Tom 11 Special Issue

Special Issues

Publication date: 06.12.2018

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Editors of the Issue Special: mgr Kacper Górski, dr Maciej Mikuła, prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak

Licence: CC BY-NC-ND

Editorial team

Issue editor mgr Kacper Górski, dr Maciej Mikuła, prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak

Issue content

Usucapio pro herede in The Institutes of Gaius

Kamil Sorka

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 1 - 28

https://doi.org/10.4467/20844131KS.18.029.9117

Roman legal sources concerning usucapion in place of an heir (usucapio pro herede) are not numerous. We will only find a relevant fragment in the second commentary of Gaius’ Institutiones and a short text Pro herede vel pro possessore in the 41st book of Justinian’s Digesta. The paper focuses on the exegesis of the first of the sources. According to the institution of usucapion in place of an heir, anybody who possessed any goods belonging to an inheritance could acquire the inheritance within a year. Therefore, the main purpose of the institution seemed to be determining who was going to be responsible for continuing the domestic worship (sacra familiaria). When the sacra had lost their social significance, usucapio pro herede changed its subject to the goods that belonged to an inheritance, not the inheritance as such. In classical Roman law, usucapion in place of an heir started to be considered a dishonourable legal institution. Emperor Hadrian marginalised usucapio pro herede through a decree of the senate sponsored by him. The senatus consultum made usucapion possible to reverse by the actual heir. Emperor Marcus Aurelius introduced a new crime, the crimen expilatae hereditatis, which consisted in taking over goods that belonged to someone else’s inheritance. However, usucapio pro herede was never abolished in a legal act.

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Princes and Governors: The Legal-Historical Glossa to the Janusz Bieniak’s Conception of a Constitutional Order in the Second Piasts’ Monarchy

Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 29 - 46

https://doi.org/10.4467/20844131KS.18.030.9118

In the paper, an attempt of eliminating a certain supposed internal contradiction in the concept of Janusz Bieniak concerning the role and position of junior members of the Piast dynasty in the territorial governance of the so called second Polish monarchy (ca 1040–1177) was undertaken. As the result of the conducted reasoning, three probable and one hypothetic model of engaging the junior Piasts in the management of provinces were discerned, two of which (1. and 2.) included co-existence in a given province of a Piast duke and a noblemen appointed by the “grand duke” (princeps), and two: oﬃciating of sole members of the dynasty as governors or rulers in the provinces of the monarchy. All those models must be taken into account in further research on the constitutional and political history of the Piast state in the eleventh and twelfth centuries.

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Anarchist Visions of the Medieval Icelandic Non-State Socio-Political Order – an Outline of a Critique

Włodzimierz Gogłoza

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 47 - 67

https://doi.org/10.4467/20844131KS.18.031.9119

Between the late 9th and the middle of the 13th century, Iceland was a pre-state society with a political system based on “private” creation, adjudication and enforcement of law. The functioning of this society has been a subject of numerous studies conducted within various disciplines, including legal history, political anthropology and institutional economics. In recent decades, medieval Iceland has also become an object of interest to the various branches of the modern anarchist movement, whose members are prone to looking for historical examples of societies which lack a coercive government. The aim of this article is to critique the anarchist reconstructions of the medieval Icelandic mode of governance. In particular, I try to demonstrate that the anarchist visions of the non-state Icelandic socio-political order are anachronistic and substantially differ from the accounts found in the Old Icelandic narrative sources, as well as in the private collections of the medieval local law, known as Grágás.

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Approver’s Procedural Position in English Criminal Trial Between the 12th and 16th Centuries

Paweł Złamańczuk

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 69 - 83

https://doi.org/10.4467/20844131KS.18.032.9120

The paper analyses the procedural position of the approver in the English criminal trial between the 12th and 16th centuries. The medieval prototype of King’s evidence was the approver – a self-confessed felon who accused his accomplices of complicity in his crime. He was required to prove the truth of his accusation, either in trial by battle or by verdict of the jury. In the late 15th century, approvers seem to have become increasingly uncommon. The 16th century saw the development of a practice which historians refer to as “appeachment”. Unlike approvement, appeachment did not involve trial by battle, nor did it require accomplices to be convicted.

