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The Art of Interpretation or the Art of Construction? The Case of Gestorum —A Constitutional Treatise by Andrzej Maksymilian Fredro

2022; Oxford University Press; Volume: 62; Issue: 1 Linguagem: Inglês

10.1093/ajlh/njac001

2161-797X

Marek Tracz-Tryniecki, John Higgins,

Law in Society and Culture

Abstract Andrzej Maksymilian Fredro was a seventeenth-century Polish statesman whose works on Polish legal theory and history are generally underappreciated. Whenever he is mentioned, it is generally as a defender of the institution liberum veto, which is nearly universally blamed for the decline and eventually collapse of the Polish–Lithuanian Commonwealth. This article is part of a contemporary attempt to reignite academic interest in Fredro by bring his work to the attention of comparative constitutional scholars and legal historians, as well as to rehabilitate his reputation. More concretely, it examines the Gestorum, his first major work and a historical treatise, in order to recreate Fredro’s theories of constitutional interpretation in contemporary theoretical parlance: his theory of casus qui facit leges as a constitutional moment, interpretatio/ratio legislatoris vs verbis legis as legislators’ intentionalism vs textualism, and his interpretation vs explication as interpretation vs construction. These latter two sets of distinctions are particularly relevant to ongoing debates about originalistic approaches within comparative constitutional theory and legal history.