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Volume 7, Issue 3

Volume 7 (2014) Next

Publication date: 16.02.2015

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

Licence: None

Editorial team

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

Issue content

Wacław Uruszczak, Arleta Adamska-Sałaciak

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 405-417

https://doi.org/10.4467/20844131KS.14.030.3095

The sources of legal history illustrate the functioning of state structure and the society à trawers les âges. They are doubtless cultural heritage and value. One can view them through prism that is: 1) historical; 2) cognitive; 3) cultural. It is worthwhile to note that a well-prepared edition of the sources of that type facilitates smuggling their cognitive and cultural values. The editing of the sources cannot be replaced by a digitalization of the archives. Of course, the digitalization is needed (since it provides better protection of the archives than the microfilms do, and facilitates the access to the source material). However it cannot replace the function of source editing. The latter, in fact guarantees their the cognitive and cultural aspects of the source material will be brought to light. When edited, the sources material is not only the tool, it turns also into a cultural value. The first Polish editions of sources of legal history were prepared in the 18th century. These were: Volumina Legum (a collection of parliamentary acts), and the edition of international treaties compiled by Maciej Dogiel. The material they contained was still in use in legal practice of the 18th century. In the 19th century the growth of interests in the Poland’s past was stimulative of further editions of sources. They were published in several series. Thus Antoni Zygmunt Helcel established a series Starodawne prawa polskiego pomniki while the Polish Academy of Arts and Sciences printed Archiwum komisji prawniczej. Both series continued publishing the main legal acts and also those illustrative of legal practice from the 13th through 18th centuries. There were also some sources printed beyond the scope of these two series. The efforts of A.Z. Helcel, R. Hube, B. Ulanowski, F. Piekosiński, M. Bobrzyński, S. Kutrzeba and O. Balzer in source exploring were continued after World War II. Those engaged in this work were above all the researchers from Kraków, Warszawa, Poznań. The second series of Starodawne prawa polskiego pomniki was due to the initiative of the Polish Academy of Science, its editor-in-chief being professor Adam Vetulani. Following 1989 it is in the Chair of Polish Legal History at the Jagiellonian University that the task of source editing is continued. It has been for 15 years now that Professor Stanisław Grodziski and his co-workers are engaged in publishing Volumina Constitutionum which is a modern version of the edition of the parliamentary acts of the old-Polish nobiliary Republic. In this millieu it was also Ludwik Łysiak and Karin Nilsen von Stryk who were responsible for publishing the court records illustrative of the cases between 15th through 16th centuries. Professor Wacław Uruszczak and his collaborators were, in their turn, busy editing criminal court records between 16th through 18th centuries.
 

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Heinz Mohnhaupt

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 419-432

https://doi.org/10.4467/20844131KS.14.031.3096

This paper examines the history and contemporary practice of the edition of privileges in the context of the term “source of law”. In all legal systems, the term “source of law” has a quality of normative power or of authority for the decision-making processes. In this sense, the research question decides about their property as sources of law.
This raises the question of the content and function of privileges in the history of law. While the individual and special privilegia form a contrast to common law or general legislation as leges privatae, on the other hand, they are also part of the greater category of law and legislation in general. This accounts for their enormous instrumentality in the creation of legal systems. Privileges may extend to all matters of private and public law (economy, trade, invention, jurisdiction, constitution, rights of estates etc.). They have appeared as a mass phenomenon since the Middle Ages. The different characteristics of the sources in turn connote both problems and possibilities for their edition, both in the past and the present. Different forms and functions of their publication and edition can be distinguished for the Ancien Régime. Publications of privileges of estates often served political interests, the publication of private-law privileges, thus, served to protect individual legal positions and their probability in court.
Today, the edition of privileges is determined by the research objectives in European legal history and, in the face of the mass phenomenon of this type of source, is hampered by the problem of criteria for their selection. Editions on the jurisdiction and economic development in the Old Reich have been published in Germany and Austria in recent years (1980, 1981). They attest to the traditional power of privileges and show the important meaning for the ordering and shaping of law up until the 19th century.

