Czasopismo Prawno-Historyczne

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https://repozytorium.amu.edu.pl/handle/10593/1755

Czasopismo Prawno-Historyczne (CPH) zostało założone w 1948 r. przez wybitnego historyka prawa profesora Zygmunta Wojciechowskiego i ukazuje się nieprzerwanie do dziś. CPH publikowane jest co pół roku, od 2010 r. również w wersji elektronicznej na uniwersyteckiej platformie cyfrowej, a od 2021 r. tylko w takiej wersji. Jest periodykiem poświęconym historii ustroju i prawa, dziejom prawa rzymskiego i kanonicznego, historii doktryn politycznych i prawnych oraz historii prawa jako nauki. Na łamach CPH publikują renomowani badacze z kraju i zagranicy oraz młodzi adepci nauk historyczno-prawnych, w tym autorzy rozpraw, prac drobnych i materiałów oraz tekstów polemicznych i krytycznych.

Czasopismo Prawno-Historyczne [CPH, ang. Journal of Law and History] was founded in 1948 by Professor Zygmunt Wojciechowski and has been published continuously to this day. CPH is published regularly every six months, from 2010 also in electronic version on the university digital platform, and from 2021 only in this version. It is a periodical devoted to the history of the political system and law, the history of Roman and canon law, the history of political and legal doctrines, and the history of law as a science. Renowned researchers from Poland and abroad as well as young adepts of historical and legal sciences, including authors of dissertations, minor works and materials, as well as polemical and critical texts, publish in CPH.

Redaktor naczelny: prof. UAM dr hab. Maksymilian Stanulewicz
Kontakt: Uniwersytet im. Adama Mickiewicza w Poznaniu, Wydział Prawa i Administracji, Collegium Iuridicum Novum, al. Niepodległości 53
61-714 Poznań
tel. +48 61 829 31 60
e-mail: cph@amu.edu.pl, adrsta13@amu.edu.pl
strona www: https://pressto.amu.edu.pl/index.php/cph
Nazwa wydawcy: Wydział Prawa i Administracji UAM
ISSN 0070-2471

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Now showing 1 - 20 of 58

Adwokatura w Królestwie Polskim w latach 1876-1918.
(Wydawnictwo Poznańskie sp. z o.o., 2010) Materniak-Pawłowska, Małgorzata
In 1876 the reform of the Russian judicial system of 1864 was implemented, with certain amendments, also in the Kingdom of Poland. As of that date, the Bar in the Kingdom was given a completely new organisational form. Its former 3-tier hierarchical organisation was replaced with a 1-tier institution of sworn advocates. The effects of those changes were clearly visible in the altered role of a barrister in a trial. On the positive side, the more stringent requirements before the candidates wishing to be accepted to the Bar ensured an overall better quality of legal service. The negative consequences were, among others, the Russian language becoming the official language of judicial proceedings. Moreover, between 1876 and 1918 the Bar in the Kingdom of Poland was closely controlled by the authorities of the Russian Empire and no form of Polish self-governing body was allowed in it. Despite those restrictions, the Bar remained largely Polish and the profession of the sworn barrister in the Kingdom of Poland was performed mainly by the Polish lawyers. However, the conditions of work remained harsh, which prompted barristers, especially during World War I, to pursue many varied tasks for the community, aimed, in the long run, at creating a platform for the barristers to collaborate on different levels and to eventually develop into a professional group. The barristers associated in the Bar of the Kingdom of Poland authored the main draft of the new law on barristers and their appointments, effective as a temporary solution from 1 January 1919. A new era of the Bar began.
Darowizny na rzecz małżonków w świetle regulacji prawnej
(Wydawnictwo Poznańskie sp. z o.o., 2011) WIśniewska-Jóźwiak, Dorota
Donations in the Kingdom of Poland were regulated by the Napoleonic Code. However, apart from a couple of general rules, the Napoleonic Code did not provide for any special regulation that would be exclusively applicable to the specific kind of donations such as donations made by one spouse to the other. Acts- in- law pertaining to donations could be executed either in the same deed (notarial act) together with the pre-nuptial agreement, or as a separate deed. What was particularly interesting as well as extremely complicated were marriage contracts which required a distinction to be drawn among three types of acts-in-law, namely: donations of current property, donations of future property, and donations of current and future property combined, where the future property was understood as inheritance arising at the death of the testator. Performing of this unique act-in-law was still less complicated than making a contract to donate property, while the testators could be not only the spouses themselves but third parties as well.
