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Organizer: Ústav pro studium totalitních režimů ve spolupráci s místopředsedou Senátu Parlamentu České republiky MVDr. Jiřím Liškou a s Úřadem vlády České republiky; pod záštitou předsedy vlády Ing. Jana Fišera, CSc. Další spolupráce též partnerské instituce sdružené v Platformě evropské paměti a svědomí. Venue and date: Senate of the Czech Republic and Office of the Government of the Czech Republic, 24-26. February 2010
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The resolutions of ecumenical councils in 12th-16th centuries referred to problem of concubinage very often. According to them, the concubinatus was a sin and crime, so it should have been condemned and punished. The concubinage was penalized in both situations – when it concerned priests and other members of the Catholic Church. The fight against concubinage had a purpose to preserve good opinion about priests and the dignity of the institution of Christian marriage. What regards priests, there was a whole set of canonical sanctions, starting from penalty affecting property and ending with the privation of office and dignities. Exceptionally penalty of imprisonment (poena carceris) was used. What regards laymen, only penalties ferendae sententiae were applied. To make the penalization more effective, bishops could ask state authorities for help (auxilium brachium saeculare). The resolutions also mentioned about impediment to marriage due to affinity, which existed when copula carnalis took place. Many of those norms have been used until 1917, when the first code of canon law was promulgated.
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The problem what to do with the old law in new political circumstances in the 20th century in Poland – during the period of less than 75 years – occurred three times. These milestones were: gaining the independence after World War I, implementing Communist system after World War II and regaining independence after 1989. This text refers to changes in penal and civil law between years 1944 and 1964 – after taking power by Communists.In 1944, because of tactical reasons, Communists pretended that they preserved the continuity of legal system. They treated this problem instrumentally. In practice, they rejected regulations which were incompatible with the rules of new system. They claimed that legal regulations issued before 1939 were still in power, but, on the other hand, they demanded that “new class consistence” should be put into old legal norm. Because of that, new interpretation of old law played important role in the transformation of legal system. It was clearly seen in the jurisdiction of Supreme Court. After ten years of Communist power the legal system was completely different from the pre–war one, although formally old codes and other regulations still existed.Simultaneously, works on codifying civil law and recodifying penal law were held.They were ended in the 60’s.
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The article is concentrated on the procedure of carrying out the prison penalty in 1918–1938. You can distinguish two periods important for Polish penitentiary law in these times. The first of them was marked by taking out prisons from the occupants’ hands and by building grounds of Polish penitentiary system. The important step on this field was done on March 7th, 1928, when the President’s decree on system of prison organization was passed. This decree opens new period in Polish penitentiary system, because the progressive system of carrying out the prison penalty was introduced to Polish law then. The model was in accordance with the European standards and was taking into account the resolutions of penitentiary congresses of this time. However, the reality of prisons was significantly different. The progressive system was introduced only with small group of sentenced persons. More than 70% of prisoners had no work and they were kept in crowded prisons with no sufficient hygienic conditions. The problem of crowded prisons was only partially solved by the amnesty acts.
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After World War II the communists, who took power in Poland, did not abolish the old penal code from 1932. However, the new acts on penal law were passed and they were undermining the old system and in fact creating the new one. This situation was criticized by new authorities and in 1950 works on new penal code were inaugurated. It was expected that new code will be ready in one year. However, the reality was completely different and the penal code of so called People’s Poland came into force not earlier than in 1970. The works on new penal code have been going on for a very long time. The Ministry of Justice prepared first draft in 1956. It was published and consulted among specialists. The penal lawyers criticized the draft strongly and it was rejected. The rejection was connected with the new era in communist Poland after Stalin’s death.
