JOURNAL: Journal on European History of Law 13 (2022), nr. 2

 

(image source:  The European Society for History of Law)

Articles:

The Habsburg Monarchy and the South-American Question 1815–1842 ( Miriam Gassner) 

Abstract: 

When the Spanish-American colonies successively declared their independence in the first half of the 19th century, the European Powers had to decide on how to deal with these newly formed republics. Already at the Congress of Vienna in 1814/15, the Holy Alliance decided to follow the principle of legitimacy set up by the French diplomate Prince Charles Maurice de Talleyrand However, the interests of the European Powers that formed the Holy Alliance were too diverse to adhere to the principle of legitimacy for long: While the eastern powers (Austria, Russia and Prussia) adhered to the principle of legitimacy and refused to recognize the newly formed Spanish-American republics, France soon followed the British path and started to recognized the Spanish-American republics as sovereign states. Only the Empire of Brazil, which was ruled by the Portuguese heir to the thron Dom Pedro and his wife the Habsburg Archduchess „Leopoldina“, was recognized by the Habsburg Monarchy as early as 1825.

The Long Struggle to Open Austria’s Law Faculties to Women. From the First Woman Doctor of Law to the First Female Law Professor (Kamila Staudigl-Ciechowicz)

Abstract:

The article outlines the hard road that led to the admission of women, first of all to the law degree, and then to academic careers at the university level in Austria. It also presents the arguments of those who advocated and opposed their admission. Taking into account contemporary literature and archival sources, the individual steps are shown – from the unsuccessful demands at the beginning of the 20th century, to the founding of a private women’s law academy 1917, to admission to law studies in 1919. It would take another few decades until 1958, when the first woman was appointed full professor at the Vienna Faculty of Law.

Auf dem Schreibtisch jedes preußischen Beamten. Fernwirkungen von Robert Graf Hue de Grais bis nach Japan (Robert von Lucius)

Abstract: 

Robert Graf Hue de Grais was a proliferate and influential writer on public law and administration. His handbook on constitution and administration in Prussia and the German Reich, published in 25 editions between 1881 and 1930, was the standard reference work for generations of Prussian civil servants in the Kaiserreich and the Weimarer Republic. It even influenced, through a translation into Japanese, administration in Japan, and was noted in the USA, Belgium, France. Count Hue de Grais was also influential through his proposals on administrative reforms, as civil servant – he was Regierungspräsident of Potsdam – and in civic education. Part of his archive is now opened, a hundred years after his death.

Die Einführung des Tatbestands der Untreue in das österreichische Strafrecht 1931 (Christoph Schmetterer)

Abstract:

In May 1931 the largest Austrian bank, the Credit-Anstalt für Handel und Gewerbe (CA) broke down and was saved by the Austrian government. Within days former CA-official Friedrich Ehrenfest was considered the main culprit of the break down. Investigations against Ehrenfest were started but during the next months it became clear that Ehrenfest couldn’t be punished under Austrian criminal law. Thus a new crime, embezzlement, was introduced retroactively in December 1931.

Old Practices, New Justifications. The Effects of transactio in criminalibus in the Age of Ius Commune (Daniela Buccomino)

 Abstract:

This paper is meant to reconstruct the crucial value attribuited to the institution of criminal transaction and its effects. For this purpose, an attempt will be made to emphasizethe indispensable role of legal science in the practical aspect of law, in a relevant moment to the political and institutional evolution of the municipalities of late medieval Italy. At the same time, the essay analyzes the implications of the relationship between doctirnal law and practical law during the period of Ius commune, through the analysis of some topical queaestione.

‘Pandemic Criminal Law’ in Continental European Legal History (Vid Žepič)

Abstract:

The article outlines the development of official criminal policy against the spread of infectious diseases, especially the plague, in continental Europe from antiquity to the end of the 18th century. The crimes and their punishments are presented on the basis of city statutes, early modern penal codes and contemporary legal doctrine. Surprisingly, even though European countries faced devastating plague pandemics, no significant criminal-law related state intervention in pandemics took place until the 16th century, except in a number of coastal cities of the Mediterranean and northern Italian cities. The prosecution of sanitary crimes was the business of sanitary magistrates, who were in charge of wide criminal jurisdiction. The ‘pandemic criminal law’ was characterised by harsh penalties resembling martial law, criminalisation of both commission and omission, intentional and negligent offences, and the departure from the principle of legality when it was already an established legal principle.