Debata konstytucyjna w Strefowej Radzie Doradczej w 1947 roku.
(Wydawnictwo Poznańskie sp. z o.o., 2011) Bożek, Michał
In February 1947, a Zonal Advisory Council with a seat in Hamburg was appointed in the British zone of postwar Germany. The Council worked for over two years and one of its main achievements was the organisation in the autumn of 1947 of a constitutional debate on the future of the German state. Its participants represented six German parties: the Christian-Democratic Union CDU, the Social Democratic Party of Germany SPD, the Free Democratic Party FDP, the Communist Party of Germany KPD, the Centre Party and the German Party. There were a number of projects proposed in the course of the debate. The project presented by the CDU did not gain universal recognition and was therefore reduced to being merely one of the concepts discussed in the course of the deliberations on the political regime of postwar Germany. The SDP, on the other hand, presented a project that it had been prepared already earlier and was presented as its official standpoint regarding the political structure of the German state after the war. Therefore, even if some time later the international situation changed and the basic concepts of the Party’s political strategy had to be revalued and a new project was to be drafted and submitted before the appointment of the Parliamentary Council, the official stance of the SDP contained in that project remained while the project itself constituted one of the elements of that political strategy.
Dopuszczalność korzystania z pomocy prawnej przez oskarżonego w angielskim procesie karnym (XIII-XVI wiek).
(Wydawnictwo Poznańskie sp. z o.o., 2010) Złamańczuk, Paweł
The paper analyses the admissibility of the right to counsel of the accused in the English criminal trial, and focuses on the pre-trial stage and the main criminal proceedings in the 13th and 14th centuries. Although the pre-trial proceedings had not been formalised until the mid 16th century, there are still some data available on which an opinion may be based. The author’s focus of attention is the main criminal proceeding and the admissibility of the right to counsel at that stage, for which the sources of information seem more reliable. As can be deduced, the right to counsel depended on the form in which the criminal proceeding commenced and the weight, or gravity of the crime. In most serious cases the right to counsel was restricted. However, it was probably not until the Tudor period when the rule against defence counsel considerably toughened. This is further evidenced by instances occurring between 1300 and 1500 in which legal aid was extended in cases tried on indictment. An exception were matters initiated by private accusation, so called appeal of felony, and offences of lesser gravity, called misdemeanours. Legal issues that emerged during a criminal trial were also capable of justifying the right to counsel.
Dyskusja na temat reformy ustroju Polskiej Rzeczypospolitej Ludowej w latach 1956-1957.
(Wydawnictwo Poznańskie sp. z o.o., 2010) Mażewski, Lech
The discussion on the reforms of the political system of the Polish People’s Republic that was going on in the years 1956-1957 was “chaotic, highly emotional and occasionally demagogic” (Andrzej Burda). The proposals of reforms lacked coherence and were by no means a comprehensive system of views on what the political system of the Polish State should be like. And yet, it was then when practically all possible political-legal institutions were deliberated and at least briefly considered as potential solutions, and some were returned to in subsequent political debates or reflected in the amended Constitution of 1952. The very fact that such a variety of different options was discussed despite the populist opinions praising the fundamental act on the political system then binding in Poland was in itself a positive feature, the basic weakness of the discussion, however, lay in the fact that participants in the debate did not realise the importance of a framework for the post-totalitarian system in which Poland was to function after the transformations of 1956.
Forma wydziedziczenia w prawie justyniańskim.
(Wydawnictwo Poznańskie sp. z o.o., 2011) Kursa, Sławomir Patrycjusz
The analysis of the sources of the laws regulating the procedure of disinheritance in Justinian law suggests that those laws originated in pre-Justinian times. Justinian’s contribution to the regulation of the form in which disinheritance may be conducted was twofold: on the one hand, Justinian relaxed the existing legal requirements, and on the other, he replaced them with new requirements which, since his times on have been used to ensure better protection of the statutory heirs against unjust disinheritance. Justinian law, similarly to the old civil law and praetorian law required that the testator observed a very strict form if he wished to disinherit a statutory heir, to be reflected in the last will and testament, or the requirement of the disinheritance nominatim. Justinian advocated a far reaching flexibility of the strict regulations as to the placement of the disinheritance decision in the testament, and, in particular, he revoked the rigorous form of exheros esto that had been absolutely binding until 531. Like the old jurists, he also rejected the possibility of disinheriting with the use of accidentalia negotti. He upheld the requirement that disinheritance must apply to the entire estate and excluded the possibility of valid disinheritance without an appointment of another heir. Justinian added the requirement of naming all potential heirs, and the requirement of stating the reason for disinheritance if no legitim was stipulated.