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Review of: Piotr Majer "Ustawy policji polskiej (1791–1990). Źródła z komentarzem"; Marszałek Publishing , Toruń 2007; by: Marcin Łysko
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The article describes legal regulations concerning death penalty in Russia from 1398 to 2008. The analysis shows that the death penalty was commonly present in Russian legal acts. The article describes the evolution of the range of death penalty. It was used not only against crimes like homicide, but also against political crimes. It was an instrument in political fight and in repressive criminal policy. The article shows also the means of execution of capital punishment. Throughout the ages it was executed in a very brutal way, to make it painful for the executed person. The death penalty in Russia should not be analyzed only in historical perspective, because it still exists in present criminal code of Russian Federation.
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New political forces (communists), which came into power in Poland at the end of World War II, formally retained the legal system, which existed in the Second Republic before the war. The principle of legal continuity was however undermined in the sphere of military penal law and jurisdiction. The 1932 criminal code was still in force. The decision of making new code was undertaken in 1950. Earlier, from 1947 the Ministry of Justice was working on novelization of penal law. The purpose of these works was to adapt old law to new political principles. These works were interrupted at the end of 1948. One of the reasons of this interruption were disagreements between members of the Codification Committee on the ways of making new law.
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After World War II Polish law was based on law of the USSR. Family law played important role in the reception of Soviet law, because it was the first example of applying Soviet rules. According to Soviet doctrine and legislation, family law was treated as an independent branch of law, separated from civil law. The construction of private law was rejected. The process of adapting Soviet rules started in 1949, when Polish and Czechoslovak lawyers were working together on draft of Family Code. No one of important Polish lawyers supported the idea of separation of family law from civil law at the beginning of works. Later they were forced to change their views and some of them (especially Seweryn Szer) supported the idea of separation of family law strongly. In the late 50’s the discussion about localization of family law was very emotional and open. It was the result of changing political situation (fall of the Stalinism). However, there was no political consent to prepare one civil code and that’s why two codes were passed in 1964: Family and Guardianship Code and Civil Code. The reception of Soviet rules in Polish family law was superficial. According to the prevailing opinion, the existence of separate Family code did not create independent branch of law and family law was regarded as a part of civil law. The supporters of the idea of separation were not able to construct the convincing theory about it. Present attempts to retain separated family code have no historical justification.
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After World War II the new socialist system influenced not only on social and economic life, but also on penal law. Earlier theories on causes of crime and on legal measures of combating the crimes were reviewed. The punishments, including the penalty of deprivation of liberty, were supposed to play correctional and educational role. According to this theory, the system of prison organization was based on education of prisoners and on preparing them for future honest life. One of the most important measures was employment of prisoners. After the war the state needed workers and the state officials decided to use prisoners as a labour force. The motivation to make them work harder was very simple: the chance for conditional release from serving full sentence. Act from October 31, 1951 on conditional release from serving full sentence has introduced so called obligatory conditional release to Polish legal system. If you worked hard and you were more productive than the average, you could be released when you worked in this way for more than half time of your sentence. This solution was criticized by the doctrine and in 1957, after the fall of Stalinism, a new act was passed. It was based on modern solutions, different from those applied in the 1951 act.
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Review of: Jerzy Migdał "Polish penitentiary system of the years 1944-1956"; Publisher. Arche, Gdansk 2007, 279 pages; by: Marcin Łysko
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It is commonly known that family law in each country is based on tradition, culture, religion and that it reflects the society in each country. It is certain that anywhere in the world family law cannot be changed, so as to say, over night and at all costs, and even less so by the experimental institutions. However, after the second world war, due to works of Czechoslovak-Polish Commission, a lot of changes occurred in Czech Family Law. Some of them were positive, some negative: Czech family law was designed according to the Soviet model. Of course, the key changes in the Czech legal order – and in family law – have already occurred and had to occur immediately after the year of 1989, especially in the light of human rights standards in Europe. Despite radical changes in the countries of the disintegrated Soviet Union and countries of its political influence, the Czech lawmakers have been hesitating from day to day with recodification of family law within new Civil Code. The result of the development after the year 1989 is a bleak provisional situation. At present family law is included in the draft of Civil Code, which is now discussed in the parliament. The Czech family law is returning to European legal tradition.
