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Volume 6, Issue 3

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2013 Next

Publication date: 28.03.2014

Description

The editors’ of „Krakowskie Studia z Historii Państwa i Prawa” (Cracow Studies of Consittutional and Legal History) intention is to launch a new publishing series which would show the results and scope of research done on the constitutional and legal history.

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

Licence: None

Editorial team

Issue editors Wacław Uruszczak, Dorota Malec, Maciej Mikuła

Issue content

Paulina Święcicka

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 193 - 227

https://doi.org/10.4467/20844131KS.13.012.1606
The aim of the study is to present the origins of law and the way of teaching of law in Republican Rome, which – as a mode of teaching – started with the moment of laicization of law and jurisprudence itself, and which survived in an almost unchanged form until the end of the Principate era. Therefore, one can speak of a tradition, lasting over several centuries, of direct and oral teaching of law, that resembles a paradigm of teaching in Hellenic and Hellenistic philosophical schools, formed the circles of members faithful to a teaching formula consisting in the primacy of dialectical methods, introduced and elaborated by their founders, such as Parmenides, the sophists, Isocrates, Plato, Aristotle, or Zeno of Elea. This paradigm of teaching in the form of the dialogue – a discussion of the teacher with the student, along with the Greek educational paradigm of paide…a, became a model for organizing the lower and higher education in the entire ancient world. In accordance with the mentioned paradigm of the “knowledge transfer,” in Republican Rome the oral model of transfer of legal knowledge, based on the direct contact of the master and the disciple, was adopted, according to which the master – a legal practitioner, in the form of oral communication (docere), and with the help of precise examples of specific decisions concerning legal problems, taught his disciples, called auditores (hearers), who, afterwards, followed, as qualifying jurists, their master’s paths, taking over and expanding the concepts provided by him, or repeatedly rejecting them and formulating their own ones. Such verbal style of “making science,” such a specific dialectics of a master and a disciple, taking the form of telling legal stories and resolving legal cases, listening and questioning, and operated in the formula of a dialogue or discussion, where the word was the axis of the bearing capacity of legal knowledge and legal culture, transformed in subsequent periods into scientific discussion, extremely important for the development of any science. In this way, one can speak of the continuity of certain scientific concepts and methodological relationships between successive representatives of Roman jurisprudence. These representatives began even to form specific law “schools” (scholae/sectae), consisting of, just as Hellenistic philosophical schools did, the master and auditores, which during the late Republic was reflected by the scientific discussion between two greatest jurists of the epoch, Quintus Mucius Scaevola pontifex and Servius Sulpicius Rufus, and then between their students – scholars called auditores Mucii and auditores Servii, and which had its final in the next epoch, in the formation of two scholae – Sabinians and Proculians.
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Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 229 - 245

https://doi.org/10.4467/20844131KS.13.013.1607
The change of written regulations of the municipal law, according to principles included in a gloss to the Magdeburg Weichbild and the Sachsenspiegel, required the consent of the town owner. In the case of towns belonging to the royal domain, the change required the king’s acceptance, in the form of approving the regulations prepared by the town burghers. Although the formal approval of the regulations made the king involved in the legislative process, his function cannot be understood as connected with any intentional legislative activity. As it turns out, the initiators of the changes in private law were the burghers themselves, who observed new legal solutions in other towns and, when the need arose, prepared projects of resolutions reforming the law. In smaller towns, this duty belonged to municipal scribes, who had to have an at least intermediate knowledge of law and, drawing on their professional practice, would point out the flaws and shortcomings in existing regulations. In the case of Ciężkowice resolution of 1550 and Biecz resolution of 1595, an interesting phenomenon can be observed, consisting in borrowing legal solutions, however, not mechanically, but to an extent that met the needs of the town community. The majority of the regulations in Biecz resolution was derived from the Cracovian laudum of 1530. The Biecz town statute (wilkierz), in turn, was a compilation of the Cracovian laudum and Ciężkowice resolution. It is an notable case of borrowing legal solutions from a city (i.e. Ciężkowice) with which Biecz remained in an economic conflict over nearly the whole 16th century. The Ciężkowice statute (wilkierz) abandoned the division of inherited property into gerada, hergewet and dziedzictwo, regulated the question of inherited debts after the Cracovian pattern, raised the problems of ius propinquitatis, and contained detailed administrative regulations, including those concerning the maintenance of the municipal school.
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Wacław Uruszczak