Gubernatorzy wojskowi w systemie polskiej administracji początków XIX wieku.
(Wydawnictwo Poznańskie sp. z o.o., 2012) Marszałek, Piotr Krzysztof
In Polish literature on the subject, the military governor’s office is usually associated with the organisation of the administrative system that prevailed in the partitioning states (Poland’s Partitions 1791-1918). However, the governor’s office had already been known in Poland during the Duchy of Warsaw (1807-1815), when it was, like many other solutions of administrative and military law, imported directly from France. In the structure of Polish public organs, the office of governor was created for the first time during the Polish-Austrian war in 1809. Although no documents have survived from which we could learn of the competences of a Polish governor in those times, what is known is that the description of his authority followed closely the model set out by the French legislation. It was not before the Polish-Russian war in 1830-1831 that first attempts were made to independently set out the authority of a governor of the Polish state, but even then, at least initially, the solutions set forth by the regime of the Napoleonic decree were directly referred to and copied. In the second half of the 19th century, shortly before the collapse of the November Uprising, a draft describing the office and competences of a Polish governor was finally ready to be put forward for parliamentary discussion, but it was already too late for the Sejm to deal with it.
Historia prawa a metodologia nauk prawnych.
(Wydawnictwo Poznańskie sp. z o.o., 2010) Plessis Du, Paul J.
The paper is an attempt to answer the fundamental question whether there is any rationale behind studying Roman law for the sake of modern science and the teaching of law. In the first part of the paper, the possibility of rejecting reading Roman law as being useless from the point of view of contemporary jurisprudence is considered. It is also proposed that the current state of affairs is the result of implementation in legal history studies of R. Zimmermann’s vision that Roman law and comparative law are two useful instruments for harmonising private law. Further, a claim is made that the outcome of the discussions on the harmonisation of private law, the so-called Common Frame of Reference has been developed with no references to the accomplishments of legal history. This innovative and modern approach is then discussed and a question is asked whether it would be possible and expedient to take a fresher look at Roman law, and propose a more realistic element to jurisprudence, rejecting, at the same time, the dogmatic method, and focus, instead, on the reflection on the essence and merit of law, and the relationship between law and the environment in which it is applied. This, in the author’s opinion, should serve to make the study of Roman law more independent in relation to the current doctrine of private law. The author then concludes that Roman law may be useful for the construction of private law but only on condition that it is not reduced to an ideological banner supporting the myth of a united Europe, as the true usefulness of Roman law should be the identification of universal elements and provision of arguments to challenge the currently adopted dogmatic vision of private law.
Instrumentalizacja procesu legislacyjnego w carskiej Rosji i jej wpływ na specyfikę rosyjskiego systemu źródeł prawa
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2013) Smyk, Grzegorz
Instytucja dyktatury w Republice Rzymskiej
(Wydawnictwo Poznańskie sp. z o.o., 2011-07) Rudnicki, Jan
The dictatorship (magister populi) was an extraordinary magistrate in the Roman Republic, widely used in the period of the classical Republic (4th-3rd century BC). Its origins are subject of serious doubts. One dominant theory sees it as purely republican and roman invention. According to the second – and more convincing to me – magister populi was at first an ordinary magistrate with the supreme power and later, when the consulate was established, it became an extraordinary office equipped with imperium maius. Dictatorship was an exception from every single major principle of roman republican constitution. He was not elected by the comitia centuriata, but nominated by the consul earlier authorized by the Senate. In contradiction to other collegial magistrates dictator was a sole performer of his duties. The supreme power of the dictator was limited to the maximum of six months. He was able to control and direct all ordinary magistrates and he was not bound by the rule of incompatibilitas. Finally, his decisions were immune to ius provocationis and ius auxili. During the two centuries of classical Roman Republic the Senate developed many ways to make use of this institution. First and most important was to grant a supreme power to one trusted man in face of a military crisis (rei gerundae causa) or dangerous disturbance in internal affairs (seditionis sedandae causa). Later dictatorship started to be nominated to substitute the consuls not able to conduct their duties both in state or sacral matters (comitiorum habendorum causa, feriarum latiniarum causa). Only once dictatorship was used to perform the duties of a censor (senatus legendi causa). The religious powers of magister populi were performed in case of prodigium by the dictator clavi figendi causa. Contrary to the common, but superficial opinion even the powers of dictator rei gerundae or seditionis sedandae causa were not unlimited. To perform such acts as declaration of war or triumph and even to use the treasury of the Republic, magister populi always needed the approval of the Senate or the Populus. Almost all dictators had nominated the magister equitum as their deputy and “second-in-command”. The master of the horse was assisting the dictator in performing his powers. After the Second Punic War dictatorship in this traditional shape ceased to fit the new reality and became obsolete. It came back to roman constitutional practice in the times of crisis of the Republic. Sulla and later Caesar used it as a form for their absolute power. Caesarian invention of “perpetual dictatorship” proved directly that the idea of old republican dictatorship was rejected. Soon afterwards the dictatorship was abolished and the word “dictator” started to be associated with an autocratic power. In later times many authors stated, that the dictatorship was one of the reasons of the fall of the Republic. This opinion was proved to be superficial and therefore wrong by N. Machiavelli, who analyzed that institution and showed its deeply republican character. From our point of view the roman dictatorship appears to be a prototype of all modern institutions of state of emergency.
