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2016 | 61 | 251-282

Article title

Konstytucjonalizacja prywatnych praw podmiotowych jako przejaw dekodyfikacji. „Prawo dziedziczenia” w Konstytucji Rzeczypospolitej Polskiej z 2 kwietnia 1997 roku

Title variants

The Constitutionalisation of the Private Subjective Rights as a Symptom of Decodification. „Right of Succession” in the Constitution of the Republic of Poland of April 2, 1997

Languages of publication



A civil code and a written national constitution are the myths of the Age of Enlightenment and the legal positivism in legislation. Paradoxically, they were set against each other by the constitutionalisation of the subjective rights relating the area of private law, like ownership or the right of succession. The constitutionalisation of this type of subjective rights is an example of decodification. In the clear way, it symbolically diminishes the role of the civil code as a highest source of private law. Moreover, the basic aim of the codification – exclusion of uncertainty and arbitrariness in the application of law – was destroyed by allowing constitutional judges to creatively interpret the general terms and therefore, decide about the shape of valid law. „Right of succession” declared three times in the Constitution of the Republic of Poland of April 2, 1997 is an expression which can be understood in various, even quite conflicting ways. It introduces the uncertainty about the durability of some norms enclosed in the Civil Code. The jurisdiction of the Constitutional Tribunal clearly shows that the articles 21 and 64 of the Constitution of the Republic of Poland are a central regulation of the Polish law of succession which (except Book IV of the Civil Code) also contains separate regulations of numerous special laws. Although sentences of the Constitutional Tribunal often lead to the agreement between these laws and the “spirit of the Code”, this happens only additionally when the Civil Code’s regulations are consistent with the received interpretation of the constitutional terms. It shows that in Polish private law the code’s centralism was replaced by the centralism of the constitutional guarantees for subjective rights. A constitutional regulation of the fundamental rights cannot include the whole of the private law with numerous and detailed regulations. However, the Constitutional Tribunal deduced the variety of fundamental (for present Polish law and European legal tradition) principles from the general guarantees of the right of succession. The examples include: the priority of the succession based on the will of a testator, the existence of the subsidiary order of succession based on family ties, the generality of the capacity to succeed and that the freedom of testation can be limited due to the family solidarity. By formulating these theses – which are not proclaimed in the Constitution, but are present in the European legal tradition – Polish constitutional judges have proven “thinking in the categories of the tradition”. It seems that the Polish legal system managed the problem of depreciation of the civil code’s position due to the existence of constitutions interfering with their fields. Because of this interference, some contradictions between the code and the constitution might have been present. The problem has been solved by filling the Constitution with “the spirit of tradition” from which also the code derives. This way, the jurisdiction of the Constitutional Tribunal introduced general guidelines (created by the evolutionary development of the European tradition of the law of succession) to the legal system through the guarantee of subjective rights and granted them a higher rank than the code itself. Although the constitutionalisation of the private subjective rights is one of the elements breaking the clarity of the legal system, it probably gives a chance to overcome the crisis of the legal system by creating a new model – ridiculous from the Enlightenment’s dogmas of the age of codification point of view – in which a code is one of the special laws and is dependent directly on the general constitution regulation and indirectly, on the legal tradition which shows how constitution terms should be interpreted.







Physical description


  • Uniwersytet Warszawski


Document Type

Publication order reference


YADDA identifier

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