President of the Republic as a Balancing Factor. Presidential Arbitration

This article attempts to define a notion of presidential arbitrage against the normative background and presents a reflection of the doctrine of constitutional law along with the practice of exercise of the office of the incumbent President of the Republic of Poland. The author distinguishes among two complementary functions of the president: a guarantor of continuity of State authority and arbitration. Defining the function of guarantor, the author refers to the German concept of the so-called theory of sanction. He extends its application not only on the fact that by signing the bill the president confirms its conformity to the Constitution, but also to include all situations in which the head of state participates in person, since by his participation and signature (irrespective of whether such activity is a law-making one or has only the nature of formal declaration) the guarantees their constitutionality. The examination of the issue leads the author to distinguishing two types of arbitrage, i.e. institutional (formal and political (informal) one. Ten former is based on a list of powers of the head of state. In that case, the President will exercise pouvoir effectif and act in an imperious way, especially when using his prerogatives. Personal authority of the person exercising his/her powers is also important, since by resolving of a dispute the president cannot avoid criticism, particularly from the media. Political (informal) arbitrage may consist of either the exercise of powers of the head of state or allowed actions which do not result from a competence norm. It is also based on the authority of the office and the persons who holds that office, and is always connected with the attitude of magistrature morale. This leads to the conclusion that arbitrage means something more that taking of actions by the president to which he is obliged (in enumeratively specified circumstances) by the authors of the Constitution. The President should act in any situation where conflicting interests require his mediation, since the tasks of his office (resulting from arbitrage functions) include general stabilization of the political system.