On the Origin of One Roman Law Rule in the Moravian Legal Manual from the Second Half of the 14th Century (Lenka Šmídová Malárová)

Abstract:

The Moravian legal handbook, Manipulus vel directorium iuris civilis, written by Jan of Gelnhausen in the second half of the 14th century represents an important source directly connected to the older Law Book of Jan the Notary (Brno, Czech Lands).  Manipulus reflects an extensive body of interpretive rules and definitions which his author, Jan of Gelnhausen, took over from some medieval manuscript including 16th and 17th title of 50th of Digest, an integral part of the Corpus iuris civilis. The aim of this paper is to introduce the section De regulis iuris et de verborum significatione, which includes the regulations adopted from those titles of Digest and reflects on the origin of one modified rule and its comment.

Die Sprache der Bilder in den Josephinischen Gesetzbüchern (Zdeňka Stoklásková) 

Abstract:

The imagery in Emperor Joseph II’s codes of law has not been a subject of research, which is understandable to a certain degree. The copperplate engravings from the Josephine codes of law are probably not that interesting for art historians, but they are exceptionally attractive for historians and legal historians. These copperplate engravings visualize, often very critically, some of the published codes of law. The method of study is the “language of imagery” and the “language of text”. The language of imagery is understood as an expression of the ruling power, while the language of texts in the codes of law (as well as an expression of power) is held up here as a mirror in the form of the language of contemporary authors – i.e. a juxtaposition between the official meaning and the satirical texts written at the time. The title images of the codes of law of Joseph II and Leopold II might also be interpreted as a result of the “thawing” of censorship, as the subsequent codes of law of Francis I/II do not contain allegoric engravings.

The Collective Agreement in the Interwar Czechoslovak Republic (Clash of Legal and Philosophical Ideas) (Miriam Laclavíková, Tomáš Gábriš)

Abstract:

The article describes the transformation of legal thinking in the transition from liberalism to collectivism, respectively transition from the minimal state to welfare state, on the example of the development of legal regulation of collective agreements in the interwar Czechoslovak Republic. These changes affected alike jurisprudence, legal science and legislation, but it was ultimately the legislation that had to answer the questions that both theory and practice were reluctant to resolve.

Selected Aspects of the Exchange and Removal of the Population of Hungarian Nationality from the Czechoslovak Republic (Ján Štefanica) 

Abstract:

After the Second World War, the political representation of Czechoslovakia as well as Hungary had to deal with a difficult question concerning people of Hungarian nationality, who lived in Czechoslovakia. While the issue of the expulsion of the German population from war-torn countries was addressed at the European level, the issue of expulsion of Hungarian nationals from Czechoslovakia stood behind. This article attempts to address this issue in detail.

Not only Roman Law. Political Activity of Leon Piniński (1857–1938) (Grzegorz Nancka)

Abstract:

Leon Piniński (1857–1938) was a professor of Roman law associated with the University of Lviv. His scholarly focus on Roman law was not his only area of activity. This scholar was also closely involved in political activity. Leon Piniński was a governor of Galicia. It is interesting to consider whether his political activity in any way affected his scholarly achievements. It also seems interesting to look at how this scholar is perceived nowadays and whether his political activity contributed to it. The article uses the legal-historical method.

