"To which constitution the further laws of the present Sejm have to adhere to in all". Constitutional precedence of the 3 May system

LTReikšminiai žodžiai: Abiejų Tautų Respublika (ATR; Rzeczpospolita Obojga Narodów; Žečpospolita; Sandrauga; Polish-Lithuanian Commonwealth); Gegužės 3; Konstitucija; Konstitucinė doktrina; Teisės istorija; Teisės tradicija; Constitution; Constitutional doctrine; History of law; Legal tradition; May 3; Republic of the Two Nations.

ENUnderstanding of the principle of constitutional precedence raises numerous doubts in the Polish case. Although this rule was stated expressis verbis in the Declaration of the Assembled Estates, previous studies allow for the ascertainment that its content and significance for the legal order was perceived differently. The conclusions that the researcher may arrive are paradoxical, and in their own way even slightly schizophrenic. The inclusion in the Constitution of assumptions about the special role of the Government Act is a fact. The implementation of a nullification clause in the Declaration of the Assembled Estates is a fact. This was an exceptional invention, a Polish product, and one which would seem an epoch ahead of its time. At the same time, however, in light of experienced practice, we may not accept without reservations the claim of a general recognition of a superior position of constitution towards other sources of law. The Government Act was not a constitutional breakthrough like the acts of revolution in North America and France; it did not overturn an existing social system, but merely reformed a political one without disrupting the evolutionary continuity with the Henrician Articles and the Cardinal Laws. Invoking the words of Leśnodorski: the "fundamental norm" of the previous ancien regime was not subjected to any sort of radical transformation in the reformed political system of the noble Republic. We may agree as to the purpose of introducing the supremacy clause: first and foremost, it was the desire to guarantee the desired stability of the system, while at the same time being aware that the Constitutional Act itself was an act against inter alia the legal state established in the Cardinal Laws (1768/75). [...].It is difficult to judge how much of an advancement the Constitution was compared to the cardinal laws in the precedence question. The perception of the relationship between the Constitution and acts should be regarded as inconsistent. The key acts, especially the Law on Cities, were straightforwardly regarded as components of the Constitution. One should agree that together they constituted a peculiar “3 May system”, yet attributing binding force to them on par with the provisions of the Government Act would be too far-reaching. Last but not least, in the following days and months, the deputies made attempts to introduce regulations into ordinary legislation that were contrary to the Constitution. [...] It would thus seem that the existing situation can be interpreted as a sort of intermediate stage, symbolizing the arrival of a substantive and axiological legal understanding of the Constitution’s supremacy. However, had the formal legal stage been reached? Any answer to this question must take into account an ever-present contradiction, a dissonance: although the Constitution was given an exceptionally modern nullification clause, well ahead of its time, in the awareness of many the Government Act constituted only a modernization and dressing-up of the old system. The Constitution was not written in opposition to the old laws, like other acts of modern constitutionalism -and even if this was the intention of the reformers, they were exceptionally circumspect in expressing it - but in response to the international situation, as a means of strengthening the state and countering a potential external threat (per the preamble "for the establishment of freedom, for the salvation of our Fatherland and its borders, with the greatest constancy of spirit").For this reason the supremacy written into the Constitution should in the first place be associated with the clear effort in many speeches by deputies to create and maintain a lasting system, resistant to sudden change. And most likely this "traditional" perception allowed it to achieve the success of being adopted in May 1791. At the same time, we should objectively assess - and appreciate - the innovative Polish steps along the path of encapsulating the state order in a constitutional act, as well as hierarchization of the legal system, however imperfect they may have been. Although just one year later the anniversary of the Constitution was celebrated, it was soon followed by Russian intervention and a war in defence of the Constitution. After the defeat, the last Sejm of the Republic of Poland convened in Grodno which, under the pressure of the Russian army, intimidation and abductions of wayward deputies, led to the formal overthrow of the Constitution. Calls for a return to its presumptions in later decades were essentially unrealistic. The Government Act had evolved into the most precious myth accompanying Poles during times of partition and celebrated in the era of freedom. [From the publication]

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