semi-democratic electoral law echoed that of the context : only some of the MP mandates (35%) were “open” to competition, whilst the majority of seats (65%) remained reserved for candidates who were members of official political organisations. The senatorial election was, however, organised on the basis of open competition, with no mandates allocated to the Communist Party or its allies prior to the contest.  Combining traditional elements of electoral law under the communist regime with new, innovative features, the unique nature of the electoral law adopted by the Sejm on 7 April 1989,  pursuant to the Round Table Agreements, served to further complicate the situation. The unexpected outcome of the vote of 4 June saw Solidarity, represented in the campaign by an ad hoc organisation known as the Civic Committee (and other similar local bodies), would subsequently allow the political process to gather pace – a process which, over the course of the summer, would take on the form of regime change. 
9By analysing both the legal codification stage of the election and the political uses to which this ad hoc law gave rise over the course of the election campaign,  this article seeks to offer a new account of the June elections, which have already been the subject of extensive discussion. The aim here is to understand how electoral law was initially as much an issue as it was a tool in the Round Table negotiations, then how it later provided considerable support to the political strategies whose results, as we will later see, made a decisive contribution to the outcome of the vote. 
10I will first demonstrate how, far from being the result of social mobilisation or demands from the “democratic opposition”, the 1989 elections were, first and foremost, part of a crisis resolution policy implemented on the initiative of the communist government. The Round Table debates culminated in the adoption of a groundbreaking piece of electoral legislation, providing for elections which were half way between a fixed and open contest ; elections which were to save the regime from possible collapse. The electoral law was the fruit of ad hoc bargaining : drawn up in an emergency and intended as a provisional text, its content translates the uncertainty in which it was produced.
11I will then proceed to analyse the ways in which the election’s key players interpreted and partially strayed from the initial objectives of certain legal articles. In doing so, and in a climate of great uncertainty, these key players helped to work themselves free from the shackles of the Round Table compromise. This article will examine the ways in which the electoral law was used by both those in power and by Solidarity in order to understand a counter-intuitive result ; namely the bitterly intense competition among those in power and the absence of competition among Solidarity’s ranks – a contrast which would prove decisive in radically altering the meaning of the election in the two camps. We shall see how these developments contributed both to Solidarity’s election success and to the unprecedented difficulties encountered by the party in power.
12Moreover, analysing these elections as a critical conjuncture allows us to take account of the contingencies specific to the context in which they took place. It also allows us to take stock of the unpredictable nature of the results, of the shock – and sometimes emotion – and to describe their social and political impact.  It entails breaking the event down into sequences relevant to the actors involved at the time (the pre-campaign period, the campaign and the period immediately thereafter) and analysing the changes in the meanings which these actors attached to the event as it unfolded. Standing back and critically examining the dominant interpretation, which formed gradually in the aftermath of the election, thus involves opening the event’s “black box” and re-writing the history of the election campaign.  It involves casting aside both the possible causes (prior to the campaign) and effects of the event (used to construct the dominant interpretation) in favour of an examination of what happened and what was at stake during the event itself.  Particular attention will be given to the meanings attached to the event by its various protagonists, in particular the candidates and campaign teams of Solidarity and those in power. Only in this way will it be possible to understand how elections designed by the communist reformists in power as a project to co-opt the opposition, and one tacitly accepted by that opposition, ultimately saw the regime plunged into crisis – a crisis which led, a few weeks later, to the appointment of a prime minister from the opposition. In short, only in this way will it be possible to understand how an operation designed to save the communist regime became the instrument of its downfall. 
Codifying an election unlike any other. From a contest which excludes all confrontation…
13The elections were organised at the end of the Polish Round Table, a sequence of negotiations held between those of the ruling elite in favour of reform and the Solidarity leaders (5 February to 5 April 1989).  Far from being set up to “change the regime”, the Round Table was initially a crisis resolution strategy developed on the initiative of those in power. By “opening up” the regime in a steady, controlled fashion, leaders aimed to strengthen the socialist government and consolidate the Party’s hold over the cogs of the political system. Organised with a view to co-opting the opposition by granting Solidarity seats in the Sejm, the June 1989 elections were thus deemed by the government to be semicompetitive. However, whilst the government recognised their partly competitive nature, it was vital that this competition play out without any direct confrontation between the two sides. Over the course of negotiations, the boundaries and key provisions of the electoral law were established in accordance with this “specification”.
14In order to evaluate the electoral law adopted by the Sejm on 7 April 1989, a few days after the conclusion of the Round Table negotiations, it is first useful to describe it in detail. Analysing the key provisions of the law and of the Round Table debates which shaped it is an exercise in the sociology of legal loopholes ; such is the ambiguity and ambivalence of the legal text. This article then seeks to link the content of this composite legal document to the particular characteristics of the negotiating situation, unique to a specific political context.
An ad hoc electoral law
15The electoral law provided for a system impossible to categorise, as demonstrated by the wealth of original expressions coined to describe it : a system of curia, “compartmentalized” elections, “apartheid elections”, and so on. In effect, 65% of the seats in the Sejm were allocated in advance to official political organisations, according to a distribution system also established prior to the contest (see Table 1). Only members of these official organisations were entitled to stand for these seats. The remaining 35% of seats were formally assigned to “non-affiliated” candidates, but it was not explicitly forbidden for members of the official parties to enter the running. It is important to note that Solidarity – which was not mentioned in the legal text – did not in principle nominally hold any monopoly over these seats. As regards the Senate, which was to comprise 100 elected members, all seats were allocated on an individual basis and with no regard to candidates’ affiliation or otherwise to any organisation whatsoever. Finally, a national list of 35 names was also to be presented in the elections to the Sejm. The PZPR and its allies were charged with the task of drawing up this list. Each seat was allocated by absolute majority. Consequently, the vote was effectively transformed into 425 micro-votes in 108 constituencies, each containing between 2 and 5 seats. It must be remembered that in all cases, except for candidates officially appointed by the official organisations mentioned in the electoral law (the Polish Unified Workers’ Party, PZPR, the Peasant Party ZSL, the Democratic Party SD, and the Catholic associations PAX, UChS and PZKS) each candidate was required to collect 3,000 signatures from voters in the constituency where he or she was standing for election.
Pre-election distribution of seats among political organisations and “nonaffiliated” candidates
Pre-election distribution of seats among political organisations and “nonaffiliated” candidates
16In many ways, at first glance the electoral law appears incremental in nature. Indeed, many of the provisions presented as entirely new in fact formed part of a broader history ; that of the “democratisation”  of electoral law under communism. Consequently, the provision which increased the number of possible candidates per seat was not so much a pioneering piece of legislation as it was the manifestation of a long-running trend seeking to introduce an individual element into the electoral contest.  Moreover, this mechanism was based on a socialist perception of political representation which favoured harmony over competition and plebiscitary logic over rivalry.  Voters were called upon to elect several candidates for different types of seat in their constituency : it was thus possible to vote both for a communist candidate (vying for the seat reserved for the Party) and for a Solidarity candidate (running for a seat allocated to “non-affiliated” candidates), and in so doing, demonstrate support for socialist unity. Finally, in no way does the 1989 law call into question the principle according to which the organisations eligible to present candidates were mentioned by name in the legal text (with the notable exception of Solidarity). In failing to alter this aspect of the status quo, the law sanctioned the control which a number of collective entities wielded over political representation.
17The voting system chosen – the one-round majority system (or first-past-the-post) – is an illustration of the way in which the unity demanded was transformed into legal substance. Under the socialist regime, stakeholders believed that elections should be plebiscitary in nature : they had to help foster a more peaceful social order, based on the cooperation of antagonistic social classes and the unity of the people. It was for this reason that majority voting was favoured – proportional voting was viewed as an instrument of political and social differentiation.
