Vol. 10 Issue 3 Year 2017

Volume 10 (2017)

Publication date: 16.02.2018

Description

Volume Editors: prof. dr hab. Dorota Malec, dr Krzysztof Fokt, prof. dr hab. Wacław Uruszczak, dr Maciej Mikuła

Licence: CC BY-NC-ND

Editorial team

Editors of the Issue 3 Prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak, dr Maciej Mikuła

Issue content

Usucapio pro herede w tytule 41,5 „Digestów” justyniańskich

Kamil Sorka

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 393 - 418

https://doi.org/10.4467/20844131KS.17.019.8073

The Roman law sources dedicated to “usucapion as an heir” (usucapio pro herede) are the fragment of 2nd book of Gaius’ “Institutes” and the title Pro herede vel pro possessore of 41st book of Justinian’s “Digest”. The paper analyzes the second of them. After decisions made by the emperors Hadrian and Marcus Aurelius usucapio pro herede was marginalized, however – never formally abolished. Then we cannot find any mention about that kind of usucaption till the time of Justinian’s “Digest”. The title 41,5 consists of 4 fragments taken from works of Pomponius, Julian and Paulus. The research proves that the texts were chosen by the compilers without any essential connexion. Neither sources criticism nor palingenetic interpretation can answer rising questions. In fact, we cannot define the shape of usucapio pro herede in Justinian’s law. Why did Justinian keep such institution at all? The answer is problematic. The end of the work follows “Paraphrase” attributed to Theophilus as a broad context of Justinianic point of view. According to it, it seems that usucapio pro herede lost any practical significance.

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Systematyka źródeł prawa bartnego przedrozbiorowej Rzeczpospolitej

Kacper Górski

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 419 - 466

https://doi.org/10.4467/20844131KS.17.014.7558

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. Those legal norms not only provided protection to the honey hunters’ rights and possessions, but also regulated various aspects of their professional 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 it 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 13th–14th century) and in the 14th-century Statutes of Casimir the Great (which, among others, sets down 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 role honey hunting played in the economy of a region, the more numerous and more detailed were the regulations connected with that activity (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. The honey hunting law was a foundation of their self-governance.

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Prace Komitetu Cywilnego Reformy nad nową regulacją małżeństw katolickich w 1814 r.

Michał Gałędek, Anna Klimaszewska

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 467 - 491

https://doi.org/10.4467/20844131KS.17.020.8074

As Henryk Konic observed in 1903 in his pioneering 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 to marriage exclusively religious character and remove the civil authorities from any participation or influence in the matrimonial sphere, the other camp was against such approach to this institution. – 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, chaired by Antoni Bieńkowski. 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 Grand 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 of 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 of the French legislation. This article supplies ample evidence for the claim that the main idea guiding both the Committee members and Antoni Bieńkowski was for the new law to act as a safeguard against society’s inclination to dissolve the bond of matrimony for reasons that are not serious enough, i.e. that fail to meet the criteria for the annulment of marriage set by the laws of the church.

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System emerytalny dla urzędników Wolnego Miasta Krakowa. Część II: lata 1838–1854

Mateusz Mataniak

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 493 - 519

https://doi.org/10.4467/20844131KS.17.021.8075

This article, a continuation of a study of the history of retirement pension schemes for the officials of the Free City of Cracow in the early 19th century, concerns itself with the period 1838–1846. It analyses in particular the data concerning the categories of persons entitled to a retirement pension (officials of the administration and judiciary, their widows and children), conditions of eligibility, forfeiture clauses, pension fund financing, etc.). The article also examines in detail the functioning of the Pension Committee, focusing on its handling of hard cases and the fixing of the amount level of the pension award. Using the records from the National Archives in Cracow, the article reconstructs the processing of a handful of individual pension award applications. Finally, the article surveys the history of the Cracovian pension scheme until 1854, i.e. after the incorporation of the Free City into the Austrian Empire in 1846 as the Grand Duchy of Cracow and in 1850 as a district of the province (ceremonial Kingdom) of Galicia and Lodomeria.

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Prawo i geneza porządku politycznego w teologii politycznej Richarda Hookera

Tomasz Tulejski

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 521 - 541

https://doi.org/10.4467/20844131KS.17.022.8076

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 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 Roman Catholics put the Scripture and tradition on a parity as the touchstone of belief 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 the Scripture’s absolute authority where it spoke plainly and unequivocally and to consult the tradition the church on those points the Bible was silent or ambiguous. However, the solution would be incomplete without human reason, which, he insists, must be used and obeyed whenever Scripture and tradition needed clarification or were faced with a new set of circumstances. So his legal philosophy, rooted in Aquinas’ theology and a reformed concept of justification, relies on the combined guidance of Revelation, tradition and reason.

