Vol. 8 Issue 4 Year 2015

Volume 8 (2015)

Publication date: 31.03.2016

Description

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

Licence: None

Editorial team

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

Issue content

The Relationship between Civil and Canon Law in the Eastern Orthodox Tradition

Wouter Druwé

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 343 - 356

https://doi.org/10.4467/20844131KS.15.020.4880

Theodore Balsamon, a 12th-century Constantinopolitan canonist, famously said: “Civil law punishes, canon law heals”. This paper tries to understand that statement by studying the relationship between civil law and canon law in the Eastern Orthodox tradition. From the 4th century onwards, the Roman imperial administration gave exequaturs to episcopal judicial decisions. In his novellae, Emperor Justinian considered the canons of the ecumenical councils as nomoi, which also implied that he could change canons by enacting imperial legislation. As of the 6th century, canon and imperial laws were published together in so-called nomokanones. At the end of the 9th century, Patriarch Photios formulated – for the first and last time in Byzantine legal history – the division of competences between Emperor and Patriarch. This paper argues that, though civil and canon law were separate fields with their own specific aims, the executability of their sentences remained crucially different.

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Adam Piasecki

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 357 - 373

https://doi.org/10.4467/20844131KS.15.021.4881

In the papyri various leases and rents were designated by the collective term misthosis, which includes so-called locatio conductio rei, as well as l.c. operarum and l.c. operis. In Egyptian legal practice leases had an informal character. Free persons were leased out by their relatives. The papyri contain a variety of agreements which can be considered to be more closely equivalent to locatio conductio operarum. They are conducted by free people, who let out their services. We also know of employment agreements shaped in a manner similar to those relevant to manual labor in which people of relatively high social standing were engaged as professionals. Use of a written form was beneficial to an employee, as it prompted him to give greater consideration to contractual provisions. Although there was no jurisprudence in the Greek system, the complex economy of Graeco-Roman Egypt functioned adequately, and the experience of notaries allowed parties to satisfy their interests.

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From the Living to the Dead. The Principles of Testamentary Succession among Medieval Nobility in the Czech Lands and Hungary

Naďa Štachová , Adriana Švecová

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 375 - 393

https://doi.org/10.4467/20844131KS.15.022.4882

In the present paper, the authors attempt to give a basic explanation of one of the titles of inheritance, while they focus mainly on medieval noble testaments as documented in charters of Czech and Hungarian origin from the late 12th to the early 14th century. General observations on limitations of testamentary succession and specific features of medieval testaments are accompanied by the analysis of preserved documents. While in the Czech lands this refers mainly to a collection of mostly recipient charters, in Hungary the analysed documents are the charters produced in offices of quasi-public notaries, i.e. places of authentication that functioned from the beginning of their activities on the territory of Slovakia. The unique material going back to the origins of medieval written culture in both lands allows us to reconstruct the path and conditions leading to the issuing of testament and it also enables us to compare the developmental lines of the two neighboring Central European countries, which is a part of the final evaluation.

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Land Reform in Slovakia between 1919 and 1935 – the Instrument of Social and Economic Transformation

Ján Sombati

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 395 - 409

https://doi.org/10.4467/20844131KS.15.023.4883

The article presents a brief overview of land reform in Slovakia between 1919 and 1935 from the viewpoint of social and economic transition from post-feudal agricultural system into a modern one. It outlines the legal, social and economic conditions in Slovakia, which after the rise of Czechoslovakia became the basis for land reform. Due to improper agrarian structure, caused mainly by relicts of feudal system, there were many social and economic problems in Slovakia, so the need emerged for a land reform. The Author analyzes both the ideological background and the practical side of the agrarian reform.
In the summary advantages and disadvantages of the agrarian reform in interwar Slovakia were identified and considered from the perspective of social and economic effects.