18However, it would be overly simplistic to declare this text a mere continuation of the electoral law in force at the time and to reduce its innovative features to a handful of trivial cosmetic changes. Such an interpretation would fail to take account of the nature of the context in which the text was produced. In fact, whilst the text of the electoral law does, in part, contain provisions inherited from its predecessors, the innovative features it contains radically alter its meaning. The law was pieced together from composite original material. Consequently, in removing the cap on the number of candidates per seat, the 1989 electoral law introduced the possibility for unprecedented competition between individuals. Linked to the legal recognition of the term “non-affiliated” (bezpartyjny ), this pioneering feature saw political contests become increasingly personality-led and the concept of political legitimacy was thus redefined. It is undoubtedly true that the splitting up of the election into multiple local votes may not have facilitated the emergence of competition at a national level between “those in power” and “the opposition”, and that it anchored elections in the “tradition” of plebiscitary elections where all political competition was forbidden and where widening participation was the most crucial challenge.  However, in allowing “non-affiliated” individuals – members of the opposition, in their eyes – to enter the running, the authorities tacitly agreed to alter their definition of political representation. The criterion which had to be fulfilled in order to stand as candidate was no longer membership of an official organisation plus legitimate social attributes (a worker, agricultural worker, woman, etc.). Instead article 41, subparagraph 3 of the law made it obligatory for non-affiliated candidates to collect 3,000 signatures from voters registered in the constituency concerned. Furthermore, not all voters were automatically eligible. By introducing these criteria, the law significantly restricted the freedom to stand for election ; indeed it even discouraged potential candidates and thus stymied competition. Effectively, this group-based approach to competition was liable to work solely in favour of those organisations which had sufficient financial resources to contend with the constraints imposed by the law. It meant that opposition political parties or parties seeking to break through into the mainstream, forced to operate illegally and generally lacking both funding and the resources with which to campaign, would potentially become the appointed victims of the electoral system as defined by the Round Table actors. However, with the introduction of this provision, the law officially recognised the right of individuals to launch their own political enterprise, thereby symbolically opening up the political market to potential new players.
The tactical caution of interdependent actors
19Despite the ambiguities it contained, the text was, overall, a nuanced piece of legislation – it was as if the negotiation process had deliberately limited itself. Indeed, the nuanced nature of the text ought to be viewed as the result of the tactical caution demonstrated across the board by those involved in the negotiations. Such caution can be explained by both the characteristics of the situation in which negotiation took place and by the nature of the calculations made by the actors sitting at the negotiating table. Finding themselves in a situation marked by uncertainty and the unpredictability of possible outcomes – a climate which turned opponents into strategic allies  in order to ensure the success of the Round Table – the representatives of both the Communist Party and Solidarity possessed a relative “legitimacy to represent”. As a result of these multiple interdependencies, the negotiations thus became a game “of mixed interests and motives […] [a situation] where factors encouraging cooperation coexisted with those which could spark conflict”. 
20Indeed, an overly superficial view of these negotiators would perceive them as entirely autonomous vis-à-vis the groups which they claimed to represent : political science literature commonly portrays these “elites” as rational actors free to make their own decisions.  However, several sources demonstrate that, on the contrary, the leaders of both the Communist Party and Solidarity were faced with a number of constraints where representation was concerned. For example, government negotiators were obliged both to toe the line adopted during meetings of the highest-level party bodies and to ensure the government maintained a united front. They were also required to take account of the expectations and desires of those organisations allied with the Party. Far from reflecting the relationship between the sun and its satellites, the relationship between the PZPR and its allies more closely resembled a frequently renegotiated “contract” than a straightforward domination.  This was amply illustrated when the volatility of the situation sparked what Dobry terms a “crisis of collusive transactions” within the power set-up. This was particularly visible between the PZPR and the official union (OPZZ), whose relationship hit the rocks in the spring of 1988. Finally, contrary to the claims of the elitist approach which refuses to recognise the density of complex links between the ruling elite of a political organisation and its “grassroots” members, PZPR reformers were forced to take into account the conservative tendencies of the majority of Party members, tendencies revealed by the opinion polls conducted at the instigation of those in power.
21Nor did the Solidarity representatives at the Round Table negotiations enjoy the total autonomy attributed to them by many researchers in their analyses. We might even contend that the relationship between Solidarity’s spokespeople and the rest of the group was even stronger than it was for the Communist Party. This is all the more the case for Solidarity given that it had such a weak basis (it was still illegal, had not firmly established itself, operated in secrecy, and had not held a conference since 1981, etc.) and did not yet really exist other than through its spokespeople. Conversely, these spokespeople were not qualified to speak in the public domain – represented by the negotiating arena – in anything other than their capacity as Solidarity spokespeople : it was Lech Walesa, president of the union, who ultimately decided who would take part in the Round Table. The nature of the Solidarity representatives at the Round Table (the members of the Civic Committee) and the position which they held within the movement must also be borne in mind. On an individual level, the majority of these representatives did not hold any leadership role within the organisation’s apparatus. Often active in underground groups and networks, these figures were only associated with Solidarity as “experts” but they owed the lion’s share of their symbolic capital to the collective history of Solidarity, which had lent them status. As a group, right from its inception the Civic Committee had presented itself as Solidarity’s “expert group”.  And yet, its position was fragile. The Civic Committee was caught in the struggle between several groups aiming to obtain the monopoly on speaking and acting on Solidarity’s behalf.
22But what exactly was Solidarity at the moment the Round Table negotiations began ? More than a “union”, a “social movement”, a “national movement” or an “organisation”, it was, first and foremost, a “brand” – a brand of symbolic capital of which several groups sought ownership. In addition to the Civic Committee, there were also the leaders of the 1988 strikes, too young to have experienced first-hand the events of 1980-1981, and also some of the leaders of the workers’ movement, hostile to any form of compromise with the communist government. Excluded from the Civic Committee and even from the National Executive Commission (Krajowa Komisja Wykonawcza-KKW), created in October 1987, these people came together to form the informal group known as the National Commission Working Group (Grupa Robocza Komisji Krajowej) and contested the right of both KKW leader Lech Walesa and the experts (who they complained lacked the legitimacy of elected officials) to represent Solidarity. Working in partnership with a section of Solidarity’s members and claiming the right to speak on behalf of the union’s “grassroots”, they contested the strategy of compromise with those in power. Furthermore, in general terms, Solidarity leaders were also forced to deal with resistance on the part of local union leaders. These internal disagreements posed a challenge to the union’s negotiators, who quickly became aware of the need to lead the Round Table to a successful conclusion which, as they saw it, was the re-legalisation of the Solidarity movement.
23Finally, the relatively delicate position of Civic Committee members in relation to the Solidarity movement went hand-in-hand with the fragile position of this consolidated network within the democratic opposition. The struggles to claim a monopoly on representation served to polarise the opposition, with one camp in favour of negotiation and another vehemently opposed to all forms of compromise with those in power. Those advocating negotiation included Solidarity’s leaders, the Civic Committee, Catholic intellectual circles and a number of Catholic newspapers. As we have seen, the Civic Committee experts held a dominant position within this camp. Those rejecting compromise were a more diverse group, and notably included – in addition to the faction of Solidarity discussed above – patriotic sectors of the political sphere who, over and above all other reforms, championed the return of full sovereignty to Poland – in other words, a complete break with a communist-style system. Other groups such as the Polish Socialist Party (PPS) and the anarchist movements also rejected the very principle of the Round Table. Remaining outside the closed sphere of the negotiations, they would seek to bring about their failure, thus helping to fuel a sense of solidarity between the representatives of the Civic Committee sitting at the Round Table.
24In addition to the particularities of the two key players in the negotiations, several characteristics of the situation itself must also be taken into account. First, the specific timing of the discussions. The two players differed on the order of priority to be given to matters of debate at the Round Table. Whilst for the government, the elections were a matter of utmost importance, it was the conditions of trade union pluralism which was the item most crucial to Solidarity. This mismatch of priorities meant that the electoral law made a late appearance onto the agenda. Indeed, discussion of the law would only begin on 18 February, during the second meeting of the Round Table devoted to political questions. Discussions on the matter would later gather pace in order to allow time for the decisions taken to be transformed into law : one electoral law had to be drafted for the Sejm, one for the Senate, and the constitution had to be revised. Furthermore, in order for the elections to take place, preferably before the summer, the text had to be tabled in Parliament, debated, examined and adopted in line with the official timetable, whilst contending with practical constraints. It was for this reason that government representatives regularly reminded their negotiating partners of the constraints of the parliamentary calendar in order to justify their eagerness to reach an agreement quickly. This is in addition to the fact that the important points of discussion were the subject of a certain amount of horse-trading between the parties, made possible by the secrecy in which some of the negotiations were shrouded.  The electoral law was one such crucial subject over which the two parties haggled. Solidarity representatives agreed to the government’s draft electoral law, along with the creation of the position of president (destined for General Jaruzelski, as agreed during behind-the-scenes discussion) in exchange for the legalisation of Solidarity and the organisation of entirely free elections in order to form a new Senate.
