Wybrane problemy ustawodawstwa antyterrorystycznego w perspektywie historycznej

Author(s): Piotr Karasek / Language(s): Polish Issue: 69/2017

Terrorism has been threatening modern societies for many decades. Legislative response to this issue includes creating various definitions and classifications of terrorist acts on one hand and introducing „repressive” counterterrorism laws on the other. This is not a new phenomenon, however, in the history of fight against terrorism there has been many „counterterrorism acts” which did not succeed in resolving the issue – which is illustrated in the article with appropriate cases of XIX century’s terrorist acts. Appropriate, evidence based counterterrorism methods should be sought rather than repressive methods relying mainly on the society’s fear of terrorism.

Świadczenie niegodziwe – trudne dziedzictwo rzymskiej inspiracji

Author(s): Wojciech Dajczak / Language(s): Polish Issue: 72/2018

Incorporating the rules inspired by the Roman condictio ob turpem causam into modern regulations of unjustified enrichment provokes criticism. Such regulations are diversified into several models but mostly invoke controversies. The main goal of this paper is evaluating these critical opinions and doubts repeated in legal discourse using historical and comparative methods. Author focuses on five issues: usefulness of condictio ob turpem causam in the light of works of ius commune jurists; doubts concerning the principle in pari turpitudine melior est conditio possidentis; different approach of various European legislators to the idea of condictio ob turpem causam; relation between regulations of unjustified enrichment and unenforceability of agreements contrary to the o law and good customs; importance of the restitution of payments contrary to the law and good customs for today’s legal practice. The conclusions of such analysis allow to admit that doubts concerning the continuation of the Roman condictio ob turpem causam are justified. From the other side, in times of multicultural societies and increasing number of legal regulations the growth of disputes resulted from the payments contrary to law and good customs can be observed. The rejection of repayment based on the contrary to the objective good faith offers – according to the author – the best compromise between weak points of Roman condictio ob turpem causam and challenges of modern practice. In the legal reasoning it is expressed by the maxime „no one shall be heard, who invokes his own guilt”.Incorporating of this maxime into the unjustified enrichment is all the more justified when higher could be in legal practice doubts concerning the acceptability of rejection of restitution of the payment with has been made without legal ground but in the contrary to the principle of good faith.

Obsada godności Muftiego Muzułmańskiego Związku Religijnego a zasady Konstytucji RP

Author(s): Paweł Borecki / Language(s): Polish Issue: 78/2018

In the Muslim Religious Union there is a dispute over the establishment of the Mufti office. From 2016, a schism has arisen in this religious community. This situation is a source of challenges for the authorities of the state administration and the courts in the application of a number of principles of the 1997 Constitution of the Republic of Poland. There are principles: autonomy and independence of religious associations in their scope, legalism, legal certainty or confidence of citizens in the state and their rights. The legal status of the Union is based on anachronistic legislation: the Act of April 21, 1936, on the relationship of the State to the Muslim Religious Union in the Republic of Poland and the statute approved by the Council of Ministers by way of an ordinance of August 26, 1936. In practice, the Muslim Religious Association applies the 2009 internal statute. Religious authorities and courts try to remain neutral and not interfere in the internal dispute in the Muslim Religious Union. This is in line with the standards stemming from the judgments of the European Court of Human Rights and the constitutional principle of autonomy and independence of religious associations in their own rig However, there is a state of legal uncertainty. It is urgent to repeal the Act and the Statute of 1936. This can be done either by a Constitutional Court decision or by passing a new law on the basis of the Muslim Religious Union Agreement with the Council of Ministers.