Protected by Lex Laetoria: Two Papyri of Roman Egypt and their Effect on Roman Law (János Erdődy)

Abstract:

Lex Laetoria was a Roman Act from about the turn of the 3rd and 2nd centuries BC, granting additional protection to adults under the age of 25. Amongst its primary sources the Tabula Heracleensis, a.k.a. lex Iulia municipalis (cf. FIRA I, 112), an excerpt from the Theodosian Code (C. Th. 8, 12, 2), and four papyri (BGU II 378, BGU II 611, P. Oxy. X 1274 and P. Oxy. XVII 2111) bear greater importance. These papyri are resourceful in the debate about the actual name of the Act (lex Laetoria versus lex Plaetoria). From a legal point of view, BGU II 378 and P. Oxy. X 1274 contain a petition and a contract or agreement, respectively, where the reference to lex Laetoria is part of a legal argumentation. Besides the actual case, these papyri are significant because they give a presentation of the quotidian social and economic life and practice of the Roman world in Egypt around the 2nd century AD. By examining and analysing the cases described in these papyri, we get a closer view to the everyday reality of Roman law. The characters involved in the cases bear Roman names, the cases take place in Hellenised Egypt, the correspondence is in Greek, yet Roman law measures are used to settle the disputes. We sense multiculturalism in these documents, without the awkward feeling of being unfamiliar to Roman Egyptian culture. This paper aims to catch a glimpse of Roman law in action by multicultural approach, and to provide an example of how Rome had managed to handle herself as an Empire.

 The Emergence of the Idea of Religious Freedom in Ancient Rome (Pál Sáry)

Abstract:

It is well known that the so-called Edict of Milan, issued in 313, was a landmark in the religious history of mankind, because it declared for the first time the doctrine that freedom of religion belongs as of right to everyone. The present paper seeks to investigate the intellectual background of this famous edict. The emergence of the idea of religious freedom is linked to the persecution of Christians in the Roman Empire. This idea first appeared in the works of Christian apologists. It was Tertullian who firts emphasized that the free choice of religion is a natural right of every human being. This idea was previously unknown in the pagan world. Tertullian was a pioneering thinker because he was the first to be able to combine biblical theology with the natural law teachings of Stoic philosophy of law. Of the later apologists, Lactantius dealt with the idea of religious freedom in the most detail. Lactantius had a great influence on Constantine, who, together with Licinius, decided to issue the so-called Edict of Milan. The edict guaranteed everyone the right to choose their religion freely, but did not declare this right a natural right that the state could not restrict.

Das freie Vorbringen und seine Begrenzung nach der Kodifikation des ungarischen Zivilprozessrechts (Kristóf Szivós)

Abstract:

The first Hungarian code of civil procedure was enacted at the end of 1910, after almost thirty years of codification. Previously, the procedural regulation based on the Austrian General Judicial Ordinance of 1781. The main aim of the legislator after the Austro-Hungarian Compromise of 1867 was to introduce a procedural order that bases on the principles of orality, immediacy, and publicity. As a result, the principle of contingent cumulation (Eventualmaxime) was replaced by the principle of unity of the cause which meant that the parties could submit new allegations and proofs until the closure of the last hearing. Thy study examines this new system and the tools with which the code of civil procedure tried to avoid undue delay. The main result of the study is the determination of the boundaries of the free submission and the circumstances of the application of sanctions against undue delay.

A Special Professional Authority of Cartel Supervision in Hungary: The Cartel Committee  (Norbert Varga)

Abstract:

The Hungarian Cartel Act of 1930 regulated the cartel supervisory authorities, with the primary task of making sure that the operations of cartels were on the right path in order to protect public interests and public well-being. Cartels should provide customers with public needs goods at an affordable price. The government of Hungary wished to ensure this by creating cartel supervisory authorities in cartel matters. Amongst the specialized cartel supervisory authorities, one must emphasize the Cartel Committee, with its primary task of establishing whether or not the agreements formed by cooperating companies contain cartel-like competition-limiting clauses. In my essay, I wish to describe the establishment, the organisation and the practices of the Hungarian Cartel Committee, based on the one of the most important archival sources related to the bakery cartel.

The “Hungaricum” of the Crusader Orders: the Order of St Stephen (Orsolya Falus)

Abstract:

It was in the early 1970s that historiography "discovered" the Order of St Stephen, the “Stephanites”, the canonical order of the Hospitaller Crusaders of St Stephen, founded by King Géza II of Hungary in the 1150s in honour of King St Stephen of Hungary (977-1038), crowned: , modelled on the European knightly orders already in existence at the time. The first archaeological evidence of the existence of the order was found in 1959 during an archaeological excavation in the Danube Canyon near Esztergom. The study examines the circumstances of the founding of the Order of the Stephanites, the administrative activities of the knights in “locus credibilis authenticus”, and their role in Árpád-era Hungary.