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Philippe Nélidoff

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 433-445

https://doi.org/10.4467/20844131KS.14.032.3097

It is for a long time now that legal historians have been interested in the paths along which the French law used to be created. It is true that the learned law (the Roman law as well as the Canon law) played a significant role in variety of fields. However the commonly applied customary law which slowly used to emerge due to the official compilations of customs as ordered by the Royal Ordinance of Montils-les-‑Tours (1454) and materialized in the 16th century, in the same way as the teaching of law – commenced worth the ordinances inspired by the royal professors of the French law. They often were the experienced advocates or judges who appeared at the same time at which the Ordinance of Saint-Germain was issued (1679) and they considerably contributed to the erection of the edifice of law, the one that was crowned with the Napoleonic codifications. What should not fall into oblivion is the role of the decisions of parliaments and the docrine bound with it, the decisions and the doctrine being inseparable in practice. While viewing the problem through that prism it is indispensable to study the role of arretistes, i.e. the judges and the advocates, experts in the practice of law, who published the compilations of judgements. They not only presented the most important court decisions but they additionally commented on them. The compilations doubtless make up a part of a larger collection (corpus) of law literature. The latter includes also the authors of legal studies such as law dictionaries, collections of legal styles and those devoted to civil law procedure, commentaries of customs and the authors of complaints. Those sources recorded in the written form a substantial part of legal act which in its essence is oral. However hundreds of collections of that type derived from the entire France of the 17th and 18th centuries have not been identified until now. On the Parliament of Toulouse it was possible to identify sixteen arrêtistes, which puts this Parliament at the second place after that atrributed the Parliament of Paris and ahead of Parliaments of Bretagne (10) and Provence (9). This position corresponds to the time of its origin (1444), the scope of its competence and the number of cases subjected to its cognition. The aforementioned collections, fully private, were often postnumously published and therefore were remote from the time with which they were concerned. On the other hand, as regards their 17th and 18th centuries editions, they were repeatedly republished. These works were highly erudite and referred to variety of matters, apart from those that dealt with penal law. It is difficult to determine the extent to which the discussed law literature had its influence on the decisions of Parliaments. It seems that the advocates had this kind of registers of cases for their own use and exploited them while engaged in the judiciary. The editing in Toulouse in 1831 by Jean-Baptiste Laviguerie of the previously non-published decisions of the Toulouse Parliament testifies to the long-lived value of this kind of sources of law. They survived the time of the Revolution and the Napoleonic codification activities.

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Christine Mengès-Le Pape

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 447-453

https://doi.org/10.4467/20844131KS.14.033.3098

The men of the Enlightenment embarked upon a big project of publishing legal work of encyclopedic and popularizing nature. It was in one of such works the Repertoire, that Joseph-Nicolas Guyot explained twofold reason of the publication. His book was planned to be above all a kind of compendium of judicial decisions that was designed to arouse interest of the judges of all courts and practitioners, those who wished to learn of their duties and rights as well as those who wanted to have their share in the reforming of the judiciary that was being prepared by the doctrine. According to Guyot, his work intended also to educate the parties involved in the court proceedings. In the foreword Guyot wrote: The dispute comes to being as a result of ignorance of law and it frequently causes the ruin of the family that institutes an unfair trial. The articles printed in some dictionaries and registers of cases were characterized by new methods of obtaining information. Thanks to the commentaries found there in the old collections of judgments, often limited to simple publication of judicial decisions, drifted to the foreground. It was in the spirit of Enlightenment that legal definitions were equipped with a wide description which compiled variety of information. And since it was suitable to drop ignorance and legal diversity that permeated the Kingdom, the publications of the time compiled definitions, facts and quotations extracted from the works of the most eminent advocates. Such method was also close to that followed by Joseph-Nicolas Guyot. In the terminology that he exploits there may be perceived the influence of great parliamentarians of the century, particularly that of Montesquieu. There was an attempt made to provide each entry with clear and precise explanations, those that corresponded with the spirit of royal decrees and the sources derived from the most pure doctrine. In the registers of the decline of Ancien Regime there could be found the progressive image of history, saturated with the novelties and the idea of progress. But this was not tantamount to the dropping of the experience of the past. Thanks to the encyclopedic publications the historicity of law was coupled with the practical objective of these works. The progress could mean only the improvement of law.

