Vol. 10 Issue 1 Year 2017

Volume 10 (2017)

Publication date: 03.07.2017

Description

Volume Editors: prof. dr hab. Andrzej Dziadzio, dr Piotr Michalik

Licence: CC BY-NC-ND

Editorial team

Issue Editors prof. dr hab. Andrzej Dziadzio, dr Piotr Michalik

Issue content

Religion and the Drafting of the Saxonian Civil Code

Frank L. Schäfer

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 1-16

https://doi.org/10.4467/20844131KS.17.001.6791

The materials of the Saxonian Civil Code of 1863/65 reveal an intensive debate about the importance of religion for private law. The Institutes for Legal History at Freiburg and Heidelberg University will fully publish these materials. The drafting of the provisions for matrimonial law shows the substantive influence of the Lutheran Evangelical Church. Large parts of the final version of the matrimonial law in the Saxonian Civil Code were based on the ecclesiastical law of the Evangelical Lutheran Church. The Civil Code also included special deviations from the Evangelical Lutheran law for Catholics and Jews. The Saxonian lawmaker chose a hybrid solution for matrimonial law: ecclesiastical law in the shell of civilian law. Such a solution was anachronistic since many particular laws in the German Confederacy had already introduced civil marriage to a certain degree. The most outdated Saxonian provision was the prohibition of matrimony between Christians and Jews. The Saxonian Act on Dissidents (1870) and the German Personal Status Act (1875) soon introduced civil marriage also in Saxony and eliminated almost all religious provisions in the Saxonian Civil Code.

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Unterrichtspolitik – kirchliche Interessendurchsetzung in Ungarn nach 1848

Patrícia Dominika Niklai

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 17-30

https://doi.org/10.4467/20844131KS.17.002.6792

n the 19th century Hungary there was introduced religious freedom, separation of State and Church and equality of religious denominations. The above made up the substance of social transformation. The most eminent politicians of the 19th century era, such as József Eötvös and Ferenc Deák, tried – in the interest of the unity of the nation – to reduce the religion-based tension. The social and denominational movements that developed throughout the country, tended toward defining the position of the Church in the State. In this context the school policy made up an important issue connected with the process of modernization and the determination of the relationship between the State and the Church.

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Weltliche oder konfessionelle Schule? Der Streit um den Religionsunterricht in der Donaumonarchie nach der Ära des Liberalismus

Andrzej Dziadzio

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 31-47

https://doi.org/10.4467/20844131KS.17.003.6793

The concept of secular state was formed in Austria in the second half of the 19th century amidst a conflict between the liberals and the Catholic church. Cutting the influence of the church on the state and public life was an important postulate of the programme of rebuilding the political system. The liberals were opposing the church as an institution that led to a situation in which the public policy and the legal system was predicated on the Catholic doctrine. The liberals’ approach was anti-clerical, but not anti-catholic, as the majority of them were of Catholic creed.
The Austrian liberals did not oppose religious education, but they were advocating the rights of non-Catholics (Protestants, Jews, non-religious) by reducing the advantage of the Catholic church. The formation of an anti-liberal coalition in the 1879s lead to partial changes in the functioning of public schools. In 1883, on the initiative of the government, the Austrian parliament amended the Public School Act from 1869. Apart from organizational changes aimed at simplifying the didactic process, the liberal party strongly criticized section 48 of the amended act. According to the liberals, it could serve as a basis for subordinating the public school again to the Catholic church. It stated that “a school principal can be appointed only from among the teachers that proved a talent for teaching the religion that prevails among the students.” This effectively meant that the school principal had to be of the same religious creed as the majority of the pupils.
The liberals argued that the amendment will put the public school back under the control of the Catholic church. A common theme of all parliamentary speeches against the reformed act was an allegation that it pushes public education back to the times when the church was the sole decision-maker in matters of teaching. The liberal party viewed the aforementioned regulation as an attack of the new ruling coalition on the constitutional legal order. They believed it violated the constitutional guarantee of equal access to public offices.
The 1883 discussion on the amendment of the Public School Act led to deep political polarization in the parliament. Although the liberals’ reaction may have been somewhat excessive, as the proposed changes did not substantially alter the state character of the school, their concerns turned out to be well founded. Over time, the conservative government tried to strengthen the religious character of public schools by extending compulsory religious education on the children of non-religious people.
The rise of anti-clericalism in the late 19th and early 20th century was a reaction to the politics of the ruling dynasty. The Habsburgs, facing another political crisis, turned to the Catholic church, hoping it will stand for traditional values and the monarchy. The conservative government also received partial support from the Austrian tribunals of public law. The attempt to partially secularize the public education system by precedent-setting verdicts was therefore unsuccessful.

