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ARCHIV - Vol. 14 / 2023 No. 2



Gabriele Schneider: Women as Judges and Public Prosecutors in Austria: A Historical Overview

In 1919, the studies of law opened for women in Austria. Nevertheless, women remained excluded from legal professions in the judiciary. It was a long and hard road until the first female judges were appointed in 1947 and the first female prosecutor in 1959. The article examines the legal framework and the factual conditions for women who aspired to professions in the judiciary. Furthermore, it provides short biographies of the pioneering women in these professions based on archival sources. Finally, the study outlines the development of female judges and public prosecutors in Austria until today.



Austria; women in legal professions; study of law; judges; public prosecutors; 20th century; female pioneers; Johanna Kundmann; Gertrud Jaklin; Erika Meissl; Margareta Haimberger.


Jaromír Tauchen: Die gelenkte Wirtschaft, ihre Rechtsgrundlage und ihr strafrechtlicher Schutz im Protektorat Böhmen und Mähren (1939 – 1945)

Immediately after the establishment of the Protectorate of Bohemia and Moravia, the government of the Protectorate began to enact legislation for the transition to a controlled economy, following the Reich model. Its nature varied, but at least two basic groups can be distinguished: legislation regulating the market and legislation regulating the rationing system. One of the main features controlled economy of the Protectorate was the freezing and control of prices, for which the Supreme Price Office was created. In practice, restrictions on the free sale of food, fuel and other commodities played a crucial role. At the same time, Czech-Moravian associations were created – they managed and controlled the production and distribution of food and other commodities, and some state functions were delegated to them. In course of the implementation of the controlled economy, essential management and control tasks were also delegated to the provincial and district authorities, which also prosecuted offences against maintenance economy and controlled economy. In the course of time, repression took hold, and the German special courts punished with all the vigour and severity they could, even in the case of Protectorate citizens, acts against economic regulations.



Protectorate of Bohemia and Moravia; Third Reich; controlled economy; price controls; emergency courts; agriculture; food stamps; private law.


Andrew Watson: The Legal Education Revolution that Failed – Attempts to Establish a Legal University in Victorian Britain

Concern about the quality of legal education of solicitors and barristers in England led to the House of Commons Select Committee 1846, which recommended major reform, as did the Royal Commission of 1855: Both advocated a “College of Law” or “Legal University”, though not including solicitors’ articled clerks, who were to have their own “cognate” institution. Against this, the campaign in the 1870s, initially well supported, to establish a comprehensive “General School of Law” or “University of Law”, which would have amounted to a revolution in legal education in England, is described. Reasons are advanced for its failure and the consequences of this outlined. Speculation follows what might have been if the General School of Law/ University of Law had been established.



England; Nineteenth Century; Professional Legal Education; “University of Law”.


Ivan Kosnica: Naturalisations in the Independent State of Croatia

The article addresses the issue of naturalisations as a way of acquisition of citizenship in the Independent State of Croatia. The research question we deal with in this paper relates to legal regulations and the practise of naturalisations. Since the topic is still not adequately researched, the article relies mainly on archival sources available in the Croatian National Archives and relevant legislation. The author analysed various aspects of naturalisations that were going on a central as well as on the local level.



citizenship; nationality; naturalisation; Independent State of Croatia.


Aleksejs Jelisejevs: From Bona Fides to Laba Ticiba: Historical Interpretation of the Good Faith Principle in Latvian Law

This paper focuses on a scientific analysis of the genesis and historical development of the good faith principle as a doctrinal interpretation of Latvian regulations. It is about the evolution of attitudes toward the principle of bona fides in modern legal science and case law, starting with its origins in archaic Roman law and its rediscovery by Justinian’s Corpus Juris Civilis through its application in the Western medieval ius commune and its continental renaissance in the early twentieth century, considering its limited position in the Code of Civil Laws of the Baltic Provinces to its triumph in Latvian civil law. This comparative historical study shows that a clear definition of good faith can be found through a system-historical interpretation of the good faith rule. This should help to determine the nature of subjective rights and obligations under any legal rule governing specific legal relationships.



Bona fides; good faith; historical interpretation; Roman maxims; legal principles.


Jelena Nikčević: Development of Security Instruments of Maritime Loans on the Eastern Adriatic Coast, with Particular Reference to the Ordinance-Law on Property Rights on Ships and Maritime Liens from 1939

This work provides a chronological overview of the development of pledge rights in the shipping industry, with particular reference to the area of the Mediterranean i.e. the eastern Adriatic coast. The work elaborates the means of security of maritime loans, from foenus nauticum to hypotheque. A special emphasis has been put on the solutions provided by the Ordinance-law on Property Rights on Ships and Maritime Liens from 1939. This Ordinance was the first to introduce the institute of ship hypotheque as a favourable means of long-term lending in the shipping industry and as one of the basic prerequisites for its unobstructed development. The legal solutions from the Ordinance create a significant basis for the further upgrade of regulations in the field of pledge rights on ships and are a kind of predecessor of contemporary legislation in this field on the territory of the eastern Adriatic coast.



Shipping industry; Security Instruments; Maritime Loan; Co-ownership of Ships; Ship Hypotheque; Ordinance-Law on Property Rights on Ships and Maritime Liens from 1939.


Zdeňka Stoklásková: Die Armenfürsorge als Rechtsproblem in der Österreichischen Monarchie

This study examines the origin of legal tools for the creation of systematic poor relief in the Austrian monarchy from the period of Joseph II. It is possible to find a certain kind of legal protection for Austrian state citizens in Joseph’s Civil Code from 1786 and in the General Civil Code from 1811. The paper analyses the legal principles leading to the establishment of the home community principle for Austrian state citizens, which was essential for providing aid to the poor. Attention focuses on an interpretation of problematic legal terms such as “home settling” or “häusliche Niederlassung“, the implementation of which was resolved in legal disputes between state authorities. The author discusses the decrees of the Supreme Court of Justice in Vienna from the last quarter of the 19th century which concerned disputes between municipalities relating to the reimbursement of the costs of poor relief.



Poverty; Poor relief; the Supreme Court of Justice; the General Civil Code; 19. Century; Habsburg empire; History of Law; Social History.


Lenka Šmídová Malárová: Jews and Anti-Jewish Rules in the Czech Codification of Church Law of 1349

The first codification of church law in the territory of the historically Czech lands, known as the provincial statutes of Ernst of Pardubice (Statuta provinicialia Arnesti), was issued in 1349, with validity for the entire Prague archdiocese. The Statute applied not only to the clerical and lay population, but also to Jews, for whom special rules and restrictions applied. The regulation of the legal and social life of the Jewish population is explicitly dealt with in three provisions (Articles 66-68), which mainly regulate the contact of Jews with Christians and their rights and obligations in public. Many of these prohibitions and regulations are based on papal decrees approved by the ecumenical councils, the text of which was reflected in the Decretals of Gregory IX and subsequently in the Mainz Statutes of Peter of Aspelt of 1310. The roots of these restrictions, however, in most cases go back to antiquity. This concerns, for example, the prohibition on hiring Christian nurses, midwives and servants; Jews were also not allowed to participate in public life, to build new synagogues or to improve existing ones. These measures were introduced by the Roman Emperor Theodosius II as part of the gradual process of Christianization of the Eastern Roman Empire. Although the legal provisions of the provincial statutes of Ernst of Pardubice imposed many restrictions on the Jews, this fact, on the other hand, was to some extent counterbalanced by protective provisions that prohibited laymen and Christian clergy from disturbing Jewish religious rites, destroying their graves, and arbitrarily punishing them without the existence of a relevant legal title.



Jews; ecclesiastical law; canon law; Middle Ages; ecumenical councils; Archbishop Ernst of Pardubice; Statuta provinicialia Arnesti; codification; Roman law; Czech lands; Prague.


János Erdődy: In XII minuendi sumptus sunt lamentationisque funeris – sed ea non tam ad religionem spectant quam ad ius sepulcrorum: Restrictions on Funeral Luxury in Rome

The legal attempts to curb funeral lavishness and extravagance come into two groups: the first includes the provisions of the Law of the XII Tables, the second the lex Cornelia sumptuaria (81 BC), and the leges Iuliae sumptuariae (46 BC, 18 AD) (Rotondi, Sauerwein). In this presentation, the focus is drawn to the provisions in the XII tables. In ancient law, funeral sumptuousness was mainly regulated by the Law of the XII Tables. Prior to the early Republic, some restrictive measures appeared in the so-called leges regiae. Spectacular, artistically designed, and expensive funeral ceremonies and processions were not far from the Roman thought. As a result, the provisions on Table X restricting these lavish ceremonies could be considered as direct precursors of leges sumptuariae (Sauerwein) since the immoderate spending constituted a substantial and profound social problem, even though this excess was available only to the upper class. The casuistic and detailed rules of the XII Tables suggest that the extravagance of funerals and burials could not be categorically severed from the worship of the gods. Therefore these rules are directly related to religio. The sources include Cicero’s texts in De legibus, Polybios’ detailed account of Roman funeral rites, and Pliny the Elder’s reports on funeral customs. These texts show that many rituals were associated with worshipping the gods and sacrificial rites. This circumstance underpins the religious origin and character of these rules.  At this point, however, interesting questions arise from this observation. Why is the ius sepulcrorum linked with religio? Did the proper worship of the gods serve as a sufficient justification for more intensive obedience?



Funeral; luxury; restrictions; parsimonia; tenuitas; religio; superstitio; leges sumptuaria; the Law of the Twelve Tables; Polybius; Plutarch; Numa Pompilius; Romulus; Festus.


Gábor Schweitzer: Der Rechtsstatus und die Selbstverwaltung der Hauptstadt Budapest in der bürgerlichen Ära

The paper reviews the legal status and the system of self-government of Budapest in the Bourgeois Period. Budapest was created by the administrative merger of three cities - Pest, Buda and Óbuda – pursuant to Act XXXVI of 1872. In said period, the status and administration of the capital city were governed by separate laws. This was an expression of the special attention paid by the government and the legislature to the country's dynamically developing capital. During the existence of the Austro-Hungarian Monarchy between 1867 and 1918, liberal principles were the main determinants of the capital's legal status and administrative system.  One of the typical institutions of this period was the general assembly, the guarantee of municipal autonomy: half of the membership was elected by the eligible population and half from among the ranks of the highest taxpayers. At the same time, Budapest's status as the capital of Hungary has led to a narrowing or even complete exclusion of the local government's room for maneuvers in certain areas. However, the centralizing administrative policy objectives of the national conservative government of the inter-war period resulted in the gradual crippling of self-governance.



Budapest; bourgeois period; self-government; municipal autonomy; general assembly; largest tax payers; centralization.


Csaba Cservák: The Constitutional Development of Transylvania

There is an interesting dichotomy between the Hungarian Historical Constitution and the former “province of Transylvania”. On one hand, Transylvania was an inseparable part of the once-was Hungarian state. On the other hand, in the period of the “country torn into three parts”, according to some approaches, Transylvania embodied and represented the independent Hungarian state. During the reign of powerful princes, such as Gabriel Bethlen and George (György) Rákóczi I., Transylvanian power waxed, while the weak tenures of Sigismund Báthory, Gabriel Báthory and George (György) Rákóczi II. it waned, their unfoundedly great ambition brought to ruin the realm. In 1848, one of the principal demands of the Hungarian revolutionaries was the official, legal unification of Transylvania with the rest of Hungary, and it was was proclaimed through the April Laws of the same year The existence of a separate ispán title for the Szeklers was a symbol of their autonomy, and its frequent conjoining to the voivode title was a source of importance and pride. John Zápolya died in 1540, and this Lesser Hungary, made up of a slightly enlarged Transylvania, was then governed by Dowager Queen Isabella and their son, John Sigismund Zápolya.



Historical Constitution; province of Transylvania; junior king; ispán; Voivode of Transylvania; governor; Austro-Hungarian Compromise.


Péter Nagy: Hungarian Scholar of Czechoslovak Law in the USA. The Life and Works of Miklós Ujlaki

The study aims to present the life and carrier of Miklós Ujlaki, who was one of the students of the well-known Hungarian law professor, Károly Szladits (1871–1956). At the beginning of his academic career, Ujlaki researched the bibliography of the Hungarian private law. He researched the development of the private law in the former Hungarian territories for several years, which came under the control of neighbouring countries because of the Treaty of Trianon. He published his conclusions in several books. When the Communist dictatorship began to take hold, Ujlaki started a new life in New York. Miklós Ujlaki continued his research in the USA, mainly on legal bibliography and comparative law. In the first half of the 1950s, his activities were based on academic research and teaching, and he became renowned in the fields of private international law and comparative law. He left academia in the mid-1950s and turned to practical work as a lawyer.



carrier; comparative law; private law; legal history; bibliography.


Viktor Papp: Conflicts, Compromises and Professionalization. The Case of Hungarian Trainee Lawyers in the late 19th Century

This paper explores the question of how the relationship between trainee lawyers and lawyers has changed in the late 19th and early 20th centuries. The main question of this study is what arguments and what professional solutions the trainee lawyers have used to improve their position in relation to lawyers. The presentation of the problem will be based on articles published in the legal press. The relationship between the two groups is important because, in addition to lawyers, trainee lawyers also have gained important functions through the lawyer’s code of conduct introduced in 1874, which have further increased the already fierce competition in the labour market for lawyers. Another significant issue is the extent of conflictual discourse between lawyers and trainee lawyers. By the beginning of the 20th century, trainee lawyers had raised awareness of the inevitability of generational change within the profession by founding several professional associations. The study aims to illustrate, through concrete professional debates, the effectiveness with which trainee lawyers have been able to assert their professional and financial interests against lawyers. The final part of the paper deals with cases where lawyers and trainee lawyers have successfully allied themselves against government and state actors. The results of the research will show what professional mechanism and argumentation tools were in the hands of the legal professions, and when they were used during the process of advocacy. The results of the research will also fit well with the professionalization paradigm, as the research of the social history of lawyers helps to understand the transformation of the intellectual professions and of the middle class. The findings of the research, on the other hand, will be closely related to social closure theory, as the rivalry between lawyers and trainee lawyers sheds light on the mechanisms that influenced the practice of social closure in the 19th century.



lawyer; legal profession; professionalization; Budapest Bar; trainee lawyer; law clerk; concept of social closure; social history; the code of conduct for lawyers.


Tamás Antal: A Hungarian Jurist’s Views on 19th-Century English Juries

The author presents a brief amendment to the history of British common law by publishing the opinion of a talented Hungarian lawyer on English juries according to his 1870 viewpoint. The new liberal Government sent a young ministry councilor to London to examine the criminal procedure law of that time. After returning home he became one of the flag-bearers of juries in the Austro-Hungarian Monarchy and also made a remarkable influence on the codification process that led to the first Hungarian Code of Criminal Procedure decades later. He armed the constitutional system of the United Kingdom in the second half of the 19th century and the way its legal institutions operated became basic standards for his reform plans as a Minister of Justice in the 1890s. His name was Desider Szilágyi.



Hungary; England; Jury; Criminal procedure; 19th century; Old Bailey.


Thembi Pearl Madalane: Western Europe Immigration Laws on Diversity in International Arbitration. A Historical Perspective on Africa and the Influence of English Law

International arbitration resolves cross border disputes which involve parties with different nationalities, cultures and backgrounds. As such, the diversity of the arbitral tribunal is important in the legitimacy of the arbitral process. Due to the confidentiality cornerstone of arbitration, there is no public data but statistics of appointed arbitrators by nationality, in the leading arbitration institutions. But the general accusation is no secret that international arbitration is a male, stale and pale field. This has also increasingly been criticized due to the lack of African representation. The discourse has circulated around bias and poor perception that is argued, isolated from European immigration laws. However, in backdrop of international disputes involving African parties and populist views opposed to African immigration in Europe, foreign arbitrators are still required to first obtain employment visas. So it is not irrational to expect a spill over in African lawyers' compliance with applicable immigration requirements as a possible inhibition to participation in Western Europe seated hearings. Even Britain, with a leading international arbitral centre in London is supposedly the most positive in Europe on the benefits of immigration. But it has been called out by British MPs for its UK visa system that damages Africa relations and also anecdotally reported as denting London’s international arbitration reputation, due to foreign lawyers' inability to obtain a visa to participate in hearings. Once a seemingly far-fetched thought, some emerging jurisdictions have introduced visa-free entry for participants in international arbitration to market as attractive dispute resolution centres. So, with increasing options that also facilitate diversity, the immigration laws may also be Western Europe’s Achilles heel in continuing to maintain its position as the sought-after international centre for dispute resolution service.



Immigration Laws; International arbitration; Employment visa; European Union; Britain; Africa; Nationality; Diversity.


Balázs Arató: The Historical Roots of Family Businesses, the Entail and the Unification of Wealth

Historical aristocratic families, as economic units, can in some ways be seen as the forerunners of today's family businesses. These wealthy families had essentially the same or similar issues and needs in terms of wealth transfer, inheritance and succession as today's family businesses. The entail (fideicommissum) was the technical legal solution, or legal institution, which enabled the historic aristocratic families to preserve their economic strength from generation to generation, to keep their wealth together and to develop their specific succession arrangements which have survived for centuries. However, prior to the legal declaration of the entail, the enforceability was always a question mark, and it is a problem that family businesses today are still faced with in relation to certain legal instruments and technical solutions in the area of succession. This paper will first review the history of the development of family businesses and then examine the legal institution of the entail and its various forms, drawing parallels between the historical aristocratic families and the family businesses of today, based on essentially identical interests and aspirations.



historical aristocratic families; family business; succession; wealth transfer; entail; fideicommissum.


Réka Pusztahelyi: Undue Influence as a Civil Law Concept in the Hungarian Legislation and Judicial Practice (Investigation of the Drafts of the Hungarian Civil Code between 1900 and 1928 and the Corresponding Literature and Practice)

At the very beginning of the twentieth century, during the period of heightened endeavours for the codification of the private law in Hungary, not only the influence of the “great” civil codes (BGB, ABGB, ZGB) was observable. This paper aims to demonstrate the special impact (or, unique renaissance) of the English equity doctrine of undue influence, among the invalidity rules concerning juridical acts, contracts or testaments. Since this examination cannot be carried on separately from scrutinising the legal thoughts and legislation on immoral and usurious contracts, after some general remarks, this work deals with relevant issues of the Hungarian legislation of usury, independently of civil code drafts or embedded into them. Then, it demonstrates the emergence of the undue influence doctrine in the academic discussion, in the civil code drafts and parallelly, in judicial practice. At this point, we should highlight the special interplay between these “sources of legal thinking”, and as a consequence, how the approach to the notion of undue influence was forming in that period, alongside the draft texts (from the year 1900) up to the Proposal for a Private Law Bill (Private Law Bill, 1928). Although this writing focuses on invalidity issues of contractual transactions, one chapter is dedicated to showing the development of the concept of undue influence relating to testamentary dispositions.



undue influence; usurious contract; unfair exploitation; contracts contrary to good morals; law of succession; Hungary.


Roman Savuliak: Codex Theresianus of 1766: Codification Works, Structure, main Content and Significance of Roman Law Reception during its Conclusion Process

The purpose of the article is a step-by-step review of the codification works on the Codex Theresianus conclusion of 1766 and the outlining of the structure and the analysis of the main content of all Draft Code revisions, as well as clarifying the significance of the reception of Roman law during its conclusion. Hence, the author outlined the general work schedule of the Compilation Commission in Brno, which contained the primary structure of the Draft of Codex Theresianus. So, the content of the revisions of the Draft Code text, developed by the Compilation Commission, the Legislative Commission headed by Josef Azzoni, and the Legislative Commission under the supervision of Hofrat Zenker, were considered. In the process of this research, the author identified certain differences in the structure and revealed the peculiarities of some provisions in different versions. The durability of the Roman tradition of civil-law institutions and the content of some of their norms and, accordingly, the connection of the civil-law doctrine of the Austrian Empire with Roman law have been ascertained. In addition, the article broadly presents an analysis of the state of research in Ukrainian historical and legal science, both modern and at the end of the 19th – beginning of the 20th centuries, history of the sources of law, including the Draft of Codex Theresianus, and individual institutions of civil law of the Habsburg monarchy.



Codex Theresianus; Maria Theresa; civil code; codification; Compilation Commission; Legislative Commission; Josef Azzoni; Hofrat Zenker; reception of Roman law; Habsburg monarchy.


Vinicius Magalhaes Casagrande: Rechtsnormen und Logische Analysis: ein Briefwechsel - Was Kelsen tricked?

The article aims to uncover the actual discussion that took place between Ulrich Klug and Norbert Wiener, a philosopher of law and a mathematician, on the question of whether it was possible for a machine to apply law using logic. This discussion took place in 1957 and was mentioned by Ulrich Klug in an exchange of letters with Hans Kelsen. Hans Kelsen and Ulrich Klug exchanged letters in which they discussed the application of logic to law. These letters formed the basis for a book entitled Legal Rechtsnormen und logische analyze: ein Briefwechsel 1959 bis 1965. The correspondence between Hans Kelsen and Ulrich Klug was analyzed and from it the correspondence between Klug and Norbert Wiener. The research source comes from Wiener's personal collection at the Massachusetts Institute of Technology. As a result, we find the letters exchanged between Klug and Wiener. We can conclude that both disagree on the possibility of creating a logical machine that applies the law. From this we can conclude that Klug's statement to Kelsen that Wiener accepted the existence of a machine that applies the law through logic is false.



letters; Hans Kelsen; Ulrich Klug; Norbert Wiener; legal logic; cybernetics; Rechtsnormen; logische analysis; Briefwechsel.


Thomas Gergen: Durchsetzung von Ansprüchen auf Bescheidung und Gewährung von Pensionsleistungen als Vertragsbedienstete von verschiedenen EU-Behörden – Rechtsgeschichte der frühen Jahre der EU als „Lehrmeisterin“ und gutachterliches „Handwerkszeug“

The question of entitlement to pension benefits based on temporary ("freelance") contracts with EU authorities arises precisely when these have not been explicitly excluded. Although the interpretation must rightly be restrictive, there are cases that go back to the early jurisprudence of the EU and thus to the young history of European law; it can be consulted as a "teacher" for today's interpretation.



EU pension rights; staff and “other servants” of the EU; “Plaumann formula” (1963).


Stefano Barbati: Il postliminio di Ostilio Mancino

The purpose of the article is to inquire thoroughly into the sources about Mancinus’ postliminium. The most relevant sources for the juridical issues related to the topic are Cicero, Pomponius and Modestinus. Common source of those authors are the 18th libri iuris civilis of Quintus Mucius, published around 90 b. C., in which the matter was discussed in the heading related to postliminium, according to its explanation in the dialogues on the ius civile, published by the jurist Brutus between 135 and 133 b. C., and to what Quintus Mucius’ father, Publius Mucius, has told his son during his education. The essay shows at first how all the relevant issues took place during 136 b. C.: the surrendering (deditio) of the past (137 b. C.) consul Mancinus to the enemies (the Numantini), their refusal to accept him, his return to Rome, his entrance to the Senate, his expulsion decreed by a tribune and the immediately following discussion on Mancinus’ status in the Senate between the senator Brutus, preeminent jurist, and the pretor Publius Mucius, as well preeminent jurist. To solve the groovy state of our sources, the essay distinguishes among 6 relevant topics: Publius Mucius’ thought; Brutus’ thought; content of the law enacted as to regard Mancinus’ case; Quintus Mucius’ interpretation of it (90 b. C.); Cicero’s interpretation of it (between 70 and 44 b. C.); Modestinus’ interpretation of it (around 240 a. C.). On each of those topics, the article enlightens at first the state of the art and then proposes the author’s view. The author thinks that Publius Mucius adhered to the traditional nullity of the deditus’ postliminium, no matter if he was accepted or not by the enemies; that Brutus thought the a deditus rejected by the enemies was not a deditus, since deditio had to be conceived as a bilateral instead of unilateral act; that the law enacted on the case adhered to Brutus’ view because of its approval by the senator and preeminent jurist Manilius, counselor of the consul Furius Philus who proposed to law to the people’s assembly: the statute law confirmed Mancinus’s citizenship instead of reinstalling him into Roman citizenship; that also Quintus Mucius adhered to Brutus’ new conception, followed, with some misunderstanding, by Cicero; that Modestinus, living far away from the later Republic, fell into deep misunderstanding of Mancinus’ case, which he read about in commentaries on the work of Quintus Mucius and Sabinus.



Roman Law; Later Roman Republic; Law of Persons; Relationships with Foreign People; Jurisprudence.




Annex: XVII. Jahrestreffen der Jungen Romanisten - Radek Černoch: Introductory Remarks on the Essays of the Speakers of the XVIIth Young Scientists Meeting on Roman Law

On April 13th and 14th 2023 Masaryk University in Brno (Czech Republic) hosted the XVIIth Young Scientists Meeting on Roman Law. The following introduction sums up topics and presentations of the Meeting. After the introductory remarks four speakers present their essays, based on their presentations at the Meeting.



Brno; Collegium Junger Romanisten; Jahrestreffen Junger Romanisten; Roman Law.


Michael Binder: The Capability to sue or be a Defendant in the Context of Matrimony with filii familias: An Analysis of D. and D.

In Roman law, it was not uncommon for a filius or a filia familias to get married. The capability of a filius or a filia familias to sue or be a defendant was restricted. During an intact marriage, such a restriction was often insignificant. However, in the case of a divorce, the recipient of the dowry (dos) was sometimes questionable. To settle conflict about the dos, it was important to know who could claim part or all of the dos and who was obligated to return part or all of it. Such a question was raised in D. and in D. where a filius/filia familias first married and later divorced. In this article, D. and D. are exegetically analysed.



Roman law; filii familias; dowry; actio rei uxoriae; dolo facit, qui petit quod redditurus est.


Stefan Schmatzberger: Der prozessuale Erwerb scheidungshalber entwendeter Sachen in D. 25.2.22 pr.

Die actio rerum amotarum greift in einem Spezialfall im Bereich des Diebstahls ein: der Sachentwendung unter Ehegatten anlässlich der Scheidung. In D. 25.2.22 pr., Iul. 19 dig. befasst sich der Hochklassiker Julian mit den Konsequenzen, welche die Verurteilung aus dieser Klage für das rechtliche Schicksal der entwendeten Sachen nach sich zieht. Die exegetische Untersuchung dieses Digestenfragments vor dem Hintergrund des, durch das Prinzip der condemnatio pecuniaria geprägten, Formularprozesses zeigt, dass es infolge der Geldverurteilung zum prozessualen Erwerb der herausverlangten Sache durch den Verurteilten kommt. Dieser erhält hinsichtlich der res litigiosa nämlich Rechtsschutz durch eine dingliche Klage und eine exceptio.



actio rerum amotarum; Sachentwendung; res amovere; matrimonium; divortium; divortii causa; Formularprozess; condemnatio pecuniaria; Enteignung; actio Publiciana; exceptio; Eigentum.


Robin Repnow: Die Rückgabe konfiszierter Güter in einem Kaiseredikt aus dem frühen 4. Jh.

Eine durch eine Inschrift auf Kreta überlieferte Kaiserkonstitution aus dem frühen 4. Jh. (CIL III, 12044 = CIL III, 13569 = ICret I, 18, 189) enthält ausführliche Regeln über die Rückgabe konfiszierter Güter an ihre früheren Eigentümer. Da der Text, der in der Literatur zuweilen als edictum de bonis restituendis oder als Second Caesariani Decree bezeichnet wird, sehr lückenhaft erhalten ist, ist sein Inhalt nur schwer verständlich. Dennoch handelt es sich um eine bedeutende Quelle sowohl für das römische Fiskalrecht als auch die von den Kaisern zu Beginn der Spätantike angewandte legislative Technik. Zu datieren ist die Konstitution möglicherweise in die Zeit kurz nach dem Herrschaftsantritt von Kaiser Galerius (305/306). Der in der Literatur oft vermutete Zusammenhang zu anderen inschriftlich überlieferten Kaiserkonstitutionen aus derselben Zeit wie etwa dem edictum de accusationibus ist jedoch weniger eng als teils angenommen.



Konfiskationen; Schenkungen; Rückerstattung; Fiskalrecht; Indulgenz; Caesariani; Publikation von Kaiserkonstitutionen; edictum de accusationibus; Galerius.


Emese Újvári: Die Haftung der Erben der Munizipalmagistrate. Beispiele aus dem Bereich der magistratischen Vormundsbestellung

In the Roman Empire during the imperial period, in certain cases it was possible to take action against the magistratus municipales who had committed an omission or error in the guardianship order, if the default had (indirectly) caused damage to the ward. The sources suggest that the action which could be brought in such cases, the actio subsidiaria, was an actio poenalis and could not originally be brought against the heirs of the magistratus in the event of his death. Later, however, the heirs of the magistratus could also be sued under certain conditions, in order to provide greater protection for the interests of the ward.



datio tutoris; magistratus municipales; actio subsidiaria; hereditary responsibility; satisdatio rem pupilli salvam fore; quasi delictum.





Hans-Christian Herrmann (Hg.): Die Strukturkrise an der Saar und ihr langer Schatten. Bilanz und Perspektiven von Montanregionen im europäischen Vergleich


Michael Röhrig (Hg.): Königshof und Landgemeinde. Geschichte Völklingens von den Anfängen bis zur Mitte des 19. Jahrhunderts


Alfred Söllner, Christian Baldus: Römisches Recht


Ulrike Babusiaux, Christian Baldus, Wolfgang Ernst, Franz-Stefan Meissel, Johannes Platschek, Thomas Rüfner (Hrsg.): Handbuch des Römischen Privatrechts





Christoph Schmetterer: Tagungsbericht: Ausnahme und Vielfalt im Recht der Vormoderne


Thomas Gergen: Stephan Toscani: Jurist, früherer Minister und Landtagspräsident, nunmehr Träger „Professor Alfred Diwersy Ehrenpreis“



Contents download here:


ARCHIV - Vol. 14 / 2023 No. 1



Miriam Gassner: From Brest-Litovsk via St. Germain to Sevres - A Legal Perspective on the Peace Treaties and the Disintegration of Three Multi-ethnic Empires at the End of the First World War

The paper aims at shedding light on the initial situation of the Russian, Habsburg and Ottoman Empire at the end of the First World War and discusses the development of the Peace Treaties of Brest-Litovsk, St. Germain and Sevres. It analyses and compares the provisions of all three peace treaties in question and tries to put them in context. As the German Reich and the Treaty of Versailles already have been subject of numerous academic studies, the paper deliberateley focuses on three before mentioned Peace Treaties, which all played a key role in the decline of multi-ethnic empires.



First World War; Treaty of Brest-Litovsk; Treaty of St.Germain-en-Laye; Treaty of Sevres; Paris Peace Treaties; Russian Empire; Habsburg Monarchy; German Reich; Ottoman Empire.


Christoph Schmetterer: Die Diskussion um die Rückwirkung bei Einführung der Untreue in Österreich 1931

In December 1931 a new crime, embezzlement, was incorporated into Austrian law. This was done retroactively although ex post facto penal laws had been considered highly objectionable since the late 18th century. This article analyzes how this idea was generally developed in legislation and jurisprudence as well as the discussion specific to the ex post facto law of 1931.



Austrian criminal law; Embezzlement; ex post facto law; Friedrich Ehrenfest; nulla poena sine lege.


Vid Žepič: Iudex sceptro aequitatis armandus est. Richterliche Insignien in der europäischen Rechtstradition bis zum 18. Jahrhundert

In spite of the variety and multitude of judicial authorities, a survey of the judicial insignia in continental Europe between the High Middle Ages and 18th century reveals a surprising uniformity and constancy both in the particular as well as the ius commune legal tradition. The sword of Justice, the Judge`s chair, his robes and book figure prominently in the medieval illuminations. Insignia formed the identity of the judge and served as a reminder of the presence of a political institution of a transpersonal character: the judicial authority was hence represented through the display of the inisignia. The aim of the article is to defend the proposition that the exterior signs of delegated judicial authority in pre-codification continental Europe manifested themselves in a rather consistent appearance because they reflected a common idea of a delegation of judicial authority, which was to be accompanied by the visual transfer of materialised symbols.



Insignia; Judge; Sword of Justice; Rod of Justice; Book; Ceremonial vestment; Judge´s Chair; Legal symbolism; Legal archaeology; Dignity; Ius commune.


Peter Roethke: Virtuous Promises: The Changing Oaths of the Reichshofrat and the Appearance of Impartiality

As the Imperial Aulic Council of the Holy Roman Empire grew in stature over the course of the early modern period, the integrity of its membership came increasingly into focus.  This article analyzes that heightened scrutiny through the lens of oaths.  Working from the promulgated versions, drafts, and legislative history of the court ordinances, it argues that the oaths sworn by court officials were specifically tightened in order to deter corruption and the appearance of corruption. The close textual analysis reveals a keen appreciation of bureaucratic mores by the political masters of the court. For such an important instrument of imperial power as the Imperial Aulic Council, perceptions mattered.



Imperial Aulic Council; corruption; Holy Roman Empire; Reichshofratsordnungen; judiciary; judicialization; law; bribery; integrity; reform.


Daniela Buccomino: ‘ascendere a sommi gradi… cumular infinite ricchezze’/ ‘Ascending to Great Heights… Cumulating Infinite Riches’. Legal Education and Professional Careers in the State of Milan (16th–18th Century)

The proposed contribution aims to fill some historiographical gaps on the legal formation of the 'power elite' of the State of Milan in the Modern Age in light of the changing cultural and institutional context. The main focus of the research, which is part of broader research on the history of the University, is the relationship between the training of Milanese graduates in law at the Alma Ticinensis Universitas and the careers they pursued within the magistracies and judicial institutions at the territorial level. This is also in consideration of the role played by jurists in Lombard society (16th-18th centuries). Through a series of concrete cases of ruling families, an attempt will be made to answer specific questions, such as the value of the doctoratus obtained at the Studium Publicum of the State of Milan and the role of the social class for the conferment of certain public offices and the performance of specific professions.



Legal education; Doctores; doctoratus in utroque iure; History of Universities; State of Milan; University of Pavia; Senate of Milan; legal careers; Italy.