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Laurent Waelkens

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 455-462

https://doi.org/10.4467/20844131KS.14.034.3099

Belgium became independent in 1830. In this constitutional monarchy, legal norms would find their place in a hierarchy of norms of which the constitution formed the pinnacle. In practice, the country renewed only a part of its legal norms. Many sources predating 1830 remained in force. Which ones? Which measures did they include? With the aim of putting these anciennes lois et ordonnances in order, a Royal Decree of 18 April 1846 established a royal Commission for Old Laws and Ordinances of Belgium (Commission royale des anciennes lois et ordonnances de Belgique), which was composed of politicians and professors of law faculties. Initially, the Commission was at the service of judicial practice. Its activities were considerably diminished by the First World War and it was only in 1950 that it took up its full range of activities again. At that time, the Commission was invested in exclusively by legal historians, who reoriented it to serve the science of legal history. Since 1846, the Commission has decided to divide the publication of legal texts into three collections: the ordinances, the customaries, and the treaties. In each division, it distinguished between acts regarding the old Netherlands and those regarding the Principalities of Liège, Stavelot, and Bouillon. The volumes concerning Liège, Stavelot, and Bouillon were finished in 1878. The publication of the ordinances of the other territories were organised into three series: (1) the Burgundian period (1381–1506), (2) the Habsburg and Spanish period (1506–1700), and (3) the Austrian period (1700–1794). The series concerning the Austrian period was completed in 1942. For the second series, the ordinances of Philip II are still being dealt with. Work on the first series was only begun in the twentieth century and the editors have reached the period of Philip the Good (who died in 1467). The publication of customaries was divided into thirteen series according to the old principalities of the Southern Netherlands which were situated in the current territory of Belgium. The jurisprudence of the courts of justice that were submitted to the homologation of the Great Council of Malines between the seventeenth and eighteenth centuries was edited first. Currently, eighty quarto volumes have been published. Two volumes of homologated customaries remain to be published. In the meantime, the Commission has added older documents to its field of action, which allow the following of the evolution of customary law at the end of the Middle Ages. There are, for example, volumes dedicated to appeals to the Parliament of Paris against the Council of Flanders, published starting from Parisian files. The third series has never been started, as the Commission provisionally abandoned the publication of the treaties of the old principalities. The Commission also edits the Bulletin of the Royal Commission for Old Laws and Ordinances of Belgium (Bulletin de la Commission royale des anciennes lois et ordonnances de Belgique), which appears sporadically. In this Bulletin, one finds preparatory studies concerning the editing of legal sources and the editions of texts which are too short to merit an entire volume. Without the Bulletin, the entire set of the Commission’s publication consists of about two hundred and fifty quarto volumes and about twenty octavo volumes.

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Tomáš Gábriš

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 463-483

https://doi.org/10.4467/20844131KS.14.035.3100

The paper explains the methodology applied in the edition of historical legal sources of major importance for the 19th and 20th centuries Slovakia – the edition of the Provisional Judicial Rules (“PJR”) of the Judex-Curial Conference of 1861. At the Conference, legal scholars and politicians adopted a decision to abandon the previous twelve years of neoabsolutism and centralism introduced by the Austrian law, and opted for a renewal of the traditional Hungarian legal system with some changes introduced by the laws of March 1848 (the March Constitution of 1848). At the same time they retained some rules of Austrian origin and created some rules that were entirely new, particularly in the field of civil procedural law and inheritance law. While evaluating the legal nature of the PJR, the literature used to claim that they never became law because Parliament of 1861 was not created legally (representatives were not elected under the electoral law enacted as part of the March Constitution of 1848) and because the monarch, Francis Joseph I, had not yet been crowned (his coronation took place in 1867). Therefore the legislative process could not be successfully completed. The only solution that was reported to was the recognition of the exceptional situation which dominated in Hungary between 1861–1867 – it was the period between neoabsolutism and another provisorium, a period of “limited constitutionalism”. Under such conditions it was not possible to meet the formalities of official legislation process. Thus PJR could become binding only de facto – through the power of persuasion. However, after a corpus of case law began to consolidate during several years, it could be argued that the PJR was transformed from the actual source of judicial decision-making into customary law.
 