Heidegger on Hegel’s Concept of State (András Karácsony)

Abstract:

It is often said of Heidegger that he did not engage in political philosophy. However, the publication of his legacy reveals a brief period when he was interested in politics and the state. Specifically, we can refer to two seminars Heidegger delivered in 1933/34, when he interpreted Hegel's conception of the state and debated Carl Schmitt's theory of politics. This study focuses on Heidegger's interpretation of Hegel's conception of the state. The texts on which the analysis is based are seminar notes and transcripts, and as such, only reflect the questions Heidegger raised in his lectures. More definitive texts on the subject are not available, because neither did Heidegger teach any course addressing the relevant topic after 1935, nor did he publish anything on the subject in the later decades. Accordingly, this paper is a brief presentation of a unique episode.

Some Issues Regarding Fraud in the First Hungarian Criminal Code (Sándor Madai)

Abstract:

The first Criminal Code is always of paramount importance in the life of a nation. Not only because written law, especially criminal law, has been in demand by society from the outset, but also because it is crucial for applying the law, the justice system must also adapt to this. The first Hungarian Criminal Code – the Csemegi Code – met this expectation. The following study focuses on one of the fundamental delicts of property crimes: fraud. We present the questions that the codifier had to answer, then the result of this thinking. Finally, we look at the first amendment to the Csemegi Code, which affected the crime in several respects. The study is based primarily on descriptive, historical and comparative methods, and we try to approach the subject of our study from a theoretical and practical point of view at the same time.

Papal Monarchy Challenged (Jiří Bílý)

Abstract:

The following article analyzes the power structures within the Catholic Church from a sociological and historical perspective, especially the power of the Curia in relation to the various national bishops' conferences and individual dioceses, but also in relation to the Pope, as it developed above all from the 19th century to have. Unlike the spirit of the Second Vatican Council, it is the Roman Curia, not the College of Bishops, that holds the real power in its hands. The bishops appear before the competent Vatican authorities more as supplicants than as confreres. The Curia is not even well organized internally. There are often no clear boundaries between competencies and no regular cabinet meetings between the heads of authorities. While one has long since learned in the secular area to use systems of separation of powers and mutual control in order to remain capable of learning as an organization, the Roman Church apparently believes that it can do without such „checks and balances”. As the sacred aura of the papacy fades, the institutional character of the church becomes more and more conscious, and in many ways it contradicts generally accepted socio-ethical principles such as the rule of law, subsidiarity, the participation of those concerned and administrative control. It looks as if the largest religious community in the world is ruled by a small group of old men who shirk human responsibility in the name of God and demand unconditional obedience from the bishops, priests and believers of the universal Church for their decisions, regardless of theirs Reasons and their plausibility on site. This increasingly calls into question the credibility of the church’s message itself.

Book reviews:

 
Zdeňka Kokošková, Monika Václavíková/Sedláková, Jaroslav Pažout (Hrsg.): Die Oberlandratsämter im System der Besatzungsverwaltung des Protektorats Böhmen und Mähren und ihre leitenden Beamten  (Julian Lubini)

Thomas Groß: Verwaltung und Recht in antiken Herrschaftsordnungen. Ägypten, Assyrien, Athen und Rom im Vergleich (Julian Lubini)

Christian Reiter: Einführung in das römische Privatrecht. Ausgewählte Themengebiete und Fälle (Radek Černoch)

Reports from history of law:

 
Thomas Gergen: Pfadfinden und Recht an der Saar. Rede anlässlich der Gedenkfeier zur Erinnerung an die jüdischen Pfadfinder in St. Ingbert/Saar 

Robert von Lucius: In memoriam. Prof. Dr. Michael Stolleis 

100 Jahre Fürstlicher Oberster Gerichtshof des Fürstentums Liechtenstein – Ein Interview mit Universitätsprofessor Dr. iur. Dr. phil. Thomas Gergen, Maître en droit (Luxemburg)

Petra Zapletalová: Report from the Conference “International Legal History Meeting of PhD Students”

 

For more information see here.