Dr. Gałędek’s monograph analyses the administrative transition on the eve of the Congress Kingdom of Poland (1814–15) between the appointment of the Provisional Supreme Council on 1/13 March 1813 and the octroi of the Constitutional Act by the Russian tsar on 27 November 1815. His topic is significant, as it makes clear how administrative practice works as the burning lens for theses about functionality of the administration for an entire political system. This is even more true in the light of the milestones of Polish constitutionalism (1791–1807–1815), and it is the merits of Gałędek’s study to reveal lines of continuities and inspiration. Thereby, he makes clear that such a functional perception of the administrative system is a pars pro toto for the entire system of authority, in contrast to the modern Polish history of administration, which regards public administration as an entity separate from government. Such an approach manages to incorporate the reflections on the administrative system into the discourse of political doctrines. This is all the more relevant in the historical Polish context; not only was the Republic of the Two Nations (Rzeczpospolita Obojga Narodów) an unwieldy construct by dint of being the largest entity in terms of territory and population in Central and Eastern Europe since its foundation in 1569, but the violence perpetrated against it in the following centuries made frontiers administrative impediments, and therefore could have generated reservations against the effective organisation of public administration.
In the Kingdom of Poland, several institutions were adopted and inherited from the Napoleonic Duchy of Warsaw, which had been created in 1807. These included an elected Reichstag, a separate army, the Code Napoléon and a separate Polish administration, though their constitutional impact was restrained in the unequal (personal) union between the vast, autocratic Russian Empire and the tiny constitutional Congress Kingdom. The Polish executive was framed into forced loyalty to tsarist interests; therefore, by this time the term ‘administration’ encompassed the entire government and administrative structure. Tsar Alexander’s brother was commissioned as the commander-in-chief of the Polish army, General Józef Zajączek served as the tsar’s viceroy (Namiestnik), and the Russian Nikolai Novosiltsev was installed as commissioner to undermine any Polish attempts to strive for autonomy. Correspondingly, the bicameral Sejm, composed out of seventy-seven szlachta representatives, fifty-one elected by non-noble property owners, and sixty-four senators, had clipped wings, with primarily administrative, regulatory and judicial competences, but no legislative powers. Gałędek’s research approach reveals the
Michał Gałędek’s research interest in the history of administration and related thought between national tradition and western patterns allows an invaluable insight into the specific Polish history of national constitutional identity, which had to manage in the absence of, and indeed beyond, state norms. The great majority of archival material (in Krakow, Warsaw, and beyond) is a novelty, even to Polish academia. With this, he breaks new ground for an innovative understanding of a transnormative legal history that reconstructs contemporaneous political and practical administrative discourse. Indeed, the potency of the national spirit embodied in the Constitution of 3 May characterised the political and administrative drafts of the years 1814 and 1815, as well as the influence of liberal concepts, worked out during the Duchy of Warsaw (in particular by Hugo Kołłątaj), demonstrate that the development of Polish constitutional thought occurred within the constellation of public debate and the intellectual milieu of its authors. With these ideas in mind, it was my honour to host Dr. Gałędek as an associated researcher during the tenure of my European Research Council Advanced Grant Reconsidering Constitutional Formation (ReConFort), which re-evaluated the origins of the European constitutional community. Dr. Gałędek’s focus on Congress Poland was a welcome addition, as it has become increasingly clear that, in order to understand the constitutional formation in early European Constitutionalism, the Polish debates in the Four-Year (Great) Sejm (1788–92) were decisive, and remained part of the national tradition in Congress Poland. While Paris was the epicentre of social and political turmoil by the end of the eighteenth century, the Polish May Constitution of 1791 in fact predated the French September text by five months. Contrary to the modern standards evolved from the American and French revolutionary discourses, the Polish May Constitution did not establish a new basis of legitimation for modern statehood after a revolutionary break with inherited power structures, but instead sought to co-opt extant legitimatory models ‘by gentle