Carlos Sardinha: Natural Law and the Defense of Freedom of Trade and Navigation in Hugo Grotius’ Mare Liberum (1609) with Regard to the Seizure of the Portuguese Carrack Santa Catarina by the Dutch during the Reign of Philip III of Spain (1603)

The conception of a Christianity submitted to Papal Power, also indirectly, on every matter concerning the spiritual well-being of the Faithful and implying a lordship of the whole world including the regulation of the relations among Christian princes and between Christians and infidels, caused the Pope to decide on the recognition of the rights of the Portuguese Crown over the discovered lands and seas. Further, according to several commentators like Baldus (1327-1400) every State could under Civil Law (iure civili) occupy part of the sea, exercising sovereignty over it “as to jurisdiction and protection” (quoad jurisdictionem et protectionem). The Portuguese Crown enjoyed a right of quasi possessio over the whole of the maritime area of the Estado da Índia (in English, State of India). The Portuguese Crown forbade to all and every person of whatsoever estate and condition, including foreigners, to sail to the lands and seas of Guinea and India and all other Portuguese lands, seas and places conquered by Portugal using ships other than the Portuguese under penalty of death and asset forfeiture. Therefore, we can say that from the establishing of the Estado da Índia flowed the imposition of the system of mare clausum upon the Indian Ocean economy. On the other hand, Hugo Grotius’ Mare Liberum (1609) consists in a coherent refutation of the arguments put forward by the Portuguese to justify their claim to mare clausum. He stresses that no one can own the sea, no one can forbid another to sail without being guilty of wrong. Because of this, the Portuguese did not hold property over the East, they had no right to exclude the Dutch from sailing to the East Indies and do business with the Indians because this right belongs to all peoples. The Chapter 11 of Grotius’ work De Indis (that is, De Jure Praedae) helps us to see the legal controversy over the seizure of the Santa Catarina from the viewpoint of a continuous and evident violation of natural law perpetrated by the Portuguese. This violation of natural law justified Admiral Van Heemskerck’s initiative of punishing the inhuman economic and trade practices of the Portuguese with the aim of restoring the much-needed freedom of trade and navigation in the region.



Papal Power; mare clausum; mare liberum; Natural Law; Law of Prize and Booty;   freedom of trade and navigation; Iberian Union.


Charalampos Stamelos: Historical and Philosophical Overview of the Law of Ancient Cyprus up to Roman Times

In the present study we examine historical and philosophical aspects of the law of ancient Cyprus from the foundation of the Kingdoms to their abolition and the transformation of Cyprus into a Roman province. From this study, useful, timeless and timely conclusions emerge for the broader perception and understanding of the concepts of ethics, justice, good law-making and law in general. The analysis includes public law, private law and criminal law of Ancient Cypriot Kingdoms. Moreover, there is an analysis of philosophical aspects of Ancient Cyprus which was similar to Ancient Greek philosophy influenced the respective laws.



Ancient Cypriot Kingdoms laws; Alassia; Paphos; Salamis; Powers of the King; Public Law; Private Law; Criminal Law; Tablet of Idalion; Zenon the Kitieus; Stoicism; Persians; Democracy; Alexander the Great; Roman law; Cicero; Bacchus Tryphonus; Marcus Aurelius.


Adolfo A. Diaz-Bautista Cremades: Approaching the Legal Regime of Consensual Abduction Through History

Abduction was considered a way to access marriage in the ancient world. Even if it wasn’t lawful, Mythology leaves us traces of this conduct, which was acceptable in Roman society when the kidnapped woman´s consent was present. Constantine, for reasons that we can only suppose harshly prohibited this practice, punishing it with the death of all those involved (even the raped woman). Its regulation went back to the Middle Ages but it was modulated, accepting the remission of the sentence in case of agreement between the parties. This way, a private crime was established in modern times which allowed the woman to take action against the abductor unless they married, thus forcing him to fulfil his marriage promises.



Abduction; consent; marriage; women in Rome; Roman criminal law.


Tereza Kolumber: Legal Regulation of Elementary and Upper Elementary Schools during the Second Czecho-Slovak Republic and the Protectorate of Bohemia and Moravia

This paper offers an overview of the education law from 1760s to late 1930s and then well-structured analysis of the legal framework for elementary and upper elementary (main) schools from 1938 to 1945, which is characterized by a focus on extensive secondary legislation, which is frequently not even of the Czech origin. The paper intends to illustrate the transformation of the school system from the era of the interwar democratic state through a local variation of fascism into a Nazi-occupied territory where education was mainly intended to serve the indoctrination of children and youth. The author of the paper combines the available laws and regulations with other sources to provide a comprehensive overview of this part of the Czech education system, which has so far been rather neglected in the academic world.



Education Law; Czechoslovakia; Protectorate Bohemia and Moravia; Elementary School; Upper Elementary school; Ministry of education; Kuratorium.


Ján Štefanica: Causes of Political Trials against Slovak Nationalists in Czechoslovakia

The study focuses attention on the legal and social factors affecting the formation of the group of so-called Slovak bourgeois nationalists, the fabricated allegations against them often based on real documents, and the overview of criminal procedure, together with its analysis. The author points out that issues pertaining to the constitutional position of Slovakia in the Czechoslovak Republic were addressed through repression of the Communist part of the Slovak intelligentsia. Further, the study demonstrates the existence of a power struggle among the political leaders of the Communist Party of Slovakia and points to the special dedication in the handling of the trials and the interpretation of laws.



Political trial; The Cold War; Communist Party; Husák; Nationalism; Czechoslovakia.


Veronika Lehotay: Strafrecht in Ungarn (1920–1944)

The study deals with criminal law between the two world wars. The first codified Hungarian Penal Code was completed in 1878.  The Criminal Code became known as the Csemegi Code. After 1920, there were also a number of changes in criminal law. The main questions of this paper are: How did the economic crisis, the war, and the increasing discrimination from 1938 onward affect criminal law? In the context of the period between 1920 and 1944, the question arises how and whether the representatives of (criminal) jurisprudence took a stand on equality, war and restriction of rights. How has the relationship between the state and the individual changed with regard to public law / criminal law? How did the criminal law tendency appear in Hungarian jurisprudence and how did it influence legislation? How did racial protection appear in Hungarian criminal law thought and practice? How did criminal law develop in practice in Hungary between 1920 and 1944? How did the law of criminal procedure change? The main sources for the research are the legislation and the literature of the time.



Legal history; Horthy-era; war; economic crisis; discrimination; Hungary; criminal law.


Elemér Balogh: Iurisprudentia in Medieval Ecclesiastical Jurisdiction (The Role of the iurisperitorum in the German and Hungarian Case Law)

The Council of Lateran IV (1215) was a landmark in the history of European law, when it required ecclesiastical courts to entrust the jurisdiction of the diocese to a person learned in canon law, among other things. This provision was the corollary of the rule that medieval canon law judges were, as a rule, persons who were well versed in the law and who had typically acquired their knowledge at universities. The situation was somewhat different in Hungary, where there was no university in the Middle Ages, but the extensive jurisdiction of the Holy See meant that the institutions of domestic law had to be applied, and the use of lawyers who knew Hungarian law was therefore indispensable. An important feature of medieval ecclesiastical jurisprudence was that, because of the high level of canon law knowledge required, judges were happy and often called upon the assistance of learned canon lawyers (iurisperiti) in complex cases. These lawyers, with their outstanding knowledge, were typically specialists in Roman canon law (ius novum) in the western countries of Europe, but in Hungary they were more likely to be specialists in the customary law of the nobility. Both groups of persons included the most qualified jurists of their time, and the institutional background for the acquisition of knowledge was provided by the universities. It was in these universities that learned law was taught, and not only substantive law but also a new model of procedural law (inquisitio) was created, based on the late Roman investigative trial.



Iurisperiti; Holy See; Germany; Hungary; Roman law; canon law; Ivo de Chartre; Ivo de Hélory; Juristenstand; formularia.


Kristóf Mihály Heil: Strafrechtliche Kommissionstätigkeiten im Lande und im Komitat (1791–1832)

The codification attempts of Criminal Law in the time of the Enlightenment of the 1790s and the liberalism of the 1830s and 1840s are the focal points of the study. In order to draft bills to reform the feudal state based on customary law and privileges without changing the basic public law framework, nine so-called national regular committees were set up by Article 67 of Act 1791. The committees completed their work and sent their drafts, known as operatives, to the king between 1792 and 1795. After all, the completed operatives were not put on the agenda of the Parliament due to changes in the domestic and foreign policy status quo. They could find a way out from the archives of the Chancellery only thanks to the committees set up by Article 8 of Act 1827. These committees were responsible for reviewing the “forgotten” operatives, which were finally printed and sent to the counties for comments. The Hungarian liberal noble opposition was organised first as a movement and then as a party during these county debates (1831–1832) in order to replace the feudal system by manifesting the basic principles of the civil transition in the so-called laws of April.



Civil Transition; Regular Committee Works; Draft Bills; Reform, Criminal Law; Commission Activities.


Orsolya Falus: The Legal History of the Order of the Holy Spirit in Hungary. Facts and Doubts

The settlement of the Order of the Holy Spirit in Hungary is unknown. The first Hungarian source remained about the order was found in Nagyszeben (Sibiu) in 1292. This source explains that on 24th June 1292 the city council of Nagyszeben handed over a house with all of its belongings to the order. This house had been used earlier as a hospital with the purpose of holding church services and of taking care of poor and sick people. The order used to own several hospitals in the territory of the Hungarian Kingdom. The cessation of the operation of the order is connected to the development of the embourgeoisement, in the course of which the infirmaries and pharmacies of the order gradually ended up under the supervision of the city councils by the 15-16th centuries. The non-consistent use of the terms cruciferi, hospitalis and Spiritus Sanctus in medieval Latin documents makes it difficult to identify the houses and hospitals operated by the order unambiguously.



Order of the Holy Spirit; hospitals; city councils; ambiguous.


László Ádám Joó: Under Duress or Coercion. Special Land Registry Cancellation Lawsuits after the Second Vienna Award

Following the Second Vienna Award, in possession of the general authorisation of the Parliament, the Hungarian Royal Government adopted several decrees in order to extend the scope of Hungarian private law to the regions concerned. At first the scope of the law of real estate was extended by Decree No. 1440/1941. In Section 6 the legislator provided the right for those who alienated their immovable properties during the period of the Romanian supremacy to request in integrum restitutio, in a measure through the deletion of the current owner’s right of ownership. The court could also uphold the application if the transaction concluded under a compulsive action of a Romanian authority threatening with damage and serving the interests of the party that acquired the right or other official direct or indirect coercion or the threat of procuring it. After the analysis of the available judgments found in the Hungarian National Archives, it is ascertainable that the courts did not interpret the above-mentioned conditions consistently, therefore they could not always choose the appropriate one of them. Despite that, cancellation from land registry was ordered in most cases in which the owner was forced to alienate his/her immovable property under some kind of duress or coercion of an authority. Although the Decree was in force until the Romanian reoccupation and the system of private property was altered extremely in the communist regime, the lessons of the judicial practice of the discussed decree should get attention.



Hungary; Transylvania; Romania; Second Vienna Award; Land Registry Regulations; Cancellation Lawsuits; Duress; Coercion; Private Law; ABGB; Auction; Sales Contract.


Máté Julesz: The Legal History of Informed Consent

Human experiments during the national socialist and communist eras remind us that medical research involving human subjects should have legal limitations. Nowadays, in medical malpractice cases, instead of simple medical consent, the informed consent of the patient or a proxy is required to exculpate the health care provider sub judice. The origin of these types of medical consent is discussed with special regard to their development before and during the twentieth century. Simple medical consent appeared in England in the Slater v. Baker and Stapleton case of 1767. The legal history of medical consent dates back to at least the eighteenth century, although informed consent arose as late as in the Nuremberg Code and was literally called “informed consent” in the Salgo v. Leland Stanford Jr University Board of Trustees case of 1957 in the US. Despite the international rules of informed consent in effect in medical research involving human subjects and in health care provision, we still find countries with medico-legal cultures differing from Western norms. For example, the Confucian style of informed consent in China, involving the family’s role in granting or declining informed consent, sometimes collides with the expectations of the Food and Drug Administration in the US or those of the European Medicines Agency in the EU. Moving different medico-legal cultures closer to each other should be an important objective of both international lawmakers and national legislators.



Simple medical consent; informed consent; human medical research; medical malpractice; family informed consent in China; national socialist and communist abuses.


Bence Krusóczki: The First Hungarian Competition Act in the Judicial Practice

This entry will deal with the history of competition law, including the first substantive competition law of Hungary, i.e Article V of 1923, which contained provisions regarding unfair competition. Currently, unfair competition is the subject of competition law, one of the branches of economic law, which contains regulations regarding the protection of economic competition and the prevention of consumer detriment. The purpose of Article V of 1923 was to offer general protection against any form of unfair competition. However, the description of each provision of the Article and the detailed demonstration and investigation of their practical implementation is not the topic of this entry. The present paper will specifically focus on the arbitral tribunals of the Chamber and the practice of the jury since the fact that the duty and practice of these two bodies were highly significant for the application of the law in that era can be clearly concluded from the summary of research results.



Unfair competition; specific act; Arbitration Institute of the Budapest Chamber of Commerce; Hungary; court.


Dénes Legeza: Copyright Aspects of Promise of Reward in Hungary

The promise of reward (Auslobung) is a unique legal institution of copyright and civil law, accepted and widely used in different areas of life for centuries. The promise of reward differs from traditional contracts, because it is defined as a unilateral legal relationship and it affects uses of copyright protected works. This paper analyses how the promise of reward appeared in Roman and Medieval Law, how it was used in practice in Hungarian cultural life in the 19th century and how Hungarian jurisprudence accepted it as a valid matter of fact that generates obligations. The study finally presents how regulations on promise of reward was drafted and regulated in Hungarian legal regulations in the 20th century.



Copyright law; promise of reward; licensing contract; book publishing; theatre play; creative works; intellectual property; intellectual creations; law of obligation; Hungarian Academy of Science; National Theatre.


David Manuel Rodríguez Ferro: The Right of ‘Manifestacion’ in the Kingdom of Aragon: Origins and Legal Heritage

This article aims to expose a characteristic procedural figure of the Kingdom of Aragón (Spain), a peculiarity within the strict medieval legal codes whose foundation was extended to other territories almost a century after its creation, with close links to Habeas Corpus Act. Its use produced controversial situations at certain times that led to reprisals and legal and political reforms in Aragon and in the judicial institution of ‘Justicia de Aragón’. This work aims to make known the peculiarities of this procedural figure, as well as those of the institution of ‘Justicia’, one of the oldest legal institutions in force today around the world, also mentioning to the nuances between ‘Derecho de Manifestación’ and the Habeas Corpus Act. A deductive and descriptive method is employed in order to show a general overview prior to discuss each particular topic.



Justicia de Aragón; Manifestación de Personas; Habeas Corpus; Aragonese Foral Law; Comparative Law.


Joao Manuel Cardao do Espírito Santo Noronha: Evolutionary Trends of the Continental European Commercial Company and Partnership Law in the First Half of the 20th Century

The present paper intends to present some critical considerations on the evolutionary cycle of the European continental law of commercial companies and partnerships that covers the first half of the 20th century. It focuses particularly on the German innovations represented by the introduction of the private limited liability type of company, and in the reconstruction of the relationship between the shareholders and the management brought by the German Public Limited Liability Company Law of 1937. These are two fundamental key areas for understanding the shape of the modern European-continental company law.



Company; partnership; 20th century; GmbHG; AktG; quotas; Führerprinzip; Rathenau.


Majlinda Belegu, Bashkim Rrahmani: Marital and Inheritance Law from the Middle Ages to the Positive Law. From Scanderbeg Canon to Positive Law

Family law is an important part of the civil law. Since the Roman Law this continues to be important part of this field. With the analysis of the paper the differences and similarities of norms from Scanderbeg, Lekë Dukagjini and Dibra Canon are underlined and emphasized. Paper covers and analysis the norms of historical law and customs through interpretation also positive norms of the countries where Albanian population lives. Engagement, marriage, the rights and duties of spouses during the marriage as regulated by the codexes through the history are analyzed as well as the disposal from sheria along with the rights and duties of spouses based on the positive law, for comparative reasons. Engagement is the first initiative before the marriage is concluded. Marriage was concluded after the engagement and it lasted until the death of spouses. The rights between spouses were always different where husband had more rights related to his wife. There were cases when he had the possibility to even kill his wife if the loyalty was not respected and also to divorce whenever he found it useful.



Engagement; marriage; heritage; law; canon; spouses.





Wojciech Materski: JW obronie piędzi rodzimej ziemi. Estońsko-sowiecki/rosyjski spór terytorialny 1917–2018


Gábor Hamza: Az európai magánjog fejlődése a kezdetektől a XX. század végéig. A modern magánjogi rendszerek kialakulása a római jogi hagyományok alapjá


Vier neuere Bände aus Karlsruhe – Inzwischen sind 40 Bände der Schriftenreihe des Rechtshistorischen Museums (RHM) Karlsruhe erschienen


Markus Hirte / Johannes Dillinger (Hg.): $chatz und $chatzsuche in Recht und Geschichte = Kataloge des mittelalterlichen Kriminalmuseums in Rothenburg ob der Tauber


Tobias Schenk: Actum et judicium als analytisches Problem der Justizforschung. Interdisziplinäre Perspektiven auf kollegiale Entscheidungskulturen am Beispiel des kaiserlichen Reichshofrats


Joachim Conrad (Hg.): Die evangelische Martinskirche in Köllerbach und ihre Gemeinde. Festschrift zur 800-Jahr-Feier der ersten urkundlichen Erwähnung


Eric Hilgendorf / Hans Kudlich / Brian Valerius (Hg.): Handbuch des Strafrechts, Sektion I (Grundlagen und Allgemeiner Teil des Strafrechts)


Elena Pezzato: Si sanctitas inter eos sit digna foedere coniugali.Gli apporti patrimoniali alla moglie superstite in eta tardoantica e giustinianea


Andreas Zack: Das Ende des Zweiten Triumvirates und die Amtsgewalten des Imperator Caesar Divi filius (Octavianus) in der politischen Ordnung Roms (43–27 v. Chr.): Übersehene, vergessene und neue Überlegungen zur Deutung von Augustus, Res gestae 7,1; 25,2 und 34,1


Jana Osterkamp: Řád v rozmanitosti: Dějiny federalismu v habsburské monarchii od doby předbřeznové do roku 1918





Thomas Gergen: „In den Schluchten der Verträge“ – Eine Würdigung zum Tod von Herrn Rechtsanwalt Professor Dr. iur. Albrecht Götz von Olenhusen


Thomas Gergen: Die Saar-Verfassung vom 15. Dezember 1947 – Erinnerung und Würdigung zu 75 Jahren Parlamentsgeschichte


Thomas Gergen: Der Esther-Bejarano-Platz in Saarlouis: Eine Dokumentation wider das Nazi-Unrecht


Norbert Varga: Report on the First Stage of the OTKA Research Entitled “The Development of Private Law in the Interwar Period”



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ARCHIV - Vol. 13 / 2022 No. 2



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

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.



South America; Habsburg Monarchy; Holy Alliance; 19th century; war of independence; diplomatic relations; recognition of new states; Congress of Vienna; Congress of Troppau; Congress of Verona; Brazil; Archduchess Leopoldina; Don Pedro; Metternich; Talleyrand.


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

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.



Austria; law faculties; women at universities; higher education; female law professor; women’s law academy, Edmund Bernatzik, Marianne Beth; Sibylle Bolla-Kotek.


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

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.



Robert Graf Hue de Grais; Preußische Verfassung und Verwaltung; Regierungspräsident Potsdam; Japanische Gemeindeverwaltung; Verwaltungsreformen; Staatsbürgerkunde; Archive Wolkramshausen und Gotha.


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

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.



Austrian criminal law; CA-crisis; Embezzlement; Friedrich Ehrenfest.


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

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.



Transactio in criminalibus; effects of transaction; public power and private autonomy; Albertus de Gandino; quaestiones disputatae; Ius Commune; Italy.


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

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.



Plague law; criminal law; Pestordnungen; pandemic; health magistrates; plague spreaders; Holy Roman Empire; Dubrovnik; Italy; quarantine; sanitary cordon; Roman law.


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

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.



Roman Law; Middle Age; Manipulus vel directorium iuris civilis; Jan of Gelnhausen; Rules of Interpretation; Digest; Corpus iuris civilis; Accursius; Municipal Law; Brno; Czech Lands.


Zdeňka Stoklásková: Die Sprache der Bilder in den Josephinischen Gesetzbüchern

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.



Legal history; The codes of law of Joseph II.; Legal iconography; Copperplate engravings; Joseph Georg Mansfeld; The Enlightenment; The Habsburg Monarchy.


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

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.



Collective agreement; interwar Czechoslovak Republic; liberalism; collectivism; solidarity; welfare state.


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

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.



Nationality; emigration; immigration; repatriation; Hungary; Czechoslovakia.


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

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.



Leon Piniński; politics; Roman law; Lviv; Poland.


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

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.



Lex Laetoria; lex Plaetoria; praetorian edict; exception; circumscription; minor; minores; protection of minores; Arsinoe; Alexandria; Oxyrhynchus; Faiyum Oasis.


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

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.



Roman Law; State Religion; Religious Coercion; Persecution of Christians; Apologists; Tertullian; Lactantius; Natural Law; Religious Freedom; Edict of Milan.


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

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.



Allegations and proofs; civil procedure; codification; contingent cumulation; free submission; oral hearing; preclusion; undue delay.


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

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.



Cartel law; Hungary; Cartel Committee; cartel supervisory authorities; bakery cartel; archives sources.


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

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.



St Stephen; Stephanites; hospitaller crusaders; knights; administration; locus credibilis authenticus.


András Karácsony: Heidegger on Hegel’s Concept of State

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.



Hegel; Heidegger; state; politics; law; morality.


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

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.



Csemegi Code; Hungary; criminal law; codification; history of criminal law.


Jiří Bílý: Papal Monarchy Challenged

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.



Centralism; popes; the Curia; the Vatican; church; council.





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


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


Christian Reiter: Einführung in das römische Privatrecht. Ausgewählte Themengebiete und Fälle





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”



Contents download here:


ARCHIV - Vol. 13 / 2022 No. 1



Christian Neschwara: Beethovens Schicksal als „Migrant“ in Wien vor 200 Jahren: Vom Untertanen des Erzbischofs von Köln zum österreichischen Staatsbürger

Following his migration from Bonn to Vienna in November 1792, Beethoven's civil status had changed step by step: From being a subject of the Elector of Cologne living in the residence of the archbishop in Bonn, for the first he became a foreign (and soon a stateless) resident of Vienna, capital of the Archduchy of Austria (beneath the Enns-river). Finally, after the enforcement of the Austrian General Civil Code (ABGB) in January 1812, and a further decade later he became an Austrian citizen - in accordance with § 29 ABGB, because he lived in a German hereditary land of the Habsburg monarchy for ten years of uninterrupted residency. However, Beethoven can be considered an Austrian citizen at least since January 1st, 1822!



administrative law; citizenship; civil law; french foreign rule; austrian General Civil Code; Habsburg monarchy; passport; residence.


Andrew Watson: The Origins and Development of the Cab Rank Rule for Barristers in England and Wales

In England and Wales and some other common law jurisdictions barristers are required to take instructions, sent through the intermediary of a solicitor, in any case provided it is in a field in which they profess to practise (having regard to their experience and seniority), subject to their availability, and payment of a proper professional fee. This is known as the Cab Rank Rule. The origins of this professional rule are traced with certainty to the end of the 18th Century. An attempt is made to locate earlier manifestations of the principles upon which it was built involving examination of cases and other sources in the 17th and 16th Centuries.



England; Barristers; Cab Rank Rule; origins.


Lana Bubalo, Šejla Maslo Čerkić: Protection of the Right to Honor and Reputation – A Historical Overview

The paper deals with the legal protection of honor and reputation through different historical time-periods. The available bibliography usually considers the issue within a specific time-period, such as the Roman times or the Middle Ages. Therefore, the aim of this paper is to provide a historical overview of the protection of the right to honor and reputation, from its initial recognition and protection within religious texts to the modern laws. In the classification of personality rights by parts of legal theory and international (human rights) documents, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), honor and reputation are not expressly recognized, but subsumed under the right to privacy. This paper attempts to show that honor and reputation have throughout history been acknowledged as inherent aspects of humanity and perceived as independent interests worthy of protection.



honor; reputation; religion; privacy; personality rights.


Carlos Manuel de Morais Seixas Pires Sardinha: Regeneraçao, Economic Development and Public-Private Partnership in Nineteenth Century Portugal: a Legal Historical Example

In the second half of the nineteenth century one of the main goals of the conservative turning point of the Portuguese Liberalism called Regeneraçao was to intensify the Portuguese economic development against the background of a free market and a capitalistic understanding of freedom. In this article I am going to give an analysis of a Decree dated from May 6, 1852, a Decree to be executed by the Minister and Secretary of State for the Affairs of the Kingdom, Rodrigo da Fonseca Magalhaes, and the Minister and Secretary of State for Finance, Antonio Maria de Fontes Pereira de Melo, future President of the Council of Ministers of the Kingdom of Portugal and one of the most important politicians of the Portuguese Constitutional Monarchy. The Decree deals with the establishment of a railroad network that, starting in Lisbon to the Portugal-Spain border, was going to connect the Kingdom of Portugal with the rest of Europe making use of what we can call a Public-Private Partnership. My analysis will begin with the background of the Regeneraçao, that is, Liberalism, Setembrismo and Cabralismo, and the beginnings of the railroad in Portugal. We can say that the legislative work of Mouzinho da Silveira while abolishing most of the existing feudalistic burdens in the Portuguese economy did contribute for the formation of an expansive, capitalist internal market. However, the further development of this market was going to imply broad infrastructure programs, namely the construction of a railroad network. Because of the public finance problems in Portugal, namely the government deficit, financing these infrastructure programs would challenge the financial and legal thought of those responsible for these public works. It was during the Regeneraçao that Fontes Pereira de Melo provided a decisive impulse for public works, namely for the construction of a railroad network. The financial and legal thought underlying the above mentioned Decree can be described as an advanced program of Public-Private Partnership conceived with the goal of executing public works and building public property in a low-risk environment with a minimum use of public funds.



Regeneraçao; fontismo; nineteenth century; Portugal; government deficit; railroad network; economic development; Public-Private Partnership; Europe.


Adriana Švecová, Peter Gergel: Materiellrechtliche und linguistische Überlegungen zum Pflichtteil im geltenden Recht der Slowakei an der Wende vom 19. zum 20. Jahrhunderts bis 1950

The study presents the hereditary institute of forced share (Hungarian kötelesrész, German Pflichteil), which was first standardized in Hungarian law applicable in its modern regulation in Slovakia (as an integral part of the Kingdom of Hungary) in the year of 1861, adopting the conclusions of the Judex-Curial Conference - Provisional Judicial Rules (§ 7 PJR). However, the Temporary Judicial Rules legislation in question was not finally approved as law, but as a written legal custom it remained part of the law of succession until the disintegration of Hungary in 1918, and it was shaped during the era of dualism by another judicial practice of the Supreme Court of Hungary. The study, exceeding the year of 1918, when the Kingdom of Hungary disintegrated and Slovakia as one of its legal successors became part of the first Czechoslovak Republic, will take into account the said reciprocal Hungarian, uncoded PJR regulation, which became part of the dual, Czechoslovak regulation of succession law in the territory of Slovakia until 1950. In the framework of a positivist approach to the topic, the authors first want to outline the valid substantive legal basis of the PJR, and then they are interested in taking into account legal discussions that developed with respect to this institute on the platform of proposed regulations concerning testate succession within the first codification proposals of 1882, 1900 and 1913.



legitime; law applicable in Slovakia; dualism; inheritance law; Hungarian Kingdom; the First Czechoslovak Republic; forced share; civil code draft.


Adrián Gajarský: Enabling Powers of the Government of the First Slovak Republic from the Perspective of the Constitutional War Practice of 1939–1945

The legislative (and constitutional) powers of the Parliament in a democratic constitutional and political system should under no circumstances be undermined and diminished by the delegated or even substituting legislative activity of another state or public body, but in modern history forming in Slovakia and Hungary since the second half of the 19th century, there were extraordinary transients and events when it was necessary to transfer the exercise of this sovereign powers of parliament to another, usually the highest executive body of state power - the Government. At the time of the establishment of statehood, government legislation in war Slovakia in 1939–1945 could rely on the original general authorization of the Czechoslovak governments, which was granted to them by the Constitutional Charter of the First Czechoslovak Republic, as amended by several enabling acts. This factual and legal situation was followed up, under the Act No. 1/1939 of SC, at least nominally, by the newly constituted Slovak Government of J. Tiso, which similarly received the structure and content of the existing Czechoslovak legal order within the limits of the reception under § 3 of the said Act No. 1. As this Act had the nature of a constitutional law and also a temporary constitutional arrangement, it granted the Government of the Slovak State  unlimited enabling powers for legislative and executive government activities in § 4, thus allowing it to perform almost unlimited enabling legislation of the first Slovak Republic/State whose extent and quality from a theoretical and contemporary point of view is described in more detail in the presented descriptive analysis of this paper.



Government of the Slovak State/Slovak Republic; enabling legislation; decrees with the authority of the law; fictitious Slovak Constitution; norm-setting; law-making; emergency measures; interwar Czechoslovak Republic; Parliament; non-democratic political regime.


David Kolumber: Disputes over Ownership of the Baťa Empire

The article focuses on the disputes that occurred after the Second World War in the context of the ownership of the former property of Tomáš Baťa, which was the basis of the Baťa global concern. This concern was established in the 1930s with the participation of shell companies around the world which was the reason why legal disputes had been later nearly worldwide. In 1931, Tomáš Baťa decided to present his ownership to his half-brother Jan Antonín Baťa. That issue had not been a problem until the end of the Second World War when Tomáš Baťa’s son and wife started disputes and litigations about the ownership. Nationalization of part of the concern’s companies in Europe and the criminal repression of the concern’s representatives in the context of post-war retribution played out against the backdrop of a family feud.



Jan Antonín Baťa; Tomáš Baťa; Marie T. Baťová; Tomáš Jan Baťa; ownership; judicial disputes, taxes.


Milan Dobeš: Prostitution as a Special Form of the Offence of Social Parasitism in Socialist Czechoslovakia

This article aims to introduce the reader to the specifics of the social phenomenon of prostitution in socialist Czechoslovakia, with an emphasis on its punishment through criminal law. The first part of the article briefly characterizes the ideologically coloured perception of prostitution in socialist states and briefly outlines the development of criminal prosecution of prostitution in Czechoslovakia since the end of World War II. The second part of the thesis is devoted to an analysis of the crime and the misdemeanour of social parasitism which were most frequently applied against prostitutes as part of the communist regime's systematic efforts to suppress this social phenomenon. The third part is devoted directly to persons who practiced prostitution in socialist Czechoslovakia. Attention is paid to both homosexual prostitution and heterosexual prostitution, the latter being further divided into certain categories. In the third part of the text, examples from the contemporary practices are given for each category of prostitutes, in particular cases of the District Court for Prague 1 which punished prostitution as a form of social parasitism offence. The aim of this article is to present the specifics of particular cases of prostitution set in the contemporary atmosphere of socialist Czechoslovakia.



Socialism; Czechoslovakia; Social parasitism; Heterosexual prostitution; Homosexual prostitution; Criminal law; Persecution of dissidents.


Marta Baranowska: International Organization as the Foundation of a Peaceful Order after the First World War in the Views of Szymon Rundstein

The research objective of the article is to seek answers to the question of how Rundstein envisioned the construction of the international legal order after the First World War. These reflections can be considered from the perspective of the history of political and legal thought, as Rundstein developed a doctrine concerning both the law and the ways of development of international politics. He created the concept of the idea of the law of nations. He believed that after the First World War, the conditions emerged to create an international organization, which he saw as the realization of the idea of the law of nations. Such an organization would have to have law-making powers to resolve disputes between states precisely based on the law it created. The conception of the development of international relations after the war and the creation of an international organization constitute worthwhile material that will complement research in the history of legal thought.



Rundstein; the idea of law of nations; the rule of law; an international organization; the limitation of sovereignty; the history of legal thought.


Thomas Gergen: Volksmission und Politik an der Saar bei der Arbeit des Redemptoristenklosters Bous . Ein Blick in die Quellen von 1949 bis 1956

The monastery of Bous is closely connected with the early post-war history of the Saarland, its reconstruction and the path to the European Saar Statute of 1955. This article looks at the pro-European popular missions in the Saar in the context of politics at both municipal and state level, up to and including world mission.



Politics; Monastery; Redemptorists; People's mission; Saarland; Saar Statute of 1955; Europe.


Mohammad Alipour: Evolution of Peace: from Social Value to Legal Axiom

Peace, as one of the transcendental values of human societies, has been undergone a complete transformation in the international community. This study seeks to find out the processes of evolution of peace in history of international law. The concept of peace, initially, has been considered as a social value that should be protected. At the early time, peace was understood as absence of war but without having legal enforcement, realization of peace could not be actualized. Thus, peace was upgraded to a legal norm to be more effective. However, since the norm of peace enjoyed the same degree of other legal principles, possibility of to be overridden by these principles has diminished function of peace. Hence, following the Second World War, norm of peace has been revamped to legal axiological maxim that not only has higher degree but also causes necessary changes in international order.



peace; absence of war; humanism; States.


Lénárd Darázs: Die Entstehung der Teilnichtigkeitsproblematik in dem antiken griechischen und römischen Recht

The important practical and doctrinal question of whether a legally objectionable flaw in a contract relating only to a specific part of the contract should deprive the whole contract of legal effect or the unflawed part should be recognised as viable, was also raised in the ancient laws that form the basis of modern law. Of course, partial invalidity did not evolve into a separate legal institution, but this issue was addressed in ancient Greek and Roman law and solutions were applied that are also useful for today’s modern legal systems. Tracing the origins of this issue in ancient Greek and Roman law will serve the better understanding of the rules of partial invalidity in modern legal systems.



partial invalidity; history of invalidity of contracts; ancient legal systems; ancient greek law and partial invalidity; Roman law and partial invalidity; utile per inutile non vitiatur.


Adam Boóc: Some Issues of Gift Contracts (Donations) in Hungarian Private Law – from a Historical and Comparative Point of View

The author attempts to give an overview of the contract of gift in Hungarian private law. The study applies a very strong historical approach, since it summarizes the most important features of the development of this legal institute. The most important aim of the study is to identify those features of the contract of donation in the history of Hungarian private law, which are also applied by the current Hungarian legislation (Act No. V. of 2013 on the Civil Code of Hungary). The study also contains a couple of proposals for the eventual reform of the regulation of the contract of gift, as well.



donation; contract; historical-comparative; civil law; Roman law; Hungary.


Norbert Varga: Lawsuits on Cartel Presentation Omission After the 20th Act of 1931 Came into Effect

In 20th century Hungary, the presentation and registration of cartel contracts were among the most vital factors in the legal operation of cartels. The Hungarian cartel act (the 20th Act of 1931) ordained the presentation of cartel contracts to the minister of trade. The operations of Hungarian cartel law can be reconstructed from judicial practices. However, the available memorials only contain the verdicts of courts of first and second instance, sources that contain the full memorials are rarities. Therefore the information found in the dispositional and reasoning segments of the verdicts shall provide assistance in the examination of the rules valid for material, but above all else, procedural law. My goal is not only to describe the rules of procedural law, but also legal practices based on archival sources in connection to presentation omission within the framework of this essay.



Hungarian cartel law history; cartel procedural law; fining procedures; presentational obligation; cartel supervision.


