JOURNAL: Krakowskie Studia z Historii Państwa i Prawa / Cracow Studies of Constitutional and Legal History 15 (2022), nr. 3

 

(image source: Wydawnictwo Uniwersytetu Jagiellońskiego)

I. Between Democracy and Ochlocracy in the Context of the Centuries-Old Dispute about the Perfect Form of Government: The Legal Heritage of the Antiquity in View of the Challenges of Modernity (Paweł Wiązek)

(DOI 10.4467/20844131KS.22.024.16172)

Abstract:

The author endeavored to enliven the universal discourse on the perfect system of government applicable to human society, which to many luminaries constitutes a certain paradigm of the science on the state and the law. While adopting a classical, chronological convention of the narrative herein commenced, the author made the time of Antiquity the point of departure, selected the Enlightenment as a form of a modern counterpoint thereto, and then finalized the deliberations carried out here against the reality of contemporary times. The intent of the exploration here was to place the research subject within the interdisciplinary framework, which was undoubtedly supported by the multifaceted nature of the problem at issue and by subsidiary utilization of the advantages of the comparative approach. The intention to present the issue through a broad perspective, transcending the boundaries of academic discourse, was naturally convergent therewith. As a result, the author did not shy from controversy, seeking the purpose of the actions undertaken, thereby in the formation of conclusions on what the applicable law should be. That allowed for the presentation of numerous remarks, assessments, and opinions, among which at least some may be deemed disputatious or plainly speaking, highly debatable. The investigator did not attempt to evade those; on the contrary – sought it in complete premeditation.

II. The Crown of St. Stephen as a Symbol of Legal Continuity and Hungarian Constitutionalism (Historical Background) (Tadeusz Kopyś)

(DOI 10.4467/20844131KS.22.025.16173)

Abstract:

In Hungarian history, the Crown of St. Stephen was an important relic symbolizing the unity of the Hungarian state. It was not merely a coronation jewel or symbol of royal prerogatives, but a respected element of the country’s historic “millennial”constitution. Although the doctrine associated with it was a unique Hungarian constitutional theory, symbolizing national independence, it was flexible enough to serve various political ideas and ambitions. The Crown has always embodied the monarchical form of the Hungarian State, and its sacred character symbolized the strong alliance of the monarchy with the Catholic Church. Is this historical doctrine compatible with the values and requirements of modern Europe and the requirements of present-day Hungarian constitutionalism?

III. The Component of Respublica Romanorum in the Constitutional Heritage of Nobiliary Polish-Lithuanian Republic (16th through 18th Centuries) (Kazimierz Baran)

(DOI 10.4467/20844131KS.22.026.16174)

Abstract:

When in the 16th century in many European states, the monarchal power began to drift toward absolutism, the Polish-Lithuanian state evolved in its constitutionalism along the Republican lines. Its monarch could be brought to accountability for the violation of the law. Likewise, he was freely elected by the nobles and held his position for life. The nation of nobles that, by the standards of the time, made up a remarkable section of the entire population of the country was protected against the monarch’s attempts against their liberties by a series of remarkable privileges. And indeed, a noble’s property was prevented from being unreasonably confiscated. Likewise, an individual of nobiliary status could not be arbitrarily imprisoned. The representatives of nobles, while sitting in the benches of the Seym, had a considerable share in exercising the state power, particularly in the area of the law-creating process and when the imposing of tax liabilities was debated. In addition, the clauses of the Henrician Articles (1573), which were a kind of Fundamental Law of the Nobiliary Republic, guaranteed the mass of the nobles’religious toleration within the Christian denominations. The spirit of this toleration in practice also applied to the non-Christians (Jews and Muslim Tartars who inhabited the Republic).

The republican slogans that were responsible for forming a specific frame of mind of the nobles assumed a new dimension when the culture of Latinitas type began to be promoted. The latter started to develop on the occasion of the acceptance by the authorities of the Nobiliary Republic of the principles of the Council of Trent, which happened in the 1570s. The Republic remained within the Catholic Camp. From that time on, the young nobles used to be educated in numerous Jesuit colleges and had not only a fluent command of Latin but also a profound knowledge of the history and culture of antiquity. Hence, they looked at their state, the Respublica Polonorum as a successor of the late Respublica Romanorum with the virtues of the latter. These virtues, when filtered through the system of Christian values –pushed to the foreground the concern for the welfare of the motherland, support for the democratic ethos and egalitarian spirit within the nobiliary milieu, and also the willingness to defend the Christian world against the invasion of the barbarians (the concept of Antemurale).