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Source Editions of Municipal Law in Poland (14th–16th Century): A Proposal for an Electronic Metaedition of Normative Source Material

Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 85 - 110

https://doi.org/10.4467/20844131KS.18.033.9121

Extant editions of municipal criminal court records from the 16th–17th century provide ample evidence of the proceedings that relied heavily on of written law and of attorneys often invoking the authority of lawyer authors. These observations add extra weight to the postulate of preparing new, critical editions of sources for the study of municipal law in medieval and Early Modern Poland. They should encompass both the German and the Polish text of the Magdeburg Weichbild, the Sachsenspiegel, urban statutes known as wilkierze (Willkür), and the records of judgements (ortyle, Urteile) of the Higher Court of German Law at the Wawel Royal Castle. The texts of the Magdeburg Weichbild, the Sachsenspiegel should be reprinted in extenso – at best by selecting one text representative of each of the main versions (MS branches) to be identiﬁed in the course of preliminary researches. To ensure that all the texts are readily available to interested scholars equipped with up-to-date research tools it is recommended that paper or e-book editions be supplemented with matching database online editions.

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The Law and the Origins of Political Order in Richard Hooker’s Political Theology

Tomasz Tulejski

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 111 - 129

https://doi.org/10.4467/20844131KS.18.034.9122

Richard Hooker was one of the most important English theologians and political thinkers of the 16th century. He is regarded as the originator of Anglicanism and the greatest adversary of Puritan extremists. His fundamental work Of the Lawes of Ecclesiastical Politie is a repudiation of both the key principles of Puritanism (as formulated by Thomas Cartwright and William Travers) and the doctrine of Rome. While the Roman Catholics put Scripture and tradition on a parity as the touchstone of faith and the Puritans would have no authority but the Bible, this article argues that Hooker steered clear of either extreme. His formula was to accept Scripture’s absolute authority where it spoke plainly and unequivocally and to consult the tradition of the church on the points which the Bible was silent or ambiguous about. However, the solution would be incomplete without human reason, which, he insisted, must be used and obeyed whenever Scripture and tradition needed clarification or were faced with a new set of circumstances. Therefore, his legal philosophy, rooted in St. Thomas Aquinas’ theology and a reformed concept of justification, relies on the combined guidance of the Revelation, tradition and reason.

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A Survey of Sources of Honey Hunting Law in Poland Prior to 1795

Kacper Górski

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 131 - 178

https://doi.org/10.4467/20844131KS.18.035.9123

The laws and regulations concerning honey hunters in Poland prior to 1795 were of two kinds, customary and statutory. They regulated the relations between honey hunters and their superiors as well as between honey hunters themselves. These legal norms not only provided protection of the honey hunters’ rights and possessions, but also regulated various aspects of their vocational activities. This article attempts to compile and to produce a comprehensive survey of the sources (fontes iuris oriundi) of the Polish honey hunting law. For that purpose, a distinction needs to be made between honey hunting law sensu largo and sensu stricto. The former category encompasses all of the laws concerning honey hunters, whereas the latter refers to regulatory laws of honey hunters’ communities. The earliest legal rules concerning honey harvesting are of medieval origin. For instance, customary norms concerning bee theft and the ownership of bee swarms can be found in Księga Elbląska (The Book of Elbląg, the oldest extant code of Polish customary law, dating back to the 13th–14th century) and in the 14th-century Statutes of Casimir the Great (which, among others, sets a penalty for destroying trees with beehives). The presence of such provisions indicates the prevalence of honey harvesting in medieval Poland. Indeed, the more important the role honey hunting played in the economy of a region, the more numerous and more detailed the regulations connected with that activity were (e.g. Masovia and the Grand Duchy of Lithuania). Honey hunting law sensu largo was made by monarchs, the Sejm, local assemblies (sejmiks) as well as by individual landlords. As the economic importance of honey harvesting declined in the early modern age, it was rarely the object of general legislation. The occupation, it seems, needed no further regulation beyond local laws (sensu stricto), i.e. honey hunting laws of local communities in royal, ecclesiastical or noblemen’s domains. These communities observed their old customary laws (some of which was written down in the course of time) as well as the rules laid down by their landlords or, occasionally, by the community itself. The honey hunting law was part of domanial law, and distinct from rural law. This distinction is reflected in the separate status of the honey hunters who were not members of the village community (gromada), even though they were, like other villeins (peasants), the bondsmen of the lord of the manor. Honey hunting law was a foundation of their self-governance.