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The decree from 13 June 1946 on crimes especially dangerous in the period of rebuilding state was one of may penal acts passed after 1944. They were passed to protect new political regime and to realize its goals. It is known as „small penal code“. It played important role to stabilize communist rule in Poland. It was supposed to be in power only in the period of „rebuilding“ the state, but in fact it was in power till 1970 (with small changes), when new penal code was introduced. Even major political turnover of 1956, when the code was strongly criticized, did not lead to abolish this extremely restricted decree.
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The paper analyzes the privilege of sanctuary in English criminal law between the 13th and 16th centuries.The general privilege of sanctuary belonged to all churches, chapels and churchyards. Any felon who had taken sanctuary could remain there for forty days. During that time he had to declare to the coroner whether he would stand trial or abjure the realm. If he chose the latter, he then had to confess his guilt before the coroner, swear to leave the country and never return without the king’s license. He was assigned the nearest port from which he should leave the country. If, during this forty days privilege of sanctuary, or while he was en route to the seaside, he was arrested and arraigned, he might plead the privilege of sanctuary. The private sanctuaries, created by a grant either from the Pope or from the king, usually imposed no time limit and gave protection for life. The sanctuary, therefore, could be used as a convenient base for planning criminal activities. No doubt, the privilege of sanctuary was frequently abused. As a result, judges became more hostile to the plea of sanctuary and in 1534 the privilege was taken away from all traitors.Sanctuary and abjuration disappeared in the Tudor period. In 1624, it was enacted that no sanctuary or privilege of sanctuary be hereafter admitted or allowed in any case.
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The communists started to build the new tax system of so called People’s Poland in 1946. The pre-war taxation acts were abolished at that time. Before this date the communist government decided to use the pre-war legislation temporarily, because it needed money coming from taxes to cover the state’s expenses. The tenant’s rate tax decree of 14th November 1935 was still in effect. It had been amended on 20 November 1944, but the change was small: the tax rate was raised and four installments (instead of two) for payments were provided for.The decree of 13 April 1945 transferred the tax assessment, collection, enforcement and revenues coming from the tenant’s rate tax to the self-government units. The earlier construction of tax was sustained and all the revenues coming from this tax were transferred to communes, where the premises were located.The decree of 20 March 1946 on local taxes and the decree on local finances of the same date finally included the tenant’s rate tax into those taxes which were the revenues of the local government units. It was supposed to be main source of revenue in the townships. The new construction of the tenant’s rate tax was strongly based on the pre-war regulations. However, it was following the new concept of taxation policy, which distinguished the status of taxpayers, according to source of their revenue and kind of ownership. The tax was used as an instrument to eliminate private business.
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The legal system of the Polish state in the first years after regaining independence (the so called “liberation”) was based in its fundamental part on the basic regulations created during the Second Republic. They were adapted to the structure of state machinery typical for that time, in which case the public administration and internal security functions were concentrated in the Ministry of Internal Affairs. In July 1944, in the framework of PKWN, these competences became subordinated to two separate bodies: the ministry of public administration and the ministry of internal security. This resulted in the appearance of conflicts of jurisdiction between the two new departments.The conflicts were aggravated with the entry of these departments into the composition of the Provisional Government of National Unity led by Stanislaw Mikolajczyk’s PSL (Polish Peasant Party). The Ministry of Public Administration was headed by Wladyslaw Kiernik (who was related to the populists), and the Ministry of Public Security was led by Stanisław Radkiewicz, a PPR (Polish Workers’ Party) representative. With the intensification of political conflict between the PSL and leftist political parties, cooperation was becoming increasingly difficult between the two ministries, which eventually almost evolved in the form of open competition.The Ministry of Public Security even sought to dominate this competitive power center and gain control over civilian administration. The Ministry sought to achieve this goal both with through political means and by using the subordinated force structures. These means were an effective tool to exert pressure on the organs of civil administration. Attempts to defend the independence of the institutions subordinated to civil administration, taken by successive ministers of public administration, all failed. The key here was the importance of the special position of the security machinery in the then system of authority, as well as the fact that it was led by a representative of the dominant party in the country, the PPR. Any conflict of interest was therefore destined to be determined in favor of the Ministry of Public Security.