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O genezie i praktycznych aspektach funkcjonowania instytucji asesorów sądowych w świetle rozporządzenia Prezydenta Rzeczypospolitej z dnia 6 lutego 1928 r. Prawo o ustroju sądów powszechnych

Dorota Malec

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 411 - 428

https://doi.org/10.4467/20844131KS.15.024.4884

The institution of court assessor, which was introduced by the first Polish nationwide law on the structure of common courts in 1928, later preserved by post-war regulations, and finally eliminated as the result of a ruling by the Constitutional Tribunal of 2007, was restored by an amendment in 2015. The recent changes in the law necessitated an analysis of the origins and range of assessors’ power in the Polish legal system. The idea of mandating court trainees, who passed the judge’s exams, called podsędek, occurred in the course of the Codification Commission. They had the power to perform certain activities assigned to judges, except for the power of adjudicating, which was reserved for independent judges. In the final version of the law on the structure of common courts of 1928 these court trainees were named assessors and it was possible to mandate them (after the amendment of 1929 such mandates were only for a specified time) to perform judge’s activities (including the activities of investigating magistrates), but without the power of adjudicating (art. 260 §2). The constitutional rule of reserving the power of adjudicating only for independent judges was seriously limited by the introduction of a provisional regulation (art. 282 §2), which allowed the mandating of assessors to perform the duties of provincial judges, and to be members of adjudicating panels in district courts. This regulation, criticised by legal doctrine and judicature, was an exception to the rule defining the status and scope of the functions of the assessors. Consequently it started a breach which allowed for delegating the authority to adjudicate to assessors. The number of assessors was growing and in the mid-thirties the number of assessors was nearly equal to 1/6 of the number of judges. The situation of assessors was uncertain and their material status was mediocre due to salaries which were lower than those of judges. Despite the fact that assessors were performing the judges’ activities they were not benefitting from judges’ independence in full scope. The only provision in favour of assessors was that they could neither be went into retirement without their permission nor be moved to another post during the period of performing judges’ activities. Assessors, equipped with the power of adjudicating, returned to the Polish legal system after a few years of absence. Based on the law on the structure of common courts of 2015 it is worth noting that during discussion of the project, arguments similar to those which were present in discussion and criticism of the law on the structure of common courts of 1928 arose again.

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Social Legislation in the First Czechoslovak Republic

Zuzana Illýová

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 429 - 439

https://doi.org/10.4467/20844131KS.15.025.4885

The article reviews theoretical bases of the social doctrine as well as the legitimacy of the state interference in resolving social inequalities among the population, with respect to the dynamics of the economic, political and social changes, and other factors. Subsequently, the paper maps, throughout a brief historical excursion, the development in the 19th century, when after the disappearance of feudal relations, the obsolete labor and social legislation regulating the position of an individual as well as the social classes, was changed. Social conflicts of a new quality began to emerge on the grounds of the development of the manufacturing sector. It was necessary to approach these conflicts with new instruments to be applied at economic, legal and social levels, respectively. Primarily, however, the article reflects the development after the formation of the First Czechoslovak Republic and the origins of the social legislation in the said period. Tomáš Garrigue Masaryk was the authority who outlined contours of the social doctrine in the First Czechoslovak Republic. The article further considers national and international sources as well as pertinent social legislation.

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Tomasz Kucharski, Instytucja egzorbitancji w systemie prawnoustrojowym Rzeczypospolitej Obojga Narodów, Wydawnictwo Naukowe Uniwersytetu Mikołaja Kopernika, Toruń 2014, 342 ss.

Kacper Górski

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 441 - 445

https://doi.org/10.4467/20844131KS.15.026.4886

Tomasz Kucharski, of the Nicolaus Copernicus University in Toruń, is the author of a monograph titled The Institution of Egzorbitancje in the Political System of the Polish-Lithuanian Commonwealth. The subject of his research concerned the years 1573–1795. According to Kucharski’s definition, egzorbitancje (which could be literally translated as “contraventions” or “transgressions”) were charges, made by noblemen in public, against the Sejm’s and executive or judicative bodies’ activities or inactivities. Those charges concerned infringements of both individual and collective rights of noblemen. A deep and thorough analysis of the term egzorbitancje, including its definition and synonyms, is found in the first chapter, where the historical development of egzorbitancje was also considered. The next part of the monograph was devoted to legislative acts (constitutions) concerning egzorbitancje. Kucharski presented their characteristics and their legal status in the legislative activity of the Sejm. The movement of the noble proponents of egzorbitancje was compared to its equivalent from the 16th century (the executionist movement). Regarding the last chapter, the most thought-provoking question that could be found there concerned the government audit system of the Polish-Lithuanian Commonwealth. According to Kucharski, the central position in the system was occupied by the Sejm. The key objective of the audit was to prevent the rule of law from being violated.

