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Multi-party Parliament in an Anti-Democratic Regime.

Multi-party Parliament in an Anti-Democratic Regime.

Author(s): Károly Ignácz / Language(s): English Issue: 2/2018

At first sight it may seem that the process of democratization in Hungary was markedly different than in the rest of the Central European region. The political system had not been democratic since 1919, and the open balloting, that was no longer used in other European countries, was restored in 1922. But on the eve of World War II, when in the most part of Central Europe democratic systems and free elections had already been eliminated, a parliamentary election were held with secret ballot in Hungary in May 1939. Taking a comprehensive look at this process and the Hungarian political-social system itself, however, important, opposing phenomena can be detected. Despite the antidemocratic election system set up in 1922, a multi-party parliament was operating and, mainly in the capital city, Budapest and in the major cities, the intellectual and cultural life was diverse and pluralistic. Compared to this, the restrictive, authoritarian elements of the system were strengthened in the second half of the 1930s, and the 1939 election, as in the past, was a non-democratic one, because apart from the voting method, the victory of the hegemonic government party was ensured by countless measures within or beyond the boundary of law. The study describes these features in the Hungarian electoral system starting in 1922 (open balloting, the use of government-dependent public administration, limitations on the right to vote, the restrictive nature of the nomination system, the disproportionate allocation of mandates, etc.) and demonstrates their corrupting influence on the voting behaviour, which makes it difficult to draw conclusions about actual political preferences and opinions from the election results.

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The role of economic justice in realizing the principle of utmost good faith fairness in default insurance

The role of economic justice in realizing the principle of utmost good faith fairness in default insurance

Author(s): M. Mulhadi,Isis Ikhwansyah,Raden Kartikasari,Efa Laela Fakhriah / Language(s): English Issue: 03+04/2021

This research is conducted to determine the role of economy in realizing the principle of utmost good faith which is fair since this principle does not take sides in insurance, which makes it possible to decide whether it is effective or not in the context of law enforcement in courts in the 2012-2021 period. This normative-philosophical research is based on philosophy of values and legal doctrines and is conducted with the use of qualitative and comparative methods. It is aimed at analyzing legal resources referring to selected legal provisions set out in legislation, literature, expert conclusions, reports, articles, research results and court decisions.

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Etapy ewolucji polskiego prawa wykroczeń

Etapy ewolucji polskiego prawa wykroczeń

Author(s): Aleksandra Krawczyk-Wojciechowska / Language(s): Polish Issue: 14/2021

Recently, Marcin Łyska published a monograph entitled Prawo wykroczeń Polski Ludowej [The Law of Misdemeanors of the Polish People’s Republic] (Białystok 2020, pp. 136). Łyska begins his reflections in 1918. He presents the French system with the tripartite division of crimes (felonies, misdemeanours, and petty offences), the Austrian system, and the German system. The Polish codification of the substantive law of offences of 11 July 1932 was the result of many years of scientific debate by the members of the Criminal Department of the Codification Commission of the Second Republic of Poland. The introduction of the socialist model of penal and administrative jurisprudence began with the act of 20 March 1950. On the other hand, the pre-war mandate and prescriptive procedures were preserved in an unchanged form. The final codification of the law of misdemeanors of the Polish People’s Republic took place on May 20, 1971. The provisions of some of the acts analyzed here are still in force today. The third stage of the codification of the law on misdemeanors took place in the Third Polish Republic.

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Legal and Political Aspects of the Council of National Defense Functioning in 1920

Legal and Political Aspects of the Council of National Defense Functioning in 1920

Author(s): Damian Szczepański / Language(s): English Issue: 4/2021

The Council of National Defence, established on 1 July 1920, was to be a temporary governmental body having full legislative and executive power in all matters relating to the conduct and ending of the war, and also with the conclusion of peace with Bolshevik Russia. As regards the above matters, the Council of National Defence was to issue orders and regulations, which were immediately enforceable. Despite acquiring very broad powers, both legislative and executive, none of its regulations went beyond its competence scope. The Council of National Defence regulations had to be approved by the Legislative Sejm in order to be valid. During the three months’ period of its functioning, the Council of National Defense issued over 90 different legal acts aiming at strengthening of defense of the Polish State that was threatened with a loss of its independence. The Council of National Defense played a major role in holding back the Bolshevik invasion of Poland. It contributed to formation of a large army, and made the nation regain its faith in successful end of the military conflict with Soviet Russia.