Enikő Kovács-Szépvölgyi: Die Jugendgerichtsbarkeit – als Eroberer der Rechtsgeschichte

The idea of the title that the juvenile court is the greatest conqueror of legal history comes from a work by renowned criminal lawyer Ferenc Finkey, who quoted Hastings H. Hart’s thoughts about the juvenile court. The Juvenile Court first appeared in Illinois, USA, in 1899, followed by most federal states and several countries on the old continent. The state- and legal life of Hungary, in the broader context of the Central and Eastern European states, is usually interpreted in the framework of the centre-periphery model. Without going into the issue of regulatory delay, it is worth noting that Hungarian legislation caught up with pioneering states with special criminal law regulations introduced in the early 20th century to establish the foundations for other treatment of juvenile offenders. The different treatment in this context refers to different rules from those for adult offenders. The law regulating the juvenile court as a special court entered into force in 1914, supplementing the substantive criminal law provisions with procedural rules.



Hungarian criminal law regulations on juvenile offenders; juvenile court; criminal law; juvenile offenders; procedural reforms.


András Karácsony: Additions to the Idea of Nature in Natural Law Thinking – Transition to Modernity

Natural law is one of the “eternal themes” in the history of the philosophy of law. It is difficult to say anything new on this subject. This paper offers a special perspective on the history of natural law by approaching it from a particular angle. The analysis focuses on the notion of nature as it is conceived or implied in the natural law concept. More specifically, it examines the topic in the immediate antecedents of modern thinking about natural law and in the modern era. The study also includes an excursus reviewing the changing meanings of the legal concept of natural law.



Law; natural law; concept of nature; concept of law; modernity; religion.


Gergely Gosztonyi: Aspects of the History of Internet Regulation from Web 1.0 to Web 2.0

The time of the Internet from 1990 to 2000 can hardly be compared with the digital world in which we live today. For a long time in media histroy, we were talking about a one-sided, straight line of information from the content creator to the content consumer with a corresponding legal framework that has existed for centuries. The former legislation of the press was no longer able to fill the new modern framework of the Internet. This gave rise to the early myth that the Internet is a lawless space in which almost Wild West rules dominate. The study outlines the appearance of social media, the transformation of Internet communication, and the arc from Web 1.0 to Web 2.0, highlighting the difficulties legislators and regulators may face with this new medium.



regulation, internet, Web 1.0, Web 2.0, lawless space, broadcast model, intercast model.


Dmitry Poldnikov: Overcoming ‘Cultural thesis’ in Comparative Legal Studies of Non-Western Societies: the Case of the Nineteenth Century Modernisation in Japan and Russia

A claim that law reflects culture holds the promise of explaining the success and failure of some societies to modernize their legal systems after Western patterns. However, recent socio-legal studies call for attention to other factors. This paper revisits the ‘cultural thesis’ with regard to Japan and Russia. Many scholars used to refer to the Confucian and Orthodox heritage to explain reluctant usage of the legal institutions and uneven effect of legal modernisation. However, this explanation restated biased stereotypes and failed to take into account such factors as rational (pragmatic) attitude, reaction to the design of legal institutions, and legal politics of the elites. The author traces the origins of the ‘cultural thesis’ in the works of the main protagonists, looks how it can be revised and contemplates a more adequate scheme to assess the weight of the factors that caused, facilitated or blocked legal changes in non-Western societies since the inception of their modernisation.



Japan; Russia; cultural stereotypes; legal modernisation; factors of legal change.


Natig Khalilov: Codification of Civil Law in Azerbaijan: History, Current Situation and Development Perspectives

The Civil Code is the second most important legal act in the country after the Constitution, and the first in terms of volume. Due to its important role in the lives of citizens, sometimes the Civil Code is informally referred to as the “Economic Constitution”. At the same time, the Civil Code is the main document setting the rules for a market economy. This article is devoted to the processes of codification of civil law in Azerbaijan over the past 100 years. During the twentieth century, Azerbaijan through the codification of civil law has adopted the Civil Codes, far more than many other countries. At the same time, this article describes the drafting of civil legislation from scratch on the transition from a planned economy to a market economy after gaining independence in the 1990s. At the end of the article, the existing problems of the civil legislation of the Republic of Azerbaijan are discussed and a number of suggestions have been put forward for their solution.



civil law; private law; codification; normative legal act; Civil Code; Pandect system; legal reforms.

Katalin Siska: Thoughts on the Role of the Mosul Boundary Commision of the League of Nations in the Mosul Question

On the 24th of July in 1923 the Treaty of Lausanne settled the borders of the Turkish state except one area: the oil-rich Mosul Vilayet, which was desired both by Turkey and Kingdom of Iraq (under British tutelage). The parts agreed that if within a year they cannot decide on the disputed area, they turn to the League of Nations for help. The three-member Boundary Commission created by the League of Nations started its work in August 1924, then on the 24th of October designated a temporary border the so-called “Brussels line” which was the former North boundary of the vilayet. Both parties presented their views to the League of Nations. Turkish experts have wanted a referendum in the area and outlined a final boundary at the Southern border of the vilayet placing Mosul under Turkish rule. According to the British – and the same Iraqi – proposal the referendum was unacceptable, as the area was strategically, geographically, economically and administratively too important and it was impermissible for an under-educated population to decide on its affiliation. Their experts proposed the Northern Mountain range of the area as final frontier because of its relatively small population and the area could have been well protected from a military point of view. The work of the Commission – who examined the historical, ethnographical, geographical, geopolitical facts and principles of the area – was the target of many attacks and therefore got significant press coverage. They were accused of bias towards the Turks. In my study, I collected and analyzed the contemporary Hungarian (who referred back also to the British) press articles with the information that can be extracted from the reports on the committee's work and their circumstances in order to get a clearer picture of the decision-making process and the events surrounding it, the role of the commission in the judgement, as there is no document from which the opinion of the members on the issue can be revealed.



Mosul Vilayet; League of Nations; Hungarian Press; Republic of Turkey; Count Pál Teleki.



Susanne Beck / Stephan Meder (Hg.): Jenseits des Staates? Über das Zusammenwirken von staatlichem und nichtstaatlichem Recht


Julia Paschwitz: Verantwortlichkeit von Online-Archiven bei überholter identifizierender Verdachtsberichterstattung


Christian Augustin / Thomas Gergen: „von Natur im Besitze des Gedankens selbst“. Elmar Wadles Auseinandersetzung mit dem gewerblichen Rechtsschutz und dem Urheberrecht im Deutschen Bund


Marek Kuryłowicz: Rzymskie prawo oraz zwyczaje grobowe i pogrzebowe. Studia i szkice


Paul Bushkovitch: Succession to the Throne in Early Modern Russia. The Transfer of Power 1450 – 1725


Jiří Bílý: Od Homéra k Alexandru Velikému. Boj o moc a právo v klasickém Řecku



ANNEX: XV. Jahrestreffen der Jungen Romanisten


Matthias Ehmer und Francesco Verrico: Einleitende Bemerkungen zu den Beiträgen der Referentinnen und Referenten des XV. Jahrestreffens der Jungen Romanisten

On September 13th and 14th 2021 the University of Würzburg (Germany) hosted the XVth Young Scientists Meeting on Roman Law. The following introduction sums up themes and presentations of the Meeting. A list of useful databases concerning the research on Roman Law, which was developed during our workshop, is also attached. After the introductory remarks three speakers present their essays, based on their presentation at the Meeting.



XVth Young Scientists Meeting on Roman Law; proceedings; databases on Roman Law.


István Bajánházy: Urkundenfälschung im römischen Recht, Cicero als Schriftsachverständiger

Wax-tablets were often used as writing materials in the Roman Republic. They had a wide range of application, not only for contracts and last wills, but for bookkeeping as well. The soft wax was however not fully protected again the later modifications e.g. again the document-forgery. So special technic for the protection were developed: the so-called two-sided documents. But the documents used for bookkeeping remained one-sided open documents, so the later modifications were further possible, but not without any trace. Cicero found such forgery during his investigation for the preparation of his lawsuit against Verres, the former governor of Sicily, about extortion of the inhabitants of the province.



Roman Law; Marcus Tullius Cicero; publicani; wax-tables; document-forgery.


Michael Binder: Procedural Peculiarities of the Lex Publilia de sponsu

The guarantor’s right to claim recourse was a frequently discussed topic among Roman jurists. However, limited information exists on the earliest legal remedies with which such recourse was accomplished. This article focuses on the first known legal act, the lex Publilia de sponsu, that granted the sponsor a recourse. In his institutes, Gaius mentioned the lex Publilia de sponsu in 3.127 as well as in 4.22 and the sponsor’s action against the principal debtor based on this law. Interestingly, in 3.127 he referred to the actio depensi and in 4.22 to the legis actio per manus iniectionem pro iudicato. For a better understanding of the origin and development of the sponsor’s right to demand recourse and its procedural peculiarities, an analysis of Gaius 3.127 and 4.22 is necessary.



lex Publilia de sponsu; litiscrescence; actio depensi; legis actio per manus iniectionem pro iudicato.


Julia-Katharina Horn: Gaius libro septimo decimo ad edictum provinciale D.29,5,25 – Betrachtungen zum SC Silanianum in Gaius’ Kommentar ad edictum provinciale

Gaius libro septimo decimo ad edictum provinciale D. 29,5,25 überliefert im principium ein praemium accusatoris aus der lex Cornelia de sicariis et veneficis, das an die Sklavenflucht im Anwendungsbereich des SC Silanianum angepasst wurde (Satz 2). D. 29,5,1 übertrug diese Belohnung auf den Fall, dass jemand einen im Testament freigelassenen Sklaven einfing und anzeigte. Nach D. 29,5,25,2 wurde eine actio popularis gewährt, falls jemand ein Testament entgegen dem Senatsbeschluss geöffnet hatte. Die Quelle wirft zum einen die Frage auf, welche dieser Regelungen sich bereits aus der sullanischen lex Cornelia ergaben bzw. welche ein Weiterdenken unter den Voraussetzungen des SC Silanianum waren. Zum anderen stellt sich die Frage nach der Einordnung in den prozessualen Zusammenhang der quaestiones und den Veränderungen der accusatio mit dem Aufkommen des Kognitionsverfahrens.



senatus consultum Silanianum; ad edictum provinciale; Gaius; lex Cornelia de sicariis et veneficis; praemium accusatoris; praemii nomine; actio popularis; servus fugitivus; accusatio.


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ARCHIV - Vol. 12 / 2021 No. 2



Rainer Nomine: Zur Geschichte des Frankfurter »Entwurfs eines deutschen Gesetzes zum Schutze der Urheberrechte an literarischen Erzeugnissen und Werken der Kunst«

The fight against pirate printing (»Nachdruck«) was one of the unresolved issues of the Congress of Vienna in 1815. Even after the founding of the German Confederation, the safeguarding of an intellectual achievement was and remained effectively left to the numerous individual German states, which pursued completely different political and economic interests in this area. With the dissolution of the German Confederation in the summer of 1866, the decades-long effort to create uniform legislation to protect copyrights in Germany also failed. Until the end, it was not possible to replace the more than thirty Land laws against reprinting, some of which differed greatly from one another, with a single standard. Based on the files of the Berlin Secret State Archives Prussian Cultural Heritage Foundation, this article traces the first and last attempt to enact a comprehensive German copyright law in the 1860s. It describes the voting process on the bill passed in September 1864 for a »law to protect copyrights to literary products and works of art« and names the reasons for its predictable failure.



Frankfurt Draft of a German Law for the Protection of Copyright in Literary Products and Works of Art (»Frankfurter Entwurf«); German Confederation (Deutscher Bund); Copyright; (German) Federal decision of 9.11.1837 (on account of the establishment of uniform principles against reprinting); Pirate printing; Prussian Copyright Act of 1837; Royal Prussian Literary Experts Association.


Stefano Cattelan: Claims of Dominion and the Freedom of the Sea: Diplomatic Tensions between England and Denmark-Norway in the late Tudor Period

In the second half of the sixteenth century, Queen Elizabeth I of England (1558-1603) became a staunch supporter of the freedom of the seas, vigorously questioning Iberian closed sea (mare clausum) policies over the “Indian” oceans. At the same time, England faced longstanding Dano-Norwegian claims over the sea areas lying between Norway and Iceland. Even though such claims had weakened during the early sixteenth century, Dano-Norwegian royal decrees continued to prohibit foreign navigation north of Bergen. Frederick II of Denmark-Norway (1559-1588) complained multiple times about English trespassing and attempts to establish the Muscovy trade. Dano-Norwegian claims found new vigour with the accession to the throne of Christian IV (1588-1648). In reaction, the English government initiated a diplomatic exchange with Dano-Norwegian authorities, defending the right of its seamen to sail north to trade and fish, albeit under certain conditions. This paper explores the historical context and the legal arguments employed by English and Dano-Norwegian envoys during these negotiations. What was at stake was the changing balance of power between the two kingdoms, access to trade and fisheries.



Diplomatic history; Early Modernity; mare liberum; mare clausum; Elizabeth I; Denmark-Norway; law of the sea; history of international law.


Ilya Kotlyar: Authentication and Evidential Force of Last Wills in Late 16th – 17th Centuries in Scotland, in the Light of the Ius Commune Doctrine

The article is based on the PhD research of the last wills, preserved in the Scottish archives. The article concentrates on the period immediately following the Reformation of 1560 and into the 17th century. This was a crucial period, when Scottish secular courts took over the jurisdiction over testaments from the pre-Reformation ecclesiastical courts, which was key to the establishment of the rules on authentication and evidential force of writings and especially of the last wills in Scots law. The article looks at these developing rules in the light of the contemporary Continental Ius Commune doctrine, noting both influenced and unique features of the Scottish practice. The method employed is the doctrinal legal historical method.



Law of succession; Ius Commune; Scots law; law of proof; Civil law; Canon law; instruments.


Antonio Manuel Luque Reina: The Collapse of the Polisinodia: Institutional Reforms at the Last Crisis of the Spanish Catholic Monarchy (1834–1836)

This paper challenges the traditional commonplaces regarding the end of the jurisdictional governance structures of the Spanish Catholic Monarchy in the third decade of the 19th century. The so-called polisinodial regime, composed of the Councils, collegiate bodies several centuries old, apparently collapsed due to the most important political reforms following the death of Fernando VII, the last absolute Spanish King. In this paper, I will first examine how legal historiography has understood these institutional reforms and their actual impact on the dissolution of the former Councils, carrying out a bibliographical review. Second, I will show the role played by the Consejo Real de Espana e Indias in this process of disintegration of the ancient polisinodia and the emergence of the new Spanish Administration. In order to do so, I will examine and interpret unpublished archival documentation from various archives in Spain, such as the Archivo General de Indias, the Archivo General de Simancas, the Archivo Histórico Nacional, and the Archivo General de Palacio.



Spanish King’s Councils; Spanish Modern State; Administrative Law; Constitutional Law; Spanish Public Law; Spanish Administration.


Tony Murphy: Penal Transportation from Britain to Australia, 1788 to 1868: Four Phases of Penal Administration and Experimentation

This paper presents the history of penal transportation from Britain to Australia in relation to four distinct ‘phases’ of operation, each signifying a different context, and a series of different features of how convictism operated in Australia – the penological thinking, the nature of the colonies, and the conditions and systems of discipline that convicts found themselves within. The first decades of convictism in New South Wales (and Tasmania) have been described in some ways as a relatively benign system, founded upon an early system of convict assignment, and a series of legal, property and wage rights for convicts. That gave way to a tougher form of convictism, as the early assignment system transformed into a tougher form, alongside the rescinding of various convict rights, and a diminution of their status. That was then replaced by a system of probation, in the face of criticism of the assignment system. Probation was in turn halted as Britain looked to end transportation. Yet another chapter in the story of transportation from Britain to Australia emerged as settlers petitioned for the use of convict labour in Western Australia. That itself was soon ended as transportation gave way to the penitentiary as the main mode of punishment. The purpose of exploring this history is to signal the great complexity within how penal transportation operated in practice, and to set up future work via a natural experiments approach, which will consider such differences in more detail, and crucially, the implications of those differences for the colonies and convict outcomes.



Assignment system; probation system; convictism; penal transportation; penology.


Fernando Liendo Tagle: A Spanish Legal Journal Defining the Centre and the Periphery: Revista de Legislación y Jurisprudencia de Ultramar (1877–1878)

Overseas was present in the general Spanish press, but there was a special press of jurists. Since the Revista de Jurisprudencia was founded in 1856 in La Habana, as the first legal journal from Overseas, until the last ones published in 1898, we have a constellation of legal journals that allow us to see the changes in this domain of Law. The movement of legal journals followed a path of decentralization in three oceans throughout the century that made it possible to connect Madrid, La Habana and Manila. This article focuses on a specific title: The Overseas Journal as a medium in which Spanish jurists reasoned what law should apply in Spanish colonial possessions, which they termed Provincias de Ultramar (Overseas Provinces) or simply colonias (colonies).  The consideration of separate legal frameworks for the metropole and its peripheral territories, as evident throughout the pages of The Overseas Journal, demonstrates how distinct legal spaces within the same political entity were articulated. Legal communication within a trioceanic scope was at the service of the creation of this legal space dominated by exceptions. Thus, almost all the contents are aimed at contributing to the analysis and delimitation of this Overseas Law, a series of discussions with peninsular authors, and a certain form of social and legal organization that defended itself through commentary and its discursive reproduction.



Legal Journals; Special Law; Nineteenth Century; Colonialism; Legal Scholarship; Imperial Studies; Spain.


Helena Moreno Galán: The Bishop in the Didascalia Apostolorum

The article suggests a legal and historical study about the existence of the judicial activity of the bishops during the Ius Antiquum. This aim is achieved through the analysis and the study of the different ancient sources, which include the Didascalia Apostolorum, the first of the great sources of Canon Law; this book describes with details the modus operandi of the Bishop when serving as a judge. This text says that the main objective was the application of the evangelical justice, which overcomes the simple idea of reparation; on the basis of the sacred texts in which Christ invites us to forgive each other, we can foreshadow a new justice known as Lex Christiana, which combines the evangelical newness with the Roman legal experience.



Didascalia Apostolorum; Ius Antiquum; Lex Christiana; Bishop; Ius Apellationis.


Marko Sukačić: Lex commissoria: from a Forbidden Clause in Roman Law to a (Contemporary) Debtor’s Welcome Relief

The lex commissoria, an agreement under which the creditor assumes ownership of the pledged property if the debtor defaults, was prohibited in the post-classical period of Roman law by the constitution of Constantine in the CTh 3,2,1 (CI 8,34,3). This article explores the possible substance of the lex commissoria in the classical Roman law of pledge as well as Constantine’s motive behind its prohibition, and compares it with that in the contract of sale. The impermissibility of the lex commissoria, as inherited from Roman legal tradition, had persisted in the contemporary Croatian legal system until recently. Under Directive 2014/17/EU, Croatia, as well as all other member states of the EU, transposed the permissibility of such a clause, albeit as limited to consumer housing loan agreements. From this canvas, the concluding remarks juxtapose the Roman with the contemporary lex commissoria and discuss the actual purpose and effect of the said prohibition.



Lex commissoria; pledge; Roman law; Directive 2014/17/EU; consumer protection.


Ivan Kosnica: Deprivation of Citizenship Status in Croatia and Yugoslavia in the Aftermath of the Second World War

The paper deals with deprivation of citizenship status in Croatia and federal Yugoslavia, in which Croatia was one of federal units, in the aftermath of the Second World War. The main questions the author refers to are regulations and practice of deprivations and its implications on the concept of citizenship. The author concludes that in Croatia and Yugoslavia in the aftermath of the Second World War existed and were implemented wide deprivations of citizenship. According to the author, this situation reflected different definition of citizenship which was now defined more in republican and communitarian way.



Croatia; Yugoslavia; citizenship; deprivation; revocation.


Hadrian Ciechanowski: Public Registers in the Kingdom of Prussia at the Turn of the 19th and 20th Centuries in a Systemic Perspective

The advancement of legal relations between citizens alone, as well as between citizens and the state, has forced the registration of specific facts. In the light of this, a variety of public registers have evolved. Although these registers often complemented one another and there was a flow of information between them, all in all, the literature does not recognize their systemic nature. A certain exception in this matter is solely represented by land registers and cadastre. That said, at present Poland is one good example that thanks to the use of data and computer technology there is an increasing integration of these formally dispersed registers. But it appears that even solutions from the nineteenth century can be seen and understood as a contemporary system. This claim shall be proven on the example of public registers kept in the territory of the Kingdom of Prussia from the second half of the 19th century. The research presented in the article was based on the system analysis method. On the other hand, the study was conducted with use of legal acts, literature and archival materials collected in Polish and German archives.



Public registers; Kingdom of Prussia; Administration; System; Information flow.


Jakob Maziarz: Polish-Lithuanian Union and the Declared Equality before the Law in the Polish-Lithuanian Commonwealth

One of the cornerstone principles of the socio-political system of the Polish-Lithuanian Commonwealth was the principle of the nobility equality. Each nobleman – regardless of his wealth, religion and background – was vested with equal political rights. The nobility would often stress the importance of this rudimentary rule - an oddity when set against the background of contemporary Europe, where starkly hierarchized pyramids of aristocratic titles, both inherited and granted, were being formed. In the Commonwealth such titles never came to be and, as a rule, had never become well-entrenched. In the article, the author describes the legal status and its changes to the extent to which it concerned the admissibility of applying noble titles in the Republic of Poland. Although the principle of equality of the nobility existed until the end of this state, with time it had more and more exceptions, but still, it was an exception on the map of Europe at that time.



Equality of citizens; aristocratic titles; nobility; Polish-Lithuanian Commonwealth.


Ewa Fabian: Poland: Study of Pre-War Court Cases Related to Freedom of Speech and Formal Logic

This article discusses a political and social scandal of 1936-1938 which included a trial for defamation (Polish: zniesławienie) based on an accusation of spreading Soviet propaganda in a Polish magazine for children (“Płomyk”). The judgments issued in 1936 and 1937 concerned freedom of the press and the right to formulate critical opinions in the public interest. The case is well preserved and as such could be analyzed in light of Polish jurisprudence of that era related to the concept of “proof of truth”. The issues identified in the judgments led to an analysis whether opinions can be assessed as true or false. Pre-war and modern jurisprudence related to freedom of speech was invoked to show how the matter of critical opinions evolved with relation to human rights. The pre-war Poland was also home to the Warsaw-Lwów School of thought, including A.Tarski and his semantic conception of truth. Logical concepts related to the problem of truth (invoking also G. Frege and Z.Ziembiński) are used in the article in an attempt at formulating a basic matrix for distinguishing opinions from non-opinions (the Value-Judgments Matrix). These may be used by judges and possibly in modern dispute resolution technology.



Defamation; false information; Jan Brzechwa (Lesman); Płomyk; Polish pre-war jurisprudence; Soviet propaganda; Antoni Kwiatkowski; Alfred Tarski; Zygmunt Ziembiński; logic.


Adolfo A. Diaz-Bautista Cremades: Actio Publiciana and Mancipatio

Mancipatio was the established way to trade res mancipi (slaves, italic soil and big animals), so if these things were delivered by traditio the transmission was invalid. This distinction disappeared before Justinian's compilation, generalizing the traditio as a mechanism for the transmission of all goods. This work discusses the possibility that the mechanisms for protecting the Praetorian owner (especially the actio publiciana) could have determined the disappearance of mancipatio.



Roman law; mancipatio; res mancipi; tradition; property; trade.

Alexander Dmitrievich Strunskiy, Anna Pavlovna Kurabtseva: Scientific Heritage of the Russian Jurist, Sociologist and Positivist Sergey Muromtsev

The article is devoted to the analysis of the scientific and legal views of Sergey A. Muromtsev, who is the founder of the sociological approach in the Russian legal science. The influence of the philosophy of positivism and sociology, in particular the ideas of Auguste Comte, as well as ideas of Rudolf von Jhering on the legal theory of Sergey A. Muromtsev is revealed. The distinctive characteristics of Muromtsev’s sociological legal understanding are outlined. The major criticism of Muromtsev that is related to the legal doctrines of the school of the natural law and the German historical school of the law, as well as his proposals for the modernization of the legal science and practice are also highlighted. Particular ideas of Sergey A. Muromtsev are considered in the context of their comparison with the ideas of representatives of Social Legal Thought in Europe: François Gény, Emmanuel Lévy, Phillip Heck and Eugen Ehrlich. Main ideas of Muromtsev about the judicial activism as an integral phenomenon of the justice, and the creativity of jurists as a huge driving force in the development of the law are considered. The article also provides Muromtsev's positions on certain issues of the legal practice that has made possible to understand more clearly how judges should take into account specific interests in the process of adjudication, in Muromtsev's opinion. The great importance of Muromtsev's ideas for the development of the Russian jurisprudence is noted. The authors indicate the relevance of some Muromtsev’s ideas for the modern jurisprudence and point at the advantages of teaching his sociological theory of the law at the law faculties.



Sergey Muromtsev; Sociological Jurisprudence; Social Legal Thought; Russian Legal Science; Judicial Activism; Philosophy of Positivism.


František Emmert: German Citizenship versus Protectorate Membership in the Protectorate of Bohemia and Moravia (1939–1945)

As a direct consequence of the Nazi occupation of the Czech lands in 1938–48, the institution of German citizenship (i.e., Reich citizenship as established by the Nuremburg Race Laws) was introduced in the Czech lands. Pursuant to newly promulgated German laws, ethnic German inhabitants of the Czech lands became citizens of the territorially expanding Reich in two phases, in 1938 and 1939. In the occupied Czech lands, ethnic Germans acquired the status of privileged citizens, but nonetheless their rights were significantly restricted by the totalitarian power of the Nazi state. In autumn 1939 more than three million people living in the Sudetenland, including come Czechs, became German citizens. After the establishment of the Protectorate of Bohemia and Moravia on 15 March 1939 the institution of German citizenship penetrated the Czech interior, where ethnic Germans comprised only 2 % of the population. For the Czech inhabitants of the Protectorate, the occupiers created a citizenship status known as Protectorate membership because, in the eyes of the Germans, the Czechoslovak state, and hence Czechoslovak citizenship, had ceased to exist. Czechs, who became Protectorate members, were denied »political rights« and the right to govern their own country. They became mere inhabitants of a territory. In 1939–45 two legal systems, one for Germans and one for Czechs, and two analogous administrative and judicial systems existed side by side in the Protectorate. Legal historians refer to this unusual situation as legal dualism.



Protectorate Bohemia and Moravia; Third Reich; citizenship; political rights.


István Stipta: Cesare Beccaria: Von den Verbrechen und von den Strafen – die Rezeption des Werkes in Ungarn

The work of Cesare Beccaria Dei delitti e delle pene (“On Crimes and Punishments”) has become one of the most influential and canonized opuses of the world history of law. It opened a new era in the history of the European criminal law. Its basic theories possess great prestige in the professional debates of our days in criminal law, as well. In a sense, it has become a sort of fashion, thus, the eventual interpretations of its cited thoughts diverge from the text of the original work and the former content to be mediated. To a certain extent, every significant intellectual work has a similar destiny. That is why it is to be considered to return to the original source and to recall the circumstances of the development of the opus and its contemporary assessment. That is our endeavour to tackle that briefly when we review the response of Beccaria’s most important work in Hungary. In this essay we tackle the most important stages of the publication of the work, the Hungarian translations and the career history of the work in Hungary. Furthermore, the essay outlines the statements of the Hungarian science of legal history. It refers to the further possibilities of the scientific elaboration of the oeuvre, as well.



Cesare Beccaria; On Crimes and Punishments; social contract; criminal justice; death penalty; utilitarism; André Morelle.


András Biczó: Benedikt Carpzov’s Influence on the 18th Century Criminal Practice in Hungary – Analysis of a Legal Case from Debrecen

This paper is essentially founded on two observations regarding early modern periodical criminal law. On the one hand, according to the apparent consensus, the German (Austrian) law had a significant impact on the legal development of the Central-Eastern European region and the marks of these effects can be detected in Hungarian criminal practice as well. On the other hand, the minority age as a relevant circumstance in criminal litigation was a momentous factor concerning the improvement of modern criminal justice. Due to these assertions, my reseach is based on the “arsenal” of classical and text-related jurisprudential methodology (especially using interpretatio grammatica and systematica) is confined to provide insight into Benedikt Carpzov’s influence on the criminal case law of one crucially important city located in the eastern part of Hungary (Debrecen) in the middle of the 18th century. “Carpzovian-effect” is going to be descriptively illustrated through the analysis of minority age. One legal case chosen among the criminal praxis of Magistrates of Debrecen is going to be dissected with regard to presenting a few contemporary aspects of minority age. This is not an overall case note, since certain procedural parts of the criminal proceedings picked out of the archival file of the legal case on the strength of the research goals are going to be elaborated. The paper aims to demonstrate the noted Saxon legal scholar’s emergence in the criminal case law of Debrecen as well as to scrutinize minority age with particular respect to the mitigation of punishment.



Benedikt Carpzov; minority age; mitigating circumstance; incendiarism; criminal case law; criminal jurisprudence; doli capax; poena extraordinaria; arbitrium judicis; Hungary.


Pál Sáry: Regulation of the Relations between Jews and Christians in Roman Law

Even the pagan Roman emperors issued a number of decrees concerning Jews and Christians. However, the regulation of the relationship between Jews and Christians did not begin until after the Constantinian change. The Christian emperors ruling in the fourth to sixth centuries sought to achieve the following three main goals in this area: (1) promoting the conversion of Jews to Christianity; (2) hindering the conversion of Christians to the Jewish religion; (3) elimination of hostility between Jews and Christians. For the first purpose, the rights of Jews were restricted (for example, they were excluded from public offices). Jews who converted to the Christian faith received special legal protection. For the second purpose, the conversion of Christians to the Jewish faith was declared a crime. Jews were forbidden to keep Christian slaves. Mixed marriages between Jews and Christians were prohibited. For the third purpose, Christians were forbidden to abuse Jews; attacking, looting and setting fire to synagogues was severely punished. Jews were also strictly forbidden to violate the Christian religion.



Roman law; Late Roman Empire; Imperial legislation; Religious policy; Christianization; Jews; Proselytism; Christian slaves; Synagogues; Religious violence; Protection of public order.


Engjell Likmeta, Katrin Treska: Crimes Against Jugdes in Albania. Juridical Defense of Justice Officials Provided by the Criminal Law

In this paper, the authors aim to make a historical overview at the provisions of criminal legislation in Albania, in defense of officials of the justice system, and in particular judges. The authors in this paper will focus firstly on the regulations made by the Albanian customary law, on the legal protection offered to the officials of the judicial system during the monarchy, during the period of communism in Albania, to look closer, provisions of the current legislation in force. Also, in this paper the authors will focues on a general overview of official statistical data, which highlight the number of cases of criminal prosecution and persons convicted of criminal offenses against judges and the justice system in Albania.



Judge; Justice System; Criminal Code; Albania.



Christian Baldus, Giovanni Luchetti, Massimo Miglietta (a cura di): Prolegomena per una palingenesi dei libri ‘ad Vitellium’ di Paolo


András Földi (Hg.): Összehasonlító jogtörténet (Vergleichende Rechtsgeschichte)


Wolfgang Bohnen/Lena Haase (Hg.): Kontrolle, Konflikt und Kooperation. Festschrift 200 Jahre Staatsanwaltschaften Koblenz und Trier (1820–2020)


Ulrike Andersch: Die Diskussion über den Büchernachdruck in Deutschland um 1700 bis 1815


Julia Dreyer: Die florentinischen Autoren- und Druckerprivilegien während der Herrschaft der Familie Medici


Gerhard Reinhold: OTTO-Glocken. Familien- und Firmengeschichte der Glockengießerdynastie Otto


Jan Lundberg: Der Fußball als Teil des Grundversorgungs- und Funktionsauftrags des öffentlich-rechtlichen Rundfunks


Edward Cavanagh (ed.): Empire and Legal Thought. Ideas and Institutions from Antiquity to Modernity




Contents download here:


ARCHIV - Vol. 12 / 2021 No. 1



Javier Belda Iniesta: The Canon 8 of Nicea and the Legal Status of the Adulterer. A Review in the Light of the First Conciliar Literature

This study intends to offer a historical-legal overview of the conciliar ecumenical and local texts and of the canonical sources of the ius antiquum Concerning the concubinage and the adultery and the admission of the people in this situation to the sacraments. Through an utroquistic reading of the sources and of the related historical, social and legal context, a historiographic analysis of the topic will be proposed by demonstrating that the admission of the concubinaries or adulterer to the sacraments does not constitute a form of abuse or violation of Tradition; on the contrary, the sources analysed constitute proof of the ability of the Church of the first millennium –whose ambitions are not distant from the one of the Church of today – to include in a harmonious dialogue between Justice and Mercy the problems and the concerns that are present in the society of a specific historical moment, always having the social and the spiritual well-being of the community of the faithful as its aim. 



Concubinage; adulterer; admission to the sacraments.


Ivo Cerman: Natural Law and the Rights of Man in France before the Revolution 

Elaborating on recent works on the merits of the physiocrats, we ask whether the interest in the rights of man could also be traced in the legal sciences and whether French legal scientists applied the secular natural law of the ‘school of the north’ (Grotius, Pufendorf). There was a French tradition of ‘ordre naturel’ which drew on Domat and Montesquieu, which instigated the refashioning of Roman law by Bourjon, Pothier and others, who focused on the rights of persons. However, the ‘school of the north’ made some impact. It was thanks to a reinterpretation of history that French lawyers managed to push through the idea that equality, rather than inequality, should be seen as the normal status of persons. Several reform projects in higher education were continued after 1789 with an effort to use natural law to interpret the Declaration.



Natural law; Jean Domat; Montesquieu; Human rights; serfdom; absolutism.


Konrad Graczyk: Die Todesurteile und die Propaganda. Die härtesten Urteile des Sondergerichts Kattowitz (1939–1945) und deren Ausnutzung in der lokalen Presse

The article is devoted to the propaganda use of the Special Court's death sentences in Katowice during the Second World War. It outlines the statistics on the use of the death penalty by the special court. The provisions regulating the judiciary's operation of press centers, which were a vital link between the judiciary and the press, were discussed. Then the practice of announcing the execution of death sentences imposed by the Special Court in Katowice was presented, based on archives illustrating the court's activities and a query of the local press during the Second World War. The research covered both the practice of using the characteristic red posters informing about the executions and the use of newspapers for this purpose. The press inquiry results were discussed in detail, taking into account the content and form of press releases. In summary, an attempt was made to answer the question to what extent the discussed Katowice practice differed from the practice of proclaiming death penalties in other regions of the territories incorporated into the Reich, in particular in Poznań and Łódź, and to estimate the impact on the propaganda on the Upper Silesian population.



special court; Upper Silesia; Sondergericht Kattowitz; propaganda; death penalty.


Hubert Mielnik: The Role of the Legal Theses of Polish (non-German) Courts of Appeal in the General Government (1940–1944)

The present article highlights the role of legal theses issued by Polish (non-German) courts of appeal in the General Government. The German occupiers abolished the Supreme Court in the General Government. In the Polish (non-German) judiciary sector, there was no court of the highest instance to ensure the unification of jurisprudence. The competence to ensure the uniformity of jurisprudence and resolve existing doubts and legal issues was transferred to the courts of appeal. The article further indicates the legal nature of the legal theses in the General Government, the role assigned to them and the statistics of their issuance. Archival sources constitute the source basis of the work. We also resorted to the latest subject literature. The work is based mainly on the analysis of archival sources and legal acts, so the scientific methods typical of the history of law were applied.