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Dunja Pastović, Filip Hameršak

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 485-505

https://doi.org/10.4467/20844131KS.14.036.3101

The authors approach the topic of editing and publishing primary legal-historical sources from the perspective of Croatian legal history as an academic discipline. Based on the earlier texts by Jakov Stipišić and Ivan Filipović, the first part of the text discusses several possible approaches towards the editing and publishing of documents, showing that critical intellectual activity is required already when the initial scope and mode of selecting and preparing the sources is decided upon. As a consequence, editing and publishing priorities are more or less directly connected to the particular interests and general methodological presumptions shared by the archivists, librarians and (legal) historians of a given society. The second part of the text – based on the works of Stjepan Antoljak, Zrinka Nikolić-Jakus, Mladen Ančić and personal insight – is thus dedicated to the most significant or illustrative (either in a positive or a negative way) source-editing and publishing projects on what is today the territory of the Republic of Croatia, in as much as some of them were influenced not only by strictly scientific, but also by political or ideological reasons. Pre-modern as well as modern and recent legal acts and other historical sources, including those typical of popular oral culture, are taken into account here. Finally, the authors reflect on the possible future of great editing projects, fearing that digitalization is only an incomplete answer to the precarious status of humanities and (historic) social sciences.

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Pavel Krafl

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 507-516

https://doi.org/10.4467/20844131KS.14.037.3102

The study presents scholarly editions of legal-historical sources published in the Czech Republic after 1990. The study of legal history is narrowly connected with the auxiliary sciences of history. This situation particularly concerns the history of the Middle Ages and the early modern period, but modern legal history also has contact points with these auxiliary sciences. Of particular importance is the close connection with diplomatics and codicology. Sources of a diplomatic nature include documents, office books, and files. Sources of a codicological nature include legal artifacts that have survived in manuscripts of a personal character or were issued in incunabula and old prints. They concern legal collections, legal codes, and synodical statutes. The legal-historical artifacts in the article are divided into artifacts of land law, municipal law, mining law and ecclesiastical law. a paper on editions of documents and letters precedes.

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Iwona Barwicka-Tylek, Jacek Malczewski

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 517-525

https://doi.org/10.4467/20844131KS.14.038.3103

The article discusses the current state of edition of legal historical sources in Poland from the perspective of historians of political and legal thought. The authors begin by explaining the idea and scope of „source base”specific to their field of research. Three following issues are discussed later: (a) translation of foreign sources into Polish; (b) critical (re)edition of classic Polish texts in political thought; (c) edition of 20th century documental sources by the Institute of National Remembrance and The KARTA Centre. The authors make a number of comments and requests concerning the subject of discussion.

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Sources for the events of legal history

Wacław Uruszczak, Arleta Adamska-Sałaciak

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 527-540

The text presented below is an illustration of the history of the editing of legal historical sources in Poland. a special research team for planning the editing of legal sources was assembled by the Committee of Legal Sciences of the Polish Academy of Sciences. The head of the team, Dr. Adam Vetulani, worked out a complex program for the editing of sources. The sources had been classified into various categories: land law, rural law, municipal law, and legal acts from the first part of the 19th century. Dr. Vetulani presented five main tasks in particular: 1) continuation of the editing of Corpus Iuris Polonici (the most important edition; includes fundamental legislative and governmental acts from the Middle Ages and the early modern period); 2) continuation of the editing of medieval Statutes of Casimir the Great; 3) continuation of the editing of the records of rural courts, 4) the editing of municipal legal acts; 5) the editing of legal acts from the beginning of the 19th century, i.e. from the advent of capitalism in Polish territory. The article published in this issue of “Cracow Studies of Constitutional and Legal History” (W. Uruszczak, M. Mikuła, Les editions des sources historiques et juridiques en tant que bien culturel national polonais) shows how many plans have been fulfilled. The work also included information on the rules used for editing the Statutes of Casimir the Great. The text of his presentation is a typescript and is kept at the Chair of Polish Legal History at the Jagiellonian University.

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Reviews

Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 541-544

Janusz Łosowski, Documentation in the Lifes of Peasants in Old-Polish Period. Culture History Study, Olech Publishing House, Lublin 2013, 400 p.

The reviewed book of Janusz Łosowski attempts to investigate the importance of written documentation in the life of peasants in the Polish-Lithuanian Commonwealth in the 16th–18th centuries, especially in the lands of the Polish Crown, basing mostly on the sources concerning Lesser Poland (Małopolska). The study of Łosowski has been based upon extensive and thorough archive query, including very interesting groups of sources (some of them excerpted in the annexes). It attempts to deepen the knowledge of early modern legal culture and mentality of peasant societies. 

