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Volume, 8 Issue 3

Volume 8 (2015) Next

Publication date: 20.10.2015

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Volume Editors: 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

Jacek Matuszewski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 215-228

https://doi.org/10.4467/20844131KS.15.013.3990
The author reflects on reasons why national law wasn’t taught at medieval academies. National law in Poland, derived from a customary system of law and was the dominant element of the justice system until the termination of the tenure of the State of nobility. The failure to teach the law should not have been caused by lack of staff able to teach, nor by lack of students interested in learning. Hence, one might consider whether it wasn’t in fact a feature of the law itself that constituted this obstacle.
In light of research into the characteristics of oral culture societies, where the common law developed, the hypothesis may be constructed that the customary system of law that existed in preliterate times could not create a system of norms, whether general or individual – as it is assumed based on the content of the common law that was written down. Although in the absence of a written record, we do not have specific information concerning the functioning of this system, it can be assumed that it contained only the rules, indicating the measures to be taken to settle the dispute arising within the society. It was not possible to apply the norm, but using the mechanisms to preserve social peace.
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Anna Rosner

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 229-242

https://doi.org/10.4467/20844131KS.15.014.3991
The teaching of law in the Duchy of Warsaw (1807–1815) and the Kingdom of Poland (1815–1832) was due to the implementation of requirements concerning new judicial and administrative posts. Law education was now obligatory, in contrast to the Republic of Nobles (XVI–XVIII cent.). That is why the new law schools were established: the School of Law and Administration in the Duchy of Warsaw, and the Law and Administration Faculty of the Warsaw University in the Kingdom of Poland. The new social stratification and the establishment of a social class of the intelligentsia were in progress, and judicial posts were now open to persons of non-noble origin.
The School of Law and Administration created its own modern program for the teaching of law. In addition to the theory of law, the new program also implemented the elements of general knowledge, as well as law education, known from the Republic of Nobles: the basis of all active citizenship. These components were creating a new understanding of the terms “state” and “nation”.
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Danuta Janicka

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 243-256

https://doi.org/10.4467/20844131KS.15.015.3992
The study presents three types of courts, i.e. courts of conciliation, courts of honour, and civic courts, that functioned outside the official administration of justice in the Polish territory which was divided among the three imperial powers in the nineteenth century. Beyond this, it focuses on popular methods they employed in rendering judgments. The study is based both on literary and journalistic sources, mainly memoirs.
Polish writers and publicists attached particular importance to the courts of conciliation. They depicted them as a part of Polish culture and emphasized their great practical importance. They pointed out how these courts passed hundreds of judgments trying to satisfy both parties in any given dispute or take into account their claims according to the “fifty-fifty” rule, widely known in Poland as splitting the difference or a “Cracow bargain”.
Moreover, Polish writers wrote about the courts of honour, which began to change their meaning during the late nineteenth century. Until that time they had been functioning as bodies deliberating on allowing armed duels. But by the end of the nineteenth century their judgments began more often to order apologies to the offended party. Polish writers and publicists recommended to the courts of honour that disputes should be settled amicably, i.e. by passing judgments that ordered apologies or the retraction of insults. In this way, the writers took an active part in the public debate concerning duels, which continued into the beginning of the twentieth century.
The writers also popularized the civic courts, which had a very specific character. They could investigate Poles’ behavior in the public sphere, and condemn anything they regarded as morally forbidden as being detrimental towards Polish society. A condemnatory judgment from a civic court carried a certain stigma with it, i.e. the state of being deprived of honour and rights within the Polish community. A social activist, priest, or writer who received a condemnatory judgment, had to cease his or her public activity and publications of his or her works, which meant, in fact, a large measure of exclusion from Polish society. One of the notable Polish men of letters, Stefan Żeromski, treated civic courts’ activities with reserve, on the other hand, he never dared to impugn their role.
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Andrzej Adamczyk

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 257-276

https://doi.org/10.4467/20844131KS.15.016.3993
The German Civil Code (Bürgerliches Gesetzbuch) did not solve the dispute over state civil responsibility for imperial acts, leaving this issue to the legislation of particular states (according to Article 77 of the Introductory Law to the Civil Code of 18th August 1896 Einführungsgesetz zum Bürgerlichen Gesetzbuch). They were neither obliged to introduce a uniform state civil liability nor to implement a specific form thereof. In the period 1896–1919 state liability was introduced by 15 German states and the German Reich. The legal solution chosen therein consisted in the state’s taking responsibility for any official in cases of damages caused by his illegal acts and omissions (die Haftungsverlagerung). The extent of the state’s responsibility could be realized determined on the basis of premises provided by §839 BGB (the Amtshaftung). State responsibility was defined as an intermediate one because its scope was determined by the scope of the functionary’s responsibility.
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Robert Jastrzębski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 277-298