General Government; Nazi law; Nazi judiciary; The Second World War; Polish (non-German) judiciary.

Tomasz Dolata: The Impact of the Germanic and Romanesque Model of Combating Unfair Competition on the Legislation in Inter-War Poland (1918–1939)

The first country that decided to regulate the issues of combating unfair competition in a specific statute dedicated to this phenomena (1896) was Germany. The so-called criminal method of regulations was used. Other legislations, including but not limited to, Austrian, Czechoslovakian, Norwegian or Yugoslavian followed the German model. A completely different system was introduced and developed by the French lawyers who relied on the civil concept of combating this phenomenon. A characteristic feature of the French solutions was the lack of a specific statute devoted to the repression of this phenomenon. In addition, by way of skilful application of the provisions of the Napoleon Code the French case law and doctrine have construed a very comprehensive model for combating unfair competition. This model was based on the subjective right, which was the right to clientele. All actions violating the subjective right sanctioned by the Act were unlawful and constituted the basis for initiating a civil complaint, i.e. for instigating claims against the infringer. The French model constitute inspiration for, among others, Belgian, Italian, Spanish and Bulgarian legislation. The first Polish Act on Combating Unfair Competition of 1926 combining both the French and German model of combating this phenomenon seems interesting. However, an attempt to simply assign the Polish statute to the French or German model must prove unsuccessful because the Polish legislator, while devising the Polish law, reached for legal measures characteristic for both the French and German structures of repression of this phenomenon. This is the civil method of combating unfair competition based on the relevant subjective right–the ownership right in an enterprise as an intangible asset which is common to the Polish and French model, while the German model has been brought closer to the Polish law due to the concept of regulating this phenomenon by means of a specific statute, casuistic list of unfair competition activities supported by the use of general clauses, a separated criminal-law part in the Act containing a similar catalogue of offenses set out in the Act.



unfair competition phenomenon; combating unfair competition models in 20th-century European legislation; German model of combating unfair competition; Romanesque model of combating unfair competition; Polish Act on Combating Unfair Competition of 1926.

Jaromír Tauchen: Das Handelsrecht und seine Entwicklung im Protektorat Böhmen und Mähren (1939–1945)

This article focuses on the state interventions in the sphere of commercial law in the Protectorate of Bohemia and Moravia during the years 1939-1945. Protectorate citizens (the Czechs) were mainly governed within the scope of commercial law by the Austrian Commercial Code of 1863, inherited from the Habsburg monarchy, which received only minor alterations. During the war, the Minister of Justice had wide powers to enforce restrictions or waive certain limitations when it came to commercial law, which was mainly justified by public order concerns and the environment of the war economy. The article takes note, among other issues, of the changes in corporation law, obligation law, patent law or securities law. During the existence of the Protectorate of Bohemia and Moravia, an entirely new system of regulation was also introduced for promissory notes and cheques.



Protectorate of Bohemia and Moravia; Third Reich; private law; commercial law; Austrian Commercial Code; corporations; securities law; patent law; promissory note law.

Andrej Beleš, Martin Gregor: The Criminal Punishment of Sexual Abuse in the First Czechoslovak Republic and its Effects on the Subsequent Development of the Legal System

This article reviews the punishment of the sexual abuse of juveniles in the law of the Czechoslovak Republic (1918–1992). It maps and traces the development of the constituent elements relevant to the sexual abuse of juveniles and analyses the reasons for the changes that they underwent. It proceeds in stages from the issues raised by the Austrian Criminal Code of 1852 and the Hungarian Criminal Code of 1878, which were taken over in the territory of the “First Czechoslovak Republic”, through the definition of this class of crimes in the Draft Criminal Codes of 1926 and 1937, to the legislation on sexual abuse in socialist criminal law and the relevant provisions of the criminal codes of 1950 and 1961.



sexual abuse; crime; criminal law; Czechoslovakia.


Róbert Jáger: Great Moravian Statehood as Viewed by the History of State and Law

The article describes the issue of viewing Great Moravia as a state. The first part of the article describes when and how the term "state" was used for Great Moravia for the first time in legal-historical literature, as well as how other authors view Great Moravia and what defining features of the state the authors used. The article further points out that currently the basic features of the state are considered (in a simplified form) state territory, population, power and law, and seeks to find these defining features in the conditions of Great Moravia. He points to the fact that the use of the term state for medieval power structures is a neologism, unknown to the language and the thinking of the people at the time (including lawyers). At the same time, the author poses a question about the meaning of applying modern legal definitions to medieval formations. At the end of the article, the author points out how the understanding of the history of Great Moravian statehood could be changed or supplemented. The author proposes to mitigate the exactness of determination of the "beginning" and "end" of the Great Moravian statehood by 833 and 907, and also points to the problem of integrity of the territory of Great Moravia (with reference to the impossibility of merging the hereditary domain of the ruling Moymirid dynasty, with controlled or more freely affiliated territories).



Great Moravia; State; Statehood; Hereditary Features of State; Public Administration.


Anton Guzhva: Codex Civilis pro Galicia Orientali 1797: Creation and General Characteristic

The article considers the history of creation, structure, language and style features of the Civil Code of Eastern Galicia 1797 – one of the first codifications of private law in Europe, which served as the basis for the creation of the Austrian General Civil Code (ABGB) of 1811 later. The idea that the Code is a product of Roman law reception, without losing certain features of feudal law. To characterize the language and style of the Code, the author of the article used the Latin edition of the text. Based on the general nature of codification processes at the time of the creation of the Code, as well as on the role of the Latin language of the Age of Enlightenment, the article attempts to substantiate the emergence of the Latin version of the Code.



Civil Code for Eastern Galicia; codification of civil law; Civil Code of Austrian Empire; reception of Roman law; the history of civil law of Europe; Habsburg Monarchy; age of Enlightenment.


Vasil Gorbachov: Prosecutor in Criminal Cassation Proceedings of the Russian Empire

The article deals with the normative regulation and practice of participation of the Prosecutor's office in cassation proceedings in the Russian Empire after the judicial and military-judicial reforms of 1864 and 1867. The author analyzes the Prosecutor's office's right to appeal against court sentences in cassation and its restriction in the military department. The article considers the practice of making cassation protests by the Prosecutor's office, their effectiveness, as well as the existing shortcomings in this activity. The author also analyzed the issues of the participation of ober-prosecutors in the consideration of cassation protests and complaints in the Governing Senate. The article uses historical-legal, formal-legal, comparative-legal, statistical and other special research methods.



judicial reform of 1864; military-judicial reform of 1867; prosecutor's office; cassation protest; ober-prosecutor; conclusion; cassation proceedings; Governing Senate.


Lénárd Darázs: Teilnichtigkeit in der deutschen Privatrechtsgesetzgebung der Neuzeit vor dem BGB

As a general rule, Article 139 of BGB, which entered into force in 1900, declares the entire contract invalid if the cause of invalidity affects a specific part of the contract. Although this is a consistent solution by the Code that follows the liberal ideal, it cannot be supported by the development of legislation before BGB. In reality, the solution offered by BGB means a steep break from partial German codifications which can be regarded as its forerunner. The partial regulation of contacts was specifically present in all late modern German legislative endeavours. In these, a broad recognition of partial invalidity and the rescue of the entire contract are manifested as a trend in legal development. Thus, organic German legal development would have required maintaining the entire contract and restricting the withdrawal of legal effect to the invalid part of the contract only. Therefore, Article 139 of BGB is more of a strong reflection of the idea of private autonomy, and less of an organic consequence of German private law codification in the modern era.



Partial invalidity; Private law legislation bevor BGB; History of invalidity of contracts; Consideration of partial invalidity in late modern period; Codex Maximilianeus Bavaricus Civilis; Preußisches Allgemeines Landrecht; Badisches Landrecht; Sächsiches BGB; Dresdener Entwurf.


István Sándor: Remarks about the History of Foundations

The aim of this study is to show what changes have been made to the original causes and functions of the foundations. Accordingly, we briefly review the roots and history of foundations and the latest trends, the emergence of the private foundation. The legal construction of the foundation has undergone significant change in legal history and one of the primary benefits was the formation of private foundations. Private foundations in many cases can pursue economic and commercial purposes, even carrying out asset management activities and they are specifically suited to asset separation, making them important legal tools for asset protection. In addition, the study analyzes in detail how the foundation emerged in continental European private law gained ground in some Anglo-Saxon countries.



foundation; foundation company; pia causa; private foundation; Salmann; wakf.


József Pallo: The Evolution of the Hungarian Csemegi Code from the Aspect of Early Criminal Policy (1908–1948)

The Hungarian Csemegi Code, which was the first act – in a modern sense – that – obviously besides being a substantive law – had provisions that addressed questions related to the execution of its contents, was a milestone in the development of Hungarian criminal law. The vivid development (emanating from the urging will to reduce the gap between Hungary and the more developed countries, the progressively strengthening economy and the escalation of relevant correctional academic literature) apparent during the three decades that followed 1880 also resulted in a more lucrative period for the field of corrections as well. While towards the end of the 19th century, the classical school of correctional science mostly revolved around the questions of security, discipline, infrastructure and technical issues while being less focused on actual legal questions, the effects of the positivist school – by the 20th century – have seeped into its framework, resulting in the introduction of the so-called personality-influenced individualization, aimed at reducing the chances of recidivism and thus avoiding committing repeated offences. This process is symbolized by the several amendments made to the original Csemegi Code. Present study will address this historical and legal development arc in a more detailed manner.



Csemegi Code; Hungarian legal development; criminal law codification; criminology and criminal law; correctional (penal) law; general experiences.


Zoltán J. Tóth: The Death Penalty in Hungary during the Enlightenment and the Reform Era

The present paper reviews the history of capital punishment in Hungary from the second half of the 18th century until the middle of the 19th century. This is an important period on the road to the abolition of capital punishment in Hungary (as well as in the enlightened countries of Europe) during which the death penalty would not be abolished, but its use would become exceptional for ordinary crimes. For extraordinary crimes, mainly in martial law regulations, however, it remains applicable, and, in these cases, it is even used in an extended manner. This can be observed in Hungary especially in the months of the revolution and war for independence of 1848-1849, and in the years of retaliation that followed it.



Hungary; capital punishment/death penalty; Hungarian absolutism; abolitionism; Enlightenment; Hungarian revolution and war for independence of 1848-1849; martial law.


József Benke: Antikes, mittelalterliches und gegenwärtiges im Privatrecht. Römische ‚eigentumsrechtliche‘ Kasuistik hinter dem in Azos Brocardica aurea erschienenen und im geltenden ungarischen BGB als allgemeines privatrechtliches Verbot neu kodifizierten Adagium von „venire contra factum proprium nulli conceditur“

This contribution investigates how the great achievements of the Roman Antiquity in the field of private law survived in the oeuvre of the Middle Ages’ Legists and then how they were preserved these days’ modern codifications. The example and nonetheless the temporal middle point, through which the paper examines the continuity of legal thoughts was the 13th century Brocardica aurea elaborated by the meaningful Bolognese glossator, Azo Portius. The opus contains an adagium, according to which „venire contra factum proprium nulli conceditur“, i.e. “no one shall act contrary to his or her previous conduct”. The proverb was established on many cases mainly located in Emperor Justinian’s Digest and Codex. The paper classifies many of these cases into the genera of modern legal notions, and analyses detailed some of them belonging to the contemporary private law category of property law. These cases showed that the ancient Roman requirement of bona fides had as strongly dominated even some basic rules of Roman Law as clearly determined the Art 1:3 § 2 of the new Hungarian Civil Code in effect that: “The requirements of good faith and fair dealing shall be considered breached where a party’s exercise of rights is contradictory to his previous actions which the other party had reason to rely on.”



bona fides; venire contra factum proprium; Brocardica aurea; Azo Portius; good faith and fair dealing; General Principles of Hungarian private law; survival of Roman law institutions.

Gergely Deli: The Use and Abuse of Legal History. On the Nature of the Censorial Regimen Morum

The paper analyses the nature of enforcement within the censorial regimen morum (CRM) in Ancient Rome by taking into consideration various Latin legal and literary sources. It comes to the conclusion that CRM could be seen as a transitional institution in a system which evolved from a formerly domaninant collective or decentralized to a more centralized enforcement. It also enriches the debate on the concept of law through historical insights by claiming that a social order can meaningfully called a legal order only if centralized production and enforcement of norms had been already added to the consensus of some commonly shared values.



collective punishment; decentralized; enforcement; centralized enforcement; regimen morum; legal order.


Endre Domaniczky: Historical Development of the Hungarian Regulation on Special Legal Order

In the context of the 2020 pandemic, the regulation and content of the special legal order has come to the forefront of attention around the world. A similar thing happened in Hungary, but while new rules and legal concepts were developed to deal with the pandemic, there was a need to explore and present the historical background of the national regulation. This article presents the changes in the Hungarian regulations concerning the special legal order from the beginning to the communist takeover after the World War II.



Special Legal Order; Emergency Powers; Pandemic; Hungary; Austria-Hungary; Interwar Period; WWI; WWII; communist takeover.


Árpád Olivér Homicskó: The History of The Reformed Law Academy of Kecskemét (1875–1949)

In my study I would like to present The History of The Reformed Law Academy of Kecskemét. For centuries, the Reformed Church in Hungary operated a law academy under the wings of its ancient college. So, the question rightly arises: Why was it considered important by our church? Since Calvin, in the hearts of Reformed people there has always been an attachment to law, what is more, respect for law and legislation. We do not know how long Calvin had been pondering his career choices and what motivated him eventually to choose the legal profession. However, one thing is certain: he could not have given us his main work, Institutio – the system of Christian religion – without the knowledge of the precise and regulated system of law. “Steely new order, victorious teaching!” – writes Lajos Áprily about the Institutio in his poem Kálvin. The poet praises not the jurisconsult but the Genevan preacher… Do we need a more worthy foundation for the Reformed law academies?



History; Reformed Church; Reformed Law Academy; education; Hungary.


Bashkim Rrahmani: History of Constitutions and the Organization of Constitutional Courts in Kosovo

Three constitutions determined the power of state authorities, state institutions, its political and judicial status and its inner developments during half of a Century. Consequently judicial review was developed based on these three constitutions. These constitutions were adopted in different socio-political circumstances: the first one equalized position of Kosovo within the federation; the second one was a basis of a unique system – parallel system during the dissolution of federation and the third one served as a basis for creating the state of Kosovo. In the same way the judicial review was developed, since these constitutions regulated the issues of judicial courts and the judicial review. The author of this paper, using the method of political analysis, method of legal analysis, method of historical analysis, etc., analyzes Kosovo constitutions, circumstances on which these constitutions were adopted and judicial courts and their historical role of Kosovo development.



Kosovo; constitution; court; judicial review; system; history; constitutional framework.

Jiří Bílý: Conception of Law in Works of Earlier Founders of Modern Social Thought

This article presents a theoretically driven and research oriented vision of law on the basis of a discussion of the major accomplishments in this sociological and philosophical specialty since its initial formu¬lation by the classics and its further development in the era of early modern science. Law constitutes one of the basic regulative mechanisms of social behavior of individuals, social groups and the whole society. It is, however, not only a normative feature, but also a social one. Legal theory approaches law as a branch of social life, it studies the relationship between law and society, analyses law in its social facticity, its real effect on social relations. A model of law is offered that is driven by the central theoretical questions of the social discipline as they have been addressed since the classic contributions in the works of Max Weber, Emile Durkheim, Eugen Ehrlich etc. Nevertheless, sociological issues connected with law were dealt with by many more sociologists and legal theoreticians, such as Herbert Spencer, William Graham Sumner, Georg Simmel and Ferdinand Tönnies. This discussion thereby also addresses a variety of selected empirical themes that have been fruitfully addressed in early modern research on law and that have contributed to our understanding of the place and role of law in society.



sociology; society; law; science; jurisprudence; government; freedom; ideology.

Kerstin Rupp: Sozialer Wandel und soziale Stellung in Chinua Achebes Things Fall Apart sowie Kazuo Ishiguros Remains of the Day – Teil II.

The following text deals with the topic social change and social standing in the novels Things Fall Apart from Chinua Achebe and The Remains of the Day from Kazuo Ishiguro. Both authors describe the change in parts of the Nigerian rather English society within a range of three generations. Achebe concentrates on a period between the middle of the 19th up to the beginning of the 20th century. He concentrates on the ethnic group of the Ibo. Considering exogenous factors like colonialism and missionary efforts as well as endogenous factors he describes the fundamental changes within the tribal society. Ishiguro`s novel, beginning at the end of the Victorian Age, observes the changes in the English class system through the eyes of a loyal butler. Two world wars accompanied by radical social change result in big, formerly inconceivable, changes in social hierarchy.



Chinua Achebe; Things Fall Apart; Tribal Society; Nigeria; Colonialism; Imperialism; Missionaries; Ibo; Kazuo Ishiguro; The Remains of the Day; Social Change; Social Position; Status; Hierarchy; England; Class System; Diary; Upper Class; Middle Class; Lower Class; Butler; First World War; Second World War.



Peter Dinzelbacher: Das fremde Mittelalter. Gottesurteil und Tierprozess


Bart Wauters / Marco de Benito: The History of Law in Europe. An Introduction


Meder, Stephan (Hrsg.): Geschichte und Zukunft des Urheberrechts II.


Aßmann, Jaron: Zwischen Weltanschauung und Wissenschaft. Staats- und verwaltungsrechtliche Promotionen an der Berliner Fakultät von 1933 bis 1945 bei Reinhard Höhn, Carl Schmitt und Hans Peters


Giacomo D’Angelo, Monica De Simone, Mario Varvaro (a cura di): Scritti per il novantesimo compleanno di Matteo Marrone


Urszula Kicińska: W tym osieroconym stanie. Pozycja wdowy w społeczeństwie szlacheckim w Rzeczypospolitej (od schyłku XVII do połowy XVIII wieku)






In memoriam. Hans Hermann Seiler (* 24. 12. 1929 – † 16. 6. 2019) (Elke Herrmann)



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ARCHIV - Vol. 11 / 2020 No. 2



Julian Lubini: The Free City of Danzig and its Higher Administrative Court (1920–1935)

Judicial protection against administrative measures has long represented the core of the European rule of law.  This control mechanism was nothing new to the Free City of Danzig, which had previously belonged to Prussia and been subject to its modern administrative jurisdiction. However, the system in Danzig had to be completely reorganised in 1920 when the city was transformed into an autonomous state according to the Treaty of Versailles. While the legal culture in the Free City of Danzig has thus far received only occasional attention in academic circles, the administrative jurisdiction of the city-state has been entirely overlooked and much has been forgotten. This is perhaps because Danzig’s special constitutional status was a popular subject of academic debate at the time; in addition, the Free State of Danzig ultimately disappeared from the agenda of international politics with the dissolution of the League of Nations on 18 April 1946.  Nevertheless, this topic is now attracting renewed interest among contemporary researchers. The Danzig Higher Administrative Court, its legal basis, its organisation, its rulings and the political debate surrounding the court itself all shed light on an intriguing episode in the history of Danzig, one that reflects how the Free State upheld the rule of law and reveals how the court even struck down measures taken by the National Socialists. Since very little is known about the Danzig Higher Administrative Court and its files are believed to have been lost in the war, it was necessary to draw from very scattered and often poorly accessible sources in order to provide the following general overview.



Free City of Danzig; League of Nations; Third Reich; Public administration; Administrative jurisdiction; Administrative law; Tax Law; Association law; Right of assembly; Ernst Ziehm; Max Dolle.


Valerie Zatloukal: Max Kasers „Römisches Recht als Gemeinschaftsordnung“ und die „Krise des römischen Rechts“ unter der NS-Herrschaft

Because of its supposedly very pronounced individualism, the National Socialists stood in opposition to Roman law, as expressed in article 19 of the NSDAP program of 1920. However, long before 1920, Roman law was already denied any community idea by the representatives of the Germanic branch of the historical school of law and was rather presented as purely individualistic. The "Germanic-German law", which was essentially social, was regarded as the positive counterpart to Roman law. This view was then taken over by the National Socialists in the 20th century and utilized for their ideology. Howev-er, the opposite was found by renowned jurists such as Fritz Schulz (1934) and Max Kaser (1939) – namely that Roman law was not as individualistic as was believed to be. This article will first give an overview about the beginnings of the criticism of Roman law in the 19th century. After this, the criticism of the NS-regime and its impact on the science and teaching of Roman law will be discussed. At the core of this work stands the analysis of Max Kaser’s "Roman law as a community order", his biography and his relationship with the Nazi authorities in particular. Finally, it will be examined to what extent his the-ories have prevailed in today's science and teaching.



Roman Law; National Socialism; Community Law; Individualism; Anti-Semitism; Histo-ry of Science.


Carmine Galloro: Die Umsetzung des römischen Privatrechts im Völkerrecht

The purpose of this issue is - without claiming to be exhaustive, to put in evidence the influence of Roman law and the consequent phenomenon of the reception of its private law structures into the international law system. The post-Justinian era will be used as historical element to analyze the development of ius gentium over the centuries: praetores deputed for settling cross-border disputes often resorted to that law through the iurisdictio peregrina, since they adopted in their interpretation and application activity typical instruments of ius privatorum, i.e. analogia, aequitas, interpretatio, etc. Although it was a category of ius publicum, the “international law” then regarded operational instruments based on civil elements: this is the characteristic that still fascinates today and over time was assessed and rediscovered by several lawyers.



International law; Roman law; ius gentium; private law; reception.


Carmen Lázaro Guillamón: Conflict Resolution by Consensus in Roman Law: Historical Approach to Mediation

Mediation is currently considered the new paradigm in conflict management, transformation and resolution. It is, indeed, a modern legal institution, but perhaps the Roman experience that serves as its foundations has been forgotten. In Roman law the parties could agree to end a dispute or prevent it from starting through transactio, that is, through consensus. It was the magistrate with iurisdictio who was in charge of leading or facilitating the management of that conflict, a competence that is reminiscent of that of today’s mediator. Thus, the essential interest of this work is the analysis of Roman legal sources and the reinterpretation that glossators carry out in order to offer the historical-legal iter of mediation.



Mediation; transactio; consensus; conflict management; Praetor; Curule Aediles; mediator.


Theodore Kazazakis: The Advocates in Byzantium during 12th Century according to “Ecloga Basilicorum”

The concept of rule of law is interlinked with the presence of advocates, as protectors of the interest of their clients. Advocates existed in Byzantium and their status and organization were linked to the rise and decline of legal studies. Most of our knowledge about the role of advocates in Byzantine legal system comes from the Justinian era and his codification of Roman Law, in contrast to the period of 12th century with the decline of secular lawyers and the rise of canon law, where there are scattered passages in legislation and literature about the role of advocates, their practice and their obligations towards the state or their clients. The aim of this note, dealing with the role of advocates in Byzantium during that period is to show how the profession of advocates has been evolved in that period, what where the requirements to become one, what was their legal training, their organization and their status, their daily practice of law and their legal ethics, based in the provisions of “Ecloga Basilicorum”, a legal text of that period, used and commented mainly about the court system and the judges serving it.



Advocates; Ecloga Basilicorum; the requirements of being an advocate; women; handicapped; clergy; Jews; heretics and foreign people; practicing of the law and legal ethics; secular and church courts.


Ivan Milotić: Arbitration Agreement of 1535 between the Habsburgs and the Venetians

In 1535 the Habsburgs and the Venetians attempted to settle peacefully their boundary disputes which were constantly going on in northern Italy and Istria. They arranged arbitration to achieve this goal, of which there are two substantial archival records, one preserved in the State Archive Venice and the other in the Austrian State Archive Vienna. This paper will primarily analyse how and in which circumstances the arbitration agreement was made and specific clauses which were utilized. In most of the arbitration agreement’s content the disputants did not design the arbitration of 1535 genuinely. They preferred to employ the pre-existing means (concepts, principles, institutes and terminology) of dispute resolution which were pertinent to Roman law and later cultivated on its ground by the Roman-canon law of the Middle Ages. The author specifically addresses these influences on the arbitration arrangements of the Habsburgs and the Venetians of Trident of 1535 because these were two disputants with substantially different (even incompatible) legal traditions and views how the legal system should be developed. The arbitration agreement of 1535 represents one of the earliest examples in the history of international law how the two heavily confronted territorial-political units of the time attempted to resolve their dispute by using a rational means rather that by resorting to warfare.



The Habsburgs; the Venetians; boundary dispute; arbitration; arbitration agreement; mediation; the Trident arbitration of 1535; Roman law; Roman-canon law.


Hadrian Ciechanowski: The Polish Civil Status Registration System – the Longue Durée of the Prussian Idea

In the article, the author writes about his conception of the longue durée of the civil status registration system in Poland. Its modern history began in 1874 while the Prussian administration established State and secular registry office at the territory of the West Prussia. The basic principles of the civil registration system are its secular state character, the corpus of information gathered about citizens and its connection with the lowest level of local administration. The most surprising and unknown is that they have not been changed by communist and even after 1990 in free Poland until today. The Prussian model of registration has survived two wars and several changes in the political system and statehood as well as the digital revolution. The article is based on legislation, historical and administrative literature and archival holdings. During the research, the author used historical methods, first of all, bibliographic and comparison methods.



Public registers; civil status registers; state archives; administration; the history of Poland; the longue durée.


István Novák: Entwicklung des Kirchenrechts im 20. Jahrhundert. Zur Auswirkung des Säkularismus und des Pluralismus auf die Entwicklung des Kirchenrechts am Beispiel des Eherechts

In this study, I attempt to illustrate the impact of the trend of secularism and pluralism that the Catholic Church has encountered in legal codification. It can be stated that the Church, after a long period of the 19th century, had to face the problems of legal codification which triggered a reaction in the daily housel and in the whole ecclesial paradigm. Secularism promoted codification while pluralism helped to start a dialogue between the secularized world and individual denominations. The example of this was most prominent in marriage law, in which the validity, existence, appearance of civil marriage, and the institution of divorce related to it raised new questions and moved church law to a new direction of thinking. The first codification was published at the beginning of the century, the second, still valid at the end of the century. I refer to the development of marriage law and its present-day phenomena in this study.



Codification; church law; marriage law; secularism; pluralism; dialogue.


Zsolt Pfeffer: The Development of Modern Budgetary Law in the European Legal Culture

The states have to use public funds. It is a fundamental problem how can a state acquire money for fulfilling its obligations and tasks and how can it spend these funds properly. Basically two sides can be separated and scrutinized: the expenditures and the revenues. During the historical development the monarchs had fundamentally the power to make decisions in fiscal questions: they could prescribe taxes (contributions) and spend money without any restriction, public finances and the private wealth (expenditures) of the ruler weren’t separated. Later the orders and the parliaments vindicated different rights to restrict the power of the monarchs: they could offer the taxes and since than the rulers couldn’t impose taxes without their contributions. These very important restrictions appeared in different fundamental laws (for example in the Magna Charta Libertatum in England). It was very essential that the expenditures should be controlled as well. The next huge step was accordint to that the acquisition of the right to make detailed prescriptions on the field of expenses. In constitutional democracies many legal resources regulate the field of budgets in modern states: different principles and detailed provisions prescribe the requirements of acquisition and the spending of funds. The current financial decisions appear in the annual detailed budgets which are accepted and their execution are controlled by the parliament on the base of publicity and transparency. This paper scrutinizes the development of the legal frames of the budgets.



Budget; budgetary law; expenditures; revenues; taxation; Hungary.


Judit Balogh: How to Make a Civil Code: Plans and Drafts of General Rules in 19th-century Hungarian Private Law

Civil law was traditionally divided into three parts by lawyers, in Hungary as well. The distinction was based on Roman law, creating the classical distinction of ‘personae – res – obligations.’ The 19th-century literature on pandect law theoretically proposed that the above mentioned division is not suitable for the classification of civil law regulations, and consequently a new, more accurate definition and “system” should be set up. Late-19th-century codification followed this new approach, so in the new codes substantive laws of inheritance gained space, and in some codes a substantial “general chapter” appeared as well. In 1866 the Hungarian parliament set up a codification committee which launched a sub-committee in order to establish the procedure of the codification work. Professor Pál Hoffmann was commissioned by the minister of justice to process the general chapter of the new code based on the statement of the above mentioned ministry department. Hoffmann was the first modern professor of Roman law in Hungary. His works mainly reflect the historic law school of Savigny and Puchta, which also defined his view on the general chapter. Hoffmann’s work received several criticism, which, as it has already been mentioned, generally praised it but also highlighted on the drawbacks in order to amend the draft. As a result the final version of the draft was accepted by professionals, which, naturally, was still to be amended, but as a “first draft” it could serve as a starting point for further modifications. The question of the general chapter re-emerged in 1873. The newly prepared general chapter undoubtedly matured on its predecessors deficiencies: Elek Győry left behind Hoffmann’s original approach and he created a thoroughly selected collection of norms, from the aspects of volume, effectiveness and also stylistics. The idea suggesting that a code requires a chapter which contains the basic principles relevant for the whole code, persisted until 1895, the third wave of the codification process, when the editing members of the permanent codification board unanimously voted down the necessity of the general chapter. Consequently, the draft of the civil code, which was finally finished in 1900, did not contain a general chapter. The procedure involving the general part can be listed among the few examples which justify that Hungarian legislation could choose its independent way, and it did not become the slave of the German rules. The Hungarian legislation has not felt a problem up to this day which should have been mended – either by adapting the pandect system.



Civil law; codification; Hungary; Pandektensystem; general rules; general part; late 19th century.


Adam Boóc: Comments on Some Important and Current Problems of the Law of Succession in Hungary – Considering Historical Aspects

The study provides an analysis of the most current issues of the law of succession in Hungary. The paper takes into consideration the regulation of the New Civil Code, also paying attention to the historical traditions of this part of the civil law in Hungary, referring to the roots in Roman law, too. The paper tries to identify and introduce the challenges, with which the law of succession is facing in the 21st century either in Hungary or in Europe. The author attempts to demonstrate the differences of the regulation between the former Civil Code (Act No. IV of 1959) and the new Civil Code (Act V of 2013). The essay pays attention to the economic factors of the law of succession, referring to the most important social phenomena of the recent decades. The study also analyses the most important findings of the case law in Hungary, as well.



Law of succession; last will; substitute succession; new Civil Code; historical aspects; Hungary.


Norbert Varga: The European Roots of Hungarian Regulation of the Cartels Special Attention to the Foundation of Cartel Supervisory Public Authorities

Society was fundamentally affected by the contemporary economic and political systems between the two world wars, and the law responded by regulating already existing, but not yet codified legal institutions. The result of the freedom of contract and association, the establishment of free trade was that members of economic life used every legal method available to take advantage of the current economic situation, and create corporations with the main purpose of limiting competition in order to optimise production and to increase prices and with it, profits. In this era, most European countries, including Hungary introduced cartel regulations. Hungarian regulations were mostly affected by Austrian and German cartel law edicts, and the main purpose of my essay is to provide a terse description of these.



Codification; First Word War; Austrian Koalitionsgesetz; German cartel decrees; Hungarian Cartel Act; Hungary.


Olga Lysenko: Ehe- und Familienrecht in der byzantinischen Ekloge (8. Jahrhundert) mit Blick auf römisches, orientalisches und Kirchenrecht

Eclogue of the 8th century is an important legacy of Byzantium law, whose innovative features not only shaped the law of Byzantium, but also had a significant impact on the evolution of law in other countries.  Adopted in the era of "iconoclasm" and "legal innovation", the Eclogue was influenced by an array of legal systems, including Church law - canons of Ecumenical Church ?ouncils, Rules of the Holy fathers of the Orthodox Church, etc. Family law and marriage norms occupy a special place in the Eclogue. The present article analyzes the main institutions of marriage and family law: betrothal, conclusion and dissolution of marriage, personal and property legal relations of spouses, legal relations of parents and children, etc. The article focuses on the factors that shaped these law inststitutions, while highlighting most relevant issues of the current scholarly debate on the topic.



History of Byzantine law; Eclogue; marriage and family law; Church law; Roman law; Church Councils.


Volodymyr Kyrychenko – Olena Sokalska: Western Penitentiary Tradition in the Kingdom of Poland

This historical and legal study deals with the experience of modernizing the prison system in the Kingdom of Poland in terms of Western penitentiary tradition. Despite the loss of statehood, the Kingdom of Poland managed to develop a modern, humanistic penitentiary concept based on the leading foreign ideas and the experience of prison reform, implemented it into life and became one of the best practical models for other countries. The authors tried to focus on the Polish prison reformers’ systematic approach in developing the prison reforms, on the interconnection of their contributions, which were based on the world’s most advanced practices. It is the complex discourse that made it possible to reconstruct and objectively evaluate these authors’ personal contribution. The authors identified the sources of selected penitentiary concepts, which allowed eliminating inaccuracies that had occurred in the modern historiography.



Kingdom of Poland; imprisonment; Julian Niemcewicz; Fryderyk Skarbek; house of correction; penitentiary concept; foreign experience; prison reform.


Tetiana Syroid – Oleksandr Havrylenko – Alona Shevchenko: Foundation for Criminal Law in Antique States of the North Black Sea

The arlicle reveals peculiarities of the foundation of criminal law in the antique states of the North Black Sea region, on the basis of monuments of law, narratives and other sources. It is emphasized that the basic elements of criminal law came to Chersonese, Olbia, Pantikapaeum and other polises mainly from the legal system of the Athenian state through the metropolises – Heraclea Pontic and Miletus. Attention is paid to the common features and features of the system of crimes and punishments in the North Black Sea polises and the Greek metropolis. The authors believe that the formation and strengthening of the foundations of ancient criminal law was accompanied by the parallel development of its philosophical and attitudinal reasoning. It is concluded that already in the second half of the 1st millennium BC the North Black Sea polises had a complex and extensive system of notions of crime and punishment. Attention is drawn to the fact that the concepts of “crime” and “offense” were not distinguished in legal opinion at that time. Punishments in the North Black Sea city-states were understood as measures of state coercion against the offender, which were the result of the offense. The purpose of punishment was the desire to exclude in advance the commission of acts undesirable for the state and citizens. Thus, the understanding of crime, the system of crime and punishment in the North Black Sea polises largely coincided with those existing in other Hellenic states, although there were some differences due to local specificity.



Antiquity; polis; criminal law; crime; adikiya; official crime; crime against religion; punishment; atimiya; exclusion.


Keltis Kruja – Engjëll Likmeta: Historical and Legal Aspects of Heritage Law in Albania

Through this paper, the authors go through a historical overview of the heritage institute in Albania. From the customary law, to the provisions in force of the current Civil Code, heritage has had different treatments by Albanian society. How this institute has evolved from a region to another, from one system to another, will be the focus of the authors in this study. It also aims to remind the importance of this institute, which according to the rules applicable at different time periods, has brought its economic consequences even today to the Albanian real estate.



Heritage; civil law; customary law; Albania.