The republican spirit survived the era of constitutional deterioration in the country that started in the mid-17th century. With the era of reforms which began in the 1760s, the constitutional improvement reached its climax in the Constitution of 3rd May 1791. Like in the British system, king was located at the position of the monarch who could do no wrong since all his executive acts required the endorsement made by the right minister. The separation of powers was emphasized. The ministers could be brought both to their political responsibility to parliament if they lost the support of the majority in the houses and also to constitutional responsibility for their contra legem acts.

IV. The Practice of Supervisory Rights in Hungarian Cartel Law with Special Attention to the Duties of the Minister and the Legal Director (Norbert Varga)

(DOI 10.4467/20844131KS.22.027.16175)

Abstract:

Hungary introduced provisions on cartels with the enactment of Act XX of 1931. To protect good morals and public interests, the Act regulated the tools of state intervention and supervision. This legal field was the summarization of the proceedings of cartel supervisory authorities, in which not only executive state bodies but also judiciary organs took part. The paper focuses on the development of the Hungarian cartel law, with special attention to the practice of the courts and the aims of the State related to the supervisory power over the cartels before the codification of the Hungarian cartel law. The main aim of the study is to put an emphasis on the tasks of the responsible Minister and the legal director, mainly by analyzing the related primary sources. The purpose of this study is also to explain the tasks of the responsible Minister after the Cartel Act came into force, and the demonstration of the practice related to the proceedings. The main question is what the functions of the supervisory authorities related to the cartels were.  (n connection with the legal director, I would like to illustrate his task as a representative of state interests in the mainly cartel-related lawsuits.

V. Fundamental Rights in Czechoslovakia between 1920 and 1938: Their Doctrinal Theorizing and Judicial Application (Michal Šejvl)

(DOI 10.4467/20844131KS.22.028.16176)

Abstract:

The article presents an overview of the problem of fundamental rights during the First Czechoslovak Republic and focuses especially on the role played by the fundamental rights catalogue of the 1920 Czechoslovak Constitutional Charter. Section 2 presents the 1920 catalogue itself, methods of specification and of limitations of rights (usually by particular laws) and postulates continuity with pre-1918 Austrian and Hungarian law. Section 3 is dedicated to opinions of Czechoslovak legal doctrine (mainly Czech authors) on the role of the 1920 catalogue. Section 4 examines the case-law of the Supreme Administrative Court protecting fundamental rights and tries to show that some fundamental rights were applied directly by this Court and that direct application sometimes leads also to a limited form of constitutional review of pre-1918 law.

VI. Nieznane protokoły posiedzeń podkomisji prawa o stosunkach z pokrewieństwa i opieki Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej z 1939 roku (część II) (Marian Mikołajczyk, Grzegorz Nancka)

(DOI 10.4467/20844131KS.22.029.16177)

Abstract:

 When Poland regained independence in 1918, the different legal systems of the various partitioning states all remained in force on its territory. Drafts of uniform laws were to be drawn up by the Codification Commission established in 1919. One of its tasks was the preparation of a draft of the family and guardianship law. The sub-commission addressing this division of civil law worked until the outbreak of World War Two. The minutes of its sittings disappeared in September 1939 along with the total output of the Codification Commission. However, copies of minutes of the sittings of the sub-commission held in 1939 were found in Kazimierz Przybyłowski’s collection of books donated to the Faculty of Law and Administration of University of Silesia in Katowice. These minutes shed new light on the final phase of the codification works. Publication of these documents will enable further detailed research on the history of family law in interwar Poland. The second part of the publication consists of minutes nos. 183–189.

Events and Books in the Sphere of the Study of Legal and Constitutional History in Hungary in 2020–2021 – A Historiographic Outline (Balázs Rigó)

(DOI 10.4467/20844131KS.22.030.16178)

Legal History Research in Belgium (2021) (Jens Van Paemel)

(DOI 10.4467/20844131KS.22.031.16179)

Chronicle of Scholarly Events in Legal History Held in the Slovak Republic and the Czech Republic in 2021 (Adriana Švecová, Ingrid Lanczová)

(DOI 10.4467/20844131KS.22.032.16180)

A Brief Review of Scholarly Events in Legal History in Ukraine in 2021 (Roman Shandra)

(DOI 10.4467/20844131KS.22.033.16181)

Slovak Legal History – a Non-exhaustive Overview of Active Researchers (Ingrid Lanczová)

(DOI 10.4467/20844131KS.22.034.16182)