Communist Party poster, Spring 1989. The emphasis is on the Round Table compromise concerning the organisation of open but confrontation-free elections
Communist Party poster, Spring 1989. The emphasis is on the Round Table compromise concerning the organisation of open but confrontation-free electionsTranslation : “Unity.  Many opinions. One Poland”
25This set of constraints makes it extraordinarily difficult to analyse the positions adopted by the various actors at the negotiating table, and makes it impossible to conclude that these actors made rational calculations based on clear predictions of the effects of adopting these positions – especially given that they were not in a position to anticipate their partner-opponents’ next move. Nevertheless, such constraints encouraged the two players to establish lines of action based on a number of points which they deemed pivotal to their own cause, thus necessarily neglecting other areas of discussion. Thus, for example, PZPR representatives advocated the need for majority voting without meeting with outright opposition from Solidarity, whose priorities were elsewhere. In addition to ideological motives, several practical reasons explain the support of representatives of the Communist Party for retaining a majority voting system in constituencies with several seats. First was the fact that the use of such a system had become common practice, and its effects could be anticipated with a greater degree of certainty than those of a new system. Moreover, the system appeared able to provide a technical solution to the quest for an increasingly personalised electoral contest, in that it triggered competition between individual candidates rather than political parties. The communists believed that their “monkeys”  – in other words, the writers, stars of the small screen and working-class actors, non-affiliated friends of the communists who would run for “nonaffiliated” seats to rival Solidarity candidates – would be more likely to win with majority voting than with a proportional voting system.  Finally, for Marek M. Kaminski, the introduction of proportional voting would undoubtedly have forced the communists to deal with the issue of legalising opposition political parties, a development which they fervently opposed.  The PZPR also proposed the use of a majority voting system for the Senate, believing in the lucky star of party figures to get elected. In so doing, the party even went against the recommendations of a number of experts.  According to party leaders, the electorate would vote overwhelmingly for coalition candidates in small voivodeships (provinces, or administrative districts), whilst Solidarity would prove a threat primarily in the large voivodeships, where the major industrial hubs were located. It was for this reason that negotiations focused to a greater extent on the number of seats per voivodeship than the voting system used, with Solidarity hoping to see more seats allocated to the more densely populated voivodeships.
26For Solidarity, the legalisation of the organisation as a union was the most crucial issue at stake in the negotiation process. During the discussions on the electoral law, Solidarity attempted to pre-empt its electoral gains so as to compensate for the likely cost attached to its promised integration into the system – namely a loss of legitimacy. Indeed, the new institutional visibility which the movement would receive was a double-edged sword. In entering the political system in place at the time, the movement had a choice to make. Either it had to integrate fully and, in doing so, simultaneously strengthen the regime and lose its legitimacy as a subversive force, or it had to trigger the destabilisation of forces and legitimacies and risk bringing the regime down. Aware of the organisation’s delicate position both within the arena of power and within the opposition, and accepting the risks, Solidarity representatives sought, in the conditions described above, to guarantee the greatest number of benefits for their organisation.
27It is easy to understand why this electoral law – whose importance would in hindsight be described as paramount – was ultimately the subject of such little negotiation and why, furthermore, it was not celebrated at the time as a key moment for Polish democracy. Neither during the Round Table discussions themselves, nor during the debates organised during a session in the Sejm to approve the electoral law based on a road map negotiated at the Round Table, was there any discussion about the “meaning” of political representation, nor any inaugural speech to introduce it.  In spite of the groundbreaking provisions which the text contained on the nature or background of bodies and individuals eligible to stand for election, the conditions for entering the race and the ways in which the contest would be organised, not a single debate either within or outside the Sejm examined the impact of this reform on the “nature” of the system of representation. It was as if questioning the official conception of political representation was at that point too wild a card for the opposition to play – an opposition which, by keeping its demands to a minimum, sought to retain a certain degree of control over the situation.  After all, for the opposition, a successful conclusion to the Round Table negotiations was the guarantee that Solidarity would once again become a legally recognised organisation. For the organisation’s spokespeople, this was a major victory, of considerable symbolic significance : it was precisely to repress the union that martial law had been introduced on 13 December 1981. Caution and the feeling that they had achieved a major success would lead them to negotiate the number of seats open to competition rather than discuss the fundamental principles of the election itself. Rejecting the system in favour of a different one was not entirely unthinkable, but at the time it was inconceivable to declare this a guiding principle for action. This tactical caution shown by players on both sides of the negotiating table can also be explained by the fact that, in a climate where uncertainty reigned and where time was of the essence, both had followed action plans which had led them to prioritise their own interests.
…to a clash between two political options. Competing uses of electoral law
28Following the adoption of the electoral law, a series of events was set in motion during which the interpretation and use of the law by the key players contributed significantly to altering what was at stake in the vote : designed to be consensual, the election turned into an open confrontation between two opposing sides. It would thus appear that the meanings attached to an election do not depend solely on the context from which it stems. The crucial part of the contest is not played out before the election : simply holding an election is not the same as implementing promised major political change. What is played out during the election, and particularly during the election campaign, is just as crucial to how the significance attributed to the election evolves. In the context of the June elections, this changing significance can be seen at several levels : in the speeches given by the spokespeople of the main organisations ; in political communication strategies ; in the ways in which individuals presented themselves ; in sources of funding and so on. However, here we will limit ourselves to an examination of the ways in which the key players used the electoral law, insofar as this law appears a useful indicator  – it is simultaneously a factor which restricts the staging of an election and a potential resource for all those involved.  Nothing would be further from the truth than to portray the electoral law as determining the behaviour of the actors at the time, whether spokespeople or candidates. These individuals each maintained a different relationship with the law and used legal provisions in a variety of ways, a number of which were unexpected and paradoxical. Far from being “a set of imperatives”,  the electoral law appears to have been considered by the actors involved as a set of resources : “a set of motives influencing human activity.” 
29PZPR leaders, confident in the legal mechanisms regulating the political contest, were heavily involved throughout the codification process. On the other hand, they spent less energy on the electoral campaign and as a result, lost control over both the candidate selection procedure and the political platform. Conversely, the Solidarity leaders, who were less active concerning the details of the electoral law during the codification process, now sought to take advantage of the shortcomings of a law which they embraced utterly. They thus seized the monopoly on representing the opposition and selecting candidates for the seats open to competition.
The communists : playing dangerous games with the law
30Initially, leaders of the Party looked to control the way in which the election unfolded by strengthening the legal framework which allowed this grip to be maintained. However, they were quickly overwhelmed by the sudden arrival in the midst of the campaign of second-rank communists who had not been officially nominated by the Party but who attempted to participate in the election.
When the PZPR used the law to tighten its grip on elections
31At the conclusion of the Round Table, which came to an end on 5 April 1989, the PZPR retained its dominant position within the country’s political institutions. Whilst the agreements arrived at during the negotiations did provide for the organisation of elections according to the terms of a relatively detailed compromise, Party leaders also had a certain amount of room for manœuvre which allowed them to take unilateral action on certain aspects of the legal framework governing the elections. In effect, the provisions necessary for the organisation of elections had not all been agreed in detail by the negotiators at the Round Table. Party leaders would attempt to twist the law in their favour in two key ways. Firstly, through the Council of State,  the length of the electoral campaign was reduced to a minimum, in order to make it more difficult for Solidarity to prepare for the contest.  Since Solidarity was badly organised and did not exist in certain regions of Poland, those in power did not consider the union to be an effective electoral machine, despite the popularity of its representatives. The expectation that the economic situation would worsen also strengthened the case for holding elections before the summer.  Finally, those who had engineered the co-option of Solidarity into the institutional system felt that this process ought to take place as soon as possible after Solidarity’s legalisation in order to curb to the greatest extent the new autonomy which the organisation would suddenly enjoy.
32Secondly, the Party manipulated the system according to which seats were distributed across constituencies. Whilst the Round Table Agreements provided for the automatic allocation of a seat open to competition in each constituency (108 in total), they did not specify the distribution of the remaining 53 seats. The Council of State would take charge of this matter, taking into account how well-established Solidarity was considered to be in each area. The constituencies in which Solidarity did not enjoy a strong presence would thus, on average, receive a larger number of seats open to competition than other constituencies.
Solidarity poster, spring 1989. Solidarity as an inter-generational movement embodying the nation, safeguarding the future and justifying its monopoly on the political representation of the opposition
Solidarity poster, spring 1989. Solidarity as an inter-generational movement embodying the nation, safeguarding the future and justifying its monopoly on the political representation of the oppositionTranslation : “You, you will succeed”
33The PZPR leaders’ calculations concerning the balance of power in the elections would ultimately lead them to transform electoral law in ways which they anticipated would be in their own interests. It will be clear by now that as far as the PZPR was concerned, these practical problems related to their concern to mitigate Solidarity’s overwhelming popularity in the face of a communist party whose critics pulled no punches. Thus, what was most crucial was the PZPR’s ability to predict the political situation, and not the “reality” of the political balance of power.
Trusting the law and disengaging from the practicalities of the electoral campaign
34The way in which the ruling party’s election campaign took shape appears surprising at first glance. Far from preparing for a wholly new and highly dramatic campaign, the PZPR leaders approached the election as a routine occurrence.