Instytucja sędziego śledczego w II Rzeczypospolitej
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2013) Materniak-Pawłowska, Małgorzata
Jurysdykcja sądu konsystorskiego w świetle przepisów prawa małżeńskiego z 1836 roku.
(Wydawnictwo Poznańskie sp. z o.o., 2010) Fastyn, Arkadiusz
The paper discusses jurisdiction of the Consistory in matrimonial matters in the central part of Poland between 1919-1939, where, pursuant to the matrimonial law of 1836, jurisdiction in matters such as separation, divorce and nullification of marriage was vested in certain church courts. Decisions issued by those churches were recognised as binding and effective decisions in civil law as well. The main considerations focus of the scope of civil jurisdiction of church courts, and, in particular, their jurisdiction as demarcated by the law. Under that law, matrimonial matters were submitted to a church court that was relevant for the religious faith of the spouses in question. Where spouses were of two different denominations, proper jurisdiction for them was determined by the interdenominational matrimonial law of 1836. However, adjudications of church courts other than RC church court were not always accepted by the dominant RC church. This led to frequent disputes regarding their recognition by civil courts. The key subject of the research is the denominational aspect of the jurisdiction of a church court. The paper also includes different interpretations of the interdenominational provisions formulated by leading theoreticians of the interwar period. As can be seen, the differences of their opinions as well as incoherent jurisdiction of the Supreme Court created many doubts with regards to the enforcement of a decision in a matrimonial matter issued by a church court with improper jurisdiction. And so, in its decision of 8 November 1926 the Supreme Court adjudicated that a state court was empowered to investigate the jurisdiction of a church court which has issued a decision in a matrimonial matter. At the same time, however, it took a stance that the provisions of the state interdenominational law should be absolutely binding. And yet, in some other cases it tended to marginalise the state law and allowed to base civil jurisdiction of a RC court entirely on canon law. These examples illustrate a tendency of the Supreme Court to favour broad construction of the principle laid down in Article 114 of the Constitution that the Roman Catholic Church in Poland should be governed by its own laws.
Kompetencje późnorzymskiego vicarius Thraciae w VI-VII wieku.
(Wydawnictwo Poznańskie sp. z o.o., 2010) Wiewiorowski, Jacek
The paper reviews the disputable issue concerning the competences of vicarius Thraciae (βικάριος Θρᾴκης), an office introduced during the rule of Justinian the Great (527-565) around the middle of the 6th century. Most probably a vicarius Thraciae was a civil head of four provinces of an ancient diocese of Thracia: Europa, Haemimontus, Rhodopa and Thracia. The author describes the administrative changes implemented in the Balkans in the Justinian the Great times, and presents various bits of information on other holders of that office, found on objects dug out in different parts of the territory, such as stamps or inscriptions. Those available data are subsequently compared with information on prerogatives of administrators of other dioceses. The author comes to the conclusion that judicial competences of a vicarius Thraciae were likely to be rather limited. His opinion is based on the fact that in appelate matters three out of the four provinces under the rule of the vicar were within the jurisdiction of the prefect of Constantinople. On the other hand, their purely administrative competences were much wider and included supervision of public construction projects. The author further proposes that a vicarius Thraciae might have had something to do with the defence construction project that was being realised in the Balkans in the Justinian the Great time. As one example shows, before 582 there was also a vicarius Thraciae who was most probably a military commander, others might have performed functions of heads of the army in emergency, when in the last decades of the 6th and 7th centuries Balkan provinces were threatened by the attacks of Avars and Slavs. In conclusion the author claims that the example of a vicarius Thraciae proves that the organisational principles on which a late-Roman state was built were not as formalised as some legal sources claim. This opinion is in line with the characteristic feature of the Roman state tradition which showed traces of certain instability of the principles on which a state was organised, and the ad hoc decisions that were often made by the state officials whenever a need for them arose.