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Kacper Górski

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 545-548

„Coram iudicio”. Studies of Legal Culture in Towns in Late Medieval Poland, ed. Agnieszka Bartoszewicz, DiG Publishing House, Warszawa 2013, 166 p.
„Coram iudicio”. Studies of Legal Culture in Towns in Late Medieval Poland, edited by Agnieszka Bartoszewicz is composed of four texts, the subject of which is the legal culture in Late Medieval Cracow, Lublin, and Warsaw. In his article entitled Ipsa civitas habundat furibus: Criminals and criminality in Late Medieval Cracow Maciej t. Radomski first presents the organizational structure of judicature in Cracow, then follows with a description of various criminals as individuals, (e.g. thieves, pickpockets, robbers, forgers, and rapists), reviewing their social backgrounds as well as their modus operandi. Krzysztof Mrozowski in his article Suburbanites of Old Warsaw in the latter Middle Ages (1500–1526) offers an insight into the structure of Warsaw’s suburbs. He characterizes the architecture of the places as well as the people who lived there. Miłosz Resztak in his text Studies on legal culture in the Lublin town chancellery’s activity in the Late Middle Ages analyses particular aspects of the city chancellery in Lublin. First, he focuses on status denotations in the examined book. Then he characterized the role of Polish-language words in the books of the records from Lublin. In Wojciech Patronowicz’s article Lublin citizens’ everyday life in the 1408–1532 wilkürs perspective the author presents the aspects of medieval city life regulated by the afore-mentioned wilkürs: administration, security, and trade and craftsmanship, as well as the organizational structure

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Marian Małecki

Cracow Studies of Constitutional and Legal History, Volume 7, Issue 3, Volume 7 (2014), pp. 549-550

Daniel Wojtucki, The Hangman and His Workshop in Silesia, Upper Lusatia, and Kladsko County from the Beginning of the 16th to the Mid- 19th Century, DiG Publishing House, Warszawa 2014, 559 p.
In his monograph The Hangman and His Workshop in Silesia, Upper Lusatia, and Kladsko County from the Beginning of the 16th to the Mid – 19th Century Daniel Wojtucki presents the profession of executioner. Having analysed historical sources, the author comprehensively characterizes the work of the executioner in the broad social context. He describes the profession on the background of the executioner’s family and presents a common approach to such a job. Particularly worth mentioning were some of the extraneous activities that the executioner took up and the collaborators with whom he cooperated. According to legal aspects, the author described the procedure for execution of a sentence as well as tools used in the executioner’s work. As an appendix, the author attached biographies of various executioners.

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Słowa kluczowe: Key words: edition of sources, values of culture, Polish legal history, Statutes of Casimir the Great, Corpus IurisPolonici, the Monuments of Old Polish Law, records, egal-historical source, source edition, privilege, lex privata, general legislation, Germany, Austria, Holy Roman Empire, French law, ordonance, customary law, arrêtistes, jurisprudence, judicature, parlement, attorney, judge, French law, Ancien Régime, Enlightenment, encyclopédisme, jurisprudence, judicature, law handbook, Joseph Nicolas Guyot, Montesquieu, legal-historical source, Belgium, the Netherlands, Liège, Commission for Old Laws and Ordinances of Belgium, the secession of Belgium, Belgian law, customary law, ordinance, legal history, source edition, legal historical source, methodology of edition, theory of edition, Slovakian law, Hungarian law, Austrian law, customary law, source of law, continuity of law, Judex-Curial Conference, March Constitution of 1848, Austro-Hun, legal-historical sources, sources edition, Croatia, Yugoslavia, edition methodology, theory of edition, digitalisation, critical apparatus, archive, legal-historical sources, Czech Republic, Bohemia, Moravia, sources edition, land law, municipal law, Magdeburg law, mining law, ecclesiastical law, synodical statute, codicology, diplomatics, source edition, legal historical source, translation of historical source, Institute of National Remembrance, The KARTA Centre, history of political and legal thought, methodology of edition, Polish political thought, republican thought, socialist regime, sources’ edition, legal history, Adam Vetulani, Statutes of Casimir the Great, records, municipal law, Duchy of Warsaw, Kingdom of Poland, documentation, peasants, legal culture, The Crown of the Kingdom of Poland, early modern period, Cracow, Lublin, Warsaw, Middle Ages, legal culture, criminal law, criminality, chancellery, suburbs, wilkür, bourgeois, hangman, executioner, Silesia, Upper Lusatia, the Kladsko County, torture, death penalty