The Antecedents of the Regulation of the Economic Competition Agreement in the First Part of the 20th Century in Hungary

Author(s): Norbert Varga / Language(s): Polish Issue: 1/2021

The regulations of the economic competition agreement were introduced by the 20th Act of 1931 after the economic crisis attention to the cartel regulations in Europe in the interwar period. We can realize that the regulation of the unfair business completion has a long codification history which started in the period of the Dualism. Before the end of dualism the Hungary regulated some question related to the cartels special attention to the circulation of commodities. In my presentation, I aim to describe the Hungarian and European codification antecedents and steps (for example: the regulation of industry) of the first Hungarian Cartel Act. This codification process was very important in Hungarian economy and social life because the economic changes started processes in both the field of legal life and legal sciences, and as a result of this, a demand arose to legally codify any rules in connection to cartels. The foundations of these were found in private law, especially in the regulations of the commercial law, which could be further elaborated upon and lead to a development of the regulations on the annulment of contracts in connection to dishonourable business competition.

Papal Clerics in Thirteenth-Century Hungary: Papal Delegations and Local Careers

Author(s): Gábor Barabás / Language(s): English Issue: 3/2019

The paper discusses a special organisation of the medieval Papal Curia: the personal chapel of the popes, primarily focusing on the activity of its members in Hungary, during the 13th century. The papal subdeacons and chaplains played a significant role in the operation of the Apostolic See, e.g. they functioned as legates in a growing number besides cardinals, and they participated in the work of the papal chancellery, chamber, and penitentiary as well. Nevertheless, papal clerics were also to be found outside the Apostolic Court, such as in Hungary, where they can be classified into two different factions: the first major group was formed by the members of the Papal Chapel, who only visited the certain regions of church with special mandates for various kinds of tasks. In most cases, they had to deal with diplomatic affairs, or with matters of ecclesiastical government and discipline. The second category, on the one hand, consisted a group of clerics with special status, they were the so-called papal subdeacons, while on the other hand, certain members of the Hungarian clergy received the title of (honorary) papal chaplain from the popes as a reward for their services.

A Brief Review of Scholarly Events in the Field of Legal History in Ukraine in 2018

Author(s): Roman Shandra / Language(s): English Issue: 3/2019

2018 was a year of important scholarly events for Ukrainian legal history. During this year Ukrainian scholars published several historical-legal academic works and held three professional conferences.

Events and Books in the Sphere of the Study of Legal and Constitutional History in Hungary in 2018

Author(s): Máté Pétervári / Language(s): English Issue: 3/2019

2018 was a productive and successful year for the study of Hungarian Legal History because among Hungarian legal historians, or foreign historians working in Hungary, there were awarded one D.Sc. degree, one habilitation, and three PhD degrees, along with the publication of 17 books dealing with issues in the sphere of Hungarian legal history. I focused strictly on the scholars and departments of Hungarian and European Legal History, to the exclusion of scholars and departments of Roman Law. This report also reviews scholarly works in legal history published in Hungary, as well as important legal history conferences held in Hungary.

A Scientific Examination of and Report on the Hungarian Cartel Law in the Framework of the Bolyai Scholarship

Author(s): Norbert Varga / Language(s): English Issue: 3/2019

Dwudzieste Czwarte Forum Młodych Historyków Prawa Norms and Legal Practice. There and Back Again

Author(s): Jakub Pokoj / Language(s): Polish Issue: 3/2019

The XXIVth Annual Forum of Young Legal Historians was organized by Faculty of Law and Administration of University of Warsaw from 14th through 17th June 2018. This years’ conference was devoted to the issues of norms and legal practice, what was reflected in most of speeches given dur- ing the conference. The organizers gathered nearly 80 speakers who about 20 countries, including non-European states (United States, Israel). As usually, the biggest group of young legal historians represented the host country. There were 6 representatives of University of Warsaw, 4 from Jagiellonian University and 3 from University of Gdansk. As well University of Bialystok as University of Lodz, Adam Mickiewicz University in Poznan, John Paul II Catholic University of Lublin, Jan Długosz University in Czestochowa and Cardinal Stefan Wyszynski University in Warsaw had one representative during the XXIVth Annual Forum of Young Legal Historians.

