The Venice Commission’s position on Poland’s judicial reforms presents a paradox: it warns that measures to restore the rule of law could themselves violate it – even though the rule of law has already been undermined. To solve this paradox, I propose two conceptual clarifications. The first one applies distinction between violating and departing from formal legality. The second one recognizes that judges unconstitutionally appointed under an illiberal regime cannot be acknowledged as legitimate judges in the constitutional sense.