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Religionsfreiheit in Deutschland – zwischen kulturgeschichtlicher Bedeutung der Religion und der Neutralitäspfl icht des Staates

Magdalena Bainczyk

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 49-67

https://doi.org/10.4467/20844131KS.17.004.6794

Although the Constitution of the German Federal Republic contains relatively numerous references to religion, its original content became – in this area – substantially redefined by the Republic’s Constitutional Tribunal (hereinafter referred to as BVerfG). The redefinition was aimed at removing Christian religion from the public space. In order to reach that goal the BVerfG applied above all the specifically understood principle of religious and viewpoint neutrality. Likewaise, BVerfG resorted to
the negative aspect of religious freedom, thereby promoting the “freedom from religion”. The religious freedom, conceived of in this way, allowed to remove crosses from public schools. At the same time there may be posed a question about a neutrality of the BVerfG itself since in its decisions issued in 2003 and 2015 it declared that bearing Islamic shawls by the female teachers of public schools is consistent with the Constitution.

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Auf dem Weg zur Autokratie? Kirchenpolitik in der Horthy-Ära in Ungarn

Eszter Cs. Herger

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 69-95

https://doi.org/10.4467/20844131KS.17.005.6795

The laws of 1890s that pertained to the matters connected with the functioning of Churches considerably contributed to the forming of the modern Hungarian state within the Austro-Hungarian monarchy (1867–1918). Some elements of the policy toward the Churches that were detectable in the Horthy’s era (1919–1944) seemed to have been the reverse side of the above-mentioned process, thereby having their share in laying the foundations for the road of central power toward autocracy. The modification of the secular matrimonial law in 1941, the total removal – through decrees – of the already earlier limited equality of religious beliefs, as well as the absence of full autonomy of denominational associations, show that the assessment of the Horthy’s era, from the perspective of legal history, remains a significant task to be carried out.

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The Controversy Surrounding Marriage Law in 20th Century Austria with a Special Emphasis on Constitutional Court Decisions Regarding the ‘Dispensation Marriages

Thomas G. Olechowski

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 97-116

https://doi.org/10.4467/20844131KS.17.006.6796

In Austria, the concept of civil marriage and of a divorce irrespective of the spouses’ religious affiliations had not been introduced earlier than 1938. Previously it aroused a lot of controversy between the Social Democratic and Christian Social Party without any hope of solution. In this situation, the Social Democratic Governors of some Austrian Lands, particularly of the Land of Vienna, applied a section of the General Civil Code to grant a dispensation from the impediment of ligamen (§ 83 ABGB), which meant that they allowed an already married person to remarry. Many juristic problems resulted from this practice, and the attempt of the Austrian Constitutional Court to solve the problem as a “conflict of jurisdiction” made the dispute even worse. In 1938, the Nazi regime introduced the concept of civil marriage, and of divorcibility of marriages also in Austria. The Marriage Act of 1938 has remained valid in Austria to this day.