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 247 - 258

https://doi.org/10.4467/20844131KS.13.014.1608

Apart from the Constitution of May 3, the achievement of the Four-Year Sejm, or the Great Sejm of 1788–1792 included a group of laws which, together with the Constitution, were to form the principal framework of the legal system of the reformed Republic. These laws concerned the legal situation of the townspeople, the range of the direct democracy (the law on sejmiki, or local parliaments), the functioning of the Sejm, the relation between the Crown of the Kingdom of Poland and the Grand Duchy of Lithuania (uniform state), the administration of justice, the army, the police, and the tax system. The outbreak of the Polish-Russian war caused the suspension of the Sejm proceedings, and the King’s joining the Targowica Confederation, as well as the subsequent defeat, squandered the legislative efforts of the Great Sejm and its attempt at a general reform of the political system and law of Poland

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Józef Koredczuk

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 259 - 266

https://doi.org/10.4467/20844131KS.13.015.1609
The author presents the principles of inheriting immovable property in ABGB. Within the inheritance law in ABGB the notion of immovable property was infrequently evoked, as immovable property was not differentiated from other elements of the legacy. The regulations concerning inheriting immovable property in ABGB did not form any coherent system. The legislator mentioned them in the context of regulating certain institutions of inheritance law: substitution of trust, family trust, legacy, legitime, and inheritance. The author provides a detailed discussion of mentioned cases, at the same time presenting the views of the most prominent experts on inheritance law, the Cracovian scholars: Stanisław Wróblewski, Fryderyk Zoll (the elder) and Kazimierz Przybyłowski. All this is set against the background of French inheritance law which operated in the Kingdom of Poland at that time.
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Robert Jastrzębski

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 267 - 276

https://doi.org/10.4467/20844131KS.13.016.1610
The article concerns the application of the Austrian Civil Code (ABGB) in the period of the Second Republic of Poland. The paper has three sections: preliminary issues; ABGB and case law; and final conclusions. The first section refers to the application of the Austrian Civil Code during the First World War, when a dramatic drop in purchasing power of the circulating Austrian currency took place in the region of Galicia. The second section discusses the then jurisprudence, based on the Civil Code of Austria (ABGB), which displayed a valorisation trend, despite the prevailing principle of monetary nominalism. In particular, the prevalent theory of private law and, in particular, the theories of F. Zoll, had a great impact on the subsequent fate of Polish valorisation regulations after the First World War. This primarily regards the regulation of the President of the Republic dated 14 May 1924 on the recalculation of private legal obligations named after its principal designer – lex Zoll, including a subsequent regulation contained in the regulation of the President of the Republic of Poland of 27 October 1933 called the Code of Obligations, including in art. 269 the rebus sic stantibus clause. In the last section, the author draws attention to the impact of ABGB, and specifically eminent jurists from Galicia, such as E. Till, F. Zoll, and K. Przybyłowski, on subsequent regulations, including directions in theory of law – the school of “free law” (Freirecht) or the school of “free scientific exploration”. It is worth noting that modern private law arrangements introduced in the 1990s to the Polish Civil Code of 1964, in the form of a rebus sic stantibus clause, have their source in the inflationary experiences after the First World War and Polish jurisprudence based precisely on the Civil Code of Austria (ABGB).
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Bohumil Jiroušek, Martina Halamová

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 277 - 284

https://doi.org/10.4467/20844131KS.13.017.1611

The Czech history of the second half of the 20th century is marked by a number of historical twists which suppressed the public discussion of past history; however, the discussion was sometimes possible in the form of allusions. This essay focuses on one of those discussions; i.e. the one organized by Plamen magazine in 1969. The participants knew that they could not openly express their opinions on the invasion of the Warsaw Pact armies in August 1968. Thus, they used the 500th anniversary of Niccolo Machiavelli´s birth (1469–1527) to both recollect his personality and his work and to discuss the question of whether small countries were allowed to defend themselves against big ones. The message and topicality of the discussion constituted an unambiguous criticism of the Soviet Union, which claimed supremacy over its neighbors: its bloc.