Markus Hirte: Von der Folterkammer zum Rechtskundemuseum – Die Geschichte des Mittelalterlichen Kriminalmuseums in Rothenburg

The following article highlights various facets of the Medieval Crime Museum, which is located in the heart of the middle franconian town of Rothenburg ob der Tauber. In addition to a deep insight into the museum’s history, which goes back to the end of the 19th century, the reader is given additional insights into the structure and functioning (operation) of the museum. So it is explained, how the permanent exhibition was redesigned after the turn of the century and also the important role of constantly changing special exhibitions for cost coverage. Furthermore, various new cultural mediation formats are shown, that enable the museum to compete in the leisure and wide-education offering. Finally, the article shows, which areas of tourism are covered by the Medieval Crime Museum and how these are reconciled in order to meet the wide-ranging clientele of visitors. As a tourist destination, the museum covers two fields of tourism: history tourism on the one hand and thanatourism on the other, whereby the focus is not on the “horror factor” but rather a balance between entertainment and education.



Legal history; history of the museum; criminal trail; criminal law; sentence; Middle Ages; early modern period; exhibition;  historic tourism; thanatourism; family attraction; museum as a hoard of knowledge; education; symposium; academic teaching; entertainment; broad visitor clientele.



Kerstin Rupp: Sozialer Wandel und soziale Stellung in Chinua Achebes Things Fall Apart sowie Kazuo Ishiguros Remains of the Day – Teil I.

The following text deals with the topic social change and social standing in the novels Things Fall Apart from Chinua Achebe and The Remains of the Day from Kazuo Ishiguro. Both authors describe the change in parts of the Nigerian rather English society within a range of three generations. Achebe concentrates on a period between the middle of the 19th up to the beginning of the 20th century. He concentrates on the ethnic group of the Ibo. Considering exogenous factors like colonialism and missionary efforts as well as endogenous factors he describes the fundamental changes within the tribal society. Ishiguro`s novel, beginning at the end of the Victorian Age, observes the changes in the English class system through the eyes of a loyal butler. Two world wars accompanied by radical social change result in big, formerly inconceivable, changes in social hierarchy.



Chinua Achebe; Things Fall Apart; Tribal Society; Nigeria; Colonialism; Imperialism; Missionaries; Ibo; Kazuo Ishiguro; The Remains of the Day; Social Change; Social Position; Status; Hierarchy; England; Class System; Diary; Upper Class; Middle Class; Lower Class; Butler; First World War; Second World War.






Tommaso Beggio, Aleksander Grebieniow (Hrsg.): Methodenfragen der Romanistik im Wandel. Paul Koschakers Vermächtnis 80 Jahre nach seiner Krisenschrift 


Tamás Antal: The History of the Royal Appeal Court of Szeged between 1890 and 1950 


Anna-Bettina Kaiser: Ausnahmeverfassungsrecht 


Ulrich Loewenheim, Matthias Leistner, Ansgar Ohly (Hrsg.): Urheberrecht. Kommentar 


Martin Avenarius, Christian Baldus, Francesca Lamberti, Mario Varvaro (Hrsg.): Gradenwitz, Riccobono und die Entwicklung der Interpolationkritik 


Sebastian Stepan: Scaevola noster







The Research of Hungarian Cartel Supervision (Norbert Varga)  


50 Years of Právněhistorické studie (Kamila Stloukalová)  


Reflections on the Genesis of the Moravian Vineyard Rules (Jiří L. Bílý)



Contents download here:



ARCHIV - Vol. 11 / 2020 No. 1



Christian Neschwara: „Zurück in die Zukunft“: Österreichs staatsrechtliche Zeitreise im Jahr 1945“

In the course of 1945 a striking change of the constitutional status happened in Austria: At Easter, when the Red Army was crossing the border in the southeast of Austria, the way was paved for terminating the national-socialist rule, which was in effect since the „Anschluß“ in March 1938. Austria, now renamed „Ostmark“, perished as a subject of international law, it was totally integrated in the organisation of German Empire. In 1940 the historical structure of Austria’s Länder was completely modified with the establishment of „Reichsgaue“, following the pattern of the territorial structure of the NSDAP. Due to the Declaration of the Allied powers in autumn 1943 at Moscow about the re-establishment of Austria’s sovereignty the way was paved for an independent state authority in her eastern Länder - with personal benevolence from Stalin. On behalf of the Soviet occupation forces the formation of a Provisional State Government took place, consisting of members delegated by the new antifascist political parties under the leadership of Karl Renner; he served as State Chancellor. Citing the Moscow Declaration, they ordered to set up Austria „in the spirit of the Constitution of 1920“. Lacking democratically legitimated organs a Provisional Constitution had to take the place of the Federal-Constitutional Law of 1920. At first Austria was built up as a decentralized unitary state. Following the occupation of the western national territory of Austria by the western Allied forces until summer of 1945, in the course of Länder-conferences in September the agreement of the political parties in western Austria was reached about the legislative activities taken by the Provisional State Government at Vienna. Due to the recognition by the Allied Committee in October 1945 the Provisional State Government was able to organize general elections in next month. After appointment of all organs provided by the Federal-Constitutional Law the Provisional Constitution was abrogated in December 1945; this did not meet the approval of the Allied Council, due to his demand to draft up a new constitution. The constitutional change was accompanied by an abruptly renunciation of Austrian citizens from the former self-image based on the idea of 1918 about belonging to the German nation, which was replaced by a growing attention to a new awareness about Austria as their nation.



Allied Committee in Austria; Allied Control in Austria; Allied Declaration on Austria 1943; Austrian Federal Constitution of 1920; Austrian Provisional Constitution of 1945; Declaration on Austrian Sovereignty; Denazification; Moscow Conference 1943; State Symbols; Transfer of Constitutional Law.


Andrew Watson: Changes in American Court Advocacy during the Long Nineteenth Century: Classical Influences, their Decline, Similarities and Comparisons with England and Wales

Important alterations in the style and content of court advocacy occurred throughout the common law world in the Nineteenth Century. This article turns to the United States, where a sea change in advocacy took place, and to similarities and differences with England and Wales. Matters considered include: influences of Greek and Roman classics and rhetoric in late Eighteenth Century and first half of the Nineteenth Century America and their decline thereafter; key changes in evidence and procedure; discussion whether advocates should be allowed to express belief in the causes of their clients and later adoption of professional rules forbidding the practice; granting accused persons the right to give evidence on oath; the presence of expert witnesses in court; the introduction of plea bargaining procedure and the origins of bench trials.



Court Advocacy; Changes; Nineteenth Century; America, England; Comparisons.


Brenno Bianchi: The Courage of Beccaria: the Disruption of “On Crimes and Punishments” in the Climate of the “Son-of-Fear’s Law” in Bellum Exulum

The Fear of trial was a tried and tested tool of the legal systems of the old regime: a fearful response to the fear that pervaded society. In this context, Beccaria found the courage to go against the common thought of its time denying the goodness of the death penalty as an element of criminal justice. The philosophers of the time such as Voltaire and Kant, and even jurists such as Facchinei, Vergani and Giudici from Milan or as the Neapolitan Gaetano Majo (1757-1817) were all in favor of the death penalty. Starting from Majo, I followed the Neapolitan path to illustrate how fear was considered a necessary element in a literal war on brigandage and how, from the sixteenth century onwards, “increasingly terrible” measures were taken against highwaymen, until was decided to adopt against them the modules of the trial ad modum belli. It was then born a centuries-long spiral of a Law that might be seen as a fear’s son, which facing the increase of crimes made the punishments even more terrible, but thus increasing the very crime that was wanted to fight: in a vicious circle to which Beccaria found the courage in opposing.



Beccaria; On Crimes and Punishments; fear; death penalty; XVIII Century; XVII Century; Kingdom of Naples; bellum exulum; highwayman; ad modum belli; bandit; law son of fear.


Javier Belda Iniesta: “Una cum capite suo”: the Relations between the Pope and the Council from the 4th to the 9th Century

During the centuries of the ius antiquum, the history of the ecumenical council and the establishment of the criteria of ecumenicity intertwines with the relational dynamics that connect the bishop of Rome, the conciliar institution and the emperor. This research work seeks to highlight the important moments that have determined the establishment of the role of the pope in the Ecumenical Council: that is, it seeks to find the most ancient roots of the expression: “una cum capite suo, et numquam sine hoc capite” which is still present in the Code of Canon Law in force (can. 336).



ius antiquum; council; ecumenical council; Petrine primacy; holy rule.


Adolfo A. Díaz-Bautista Cremades: Personal Injury Claims

In Roman Law, both offense and malicious aggression were considered iniuria. The legal consequence of the iniuriae in the XII Tables was a fixed fine, but over time, a variable fine was established whose determination corresponded to the victim, who received the amount as a „compensation“ for the offense suffered. In the High Middle Ages, the penalty of fixed fine was recovered, combined with other corporal punishment, but in the VII Partidas, compensation is reintroduced by a variable amount. On the other hand, in England the punitive damages system was developed for aggressions contrary to honor and dignity. In this paper, we explore the relationship between both institutions.



iniuria; damages; tort law; punitive damages; injuries; Roman law; medieval law.


Dmitry Poldnikov: The Formalistic Pattern of Soviet Civil Codification as a Chapter in European Legal History

Many European and even some Russian academics consider Russian legal history to be a series of ruptures. There is some truth to this, and yet the law in east of Eastern Europe is not devoid of continuities which link it with European legal trajectories. This paper examines the pattern of the codification of civil law as one of those links. Russian experience with drafting civil codes goes back to the ‘age of codifications’ and culminates with the ‘normal’ draft Civil Code of the Russian Empire of 1882–1913. After the Bolshevik revolution of 1917, Soviet civil legislation claimed to break away from all continuity with the bourgeois legacy, domestic and foreign. However, even the codification of ‘real socialism’ in the early 1960 s reveals notable similarities with the ‘bourgeois’ legal experience. The theoretical concept of the Civil Code of 1964 overlapped with the modern notion of the code during the ‘age of codification’. This similarity was backed up by the positivistic legal scholarship that conceptualized Soviet law as a hierarchical and gapless system of binding norms. This part of the Soviet legal legacy still marks the Russian Civil Code of 1994-2006. Hence, the formalistic pattern of codification remains one of the Soviet relics in contemporary Russian legal style and allows a comparison with other civil law jurisdictions in Europe.



codification; Soviet law; civil code; legal formalism; legal style.


Konstantin P. Krakovskiy: Jeremy Bentham and the Judicial Reform of 1864 in Russia

The article deals with the influence of the ideas of J. Bentham, set out in his treatise „On the judiciary“, on the authors of the judicial reform of 1864 in Russia. The author divides the ideas and suggestions of Jeremy Bentham, concerning the court, into three groups: rejected by the reformers, partially accepted, and those, which were enshrined in the Judicial Statutes of 1864. The first group included the ideas of a single court, the replacement of judges and the election of all judges by the people, of a jury in civil cases. The ideas of the great English philosopher of law, partially adopted by the „fathers of judicial reform of 1864“, include, in particular, the idea of creating a mechanism for the removal of negligent judges. The ideas of J. Bentham, which found their place in the text of the Judicial Statutes of 1864, - the creation of the institution of jury, trial lawyers, ensuring high salaries of judges, publicity of the proceedings, the establishment of the optimal contingent of judges, etc. The author notes, that the debate over the ideas of Bentham continued after the Judicial Statutes were created and became the law. This historiographical phenomenon once again reveals the relevance of the ideas of the great English philosopher of law about court and legal proceedings for the Russian post-reform reality. And for the modern Russian court, which is in a state of sluggish judicial reform since the early 90-ies of the last century, a number of ideas of Bentham have not lost its importance. The author emphasizes, that despite the paradox of some of the Bentham’s ideas about court, the great English philosopher of law was concerned about the high idea: to create a project of a fair trial, credible to the people.



judicial reform; judicial systém; independence of the court; election of judges; jury; publicity of proceedings; criminal and civil proceedings; political trial.


Vasil Gorbachov: On the Impartiality of the Prosecutor in the Courts of the Russian Empire (Normative Regulation and Practice of Implementation)

The article deals with theory, normative regulation and practice of implementing the principle of impartiality when supporting prosecution by the Prosecutor’s office in the courts of the Russian Empire after the judicial and military-judicial reforms of 1864 and 1867. The Prosecutor’s office was organized on the principle of subordination of lower-level prosecutors to higher-level ones. However, this principle did not apply during the trial in which the Prosecutor enjoyed procedural independence, which created conditions for an objective assessment by the prosecutor of the evidence available in the case. The author analyzes the grounds, practice and consequences of prosecutors’ refusals from the prosecution, as well as the attitude of the Prosecutor’s superiors to them. Also shown are violations of the prosecutor’s impartiality principle in court.



judicial reform; prosecutor’s office; indictment; accusation; impartiality; accusatory bias; evidence; accusatory speech; refusal of accusation.


Georg W. Oesterdiekhoff: Divergent Worlds of Political Consciousness and Behavior in Contemporary Societies. The Contribution of the Cognitive-developmental Approach to the Foundation of the Political Sciences

Pre-modern and modern societies manifest different forms of political behavior and conduct. Pre-modern societies prefer authoritarian regimes, and exhibit more violence, power abuse, etc., and do not establish rule of law, democracy, liberty rights, and civil society. Modern societies, however, continuously established democratic structures and the rule of law. More, the political behavior of politicians specifically and humans generally have been becoming more civilized and rational, humane and pacific, moderate and empathic during the long process of modernization. It will be shown here that this civilization process of political behavior has been taking place on a global scale. However, the nations advance also regarding political behavior and customs on different speeds. Today’s developing nations partially manifest strange forms of political behavior that wouldn’t be even possible in the today’s most advanced nations. It is argued that political sciences by today have no eyes for these differences, and more, no scientific tools to address and to explain them. But they shape or make the bulk of politics both on the national and international level. The cognitive-developmental approach is worked out as the general theory of the political sciences that is able to illuminate these foundations of political life for the first time.



political behavior; rule of law; democracy; human rights; developing nations; advanced nations; psychological stages.


Tomasz Chłopecki: The Petroleum Law in Poland in the 19th and 20th Centuries

The article „Petroleum law in Poland in the 19th and 20th centuries” presents the development of petroleum legislation during the partitions and the Second Polish Republic. The concepts of legal solutions presented in the article allow for stating that the subject of petroleum law and its institutions aroused great interest of lawyers and politicians both in the period of partitions and after Poland regained its independence. Undoubtedly, the provisions of the petroleum law had an influence on the development of solutions of the Polish economy and economic law.



law; mining law; oil law; Poland; Second Republic; concepts; codification.


Piotr Z. Pomianowski: Legal Status of Women in Codes Binding in Central Polish Lands in the Early Nineteenth Century

The article describes the position of women pursuant to the codes adopted in the territories of contemporary Poland at the beginning of the nineteenth century (Allgemeines Landrecht für die Königlich Preussischen Staaten, Code civil des Français, Allgemeines Bürgerliches Gesetzbuch). According to all three codes wives were subordinate to their husbands, but there were many differences in specific matters. The husband usually administered common marriage property, or in case of separate property regime, he had a significant influence on his wife’s property. In all the analysed codes, parental authority was exercised mainly by the father, although children had to obey their mother, too. The relations between the spouses could be fundamentally changed by prenuptial agreements. Moreover, the legal practice changed the letter of law many times and in numerous cases it differed between the territories where the same code was in force (e.g. France and the Congress Kingdom of Poland – in both countries the Napoleonic Code was in force). Thus, time-consuming research on sources like notarial deed, as well as court records should precede a complex analysis covering the application practice of all three codes on the Polish lands.



legal status of women; Napoleonic Code; Landrecht of 1794; ABGB; Poland.


Piotr Michalik: Consent to a Jewish Marriage in Legislation of the Free City of Cracow (1815 – 1846)

The aim of this paper is to present an analysis of the legislation of the Free City of Cracow (1815-1846) concerning an institution of a consent to a Jewish marriage. From the analysis it occurs that the so-called emancipation of Jews, introduced in Cracow with the enlightened reform of Austrian rulers after the third partition of Poland in 1795, was continued under the autonomous government of the Free City. The process was significantly supported in 1810 by the introduction of the Napoleonic Code in Cracow, then a part of the Duchy of Warsaw. The implementation of civil marriage and civil registry required by the Code was also conducted against the Jews, which was underlined in the Statute of organizing Orthodox Jews of 1817. Due to the resistance of the most of the Jewish community, the act of 1821 made performing an exclusively religious marriage a crime, and legitimization of illegitimate children born of such a marriage inadmissible. However, these and other strict measures introduced by the subsequent acts of 1838 and 1844 did not fulfil their aim up to the end of the existence of the Free City in 1846.



Jewish marriage; consent to marriage; legislation of the Free City of Cracow; legal status of Jews; Poland.


Konrad Graczyk: Die (beschleunigte) Evakuierung des Sondergerichts Kattowitz im Jahre 1945

The text tackles the issue of evacuation of the Special Court in Katowice carried out in 1945 before the advancing Soviet troops. It discusses the regulations adopted on the central level drawn up in the ministry of justice of the Reich regarding procedures to be followed by judicial authorities in the face of the oncoming enemy and moves on to their enforcement by judicial authorities in the Katowice administrative district, with particular focus on the special court. In practice, contrary to the ministerial guidelines, case files were neither evacuated not destroyed, which enables the use of court rulings in the research.



evacuation; special court; Upper Silesia; Sondergericht Kattowitz; judicial branch; files; Poland.


Karol Siemaszko: Perpetrators and Victims. Sex Crime on the Territory of Middle Odra Region in the Early Years after the World War II.

The author presents and analyses rulings of the Regional Court in Zielona Góra in years 1945-1948, which refer to sex crimes, paedophilia and rapes. The author primarily focuses on victims and perpetrators, mentioning their age, social background, paying attention to motives of their actions. He also pinpoints that sex crime was one of signs of post-war demoralization during the period after the end of the World War II. He also emphasizes that sexual crime was difficult to detect in the period of post-war reconstruction of state.



paedophilia; rape; post-war period; so called Recovered Territories; victims of sex crime; Poland.


Magdalena Pyter: A Centenary of Legal Education at the University of Lublin. The Early-Stage Challenges

Catholic University of Lublin (until 1928 named University of Lublin) is the oldest university in Lublin and one of the oldest Polish universities. It was established in 1918, at a time of huge significance to the Polish statehood. It was then, after 123 years of captivity, that Poland regained its independence. The founder of the university, Father Idzi Radziszewski, assumed that the new academic centre would educate lawyers alongside the specialists in theology, humanities and church studies. Therefore, the moment when the university was established was also when the Faculty of Law and Socio-economic Sciences came into being. Despite the enormous enthusiasm that accompanied the establishment of the university, its various faculties, and the emerging opportunities to educate law students, severe difficulties were looming over the new legal faculty. The most acute of these difficulties were the lack of professorial staff and the lack of authorization to award law degrees and diplomas. If it were not for the appropriate actions taken by the University and Faculty authorities, these problems could have led to the rapid shutdown of the Faculty. In the former case, the professors of other Polish universities were asked to assist the didactic endeavours of the Lublin Faculty of Law through temporary or full-time employment at the Catholic University of Lublin. A positive response came from various academic centres, among which the Faculty of Law and Political Sciences of the Jan Kazimierz University in Lviv deserves special recognition. It were the Lviv professors in particular who commuted to Lublin to work at the Faculty of Law, and in many cases also performed diverse administrative functions. The latter problem was also solved with the help of the Lviv University. When the graduates of the Lublin Faculty of Law were not able to obtain their graduation diplomas locally, these were issued by the Lviv Faculty of Law. As a result, during the first few years of the academic activity in Lublin, the students educated at the Catholic University of Lublin earned a diploma from the University of Lviv. It was a solution that led to certain organisational complications, yet it was the only feasible option in the circumstances when the state authorities constantly delayed granting KUL full rights to confer academic degrees. Naturally, the outbreak of World War II was another challenge for the existence of the University and the Faculty. After twenty years of its early-stage organizational effort and activity, the University of Lublin had to suspend its operation for a few years, to finally resume its life it in more advantageous times. To this day, the Catholic University of Lublin has been functioning and developing dynamically, and the problems that occurred several decades ago contributed to its development. This difficult history paved the way for the university and the Faculty of Law to function and thrive for over a hundred years.



KUL; Faculty of Law and Socio-economic Sciences; examination board; teaching staff; legal science; Lublin; Poland.


Judit Balogh: Debates in Articles (Positions in the Legal Literature on the Possibilities of Private Law Codification, 1866-1900)

Hungarian private law codification proceeded very slowly and with difficulties also by European comparison. The work of codification in Hungary started in the second third of the 19th century. Slowly, but steadily, in the professional articles of the legal journals started to outline the Hungarian opportunity for private law codification, followed by discussions of the possible directions, purposes, methods, successes and effects of the same. In the ‘reception versus codification’ debate, it was eventually the notion of creating an independent code that prevailed, work on which finally commenced in 1876. The process of codification in Hungary was determined (unfortunately) by the attitudes of the ministers of justice, following each other in quick succession, towards private law and the notion of codification. The issue of the general part was raised and became accepted on the basis of the German model. The notion, however, that a code of law would require a part containing the basic principles that would be applicable to the entire code would not take roots in Hungarian legal thinking. The journal Jogtudományi Közlöny, in its first few decades, was a specialized journal dedicated to the issue of legal development, featuring a wide range of opinions and not classifiable as belonging to a single school. It provided an overview of the efforts of the age, the most results of legislation, as well as the wide range of professional debates, in which professors and scholars of law, as well as legal practitioners also participated with the intention of facilitating the creation of the Hungarian code of private law.



civil law; codification; reception; consuetudinary law, civil code; legal journals; Hungary; general part; ABGB; BGB; Jogtudományi Közlöny; late 19th century.


István László Gál: The Relationship between Economic Crises and Criminality from the 18th Century to Today

Looking for a correlation between economic indicators and crime is not a recent research topic. This essay examines the relationship between the economic crisis and the criminality from the 18th century to nowadays, and the role of the economic criminal law fighting and managing economic crisis. Economic criminal law is a behavioural control tool. It is suitable for directing the actions of economic operators in a certain direction expected by the society. However, this role can only be fulfilled if the majority of people either voluntarily comply with the prescribed rules or, out of fear of being sanctioned, do not exceed the limits set by the criminal law. Economic criminal law loses its role as a behavioural regulator if it is not respected by the majority.



economic crisis; criminality; criminal law; crime; conjuncture; cycle; market economy; crime trends; crime rate.


Csaba Cservák, György Tamás Farkas: Development of the Nationality Law in Hungary

This present study endeavours to offer a comprehensive overview of minorities and minority-related legislation in both the historical Kingdom of Hungary, as well as the current republic, a member state of the European Union. The first half of the essay is dedicated to historical matters in its entirety, for it is necessary to have a clear knowledge of the spring before we can understand the flow of a river. Likewise, the second section presents the reader with a detailed analysis of current-day regulations and their immediate ramifications.



Hungary; Croatia; legal history; ethnic minorities; personal rights; collective rights; autonomy; new Fundamental Law of Hungary; self-governments; parliamentary representation.


János Erdődy: SC Claudianum: a Positive Feedback on Property or Defence of Family Bonds?

SC Claudianum decreed that any free woman, Roman or Latin, pursue relationship with the slave of another, and she fails to abandon the relationship after the denouncement of the slave’s master, will become the slave of the master denouncing her deed. In this paper we are aiming to discover the actual content of this decree of the Senate, as well as trying to determine whether the goal of the decree was to defend or even promote social morals, or to defend sexual morality, or even to give protection to certain interests and authorities of the parties involved.



Roman law; Senatusconsultum; SC Claudianum; Emperor Claudius; Emperor Vespasian; Gaius; Paulus; Tacitus; Suetonius; status; slavery; slave; citizenship; Roman citizen; Roman woman; slave.


Ihor Lohvynenko, Igor Nevzorov, Gennadii Dedurin: Formation of the Constitutional and Legal Status of National Minorities in the Second Polish Republic

The study of the features formation of the constitutional legal status of national minorities in interwar Poland was identified as the scientific goal of the article. To achieve this goal the author team used a number of methods where the basic are historical, dialectical and comparative legal methods. The application of these methods was complex. This made it possible to fully reflect the formation peculiarities of the constitutional and legal status of national minorities in interwar Poland. The main law documents that influenced this process were also analyzed: the Little Treaty of Versailles, the relevant provisions of the Polish Constitutions of 1921 and 1935, as well as the Treaty of Riga. The main shortcomings and contradictions of these documents were identified as they did not allow creating an effective state-legal mechanism for protecting the rights of national minorities in Poland. In particular the authors came to the conclusion that since the late 1920 s authoritarian tendencies prevailed in the leadership of the Polish state and no one hid the unwillingness to respect the provisions of the Little Treaty of Versailles. It was found that in practice certain gaps in the formation of the constitutional legal status caused among the other things by the imperfection of international agreements in the field of protecting the rights of national minorities. This allowed both the central and local Polish authorities to ignore the democratic principles on which the Constitution of 1921 and other basic legislative acts of the country were based. Undoubtedly a study of the origins of the constitutional legal status of national minorities in interwar Poland is synthesizing for the development of Polish and Ukrainian legal cultures. It will objectively contribute to the rule of law in modern Ukraine which must learn from the mistakes and draw the right conclusions from the shortcomings of national policy in the Second Polish Republic.



national minorities; Poland; the Little Treaty of Versailles; constitutional rights; the Treaty of Riga.


Bashkim Rrahmani: Kosovo Judicial Position from the Second World War until 1974

This work aims at retracing, explaining and analyzing the Kosovo legal-political status within the constitutional system of former Yugoslavia. Reading, review and analysis of Yugoslav Constitutions, Serbian Constitutions and Kosovo Constitutions adopted from 1946 to 1974 by Federal Parliament, by the Parliament of Serbia and by the Kosovo Parliament. Kosovo as an entity starts with a dual position within Yugoslavian constitutional system, by being a federal unit in one side and the part of constitutional system of Serbia on the other side (first Yugoslav Constitution); Kosovo status has no dual position by being only the part of Constitutional system of Serbia (second federal constitution) and Kosovo becomes equal to other federal units of Yugoslavia (third Constitution). Kosovo entered into the constitutional system of Yugoslavia, since the Resolution of Bujani Conference (held on December 1943-January 1944) adopted by Kosovo representatives was not implemented. That Resolution aimed realization of the right of Kosovo people for self determination after the war. This was not made possible based on the created circumstances; based on the military curfew deployed by Yugoslav/Serb authorities and based in some other geo-political reasons. Foundations of People’s Federative Republic of Yugoslavia (later on The Socialist Federative Republic of Yugoslavia) were established in 1943 during the Second Conference of the National Committee for Liberation of Yugoslavia held in Jajce (November 1943), where Kosovo was not represented. Kosovo status within Yugoslavia changed few times but it never fulfilled completely Kosovo people’s will. Changes in the legal political status of Kosovo within Yugoslavia came based on the reports of forces and political circumstances at all levels which had always two tendencies: tendencies for more democracy, freedoms and economic development in one side and tendencies for more hegemony and supremacy over the others held mainly from Serbia. These tendencies finally lead towards the process of



Kosovo; constitution; status; Yugoslavia; amendment.


Jiří Bílý: The Human Rights, Canonic Law and the Impact of Religion from the Perspective of Vatican II

Vatican II wanted to achieve its human rights updating objective. With this in mind, the article addresses three issues. The first concerns political democracy and the separation of the Church and the State as two conditions for the development of human rights. On this point, GS developed a compromise by starting, on one side, by affirming the divine foundation of the state, and on the other, by leaving the choice of political structure and the election of the rulers to the free will of the citizens. The second question concerns the right to religious freedom. It is the right to freedom to change religion or to have no religion. What is missing in DH, while present in the Universal Declaration of Human Rights, drafted in 1948 by the United Nations, is the right to freedom to change religion or not to have religion. This absence is probably due to the fact that the second part of DH deals with an act of faith (actus fidei) as a search for the truth - the truth of God that underlies religion - and does not present religion from public reason. The third issue is the question of human rights in the Church. It must be made clear that the fundamental rights enjoyed by ordinary members of the Church, according to the Code of Canon Law, inspired by GS, do not deserve this name. In the context of human rights laws, they are based on the irreducible values of human dignity, freedom and justice. Nevertheless, the canons of the Canon Law Code limit these rights by asserting that their application must contribute to the common good, and adding that it is ecclesiastical authority that is competent to interpret the common good, and, therefore, to regulate these rights.



human rights; religious liberty; theology; church; state; lumen gentium; dignitatis humanae; gaudium et spes; Codex iuris canonici; United Nations.


David Parra Gómez: The Failure of the Weimar Constitution: Institutional Keys and Lessons to be Drawn

The Weimar Constitution is a milestone in the history of constitutionalism, being the founding document of a new historical type of constitution that came to replace the liberal constitution of the nineteenth century: the democratic and social constitution, which has been acting as a model to imitate in the “second moment” of democratic constitutionalism, identified with the values and principles of the Social State of Law. It was not, therefore, the text, but the economic, social and political context of the Weimar Republic that determined its tragic fate. However, it is no less true that certain institutions and constitutional structures contributed significantly to its inability to exercise an effective integrative function and to consolidate a democratic republic in Germany.



Weimar Republic; Germany; constitution; constitutional framework.





Hans Petter Graver: Der Krieg der Richter. Die deutsche Besatzung 1940-1945 und der norwegische Rechtsstaat


Christian Baldus, Wojciech Dajczak (Hrsg.): Der allgemeine Teil des Privatrechts: Historische Wurzeln – Leistungsfähigkeit im 21. Jahrhundert


Reidar Maliks, Johan Karlsson Schaffer (eds.): Moral and Political Conceptions of Human Rights: Implications for Theory and Practice

Vitalii Voropanov: Sud i pravosudie v provincii Rossiiskoi imperii vo vtoroi polovine XVIII v.


Mona Hasenritter: Wilhelm Theodor Kraut (1800-1873), Ein Leben für die Lehre


Wilhelm Güde: Max Güde (1902 – 1984), ein Juristenleben im 20. Jahrhundert


Hans Hugo Klein: Vor- und Entstehungsgeschichte des Bundesverfassungsgerichts


Detlev Fischer: Maklerrecht


Christoph Sorge: Verpflichtungsfreier Vertrag als schuldrechtlicher Rechtsgrund. Das Rechtsgeschäft der condictio ob rem gemäß § 812 Abs. 1 S. 1 Alt. 2 BGB jenseits von Erfüllungszwang und Markttausch






Richter am Bundesgerichtshof a.D. Dr. Detlev Fischer erhält Verdienstkreuz am Bande des Verdienstordens der Bundesrepublik Deutschland



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ARCHIV - Vol. 10 / 2019 No. 2



Jaromír Tauchen: Die Arbeitsverwaltung im Protektorat Böhmen und Mähren (1939–1945)

System of forced and directed labour was characteristic for protectorate labour law. In order for this system to work effectively, it was necessary to create some required effective managing and controlling mechanisms. Of major importance was a newly created system of employment offices and their subsidiaries which was directed by the Ministry of Social and Health Administration, later by the Ministry of Economy and Labour.

Employment offices constituted one of the most important and key instruments in the process of performing directed and forced labour. During World War II, their tasks and authority gradually grew and at the end of the war they applied basically to all areas related to work performance. Although the employment offices belonged to the so-called autonomous (Czech) administration, their leading positions were taken by German officers which had a considerable influence on their actual activity.

The Ministry of Social and Health Administration (later Ministry of Economy and Labour) represented an institution where legal regulations for the labour law area were made. Since 1942, mostly German officers were in charge of this area amongst whom can be named primarily Dr. Walter Bertsch and Dr. Wilhelm Dennler. German office workers transferred here from the Office of Reich Protector, thus they directly contributed to creating drafts of legislation. 



Protectorate of Bohemia and Moravia; Labour Law, Labour, Forced Deployment, Employment Offices, Ministry of Social and Health Administration, Ministry of Economy and Labour, Wilhelm Dennler, Walter Bertsch.


Arian Petoft, Mahmoud Abbasi: A Historical Overview of Law and Neuroscience: From the Emergence of Medico-Legal Discourses to Developed Neurolaw

Nowadays, law is led to a widespread connection with neuroscience. Neurolaw as an interdisciplinary field of study has emerged in the post-modern era of law and neuroscience. However, it clearly has roots that directly trace back to several discourses have traditionally upheaved from the field of medico-legal approaches in the 19th century (the classic era), or the EEG and psychosurgery era in the 20th century (the modern era). This paper strives to put these three periods under scrutiny in order to display a relatively clear image of developed neurolaw background. In this paper it was found that the classic era was the platform for multidimensional medico-legal discourses to provide the ground for the brain evidence-based analysis of legal phenomena in the modern era and bring neurolaw into being as a consequence, which is increasingly encompassing litigations, legislations, and legal thoughts by employing the modern neuroscience findings. By scrutinizing these distinct historical periods, it became clear that medico-legal discourses took their path to the realm of neurolaw as a distinct field of study to transmogrify the practical and theoretical context of law by transition of the perspective from a pure legal to a specialized neurolaw approach.



EEG; FMRI; Neurolaw; Neuroscience evidence; Medico-legal discourse; The post-modern law.


Simone Rosati: Individual Ownership and Collective Ownership in the Nineteenth-Century Debate before the Sacred Economic Congregation

This work aims at retracing the origin and the characteristics of the debate on ownership in the Papal States during the 19th century. Such reconstruction will be possible thanks to the documents presented to the Sacred Economic Congregation. The latter, during the first two decades of the 19th century, received the papal mandate to discuss a draft law in order to eliminate all the obstacles opposed to the diffusion of the free and absolute private ownership. The notice related to a Law on ownership favoured the birth of an intense debate that created a division between the papal authorities, on the one hand, and the local communities, on the other hand. As we will see throughout the research, the two sides of the conflict protected two different models of ownership that, in turn, were expressions of two legal mentalities on the forms of appropriation: the individual one, typical of the modern world, and the collective one, an expression of the medieval civilisation. 



Sacred Economic Congregation; 19th century; private ownership; collective ownership; Papal States.


Javier Belda Iniesta: The Pre-Constantine Conciliar Season

The origins of the ecclesiastical institution of the synod are to be sought already in the first centuries of life of the Church, when, in the sometimes difficult environment of the imperial society, the sharing of the solutions to the problems that affected various neighbouring communities raised a sense of belonging to a universal reality, which transcended the individual particular Churches. It is no coincidence that the first problems dealt with by the most ancient synods and that we know of concern the worship of God, the liturgy, sublime expression of the religious belonging. Successively, the ancient Christian communities had to deal with the issue of defining the contents of faith, precisely when they were protecting them from the heterodox doctrines. In this manner, the supra-community decision-making body starts to assume also the role of tribunal, to which some types of cases were reserved.



pre-Constantine era; synod; council; unanimitas; canonical process.