Prawo małżeńskie w pracach Komitetu Cywilnego Reformy (1814–1815). Edycja źródłowa

Author(s): Michał Gałędek,Anna Klimaszewska,Piotr Zbigniew Pomianowski / Language(s): Polish Issue: 4/2019

We present three source texts. The first are the writings of father Dhiel, General Superintendent of the Reformed Evangelical Congregations, which dealt with matrimonial laws and divorces. Next is the draft act by A. Bieńkowski concerning property contracts between spouses, and the last are fragments of Civil Reform Committee session minutes regarding these writings. The author of the first text covered three issues of fundamental significance to the Protestants, those being: obstacles to contracting marriage, premises for divorce, and the problems of jurisdiction in divorce cases. The author of the published draft act, in turn, postulated the reinstatement of the separation of assets, which had functioned previously under ius terrestre as the statutory property regime in marriage. This solution was in direct opposition to the one introduced in the Napoleonic Code. The draft act was much shorter than the chapter of the Napoleonic Code that it was to replace: 34 articles as compared to 195. In many aspects it could be deemed fragmentary, written from the perspective of the landed gentry, and omitting many problems that concerned other social strata.

Laudacja na uroczystość 90. rocznicy urodzin Profesora Stanisława Grodziskiego. Konferencja naukowa „Łączą nas źródła” (Kraków, 19 września 2019 r.)

Author(s): Wacław Uruszczak / Language(s): Polish Issue: 1/2020

By stary Dąbrowskiego usłyszeć mazurek… Przemówienie podczas konferencji „Łączą nas źródła” w dniu 19 września 2019 r.

Author(s): Stanisław Grodziski / Language(s): Polish Issue: 1/2020

O sposobach wykorzystania źródeł w pracy historyka prawa i ich krytycznych edycjach w 90. rocznicę urodzin Profesora Stanisława Grodziskiego. Konferencja naukowa „Łączą nas źródła” (Kraków, 19 września 2019 r.)

Author(s): Damian Szczepaniak / Language(s): Polish Issue: 1/2020

On the 19th of September 2019, the Faculty of Law and Administration of the Jagiellonian University organised an academic conference entitled “Łącząnas źródła”[“Sources connect us”]. The symposium was combined with the celebrations of the 90th birthday of Prof. Stanisław Grodziski, an outstanding legal historian, author of around 500 publications, and former Dean of the Faculty (1978–1981) and Vice-Rector of the University (1987–1990), who also has an Honorary Doctorate from the University of Wrocław. One of the significant areas of Prof. Grodziski’s academic activity is in the editing of legal history sources. The subject of the conference was therefore a great occasion to focus on Prof. Grodziski’s achievements in this field of study. In the jubilee part of the conference, presided over by Vice-Rector for University Development, Prof. Dorota Malec, speeches were given by Prof. Wojciech Nowak, Rector of the Jagiellonian University, and by Prof. Jerzy Pisuliński, Dean of the Faculty of Law and Administration. The laudation for Prof. Grodziski was delivered by Prof. Wacław Uruszczak. The subsequent part of the conference consisted of 15 papers, divided into three sessions, presented by scholars affiliated with various academic centres. The presentations concerned current or planned editing works regarding legal history sources. Moreover, various methods of applying these sources to academic research and educational activities at the university, as well as to judicial decisions, were discussed. To conclude the conference, Dr. Hab. Maciej Mikuła presented the basic assumptions of the novel project concerning the electronic meta-edition of legal history sources “IURA. Sources of Laws from the Past”.