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The Legal Foundation of Religious Associations in Poland in the Interwar Period and Currently and Examples of their Activities

Katarzyna Krzysztofek

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 117-133

https://doi.org/10.4467/20844131KS.17.007.6797

After the First World War the newly reborn Polish state needed huge financial expenditures to manage the immense poverty, unemployment, and deprivation. But after the war the state couldn’t manage such problems alone, because of the lack of sufficient resources to be able to meet the needs of those affected. That is why numerous charitable organizations were being established. They were created out of religious inspiration by groups of the faithful or specifically by the churches and other denominations. The most numerous group of associations was that established by the Catholic Church – the largest denomination in Poland. The associations were regulated by the Law on Associations of 1932, prior to which they were subject to the various post-partition laws in the three sectors. But in most cases the Law on Associations didn’t distinguish separate regulations for religious associations. In contemporary Poland it is the Law on Associations of 1989 that regulates the creation of associations. It further divides associations into two main groups – registered and non-registered. It will be the law which governs those secular associations which are established for religious purposes. It applies to denominational associations with some exceptions, but doesn’t apply at all to those established by churches and other denominations (that is, ecclesiastical associations). Currently, similarly to the interwar period, the purposes of specified groups of associations haven’t changed – the main reason for their existence is to engage in undertaking charitable activities.

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Changes in the Role of Churches and Religious Organizations in the Field of Social Self-Reliance in Hungary (1867–2016)

Napsugar Mondovics

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 135-146

https://doi.org/10.4467/20844131KS.17.008.6798

The purpose of this paper is to review the most important trends as found in rendering social services by churches. The typical purposes pursued by religious associations in the era of Dualism and the changes detectable in the activities of the civil sector in Horthy-era were the first examined topics. The paper relies on the empirical research that I conducted in 2014, and that analysed the activities of the largest charity organizations in Hungary. It was possible to conclude that in Hungary there was an exemplary tradition of developing cohesive civic activities in the area of charity. Their efficacy depended on the ability of the organizations to solicit from the donors to help others.

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The Traditional Christian Family Model and the Legal Status of Women in Hungary (1867‒1948)

Kinga Császár

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 147-167

https://doi.org/10.4467/20844131KS.17.009.6799

The role of women in society is characterized by their positions in their families, their economic status, their education, and their employment, along with the political rights they have and the appropriate enforcement of those rights. My research on the social situation of Hungarian women starts in the latter half of the 19th century, when, as a result of civil reforms in 1867, women’s rights began to progress. The objective of my research, which is summarised in the present paper, is the presentation of the status of women in the area of labour law. I wanted to find out whether the traditional family model survived the 19th century in Hungary, despite the fact that the status of women changed in the labour market and obviously also in family relations. In my work, focusing on the examination of the legal status of women, I concentrated on typical female jobs in agriculture. The paper focuses on the study of the available documents about women’s work in the Archives of Somogy. Likewise, the research enables us to review the contemporary and later literature. In Hungary, employment for women became more widespread after 1890. The legislation of the Austro-Hungarian Dual Monarchy is fairly illustrative of women’s status in labour law of the time. We can find that reforms in female education brought results only towards the end of the examined period. Until then women’s roles in society were determined by the traditional family model, by their limited access to education, and particularly by the lack of vocational training for them. In my study I tried to emphasize that labour rights of women were closely connected with their educational rights in the age of Dualism. The present paper also confirms that the ambitions of women’s movements to improve women’s situations were the only answer to the circumstances of the time.

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Law and Collective Identity. Religious Freedom in the Public Sphere

Franciszek Longchamps de Bérier

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 169-180

https://doi.org/10.4467/20844131KS.17.010.6800

Does religion represent a threat to public life and freedom of individuals or perhaps an opportunity for integral development that stems from care for the state as the common good? Christianity does not regard faith as a private matter. It must enjoy freedom in the public sphere. Therefore, assuming that state regulations have no concealed or overtly anti-religious bias, they are certain to entail endeavours to set the barely definable boundaries of the permissible and the impermissible. Richard John Neuhaus proved that the naked square is an illusion, an imposture rather than an opportunity or a decent objective. Public life, as any other kind of existence, abhors vacuum. The calls for confining religion to the private sphere are always to be a failure for the health of the public life. The freedom of religion, as any other freedom, is a challenge that requires defense and price to be paid by nations and individuals. The specific and true cases demonstrate that the numerous antireligious metaphors are not matched by the actual experience. The US Supreme Court decision in Zubik v. Burwell is thoroughly discussed below to give a clear and the most recent example of complexity of both the issue and possible ways of resolving controversies on various aspects of religious freedom.

