Vol. 8 Issue 2 Year 2015

Volume 8 (2015)

Publication date: 07.09.2015

Description

Volume Editor: Dorota Malec, Wacław Uruszczak, Katarzyna Krzysztofek, 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

Doktrynalne ujęcia relacji prawo naturalne – prawo stanowione od starożytności do czasów oświecenia

Marek Maciejewski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 2, Volume 8 (2015), pp. 107 - 132

https://doi.org/10.4467/20844131KS.15.007.3813

The article discusses the shaping of the relation between natural and statutory law in philosophical, political, and legal concepts from Antiquity until the eighteenth century. Firstly, the author analyzes the views of sophists, Aristotle, stoics, Saint Augustine of Hippo, and Saint Thomas Aquinas in order to identify the main principles concerning the matter at hand based on their theories. His research permitted him to conclude that during the mentioned period the prevailing conviction was that statutory law (positive law) should not violate natural law (and sometimes simultaneously Gods law) because the latter was perceived as a higher legal order. Statutory law that conflicted with this higher law was usually considered invalid and, as such, did not incorporate an obligation of obedience. It was also usually considered unjust. For Christian thinkers God himself was the creator of the principles of justice; therefore that law which came directly from Him was put at the top of the legal structure. Natural law was seen as mirroring this law of God. In turn, a statutory law was supposed to reflect the rules of natural law. On the other hand, the representatives of the so-called bourgeois school of natural law which are described in the article (H. Grotius, T. Hobbes, S. Pufendorf, and others) did not see the question of the compatibility between statutory and natural law as unequivocally as their predecessors did, even though they too supported the notion that public authorities should, or even must, respect natural law. They did not, however, consider statutory law which violated natural law to be deprived of validity.

PDF

Paweł Garwaski a „przygotowanie zawodowe” sędziów niższych sądów szlacheckich u schyłku XVI wieku

Przemysław Gawron, Adam Moniuszko

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 2, Volume 8 (2015), pp. 133 - 157

https://doi.org/10.4467/20844131KS.15.008.3814

The first part of this article presents Paweł Garwaski’s career (from the mid-sixteenth century to 1618), that started from the Płock office of land recorder (from 1588). His example led to an initial analysis of the careers of persons who obtained the court offices of: podkomorzy (succamerarius), land judge (judex terrestris), land vice-judge (subjudex terrestris), and land recorder (notarius terrestris) during the period 1588–1600. This analysis showed that the most decisive factors for obtaining a court office were: social background from a noble estate, family connections, material status, political activity (earlier functions in parliament or dietine), military service, and support of a patron. Higher education did not play a significant role, even though there are examples of at least a dozen persons, who began university studies in Poland or abroad. Legal practical experience or acknowledged legal skills by the local noble society were much more important. even most of the nominees for court office or at least a significant part, had these kinds of professional qualifications. However, it must be stated, that due to scattered and incomplete sources and early stage of research, the results are far from conclusive. In addition, the European background of the time was sketched, i.e. requirements and conditions of judges’ careers in England, France, and Castile.

PDF

Spory doktryny wokół procesu konstytucjonalizacji praw podstawowych w Niemczech w II połowie XIX wieku

Anna Tarnowska

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 2, Volume 8 (2015), pp. 159 - 171

https://doi.org/10.4467/20844131KS.15.009.3815

The objective of the author of this contribution is to present selected aspects of the views of nineteenth-‑century luminaries of German jurisprudence, focused on the nature, role, and procedures for the protection of citizens’ fundamental rights (Grundrechte). Problems of the hierarchy of legal norms (the relationship between the Constitution and primary legislation), the origins of the concept of subjective rights, the concept of constitutionality of law as a consequence of the adoption of the primacy of the Constitution, the application of constitutional norms in the matter of fundamental rights, and finally the creation of a system for the protection of public rights, among others present in the discourse, are included in the outline. A characteristic element of this discourse is the initial lack of acceptance of the subjective nature of fundamental rights, and after their recognition the lack of the acceptance for judicial review by a specialized court or by a judge’s control in the particular case. These discussions have undoubtedly had a significant impact on the evolution of, and the present attitude toward, the doctrine and judicature of the German Superrechtsstaat idea of the rule of law.

PDF

Spór o model prawnika w Drugiej Rzeczypospolitej

Maciej Marszał

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 2, Volume 8 (2015), pp. 173 - 183

https://doi.org/10.4467/20844131KS.15.010.3816

One of the many problems facing the reconstituted Polish state in the beginning of the twentieth century was the standardization of the structure of and methods for teaching in academic institutions. During this period four main schools of the teaching of law dominated scientific thought. The main goal of the article is to present the main approaches and schools of the teaching of law and its methodology in Poland in the early twentieth century and to determine which of these schools held the most dominant position.

PDF

Kształcenie kandydatów na wyższych urzędników administracji w ankiecie Komisji dla Usprawnienia Administracji Publicznej z 1929 roku

Jacek Przygodzki

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 2, Volume 8 (2015), pp. 185 - 198

https://doi.org/10.4467/20844131KS.15.011.3817

This elaboration deals with the issue of the education of senior officials of public administration as it was evaluated in the questionnaire carried out by the 1928 Commission for the Improvement of Public Administration, established in. The Commission prepared a questionnaire about the described issues and sent it to prominent representatives of the Polish scientific community. All respondents interviewed by the Commission found that higher education must be the basis for employing people for these positions. The appropriate institutions for their education were to be faculties of law at the universities.
The majority of the respondents stated that legal studies programs should be slightly modified to provide greater knowledge of administrative law and social science. The replies to the questionnaire opposed the creation of separate administrative institutes for educating senior officials.
A matter of clerical practices was included in the described document, however most respondents took positions against their introduction. They argued that it could extend the duration of legal studies and that the candidates would learn the practical aspects of administrative activities during their preparatory service after completion of education at the university.

PDF

Argumentacja historyczno-prawna w orzecznictwie Izby Lordów przełomu XX i XXI wieku na przykładzie nawiązań do sprawy Moses v. MacFerlan z 1760 roku

Jan Halberda

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 2, Volume 8 (2015), pp. 199 - 214

https://doi.org/10.4467/20844131KS.15.012.3818

Through an analysis of cases of unjust enrichment (law of restitution), and investigation of the lines along which the judges invoked the landmark case of Moses v. MacFerlan (1760), the author of the paper discusses the role played by legal history in disputes carried on in the House of Lords. After elaborating the details of the aforementioned case (2), he presents the doctrine of implied contract that prevailed in the 19th century (3), and discusses the opinions of the Lords articulated at the turn of the twenty-first century on the occasion of their discussing the meaning of the principle of unjust enrichment (4a). Likewise he discusses the introduction into English law of the change of position defense (4b), and comments on court decisions on interest (4c). Finally, the author investigates references to legal history as made in order to justify the overruling of precedent (5).

PDF

Files to download

List of abbreviations PDF Table of Contects PDF

Słowa kluczowe: law, nature, natural law, statutory law, positive law, validity of law., Paweł Garwaski, nobility courts 16th century, offices Kingdom of Poland 16th century, patronage in Poland 16th century, legal education in Poland 16th century., fundamental rights, subjective rights, history of constitutional courts, history of administrative courts, constitutionality of law, judicial review, German jurisprudence., lawyers, teaching, schools, models, universities., the Second Republic of Poland, improve administration, clerical corps, reform of administration, Commission for the Improvement of Administration., legal history, England, English law, common law, restitution, unjust enrichment.

Volume, 8 Issue 2

Volume 8 (2015) Next

Issue content

Files to download

Volume 8 (2015)