Georgios Tzeferakos, Marina Skourteli, Alexandra Palli, Athanassios Douzenis: The Origins of Homicide Legislation in Ancient Greece

The term ancient Greek law refers to the legal systems that were valid in Greek areas between 1200-300 B.C., from the Dorian invasion until the Hellenistic era. During this period, the organization of Greek cities thrived and Laws began to develop. Formal recording of the Laws is considered as the apex of city-state organization since written law constitutes a fundamental element in the formation of a state entity. The most important changes during the aforementioned period were the transition from an unwritten theocratic, ‘sacred’ law to the recording of laws derived from peoples’ legislative power, the extension of judicial power beyond the political and religious elites to wider social strata and the replacement of the principle of tautopathia (direct and equivalent revenge) with the principles of eterodikia (a third party issuing the final decision regarding a dispute) and timisis (taking into consideration subjective and objective parameters in the criminal act and of the perpetrator). Although it is unclear whether the administration of justice during ancient Greek times derived from a multitude or a single unified legal system, it has nevertheless marked a significant, democratic shift towards the conceptualization, foundation and evolution of modern moral, ethical and judicial systems.



Homicide; Legislation; Ancient Greece; Solon; Draco.


István Szászdi: The “Protector de Indios” in Early Modern Age America

After the Discovery of America, the legal Rights of the native Indians were in issue in the Kingdom of Castile.  In the universities of Salamanca and Valladolid, as in its most important colleges the obligations of the Spanish Crown with the defendless Indians was discussed, meanwhile their survival was in task. The Dominican friar Bartolomé de las Casas was the first Protector de Indios appointed by the Spanish Crown to spare the natives from the violence of the conquistadors. Almost five hundred years ago, while Spain´s deadly enemies developed the Black Legend related with the Spanish conquest of the New World, Spanish Colonial Justice introduced a medieval institution, with Roman origins, dedicated to the poor and outcast of society. Its introduction in Spanish America was because of King Philip II who in a Real Cédula dated January 10th, 1589, ordered that where there had been in the past Protectores in the West Indies should be rectitude and named in his behalf where large numbers of Indian population existed – such like in the mining regions of Peru or Mexico. Their mission was to watch, represent and defend the rights of the most needy, the Indians. The Protectores had tax power, had as well the right of taking judicial declarations and of giving legality to Indian testaments. They could take note of the last will of the Indian vassals with two witnesses. They almost had the category of oidores, that is of judges members of Royal Courts, called in Spanish Reales Audiencias. A Real Cédula of August 20, 1620 ruled out that all the Protectores had to be lawyers – letrados – with a certain experience. The institution proved to be efficient.



Protector of Indians; Fray Bartolomé de las Casas; protection of the American Indians; Laws of Burgos; Royal Courthouses; Dessiderius Erasmus of Rotterdam; Sir Thomas More; Luis Vives; encomienda; Spanish Catholic Church; Adrianus of Utrecht; Emperor Charles V; Philip II of Spain; heathen; conflict of jurisdictions; Human Rights.


Vlasta Švoger: Control of the Press in Croatia 1848-1849: From Censorship over Unlimited Freedom of the Press to the First Croatian Press Act

Using a comparative perspective, this paper analyses radical changes in conditions under which the press functioned in Croatia in the revolutionary years 1848-1849. In a time span of more than a year, a rigid system of preventive censorship in Croatia was briefly replaced by unlimited freedom of the press (proclaimed in mid-March 1848), which was restricted by a very stringent Press Act in early May 1849. The paper analyses circumstances under which “The Provisional Press Act” (1849) was adopted. The Act's provisions are considered in the context of press regulations in effect in other European countries of the time, especially in the German speaking area. It has been established that the first Croatian Press Act applied solutions from press regulations of other European countries, although they were modified and adapted to Croatian political and economic circumstances, mainly through the mediation of the Austrian Press Act.



censorship; freedom of the press; the 1849 Croatian Press Act; press legislation in European countries; 1848-1849.


Paweł Fiktus: An Official in the Polish Political and Legal Thought of the Second Half of the 18th Century on the Example of the Theses of Józef Hieronim Pawlikowski and Józef Puszet de Puget 

In Poland, the second half of the 18th century was a period determining the future fate of the Polish state. A very rich political and legal debate was characterized by topics concerning healing the state, systemic changes or issues that required immediate reform, such as granting peasants personal freedom, increasing the rights of burghers or granting rights to Jews. Although in the Western Europe the movement of cameralists was successfully developing, issues related to the functioning of administration, the position of offices or officials, due to the situation in the country, were not so strongly exposed. However, more and more often there emerged works discussing specific legal solutions and selected offices. This paper presents the views of two political writers of the second half of the 18th century, Józef Herman Pawlikowski and Józef Puszet de Puget, who, in their works, created a theoretical scheme of an official, their position and relations between offices.



four years' Sejm; official; polish political and legal thought of the 18th century; bureaucracy; state reform.


Andrey Bystrov: The Forgotten Anarchist: Political and Legal Aspects of Alexei Borovoy’s Anarcho-Humanism

The article examines the political and legal ideas of Alexei Borovoy, a Russian anarchist thinker of the early 20th century and author of the anarcho-humanism theory, which represents an original anti-state doctrine and rethinks the established positions of classical anarchism. Borovoy was influenced by a broad variety of ideas, and the evolution of his views can be conceptualized with a Hegelian triad: the Marxist thesis, the individualist antithesis, and the blending of personalistic and existentialistic attitudes with syndicalist practice as the synthesis. He presents anarchism as a constant striving towards an individual’s self-liberation through the negation of social reality; and this striving shall be seen as a universal condition for the development of all mankind rather than some social utopia project. By revealing the irresolvable antinomy between individual and society, his philosophy predicates the anti-finalist spirit of anarcho-humanism. Determined by the aforementioned beliefs, Borovoy’s criticism of the state and other “social fetishes” still deeply rooted in the human mind is followed by an analysis of his critique of anarchism itself and the debate with Kropotkin and other libertarian theorists. Borovoy postulates that the state is historically necessary and describes the range of factors that have brought it about. The criticism of the state system as the quintessence of organized power leads Borovoy to a detailed deconstruction of parliamentarism, the only objective of which is to preserve the status quo that can be summed up in the following six points: (a) the class nature of parliaments and the fictitious power of popular will; (b) the tyranny of the masses; (c) parliament’s subordination to the government; (d) the opportunism of political parties; (e) the hypocrisy of election procedures; and (f) non-professionalism of parliamentarians. Borovoy defines the law as actual relations formed in the course of life and originating mainly in the human mind that should be regarded as part of the psychosocial current of legal thought. From his criticism of the law that is made ex parte by those in power and becomes necessarily coercive and precluding voluntary acceptance of social obligations, Borovoy turns to the law based on conventional norms established by common agreement and commonly supported and accepted. However, similarly to the “anarchist ideal”, his approach offers an unlimited freedom to exercise human abilities, but fails to suggest any reasoned, specific, and consistent principles to serve as a basis of this law, and sticks to general and abstract formulas.



anarchism; law; individualism; authority; state; revolution; personality; liberty; society.


Tetiana Syroid, Oleksandr Havrylenko, Alona Shevchenko: Evolution of Financial Law Basics within the Antique States of the North Black Sea Region (Late 7th Century BC – the First Half of the 6th Century AD)

The article deals with the peculiarities of the development of financial law basics within the antique city-states of the North Black Sea region, in particular Olbia, Chersoneses, Tyra and Bosporan Kingdom, on the basis of the analysis of legal monuments, narrative and other sources. The attention is paid to the development of legal regulation of financial relations, namely, strengthening of the role of legal regulations in the management of public (civil) finances, the implementation of financial and managerial functions by non-specialized state apparatus, but by the number of bodies of state, local self-government and individuals; at the same time, it is stated that some organizational and functional separation of certain financial bodies from the administration of general competence occurs over time; the transition from the natural to the mixed (natural and financial) form of collection of taxes; the improvement of tax system, the growth of the proportion of direct taxes from full citizens compared to liturgies, that gradually led to the disappearance of the latter.



antiquity; budgetary law; customs law; eisphora; financial law; liturgy; monetary regulation; polis; sources of law; tax law.


Róbert Jáger: Legal and Social Status of the Church in Great Moravia

The paper describes the position of the Church in Great Moravia, while trying to point out whether the statement of the history of state and law on a strong link between the state and the church in the contemporary period is really true. The author states that the generally accepted opinion (about the strong link between the state and the church in the given period) is only based on the analogy about the development of the state-church relationship in the countries neighboring Great Moravia (on which history we have more written sources), or in the countries that originated after the extinction of Great Moravia (Bohemia and the Kingdom of Hungary). In the next section, the author contemplates whether it is really possible to characterize the relationship between the state and the church in the way it is presented in current works. In the first part of the paper the author presents the opinion that already in 833-863 there were educated clerics at the court of the Great Moravian princes who held high positions in the state administration. This is justified by references in contemporary texts. At the same time, he points out that in the period in question in Great Moravia there was also a church administration at the lower level, controlled by Passau. The second part presents views on the relationship between the state and the church in the years 863-885. In this part, the author points out that the ruler of Great Moravia acted as a judge in church and theological disputes, had competence in appointing bishops, provided them with means of subsistence, etc. He also points out that secular and ecclesiastical affairs also overlapped at the level of foreign relations, as well as in teaching home clergy in clerical schools that were founded by Constantine and Methodius. In the last part of the paper, it is pointed out that the Great Moravian legal texts contained norms with secular and ecclesiastical sanctions. On a concrete example, the author points out a possible contradiction in the practical imposition of these sanctions, trying to explain how this contradiction would be approached from a Christian philosophy perspective.



Great Moravia; church; public power; state.


Antonín Lojek: Die böhmische Konföderation von 1619 und ihre Erweiterung um die österreichischen evangelischen Stände

This article is written for the occasion of 400 years since the conclusion of Bohemian Confederation and of the bohemian-austrian confederative arrangements of 1619, i.e. the Bohemia-Upper Austria and Bohemia-Lower Austria confederations. It deals with the period of emergence of confederations in Europe in the beginning of the 17th century, as exemplified by the Czech Confederation. We focus in particular on the Bohemia-Lower Austria and Bohemia-Upper Austria confederations of 1619, as well as the political and historical circumstances that lead to their formation. We analyze the key articles of confederate agreements and some of their legal aspects. The article pays particular attention to the issue of the right of military resistance, i.e. the right of estates to oppose the ruler and even dethrone him in case of failure to observe his duties.



1619 Bohemian Confederation; 1619 Bohemian-Austrian confederations; protestant estates; estates movement; right of resistance.


Tomáš Mach: From the Balfour Declaration to the Creation of the State of Israel: The Issue of Legal Importance of this Declaration, Its Historical Role, and Consequences of the Arab Attack upon the Newly Proclaimed State of Israel on the Plane of Public International Law

This article discusses the historical circumstances of the Balfour Declaration and its impact upon the legal framework under which the State of Israel came to existence. Furthermore, this article ventures into the legal development in the subsequent years of the existence of Israel, in particular in relation to the 1967 CE war, including the historic view upon the issue of the West Bank as terra nullius. In doing so institutions of public international law, such as definition of a people and the rights of self-determination are being discussed from a historizing point of view in which the progressive development of public international law in the 20th Century CE is being taken in consideration.



Balfour Declaration; self-determination; terra nullius; war; Palestine; mandate.


Adam Boóc: Comments on the Concept of Arbiter in Roman Law

This paper analyzes the notion of arbiter in Roman law. Based on the legal and literary sources of Roman law, the essay briefly describes the most important features of the legal institution of arbiter. The study emphasises that the notion of arbiter has at least two different meanings in Roman law. On the one hand, an arbiter could describe an expert judge who had special knowledge in a particular field and was entitled to decide the special debate of the parties, wherein the debate did not have a purely legal nature but could concern other issues as well. On the second hand, an arbiter as arbiter ex compromisso could mean a person chosen by the parties in the form of a settlement to decide their legal dispute as an arbitrator. The study also references some important elements of the subsequent fate of the Roman notion of arbiter.



arbitration; arbiter; historical-comparative; civil law; Roman law; history of law.


Peter Takács: On Stateform of Hungary between 1920 and 1944: Applicability of the Term „Monarchy without a King”

The official stateform of Hungary between 1920 and 1944 was „monarchy”. Since she did not have a king for a long time, however, it is often interpreted, even in academic analyses, in a way that it was, in fact, a kingdom with an unspecified monarch, viz. without a king that could have been determined. At the level of stateforms, this ambivalent situation of a „kingless kingdom” is expressed by the category „monarchy without a king”. Some legal scholars consider this category to be one of the particular variants of monarchy, while others argue that it might be conceived at a certain point on the scale between the two main types of stateforms, namely between monarchy and republic. This paper analyzes the origin of the term „monarchy without a king”, its meaning in public law and its interpretation within the framework of Hungarian legal history. In the latter respect, it raises the questions whether the term can be used to define and characterize the Hungarian stateform in the Horthy era, and if so, what specific meaning it conveys.



Stateform; constitutional history of Hungary; claim of Charles I of Austria (Karl I from the Dynasty Habsburg-Lothringen as emperor of Austria; Karl III as king of Bohemia; and Karl IV as king of Hungary) to the Hungarian throne; legal regulation of powers and competencies of the regent of Hungary between 1920 and 1944; the political meaning of stateform.


István Ambrus: The Development of Complaint and Public Interest Disclosure Regulation in Hungary

In this study, I aimed to provide a legal historical overview of the right to petition and the right to public interest disclosure in Hungary. My goals were to cover a large period of time and to offer sufficient detail. After reviewing the curiosities of the distant past, I demonstrated that, during the period of dualism and at the beginning of the socialist era, complaints were understood to be a form of legal remedy within existing legal procedures; subsidiary complaints falling outside of other procedure were introduced by the old Complaints Law. Though this legislation would not be appropriately harmonised with constitutional rights after the democratic transition, among its merits we may list its comprehensive nature vis-a-vis all previous efforts, the suitable separation of complaints and public interest disclosures, and the generalisation of the right to their submission. The effective Complaints Law’s 2013 creation provided a viable and compromise-driven solution, although, the new EU directive may raise the necessity of rethinking the rules once again.



complaint; Complaints Law; European Law; history of law; Hungary; petition; proposal; public interest disclosure; whistleblowing.


György Képes: Development of the Structural Independence of the Hungarian Judiciary from the Beginning until the End of the 19th Century

Independence of the judiciary is one of the most important guarantees of rule of law, the guiding legal principle of the modern constitutional state: “Judicial independence and judicial supremacy work together in an attempt to guarantee that the rule of law will not be eroded by the political pressures in existence at any particular point in time”. This independence has many elements, recognised during several centuries of state formation in the European (and North American) legal culture. This study focuses on the Hungarian evolution of one aspect: the independence of the courts in the sense of organisational independence, manifested in the establishment of the judiciary as a separate branch of the government. In addition to this, the judicial independence in terms of the personal discretion of the judges in their decision making (“decisional independence”), free of any external – and primarily: political – influences, has an enormous importance as well.



Hungarian constitutional history; separation of powers; judicial power; court system; judicial independence; organisational independence; structural independence; functional separation.


Fatri Islamaj, Engjëll Likmeta: Historical Aspects of Sale Contract according to Albanian Customary Law

Albanian customary law is an important characteristic of Albanian legal culture, which has regulated civil legal relations in Albanian territories for a long period of time.

Any regulation or provision, including the main institutes of contract law provisions, especially of the sale agreement, was regulated in detail by customary law.

The authors of this paper intend to provide a comparative and historical overview of how a sale agreement was executed according to customary law.

The characteristics of this institute according to the canons of various regions, the subjects who were entitled to enter into this type of contract, the objects of this type of contract and the procedures that customary law provided for the materialization of the sale process have been especially addressed in detail.



Albania, customary law; canon.


Dominik Terstriep: Die Überdehnung des Raumes – Globalisierung im 16. Jahrhundert

Globalization is one of today’s most challenging topics. It seems that there are – through technical progress – no longer any distances neither when it comes to space nor time; everything is close and simultaneous. Meanwhile the human species has not changed in a biological sense and seems outmoded. In this article I consider how much globalization humans can endure and how they react on it. This consideration, however, is moved to the sixteenth century that was also a time of globalization. This remote time can be compared to a laboratory for our situation today. I argue that we – from a European perspective – can perceive two simultaneous movements: on the one hand an incredible extension of the world (discovery of the so called New World) and of power (a world monarch) and influence (Christian mission), on the other hand a dissolution of political (the Holy Roman Empire) and religious (Reformation) unities and a retreat to the manageable (new ways of governing) and to inner life (mysticism). Is globalization too big for us little humans? Or does it need counterweights so that we do not get lost in its immensity?



Globalization; the 16th century; the New World; Charles V. Philipp II.; communication; mission; human rights; reformation; mysticism; Ignatius of Loyola; Theresa of Avila.


Raluca Enescu: Simplified Procedures in Criminal Matters and the Risk of Judicial Errors: The Case of Penal Orders in Germany 

The rise in simplified criminal procedures has been important over the last thirty years. While they certainly produce judicial decisions at a reduced cost, recent findings hint at their higher risk of judicial errors. This contribution sheds light on the birth of penal orders, first used by the police in Prussia as mandate orders. They were then included in the Code of Criminal Procedure of the German Empire. Nowadays numerous countries use penal orders to address minor offences and impose a penalty that became harsher over the decades. The shortcuts of this simplified procedure entails considerable risks of erroneous judicial decisions, precisely because of the features that made it successful in the first place. Courts are able to render justice more swiftly, but at what cost? The conversion of a prosecutorial investigation into a judicial decision requires safeguards to prevent erroneous judgments, especially wrongful convictions.



: Criminal law; judicial errors; simplified procedure; penal orders; official statistics; Germany.





Heike Stopp: Hans Welzel und der Nationalsozialismus


Tamar Herzog: A Short History of European Law: The Last Two and a Half Millennia


Dirk Reitz, Hendrik Thoß (Hg.): Sachsen, Deutschland und Europa im Zeitalter der Weltkriege


Markus Apostolow: Der „immerwährende Staatssekretär“. Walter Strauß und die Personalpolitik im Bundesministerium der Justiz 1949–1963


Urs Marti-Brander: Rousseaus Schuld. Essays über die Entstehung philosophischer Feindbilder


Joachim Rückert: Abschiede vom Unrecht. Zur Rechtsgeschichte nach 1945


Reiner Haehling von Lanzenauer: Der badische Jurist Reichlin von Meldegg und seine Zeit


Ulrich Falk / Markus Gehrlein / Gerhart Kreft / Marcus Obert (Hg.): Rechtshistorische und andere Rundgänge – Festschrift für Detlev Fischer



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ARCHIV - Vol. 10 / 2019 No. 1



Christian Neschwara: „Zum immerwährenden Gedenken an die Ausrufung des Freistaates“: Das Selbstbild der (deutsch-)österreichischen Republik 1918/19 und seine Verdrängung

Events, resulting from a victorious war, a successful revolution or formation of a state, striking amendments relating the constitutional system or international status, are able to constitute identity of the citizens of a state, they can constitute the self-image of a state, from which a sense of national community can grow out within all groups of a society supporting a state. In order to consolidate this collective emphasis, national holidays were found, which periodically have to impose the recall of events, forming identity of a state. In (german-)austrian republic such a state holiday was found by decision of the Constituent National Assembly in April 1919, serving for: „The everlasting memory of the declaration of the free state of German-Austria“ on November 12th 1918.



Austria; Constituent National Assembly (of German-Austria); constituting a state; declaration of Austrian neutrality (in 1955); democratic republic; free state [= republic]; founding of German-Austria (in 1918); liberation of the Republic of Austria (in 1945); national holiday; Provisional [= temporary] National Assembly (of German-Austria); state holidays (in general).


Martin Paar: Zur Geschichte des österreichischen Weinrechts von 1907 bis 1985

This essay deals with the history of Austrian wine law. The contribution starts with the first Austrian Wine Act of 1907 and ends with the Wine Act of 1985, which can be considered as a direct outcome of the so called Austrian wine scandal in the same year. A brief outlook on the further development of the wine law after 1985 completes the description. At the end follows a summary of the legal development of legislation concerning wine in the period from 1907 to 1985 and conclusions about the main features of this legal development.



wine law; wine act 1907; wine act 1925/29; wine act 1961; wine act 1985; wine scandal.


Thomas Gergen: Entscheidungsfindung auf kommunaler Ebene vor 80 Jahren – Mobilmachung 1939 im Landkreis Saarlouis

The study deals with the preparation for the II. World War („mobilization“) taking the example of the district of Saarlouis. Two written sources are utilized, an extract of the war diary composed by the former Prussian district administrator (Landrat) as well as a report describing, after war, the school enrolment 1939 until the reconstruction after war.



Decision making; District of Saarlouis; War mobilization; War diary of Dr. Franz Schmitt; School enrolment; reconstruction.


Malte Wilke, Stefan Segerling: Politisierte Beleidigungsprozesse in der Weimarer Republik

This essay examines the decision-making practice of the criminal courts in politicised insult proceedings in the Weimar Republic. Initially, some criminal cases, such as the insult proceeding of President of the Reich Friedrich Ebert, are outlined. Subsequently, the decision-making practice of the courts is discussed on a large scale. The analysis of the rulings of the criminal courts shows that the judges have established anti-republican and anti-Semitic judgments in many cases. The courts often acquitted extreme right-wing defendants with flimsy arguments. To achieve this, the courts divested the defendant´s insults of their contemptuous content. Accordingly, the jugdments of the courts often confirmed the picture of jurisprudence far-removed from any notion of lawfulness. The main reason for this unlawful decision-making practice was the anti-republican mentality of the judges. With reference to this decision-making practice a crisis of confidence in the judicial system has occurred in the public.



Weimar Republic; politicised insult proceedings; anti-republicanism of the judiciary; anti-Semitism of the judiciary; jurisdiction of the Imperial Court of Justice; insult proceeding of the President of the German Reich Friedrich Ebert, Helfferich-Erzberger proceeding.


Martin Löhnig: Die norwegische Verfassung von 1814 in der deutschen Verfassungspublizistik des 19. Jahrhunderts

The Norwegian constitution, the Grunnlov from May 17 1814, is, as the legal foundation document of the modern Norwegian state not very present in current German science of legal history. In German publications of the 19th century the perception of the Grunnlov was quite different. This paper will explore the emanation of knowledge of the Constitution as well as the understanding of how it worked in practice in Pre-March-Germany.



Norwegian Constitution; Pre-March Germany; 19th century; constitutionslism.


Javier Belda Iniesta, Michela Coretti: The Clementines Dispendiosam and Saepe Contingit and the Evolution of the Medieval Summary Procedure

This article intends to explore briefly the steps that lead to the appearance of the summary Rite on the medieval Ius Commune, highlighting the role of Canon law, and in particular the legislative interventions of Pope Clement V, in the conformation of this process, from the decretals Dispendiosam and Saepe Contingit up to the Bartolus de Sassoferrato’s study about the Constitution Ad Reprimendum, well as its reflection on the italian statuti comunali.



Dispendiosam; saepe contingit; summary procedure; Clementinae; Ad reprimendum.


Dmitry Poldnikov: Two Divergent Approaches to Comparative Legal Studies in Europe and Their Implications for Legal History

Comparative legal studies have established themselves as the reaction of legal scholarship towards the legal diversity of our shrinking world today and in the past. Despite their potential, such studies occupy a marginal place in legal curricula and practice across Europe. This unhappy situation has brought about debates within the community of comparatists about possible causes and eventual remedies. In this paper, I look at this debate as the incarnation of the century-long confrontation among 'erudite' and 'pragmatic' legal scholars; the former group identify with the agenda of Rodolfo Sacco and the latter are led by Basil Markesinis. My aim is to draw implications from this debate for comparative legal history. In order to do so, I begin by introducing the main tenants of the two 'schools'. Secondly, I investigate the main stumbling blocks of the debate between them: Eurocentrism, the selective scope of research, interdisciplinary and cultural studies. Thirdly, I contemplate the implications of the debate for legal history and a possible synthesis of the two approaches suggested by Uwe Kischel. My main point here is to encourage legal historians in two respects: (1) to engage in cooperation with comparatists in order to enhance our understanding of the context(s) and the paradigm(s) of European legal culture in the face of the ongoing internationalisation of law and legal studies and, (2) to pursue the task of revealing the hidden factors that slow down the transformation of positive law when the changing world calls for it, as is the case with acknowledging new kinds of legal subjects.



comparative legal history; legal scholarship; methodology; post-modern cultural studies; Eurocentrism; contextual comparison; hidden legal formants.


Bartosz Kamil Truszkowski: Registration of Civil Status in the Second Polish Republic (1918 – 1939)

After years of non-existence the Polish country has regained its independence in 1918. The Second Polish Republic consisted of territories taken back from the three past invaders, which resulted in huge differences in law in each of the new districts. One of the best examples of such heterogeneity was the registration of civil status. Apart from varying Prussian, Russian and Austrian regulations, we could also distinguish separate provisions in the lands of the former Kingdom of Poland and the little area of Spis and Orava, what created the mosaic of five different legal orders in that field in one state. Only two of them were fully secular, the other three based to a greater or lesser extent on the religious parish records of births, marriages and deaths. The author outlines the five registration systems by presenting the provisions of the basic legal acts that were functioning in each of the five specified regions.



civil status registration; registry office;, vital records; the Second Polish Republic; interwar period; law diversity.


Karol Siemaszko: Criminals and Criminality on the so–called Recovered Territories (Poland) after the End of WW II (1945 – 1950) in the Light of Judicature of the Selected Polish Regional Courts

with criminality on those territories based on criminal cases and published diaries by Polish settlers living in that part of Silesia. That will include not only registered criminality but also crimes ‘undetectable’ for the statistics – unregistered crimes, whose victims were not reported to the police. Information about crimes committed on those territories was very often mentioned only in the diaries of those settlers. The main aim of this article is to depict characteristic of criminality and criminals when the population changed its place and social bonds were disintegrated. The author would like to ask some important questions: Who were the criminals? Were they average or maybe demoralized persons? What were the motives of the crimes they committed? What crimes were the most common? Criminal (e.g. robbery, rape, murder) or perhaps political ones?



Recovered Territories (Poland); criminal; penal law; Polish Regional Courts; Poland.


József Szalma: Die Kodifikationsentwicklung des Zivilrechts in Serbien – insbesondere über den Vorentwurf des Bürgerlichen Gesetzbuches und über das neue Handelsgesetzbuch der Republik Serbien

The aim of the paper is to analyse the evolution of codification of Serbian civil and commercial law. The codifications from 19th and 20th century were so-called partial codifications, i.e. they regulated only certain areas of private law. A notable exception is the 1844 Civil Code that regulated all classical branches of civil law (family law, law of obligations, proprietary law and inheritance law) and bears the signs of the influence of the Austrian General Civil Code. The law-maker however decided at the time to regulate commercial law in a separate act (1863). In the period of the first Yugoslavia (1918-1941), aiming at centralisation of competencies, just as in the period of second Yugoslavia (1945-1999), aiming at decentralisation of competencies, either on federal or on the level of federal units, the approach to create partial codification was more present then the opposite one, supporting the idea of a whole codification. At the level of Federation, the most notable act is the 1978 Law on Obligations, which shows the influence of the 1911 Swiss Law on Obligations. Not long after Serbia became a unitary state in 2006, the preparatory works on a draft of a civil code began in 2007, with the purpose of drafting a civil code embodying the whole area of civil law. The work of the codification committee ended in 2015 by publishing the first normative draft of the Civil Code of Republic of Serbia. The draft does not contain rules on the legal status of business organisations, unlike to the solution adopted in Swiss law. However, in the part pertaining to the law of obligations, besides classical types of contracts, envisages rules on specific commercial contracts. On the other hand, in 2011 the new Law on Business Organisations came into force that has been amended several times since then. Therefore, the evolution of codification of private law in Serbia demonstrates that the process of codification is expected to be achieved in two separate legislative acts: regulating the field of classical civil law, according to its pandectist division, in a civil code, and the matter of legal status of business organisations in a separate act. Thus the Serbian legislator adopts the dualistic approach to the codification of civil law, whereby both acts would certainly be harmonised in terms of general principles (freedom of contract and freedom of entrepreneurship).



Civil law; Commercial Law; Serbia.


Pavel Salák: The Dating of Last Wills in the Territory of the Czech Lands from the 19th to the 21st Century

The paper follows the development of the legal regulation of dating last wills as one of the essential elements required for a last will in the territory of the Czech lands from the 19th to 21st century. It focuses not only on applicable regulations but also on legislative proposals that finally never came into force. Similarly, tangential references have been made to the legislations playing their role as a source of inspiration – in particular the legislations of Austria, Germany and Hungary. In addition to the legal regulation, the paper also follows its interpretation and the reasons for different approaches to this issue. In substance, the liberal approach, which places the emphasis on the autonomy of will, alternates here with the approach preferring formality. These aspects had an impact on the provisions of Act No. 89/2012 Sb., the Civil Code, concerning dating last wills. As can be observed, the studied legal regulation is a compromise between the two trends, albeit not an entirely happy one.



Last Will; Date; Formal Requirement; ABGB; BGB; Czechoslovak and Czech Law of Sucession.


Pál Sáry: The Ancient Roman Pollicitatio and a Similar Hungarian Legal Institution

Undertaking obligation for public interest is a peculiar institution of the Hungarian civil law. This institution is very similar to the ancient Roman pollicitatio. This paper, at first, gives an outline of the classical Roman rules of pollicitatio, and after that it compares the ancient rules with the remarkably similar Hungarian regulations of today.



Roman law; pollicitatio; summa honoraria; gift; unilateral promise to a town; enforceable offer; Hungarian private law; undertaking obligation for public interest; improper foundation.


Kinga Beliznai Bódi: Judicial Robe. The Insignia of the Judicial Profession

„The fashion of the judicial gown is nice and smart, because this gown always warns the judge that whilst practising his profession he is obliged to leave behind all one-sidedness and all biases, as well as all prejudices and all subjective aspects.”

Section 104 of Act 54 of 1912 on the implementation of the Code of Civil Procedure (Act 1 of 1911) authorized the Minister of Justice „to order by decree the wearing of specific attire for the judges”. Between 1869 and 1912 a number of enthusiastic or less eager opinions was expressed in daily newspapers, law journals, and discussed among lawyers and jurists relating to the judicial dress. Devotees of standardized judicial attire regarded the introducing of such a uniform as a token of judicial authority.



Judicial robe; judicial symbol; 19-20th century; legal tradition; Hungary.


Jenő Szmodis: Some Newer Views to the Problems of the Hungarian Holy Crown and Holy Crown-Doctrine. (Considerations from Historical and Legal Historical Aspects)

The Hungarian Holy Crown doctrine involves lot of legal values. Among others such values, which was later relatively similarily expressed in Bodin's sovereignty theory. The ideas about an abstract, supreme power became commonly accepted in the West in the 16-17th centuries. Because the ancient Hungarian constitutional thoughts gradually have been projected on the Holy Crown, therefore it is important the age of the Holy Crown. The writing tries to find the first European crown that resembles the shape of the Holy Crown. The probably first cross-strapped, closed crown was Theodahad's property AD 6th century. This Italian ruler is closely connected with the former Hun Empire through his uncle, Theoderic the Great. The writing refers a story of the Eastern Huns from BC 3th century, which is closely related to one of the important thoughts of the Holy Crown-doctrine.



Hungarian Holy Crown, constitution, sovereignty, Italy, Theodahad, Theoderic the Great, Hun Empire.


Árpád Olivér Homicskó: The History of the Hungarian Social Security Regulation until the Present Day

In my study I would like to present the History of the Hungarian Social Security System’s development from the beginning till nowadays. The Hungarian social care system is built up of social security and other social care institutions. The theoretical basis of social law is the approach that the main requirement of the individual’s subsistence is the continuous reproduction of resources. The essence of social care is that in case of subsistence problems the existence of the individual should be ensured. In the era of subsistence problems goods necessary for everyday livelihood should be ensured from sources other than individual production activities. An important part of this is making proper reserves, which may help surviving such situations. In different historical periods reserve making was diverse, its management was different in different times, but the need to institutionalise this procedure only emerged in the new era, with the establishment and spread of the capitalist production method. The features of the Hungarian workers’ and social security system may be well shown by the development of the related legal regulations. In Hungary the origins of the social security system operated by the state may be found in the last decades of the 19th century, and are based on German and Austrian example.



Social security system; Accident insurance; Old age pension; medical care; child-raising allowance; Hungary.


Zoltan J. Toth: The Last Three Decades of Capital Punishment in Hungary: The Process of Abolition between 1961 – 1990

The present paper reviews the course by which capital punishment has been abolished in Hungary during the late state socialist era. In the first chapter, it introduces the regulations of the first complete Hungarian Criminal Code (Act no. V of 1961) following Code of Csemegi with which, after a one-and-a-half decade interval of extraordinary penal law, the consolidated criminal law have come to prevail again. In the second chapter, it analyses the modifications that was introduced into the Hungarian legal system by the legislator in Act no. IV of 1978 (Hungary’s previous penal code) as regards of the death penalty. In the end, in the third and last chapter, this essay reviews the measures and process by which capital punishment has ceased to exist in Hungary for good and all.



Capital punishment/death penalty; criminal law; abolitionism; era of state socialism; Hungary.


Katalin Siska: “You cannot put women and men on an equal footing, it is against nature.” A Review of the Evolution of Women’s Rights since the Establishment of the Republic of Turkey

In 1985, Turkey ratified the CEDAW, in 2012 The Council of Europe Convention on preventing and combating violence against women and domestic violence. The ratification document noted that the Turkish State did not refute its obligation to implement the Convention. The Turkish government tries to eliminate discriminatory practices and traditions against women and girls but yet did not succeeded to ensure the total equal participation and opportunities in all spheres of life since the Turkish government expressed its concern that certain aspects of the Convention contradicted relevant clauses of the Turkish Civil Code and Constitution regulating marriage and family life.

In my paper I focus on the laws and policies adopted for the implementation of the Convention analyzing what results were realized from the obligations undertaken both legislative and practical levels.



CEDAW; human rights; Turkey; gender; discrimination; EU.


Barbara Ellen Logan: Pedagogy and Punishment: Distinguishing Between Erudire and Iniuria in Roman Education and Law

Both Quintilian and Martial joke about the schoolboy’s horror of the virga magistri. While erudire includes forcing out “rudeness” in its etymology, this paper seeks to examine when, where, and why accepted methods of physically disciplining free-born children tipped over into inuria and delict. The dignitas of a citizen was understood to guarantee protection from physical assault of any kind; consequently allowances for the beating of children as part of education is fraught with social and legal significance.



Pedagogy; Roman Law; Erudire; Inuria; Dignitas; Delict.


Thomas Gergen: Le concile de Charroux (989) et les coutumes du comté de la Marche: A la recherche des mécanismes de reglement de conflits

The article builts up the link between the Council of Peace from Charroux in 989 and the customary law that applied in situ in the 12th and 13th centuries. Moreover, it intents to furnish the proof of an organic increase of law at that time. Public and ecclesiastical law were living together, side by side, without any separation in the medieval legal world, above all in a « France without government » (P. Geary).



Charroux ; Peace and Truce of God ; count of the March ; customary law; rules of conflict.