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W Galicji i nad Socą. Polacy i Słoweńcy na frontach I wojny światowej. (V Galiciji in na Soči, Poljaki in Slovenci na frontah I. svetovne vojne), edited by Antoni Cetnarowicz, Dušan Nećak, Stanisław Pijaj, Bojana Todorović, Historia Iagellonica, Kraków 2016

Karin Almasy

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 181-184

This is a book review of a Polish-Slovene collection of articles, written by Polish and Slovene historians and covering various topics of WWI and how it affected the Polish and the Slovene population of Habsburg monarchy. The articles cover topics such as the political circumstances for Poles and Slovenes in the decades leading up to WWI, the Polish-Slovene relationships, different aspects of WWI, especially the events on the frontlines of Galicia and the Isonzo river, as well as the afterlife of WWI: the construction of war cemeteries and graves for the fallen soldiers.

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Tadeusz J. Zieliński, Państwowy Kościół Anglii. Studium prawa wyznaniowego, Wydawnictwo Naukowe ChaT, Warszawa 2016, ss. 457

Michał Ożóg

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 185-188

The reviewed book presents the legal status of the Church of England over nearly five last centuries until the Qeen Elizabeth II’s 90th birthday in 2016. The monograph is divided into two parts. The first one includes the evolution of the legal position of the English official church, from the Act of supremacy (1534) till the beginning of 21st century. The author of the book presents legal acts which were vital for the growth and development of this religious denomination. The second part of the book discusses the current legal regime governing the English official church. It describes and provides an overview of the Stablished Church’s relations with the Monarch, the British Parliament, the government, the judiciary, and the local governments. It also discusses the law provisions concerning the main areas of the Church of England’s activity.

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The Chronicle of Research and Scholarly Events in Legal and Constitutional History at the Faculty of Law and Administration of the Jagiellonian University in 2016

Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 189-196

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Dwudzieste drugie Forum Młodych Historyków Prawa „Zmieniająca się struktura prawa”

Jakub Pokoj

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 197-199

The XXIInd Annual Forum of Young Legal Historians was organized by the Faculty of Law of the University of Belgrade, Serbia, from 6th through 8th May, 2016. This years’ conference was devoted to the issues of changing structures of law, a topic which was reflected in most of the speeches given during the conference. The organizers gathered nearly 60 speakers who represented 15 countries, including non-European states (India and Israel). Eight young legal historians from Poland presented speeches during the conference. Four of them were representatives of the University of Warsaw, two were from Adam Mickiewicz University in Poznań, and there was one each from the University of Białystok and from Jagiellonian University.

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Konferencja: Constitutional History 2000–2015: New Research, New Ideas, New Perspectives. In Memoriam: Professor Stanisław Płaza (1927–2006), 19–20 września 2016 r.

Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 201-202

The Chairs of Polish Legal History and of the History of Administration, and the Editorial Board of “Cracow Studies of Constitutional and Legal History” organized the conference: Constitutional History 2000–2015: New Research, New Ideas, New Perspectives at the Faculty of Law and Administration of Jagiellonian University. Constitutional history was one of Professor Stanisław Płaza’s fields of research. The 10th anniversary of his death was in 2016, and on this occasion legal historians from the Faculty decided to honour his memory. Austria, took part in the conference, All post-conference articles, prepared by their researchers from ten countries (Belgium, Croatia, Czech Republic, Germany, Hungary, and Poland, Slovakia, Spain Ukraine) will be published in volume 10 (2017) of “Cracow Studies of Constitutional and Legal History.”

