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62 Am. J. Legal Hist. 1 (2022)

handle is hein.journals/amhist62 and id is 1 raw text is: American Journal of Legal History, 2022, 62, 1-19 https://doi.org/10.1093/ajlh/njacOOl Advance Access Publication Date: 16 March 2022 Article The Art of Interpretation or the Art of Construction? The Case of Gestorum A Constitutional Treatise by Andrzej Maksymilian Fredro Marek Tracz-Tryniecki*'* and J. Patrick Higgins ** ABSTRACT Andrzej Maksymilian Fredro was a seventeenth-century Polish statesman whose works on Polish legal theory and history are generally underappreciated. Whenever he is mentioned, it is generally as a defender of the institution liberum veto, which is nearly universally blamed for the decline and eventually collapse of the Polish- Lithuanian Commonwealth. This article is part of a contemporary attempt to reignite academic interest in Fredro by bring his work to the attention of comparative consti- tutional scholars and legal historians, as well as to rehabilitate his reputation. More concretely, it examines the Gestorum, his first major work and a historical treatise, in order to recreate Fredro's theories of constitutional interpretation in contemporary theoretical parlance: his theory of casus qui facit leges as a constitutional moment, interpretatio/ratio legislatoris vs verbis legis as legislators' intentionalism vs textualism, and his interpretation vs explication as interpretation vs construction. These latter two sets of distinctions are particularly relevant to ongoing debates about originalistic approaches within comparative constitutional theory and legal history. I. ANDRZEJ MAKSYMILIAN FREDRO, GESTORUM, AND THE HENRICIAN ARTICLES Andrzej Maksymilian Fredro (c.1620-79) was a leading Polish statesman, experi- enced in parliamentary life-both in the Chamber of Deputies and in the Senate. He belonged to a rich nobility of a Ruthenian province (modern-day western Ukraine * Marek Tracz-Tryniecki, Faculty of Law and Administration at the University of Lodi, Poland; Member of the Alexis de Tocqueville Center for Political and Legal Thought; Room 3.05 at the Wydzial Prawa i Administracji, Uniwersytet Lddzi, ul (Faculty of Law and Administration, University of Lodi), Dr Stefana Kopcinskiego 8/12, 90-033, Lodi, Lddzkie, Poland. Tel: 48 42 635 40 21; Email: mtraczpwpia.uni.lodz.pl t J. Patrick Higgins, PhD candidate at the Faculty of Law and Administration at the University of Lodi; Member of the Alexis de Tocqueville Center for Political and Legal Thought; Interdisciplinary Scholar at the Center for American Studies, Poznan, Poland, Ulica Sarnia 2 m 37, Lodi, Lddzkie, Poland. Tel: 48 42 635 40 21; Email: Pat.higgins2014@gmail.com t Sections 1-3 of this article has been written by M. Tracz-Tryniecki. ** Section 4 of this article has been written by J.P. Higgins. © The Author(s) 2022. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com . 1