Diemut Majer, Wolfgang Höhne: Europäische Einigungsbestrebungen vom Mittelalter bis zur Gründung der Europäischen Wirtschaftsgemeinschaft (EWG) 1957 – Teil IV

The book deals with the ideas of Europe. Europe was on one hand the center of many crisis and wars, on the other hand a center of common cultural developments – from Christendom and Enlightment up to music, poetry and arts. The text goes back into history and shows that the visions of a common Europe did not only arise after World War II, but were already present in the Middle Ages. The theories of the ancient state-philosophers and other scholars show surprising similarities with the basic problems of the EU of nowadays. Theses visions were always combined with the deep desire and many appeals for a lasting peace in Europe – in former centuries an utopia, realized only in the second half of the 20th century.



European unification; European peacemaking; sovereignty of states vs European institutions as key question from the medieval ages up to the 20th century; European ideas in the medieval ages - federation of medieval princes; conquer of the holy land - Pierre Dubois; Flavio Biondo / Urban II.; Enea Silvio Piccolomini - Christian nature of the European countries; war against the Osman Empire; reform of the church; Erasmus of Rotterdam; dominance of France in Europe; principals of international law (Hugo Grotius).




Cosmin Sebastian Cercel: Towards a Jurisprudence of State Communism: Law and the Failure of Communism  


Siegfried Hanke / Rainer Vogel (Hg.): Urbar Freudenthal / Bruntál 1604. Urbar der Herrschaft Freudenthal / Bruntál von 1618


Bernd Rüthers: Die unbegrenzte Auslegung


Peter Landau: Deutsche Rechtsgeschichte im Kontext Europas. Vierzig Aufsätze in vier Jahrzehnten


Joao Nuno Pereira, Jochen Zenthöfer: Einführung in das luxemburgische Recht


Markus Gehrlein: Franz Schäfer – Ein Juristenleben vom Kaiserreich bis zum Bonner Grundgesetz


Silke von Lewinski / Heinz Wittmann (Hg.): Urheberrecht! Festschrift für Hon.-Prof. Dr. Michel M. Walter zum 80. Geburtstag


Stephan Meder (Hg.): Geschichte und Zukunft des Urheberrechts




Bericht zum Symposium für Hans Jürgen Becker zum Thema Deutscher Bund und nationale Rechtseinheit an der Universität Regensburg am 21. und 22. März 2019



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ARCHIVE - Vol. 9 / 2018 No. 2



Ronnie Bloemberg: The Development of the German Criminal Law of Evidence between 1750 and 1870: from the System of Legal Proofs to the Freie Beweiswürdigung – Part 2

In this article a description is given of the development of the criminal law of evidence between 1750 and 1870. This period saw the transition from a relatively rigid system of legal proofs which predetermined when there was sufficient evidence for a condemnation, to a system based on the free evaluation of the evidence by either professional judges or lay jurors. The reform of the criminal law of evidence, furthermore, formed part of a more general reform of the criminal procedural law which is commonly designated as the change from the old ‘inquisitorial procedure’ to the modern ‘reformed criminal procedure’ (reformierte Strafprozess) or Anklageprozess. It is the central contention of this article that the reform of the criminal law of evidence can, to an important extent, be explained by two larger underlying ideological changes. These new ideas derived from a change in the epistemological and the political-constitutional discourses between the seventeenth and nineteenth centuries.



Criminal law of evidence; free evaluation of the evidence; eighteenth and nineteenth centuries; freie Beweiswürdigung.


Malte Wilke: Recht und Macht in Verfahren gegen Hexen – Zugleich eine Untersuchung zur Entstehung des Inquisitionsprozesses

This article examines the reasons, which led to the development and the ending of witch trials in the Holy Roman Empire.

First of all, the essay explains the procedural reasons for the introduction of the inquisition procedure and its effects on the prosecution of heretics in the Holy Roman Empire. Subsequently, the development from the ancient offence of damage magic (maleficium) to the early modern offence of witchcraft is presented. In particular, the reasons are given for the transformation of the maleficium into an element of witchcraft.

However, the Carolina, the pertinent criminal and criminal procedural law of the Holy Roman Empire stuck to the maleficium. Nonetheless, the codification of the offence of witchcraft in the Electoral Saxon Constitutions led to the decisive paradigm shift in favour of the offence of witchcraft.

Accordingly, the procedure of witch trails is outlined, whereby the focus is on the demarcation of the processus ordinarius and the processus extraordinarius. Furthermore, this essay explains under which circumstances witch trails were excessive and unlawful. In this context the processus extraordinarius is decidedly examined.

In the last section of this article, the possibilities to obtain legal protection against illegal procedural acts in witch trails are discussed. Moreover, this article emphasizes that the High Courts of Holy Roman Empire regularly decided in favour of the accused in witch trails. At the same time, the essay shows that the High Courts of the Holy Roman Empire respected the Carolina and contributed significantly to the containment of witch trials.



Hexenprozesse; Hexenlehre; Constitutio Criminalis Carolina; processus ordinarius; processus extraordinarius; crimen exceptum; crimen magiae; maleficium; Reichskammergericht; Reichshofrat


Kamila Staudigl-Ciechowicz: Die „Säuberung“ der Universitäten 1938 am Beispiel der Wiener Rechtswissenschaftlichen Fakultät

The following contribution commemorates the racially- and politically-motivated expulsions of academic teachers and students in 1938 at the University of Vienna. Though these expulsions took place in the weeks after the “Anschluss” in March 1938, anti-Semitic occurrences were common at Austrian universities long before 1938. From 1918 on anti-Semitic tendencies at the universities were getting stronger, in spring 1938 Jewish as well as political opponent scholars and students were forced to leave the Austrian universities due to national socialistic ideology. The paper shows the expulsions from a legal point of view, stressing the significance of the laws that where enacted between 1934–1938 by the austrofacist government.



University of Vienna; racially- and politically-motivated expulsions, Anti-Semitism, faculty of law and state.


Felix Tilman Wnuck: Rechtspraxis im Protektorat Böhmen und Mähren. Eine Mikrogeschichte des Amtsgerichts in Brünn im Jahre 1942 

This text deals with the legal practice in the Protectorate of Bohemia and Moravia. How the judges dispensed justice against several ethnical groups? Therefore case files from the „Amtsgericht Brünn“ will be analysed. In the end you could see an of course nationalistsocialist court, but not a highly political and not always unfair one. The „Amtsgericht Brünn“ was a more or less unimportant court and because of that, they acted in a more or less lawful way – from todays view.



Brno; Protectorate of Bohemia and Moravia; NS-Justice; county court; National Socialism; fascism; Czech History; legal practice; Second World War; antisemitism; racism.


Raluca Enescu, Leonie Benker: The Birth of Criminalistics and the Transition from Lay to Expert Witnesses in German Courts

The European judicial setting underwent profound changes with the shift from testimonial to material evidence at the end of the 19th century. Expert witnesses possessing specialist knowledge entered the courtroom, throwing shadow on lay witnesses who suddenly were considered unreliable. This evidential mutation arose from the emergence of specialist knowledge delivered by expert witnesses. New laws were required and judgments were passed in order to clarify the respective competency of experts and judges. Three guideline judgments of the Imperial Court of Justice involving experts are discussed and put in parallel with the principle of free evaluation of evidence as well as with wrongful convictions.



Judicial decision-making; expert witnesses; lay witnesses; Imperial Court of Justice; history of forensic science; free evaluation of evidence; wrongful convictions.


Konstantin Krakovsky: Russian Law Faculty in Prague (1922 – 1935) 

The article is devoted to the little-known page of Russian post-revolutionary emigration - the creation and functioning for about fifteen years of the law faculty, founded by Russian professors of the law faculties of tsarist Russia who emigrated after the October Revolution of 1917, with the support of the government of Czechoslovakia. The article shows the main aspects of the activities of the Russian Law Faculty in Prague: organizational, educational, scientific, consultative public work, publications of its scientists, etc.



Prague; revolution; emigration; law faculty; legal science; law students.


Sonja Pallauf: Der Weg von der „Donaumonarchie“ zur „Republik Deutschösterreich“ 1918 unter besonderer Berücksichtigung des Verhältnisses von Staat und Ländern 

With the end of World War I in the fall of 1918 the multiethnic Habsburg empire collapsed, and the emperor resigned from his duties as a head of state. From this arose the new state “Deutschösterreich”, formally established on October 30, 1918, followed by the declaration of the “Demokratische Republik Deutschösterreich” (democratic republic of German Austria) on November 12, 1918. Based on legal sources, this article illustrates the relation between the federal state and its provinces directly before and after the state´s foundation. 



Habsburg Empire; Austria; 1918; World War I, democratic republic “Deutschösterreich”.


Adolfo A. Díaz-Bautista Cremades: The Low-Empire Society in Diocletian’s Legislation  

The rescripta made by the Diocletian’s chancellery and collected by Justinian and Theodosian Codices give us a lot of information about the life of the people in the Roman low Empire. We try to use it to confirm or deny the established topics by historiography about the economy and society in the beginning of the fourth century. From the legal sources we can know that the economy was not so ruinous than we can imagine, the social scale was mainly based in the Army and the nuclear family played an important role, with an unexpected prominence of women.



Diocletian; roman low empire; society; economy; women role; roman family; slavery.


Dmitry Poldnikov: The Functional Method to Study the General Part of Contract Law in Historical Perspective: pro et contra  

Comparative legal history is a fashionable new discipline which aims at a better understanding of the law's past by comparing similarities and differences of legal phenomena in two or more jurisdictions beyond the limits of national legal histories. Despite its popularity in Europe, it still lacks comparative projects that cover both Western and Eastern areas of the Continent, not least because the methodology of such comparison requires proper consideration and cannot be simply copied from comparative law or national legal histories.

The present article evaluates the applicability of the dominant method of today's comparative law (the functional one) in the domain of the general contract law of the first codifications in the major jurisdictions of Continental Europe (Austria, France, Germany, Russia) during the 'long 19th century'. This subject matter is chosen by way of example as a 'legal cross-road' of legal concepts and models, more susceptible to changes, innovations, borrowings, and closely linked to social needs.

In the main part of the article, it is argued that the adaptation of the functional method to the needs of comparison in legal history becomes plausible due to at least two factors. First, comparatists mitigated the rigid assumptions of the 'classical' functionalism of the 20th century (rejecting its privileged status and purely functional perception of law, irrebuttable presumptions of similarity and unification of compared legal systems etc.). Second, many legal historians, like the drafters of the first civil codes in Western and Eastern Europe, also believe that law is more than minimally connected to social problems and manifests itself primarily through its actual application.



comparative legal history; contract law in Europe; functional method; tertium comparationis; codification of civil law.


Jacek Wałdoch: Mikhail Gorchakov – the Viceroy of the Kingdom of Poland and his Actions towards the National Movement in 1861  

The governors of the Kingdom of Poland in 1861-1862 were forced to balance between the necessity to follow the orders of the tsar and prevent the revolutionary moods of the crowds. The most characteristic in this respect became 1861, when four governors ruled the Kingdom of Poland. This meant that the tsar had a clear difficulty in choosing the right administrator, who would be able to quickly curb the independence aspirations of Poles, but without using radical means, which only heightened social dissatisfaction. It was a demanding mission, because the governors came from military circles, which made it difficult for them to administer the country and to understand internal politics. The indecisiveness of the emperor and the frequent changes in the position of the governor caused this to destabilize the government in the country. It gave the possibility of free development of the national movement, which finally grew into a strength that could not be stopped by the existing means.



viceroy; Kingdom of Poland; independence movement; uprising.


Tomasz Dolata: Patent Legislation of the Kingdom of Poland from 1817 to 1867  

The aim of this paper is the approximation of issues related to the sovereign patent legislation that operated in the Kingdom of Poland from 1817 to 1867. The Kingdom of Poland swiftly began to provide legal protection to inventiveness by introducing requisite legal provisions in 1817, which were then amended in 1837. After 50 years of that legislation staying in force, there was a substitution of those provisions by Russian regulations, which in turn ended the legal autonomy of the Kingdom as to patent matters (1867).



industrial property law; Kingdom of Poland (Congress Kingdom); patent law of the Kingdom of Poland until 1867.


Karol Dąbrowski: Die Distriktskammern, Deutsche Handelskammer für Polen, Handwerksinnungen, Handwerkskammern, Hauptgruppen, Industrie- und Handelskammern, kaufmännische Vereine, Landwirtschaftskammern und Zwangsverbände im Generalgouvernement – Forschungsmethodik  

The acquiring of the knowledge about the history of the Chambers of Crafts, Chambers of Agriculture and Chambers of Industry and Trade – the institutions currently operating within the democratic system as self-governing legal persons – in the case of the totalitarian regime should be subject to a thorough archival research. This need results not only from the scarcity of the archival materials, but also complex institutional and personal connections across the administrative system, both in time of peace and war. Especially interesting are the relations between the foreign occupation authorities and the organizations of the subjugated Polish nation. This phenomenon concerns various periods and territories, including the General Government 1939–1945. At that time, on the Polish territories, self-governing institutions lost their autonomy. They where appropriated and transformed by the ruling entities. They were, despite their nature, the element of the totalitarian system and total war.



Chambers of Industry and Trade; General Government.


Emese Újvári: Die Haftung und die Rechtsverhältnisse der Mitvormünder im römischen Recht  

In the ancient Rome it was frequent to order more tutors for immature people at the same time to manage their asset. In such cases it was possible that the legator or the magistratus mandated one of the tutors to actually manage the asset or shared the administration according to the commissionerships or territory. In the absence of such act the tutors were obliged to manage the ward’s issues together and their responsibility was also joint according to the main rule.

The tutor who was sued as joint debtor based on the damages caused fully or partially by the co-tutors had the possibility to claim from the ward with the aim of vindication of his subrogation that the ward cedes for him their claims against other tutors. But the agreement on the assignment had to be concluded before the start of the performance of the tutor, otherwise the performance consumed the ward’s claims against the co-tutors therefore there were no claims left to cede. Later it became possible for the paying tutor – in case of missing the assignment – based on equity to bring independent utilis actio for vindicating the subrogation against the co-tutors. It is also possible that later the beneficium divisionis was entitled to the co-tutors for the sake of mitigating their burdens.



Roman law; tutelage; contutores; responsibility; subrogation; beneficium cedendarum actionum.


Zsuzsanna Peres: Marriage Property Rights of the Hungarian Noble Women according to their Prenuptial Agreements 

The article focuses on the prenuptial agreements of the Hungarian noble families in the early modern times in order to reveal those marriage property rights the noble women enjoyed during and after the termination of their marriage according to the wording of their agreements. The aim is to find out whether the foreign marriage property institutions of the neighboring Austrian hereditary provinces influenced the Hungarian marriage property rules, or not. In order to fulfill the aim, the article compares the existing legal rules to the everyday legal practice followed by the Hungarian nobles in marriage property issues. The article gives an insight into the customary legal system of the that times Hungarian Kingdom, defining marriage property rights of noble women based on the customary legal collection called Tripartitum compiled by Stephen Werbőczy distinguishing these rights according whether they got them from the family they were born into or the family they were joining in by their marriage. Such Hungarian institutions as the quarter, the rights of the unmarried women to a decent maintenance and to a proper endowment, the dowry, the marital remunerations as the dos, dotalitium, parapherna and the widows’ rights to a decent maintenance and proper endowment are compared to such institutions - although foreign to the Hungarian legal system but declared in the prenuptial agreements - as the Widerlag and the Morgengabe, or the so-called Spennadel Geld. The article also deals with the problem of the terminology caused by the trilingual environment in which the Hungarian nobles were living in.



Hungarian aristocracy; Lady-in-Waiting; prenuptial agreements; marriage property rights; dos; paraphernal; dowry; Widerlag; Morgengabe; Spennadel Geld; jus viduale; successio vidualis.


Máté Pétervári: One Empire and Two Ways of Public Administration: The Second Level Administrative Division in Austria-Hungary  

After the fall of the Hungarian Independence War, the Habsburg monarch desired to form an empire with unified jurisdiction and public administration organization. He realized this intention during the neo-absolutism in 1853, but the administration was restored prior to 1848 according to October Diploma in the Kingdom of Hungary, in 1861.

After the Austro-Hungarian Compromise, both parts of realunion strove to modernize the state organization, thus the jurisdiction and the public administration were separated. The Act XLII of 1870 established the local executive organs in Hungary, on the basis of feudal tradition, so the counties (megyék) and the districts (járások) remained as part of public administration. Pursuant to Act 44 of 1868 (19th May 1868), the mixed district office of neo-absolutism (gemischtes Bezirksamt) was replaced by district authority (Bezirkshauptmannschaft). In my paper, I compare the public administration of these two states and these two district levels in detail in Cisleithania and Transleithania.



Austria-Hungary; Austro-Hungarian Empire; public administration; districts; district administrator; Bezirkshauptmannschaft; Austro-Hungarian Compromise.


Gábor Rokolya: Lawyers, Civil Law Notaries vs. Municipal Scriveners. A Particularity of Hungarian Legal History: the Private Activities of Scriveners 

Following the Austro-Hungarian Compromise legislation separated the justice system from public administration, however the regulation on the private activities of municipal scriveners remained unchanged. Lawyers and notaries requested the elimination of such activities from the government with no avail. The Bill on mandatory formalities of instruments and later on hedge writing attempted to restrict the activities of municipal scriveners regarding the preparation of instruments and filings, but it also failed to succeed. Thus, such anachronism prevailed throughout this era of late modern history (‘the Civil Era’) of Hungary, namely that a public authority was also involved in jurisdictional matters. 



municipial scriveners; lawyers; civil law notaries; private activity; mandatory formalities of instruments; legal profession; administrative profession; instrument; bill; hedge writing.


Zsanett Szabó: Legal Practice concerning Counterfeiting as a Crime in Hungary in the Age of Neoabsolutism (1849 – 1861) 

In this study, I present the history of the regulation of counterfeiting in Hungary, and I present it’s practice in the period of neoabsolutism (1849-1861). At the beginning of this study, I write about how was counterfeiting regulated and what circumstances were taken under consideration in the regulations, from the Roman law to the first codified criminal code of Hungary. In the knowledge of these rules, I present the practice of counterfeiting as a crime. Frigyes Kahler already examined the legal practice of Debrecen only until 1848 so describing these results, I present the specificities of the established practice of that time. The practice of the years of neoabsolutism - when the Austrian Criminal Code was applicable - I present it based on primary sources, because I found a lot of crimes when I conducted research in the archives of Hajdú-Bihar County. During processing the relevant cases, my objective was to detect any possible differences or, first of all, to highlight the fact how the Austrian Criminal Code was applied in the legal practice or even to which extent the legal practice applied common law established before.



counterfeiting; Austrian Criminal Code; neoabsolutism; Hungary.


Zoltán J. Tóth: The Regulation of Criminal Defamation and Insult in Hungary between 1880 – 1979 

This article is about the history of the regulation of defamatory criminal law delicts. It first describes how the first Hungarian penal code regulated defamation, insult and desecration, and gives a brief introduction to procedural issues closely related to the material law regulations as well. Then it follows the changes of the regulation of the delicts, starting with the modifying act in 1914 about the protection of reputation through the regulation about military criminal law to the provisions of the two penal codes (of 1961 and 1978) preceding the valid criminal law regulation. As it may be seen from this essay, Hungarian defamation law has been quite developed at the end of the 19th century, moreover, regarding its dogmatic elaboration it was among the most modern ones in Europe, and this leading role has not changed ever since; regarding the elaboration of criminal act violating reputation, human dignity and the good reputation of persons Hungarian legal regulation has been among the best in Europe.



defamation law; defamation; insult; desecration; history of crimes against human dignity in Hungary; Csemegi Code; Hungary.


Kinga Rigó: Ein Vergissmeinnicht in der ungarischen Rechtsgeschichte – erster Entwurf von József Eötvös

Baron József Eötvös (1813-1871) was a famous Hungarian statesman and writer, who has had the possibility to be two times the minister for religion and public education in Hungary (in 1848 and between 1867-1871). He drafted two proposals to the Hungarian Parliament concerning the legal questions of higher education, none of them were accepted.

My study is dealing with the first draft of Eötvös, which is about the fundamental regulation of the Hungarian University (there was only one university in the Kingdom of Hungary at that time). It is dealing with organisational questions, administrative issues, and with the jurisdictional competence of the university as well. This draft contains a „little criminal code” within, with crimes, punishments and procedures as well, what gives us a very interesting overview about the everyday life of the university and of the imagination of Eötvös as well.

It is interesting to know, that there is only one copy of this draft in Hungary: it can be found in the University Library of ELTE and it is connected to the Student Plan of 1823-1848.



Baron József Eötvös; Hungarian University; history of the universities; history of public administration; history of education management; history of the Hungarian law; jurisdiction of the universities; jurisdiction of the Hungarian University.


Adam Boóc: Remarks on the New Hungarian Act on Arbitration from a Historical-comparative Perspective  

This paper summarizes the history of arbitration in Hungary with special emphasis on the antecedents of the valid act on arbitration. Since the Parliament of Hungary adopted a new act on arbitration in 2017 (Act LX of 2017 on Arbitration), the study describes the most important features of this Act from a historical-comparative view, highlighting the fact that this act is fully in line with the UNCITRAL Model Law on arbitration of 1985 and amended in 2006. The article stresses the annulment of arbitral awards, which seems to be a key – issue in international commercial arbitration. The study also introduces the new framework for arbitration regarding Arbitral Tribunal on Commerce as a permanent arbitral tribunal, which integrates the arbitral tribunal attached to the Hungarian Chamber of Commerce and Industry (MKIK), the Arbitral Tribunal on Energy, and the Arbitral Tribunal on Money and Capital Markets.  The paper reaches to the conclusion that the Hungarian New Act on Arbitration is a turning point regarding the Hungarian arbitration in terms of legislation, and at it is to raise several important questions during its practical application.



arbitration; Hungary; historical-comparative; act on arbitration; UNCITRAL; Hungarian Commercial and Industrial Chamber; civil law; Roman law.


József Pallo: The First Correctional Legislation and Codification Following the Regime Change in Hungary

It is almost a quarter of a century since the correctional legislation of 1993 came into effect. The importance of this regulation cannot be stressed enough since its focus was to facilitate Hungary's entry to the more up-to-date European norms. By analysing the social and legal circumstances of the era, the author presents the more important events of the codification, its provisions and long-term effects. The author concludes by stating that modern correctional philosophy has only had a brief impact on the legal evolution of the relevant fields.



Hungarian Prison Code; history; anniversary; reintegration; principle rules; experiences; European Prison Law.


Jiří Bílý: Some Notes on Cicero’s Plea on behalf of Caecina. Conclusions and Ways Out

Pro Caecina is a speech delivered by M. T. Cicero on behalf of A. Caecina in a civil case concerning the ownership of a farm near Tarquinii. Caecina had inherited this farm from his wife Caesennia, but her former agent, Sextius Aebutius, attempted to claim ownership. This speech was made (usually dated to 69 BC) at the end of a series of actions between Caecina and Aebutius concerning the farm. Cicero explains the history of the situation in the opening of his address in order to demonstrate the reasonableness of Caecina's actions.



Cicero; Caecina; Aebutius.





Diemut Majer, Wolfgang Höhne: Europäische Einigungsbestrebungen vom Mittelalter bis zur Gründung der Europäischen Wirtschaftsgemeinschaft (EWG) 1957 – Teil III

The book deals with the ideas of Europe. Europe was on one hand the center of many crisis and wars, on the other hand a center of common cultural developments – from Christendom and Enlightment up to music, poetry and arts. The text goes back into history and shows that the visions of a common Europe did not only arise after World War II, but were already present in the Middle Ages. The theories of the ancient state-philosophers and other scholars show surprising similarities with the basic problems of the EU of nowadays. Theses visions were always combined with the deep desire and many appeals for a lasting peace in Europe – in former centuries an utopia, realized only in the second half of the 20th century.



European unification; European peacemaking; sovereignty of states vs European institutions as key question from the medieval ages up to the 20th century; European ideas in the medieval ages - federation of medieval princes; conquer of the holy land - Pierre Dubois; Flavio Biondo / Urban II.; Enea Silvio Piccolomini - Christian nature of the European countries; war against the Osman Empire; reform of the church; Erasmus of Rotterdam; dominance of France in Europe; principals of international law (Hugo Grotius).




Joachim Rückert: Unrecht durch Recht. Zur Rechtsgeschichte der NS-Zeit


Tommaso Beggio: Paul Koschaker (1879–1951). Rediscovering the Roman Foundations of European Legal Tradition





Universitätsprofessor Dr. Elmar Wadle 80 Jahre


1918: Untergang der Monarchie und Entstehung der Republik – eine Buchanzeige


ANNEX: Das Unterschiedliche und das Verbindende



Andrzej Dziadzio: Vertragsfreiheit in der Donaumonarchie. Das Gesetz für Galizien über das Wucherverbot 

The article discusses the evolution of legislation on usury in the constitutional era of the Habsburg Monarchy and an analysis of Austrian legal regulations containing the first modern definition of usury in the European legislation. The change of statutory pre-conditions of usury was a reflection of economic trends in the Austrian policy of the second half of the 19th century. The author presents the issue of penalization and depenalization of usury in the juridical, political, and social context. Apart from discussing the legal boundaries of the freedom of contract, the author shows the social background of the act of 1877 that banned usury in Galicia and the particular economic and political situation of Galicia that caused the Austrian government to deviate from ultra-liberal market economy. A specific feature of the economic relations in the province was the dependence of Galician peasantry on the loans offered by Jews. The legislation limiting the freedom of contract in case of credit contracts was one of the elements of the policy of Galician government to normalize the relationships between the peasantry and the Jewish population.



Habsburg Monarchy; freedom of contract; usury; Galicia; Jews.


Eszter Cs. Herger: Die Bedeutung des vertraglichen ehelichen Güterrechts in der Modernisierung des ungarischen Privatrechts

Marriage contracts had a high significance in the Hungarian legal praxis in the period of the so called traditional law before 1848, in the 2nd part of the 19th century and also in the first decades of the 20th century. At the time, when the Austrian private code (ABGB) was in force in Hungary, marriage contracts made it possible to agree on the regular domestic legal institutes. After the repeal of the Austrian private law in 1861, marriage contracts enabled the offset from the rules of the so called statutory (consuetudinary) matrimonial property law institutions of the social orders. Marriage contracts contributed to the assimilation of minorities into one nation. The civil feature of contractual matrimonial property law makes itself felt primarily in the respect of private autonomy. Thus, it is not a coincidence that the Family Law Code of 1952 did not even contain it.



matrimonial property law; marriage contracts; codification; ABGB in Hungary.


Patrícia Dominika Niklai: Die Modernisierung des Volksunterrichts in Ungarn. Umsetzung des Gesetzes über den Volksunterricht im Komitat Baranya nach 1868

During the second half of the 19th century the modernization of education played a highlighted role in both Hungarian and Austrian efforts, however many debates aroused about its character, so – although significant accomplishments were achieved – it mostly divided the public opinion, generating wide ecclesiastical and social movements. Comparing the legal development of Austria and Hungary after 1868 the most substantial differences were the following: in Austria there were common schools under the state’s control, but they preserved the religious character of education; in Hungary church schools existed primarily, and state schools had a supplementing role. The problem was that these church schools functioned at a low level, so it was necessary to create state schools. These efforts were first documented after 1898 in Baranya county based on the regional records of the National Archives of Hungary. The aim of these efforts was the so-called ‘Hungarianization’ (magyarizáció). Most of the results were achieved in those settlements, where nationalities lived and the churches were willing to cooperate and they did not had any (appropriate) schools.



church schools; state schools; modernization of educational system; Hungary.


Orsolya Falus: The Antecedents of Civil Modernization. A Historical Example of Freedom of Religion during the Turkish Occupation in Hungary

In the beginning of the 21th century we are regularly informed by media about different churches’ religious disputes that have led to tragic consequences. Researchers of law history, however, have the opportunity to find examples in history to follow and also to avoid in order to help nowadays’ legislators. Research roots go back to historical times when peoples of different nationalities and denominations lived together in space and time. The study seeks to find out whether the positive changes that occurred in Hungary in the second part of the nineteenth century have been catalyzed by the decentralized and religiously pragmatic legal policies of Turkish domination. A lawsuit from the Turkish Occupation, Nagyharsány, Hungary, later known as the “Dispute of Buda”, is a good example of the fact that centuries ago the Ottoman Empire had successfully implemented the Freedom of Religion as a human right in the areas they conquered and governed.



religious disputes; different denominations; decentralized law policy; Turkish Occupation; Dispute of Buda; Hungary.


Krisztina Korsósné Delacasse: Der Betrug in der ungarischen Strafrechtskodifikation an der Schwelle des 19. Jahrhunderts

Through the analysis the regulation of fraud will given a potential answer to the question whether the attempts to modernize criminal law in Hungary at the late 18th century – considering this crime – are truly modern. In the comparison are included the Sanctio Criminalis Josephina (1787), a piece of legislation which is not commonly classified as belonging to the Hungarian codification, and the draft of the Codex Criminalis which was completed in 1795 by a committee set up by the Diet in the year following the death of Joseph II. According to scholars, this draft can be considered as the first stage in the process of a modern Hungarian criminal law codification, which was no longer mere incorporation but met the rules of codification in the narrower sense as well as the principles of the Enlightenment, and which was the beginning of a qualitatively new phase of Hungarian legal development.



fraud, stellionatus; falsum; Hungary; criminal law; codification; modernize; Penal Code; draft; legislation; 18th century; Enlightenment; Joseph II; Sanctio Criminalis Josephina; draft of the Hungarian Codex Criminalis 1795; Praxis Criminalis. 


Marian Małecki: Transformations of the Habsburg Monarchy Based on Relics of Legal Culture in Galicia

The Habsburg Monarchy was a specific state compared to other European countries. It resulted mainly from the number of nations that inhabited the empire, and which influenced its final shape. The recollection of the Austrian reign in Galicia was and still is not pejorative as the devices and legal solutions of that time are doing well. Preserved monuments of legal culture show the main trends of transformations, changes and, finally, state modernization of the Habsburg Monarchy. These are buildings of judicial jurisdiction, such as courts, prisons, rural arrests, administration signs (including road signs and equipment), measures of weights, units of length, places of toll collection, and administration buildings, like district offices; new spaces of communication, e.g. markets of the cities founded by Austria; symbols of power, such as border posts, thrones, heraldry of Galicia and the Habsburg Monarchy, and, finally, the seat of local parliaments.



Habsburg Monarchy; Galicia; monuments of legal culture.


Yuko Shimada: Modernisierung der japanischen Beschäftigungspraxis. Hatte der Westen einen Einfluss darauf?

The development of Japanese labor law has been influenced, for historical reasons, by German and American law. Nonetheless, Japanese labor law has retained its distinctive features, which can be attributed in particular to the so-called Japanese employment practice, namely the existence of lifetime employment, seniority wage system and enterprise trade unions. Was this Japanese employment practice also influenced by Europe? Or does it have its roots in the Japanese early modern society? In this essay I consider this question from a historical point of view.



long-term employment; seniority wage system; enterprise trade unions; Japan.


Dan Sato: Die Rechtsmodernisierung in Japan. Unter besonderer Berücksichtigung der mitteleuropäischen Einflüsse

This year marks the 150th anniversary of beginning of the Meiji era, while former countries of the Habsburgs celebrate 100th years of their independence. The last 50 years of the Habsburg Monarchy overlap with a period which was extremely important for the modernization process of Japan. This paper focuses on this period. During the last years of the Edo period, Japan was forced by Europe and America to conclude unequal treaties, the revision of which was the most important issue for the Meiji-government. For the renegotiation of these treaties, it was necessary to modernize the Japanese legal system in accordance with Western standards. This paper aims to trace this modernization process, based on previous studies, while especially focusing on the establishment of the Meiji Constitution.



Meiji Constitution; Meiji Restoration; Lorenz von Stein; Albert Mosse; Hermann Roesler; Rudolf von Gneist.


Marcin Kwiecień: Habsburgische Verfassungsentwürfe vom Ende des 18. Jahrhunderts. Das Großherzogtum Toskana und die galizische Charta Leopoldina

Peter Leopold the great duke of Tuscany 1765-1790, introduced an extensive social, legal and financial reform in Tuscany. He rationalized the tax, judicial and administrative system to ease burdens of citizen, aimed to regulated the relations between the State and the Church and promulgated a new penal code. Peter Leopold also attempted to introduce a constitution in Tuscany. This article gives a comparison between the project of Peter Leopold and the constitutional project of Polish nobility in Galicia, which belonged to the Habsburg Monarchy following the partition of Poland in 1772.



Grand Duchy of Tuscany; Galicia (part of Poland); Habsburg Monarchy; constitutional history; the Enlightenment; enlightened absolutism; state reforms.


Kinga Császár: The Constitutional Rights of Women and the Objectives of the Hungarian Women’s Movements (1867 – 1918)

The principle of equality before the law was of utmost importance in the eastern part of the Habsburg Monarchy (1867-1918). This article presents the legal status of women and particularly problematic questions concerning the above mentioned principle in the constitutional rights of women. Female suffrage, the context that rendered it possible, and the legal changes that were made before it was finally granted make up a crucial chapter in the history of women's struggles for equality. Reflecting on how this chapter unfolded in a particular country thus reveals some of the features that women's broader struggles for equality and equal citizenship took in that country. The modern concept of citizenship was based on the liberal ideas of individualism and equality, developed in the West in the 17th century, and signalled a radical break from traditional ideas of society. The contradictions that this concept of citizenship brought along for women underlie the histories of female suffrage. In Hungary, local voting rights were granted to some tax-paying women in 1871. In some Austrian lands, women could vote for municipal councils and provincial diets throughout the 19th century as long as they paid with a certain amount of property or income taxes. In spite of the early results of the civil era and the Hungarian Soviet Republic, there was a regression in political rights after 1919. The women's movements were able to obtain results in Hungary only after the World War II.



constitutional law; equality before the law; legal status of women; Habsburg Monarchy.


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ARCHIVE - Vol. 9 / 2018 No. 1



Ronnie Bloemberg: The Development of the German Criminal Law of Evidence between 1750 and 1870: from the System of Legal Proofs to the freie beweiswürdigung – Part 1

In this article a description is given of the development of the criminal law of evidence between 1750 and 1870. This period saw the transition from a relatively rigid system of legal proofs which predetermined when there was sufficient evidence for a condemnation, to a system based on the free evaluation of the evidence by either professional judges or lay jurors. The reform of the criminal law of evidence, furthermore, formed part of a more general reform of the criminal procedural law which is commonly designated as the change from the old ‘inquisitorial procedure’ to the modern ‘reformed criminal procedure’ (reformierte Strafprozess) or Anklageprozess. It is the central contention of this article that the reform of the criminal law of evidence can, to an important extent, be explained by two larger underlying ideological changes. These new ideas derived from a change in the epistemological and the political-constitutional discourses between the seventeenth and nineteenth centuries.



Criminal law of evidence; free evaluation of the evidence; eighteenth and nineteenth centuries; freie Beweiswürdigung.