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Sprawozdanie z uroczystości wręczenia Panu Prof. dr. hab. Wacławowi Uruszczakowi ORDO SANCTI SILVESTRI PAPAE (Orderu Św. Sylwestra Papieża) podczas sympozjum „Kościół wobec małżeńskich sytuacji nieregularnych w świetle posynodalnej adhortacji apostolskiej Amoris Laetitia Papieża Franciszka”, Uniwersytet Papieski Jana Pawła II w Krakowie, Kraków, dnia 17 listopada 2016 r.

Katarzyna Krzysztofek, Maciej Mikuła, Marek Strzała, Michał Ożóg, Zdzisław Zarzycki

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 1, Volume 10 (2017), pp. 203-210

The symposium was held in Kraków on November 17th, and it touched upon the subject of the problem of irregular marriages in light of Pope Francis’ post-synodic apostolic exhortation Amoris Laetitia. It was organised by the Faculty of Canon Law of The Pontifical University of John Paul II in Krakow. The participants were greeted by Tomasz Rozkrut (Dean of Canon Law at the Faculty of Canon Law of the Pontifical University of John Paul II). The programme of the conference included the ceremony of bestowing the papal order ORDO SANCTI SILVESTRI PAPAE on Prof. Dr Hab. Wacław Uruszczak. The congratulatory addresses were written by Card. Stanisław Dziwisz (Archbishop of Cracow), Prof. Wojciech Nowak (Rector of the Jagiellonian University), and Prof. Jerzy Pisuliński (Dean of the Faculty of Law and Administration of the Jagiellonian University). The first one was read by the Rev. Prof. Piotr Majer (Head of the Chair of Law on the ecclesiastical mission of teaching and sanctification), the second one was read by Prof. Dorota Malec (Vice Rector for Development of the Jagiellonian University), and the last one was read by Prof. Barbara Iwańska (Vice Dean for Law studies at the Faculty of Law and Administration of the Jagiellonian University). The introduction to the conference was presented by the Rev. Prof. Józef Stala (Vice Rector for scientific potential and international cooperation of the Pontifical University of John Paul II in Krakow). The laudation speech was given by the Rev. Prof. Jan Maciej Dyduch (the first Rector of the Pontifical University of John Paul II in Krakow). Prof. Wacław Uruszczak addressed the ceremony participants, and then they broke out into two separate sessions. Five papers and one poster session were presented. The papers presented focused on the problem of irregular marriages. The conclusion of the discussion was offered by Bishop Jan Wątroba (Bishop of Rzeszów and Head of the Commission for the Family of the Polish Episcopal Conference). The Rev. Prof. Tomasz Rozkrut closed the symposium.

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Słowa kluczowe: codification, Evangelical Lutheran Church, Judaism, matrimonial law, Saxony, State and Church, education, denominational schools, equality of religious beliefs, the Habsburg monarchy, religious education, Catholic church, secularity of education, school, religious freedom, constitution, constitutional tribunal, principle of vievpoint neutra, State and Church, matrimonial law, Church autonomy, autocracy, Austrian Constitutional Court, Austrian marriage law, dispensation marriages, Hans Kelsen, conflict of jurisdictions, the interwar period, law on associations, denominational associations, ecclesiastical associations, churches and other denominations, social services, religious organizations, solidarity, charity, women’s rights, emancipation, education, women’s work, collective identity, religious freedom, conscientious objection, church-state relations, World War I, war experience, political circumstances within Habsburg monarchy before WWI, warfare, commemoration, Galicia, Isonzo front, United Kingdom of Great Britain and Northern Ireland, Church of England, confessional state, Church-State Law., scholarly research, Legal and Constitutional History, Faculty of Law and Administration, Jagiellonian University, AYLH, conference, annual forum, Belgrade, legal history, constitutional history, University of Warsaw, Adam Mickiewicz University of Poznań, University of Bialystok, Jagiellonian University, conference, constitutional history, Stanisław Płaza, Cracow, symposium, marriage irregular situations, Pontifi cal Order of Pope Saint Sylvester

Volume 10, Issue 1

Volume 10 (2017) Next

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Volume 10 (2017)