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Przegląd monografii Wołodymyra Kahnycha Prawnicza edukacja i nauka na Uniwersytecie Lwowskim (1661–1939), Narodowy Uniwersytet Lwowski im. Iwana Franki, Lwów 2016, 320 s.

Roman Shandra

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 543 - 547

Volodymyr Kakhnych’s book is the first comprehensive study of the establishment and the development of legal education and research at Lviv University produced by a Ukrainian historian of law. The monograph, based on a vast range of archival and documentary material, is both informative and interesting. It focuses in particular on the structure of the Faculty of Law, its academic staff members and their research, as well as the content (subjects) of the legal curriculum.

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Piotr Musiewicz, Ruch oksfordzki (1833-1945). Myśl polityczna ruchu oksfordzkiego, Akademia Ignatianum, Wydawnictwo WAM, Kraków 2015, 291 s.

Przemysław Sołga

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 549 - 552

This review discusses the structure of the book, its time frame and scope as well as the sources used by the author. The overall assessment is in some respects unfavourable. This is due to quite evident gaps in the coverage of the subject as well as the tone of the author’s polemics and personal remarks.

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Międzynarodowe Sympozjum „Rozdział i współpraca państwo-Kościół w Europie Kazus prawa polskiego i hiszpańskiego”, Warszawa 17 maja 2017 roku

Marek Strzała

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 553 - 556

On the 17th of May 2017 lawyers from Poland and Spain met in Warsaw at the International Symposium titled “Separation and cooperation between State and Church in Europe: The case of Polish and Spanish law”. It was organized by the Faculty of Canon Law of the Cardinal Stefan Wyszyński University of Warsaw. The main issues discussed at the conference concerned church-state relations in modern Europe, especially the constitutional principles and specific legal regulations in Poland and Spain. The programme included eight key lectures on the historical development of the concept of separation between church and state, some theoretical models of church-state relations and the differences between concept of a secular state and a religiously neutral state. Other lectures dealt with the role of concordats in the modern world, practical problems of interpreting and implementing the principle of autonomy and independence of religious denominations, as well as meaning of bilateral church-state agreements in the Polish and the Spanish system of law.

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Sprawozdanie z IV Sympozjum Historyków Państwa i Prawa Polskiego

Michał P. Sadłowski

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 557 - 558

The Fourth Symposium of Historians of Polish Constitutional Law on “The history of legal practice” was held on 22th September 2017 at the Faculty of Law and Administration of the Warsaw University (Kazimierz Palace, Warsaw). It was organized by Dr hab. Robert Jastrzębski, who moderated the session on 20th Century Law; the other session was moderated by Professor Wacław Uruszczak. This report contains a summary of the proceedings and a list of the papers read at the conference.

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Profesorowi Januszowi Sondlowi (1937–2017) in memoriam

Łukasz Marzec

Cracow Studies of Constitutional and Legal History, Volume 10, Issue 3, Volume 10 (2017), pp. 559 - 565

Professor Janusz Sondel (1937–2017), a renowned Polish researcher in Roman law, passed away on 12th of September 2017, at the age of 80 years, while still active in research. Janusz Sondel was born on 30th of April 1937 in Lwów. At the age of 20 he completed his legal education in Kraków. He started his academic career as Wacław Osuchowski`s assistant. He obtained his doctoral degree on the basis of studies of depositum irregulare in 1964. Eight years later he became a habilitated doctor after having published his work on precarium. The Council of the State granted him the title of Professor. During sixty years of his scientific work, Janusz Sondel wrote several books and countless papers. He also wrote the monumental Latin to Polish dictionary for lawyers and historians, as well as the great Dictionary of the history and tradition of the Jagiellonian University in Kraków. This paper briefly presents the major areas of his work.

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Słowa kluczowe: usucaption, usucapio, heir, inheritance, individual goods belonged to the inheritance, acquisition, Roman law sources, Justinian’s „Digest”, „Paraphrase” attributed to Theophilus, Kingdom of Poland, Polish-Lithuanian Commonwealth, Masovia, bee-keeping, honey hunting, domanial law, honey hunters’ law, rural law, customary law, statutory law, self-governance, primeval forest, Catholic marriage, Kingdom of Poland, marriage law, ecclesiastical courts, codification, civil law, French civil code of 1804, modernization, national legal identity, Free City of Cracow, clerks, retirement system, pension company, 19th century, Hooker, Anglicanism, law of nature, Puritanism, Ukraine, Poland, Austria, Lviv University, Law faculty, education, research, 19th century British History, the Oxford Movement, Anglicanism and politics, canon law, denominational law, ecclesiastical law, state-church relations, separation, cooperation, autonomy of religious communities, independence autonomy of religious communities, concordat, Poland, Spain, symposium, penal law, civil law, History of Polish law, Janusz Sondel, history of the Jagiellonian University in Krakow, Roman law, reception of Roman law in Poland, Jus Culmense, latin for lawyers, Chair of Roman law at the Jagiellonian University in Krakow

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