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Problems of interpretation of law in accordance with the Constitution – Polish construction in historical and comparative aspects

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Minich D.

Studia Politologiczne

2019

vol. 52

227-238

In the light of art. 188 of the Constitution of the Republic of Poland The Constitutional Court adjudicates on the compliance of laws and other normative acts with the Constitution. The interpretation of law in accordance with the Constitution has been a key issue since the beginning of the jurisprudential activity of Polish Constitutional Court. It is stressed on the ground of the American doctrine that the problem of interpreting law in line with the constitution raises the need to compare the content of a controlled act with its constitutive pattern. This type of interpretation was defined as an interpretation in harmony with the Constitution. In American constitutionalism two concepts of constitutional interpretation can be distinguish: Living Constitution and Originalism. Nowadays, one can see the emergence of the third way of interpreting the constitution which allows to eliminate the shortcomings of the two mentioned above. This concept, referred to as Non Originalism (or Living Originalism). The model of judicial review was adopted in the USA whereas the model of the constitutional court was introduced in Europe. Austria is widely regarded as the cradle of constitutional judiciary. Hans Kelsen designed a system of constitutional review. He provided the Constitutional Court with the power to scrutinize abstractly the legality of legal acts in terms of their compliance with the Constitution. It was not until the 1960s that the so-called interpretation of laws in accordance with the Constitution appeared in the case-law of this body. The cataclysm of fascism and Nazism ruined constitutional theories based on the primacy of the constitutional law. As the founders of the Basic Law of the Federal Republic of Germany of May 23, 1949 were conscious of that, they adopted the solutions of the Austrian model whose essence was the examination of the conformity of legal acts with the constitution. The discussion on the correct methods of interpreting the constitution is the “Archimedes point” of constitutional law. The activity of the Federal Constitutional Court of Germany and the achievements of the constitutional law in this country had the greatest influence on Polish judicial practice. The Polish name of this institution is a translation of the German term fervassungskonforme Auslegung von Gesetzen.

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Problems of interpretation of law in accordance with the Constitution – Polish construction in historical and comparative aspects