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On the Rule of Law in Old Poland

On the Rule of Law in Old Poland

Author(s): Jerzy Malec / Language(s): English Issue: 5/2021

The Polish Republic of Nobles was characterized by the fact that the activities of public authorities were based on statute law. This is a feature that distinguishes this country from the vast majority of European states in the early modern period where the principle of the sovereign power of the absolute monarch was dominant. In Poland, the highest authority in the state was the Sejm, in which the monarch was only one of the three estates in the Sejm, along with the Senate and the Chamber of Deputies. The General Sejm was formed in the second half of the 15th century, expanding its powers over the next two centuries. At the beginning of the 16th century, the view of the sovereignty of law in the state prevailed among the nobility, to which the monarch himself was also subordinated, according to the principle that in Polonia lex est rex. It can therefore be concluded that in Poland as early as in the 16th century there was a practical division of powers according to the principle that two centuries later would be formulated by Baron de Montesquieu, and which would underlie the constitutional systems of the bourgeois state. The second half of the 18th century brought a further change. It was during this period that the subordination of all activities of the state to the applicable law became even more clear. At that time, an essentially hierarchical structure of executive authorities was established with the king, the Guardians of the Law (Pol. Straż Praw) acting as the government, government commissions constituting central departmental institutions, and commissions of order, which were responsible for the performance of local government. All these collegiate bodies were established by legislation with appropriate Sejm constitutions. Their activity and structure were thus clearly defined by the provisions of law. They could function only within the framework of Sejm statutes and on the basis thereof. In most European countries, it was only the postulates of political liberalism in the 19th century that brought the possibility of extending legislative control over the government in the form of constitutional and parliamentary responsibility of ministers. In Poland, however, this principle was introduced by the Constitution of 3 May 1791.

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Legal Reforms of Agrarian Relations in the Duchy of Warsaw between 1807 and 1809

Legal Reforms of Agrarian Relations in the Duchy of Warsaw between 1807 and 1809

Author(s): Marcin Konarski / Language(s): English Issue: 1/2022

The article analyses the reforms of agrarian relations, which were carried out during the first years of the Duchy of Warsaw, created as a result of the peace treaties of 1807. The legal status of peasants was at that time initially regulated in a general way by the provisions of the Constitution granted by Napoleon Bonaparte on 22 July 1807. These provisions were then made more specific with the promulgation of the Decree of 21 December 1807, which brought about the abolition of serfdom and allowed peasants to move within the territory of the Duchy. According to the Decree, the land was the property of the lord and a peasant leaving the village should return the land to the lord along with the crops, the buildings and the livestock. This meant that after the Decree came into force, there was a possibility of unlimited eviction of peasants, as well as increasing serfdom burdens. It should be noted, however, that due to the considerable depopulation of the country at that time and the emerging difficulties in providing manpower for the manor house, eviction was used relatively rarely. Nevertheless, later on, the reform carried out by this Decree was said to “remove peasant’s boots along with his shackles”. In this article, the author analyses the provisions of this Decree in the context of regulations resulting from the Constitution of the Duchy, Napoleonic Code and the Decree of 23 February 1809 introducing a temporary organisation of rural communes. The reflections on peasant reforms in this period were supplemented by an analysis of the socio-economic situation in the lands forming the Duchy and selected statements that appeared in the relevant literature on the peasant question from the past till the present.

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ASPECTE ISTORICE PRIVIND RAPORTUL DINTRE INVESTIGAŢIILE SPECIALE, PROCESUL PENAL ŞI DREPTURILE OMULUI: EPOCA ANTICĂ – SEC. XIX

Author(s): Boris Glavan / Language(s): Romanian Issue: 07/2022

The study is devoted to the issues of criminal law and special investigative activity. Given the close link between these two areas of activity and the importance of respecting human rights in their realization, the paper aims to historically elucidate the evolution of those institutions and establish the relationship between them. The entire historical period of the development of the indicated institutions is divided into several consecutive stages depending on the change of the relationship between them. Each stage has its own characteristic features, being marked by the general level of development of humanity in plans such as social, political, cultural, religious, economic, technological, etc. The first and longest stage includes the period between the ancient era and the 19th century, itself also being subject to analysis in this research. The content and conclusions are formulated based on the analysis of specialized theoretical research in the country and abroad, as well as the one belonging to the relevant normative acts.