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The Work of the Civil Reform Committee on the New Regulation of Catholic Marriages in 1814

Michał Gałędek, Anna Klimaszewska

Cracow Studies of Constitutional and Legal History, Special Issue, English Version 2018, Special Issues, pp. 179 - 203

https://doi.org/10.4467/20844131KS.18.036.9124

As Henryk Konic observed in 1903 in his study of the marriage law in the Kingdom of Poland, a profound dispute on the nature of marriage split Polish society in the 19th century into two camps. In his words, “while one of these camps wanted to give marriage an exclusively religious character and remove the civil authorities from any participation or influence in the matrimonial sphere, the other camp was against such an approach to the institution of marriage. In short, the history of this dispute reflects the battle around the foundations of the family arrangement”. The aim of this study is to explore the roots of that dispute in the debates and the work of the 1814 Civil Law Reform Committee, when Adam Bieńkowski’s project of marriage law was disputed. The discussions in that forum, which included the outstanding Polish lawyers and dignitaries of the time, are of great importance for the understanding of the essence of the controversy that flared up after the collapse of the Napoleonic Duchy of Warsaw. While the traditionalists wanted to bring back old Polish law, a party of moderate reformers headed by Antoni Bieńkowski sought to modernize the Polish legal system. One of the key issues in the reformers’ draft legislation regarding marriage was the transfer of jurisdiction in matrimonial cases to ecclesiastical courts. On the whole, the abolition of provisions of the French civil code of 1804 and the redefinition of matrimony as a sacrament were beyond question as was the general intention to do away with all French legislation. This article supplies ample evidence for the claim that the main idea guiding Antoni Bieńkowski and another members of the Committee was for the new law to act as a safeguard against society’s inclination to dissolve the bond of matrimony for reasons that were not serious enough, i.e. that failed to meet the criteria for the annulment of marriage set by the laws of the Church.

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Słowa kluczowe: usucapion, usucapio, heir, inheritance, goods belonging to an inheritance, acquisition, Roman legal sources, Gaius, history of government, Piast dynasty, Poland, Middle Ages, territorial governance, Medieval Iceland, the Icelandic Commonwealth, the Grágás laws, “private” ordering, analytical anarchism, anarcho-capitalism, social anarchism, approver, abjuration of the realm, benefi t of clergy, pardon, sanctuary, trial by jury, trial by battle, MSS source editions, Kingdom of Poland, the Magdeburg Weichbild, the Sachsenspiegel, Ius municipale, records of municipal law, Magdeburg, Kraków, inheritance, Hooker, Anglicanism, law of nature, Puritanism, Kingdom of Poland, Polish-Lithuanian Commonwealth, Masovia, bee-keeping, honey hunting, honey hunters, honey-hunter organisation, sources of law, domanial law, honey hunters’ law, rural law, customary law, statutory law, self-governance, primeval forest, Catholic marriage, Kingdom of Poland, marriage law, ecclesiastical courts, codifi cation, civil law, French civil code of 1804, modernization, national legal identity

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