Spory doktryny wokół procesu konstytucjonalizacji praw podstawowych w Niemczech w II połowie XIX wieku
The Doctrine around the Process of Constitutionalization of Fundamental Rights in Germany in the Second Half of the Nineteenth Century

Summary/Abstract: The objective of the author of this contribution is to present selected aspects of the views of nineteenth-­‑century luminaries of German jurisprudence, focused on the nature, role, and procedures for the protection of citizens’ fundamental rights (Grundrechte). Problems of the hierarchy of legal norms (the relationship between the Constitution and primary legislation), the origins of the concept of subjective rights, the concept of constitutionality of law as a consequence of the adoption of the primacy of the Constitution, the application of constitutional norms in the matter of fundamental rights, and finally the creation of a system for the protection of public rights, among others present in the discourse, are included in the outline. A characteristic element of this discourse is the initial lack of acceptance of the subjective nature of fundamental rights, and after their recognition the lack of the acceptance for judicial review by a specialized court or by a judge’s control in the particular case. These discussions have undoubtedly had a significant impact on the evolution of, and the present attitude toward, the doctrine and judicature of the German Superrechtsstaat idea of the rule of law.

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