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Karol Siemaszko, „W trudnym okresie odbudowy państwa”. Tak zwany mały kodeks karny w świetle orzecznictwa Sądu Okręgowego w Krakowie w latach 1946-1950,wyd. IPN, Warszawa 2015, 351 ss.

Adam Lityński

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 447 - 452

https://doi.org/10.4467/20844131KS.15.027.4887

Karol Siemaszko’s monograph concerns the very beginning of communist Poland (1946–1950). The subject of the book was to study the application of the so-called “Small Penal Code” (1945). The author divided his work into two main parts. The first one comprised three chapters in which Siemaszko both considers the origin of the “Small Penal Code” and thoroughly analyses the Code itself. What is more, Siemaszko presents the judicial system of post-war communist Poland and criminal proceedings that were binding in that period. The second part of the monograph includes a detailed study of the judicial activity of the District Court of Kraków. The Court’s archives provided the foundation for Siemaszko’s research.

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Nowe badania nad działalnością kopnych (kupnych) sądów w XIV–XVIII w. (Marian Bedrij, Kopni sudy na ukrajinskich zemlach u 14–18 st.: istorykoprawowe doslidżennia,Lviv, Halyc’kyj drukar, 2014, 264 ss.)

Roman Shandra

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 453 - 456

https://doi.org/10.4467/20844131KS.15.028.4888

Marjan Bedrij’s monograph was devoted to shock “kopa” courts, which were non-professional local bodies that were empowered to settle disputes arising in rural communities in Ukraine in the 14th–18th centuries. The research concerned the origin and development of “kopa” courts as well as their activities in the aforementioned period. Bedrij analysed the process of the transformation of “werwa” courts into “kopa” courts (14th century). The legal status of “kopa” courts within the territories of the Grand Duchy of Lithuania and the Kingdom of Poland was also thoroughly analysed. What is more, Bedrij presented the status and jurisdiction of those courts under the regime of Cossack Hetmanate. Court procedure was taken into consideration as well.

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Chronicle of scholarly events (2014)

Cracow Studies of Constitutional and Legal History, Volume, 8 Issue 4, Volume 8 (2015), pp. 457 - 476

https://doi.org/10.4467/20844131KS.15.029.4889

Lenka Šmídová Malárová (Masaryk University in Brno), Overview of Conferences Focusing on Legal History and Roman Law, Organized in the Czech Republic in 2014
Maria Filipiak (University of Göttingen), Chronicle of Legal Historical Events in Germany in 2014
Alexandra Letková (Comenius University, Bratislava), Annual Report on Slovak Legal History 2014
Roman Shandra (Ivan Franko Lviv National University), A Brief Review of Scientific Events in Legal History in Ukraine in 2014
Tamás Kecskés (University of Szeged), 2014 Annual Report on Legal History from Hungary

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Słowa kluczowe: Theodore Balsamon, church-state relations, ecclesiastical court, Edict of Thessaloniki, The Code of Justinian, Justinian I, Theodosius the Great, Leo VI the Wise, Basil I., legal history, civil law, canon law, ecclesiastical law, Byzantium, Eastern Roman Empire, nomokanones, canons, Patriarch of Constantinople, history of labour law, law of contracts, ancient economy, Hellenistic law and society, law and papyri., Middle Ages, law of succession, acts mortis causa, testament, the Czech lands, Hungary, land reform, land ownership, social policy, economic policy, social doctrine, expropration, fideicommisum, administration of justice, court assessor, law on the structure of common courts, Czechoslovakia, interwar period, First Czechoslovak Republic, social policy, labour law, social legislation, manufacturing sector, Thomas Masaryk, The Great Depression, social insurance, social justice, Polish-Lithuanian Commonwealth, legal history, constitutional history, Sejm, egzorbitancje, constitutions concerning egzorbitancje, legislation, legislative process, sources of law, rule of law, Cardinal Laws, government audit., Communist Poland, Stalinism, communism, Penal Code (1932), Small Penal Code (1945), District Court in Kraków, military court, Republic of Poland, Ukraine, Ruthenia, shock (“kopa”) court, “kopa” judiciary, rural community, court procedure, Grand Duchy of Lithuania, Kingdom of Poland, Polish-Lithuanian Commonwealth, Cossack Hetmanate.m of Poland, Cossack Hetmanate

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Volume 8 (2015)