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This article tries to explain the peregrinatio academica of the students of Civil and Canon Law of the Crown of Aragon to the Universities of Italy during the 15th and the 16th centuries. Some details concerning the success of some universities like Bologna, Padova or Pavia, in general, or Pisa or Ferrara, in particular, are explained. The cultural and political relationship among the Kingdoms of Aragon, Mallorca, Valencia and the Principate of Catelonia and the different states of Italy helps to understand the introduction of the culture of mos italicus in the universities and the courts of the Crown of Aragon during their modernity.
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In Romania, the history of legal education dates from ancient times. The historical records show that legal education had appeared on the territory of countries that have later entered into the composition of the Romanian State, after enactment of the first written laws (pravile – or codices), and long before the enactment of legal codes on branches of activity. Thus, the preliminary of legal education in the Romanian countries can be traced back to the practice of writing laws (pravila – or codex) that emerged in the 17th century: in Walachia this was the Govora Code of 1640 and the Matei Basarab’s Code (also known as the reshaping of laws) in 1652: in Moldavia it was the Vasile Lupu Code (also known as the Romanian book of learning) of 1646. However, there are historians who claim that since 1400, an Academy of law or, at least, a course in law, would have been organized at the School of Alexander the Good in Suceava. The first educational institutions were established in monasteries and churches and teachers had a western and Byzantine educational background. In Moldavia in 1648, during the reign of Vasili Lupu, the Great Princely School was founded at Trei Ierarhi Monastry in Iasi. In 1694, under the reign of Constantin Brancoveanu – in Walachia, the Princely Academy was founded in Bucharest. Thus were laid the bases of Romanian higher legal education. In 1777 in Transylvania, the Romanian territory which for a long time was under Austro-Hungarian domination, by an imperial document called Ratio educationis imperial, an Academy of law was established in Oradea together with another in Bratislava. Over the years, the study of juridical sciences in Romanian countries developed and received systematic organization – especially after the Union of the Romanian principalities in 1859 – being influenced as much by historical realities as by the political, economic and social conditions of the country. This paper aims to provide an overview of the development of legal education in Romania and the contributions to the development of the science of law of the most prestigious Romanian jurists.
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The article presents the legal regulations on the principles of the presence of women in the Polish-Lithuanian army in the sixteenth and seventeenth centuries. Jan Tarnowski, at the end of the first half of the sixteenth century, introduced the first significant limitations on this issue. According to military law the only women that could exist in the army were the wives of soldiers and persons accompanying the troops (e.g. merchants, servants and the like). The soldiers were not satisfied with this arrangement and began to exploit loopholes for their own purposes. Firstly, marriages were concluded to make prostitution possible. Secondly, in many cases, soldiers declared a concubine or sexual slave to be their lawful wife. During the latter half of the sixteenth century and first half of the seventeenth century, lawmakers endeavoured to refine the rules. As a result (despite the difficulties involved and with the help of military law) during that period the Polish-Lithuanian army had only a small percentage of women present, especially when compared to Western armies. During periods of war there was a significant departure from the legal rules. Then the soldiers treated captured women as spoils of war. Some of the women became “military wives”, others were simply used as sex slaves.
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Polish family law, as a part of civil law, has been unified in 1945–46. The old law, coming from the period of Polish partitions, has been replaced by the decrees, based on drafts prepared by the Codification Committee before WW II. The decree Family Law from 1946 regulated the legal relations coming from consanguinity. One of the most important problems to be solved by the legislator was the status of children born out of wedlock. The article presents the drafts and the discussion about improving the legal status of this category of children. The decree finally improved their position, although it did not eliminate legal distinction of the two groups of children. The legal status of children born out of wedlock was a little worse than those coming from marriage, but the difference was not big. The decree gave an opportunity to provide the children with legitimacy in many cases. The differences in the legal status of children were finally eliminated in Poland in 1950, by enactment of the Family Code.
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