https://doi.org/10.4467/20844131KS.15.017.3994
The intent of this study is to analyse the origins, development, and application of the enactments which regulated the problem of the collision of legal rules which emerged in the territory of Poland after the First World War. The article is divided into four parts. The first part refers to the characteristics of the concept of inter-district private laws (i.e. the interlocal, the interregional, and the interterritorial), as well as the regulations of the Invading States, and to their legal orders, in particular those of the Russian Empire, as they applied in the Kingdom of Poland which was established by the Congress of Vienna. The second part discusses various aspects of the creation of the legal order of the newly created Second Republic of Poland, such as: the diverse orders of private law in force within the territory of the Polish State after 1918; the works of the Commission of Codification of Law; and the works of the Polish parliament on a project of the statute on the private inter-district law, which was discussed along with a project concerning the act of private international law. The third part of the study deals properly with the Act of the 2nd of August 1926, on the law specific for private inter-district relations. Special attention was paid, in particular, to the case law of the Supreme Court of Poland concerning the application in practice of the solutions adopted in the aforementioned statute, especially in the materia of the marriage law of persons, the property law, and the law of succession. Forensic jurisprudence, in fact, quite often had to interpret and elucidate provisions of the statute for the purpose of application
in relation to the corpus of different (foreign) legal orders. The problem of the binding force of the aforementioned statute after the unification of law in 1945–1946 is another topic covered in the study. At the end, in the conclusions, it is underlined and proved that the inter-district private law has more than just a historical dimension and significance. Even today it constitutes the basis for judicial decisions in private cases which arose before the Second World War.
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Przemysław Marcin Żukowski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 299-317

https://doi.org/10.4467/20844131KS.15.018.3995
There were eight departments of administrative law and science at Polish universities during the interwar period: Kraków, Poznań, and Warsaw each had two; and Lwów and Wilno had one each. That also means that there were eight appointee professors: W.L. Jaworski and K.W. Kumaniecki in Kraków, J. Panejko in Wilno, Z. Pazdro and T. Bigo in Lwów, B. Wasiutyński, S. Kasznica, and M. Zimmermann in Poznań, and B. Wasiutyński in Warsaw (after having left Poznań).
There were nine persons who received veniam legendi, which meant permission to give lectures in administrative law and science. Such authorization was given to K.M. Krzyżanowski, J. Panejko, T. Hilarowicz, W.S. Wachholz, and J.S. Langrod (all in Kraków), and T. Bigo, W.E. Rappé, M. Zimmerman, and W. Klonowiecki (all in Lwów). Only K.M. Krzyżanowski transferred his permission to Vilnius.
Based on the given facts, it is clear that two universities dominated: Kraków first and foremost, followed by Lwów. The levels of academic output distinguish two fields of interest: the the judiciary, and the functioning of territorial autonomy and administrative action.
The paper deals with professors of administrative law and science at Polish state universities in Kraków, Wilno, Lwów, Warsaw and Poznań.
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Iwona Barwicka-Tylek, Jacek Malczewski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 319-325

https://doi.org/10.4467/20844131KS.15.019.3996

The article is a voice in the debate concerning the role of historical-legal subjects in the curriculum of legal studies. The authors argue that the declining popularity and attractiveness of those subjects largely results from inadequate understanding of the purpose and form of instruction. Instead of building the intellectual ethos of future lawyers they contribute to a new type of absolute ignorance. Referring to their own academic discipline, the history of political and legal thought, the authors outline a workable teaching model.

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Krzysztof Fokt

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 327-332

In the year 2014, Cracow University celebrated the 650th anniversary of its establishment. To honor this occasion appropriately, the staff of the Faculty of Law and Administration devoted itself to a number of substantial scholarly activities. Especially worth mentioning in this context is that the Faculty of Law and Administration of the Jagiellonian University organized the anniversary, XXVth Convention of Polish Legal and Constitutional Historians (22–25 September 2014).
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Katarzyna Krzysztofek

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 3, Volume 8 (2015), pp. 333-341

On the 22nd through 25th of September 2014 there was held in Kraków the 25th all-Polish Congress of Legal Historians. Its leitmotiv was the study and the teaching of law in the past and at present. The topic introduced by the organizers referred to the celebration of the 650-year anniversary of the founding of the Jagiellonian University in Kraków. The celebration fell upon the academic year 2013/2014. The chairs of legal history of Faculty of Law of the Jagiellonian University in Kraków were the organizers of the jubilee Congress. The Congress was attended by more than 160 participants, including one hundred of those who presented their papers and those who demonstrated their research achievements during the poster session. The participants arrived from more than 20 research centers in Poland and abroad. The Congress took place in the Jagiellonian University’s Guest House in “Przegorzały” which was located at the street Jodłowa 13. On the 23rd of September 2014 it was Rector Magnificus, professor doctor habilitus of medical science Wojciech Nowak who made a ceremonial opening of the debates. The ceremonial opening was followed by the plenary session while the afternoon sessions of that and the next day were conducted in parallel sections. Each section comprised the reports that were focused on one discipline of legal history: Roman law, constitutional and legal history of Poland, general constitutional and legal history, history of administration and the history of political and legal doctrines. In the morning hours of the 24th of September 2014 there was held the poster session in which the post--graduate students could demonstrate through a poster the results of their research. In the afternoon of 24th September 2014 there was held the last session. It was a plenary one and it served for summing up the debates of the 25th all-Polish Congress of Legal Historians.
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