The May Constitution was not an isolated episode; as the work of the ReConFort team and its associated researchers uncovered, it represented instead a climax of Polish republicanism that dated back at least to the sixteenth century, and survived until the cusp of the nineteenth. This republican model was in many ways unique, and should be broadly recognised in our eagerness to overcome western eurocentric restraints of legal history. Far away from any egalitarian broad-based fraternité similar to that which would be (unevenly) applied by the French revolutionaries after 1789, Polish republicans relied on an aristocratic ‘brotherhood’, which was seen not simply as a check and balance on arbitrary monarchical power (as was the contention in England after the signing of the Magna Carta), but in fact was recognised as the constituted Polish nation in and of itself, concluding a contract with Stanisław August Poniatowski ‘by the grace of God and the will of the nation Polish king, grand duke of Lithuania.’ 4
The equation of the nobility and the nation raised a number of issues that were significant and unique to the Polish model of the republic. Firstly, Polish republicanism maintained a healthy scepticism of the monarchy. The danger
As such, Gałędek’s monograph is not only the result of his committed association with ReConFort’s wider research objectives. Moreover, it contributes to our modern understanding of the constitution as a European institution, especially in a time when judicial independence faces a Polish stress test. Over the last two centuries, the protagonists of the early European constitutionalism, including Polish thinkers, were fully aware of the need for the public to actively participate in constitutional processes. 7 The key categories of constitutional discourses – the concepts of national or constituent sovereignty, the precedence of constitution, the judiciary acting and existing as a constituted power in its own right, and the justiciability of politics and rule of law – were of primary importance not only to theorists but to those involved in the constitutional processes. Today, as then, these concepts are not and should not be merely of isolated academic interest in the proverbial faraway ivory tower. Rather, they provide the ‘epitomes’ of modern constitutional issues, whose public discursive formation builds up a unique European source of identification, and is at the heart of the European common identity.
What unites Europeans, and what makes it so attractive for those seeking asylum, are the shared common values: a community of peace, based on democracy, the rule of law, and human rights. These values, however, must not be allowed to wither; they require protection and promotion. The European Commission has stated that the respect for common European values needs a public discourse, and that this discourse must be aware of the important monitoring role of civil societies, both in protecting and in promoting the rule of law and fundamental rights.
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In the 1980s, it was Poland, through the auspices of
Ulrike Müßig Passau, 22 September 2020
In depth cf. the contribution of the Polish member of the ReConFort research team Dr. habil Anna Tarnowska, The Sovereignty Issue in the Public Discussion in the Era of the Polish 3rd May Constitution (1788–1792), = Reconsidering Constitutional Formation I: National Sovereignty. A Comparative Analysis of the Juridification by Constitution, Ulrike Musig (ed.), Cham, Springer, 2016, 215–264, and the review by Prof. Andrzej Dziadzio, who supported our research on Polish sources as member of the advisory board, in the Krakowskie-Studia-z-Historii-Panstwa-i-Prawa 2017.
Tarnowska, ‘To Which Constitution the Further Laws of the Present Sejm Have To Adhere to in All…’ Constitutional Precedence of the 3 May System, = Reconsidering Constitutional Formation ii: Decisive Constitutional Normativity. From Old Liberties to New Precedence, Ulrike Musig (ed.), Cham, Springer, 2018, 113–172.
Introduction to the May Constitution (1791), cited in, Europäische Verfassungsgeschichte, Dietmar Willoweit Ulrike Seif (=Musig) (eds.), Munich, C.H. Beck, 2003), 281.
Cited in ibid., 281.
The first English translation of this fundamental Polish source is done and edited by myself with the help of Dr. Inge Bily, Prof. Dr. Danuta Janicka, and Prof. Dr. Zygfryd Rymaszwski in Reconsidering Constitutional Formation I (Cham, Springer, 2016), Appendix, 265–273.
Cf. my keynote, Constitutional Instrumentalisation of Ancient Rights. From ‘Golden Liberty’ to ‘Golden Age’ European Society for Comparative Legal History biennial conference, Gdańsk, 2016, which was organised by Michał Gałędek.
These are explored thoroughly in ReConFort’s research outputs, among them Reconsidering Constitutional Formation I (Cham, Springer, 2016); Reconsidering Constitutional Formation ii (Cham, Springer, 2018); Giornale di storia costituzionale 34(2017)/2: Sovereignty and Constitution: Historical Issues and Contemporary Perspectives, and Giornale di storia costituzionale 37(2019)/1: Justiciability of Power. In particular, Michał Gałędek has contributed to the latter with his article ‘The Monarchical Sovereignty and the Ministerial Responsibility in the Course of Works on the Constitution for the Kingdom of Poland, 1814–1815’, 153–170.
‘The Commission considers it would be worthwhile developing a public awareness and education policy with the Member States and international organisations, like the Council of Europe and ngos active in the fundamental rights field, which have developed a body of practice.’ com/2003/0606.