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Review articles

Izabela Lewandowska-Malec

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 285 - 301

https://doi.org/10.4467/20844131KS.13.018.1612
The main thesis of the book reviewed is an assumption that Poland and other countries of East-Central Europe suffer from a chronic underdevelopment, whose sources the Author is trying to find in the past. The review focuses on one of the two main themes of the book, i.e., leaving out the economic issues, it concentrates on the politics. The Author sets out to claim that only those countries develop correctly which have experienced absolute monarchy in their history. Referring to the idea of Ernst Kantorowicz, Jan Sowa assumes that such a political system is the only guarantee of stability and continuity of a country: on the death of the “physical body” of the king, his “political body” continues to last. In Polish-Lithuanian Commonwealth, because of the elective character of the monarchy and the claims of the nobility to play the role of the sovereign, the “political body” disappeared, and the country turned out to be a “phantom body.” For the Author, this means an atrophy of the country following the death of the last Jagiellonian king, Sigismund II Augustus. Between 1572 and 1795 there is no Polish statehood, since the Author regards the Polish-Lithuanian Commonwealth as only an “illusion.” Both the theories presented above and the sources used to prove their correctness raise substantial doubts. The Author confuses basic notions, identifying sovereignty with absolutism, and he makes basic historical mistakes, regarding the Jagiellons’ throne in the Crown of the Kingdom of Poland as hereditary, and also assuming the factual decay of statehood as early as in 16th century, with its symbolic confirmation in 18th century. He finds the grounds for his theories in political theology and psychoanalysis, using historical and legal historical sources to a very limited extent.
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Reviews

Katarzyna Krzysztofek

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 303 - 308

Financing churches and other religious organizations is a socially significant issue, but it is especially important to religious entities and their members. That is why it is worth to mention a book Finansowanie Kościołów i innych związków wyznaniowych [Financing Churches and Other Religious Organizations], published in 2013 and edited by Paweł Sobczyk and Krzysztof Warchałowski, which is a monograph consisting of 28 articles by various authors. This substantial volume of 478 pages begins with an introduction and is divided into seven parts. At the end there is also an appendix and a summary in English. Part One of the book is devoted to general matters; Part Two concerns financing religious organizations from the historical perspective; Part Three deals with financing cultural and scientific activities of religious entities; Part Four presents selected aspects of financing the activities of religious entities; Part Five discusses tax and insurance questions; Part Six addresses the subject of  regulating the financial situation of churches and other religious organizations and Part Seven presents the principles of financing religious entities in selected countries. The appendix addresses the question of readiness on the part of both the State and religious entities to face a possible lack of social response to a plausible necessity of paying a church tax. The book is an important scholarly contribution to the question of financing religious entities in Poland, especially in the face of intended changes in the financial basis of religious entities in the Republic of Poland.
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Maciej Mikuła

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 309 - 312

Adam Moniuszko’s monograph The Mazovian Land Courts (1588–1648). Structure – functioning – procedures is a detailed book, well-rooted in primary sources and concerning the organization of the Mazovian institution of land courts, their procedures (with special emphasis on local idiosyncrasies as compared to the Crown law) and presenting significant aspects of court staff. The Author, drawing on ‘law in books,’ ‘law in action’ and the legal doctrine convincingly shows the noblemen’s legal apparatus which functioned effectively in the first part of 17th century. The book does not exhaust all research problems and the author repeatedly signals the necessity of further research in this field, e.g. with respect to a legal court procedure called scrutinium or the office careers of the court staff.
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Katarzyna Kuras

Cracow Studies of Constitutional and Legal History, Volume 6, Issue 3, 2013, pp. 313 - 315

The book Could Revolution Be Legal? by Anna Grześkowiak-Krwawicz concerns various aspects of how the Constitution of 3rd May 1791 was established and overthrown. It raises, among others, the question whether the act of passing the Constitution was a revolution for contemporary people and why it was understood as treason by some people, especially from Republican milieus. A lot of  attention was paid by the Author to the issue of perception of the Constitution in Poland and abroad as well as to the rise of the myth of 3rd May 1791.

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Files to download

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Słowa kluczowe: Roman jurisprudence, education in the Antiquity, legal education in Republican Rome, Roman law, dialectics, municipal law, Magdeburg law, laudum, wilkierz, king, inheritance law, law of obligations, administrative law, reception of law, Great Sejm, Constitution of May 3, state reform, organization of judicature, supreme court, burgher rights, government, sejm, inheritance law, Austrian law, ABGB, inheriting inheritance, immovable property, legitime, fidei-comurission, bequest, Austrian Civil Code (ABGB), infl ation, valorisation, the rebus sic stantibus clause, Machiavellianism, Prague Spring, Czech society of 1969, discussion, Soviet Union, Niccolò Machiavelli, absolute monarchy, Nobles’ Democracy, Polish-Lithuanian Commonwealth, Partitions, underdevelopment, Churches and other religious organizations, financing, church tax, Mazovia, Crown law, courts of the nobility, organization of judicature, Old Polish legal proceedings, prosopography, judge, court scribe, Constitution of 3rd May 1791; Polish revolution