The International Conference “Unions of States in the Past. Theory and Practice” (Jagiellonian University, Kraków, September 20, 2019)

Author(s): Kacper Górski / Language(s): English Issue: 1/2020

A Students’ Workshop as a Session of the International ”Unions of States in the Past: Theory and Practice” Conference, Jagiellonian University, September 21, 2019

Author(s): Kinga Ciosk,Bartosz Gałucha,Arkadiusz Piskorz,Ilona Rębisz / Language(s): English Issue: 1/2020

Sprawozdanie z Sympozjum Naukowego „Biorę sobie Ciebie za żonę/męża…? Co dzisiaj mają na myśli narzeczeni?”, Kraków, 15 listopada 2018 roku

Author(s): Marek Strzała / Language(s): Polish Issue: 1/2020

The symposium „I take You to be my wife / husband...? What do the nupturients mean today?”was held on November 15, 2018. It was organized by the Faculty of Canon Law of the Pontifical University of John Paul II in Kraków. The main topic of the conference was the meaning of matrimonial consent. During two sessions there were five lectures delivered. The lectures in the first session concerned the faith of the nupturients as the element of matrimonial consent, verifying it nupturients do not exclude indissolubility of marriage, and the question as to whether a marriage motivated by pregnancy always incurs manifest nullity within the meaning of the Apostolic Letter Motu Proprio of Supreme Pontiff Francis Mitis Iudex Dominus Iesus. The last two lectures discussed marriages contracted for other than specifically religious reasons (e.g. economical), and pre-nuptial agreements –especially their influence on the validity of matrimonial consent.

Sądownictwo dominialne w dobrach koprzywnickiego klasztoru cystersów do 1819 r. Wybrane zagadnienia

Author(s): Zdzisław Zarzycki / Language(s): Polish Issue: 2/2020

Dominial jurisdiction in the demesne of the Cistercian Monastery in Koprzywnica underwent a long and complicated evolution from the foundation of the abbey in 1185 to its dissolution in 1819. For over 6 centuries this monastery owned the town of Koprzywnica all the time, and the towns of Jasło and Frysztak temporarily and almost 60 villages and their parts in different periods. Privileges and judicial immunities granted by the ruling monarchs (in 1262, 1267, 1284, 1308, 1360 and later) were of a fundamental importance for development of the dominial jurisdiction of the abbot of Koprzywnica. A kind of exception in the organization of the dominial jurisdiction was the self-governmental structure in the town of Koprzywnica located under German Law (Magdeburg Law) under the privilege of the Duke Bolesław V the Chaste in 1267. However, the abbot did not like the independent judicial position of the head of the commune in Koprzywnica and village representatives in the monastery villages. The head of the commune and village representatives were often confidants for inhabitants’ matters, from where they came from rather than interests of the abbot or the monastery. These circumstances were, among others, the reason that at the turn of the 14th and the 15th centuries the monastery authorities brought to annihilation of self-governmental jurisdiction in their demesne and introduced judges-clerks completely controlled by them. It was the institution of a judicial head of a commune. The abbot’s subjects were not pleased with such a solution. They complained about the judicial activity of the abbot and his clerks even to the king himself. Most often ineffectively. In principle, this state of affairs lasted until the judicial reforms at the turn of the 18th and 19th centuries. At that time the Austrian state authorities and the authorities of the Duchy of Warsaw, following the movement of the Enlightenment, allowed to replace the dominial jurisdiction of the abbot and his clerks with the independent state courts (and judges). Yet, the transformation process of this dominial jurisdiction into the common one was not completed because the monastery in Koprzywnica was dissolved by the Russian authorities in 1819.

ЕКДИК (ДЕФЕНСОР ЦИВИТАТИС) У РИМСКОМ ЦАРСТВУ И ВИЗАНТИЈИ

Author(s): Tamara Ilić / Language(s): Serbian Issue: 3/2021

During the 5th and 6th centuries a significant change occurred in the nature of defensor civitatis, in line with the social and political context. After the reign of Emperor Justinian I, the competences of the defensor decreased. In cities, bishops took over tasks previously carried out by the defensores, a probable consequence being the disappearance of ekdikoi from administration and civil law, believed to have occurred in the 6th and 7th centuries. The conclusions of this study support the thesis that the ekdikoi functioned in the Eastern Roman Empire as late as in the 8th century, and in some forms until the 9th century. In some parts of the Empire the ekdikoi acted until the early 10th century, which was proven by the discovery of the Cherson seals. The methods used are linguistic interpretation of middle-Byzantine legal codes and comparative-historical method based on identification of Byzantine adoptions of Roman provisions.