35The election campaign was conducted, from start to finish, like any other previous campaign. Perceived as a procedure, the campaign unfolded slowly, with one stage following the next : the appointment of a campaign team, the development of a “programme” in the form of an “electoral declaration”, the formation of alliances with the major official political organisations and the creation of a “central electoral headquarters general staff”, comprising Party representatives, members of government and the spokespeople of allied organisations, among others. It was in the belief that there was nothing major at stake in the forthcoming election, that it would be devoid of any direct confrontation, that the party set the first wheels of the campaign train in motion : “PZPR propaganda [became] bureaucratic and routine and [was based] on urging voters to vote for ‘continuity’ and ‘experience’”. 
36A number of commentators even went as far as to say that this campaign was deliberately slow-moving. In reality, Party leaders were forced to contend with difficulties that strained the dynamic of the electoral campaign. The inability of the Party’s ordinary members to comprehend the strategy adopted by the leaders and the uncertainty created by the announcement of General Jaruzelski’s departure  contributed to the widespread loss of interest in the election campaign among Party members and grassroots organisations. The highly dynamic campaign staged by Solidarity took the Party’s officials by surprise and increased apathy among members of the Party machine : ill-prepared for the entirely new direction which the campaign took and bemused by the strategy adopted – a strategy based on the production of a deluge of propaganda in the run-up to the vote – they turned to television advertising and omitted to organise meetings or rallies. The breakdown of relations between the PZPR and a number of official organisations would finally contribute to the breakdown of the unity and cohesion of the campaign.
37This lack of engagement in the election campaign on the part of the PZPR cannot be explained solely by the organisation’s inadequate preparation for the first competitive election ; which was the explanation which would subsequently be provided in a confidential report produced in the wake of the elections.  In fact, the main cause of the PZPR’s inertia, over and above any other, appears to have been the faith which PZPR leaders placed in the law in general and in the electoral law in particular. Indeed, the “routine” nature of their behaviour was the result of a belief in a legal demiurge, which would arrange the final results satisfactorily. This belief was rooted in the way the law was used during previous elections. Every time an election was held, extensive use was made of the law and administrative procedures. The law effectively became a standard tool for managing the “political struggle” under communism. The PZPR focused its entire pre-election strategy on the law and the administrative management of the campaign, to the extent that it neglected the “real” battle on the ground. A case in point : the reform of the electoral law in preparation for the 1985 elections had been the subject of a lengthy procedure which received extensive media coverage, and the “steps forward” which it contained were considered sufficient to mobilise the electorate. Moreover, during the communist era, elections were held with one pivotal goal in mind : ensuring the mass participation of voters.  When viewed from this angle, political programmes were ultimately no more important than the “democratisation of electoral law” and the time devoted to their presentation was no more valuable than the time spent amending the law. In reality, the “electoral campaign” was nothing more than a large-scale exercise in political communication, used to bolster a regime which was itself perceived as a system of political mobilisation.  In a sense, the changes made to electoral law in the run up to the elections themselves contained the results of the vote.
38This was the key reason why the PZPR campaign staff believed themselves untouchable in the first weeks of the campaign, even refusing to pay heed to the alarming results of a number of opinion polls. Benefiting from significant comparative advantages – the fruits of their control over institutional mechanisms and a plethora of organisational resources – and believing themselves to be protected by a relatively specific electoral law and their usual certainty in election situations, PZPR leaders began the election campaign confidently, failing to notice the ever-increasing mismatch between their own action repertoires and those required by an election which was taking a surprising turn.
Contesting official candidates and the illegitimate use of the law
39More than anybody else, certain members of the PZPR would themselves contest the Party’s monopoly on the candidate selection procedure.  Confident in a law which they controlled and which they had made one of their preferred instruments for retaining control over the institutional arena, PZPR leaders allowed themselves to make a number of surprising changes, in particular regarding the selection of candidates from among their ranks. Bolstered by their favourable position and by their confidence in the institutional election framework, they tested a number of new procedures which they presented as internal democratic experiments. The term “decentralisation”, in connection with the candidate selection procedure, was even used to refer to the transfer of the authority to make appointments, from central to regional level (the Political Bureau had previously had the final say where the selection of candidates was concerned).
40Within this framework, a surprising decision taken by PZPR senior staff stands out. It was suggested that competition between Party members be intensified by selecting between two and six candidates per Sejm seat and three to five candidates for a seat in the Senate at the Party’s regional meetings. However, in early May, the Political Bureau sought to reduce this competition which it ultimately deemed dangerous and urged that only three candidates from the government coalition compete for each seat in the Senate. This U-turn was one of the reasons which explain why the Party’s decision-making bodies lost their control of candidacies within the communist camp. At election meetings a number of candidates for nomination raged against the fact they had been removed from the running in favour of candidates whose profiles were more “in line” with legitimate communist elected officials. These would-be candidates would also draw on the electoral law for support, using a provision which gave them the right to stand for a seat allocated to the PZPR without having been officially nominated by the Party, on the condition that they collected 3,000 signatures from voters in the relevant constituency. This capacity of ordinary members of the Party to play with the law  had not been foreseen by the PZPR leaders for whom this practice was implicitly proscribed, albeit not explicitly forbidden.
41Such use of the law was unprecedented. It was not often under the socialist regime that the law “slipped through the fingers” of those who had drafted it in this way. Appropriated by the Party’s ordinary members, the law was used as a tool in the internal struggles of the ruling party. This was one of the defining features of these elections, which partially explains the failure of the PZPR’s official candidates in the first round of voting. This was a failure which would contribute significantly to an interpretation of the result as the victory of democracy over authoritarianism. The election campaign did not only reveal the gap between the PZPR’s action repertoire and what was required in this unprecedented form of political competition ; beyond this transformation in the value of the Party’s resources, it also resulted in a sharp increase in the use of law as a resource over the course of the campaign. Whereas the ruling class had previously held an absolute monopoly on the use of the law, now this same law suddenly broke free from the Party’s clutches to become a resource in political competition, to the benefit of a variety of actors.
42The independent candidates, for whom this was generally their first experience of running for election, accounted for no fewer than 144 members of the PZPR, or, on average, one candidate for every seat allocated to the party. In some cases, candidates sought to collect more than 3,000 signatures (some collected 6,200, 14,000 or 14,400)  as if to compensate for the lack of a party nomination and, above all, to affirm an alternative principle of legitimacy. This entry into the political contest of a significant number of members who were not subject to Party checks would serve to increase the average number of candidates per seat (2,275 people contested the 560 parliamentary seats, or 4 candidates per seat). This was a little over twice what it had been in 1985 and almost three times what it had been in 1980, for the elections to the Sejm alone (see Table 2).  Between 1985 and 1989, competition thus reached new levels. Above all, this new competition was the fruit of individualistic strategies deployed by those in the ruling party and not, as one might easily believe, a result of the increase in the number of candidacies from among the opposition. Whatever the case, the consequences would prove disastrous for the party in power, as the competition provided by these candidates who lacked official endorsement, whilst not being the only factor, would contribute to its electoral defeat.
The intensity of the competition in elections to the Sejm and the Senate (1980-1989)
The intensity of the competition in elections to the Sejm and the Senate (1980-1989)
Solidarity : a very “closed” use of the law concerning “open” mandates
43The vote was a test for Solidarity, officially recognised as a union and legalised little more than a month and a half before the elections (17 April 1989). The prestigious union suffered from at least two disadvantages : it had no experience of electoral contests and the strength of its foothold varied across the country. Moreover, Solidarity was authorised to present candidates for only 46.6% of mandates (35% of parliamentary seats and 100% of seats in the Senate). Furthermore, unlike the official political organisations, the union did not benefit from any seats allocated prior to the elections. The challenge facing the movement was by no means insignificant : how were they to prepare for the elections in such a short space of time at the very point the PZPR was taking advantage of its position to drastically reduce the length of the campaign and organise the distribution of seats to work in its favour ?
44Solidarity leaders attempted to compensate for these shortcomings by drawing on the strategic use of electoral law. Once again the law was manipulated to suit a strategy whose aim was to see this political outsider meet the challenge posed by the competitive elections. First and foremost, the leaders sought to overcome the constraint of the “legal pace” of the election which allowed little time for the actors involved to prepare their campaign – select candidates, collect 3,000 signatures – and deal with certain provisions which the union deemed a threat. The most problematic of these stipulated that “anybody” – starting with PZPR members or independent candidates with strong links to the Party – could run for a seat in the Senate or for one of the non-affiliated seats in the Sejm ; seats which Solidarity was looking to secure.
45The threat of unbridled competition was what prompted two major symbolic “blows” from the leaders of the Civic Committee, which represented Solidarity at the election ;  the aim of which was to control the “opposition” political programme. The first move was to claim a monopoly on candidacies from across “the opposition”, whilst the second involved presenting only one candidate per seat. What did this achieve ? The union was starting to become aware of the effects of first-past-the-post majority voting : in order for the vote to be effective, candidates had to sing with one voice. Finally, throughout the election campaign, the members of the Civic Committee attached a great deal of importance to the political education of voters with regard to the electoral law. On the one hand, they aimed to explain a highly complex piece of legislation to a population which they sought to convince of the political relevance of voting, but also sought to educate them about the “right” thing to do when it came to the vote.