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Legitimisation of power in Poland

Legitimisation of power in Poland

Author(s): Michał Mistygacz,Tomasz Słomka / Language(s): English Issue: 1/2022

The article concerns the dilemmas of legitimising power in Poland, based both on the contemporary achievements of theoreticians and on a discussion of the realities of the political system in Poland. The analysis focuses on the assumption that, on the one hand, the legitimation of power is its recognition as legal, operating on the basis of applicable legal norms, and on the other, the recognition that a specific power has social grounds for having the rule. The legitimacy of power in Poland is based on the authoritarian experiences before 1989, the democratic transformation, and the crisis of constitutional democracy after 2015. The discussion is based on a reference to Montesquieu’s division of powers and an analysis of the legitimacy of the legislature, the executive, and the judiciary.

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The state of the judicial dialogue after the PSPP judgement

The state of the judicial dialogue after the PSPP judgement

Author(s): Paweł Bącal / Language(s): English Issue: 1/2022

The issue of the relations between the European Court of Justice and the constitutional courts of the Member States is a topic of great importance. The latest proof of that is the PSPP judgement of the German Constitutional Court. It has also shown what might happen if judicial dialogue is abandoned. The aim of the paper is to consider the consequences of the PSPP judgement as well as to analyse the conditions for the restoration and development of trust between the courts. The author presents the concept of ultra vires which has been used by the German Constitutional Court. In subsequent parts of the paper, the discussion focuses on the PSPP judgement and the surrounding scholarly debate and points out the consequences for both sides of the dispute. In the author’s opinion, the PSPP saga may, under some conditions, have positive implications for judicial dialogue.

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Attempts to Codify Personal Matrimony Law in the Second Polish Republic. A Fiasco or Perhaps a Success?

Attempts to Codify Personal Matrimony Law in the Second Polish Republic. A Fiasco or Perhaps a Success?

Author(s): Zdzisław Zarzycki / Language(s): English Issue: 2/2022

After regaining independence in 1918, Poland inherited five different post-partition legal orders from the 19th century, regulating personal matrimony law on its territory, i.e. Prussian, Austrian, Hungarian, Russian and Polish from the times of the Kingdom of Poland. This situation required urgent reform and taking codification steps. The codification task was entrusted to the Codification Commission, established in 1919. Its result was the governmental matrimony law Project adopted in 1929, known as Lutostański’s Project. Unfortunately, it was not passed by the Sejm. It happened because of the opposition of the Catholic Church and other conservative forces. The reasons for this state of affairs were too modern, for those times, legal solutions contained therein, and above all, the possibility of obtaining a divorce. Many legal solutions included in this project can be found in modern matrimony law, i.e. almost a hundred years later. Nevertheless, the very idea of codification and the adopted main principles of matrimony law should be considered a success of Polish legal thought. The more so because many of these solutions were used in post-war Poland in the Decree on matrimony law in 1945 and are known in contemporary matrimony law.

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What is ‘economic criminal law’?

What is ‘economic criminal law’?

Author(s): Michał Jerzy Dębowski / Language(s): English Issue: 37 (1)/2022

The objective of this paper is to reconstruct the meaning of term ‘economic criminal law’, which is imprecise but widespread in Polish legal culture. It also aims to compose an adequate definition of the concept denoted by this name. The author applied an array of methods: analysis of scholarly statements, historical and comparative analysis as well as the analysis of the law in force. The term ‘economic criminal law’ is a product of linguistic convention manifesting itself in legal discourse. In search of its meaning the author relied mainly on scrutiny of the wording of the discussed name. The content of this notion is composed of so-called economic offences. It was essential to determine common characteristics of such crimes. Having rejected so-called subjective conceptions and ideas referring to criminology and sociology, the author posited the object of a type of crime as the definition’s rudiment. A proper description of the common generic object of economic crimes assumes a compromise between vagueness and rigidity of lengthy enumerations. ‘Economic criminal law’ can be described as a peculiar division of substantive criminal law distinguished by legal theory and practice. It is composed of regulations that establish types of crime, which share a common main generic object of protection which (in a historical and cultural context) are relevant bases of proper trading both in internal, and in external aspects. These two dimensions represent relations between trading participants and institutions and rules of trading, respectively.