Școala română de drept internațional și provocările unei doctrine naționale în era mondializării

Author(s): Mircea Dutu / Language(s): Romanian Issue: 1/2020

The issue of the affirmation of a Romanian school and the creation of a national doctrine of public international law has especially been raised in the interwar period. The study of this scientific field started in the Romanian universities in the 1860s, under the name of ius gentium (“the law of nations”), and has developed eventually, gradually acquiring, especially after Romania gained its independence (1878), a national dimension, given that it has been, for a long while, tributary to the French doctrine in the field. The creative effervescence and the momentum of the scientific and cultural development post-1918 – given the completion of the process of creating a national and unitary Romanian state, and the creation of a great national university, by joining to the original law schools in Iaşi and Bucharest the ones in Cernăuţi and Cluj – have favored the creation of an authentic Romanian school of international law and the emergence of the first elements of a national doctrine in the field, marked by aspects regarding the consolidation of the national state as subject of law, organizing international peace and security, promoting new principles of sovereignty, equality in rights, non-aggression, peaceful international conflict solving e.a., as previewed by the Paris peace treaties of 1919-1920. An important factor in this process was the Romanian contribution to the activity of the Society of Nations, and the political and diplomatic promotion of the new European and international order of those times. Romanian doctrinarian contributions have been affirmed as well in the development of the universal science of law, such as V.V. Pella’s, the founding father of international criminal law, Nicolae Titulescu’s, promoter of the law of peace, or Paul Negulescu’s, precursor of global administrative law etc. The beginning of World War II and its consequences have broken this process; between 1947 and 1989 the pertinent concerns have been defined by ideological excesses and, after 1964, by a spurt of sovereignty. In the past three decades, the economical and social transformations and evolutions, registered as well in the field of higher education and legal scientific research, have not favored the revival and the elevation of the interwar issues in the field to a higher level. After a retrospective analysis of the problematic, the author proposes a full program of reconstitution of the Romanian school, and of completion of a national doctrine of public international law.

Revizuirea „procesului optanților unguri” în contra dreptului și cu sfidarea istoriei. Cazul Parcului Naţional Retezat

Author(s): Mircea Dutu / Language(s): Romanian Issue: 1/2020

The laws of restoration of private property of lands – both agricultural and forests – adopted post-2000, and the connected administrative practice and case law have generated, in Transylvania, an issue bearing both historical and ethnical aspects, related to the ancient “trial of the Hungarian optants” (1923-1930). Following the unification of Transylvania to Romania (December 1st, 1918), a number of Hungarians hereby residing have opted for the Hungarian citizenship and leaving Romania (the “optants”), therefore their rural real estate has been expropriated for public utility, as generally provided by the law of agrarian reformation (July 3th, 1921). In this context, on March 15, 1923, Hungary has notified the Council of the Society of Nations on the grounds of art. 63 of the Peace Treaty of Trianon (1920), charging Romania of discriminatory treatment and “winding up” the real estate properties of the former Hungarian land owners, a conflict to be eventually but indecisively resolved by negotiations. The claims of the optants were to be satisfied by the international agreements of The Hague and Paris (1930) regarding the final resolution of the issue of debt arising from the First World War, by creation of the Agrarian Fund and by means of mixt arbitration courts. The refund in kind of rural real estate, as state by the legislation of the past 20 years, has involved as well the lands expropriated by the means presented earlier, and the descendants of the former landowners, compensated accordingly. And on top of this, the demands of re-privatizing the lands where there had already been created national protected areas, as demanded by the law. A very eloquent example is the “Retezat” National Park and the family of the Hungarian optant, count L. Kendeffy.