How did Solidarity turn the electoral law into a resource with which to establish itself as the leader of the opposition movement ?
46The sociologist Jacek Raciborski has quite rightly underscored the fact “that the electoral law did not state that all the (so-called) non-affiliated seats were to be awarded to the candidates whom Solidarity presented”.  This was nevertheless exactly what happened at the elections as all of the Sejm seats allocated in advance to “non-affiliated” candidates and 99% of seats in the Senate were won by candidates from Solidarity’s Civic Committee alone. But how did this happen ? Even if the sociological explanation of Solidarity’s resounding success does indeed merit extensive discussion – discussion incidentally limited by the lack of data on voters due to the absence of exit polls – we can nevertheless contend that this spectacular result was due in part to the attitude of the union during the campaign and in particular due to its electoral strategy deployed to deal with the PZPR. And yet, as we will see, this strategy was based on the tactical mobilisation of certain provisions within the law and involved marginalising those opposition candidates over which it had no control.
47We should recall at this point that when the Round Table concluded, what was at the time referred to as the opposition did not consist solely of Solidarity representatives. Several political parties also claimed the right to speak on behalf of the opposition. This was an issue debated during the first electoral meeting of the Civic Committee leaders, held on 8 April 1989. A number of participants suggested “approaching various opposition organisations and mooting the possibility of an electoral compromise”.  The aim of such a proposal was to establish an electoral alliance between Solidarity (represented by the Civic Committee) and the major political parties of the opposition, which would entail launching negotiations, both on a possible joint programme and on a common candidate selection procedure. In this scenario, the use of the name “Solidarity” would no longer be the exclusive right of Solidarity activists and the material and human resources to be invested in the campaign could be shared. However, this proposal was ultimately rejected by the majority of Committee members, who instead supported the competing proposal tabled by Solidarity’s National Executive Committee, chaired by Lech Walesa, which had been adopted on the eve of this meeting. In the latter proposal, which won 66 of 98 votes, the priority was movement unity, deemed essential for victory at the elections.  The argument which prevailed was that of meeting the challenge posed by electoral law : given that it would be a majority vote, it appeared more sensible to present a single opposition candidate for each seat. This was a conclusion which would gradually experience a shift in meaning as the principle of “survival of the fittest” emerged. In view of the fact that time was running out and that Solidarity was the strongest of the opposition organisations, it was deemed better to allow it the monopoly on representing the opposition in its entirety. The significance of this decision is often downplayed in the accounts of these events. It was, nevertheless, crucially important. In taking this decision, the key leaders were not only contributing to marginalising the political parties of the opposition, they were striking a powerful symbolic blow which involved appropriating the monopoly on the right to speak on behalf of the entire opposition movement for the duration of the campaign. And, in broader terms, they contributed to the rejection of the political party as a legitimate political player. 
48Of course, the decision taken by the Civic Committee did not prevent any party from presenting candidates. However, all involved were acutely aware of the significant difference between the potential for electoral success for a candidate from the Civic Committee and that of a candidate from a much less “visible” opposition party.
49A brief description of the campaign mounted by the Civic Committee and a number of opposition parties will enable us to get a clearer picture of the situation. On 7 April, the Civic Committee pledged to open branches in all regions. These regional branches were tasked with coordinating the work of the local committees which were springing up all over Poland, even in the most isolated villages and neighbourhoods in the largest cities. In addition to benefiting from the launch of a large national subscription base from the sale of coupons (cegielki) across the country, the Civic Committee also received 100,000 dollars, the fruits of a collection organised by a journalist of Polish extraction in New York. The Civic Committee was entrusted with three missions : draw up a list of candidates, send Solidarity representatives to sit on electoral committees and organise the campaign.  The regional and local committees were established either by Solidarity activists from the rural branch of the Solidarity movement, by Catholic intellectual networks (KIK), or by parishioners and men of the Church, depending on the relative strengths of these organisations in each area.
50The visits of regional Solidarity candidates to the archbishopric and the organisation of masses at the start of electoral meetings were just some of the initiatives which allowed the movement to more clearly demonstrate the hold which it enjoyed over opposition candidacies. Conversely, the Church’s contribution to the development of a political brand helped to erase certain borders which continued to separate the political universe from other social domains, and helped to further obscure the definition of a legitimate actor in political competition. Finally, the expression “mass uprising” (pospolite ruszenie), a term previously used to describe a “spontaneous military uprising staged by the Polish nobility which, in the distant past and in the absence of an official army, had enabled the creation of an army of volunteers in order to defend Poland against foreign invaders”,  was now widely used as a poetic term to refer to the “mobilisation of the people’ sparked by the Solidarity campaign. This was no empty term. Certain commentators estimated that no fewer than 100,000 people took part in the election campaign on a voluntary basis, collecting signatures or money, providing transport, organising meetings, etc. 
51The “comparative advantages” which the Civic Committee enjoyed over the opposition parties thus speak volumes. Let us recall here that these opposition parties were still forced to operate illegally, and whilst they were able to act in total transparency and even present candidates for election (on the condition that each candidate collected 3,000 signatures), they were theoretically denied media access. For a number of parties, the collection of 3,000 signatures was an impossible hurdle (some opted to ignore the requirement). Pursued on occasion by the security services, as was the case for the Confederation for an Independent Poland (KPN, the country’s oldest opposition party founded in 1979), these opposition groups continued to lack the resources necessary to comply with electoral law, particularly given that they were unable to rely on the Solidarity representatives to defend their rights during discussions with the government. In addition to possessing far fewer financial and material resources than their rivals, they also had to convince the Civic Committee that in standing for election they were not preventing the success of Solidarity’s “official” candidate ! Indeed, the members of the Civic Committee did not hesitate to disqualify rival candidates, solely on the basis that they constituted competition. A pamphlet from the Wroclaw region read : “Warning ! If you give your signature to another candidate running for a seat reserved for the non-affiliated, electoral law stipulates that you will lose the opportunity to support one of our candidates.” 
52It appears, then, that the Solidarity candidates presented themselves as legitimate interpreters of the electoral law in order to convince voters not to support other members of the opposition. After having long been forced to operate illegally and after years spent calling for legal recognition, Solidarity was now rejecting organisations whose wheels the law had not oiled and was insidiously challenging their right to participate in the political contest on an equal footing.
How Solidarity controlled the candidate selection procedure
53The Civic Committee went on to make a second powerful and highly symbolic move by drastically reducing the internal competition within local civic committees. This is all the more interesting – even surprising – given that, as we have seen, the PZPR was simultaneously relaxing the rules of its own equivalent procedure. In the Solidarity camp, the following rule was paramount : one seat = one candidate. PZPR observers themselves made no attempt to hide their surprise at this, as indicated in a private note from the Ministry of the Interior, dated 28 April. “The opposition leaders have decided to campaign in a way familiar to society – the way the communists [regularly] campaign.” 
54Certain leaders did, however, advocate pluralism where Solidarity candidates were concerned, a proposal rejected by the majority of Committee members. The argument used at the time was, once again, the content of the electoral law. This law did not formally forbid members of the PZPR and other organisations from standing as candidates, no more than it forbade “independent” candidates who could nonetheless garner the unofficial support of an official organisation from doing so. Thus, not every non-affiliated candidate was necessarily a member of the opposition. Moreover, the electoral law on the Senate of course allowed members of the PZPR and of its allied organisations to stand for election. And when they did so, it did not oblige them to openly declare their political affiliation. Consequently, these provisions of the electoral law offered an irrefutable argument to justify the establishment of a single list and of the one seat = one candidate principle. “Lack of time” was an argument used to justify both the haste with which this list of candidates was established by the national branch of the Civic Committee and the lack of any “democratic” consultation process which might have preceded its establishment. A confidential note prepared by the national branch “for the attention of those organising meetings between candidates and voters”, clearly demonstrates that this was indeed how the organisation behaved.
“Our candidates have not been elected in democratic primaries – the government did not give us enough time for that. From among the thousands of individuals who showed political talent and a spirit of sacrifice, Lech Walesa and the Civic Committee, together with opposition representatives from across Poland […] were forced to select 261 candidates for seats in the Sejm. These individuals – precisely because they have been chosen from among tens of others who were equally worthy of selection – will not, at any moment whatsoever, allow senseless, unfair or harmful decisions to be taken […].” 