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Osmanlı Hukukunun Afgan Hukukuna Etkisi:  Ceza ve Medeni Kanunları Örneği

Osmanlı Hukukunun Afgan Hukukuna Etkisi: Ceza ve Medeni Kanunları Örneği

Author(s): Mehterhan Furkani / Language(s): Turkish Issue: 47/2022

While the Prophet was alive, the companions had consulted to him personally for the solution of every religious matter and to the Qur'an and Sunnah after his death. On the issues that they could not find information in the two sources mentioned, they have made judgments by making ijtihad. Those who were not at the level to make ijtihad obtained information by consulting people who were experts in religious matters. The Muslims who came after them continued to follow the same path. Later, fatwa books were prepared, and these works began to be used in the field of qada as well as fatwa. Although the proposal for the codification of Islamic law was made by Ibn al-Muqaffaʿ (d. 142/759) at a very early period, the act of codification started too late. The legalization activity in the modern western world started at the end of the 18th century and spread to the whole European continent in the 19th century. The Ottoman Empire, influenced by the West, started the act of codification in the modern sense with the Penal Code of 1840. The codification of civil law in the Islamic world started with al-Majalla al Ahkam al Adliyyah (The Ottoman Courts Manual). Hukūk-i Aile Kararnamesi (the Family Law Decree) which was issued in 1917, followed al-Majalla in the field of codification.

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Constitutionality in the Kingdom of Serbs, Croats, and Slovenes/the Kingdom of Yugoslavia – Between Covert and Overt Dictatorship

Constitutionality in the Kingdom of Serbs, Croats, and Slovenes/the Kingdom of Yugoslavia – Between Covert and Overt Dictatorship

Author(s): Sanja Savić / Language(s): English Issue: 2/2021

The Kingdom of Serbs, Croats, and Slovenes was created on December 1, 1918 by proclamation of Regent Alexander I Karadjordjevic. The most important step regarding the organization of the newly formed state was the adoption of the constitution. The first constitution of the newly formed state was adopted on June 28, 1921, and in science it is usually called the Vidovdan Constitution. Due to a series of internal problems, on January 6, 1929, the king suspended the Vidovdan Constitution, dissolved the assembly and banned the work of political parties, and justified the coup by the highest national and state interests. The transition to an open dictatorship did not solve any of the political, economic, or national problems that led to the crisis. Despite the fact that the king announced his return to the constitutional order as soon as possible, this would happen only after two years. With the enactment of the constitution on September 3, 1931, there was no democratization of Yugoslav society, but the king’s open dictatorship was replaced by a constitutional one. The existence of the Kingdom of Serbs, Croats, and Slovenes/Yugoslavia in the period 1918–1941 in a political sense, was marked by the changes of a covert and open dictatorship, whereby the proclaimed democratic rights and freedoms represented only a show for the public. Through the paper, the author will analyze those constitutional provisions and the king’s actions that indicate this.

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Die Weimarer Reichsverfassung und das Verbot rückwirkender Strafverschärfung

Die Weimarer Reichsverfassung und das Verbot rückwirkender Strafverschärfung

Author(s): Milan Kuhli / Language(s): German Issue: 2/2021

The principle “nullum crimen, nulla poena sine lege” is one of the core principles of German criminal law and constitutional law. However, the history of this principle is quite varied. This article will focus on an essential part of this history, namely on the version of this principle in the Weimar Constitution of 1919. It will be shown that the principle of legality of criminal law was indeed expressed in that constitution, but that the exact scope of application of this constitutional principle was quite unclear. In this regard, it was uncertain whether the Weimar Constitution also prohibited the retroactive application of criminal laws to those cases for which a more lenient penalty was provided at the time of the offense. This ambiguity of the Weimar Constitution finally became apparent in 1933 in the so-called Reichstagsbrandprozess (Reichstag fire trial). The issue in these criminal proceedings was whether the burning of the parliament building in Berlin (February 27, 1933) was punishable by death, although this sanction was not provided at the time the crime was committed. In this essay, it will be shown that the National Socialists had to go to considerable effort to be able to ignore prohibitions on retroactivity. This undermining of the principle “nullum crimen, nulla poena sine lege” forms an important example of the willingness of the legislature to negate essential protective principles of law in the Third Reich.

