Mikołaj Barczentewicz is a DPhil candidate in the Faculty of Law, University of Oxford. He also teaches public law and jurisprudence for Oxford law students. 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 specialises in public law and in legal theory. His doctoral research focuses on unlawful (or unconstitutional) ways of changing constitutions. He is interested in developing HLA Hart’s account of secondary rules – and especially – rules of recognition. On the theoretical side, he is currently working on how rules of recognition change and how can we get reliable knowledge of the content of a particular rule of recognition. He is also pursuing projects on Brexit (disentangling UK and European Union law, constitutional consequences) and on the role of fundamental rights and principles in statutory interpretation.
Mikołaj was awarded a scholarship for 2015/16 and 2016/17 by the Programme for the Foundations of Law and Constitutional Government. Previously, he was supported by the Oxford Centre for Ethics and Philosophy of Law.
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