56The movement even went as far as to create a “candidate list co-ordination section”, spearheaded by some of Solidarity’s veteran activists. It was this branch which would validate candidacies and act as a referee in the local conflicts which erupted. One such conflict was seen in the town of Radom, where the bishop and activists from Solidarity’s rural movement presented a “Catholic candidate” for election to the Senate. This candidate was pitted against the official candidate of the Civic Committee, who the bishop’s team criticised on account of his affiliation to the “secular left”. Indeed, certain Solidarity members contested the “one seat-one candidate strategy” or objected to the choice of candidate selected. These conflicts which affected between 10 and 15% of seats, were linked, above all, to the “parachuting in” of candidates from Warsaw, and required the intervention of the national body. However, the candidates who were not supported by the Civic Committee (around fifteen at the most) were fewer in number than those in a similar position with the PZPR. Most crucially, their journey to the elections was not an easy one. Just as in their communist adversaries’ camp, the 3,000 signatures requirement was exploited as a rival source of legitimacy. However, this strategy encouraged their rivals nominated by the Civic Committee to collect signatures too – the number collected increasing as each candidate sought to outdo the others : some would claim to have amassed 10,000, 15,000 and even 30,000 names. The “scores” were proudly set out on the pages of the “election gazettes”, produced by the regional branches of the Civic Committee. Popular support was constructed as a norm of political legitimacy and those who enjoyed such support marginalised their rivals and, by the same token, undermined their right to stand for election. Their right to use the Solidarity logo (namely on official electoral lists) was also contested. The unapproved candidates received no material, financial or symbolic support from Solidarity or the Civic Committee. As was the case with candidates from opposition parties, these individuals also had to convince voters, with articles of the law and complex explanations, that their candidacy in no way reduced the opposition’s chances of success. Civic Committee activists had no qualms about publicly challenging their intentions to stand for election, in the name of the “one seat-one candidate” rule.
Education in electoral law as a tool in the political struggle
57In addition to this strategic use of legal texts, leaders of the Civic Committee also mobilised the law on other levels. Their primary aim was to convey the meaning of a complex, dry piece of legislation – incomprehensible to the ordinary citizen – to the largest possible number of people. The majority of electoral meetings began with a detailed presentation and analysis of the electoral law. The fact that political education about the law was used as a tool in the political struggle was the result of the combination of two factors. First was the fact that the opposition’s participation in the election of 4 June was in no way a given. Indeed, Civic Committee candidates had to convince voters that the risk taken by Solidarity in embarking on the electoral adventure was in fact justified. After their calls to boycott previous elections in 1980 and 1985, Solidarity was now at the mercy of the same constraints as the Communist Party : they needed to mobilise as many voters as possible. The second factor is that the law was general perceived as an instrument of those in power. It was on the side of the state, and of order. Consequently, it is easy to understand why, as far as Solidarity was concerned, the justification of the elections relied on a justification of the content of the electoral law.
58The second form of legal education involved providing voters with a detailed description of the vote as a “material operation”.  It was not simply a matter of explaining which candidates to vote for, but also how to vote. Schooling the electorate in the right way to go about voting took up a significant part of the campaign. Explanatory pamphlets were distributed in their thousands during meetings. The Civic Committees set up “information” or “explanation” points to further clarify electoral law on the day of the election itself, only a few metres from polling station entrances. In fact, Solidarity’s chief objective in organising such initiatives was to establish the legitimacy of a new type of election behavior, which would see voters strike out the names of members on the national list along with those on the lists of candidates for the seats “reserved” for the members of official organisations – unlike the voting behavior under communism, when voters were expected to “vote without deleting”. Solidarity’s ultimate aim was to prevent its opponents from obtaining an absolute majority of votes in the first round of the election. As we have seen, this education in electoral behaviour came about because of the context of political competition. Consequently, this political competition was played out in part on the battlefield of legal education.
59* * *
60On 4 June 1989, against all the expectations of the election’s key players and observers, Solidarity won almost all of the seats open to competition in the Sejm and 99 out of 100 seats in the Senate. In contrast, the PZPR proved unable to get its candidates elected from the first round of voting. As a result, for the first time in history a second round of voting was organised, for which no one was prepared. This surprising electoral development did not challenge the Communist Party’s control of the Sejm. As foreseen in the Round Table Agreements, the Party would remain the major force in the Polish parliament following the second round of voting. Furthermore, given the position which the Sejm held in the institutional system, the Communist Party theoretically remained both the dominant organisation and the only authorised party organisation.
61Nevertheless, this result would immediately be interpreted by both those in the Solidarity camp and international observers as a political victory for the opposition and a defeat for the communists, despite the fact that, mathematically, the communists had emerged victorious. Inconceivable only a few weeks before, the elections designed to consolidate a political regime experiencing a crisis of legitimacy had become the elections to end the regime. The result set in motion a process of change which would gather pace during the summer, with Tadeusz Mazowiecki’s appointment as Prime Minister on 19 August 1989 a particularly pivotal moment. After 1989, the June elections would be recognised as exceptional by a number of observers and political actors, and hailed as the event which marked the end of communism. I hope to have demonstrated that the outcome was far from foreseen by those involved and that instead it was the sequence of moves made by each of these players together, during a campaign which took a series of unexpected twists and turns, which made both the election result and its interpretation possible.
62Whilst the field of electoral law which has been the particular focus of this article is a specific arena in which the battle lines were drawn for the confrontation to come, it is naturally in other arenas that this confrontation actually took place. In order to furnish an entirely comprehensive analysis, it would have been necessary to further examine the interaction between rivals over the course of the campaign, as well as take account of the role of the Church, the relaxing of censorship during the campaign and Solidarity’s access, albeit limited, to state radio and television. An analysis of electoral declarations would have also allowed me to demonstrate, from another angle, how confrontation was linked to the use of new ways of presenting oneself to voters. However, this study has shown the law to be as much a factor in setting the stage for a regime change process as a powerful tool with which to analyse this process. A resource as much as a constraint for the actors involved, as flexible in its form as it was ambiguous in its content, the law is a reflection of the ever-changing circumstances in which it was produced. No doubt to a greater extent than in ordinary circumstances, the analysis of actors’ relationship to the law is a heuristic indicator of the practical steps involved in regime change. In the same way, it would be impossible to label an election democratic or non-democratic based on a reading of electoral law alone. Only the specific, tangible use of legal texts can influence the outcome of an election one way or the other. For this particular field, such an analysis also brings a number of the major questions pondered by legal sociologists to the fore. These include, for example, that of motivations to act, which are so difficult to identify and attribute for those both writing and using the law ; and that of measuring the effects of the law, the complexity of which is abundantly clear. Finally, there is the question of the “force of the law”, which here appears relative or biased insofar as, whilst the law made it possible to strengthen a political agreement, it first and foremost legitimised innovative uses of the legislation – which it was powerless to prevent – which, through the medium of the Communist Party, served to weaken the state and “its” legal magisterium. 
Patricia Ewick, Susan Silbey, “La construction sociale de la légalité”, Terrains et travaux, 6, 2004, 112-38 (129).
Patrick Lehingue, “Usages et effets politiques de la codification. La réglementation des sondages d’opinion en France”, in CURAPP, Les usages sociaux du droit (Paris : PUF, 1989), 44-67(57).
Ramona Coman, Réformer la justice dans un pays post-communiste. Le cas de la Roumanie (Brussels : Éditions de l’Université de Bruxelles, 2009).
Arend Lijphart, Carlos H. Waisman (eds), Institutional Design in New Democracies. Eastern Europe and Latin America (Boulder : Westview Press, 1996). See also Jon Elster, Claus Offe, Ulrich K. Preuss (eds), Institutional Design in Post-Communist Societies. Rebuilding the Ship at Sea (Cambridge : Cambridge University Press, 1998).
For Juan Linz, for example, the adoption of the institutional framework marked the end of the transitional period and hailed the beginning of the democracy “consolidation” phase : Juan J. Linz, “Transitions to democracy”, The Washington Quarterly, 13, 1990, 143-64 (157).
On the origin and development of electoral laws in central and eastern Europe, see Sarah Birch, Frances Millard, Marina Popescu, Kieran Williams (eds), Embodying Democracy. Electoral System Design in Post-Communist Europe (Basingstoke : Palgrave Macmillan, 2002). For a critical synthesis of works on the legal and constitutional dimensions of the changes seen in post-communist Europe, see chapters 3 and 4 of the present author’s work : Jérôme Heurtaux, Frédéric Zalewski, Introduction à l’Europe postcommuniste (Brussels : De Boeck, 2012).