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Ukraina na drodze do suwerenności. Uwagi historyka prawa

Ukraina na drodze do suwerenności. Uwagi historyka prawa

Author(s): Adam Lityński / Language(s): Polish Issue: 2/2021

Review of: A. Olechno, Ewolucja konstytucyjnych podstaw systemu rządów Ukrainy [Evolution of the Constitutional Foundations of the Government System of Ukraine], Białystok 2019, 290 pages

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Law between Nationalism and Regionalism: The Integration of the Transylvanian Juridical Field in Greater Romania (1918–1927)
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Law between Nationalism and Regionalism: The Integration of the Transylvanian Juridical Field in Greater Romania (1918–1927)

Author(s): Francesco Magno / Language(s): English Issue: 03/2022

The article explores the process of legal and judicial integration of Transylvania within Greater Romania, focusing on how Romanian legal professionals experienced the transition from the Habsburg Empire to the Romanian nation-state. I argue that lawyers, judges, and jurists placed greater importance on legal tradition, professional solidarity, and the pursuit of personal interests than nationalism. Building on Pierre Bourdieu’s notion of the juridical field, the article investigates how the traditions and categories of judgment typical of legal professionals often hampered the nationalization projects undertaken by the Romanian government, thereby casting new light on the process of Romanian state building in the early 1920s. Furthermore, the present piece addresses the issue of the imperial legacy, exploring the relationship between new and old laws and the reasons behind the former legislative structure surviving the political upheaval of 1918.

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The Laws of Manu and Nietzsche’s “Attainable Perfection”

The Laws of Manu and Nietzsche’s “Attainable Perfection”

Author(s): Bradley Kaye / Language(s): English Issue: 1/2022

Nietzsche's views on the Laws of Manu are widely considered some of his most controversial. Even among those who express a supportive view of Nietzschean philosophy tend to shy away or outright ignore his apparent praise for the laws responsible for the caste system in India. It is strange enough that Nietzsche would ever comment on the caste system and weirder still is that these comments on the Laws of Manu seem to be one of the only overt examples of Nietzsche’s political philosophy. It might be akin to contemporary readers of Hegel’s Phenomenology of Spirit suddenly getting goosebumps and chills of terror as they discover the conclusive section of ‘Observing Reason’ where Hegel devotes time and effort to discussing the defunct science of phrenology.

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Рецепция римского права в Северо-Западной Руси XIV–XV вв.: Вдова и имущество покойного мужа

Рецепция римского права в Северо-Западной Руси XIV–XV вв.: Вдова и имущество покойного мужа

Author(s): Alexei A. Vovin,Nataliya Bronislavovna Sredinskaya / Language(s): Russian Issue: 1(31)/2022

The article is about the influence of the Roman law on the Russian private act and statutes. The focus is on one legal collision regarding a widow life-long use of her late husband’s property (since she does not remarry). That case was equally reflected in the documents of the North-West of Russia asa well as in those ones of the North-Italian commune cities. In search of the sources of this legal norm, the articles of the Pskov Judicial Charter (PJC), the Code of Justinian (CJ), the Byzantine Ecloga (E) and the Extensive Edition of Russkaya Pravda (RP) are compared. It turns out that the texts of PJC and CJ are extremely close to each other both in semantic and textual terms, and at the same time they differ significantly from the texts of E and RP, which, in turn, are close. Thus, it turns out that the legal norm of the North-West of Russia, reflected both in the private acts and in the PJC, goes back to the CJ directly, bypassing the Byzantine legal tradition. To a certain extent, this reverses the traditional historiographic ideas that the influence of Roman law on Old Russian law was insignificant and, moreover, passed through the Byzantine «filter».

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