Mikołaj Barczentewicz is a Lecturer in Law at Jesus College, University of Oxford. He is also a tutor in law at University College and at New College. He holds a Polish law degree from the University of Warsaw, as well as an MJur (Distinction) and an MPhil in Law (Distinction) from the University of Oxford.
Mikołaj Barczentewicz is pursuing a DPhil in law working on a dissertation in jurisprudence and constitutional theory on unlawful (or unconstitutional) ways of changing constitutions under the supervision of Dr Grant Lamond and Professor Richard Ekins. He is grateful to be supported by the Oxford Centre for Ethics and Philosophy of Law as well as the Programme for the Foundations of Law and Constitutional Government.
Before coming to Oxford, Mikołaj worked as a lawyer specializing in European Union law (competition law and pharmaceutical regulation) and Polish public law. He was also a plaintiff pro se in a high-profile cause litigation against the President of Poland aimed at broadening the scope of freedom of information in Poland.
Since 2013 Mikołaj has been a co-convenor of the Oxford Jurisprudence Discussion Group.
- This paper answers the question who made the United States Constitution from the perspective of general jurisprudence aided by historical evidence. On my view, to make a constitution qua law one must satisfy two conditions: (1) act intending to make a constitution while viewing oneself as having authority to do so and (2) be de facto authoritative in making a constitution. HLA Hart’s concepts of secondary rules of recognition and of change figure prominently in my account. Beginning with a sketch of the historical process of the making of the Constitution, I then identify the agents involved in it. I observe that on any plausible account the making was a cooperative process involving groups of people and thus I consider the issue of group agency, arguing that groups can act and have intentions when certain conditions are satisfied. Several candidates for the Constitution’s maker are evaluated in this paper: “We the People”, “the Drafters”, “the Ratifiers”, “the Great Men”, the states and the peoples of the states. The historical material available does not allow for a decisive answer to the question who was the maker. However, I conclude that based on the available evidence it is most compelling to view the thirteen state groups of the Ratifiers as the makers of the Constitution, because they viewed themselves as acting to establish the Constitution with authority delegated by the people of their states and because their act of ratification was, in fact, recognized as establishing the Constitution as law.In R. (Buckinghamshire CC) v Secretary of State for Transport  UKSC 3;  1 W.L.R. 324 (HS2) the Supreme Court has provided a good reason to think that the idea of a hierarchy of statutes within the legal system of the United Kingdom is still alive, despite the fact that some commentators have already heralded its early demise.
Jurisprudence, Constitutional Law, Constitutional Theory, European Union Law