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Volume, 8 Issue 1

Volume 8 (2015) Next

Publication date: 02.06.2015

Description

Volume Editors: prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak, dr Katarzyna Krzysztofek, dr Marek Stus

Licence: None

Editorial team

Issue Editors prof. dr hab. Dorota Malec, prof. dr hab. Wacław Uruszczak, dr Katarzyna Krzysztofek, dr Marek Stus

Issue content

Przemysław Kubiak

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 1, Volume 8 (2015), pp. 1 - 24

https://doi.org/10.4467/20844131KS.15.001.3740
There is a prevalent view among current researchers of Roman law strongly depreciating the role of ancient orators in the development of Roman law, their social prestige, and their knowledge of law. However, this opinion, excessively generalized, does not take into consideration some dynamic changes that were taking place in the group’s contemporary society. In the Republic, a court speaker was patronus, deriving from the highest circles of the aristocracy and therefore enjoying the esteem and respect of the rest of the society. Oratory was considered one of the main virtues of a good citizen. Sometimes, because of the dominant educational system of ancient Rome and the social background of patrons, some of them were also jurists. Other patrons also knew the law very well, but not as well as iuris prudentes.  Some of them definitely had no knowledge of Roman law, and “advocates” of this sort,  have proved a nightmare for judicial systems throughout history. Gradually, even as early as Cicero’s times, a group of court speakers from the lower social stratum began to appear, who, as a rule, did not know the law and relied on the help of less significant jurists in court.
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Grzegorz Smyk

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 1, Volume 8 (2015), pp. 25 - 40

https://doi.org/10.4467/20844131KS.15.002.3741
A characteristic of the Russian legal-administrative literature, nearly until the end of the nineteenth century, was a predominance of the police manner of formulating functions and duties of public administration. It led to a lack of clear distinction between the sciences of administration and of administrative law and to the distinct attenuating of the latter science.  It appears to have been the result of both the Russian tradition of exposing administrative-structural issues dating back to the close of the eighteenth century and the weakness of the domestic theory of administrative law, constantly colliding with the formal political-structural frameworks of the Empire. However, the works of such authors as Wasilczikow, Kuplewskij, Iwanowskij, Tarasow or Jelistratow, although they were very few, were original in their content, and were the exceptions, setting the direction for the development of Russian administrative sciences, and constituting a peculiar reference point in Russian legal-administrative literature. Although they were free of most of the defects that the works of their predecessors were affected with, they were also rather an attempt to adjust the new trends dominating in western European literature to the situation in the Russian Empire, which condemned them to the position of always being one step behind in relation to their French or German counterparts.
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Wojciech Witkowski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 1, Volume 8 (2015), pp. 41 - 55

https://doi.org/10.4467/20844131KS.15.003.3742
The objective of the paper is to present comprehensively, but also in a specific way, the Warsaw society dealing with the science of law during partitions i.e. the Duchy of Warsaw and the Polish Kingdom (in the years 1807–1915). Within these years Warsaw was developing dynamically and became a modern, capitalistic city, and as a result of that the social and economic changes considerably influenced legal alterations both in the sphere of public and private law. The paper sets forth three main issues.
First, it shows the scholarly activities of Warsaw lawyers associated with two higher schools:  the Warsaw University in the years 1808–1831, and the Law and Administration Faculty of the Warsaw School in the years 1862–1869. Beyond this, the paper presents some of the scientific achievements of lawyers who were active independently of the higher schools which were closed down for political reasons, and when legal publications could be printed mainly in scientific newspapers.
Secondly, the paper deals with the problem of the law defining court procedures differently from that of the Russian Empire, especially in civil law where the differences between the French and Polish systems remained until the end of the presented period. This difference considerably influenced the scientific works of the Warsaw society, distinguishing it from the legal societies in the territories of the other partitions.
Thirdly, the scientific achievements of four subsequent generations of lawyers are analyzed in broader perspective. Profiles of scholars, their views, and associations with different schools of thought in the first generation of 1808–1831 are presented, followed by the second generation, which was active in the period between the November and January Uprisings. Among those lawyers there were supporters of both natural law and of the historical school, but with time there were more and more of those who subscribed to the dogmatic method and the French school of exegesis. The third and fourth generations, active in the 1860s, were associated first with the Law and Administration Faculty of the Warsaw School, and then with the newspaper – “Gazeta Sądowa Warszawska.” This age was characterized by legal positivism, but also by the still extant historical school. Generally speaking, the works of Warsaw lawyers were varied and miscellaneous, and on an equivalent level with European counterparts, but national in their character.
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Marian J. Ptak

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 1, Volume 8 (2015), pp. 57 - 76

https://doi.org/10.4467/20844131KS.15.004.3743
This study is an attempt to synthesize a presentation of the tradition of teaching law in Wroclaw and in Frankfurt-am-Oder, and its continuation in the organization of the University of Wroclaw and the Legal Faculty, from its establishment in 1811 to its liquidation in 1945.
The article describes the legal foundation of the legal faculty, paying particular attention to its Rules of 1840, as well as the teaching staff, the organizational structure of the faculty, and housing conditions. Based on preserved lists of lessons (lectures and other classes) special attention was paid to the particular subjects taught in the curriculum. The study takes into account the number of students and their ethnic backgrounds, shedding particular light on the way the regulations and practices discriminated against Jews and Poles. Towards the end of the study, the author discusses the activities of the faculty during the Second World War. It is worth mentioning how the organizational framework of the legal faculty combined the teaching of law with the teaching of statecraft, economics, and politics.
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Bożena A. Czech-Jezierska

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 1, Volume 8 (2015), pp. 77 - 92

https://doi.org/10.4467/20844131KS.15.005.3744
The article presents the difficult history of the teaching of Roman law in Poland in the period of 1944–1989. The standards concerning the education of lawyers favoured by the socialist authorities aimed at making it more practical. People’s Poland needed lawyers with the “proper” world-view.  At that time the ideology of the socialist regime played a great role in politics. The Soviet ideology rejected Roman law as the law of a slavery-based system in which private property dominated. Consequently, the state socialist authorities in Poland opposed the study of Roman law and tried to eliminate it from the university curriculum. Despite these difficulties and pressures, Roman law as a university subject was still taught in centers of legal education between 1944 and 1975. In 1975, following the reform of law studies in Poland, the subject was incorporated into the history of law curriculum and disappeared as an autonomous discipline for six years. Roman law was reintroduced into the law curriculum in 1981, when universities in Poland gained more freedom in this respect. Since then it has been taught mainly in the first year of studies, though the scope of its teaching has been narrower than it was in the inter-war period. The relation between Socialist law and Roman Law is still an interesting subject, and it is worth a further and more in-depth examination.
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Anna Moszyńska, Zbigniew Naworski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 1, Volume 8 (2015), pp. 93 - 106

https://doi.org/10.4467/20844131KS.15.006.3745
This article provides an overview of research conducted by the authors on the role of the science of the history of law in the jurisprudence of contemporary justice. This research refers to the debate held for many years about the place and dimension of lectures on the history of law in the programs of study for future lawyers. This dispute takes place almost exclusively as an internal discussion among the academic community; the representatives of the practice remain silent. Meanwhile, the preliminary results presented in this article show that working in the judiciary requires a deep knowledge of the sources of law reaching back to the end of the eighteenth century and throughout the nineteenth century. This is illustrated by the analysis of the jurisprudence of the Supreme Court, as well as ordinary and administrative courts, which are often based on historical regulations. In the following article the authors point out three examples of cases in which the resolution of the case was based on historical legislation.
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