Czasopismo Prawno-Historyczne, 2010, z. 2

Permanent URI for this collectionhttps://repozytorium.amu.edu.pl/handle/10593/1972

Browse

Recent Submissions

Now showing 1 - 9 of 9
  • Item
    Regulacje prawne stanów szczególnego zagrożenia państwa w debacie parlamentarnej II Rzeczypospolitej.
    (Wydawnictwo Poznańskie sp. z o.o., 2010) Marszałek, Piotr
    A state is a social creation and as such is vested with certain functions that must be performed in order to satisfy the needs of individuals who constitute a community. One of the fundamental and vital needs of a human being is security. The fulfilment of that need is decisive for an individual and therefore the real, or even only implied, endangerment of one’s living, or the living of those to whom one feels close, is particularly painful. The protective function exercised by a state is nothing more than the engagement of relevant measures to maintain security when a certain public good is being endangered. There are different sources of potential threat to a public good. They may be either internal or external. It is the state that must decide about the level and degree of the threat, but that assessment should, at least broadly, correspond to the social attitudes and expectations. Poland is a state that was resuscitated, or reborn, at the turn of October and November of 1918. And yet, even the emergence of a uniform executive power in Poland did not solve the fundamental problems of the newly independent state for which to maintain the legal and public order was a priority. The increasing destabilisation of the internal situation led to the introduction of an institution of a state of emergency, which has subsequently developed in accordance with the conceptions enclosed in the Constitutions of the Second Republic of Poland. The institution of martial law has followed suit.
  • Item
    Polityka władz polskich wobec ludności niemieckiej w okresie funkcjonowania Ministerstwa Ziem Odzyskanych.
    (Wydawnictwo Poznańskie sp. z o.o., 2010) Kacprzak, Paweł
    The German population living within the Polish territorial boundaries after the end of the Second World War was subjected to certain policy and state activities. The fundamental objective of the Polish authorities, resulting from the right of state, the social reality of the time and the national policy adopted by the government, was to displace the Germans from the territory of Poland. When the Ministry for Regained Territories was still in power, a number of actions were taken to ‘encourage’ the Germans to leave as well as to prevent them from associating or forming organisations. Such actions were possible because the Germans who lived in Poland at that time were practically deprived of any legal protection. When the Ministry for Regained Territories was about to discontinue its activity at the wake of the Stalinisation of the Polish state, those nationalistic attitudes weakened.
  • Item
    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.
  • Item
    Reforma szlachectwa w Królestwie Polskim w latach 1836-1861.
    (Wydawnictwo Poznańskie sp. z o.o., 2010) Demidowicz, Tomasz
    The reform of the nobility in the Kingdom of Poland carried out between 1836 and 1861 by the Russian Empire controlling its part of Partitioned Poland constituted an element of a wider plan to transform its social and legal systems in order to bring the structure of the Polish society closer to the Russian one. This plan was part of the anti-Polish policy of the Russian Empire adopted after the defeat of the November Uprising 1830/31 the objective of which was to ‘build a united nation of Russians and Poles’. As a result of the reform, the number of Polish nobles was reduced from 300,000 in 1830 to 84,800 in 1861, when the nobility accounted only for 17% of the total population of the Kingdom of Poland. The reform was originally planned for two years but actually lasted 25 years. Following the Russian model, the hereditary as well as personal (life) title was introduced. This principle was overtly contrary to the spirit of the Organic Statute of 1832 and infringed the rule of equality before law, undermining at the same time the integrity of the civil and criminal codes binding in the Kingdom of Poland. It also opened doors to corruption and numerous instances of bribery, costing the State Treasury 1,800,000 roubles. The reform was perceived by Poles as yet another act of repression of the Russian Empire after the fall of the November Uprising.
  • Item
    O narodzinach brytyjskiego systemu parlamentarno-gabinetowego.
    (Wydawnictwo Poznańskie sp. z o.o., 2010) Rakowski, Maciej
    The British parliamentary cabinet system took a long time to achieve its final shape. Its beginnings date back to the 17th century and the reign of Charles II, but the cabinet was finally developed and subsequently separated from the sovereign during the reign of George I and George II. However, even then, it was not yet subordinated to Parliament. The beginning of the 19th century saw a speedy evolution of the position of the House of Commons which consequently, after the 1832 reform, dominated the Cabinet and had a decisive power regarding its political existence. And yet, over the next years, the Cabinet became to play a dominant role, which was the result of its being elected by people rather than by the King’s decision or owing to preferences amongst the lords. And so, eventually, the 18th century sovereignty of the King was replaced by the sovereignty of the people.
  • Item
    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.
  • Item
    Uwagi o statusie prawnym wyznawców judaizmu na ziemiach polskich.
    (Wydawnictwo Poznańskie sp. z o.o., 2010) Borecki, Paweł
    The beginnings of the presence of the followers of Judaism in Poland date back to the first half of the 11th century when the first Jews settled down in Kraków. In the coming years the Polish-Lithuanian Commonwealth became the largest concentration of Ashkenaz Jews in Europe. The 16th and the first half of the 17th centuries are considered the “golden age” of Judaism in the territory of Poland, although the foundations of their legal status in Poland were already laid down in the Calisian statute issued by duke Boleslav Pius in 1264. From the second half of the 16th century until 1764 the 3-tier Jewish autonomy in Poland was based on kahals. During the Partitioned Poland the followers of Judaism became gradually emancipated in terms of legal and social status, but the differences in their position under three different controlling powers became more pronounced. Whereas in the territory of the Kingdom of Poland the reforms were of the most durable character, in Russia, legal discrimination of the followers of Judaism continued until 1917. After World War I their legal status in Poland was determined in the decree of 1916 issued by Warsaw governor general Hans von Beseler, which granted the Jewish Religious Association a status of a public law corporation of a compulsory nature. By 1928 the binding powers of that decree had been extended all over Poland, save for the Silesian province where the former Austrian and Prussian legislation still prevailed. After World War II the activity of the Jewish Religious Association was not resumed. The status of the followers of Judaism was later regulated by amendments to the law on associations implemented in 1949. It was not, however, until the Freedom of Religion and Conscience Act of 17 May 1989 that the Jews’ legal status had significantly improved. The subsequent Act of 20 February 1997 regulated the relation between the State and the largest Jewish organisation in Poland, the Union of Jewish Communities. The Act provides, inter alia, for the restitution of Jewish property. The followers of Judaism in Poland today enjoy the best ever legal status in their history in the Polish territories.
  • Item
    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.
  • Item
    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.