Koncepcje ustrojowe niemieckiej chadecji w latach 1945-1948.
(Wydawnictwo Poznańskie sp. z o.o., 2010) Bożek, Michał
A political formation for post-war Germany that would be based on the fundamental principles of Christian ethics was envisaged by German emigrants and the anti-Nazi movement already during the Second World War. The first Christian Democrat structures emerged immediately after the end of the war, in 1945, but initially they were nothing more than a conglomerate of many small parties which were only loosely related to one another. It therefore took some time before they developed into a largely uniform political party. The political system of the restored German state after the second world war was a widely discussed issue and one of the key programme items of the Christian Democrat party in the allied-occupied West Germany. Those discussions took place during the harmonisation process that was gradually taking place and encompassed different ideas stemming from different party fractions. From those emerged a model of the political system of the future state that was primarily intended to be a parliamentary democracy based on the rule of law, a federal type of state and one respecting the fundamental rights and freedoms of an individual, determined to join, on behalf of its citizens, the international community and be involved in the European integration process. Those general and widely supported goals marginalised the differences and alternative ideas emerging in the discussions of different Christian Democrat leaders. Undoubtedly, the issue of the overall political system of Germany was of primary importance in the first post-war years.
Konstytucje "egzorbitancyjne" Rzeczypospolitej w latach 1607-1648. Zarys problematyki.
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2012) Kucharski, Tomasz
Kontradyktoryjność i inkwizycyjność w europejskiej procedurze cywilnej XIX i XX wieku
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2013) Stawarska-Rippel, Anna
Kształtowanie się ustroju kolegiów orzekających w Polsce Ludowej (1952-1956).
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2012) Łysko, Marcin
Marszałkowie świeccy Trybunału Głównego Wielkiego Księstwa Litewskiego w latach 1633-1648
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2013) Walden, Artur
The proceedings of the High Tribunal of the Grand Duchy of Lithuania were pre- sided over by a Marshal, also known as director of the Tribunal in the 17 th century.He was elected from among all the deputies on the inauguration day of a new tribunal. The position was commonly filled by Lithuanian officials of various ranks and itwas not uncommon for senators to serve as Marshals.For various reasons, a Marshal was not always able to take part in all the activities of the Tribunal – on such occa- sions assistant Marshals were elected. In 1633, 1634, 1635, 1636, 1638, 1639, 1642, 1646 and 1648, the High Tribunal was presided over by at least three directors. The most High Tribunals Marshals presided over (there were as many as fi ve) were in 1638 and 1642. In total, in 16 Lithuanian High Tribunals, which convened during the reign of Władysław IV, the position was filled by 37 persons, 45 times in all. Because of the political and property interests of Lithuanian political elites and opportunities to influence judgments, the position of the High Tribunal director was attractive. Out of 37 High Tribunal Marshals17, or 46 per cent, were senators or were to become senators later. In terms of denominational affiliation, the High Tribunal was presided over by 33 Catholics, 3 Calvinists and a single Orthodox. High Tribunal Marshals were – in principle – elected deputies at the dietines of Lithuanian ‘upper voivodeships’, chiefly though from the Vilnius Voivodeship. Out of 45 High Tribunal Marshals, 20 came from these dietines, which accounts for 44 per cent of all Tribunal directors in 1633-1648.
Marzenie o szczęściu, czyli idea prawa natury w filozofii Jana Jakuba Rousseau
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2013) Baranowska, Marta
Między Konstytucją 3 Maja a Targowicą. Poglądy polskich republikanów w latach 1791-1793.
(Wydawnictwo Nauka i Innowacje sp. z o.o., 2012) Lis, Rafał

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