This article draws on my thesis : Jérôme Heurtaux, “Une partisanisation controversée. Codification de la compétition politique et construction de la démocratie en Pologne (1989-2001)”, doctoral thesis in political science, Lille, Université Lille 2, 2005. Other recent research shares this interest in the relationship between law and politics during a “democratic transition”. See in particular Myriam Aït-Aoudia, “L’apprentissage de la compétition pluripartisane en Algérie (1988-1992). Sociologie d’un changement de régime”, doctoral thesis in political science, Paris, Université Paris I-Panthéon Sorbonne, 2008.
Michel Dobry, Sociologie des crises politiques. La dynamique des mobilisations multisectorielles (Paris : Presses de Sciences Po, 2009).
Liora Israël, “Conseils de sociologues. Bruno Latour et Dominique Schnapper face au droit”, Genèses, 87, 2012, 136-52 (144).
Michel Dobry, “Les voies incertaines de la transitologie. Choix stratégiques, séquences historiques, bifurcations et processus de path dependence”, Revue française de science politique, 50(4-5), 2000, 585-14 (587).
Louis Favoreu, La politique saisie par le droit (Paris : Economica, 1988).
Bastien François, “Le droit saisi par la politique”, in Jacques Lagroye (ed.), La politisation (Paris : Belin, 2003), 373-85.
Thomas Marty, Une histoire sociale de la réforme électorale sous la Troisième République (Paris : LGDJ/ Fondation Varenne, 2013).
According to Patrick Lehingue’s definition in “Usages et effets politiques de la codification…”.
Éric Phélippeau, “Aux origines d’une codification : l’échec des réformes du financement de la vie politique française 1970-1987”, Revue française de science politique, 60(3), 2010, 519-63.
Let us not forget the codification processes concerning institutions and political roles, which also contribute to defining the rules of the political game. The ways in which the constitution is devised and written are crucial from this perspective, as are the dynamics at play during the formalisation of institutional roles : cf. Bastien François, Naissance d’une constitution. La Cinquième République. 1958-1962 (Paris : Presses de Sciences Po, 1996) ; Bernard Lacroix, Jacques Lagroye (eds), Le président de la République. Usages et genèses d’une institution (Paris : Presses de Sciences Po, 1992).
Laurence Dumoulin, Cécile Robert, “Autour des enjeux d’une ouverture des sciences du politique au droit. Quelques réflexions en guise d’introduction”, in Jacques Commaille, Laurence Dumoulin, Cécile Robert (eds), La juridicisation du politique (Paris : LGDJ, 2000), 11-25 (15).
From 7 February to 5 April 1989 in Poland, representatives of the opposition met with those of the communist regime and negotiated a programme of economic, political and social reforms. These round tables, organised in several countries in the region, were innovative forms of “semi-formal meeting of a pre-constitutional or quasi-constitutional nature between the leaders of communist regimes and the spokespeople of opposition and dissident groups”. John Elster, “Introduction”, in Jon Elster (ed.), The Round-Table Talks and the Breakdown of Communism (Chicago : The University of Chicago Press, 1996), 1-20 (3-4).
The single common interpretation of the election as a founding election was in fact only established in the aftermath of the event, rejecting de facto the multitude of meanings which the actors involved, voters and observers, had bestowed upon it at the time. From this point of view, the interpretation that has since been assigned to it is closer to a political interpretation of the “1989 event” than an astute, attentive interpretation of the facts. The founding myth created after 1989 goes as far as to take certain liberties with facts that the most respected works on the subject have nonetheless established as true. David M. Olson prefers to talk of a “transitional election” rather than a “founding election” (David M. Olson, “Compartmentalized competition : the managed transitional election system of Poland”, The Journal of Politics, 55(2), 1993, 415-41). Frances Millard, the author of several comparative works on electoral systems, elections and political representation in post-communist Europe, cautiously states that in Poland it would be impossible to label one election alone as a founding election. In her view, several elections held since 1989 have played an important role in the “foundation” of the democratic regime. See in particular Frances Millard, Elections, Parties and Representation in Post-Communist Europe (Basingtoke : Palgrave Macmillan, 2004).
The decision to create the senatorial institution was taken during the Round Table.
Law of 7 April 1989 on elections to the Sejm in the People’s Republic of Poland for the years 1989-1993 (Ustawa z dnia 7 kwietnia 1989 r. Ordynacja wyborcza do Sejmu Polskiej Rzeczypospolitej Ludowej X kadencji, na lata 1989-1993), art. 39, al. 1. Dz.U. 1989 Nr 19 poz. 102 ; Law of 7 April 1989 on the election of the Senate in the People’s Republic of Poland (Ustawa z dnia 7 kwietnia 1989 r. Ordynacja wyborcza do Senatu Polskiej Rzeczypospolitej Ludowej).
The results were not officially announced until 8 June. However, by 5 June the leaders of both camps were aware of Solidarity’s victory and the collapse of the Communist Party. On the evening of the first round of voting, the opposition won 160 of the 161 seats allocated to “non-affiliated” candidates. In the Senate, the opposition came away with 92 out of 100 seats. In contrast, the official parties only succeeded in getting three of their candidates into the Sejm (candidates who were, in reality, supported by the opposition). No other official candidate managed to obtain the absolute majority of votes necessary for election. Indeed, voters in their droves had taken advantage of the possibility provided by the law to strike through (skreslac) the names of those they did not wish to elect, without their vote being declared null and void. Yet more momentous still for the party in power, only two members on the national list (a list which allowed the state’s most important figures to enter the Sejm) earned more than 50% of the vote. This disastrous result would force the government to consider a second round of voting as a last resort. This was not an eventuality covered by the legal texts and as such, amendments to electoral law were required.
In so doing, I follow in the footsteps of Patrick Lehingue, “Usages et effets politiques de la codification” and here ignore the codification of the electoral act, the administrative organisation of the elections, the games played by legal experts, the problems of fraud, violence and the legal challenging of results : instead, the attitudes and practices of the political players and their relationship with the law are the issues at the heart of this research. On the matters mentioned above, see Yves Deloye, Olivier Ihl, L’acte de vote (Paris : Presses de Sciences Po, 2008).
The electoral law did nevertheless arouse legitimate interest among political scientists, intrigued by this legal text which they saw as “bizarre”, with its system of “curias” or what David M. Olson calls “compartments” (D. M. Olson, “Compartmentalized competition”). However, it is primarily as a factor explaining the outcome of the June election, interpreted unanimously as a Solidarity victory, that the law captures the interest of commentators. The analytical focus is less on the conditions under which the law was produced, than on the law itself. The nevertheless surprising news of the Solidarity victory led a number of experts in electoral theory to revisit the electoral law negotiation process, which they saw as responsible for the collapse of Communism. See in particular Jacqueline Hayden, “Explaining the collapse of Communism in Poland : strategic misperceptions and unanticipated outcomes”, Journal of Communist Studies and Transition Politics, 17(4), 2001, 108-29. Although these works do provide some additional information on the specific conditions of negotiation, their perspective is skewed in that they consider an electoral law as nothing more than the sum of the voting method it enshrines and its intended mechanical effects. From this perspective, the actors are viewed differently depending on whether they are in power (unscrupulous, calculating individuals) or from the opposition (altruistic paragons of democracy). We can here detect the symptoms of “heroic illusion”, a syndrome denounced by Michel Dobry in Sociologie des crises politiques.
M. Dobry, Sociologie des crises politiques, and, for an empirical perspective, Brigitte Gaïti, “Les incertitudes des origines. Mai 1958 et la Cinquième République”, Politix, 47, 1999, 27-62 ; Boris Gobille, “L’événement Mai 68. Pour une sociohistoire du temps court” Annales HSC, 2, March-April 2008, 321-49.
In other words, the reasoning used here is the exact opposite of the historical approach to the event propounded by Pierre Nora or Georges Duby. It is not a question of deconstructing the event, but of constructing it – or rather of piecing together its dynamics by immersing oneself in the way it unfolded. See Pierre Nora, “L’événement monstre”, Communications, 18 (1), 1972, 162-72 ; Georges Duby, Le dimanche de Bouvines (Paris : Gallimard, 1973).
M. Dobry, Sociologie des crises politiques.
This article has benefited from careful re-reading by Michel Dobry, to whom I extend my thanks, as well as Pierre-Yves Baudot and Stéphane Latté. Thanks also to Nagisa Mitsushima and Julie Voldoire.
These negotiations focused on a number of topics, addressed in several specialised “round tables” each jointly orchestrated by a representative of Solidarity and a government representative. There was a round table on political reforms, one on trade union pluralism, and one on economic issues and social policy. A series of “sub-round tables” were also organised on a variety of topics (mining issues, law and court reform, agriculture, local associations and authorities, and the media). Representatives of the clergy acted as moderators.
The term “democratisation” is here placed in inverted commas as it refers to a line of action adopted during the ninth extraordinary congress of the PZPR (14-20 July 1981).
In fact, the principle “one seat-one candidate” had only been enforced in the 1952 election. “Polish October” prompted the ruling elite to adopt a new electoral law in 1956 which allowed two candidates to compete for the same seat, but for no more than two thirds of the seats in each constituency.
See Tadeusz Fuks, Adam Łopatka, Marian Rybicki, Wiesław Skrzydło, Ustrój polityczny Polskiej Rzeczypospolitej Ludowej [The Political System of the People’s Republic of Poland] (Warsaw : Państwowe Wydawnictwo Naukowe, 1981).
This can also be translated as “independent”.
Patrick Champagne, “Faire voter. Notes sur la ‘démocratisation’ politique en Russie”, Actes de la recherche en sciences sociales, 140, December 2001, 80-4 (81-2).
Norbert Elias, Qu’est-ce que la sociologie ? (Paris : Agora-Pocket, 1991), 83-121.
M. Dobry, Sociologie des crises politiques, 15.
For a critical interpretation of the sociology of the elites in post-communist Poland, see Jérôme Heurtaux, “Sciences sociales et postcommunisme. La sociologie polonaise des élites politiques (1990-2000)”, Revue d’études comparatives est-ouest, 2, 2000, 49-100.
Frédéric Zalewski, Paysannerie et politique en Pologne. Les transformations du parti paysan polonais PSL. 1945-2000 (Paris : Éditions Michel Houdiard, 2006).
Its exact name was “Civic Committee under the Solidarity president”.
Some of the most important negotiations did indeed take place in secret, in a government residence outside the capital. Between 4 March and 4 April, six “secret” meetings took place, in addition to five meetings between the co-chairs of each round table. The notes produced by the secretary to General Kiszczak, who was at the time Minister of the Interior and General Jaruzelski’s right-hand man, were published in 1999 : K. Dubinski, Magdalenka…. Providing a clear example of the constraints which weighed in parallel on both protagonists, below is an extract from a statement made by a key government representative, Stanislaw Ciosek, during one of the secret Magdalenka meetings on 17 March 1989 : “Professor Geremek [a key Solidarity leader and co-chair of the round table on political affairs] is asking us questions about the cards we are holding. We are hiding nothing. That’s plain to see. […] The Political Bureau has already issued its opinion. After twelve hours of very difficult negotiations, the Bureau has decided that we will continue until an agreement is reached. I make no secret of this. Outside the negotiating room, there are significant happenings afoot. What we’re seeing is political struggle. This struggle is underway within the party in power. We are prepared to work towards this alliance, this union, even if it’s a little tired now. However, as far as we’re concerned, the determination is still there […] There’s one more thing I’d like to say. In both your camp and in ours, people are increasingly scared. There is a growing fear about what will happen after an agreement has been reached. We can try to wait a while longer, but the chances of a compromise are growing ever slimmer” (cited in K. Dubinski, Magdalenka…).
Literally, porozumienie means “understanding” or “agreement”. Using the French or English political lexicon, it is more aptly translated as “unity”.
Jerzy Urban, “Komentarz”, Studia Socjologiczne, 145, 2, 1991, 46-50.
Marek M. Kamiński, “Do parties benefit from electoral manipulation ? Electoral laws and heresthetics in Poland, 1989-1993”, Journal of Theoretical Politics, 14(3), 2002, 325-58.
M. M. Kamin’ ski, “Do parties benefit from electoral manipulation ?”, 337.
On the reasons why the expert recommendations were not followed, see J. Hayden, “Explaining the collapse of communism in Poland…”.
The reading of the text took place on 7 April 1989 and ended with the adoption of the law. This law transformed one of the Round Table Agreements into a legal text. See 46 posiedzenia Sejmu Polskiej Rzeczypospolitej Ludowej w dniu 7 kwietnia 1989 r. [46th session of the Sejm of the People’s Republic of Poland, 7 April 1989].
Unlike the American constitutional debate of 1787, or those held in France in 1787 and 1789. See Jon Elster, “Argumenter et négocier dans deux assemblées constituantes”, Revue française de science politique, 44(2), 1994, 187-256 ; Bernard Manin, “Frontières, freins et contrepoids. La séparation des pouvoirs dans le débat constitutionnel américain de 1787”, Revue française de science politique, 44(2), 1994, 257-93.
On the law as an indicator, see L. Dumoulin, C. Robert, “Autour des enjeux d’une ouverture des sciences du politique au droit…”.
B. François, “Le droit saisi par la politique”.
Max Weber, “Ordre juridique et ordre économique”, cited in P. Lascoumes, É. Serverin, “Le droit comme activité sociale : pour une approche wéberienne des activités juridiques”, in P. Lascoumes (ed.), Actualité de Max Weber pour la sociologie du droit (Paris : LGDJ, 1995), 164.
M. Weber, “Ordre juridique et ordre économique”, 164. According to Weber, what makes a rule “valid” is not the fact that it is obeyed, but the fact that certain activities are “oriented” around it (164-5).
The Council of State (Rada Palstwa) was at the time the apex of the state’s administrative hierarchy in official terms. Chaired by General Jaruzelski, it brought together the country’s executive, legislative and judicial powers.
On 7 April, only two days after the conclusion of negotiations, the Sejm adopted the electoral law, thereby transforming what until then had been a simple political act into a legislative act (see above). On 13 April, the Council of State presented a shortened election timetable, which envisaged a first round of voting on 4 June and a second on the 18th of the same month. The deadline for submitting lists to the National Electoral Commission (PKW) was scheduled for 12 May.
A. Dudek, Reglamentowana rewolucja.
A. Małkiewicz, Wybory czerwcowe 1989, 31.
Let us recall that the Round Table Agreements provided for the election of a president of the republic by the two new chambers following the elections, and that there was an unwritten agreement that this position would be awarded to General Jaruzelski.
S. Perzowski, Tajne dokumenty Biura Politycznego i Sekretariatu KC.
P. Champagne, “Faire voter… “.
Marcin Zaremba, Komunizm, legitymyzacja, nacjonalizm. Nacjonalistyczna legitymizacja władzy komunistycznej w Polsce [Communism, legitimization, nationalism. The nationalist legitimization of communist power in Poland] (Warsaw : ISP-Trio, 2001).
In the same way that official candidacies were challenged during the Second Empire : see Christophe Voilliot, La candidature officielle. Une pratique d’État de la Restauration à la Troisième République (Rennes : Presses Universitaires de Rennes, 2005).
P. Ewick, S. Silbey, “La construction sociale de la légalité”, 133.
A. Garlicki, Karuzela. Rzecz o Okrągłym Stole, 324.
Moreover, this increase in competition was more marked for the Senate than it was for the Sejm (5.58 versus 3.96 candidates per seat). This was undoubtedly due to the fact that there were no affiliation requirements in place for any of the seats in the Senate.
The electoral campaign was, in effect, subcontracted by Solidarity to the Civic Committee under Lech Walesa. This was a largely informal body comprising Solidarity experts and advisors, which had played a key role in the Round Table negotiations.
Jacek Raciborski, Polskie wybory. Zachowania wyborcze społeczenństwa polskiego 1989-1995 [The Polish Elections. Voting behaviour and Polish society 1989-1995] (Warsaw : Wydawnictwo naukowe “Scholar”, 1997), 29.
A. Dudek, Reglamentacja rewolucja…, 281.
There were nineteen votes and thirteen abstentions.
I have written an article on this issue : J. Heurtaux, “Le changement de régime au prisme des usages politiques du droit. 1989 et l’entrouverture de la compétition politique en Pologne”, in S. Kott, M. Mespoulet, A. Roger (eds), Le post-communisme dans l’histoire (Brussels : Éditions de l’Université de Bruxelles, 2006), 37-50.
A. Dudek, Reglamentacja rewolucja…, 280-292.
Marcin Frybes, Patrick Michel, Après le communisme. Mythes et légendes de la Pologne contemporaine (Paris : Bayard, 1996).
“Nie ma urlopu dla Solidarności” [There’s no holiday without Solidarity], Gazeta Wyborcza, 31, 21 June 1989, cited in A. Małkiewicz, Wybory czerwcowe 1989, 21.
Apel KO “Solidarnośc’” we Wrocławiu [Statement published by Wroclaw civic committee], Wrocław, 26 April 1989 (National Library Archives, Warsaw).
Cited in A. Dudek, Reglamentacja rewolucja…, 281.
Dla osób prowadzacych spotkania kandydatów z wyborcami [For the attention of those organising meetings between candidates and voters]. National Library Archives, Warsaw.
Olivier Ihl, Le vote (Paris : Montchrestien, 2nd edn, 2000), 40.
Violaine Roussel, “Le droit et ses formes. Éléments de discussion de la sociologie du droit de Pierre Bourdieu”, Droit et société, 56-57, 2004, 41-55.