Reiner Möckelmann: Hitlers Saarbeauftragter Franz von Papen

Franz von Papen is commonly known as the stirrup-holder for Hitler’s takeover in 1933. Less known is Papen’s role in the Nazi regime, namely as Hitler’s vice-chancellor and ambassador, determined by vassalage to the ‘Führer’.  Papen, a prominent monarchist and devout catholic, who in November 1933 was nominated by Hitler Commissioner for the strictly religious catholic Saar Basin, followed his mission there to build a bridge between altar and crown, i.e. between cross and swastika. His reputation in the Saar Region rested upon his marriage with a daughter of an influential industrialist and his signature of the Concordat with the Vatican, which he had negotiated on behalf of the Reich Government in spring 1933. Papen’s influence was instrumental for the outcome of the plebiscite in the Saar Region, which was under a League of Nations mandate since 1920, and got restored to Nazi-Germany by the vote of a vast majority early 1935.



Saar Region; League of Nations; National Socialism, Cross and Swastika, Plebiscite, Exile; Twentieth Century.


Jan Körnert, Jörn von Elsenau, Klemens Grube: Zur Entstehung zwangsmittel- und strafbewehrter Vorschriften im Reichsgesetz über das Kreditwesen (RKWG)

Major economic and political problems within Germany led to a banking crisis in the summer of 1931, the causes of which were addressed initially by emergency decrees, later by a committee of enquiry, and finally through the German Imperial Banking Act (Reichsgesetz über das Kreditwesen) of 5 December 1934, which remains a milestone in German banking supervision. This law introduced, inter alia, new provisions for legal and administrative sanctions as well as criminal penalties which went considerably beyond such previously existing provisions. The paper examines the evolution and enactment of these provisions in German banking law, considering not only their roots in the banking crisis and emergency decrees of 1931 but also the subsequent committee of enquiry of 1933/34 and the various precursors and drafts which preceded the final law.



German Imperial Banking Act; banking institutions; emergency decree; banking system; banking supervision; banking investigations; committee of enquiry; legal sanctions; administrative sanctions; criminal penalties.


Arnd Koch: Das Polizeistrafrecht des 19. Jahrhunderts – Bemerkungen zu einem vergessenen „Trabanten des Strafrechts“

The law of police contraventions (Polizeistrafrecht) in the 19th century is “terra incognita” of legal history. Using Germany as an example, this article is intended to demonstrate that statements on the scope of punishment remain imperfect without consideration of the law of police contraventions. The article addresses the astonishing extent of penal power by the police in the first half of the 19th century as well as fundamental criticism by liberal scholars of criminal law. Most notably, in view of Paul Johann Anselm Feuerbach, the article reveals that a theoretical distinction of “police wrong” and “criminal wrong” failed. The article presents a first overview of an undeveloped field of study and is intended to stimulate more detailed research.



law of police contraventions; history of criminal law in the 19th century; decriminalization; Frankfurt Constitution (1849); Paul Johann Anselm Feuerbach; Carl Joseph Anton Mittermaier.


Béla Szabó: Die Anfänge der ungarischen Staatswissenschaft. Politikwissenschaftliche Disputationen von ungarnstämmigen Studenten an deutschen Universitäten im 17. Jahrhundert

Over the past fifteen years, Hungarian literary historians have outlined an idea of an interdisciplinary research program that aimed at exploring the early modern history of Hungarian political thinking. One of the most important elements of the proposed work has been to ensure the availability of the texts to be analysed (or analysable) for the purposes of research. The texts to be considered for research purposes are coming from highly various genres. One of the less well-known and less exploited types of texts to be analysed are pamphlets (disputations) that are related to the politics of the period and that educated the dozens of Hungarian peregrinating students who were raised in the 17th century. Contemporary students could gain an insight through these texts and disputes into one of the most popular disciplines of the era, the fundamentals of political science.

The study and its annex attempt to identify all the disputations that were protected by students from Hungary or Transylvania at a university of Germany and the Netherlands in the 17th century. It gives an overview of the role of the disputes in the education and their place in contemporary political science. It compares the features available from the database of 3000 disputes protected at German universities with the similar data from its own collection.

In these so far underrated works, we should recognize the first traces of theoretical foundation of the Hungarian political thinking.



Hungary; German Universities; political science; early modern universities; education history.


Filippo Rossi: The Changing Structure of Labour Law: Judiciary Courts and Termination of Employment Contract in the Italian Liberal Age (1865 – 1914)

In these pages the author explains how, during the Italian Liberal Age (1865-1914), Civil Courts deal with the lack of rules regarding employment contract and dismissal (in Italian, ‘licenziamento’), providing a model confirmed by the reforms carried out in the early decades of the 20th Century and in the current legal system.



Italian Liberal Age (1865-1914); Italian Unification; History of Labour Law; Italian Labour Law History; Employment contract; Breach of employment contract; Dismissal; Civil Courts Case Law.


Carmine Galloro: Das heutige Völkerrecht: ius gentium oder ius inter gentes? 

After the years of an indiscriminate Globalization, it is to see if a universal statute of international law does really exist. Under a substantial aspect, the so called ‘Global Law’ didn’t come to be an accurate law-system. And this for several reasons: first of all, the problems of settlement, accountability, justiciability of the decisions (in a broad sense) are yet to solve. All that is so despite the fact, the Global Law is not considered formally a de iure cathegory. Other eminent Authors tried to take the concept of ‘Universal Constitution’ out from the main acts of international law, with special regard to the UN norms. The argued arguments are remarkable and in some way very original. Thank to these theories, it is possible to establish some compass points in the relations between international and regional institutions, for example UN and European Union. The fact is that no one can affirm the existence of an undiscussed (or at least most accepted) authority at international level. Notwithstanding a new kind or relations between these actors is now arising: ius gentium or ius inter gentes?



International Law; Globalisation; Universal Constitution; UN; ius gentium.


Gal Amir: 1648 or 1948? No Room for Westphalia in the Middle-East   

The article reviews the ‘religious communities' arrangement’ in Israeli family law, an arrangement that divides the citizens of Israel into religious communities, regulating their affairs of ‘personal status’ in separate religious courts, adjudicating in accordance with religious law. The article demonstrates that the Arrangement defies the concept of state sovereignty, as it is not based on ‘Westphalian’ concepts of space and territory, but on a different concept, originated in Israel's history, and Islamic pre-modern concepts such as ‘umma’ and ‘millet’ – The ecclesiastical community of believers defying perceptions of political boundaries, and other communities of non-believers, subjected to it. The article concludes with a possible justification for this challenge of the state's sovereignty, rooted in ideas of legal pluralism.



Israel; family law; sovereignty; millet; legal pluralism.


Jozef Beňa: Two Decades of the Constitution of the Slovak Republic Functioning in a Discontinual Continuity

Treatise on prescriptive and sociological-legal levels of the aspects, consequences, force and effect of the Constitution of the SR in the years 1992-2012. In the course of four months of the year 1992 the Constitution acted as a basic law of the national republic statehood of the SR within CSFR, it provided the form of legal extinction of federation and the rise of two sovereign republics. As a constitution of a sovereign state it was in force by the year 2004, until the accession of the SR to the EU. Twenty years of history of the SR Constitution were marked by ten constitutional amendments to the supreme law. The changes occurred in the period between 1998 to 2001. The Slovak Republic as an International entity is morally and legally continual with the Slovak, national and anti-fascist statehood.



Slovak Republic; ČSFR; constitution.


Ilona Bažantová: Die Kameral- und die sog. politischen Wissenschaften und ihre Begründung von österreichischen Wirtschafts- und Verwaltungsreformen in der zweiten Hälfte des 18. Jahrhunderts unter besonderer Berücksichtigung der böhmischen Länder  

The purpose of the paper is to define cameralism and political sciences in the context of the second half of the 18th century in the Habsburg Monarchy considering in particular the lands of the Bohemian Crown, to characterise enlightened absolutism and to describe the ideational background and the formation of the scientific basis at the universities of Vienna and Prague.  The paper shows that the basic thesis of cameralism that the welfare of the state depends on good and complete legislation, precise compliance with laws and educated civil service in combination with the enlightened philosophy formed the foundation of the modern codification efforts, the formation of tertiary education in economics and administration, legislative regulation necessary for economic welfare of the state, populationism and agricultural reforms. The political sciences, reflecting in terms of content and form the enlightened absolutism, became the theoretical foundation of the reforms of Austrian monarchs Maria Theresa and Joseph II.

The paper introduces in more detail the professor and Hofrat, Joseph Sonnenfels (1733–1817) from Vienna, Joseph Ignatz Butschek (1741–1821) from the Prague University, and some of their economic ideas which reflected in the reforms and measures of Maria Theresa and Joseph II. The paper focuses on agriculture and the proposals for dividing land into lots, the so called Raabschen System, and the formation of Grain contributory fund.



cameralism; political sciences; austrian economic; Joseph Sonnenfels; Joseph Ignatz Butschek.


Szilvia Bató: Die Präterintentionalität in der ungarischen Strafrechtswissenschaft und in der Kodifikation vor 1848 

The study presents opinions on the liability for crime with unintended results formed before 1848 in Hungarian criminal jurisprudence and codification. It analyses the four tendencies (dolus indirectus, culpa dolo determianata, aggravation, transient category) of German criminal law, which was used as a model in the literature of Hungarian criminal law published from the middle of the 18th century to 1848 (manuals, studies), as well as in textbook manuscripts and bills. The transient category does not occur among these, and aggravation can only be found in one bill (1843). The wide-spreading of Feuerbach's theory started with a textbook manuscript in 1813, and it has become known and at least partly accepted by every author since 1820.



dolus; culpa; dolus indirectus; culpa dolo determinate; Hungarian criminal law before 1848; crime with unintended result (praeter intentionem crime).


Máté Julesz: The Legal History of Gratitude Payments to Physicians in Hungary  

In Hungary, Act XIV of 1891 on Medical Care for Industrial and Factory Employees made it compulsory for most blue-collar workers to be members of welfare funds (betegsegélyező pénztár). In Hungary, Act I of 1936 on Medical Activity, Sec. 39(1), stipulated that physicians were entitled to a fee when practising medicine privately. In the 1970s and even for decades before and after, gratuities were paid in advance as an illegal but socially legitimate form of bribery. During the history of gratuities in Hungary, it has always been a crucial question whether to pay the gratuity to the physician in advance or only after treatment. The Code of Medical Ethics of the American Medical Association of 1847 was taken into consideration during the codification of the Hungarian Act on Health of 1972. This Code of Medical Ethics forbids physicians from accepting any payment from other physicians for medical services. However, in other cases, the Code permits the acceptance of payments for medical services as a remuneration for self-employed persons. According to the Corpus Hippocraticum, the physician is only allowed to accept money for medical services after treatment and the physician is not allowed to force the patient to pay. Gratuities for physicians in Hungary seem to be inherent to the low earnings among physicians, and the situation is similar for nurse practitioners.



gratitude payments; healthcare; Hungary; corruption; communist and postcommunist countries; putative complicity; transition from communism to free market economy.


Péter Bónis: The Use of „ius commune” as a Legal Term in the Hungarian Tripartitum 

This year we celebrate the quincentenarian anniversary of the 1517 printed edition of the Tripartitum.  In his book with legal authority in Hungary for centuries, Werbőczy used various terms to designate ius commune. In the Tripartitum, there are different terms, such as ius commune, lex communis, communis opinio, etc. In this paper, the author shows that these terms, especially ius commune and lex communis are referring to well-known authors of the ius commune (Bartolus, Baldus, A. Aretinus), although their names are not mentioned. In accordance with the long-standing European legal tradition, these terms are synonyms of ius commune in Hungary, as well. In Werbőczy’s Tripartitum, ius commune as a legal term is not referred to the common law of the Kingdom (decreta generalia), but to the European ius commune.



Tripartitum; ius commune; lex communis; customary law.


Norbert Varga: Examples of Sharking Misuses in the Practice of the Court of Justice of Szeged 

During the period after World War I, the state's interference in the relations of Civil Law and economic procedures was extremely limited. 

The commonly accepted understanding was that the price of the different commodities was regulated by the effect of demand and supply. Any intervening could only be temporary and in cases if a catastrophic circumstance occurred. As opposed to this, if these processes were so severe, that they affected the economic life due to their longitude and magnitude, then the need for regulation arose. The same thing occurred after World War I, which had a long-lasting effect on Civil Law, especially if we take the economic separation and the changes in the production and consumption processes into account. All of these made the appropriate regulation of the matter of prices a necessity. It can be assessed that the state proved to be extremely strict when it came to sharking profiteering cases in the economic life. The war and the following economic relations upstaged the individual needs. To protect the consumers, several actions deemed to be punishable, if certain ploys resulted in unfair profiteering incompatible with contemporary economic morals.



sharking misuses; court of justice; civil law; economic changes; consumer; price.


Viktória Deák: Self-defense in Theory and in Practice between 1878 and 1944  

Self-defense is one of the oldest legal institutions in the Hungarian law having the greatest traditions, the rules of which were already included in Act No. V of 1878 called Csemegi Criminal Code. The main issue of this study is how the rules of law concerning self-defense were implemented in the case-law of the Royal Court of Justice Debrecen between 1878 and 1944. For the purpose of finding the right answer to this question I have reviewed nearly 150 boxes stored under number VII.4/c at the Hajdú-Bihar County Archives of the National Archives of Hungary. After analyzing the decisions related to self-defense, I have drawn the conclusion that we cannot say there was a coherent and consistent case-law regarding this legal institution; I believe a long process of development has been required to fill the conceptual elements constituting self-defense with substance.



self-defense; history of law; case-law; Csemegi Criminal Code.


Gábor Hamza: Zum Einfluss der römischrechtlichen Tradition in der Privatrechtsentwicklung und in der Neukodifikation des Zivilrechts in Georgien (Sakartwelo) 

The author analyzes in the first part of his article the influence of the Byzantine legal tradition on the development of private law in Georgia. Special emphasis is given to the code (compilation) of king or emperor Wachtang VI in the first half of the 18th century. The comprehensive code of Wachtang VI is based mainly on Byzantine law. In the second part of the study the structure, the main institutions as well as the sources of the Georgian Civil Code promulgated and put into effect in 1997 are analyzed. The author outlines that the redactors of this code availed themselves of the scholarly achievements of the German pandectist legal science based substantially on Roman law tradition. The redactors of the Civil Code of 1997 took into consideration the French Civil Code, the German Civil Code, the Italian Civil Code of 1942 as well as the New Dutch Civil Code. The redactors of the Georgian Civil Code did not adopt the concept moniste whereby the Civil Code of Georgia is no code unique ? unlike the Italian Civil Code of 1942 and the New Dutch Civil Code.



Alexander I.; Basilika; Georgian Civil Code of 1997; code unique; Common law; concept moniste; customary law (ius consuetudinarium); Erekle II.; Hexabiblos; fiducia; German Civil Code (BGB); Italian Civil Code; iura vicinitatis; ius Graeco-Romanum (ius Byzantinum); Katharina II.; Liber Romanus Syriacus or Liber Syro-Romanus; mora creditoris; negotia iuridica; New Dutch Civil Code (Nieuw Burgerlijk Wetboek); possession (possessio); reception (receptio iuris); res mobilis; Syntagma;  Svod Zakonov Rossijskoj Imperii;  Swiss Code of Obligations; Swiss Civil Code; trust; usucaption (usucapio); usus, voluntas testatoris; Wachtang VI.


Janos Erdődy: Understanding the Concept of ius naturale in Ancient Roman Law  

The views concerning the Roman law concept of ius naturale basically come into two groups. Some authors accept the existence of ius naturale as practically binding law, whereas others regard it a pure philosophical Gedankenexperiment. This twofold state of ideas on ius naturale are fuelled for the most part by the contemporary Meinungsklima, though primary sources also raise some important issues of interpretation, increasing obscurity of this notion. In this paper we set out to give a brief outline of the abstract approach and concept of ius naturale put forward by Ulpian at the beginning of the Digest. In addition, we also try to follow the reflections and evaluations by secondary authors on this topic, trying to collect the most common arguments and counter-arguments of this topic.



ius naturale; natural law; natura; naturalis ratio; natural reason; natural order; ius civile; ius gentium; Cicero; Ulpian.


Csaba Szilovics: Public Construction Projects and Public Funds in the Roman Republic 

This paper studies the social and legal background of public constructions of antique Rome in the era of the Roman Republic. Being a financial lawyer, I was intrigued to find out more about the ancient rules of using up public funds and what corruptive and cultural influences shaped these procedures. I was also interested in finding similarities between past and present public procurement practices. In my work, bedsides the original sources, I used the monographs and summative studies of contemporary authors as well as my own expertise acquired as a public procurement consultant.



public construction; corruption; public procurement; causing damage to the state; Roman public law; ancient Rome.


Engjëll Likmeta: Historical and Criminal Law Aspects of Safeguarding Road Safety in Albania 

Criminal offenses committed against road safety in the Republic of Albania have brought about harmful consequences to human life, health and assets and not only to them. This topic has been selected as a field of scrutiny based on the highest interest it bears to human life as well as with the prospect to render the least contribution possible to the enrichment of Albanian criminal law opinion with special view on criminal offences committed against road safety.        

Understanding road types and sense based on Albanian customary law occupy a special place in this work paper.

Relying on the current criminal law, knowledge and analysis of the criminal offences regarding the violation of road traffic rules in Albania, with special focus on years 2004-2015, the Albanian monarchy and the post period of the Second World War comprise an important element of this work paper.



Law; Road; Safety; Criminal.





Diemut Majer, Wolfgang Höhne: Europäische Einigungsbestrebungen vom Mittelalter bis zur Gründung der Europäischen Wirtschaftsgemeinschaft (EWG) 1957 – Teil II

The book deals with the ideas of Europe. Europe was on one hand the center of many crisis and wars, on the other hand a center of common cultural developments – from Christendom and Enlightment up to music, poetry and arts. The text goes back into history and shows that the visions of a common Europe did not only arise after World War II, but were already present in the Middle Ages. The theories of the ancient state-philosophers and other scholars show surprising similarities with the basic problems of the EU of nowadays. Theses visions were always combined with the deep desire and many appeals for a lasting peace in Europe – in former centuries an utopia, realized only in the second half of the 20th century.



European unification; European peacemaking; sovereignty of states vs European institutions as key question from the medieval ages up to the 20th century; European ideas in the medieval ages - federation of medieval princes; conquer of the holy land - Pierre Dubois; Flavio Biondo / Urban II.; Enea Silvio Piccolomini - Christian nature of the European countries; war against the Osman Empire; reform of the church; Erasmus of Rotterdam; dominance of France in Europe; principals of international law (Hugo Grotius).




Diemut Majer, Wolfgang Höhne: Europäische Einigungsbestrebungen vom Mittelalter bis zur Gründung der Europäischen Wirtschaftsgemeinschaft (EWG) 1957


Philipp Spiller: Personalpolitik beim Berliner Kammergericht von 1933 bis 1945


Detlev Fischer: Rechtshistorische Rundgänge durch Karlsruhe. Residenz des Rechts


Patricia Zambrana Moral: El transporte en la Ordenanza de la marina francesa de 1681


Sämtliche Prozessreden von Marcus Tullius Cicero


Eberhard von Künßberg: Die Entwicklung der deutschen Rechtssprache


Gerd Kleinheyer, Jan Schröder (Hg.): Deutsche und europäische Juristen aus neun Jahrhunderten


Andreas Deutsch/Peter König (Hg.): Das Tier in der Rechtsgeschichte


Tina Bode: König und Bischof in ottonischer Zeit. Herrschaftspraxis – Handlungsspielräume –Interaktionen


Michael Stolleis: Verfassungs(ge)schichten



Contents download here:


ARCHIVE - Vol. 8 / 2017 No. 2



Christian Neschwara: Die Brünner Kompilationskommission und ihr Entwurf für die Einleitung zum Codex Theresianus. Ein Beitrag im Hinblick auf „300 Jahre Maria Theresia“

This contribution, relying on preliminary publications, picks-up the performances rendered by the Commission for drafting the Codex Theresianus as a general Civil code for all Austrian hereditary provinces within the period between 1753 and 1756 at Brno. According to these efforts a singular script, conserved by the Moravian State Archive, is dealing with the introduction of the Codex Theresianus. It offers an insight into the methods of applicating and practising sources of law by the members of this commission under the leadership of Joseph Azzoni, an expert on Bohemian law. For this reason those sections within this draft, which are dealing with customary law and legal interpretation, will be edited in the annex to this contribution.



civil law; Codex Theresianus; codification; customary law; legal interpretation unification of law.


Andrew Watson: Changes and Influences on Jury Advocacy in England and Wales during the Second Half of the Twentieth Century

Alterations in advocacy during the second half of the 20th Century before juries in English and Welsh courts, are considered. Reasons for them included: falling away in the use of Aristotle’s ancient order of closing speeches, an enormous expansion in eligibility to serve on juries, following the Juries Act 1974, resulting in major adjustment to the way jurors were addressed and to different allusions and references used by advocates; reduction, and eventual abolition, by the Criminal Justice Act, 1988, of peremptory challenge of jurors; prosecutions conducted in greater measured tones and more methodical and less aggressive defences; reduced weight given to police evidence by jurors; less heavy drinking , generally little discussed, by some barristers, and the positive effects of this on their performance in court; a rise of plea bargaining and the need to mitigate effectively after guilty pleas; introduction of Social Enquiry Reports and their effect on pleas in mitigation; the need to make, and respond to, submissions arising out of key changes in evidence and procedure.



England; Advocacy; Twentieth Century.


Heidi R. Krauss: „Zwischen den Zeilen des Rechts“. Zu verschiedenen Funktionen der Siete Partidas Alfons X. von Kastilien

The Siete Partidas, the famous law code, of Alfons X. of Castile, written in the 13th century offers us a great variety of topics which have to be investigated more detailed. The central question is, which functions has the text besides being a law code? The encyclopedic character of this work, provides an insight into daily life of medieval Castile and mirrors the historical frame in which it was written. One of the central ideas of the Siete Partidas was to unify the existing „laws“ in the Kingdom of Castile. But, unification also means a centralization of the power which was embodied by the king. The fact, that this was not completely accepted by other powerful people of that time made it necessary for Alfons X. to legitimate his own power. This article highlights different functions of the Siete Partidas of King Alfons X. of Castile based on a discourse analysis and a hermeneutical interpretation.



Alfons X.; Siete Partidas; 13th century; discourse analysis.


Christoph Bezemek: Leviathan’s Heir. Enlightenment Philosophy and Hereditary Monarchy

Hereditary monarchy and enlightenment political theory hardly seem to be reconciled at first glance. And yet, the advantages and disadvantages of monarchical succession according to lineage were a continuous subject of debate between some of the most prominent enlightenment thinkers. Outlining this debate, the paper at hand gives an – even if eclectic – account of a controversy that spans over more than two and a half centuries.



Monarchy; Succession; Lineage; Enlightenment.


Dmitry Poldnikov: The Functional Method as the Staple of Comparative Studies of European Legal History in the Early 21st Century?

Europeanisation of legal scholarship and legal education facilitates the emergence of comparative legal science as a promising fresh tool to discover similarities and differences between two or more jurisdictions and their development in the past through their comparison. Yet, the specific methodology of such studies is still not clear. Some legal historians hold the opinion that comparative legal history does not or should not have its own methodology other than that of comparative law. Others warn against imposing on legal history the contemporary agenda and toolbox. The author of this article aims to clarify this debate by examining the prospect of applying one of the most popular methods of comparative law – the functional one – in the domain of legal history. On the basis of several examples from European legal past he claims that examining the functions (the social purpose) of legal norms can help legal historians in three ways. First, to determine the objects of comparison and the sources of analysis, despite the variety of verbal shortcuts (the initial stage of research). Second, to analyse legal norms from the perspective of solving social problems in the past, to study the 'law in action'. Third, to arrange the results of the research according to meaningful criteria at the final stage.



comparative legal history; methodology; functional method; European legal tradition; tertium comparationis; praesumptio similitudinis.


Eszter Cs. Herger: Die Mitgift. Beiträge zur Ausdeutung des traditionellen Familienmodells im ungarischen Ehegüterrecht

Dowry, as part of the married women’s property was present in the traditional, than in the civil era of the civil law, independent of the nobility or other social standing. Though Béni Grosschmid mentioned dowry as „scant“ or „incidental“, still he made place for this institution as alternative for the women’s free property in the first draft for the Civil Code (1900). The author of this essay used original archive records of civil cases from the Baranya County Archives, and analyzes the form and content of the dowry in the everyday life during the second half of the 19th century.



dowry; matrimonial property law; Hungarian legal history; Austrian law in Hungary; emancipation.


Csaba Cservák: A Historical Overview of the Emergence of Certain Electoral Systems

Around the world we can face with a big diversity in the voting systems. Within certain limits governments have the right to determine how many votes a single citizen is allowed to cast, and how. Therefore we can also find majority-, proportional- and preferenital electoral systems even only in Europe. Single- and multiple-vote systems are neither unfamiliar. While the vote-transfer system is currently employed in Malata and Ireland, until then Germany applies the personalised PR-system. Electoral system in Hungary have changed over time. According to Act XXXIV of 1989, until 2010, the electoral system was an archetype of mixed voting systems: in it, it is possible to gain a mandate both in a single district and through party lists. The Parliament operates with 386 representatives. In 2010 the system was changed under the Act CCIII of 2011. It is still a mixed system, but there are only 199 mandates can be won: 106 in relative majority single constituencies and 93 on a national list. Since it provides compensation after the votes cast in single districts, it is also, essentially, a compensational system.



majority voting; premium list; vote-transfer; personalised PR-system (in Germany), Hungarian electoral model.


Engjëll Likmeta: Albanian Assembly (Parliament) between Tradition and Development. A Historical-Legal Approach

In the context of the testimony of ancient legislature traditions, particular attention should be paid to the legislative branch and the development of parliamentarism as an invaluable asset of the Albanian people.

This paper’s goal is to consider the law-making institutions from the historical-juridical perspective as a special form of social and political organization. These institutes are shaped in a manner that is conducive to the development and consolidation of the Albanian state. From time to time they have remained solid in relation to the international jurisprudence, thus enabling the development of an original parliamentary tradition whose roots are deeply rooted in Albanian customary law.

In this paper, the stages through which the Albanian parliamentarism has passed constitute an important part. The Albanian historiography considers the Vlora Assembly of 1912 as the embryonic stage of the contemporary Albanian parliamentary system. The author believes that the Congress of Lushnja, the legislative power in the Albanian Kingdom’s Constitution and the contemporary period of political pluralism are of the same importance.

In particular, this paper writing will duly consider with the deserved attention the modern Albanian electoral legislation and its specifics.



Assembly; Legislative; Law; Electoral.


Maria Lewandowicz: Is there a Polish Legal Tradition? on the Margins of Considerations Regarding the 1933 Code of Obligations

Acknowledging the stance of Savigny on the organic connection between law and nation as correct, I will attempt to resolve within this paper if the term of 'legal tradition' may also be applied to the Polish nation. The 1933 Code of Obligations, which was drafted in a country recently reborn following over a century of political non-existence, is a particularly fitting object for such an analysis. I will try to show that national identity in the area of law may be shaped not only by the use of 'indigenous' norms in the legislative practice, but also by the consolidated, centuries-long tradition of implementation and adjustment of foreign laws to the current social needs of a given society.  I will expound that the existence of a national legal tradition does not necessarily require the simultaneous existence of a nation state. For this purpose, I will perform a comparative analysis of Polish law throughout time, starting from the 16th century, when Poland was a stronghold of power on the geopolitical map of Europe, all the way to the Second Republic of Poland and the 1933 Code of Obligations. Only a broad research perspective will make it possible to observe the recurring mechanism of drafting and application of law, thus enabling the identification of legal tradition.

The Polish legal tradition is based on both the method of adjusting law and on normative contents. The method consists of implementing foreign principles, that is of adopting a specific - in this case: foreign, normative content, which remains foreign only until it has been accepted by the society as a collection of laws of national character. Thus was the situation in Poland both before the partitions and in the interwar period. Of course, the undertakings of the Codification Commission that drafted the 1933 Code of Obligations may be assumed to have been unconscious, yet it does not deprive these undertakings of their traditional quality. This is due to the fact that the stance of the legislator and of the society toward the law is shaped by the spirit of the nation, in which a more or less conscious transmission of values and principles takes place, and these values and principles are capable of persevering also through periods of social disintegration, as was the case of Poland under partitions.



Legal tradition; Polish Code of Obligations; codification.


Zoltán J. Tóth: The Abolition of Capital Punishment in the major Countries of Europe

The present paper deals with the history of abolitionism in the main European states. This essay first introduces the course of abrogation of capital punishment in its Italian cradle, then it details the steps by which the status of this kind of sanction changed in France, Germany, Austria, Switzerland, England and the Russian and Soviet Empires during the past centuries and, chiefly, the past decades. The present article covers both the early results of the abolitionist movement in the countries analysed, and the final cessation of this legal institution by which these states discontinued the practice of capital punishment for good and all.



capital punishment/death penalty; criminal law; abolitionism; Enlightenment.


Da Lu: The Birth of Communist Party and Soviet Constitution between China and Hungary

China and Hungary shared a similar memory of socialist experiences in the communist period since 1949. Nevertheless, the communist regime was not out of thin air. The history of Communist Party in China could be traced after the failure in the Paris Peace Conference in 1919. The disappointment of the “Great Power” forced the young Chinese turn to ask for help from Soviet Russia. In Hungary, the story is quite similar. The Paris Peace Conference disappointed Hungarian, some Hungarian who accepted communist were sent to Hungary from Russia. Sooner, the first soviet experiment happened in Hungary, the Hungarian Soviet Republic. In this article the author will introduce the birth of Communist Party and the soviet Constitution between China and Hungary.



birth; communist party; soviet constitution; China; Hungary.


Mónika Ganczer: The Effects of the Differences between the Austrian and the Hungarian Regulation of the Rights of Citizenship in a Commune (Heimatrecht, Indigénat, Pertinenza, Illetőség) on the Nationality of the Successor States of the Austro-Hungarian Monarchy

The rights of citizenship in a commune were characteristically used in Central Europe as a basis of the regulation of nationality of persons affected by state succession, and the peace treaties concluded after the First World War by the successor states of the Austro-Hungarian Monarchy notably included this criterion. Although the rights of citizenship in a commune seemed more serviceable criterion during at the peace conference than habitual residence in these states, the different domestic regulations concerning Austrian and Hungarian territories and their interpretations by other states caused numerous problems and resulted in statelessness en masse. The aim of the present paper is to analyse the features and the differences of acquisition and loss of Austrian and Hungarian rights of citizenship in a commune, and to reveal their practical and interpterational problems. This study identifies the problems related to the nationality of persons affected by state succession after the First World War. These problems may also serve as an important lesson for the present, as the criteria that define persons concerned by the change of nationality in modern cases of state succession need to be selected carefully.



rights of citizenship in a commune; Heimatrecht; indigénat; petrinenza; illetőség; nationality; state succession; peace treaties.


Janka Teodóra Nagy: Zoltán Magyarys Rolle in der dogmatischen und praktischen Begründung der ungarischen sozialen Verwaltung zwischen den beiden Weltkriegen

The present study focuses primarily on the interpretation of the idea of social administration by Magyary Zoltán among his many crucial contributions to laying the gomatical and practical grounds for Hungarian social administration. Already in his lectures and studies in the 1930s he had defined and later redefined, refined and enhanced the term of social administration. His analyses, dogmatical founding and definitions were reinforced by a complex perspective on a wide range of social sciences. As the founder of a modern synthesis of the science of administration in Hungary, he has also played an important role in reforming social administration that had become more and more important in public policy. He has enhanced the theory of administration with practical experiences of social administration and with the results of novel research on the subject.



Zoltán Magyary; administration; history of administration; social administration; productive social policy.


Siska Katalin: The Presidency of Religious Affairs of the Republic of Turkey – The Legal Oddity

In Turkey, the Presidency of Religious Affairs (Turkish: Diyanet Işleri Başkanligi referred to simply as the Diyanet) is an official state institution established in 1924 in article 136 of the Constitution of Turkey by the Grand National Assembly of Turkey. According to the Article 136 „The Presidency of Religious Affairs, which is within the general administration, shall exercise its duties prescribed in its particular law, in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity.” The official website of the Diyanet states: “It is obvious that, in any case, a corporal identity is needed to carry out religious affairs pertaining to faith, which is an indispensable element of social life (…) that stem from the own tradition and culture of the country. (…) As well as the affairs concerning the religion of Islam, which is religion of majority, the Ottoman Empire conducted religious affairs of minorities in a sense of public service”. The Presidency regulates religious affairs, yet does it really serve the principle of secularism in Turkey for more than 80 years? This clear paradox was the main reason of my choice of subject in this paper where my aim to map the legal basis, main principles and foreign policies of this Office.



Republic of Turkey; administration law; religious affairs; Presidency of Religious Affairs of the Republic of Turkey.


Stephanie Kucharski, Thomas Gergen: Jüngste Entwicklungslinien in der Urheberrechtsgeschichte - das „Gesetz zur verbesserten Durchsetzung des Anspruchs der Urheber und ausübenden Künstler auf angemessene Vergütung“ vom 1. März 2017

This article highlights the situation before the implementation of the german law titled „Gesetz zur verbesserten Durchsetzung des Anspruchs von Urhebern und ausübenden Künstlern auf angemessene Vergütung“, which became effective on March 1, 2017. For the first time the right for a reasonable remuneration was set up in the German law. Besides the representing part of this article - which describes the economic situation of the creative industry, the position of authors and the owner of the rights, as well as the resulting question about motivation of the authors and the importance of a new law - the article gives an overview about the recent developments of the German copyright and points out the necessity of further improvements of the law to satisfy the rights for a reasonable remuneration of the authors.



History of copyright; Improvement of the rights of authors and artists for a reasonable remuneration.


Diemut Majer – Wolfgang Höhne: Europäische Einigungsbestrebungen vom Mittelalter bis zur Gründung der Europäischen Wirtschaftsgemeinschaft (EWG) 1957 – Teil I.

This article deals with the ideas of Europe. Europe was on one hand the center of many crisis and wars, on the other hand a center of common cultural developments – from Christendom and Enlightment up to music, poetry and arts. The text goes back into history and shows that the visions of a common Europe did not only arise after World War II, but were already present in the Middle Ages. The theories of the ancient state-philosophers and other scholars show surprising similarities with the basic problems of the EU of nowadays. Theses visions were always combined with the deep desire and many appeals for a lasting peace in Europe – in former centuries an utopia, realized only in the second half of the 20th century.



European unification; European peacemaking; sovereignty of states vs European institutions as key question from the medieval ages up to the 20th century; European ideas in the medieval ages - federation of medieval princes; conquer of the holy land - Pierre Dubois; Flavio Biondo / Urban II.; Enea Silvio Piccolomini - Christian nature of the European countries; war against the Osman Empire; reform of the church; Erasmus of Rotterdam; dominance of France in Europe; principals of international law (Hugo Grotius).





Norbert Gross: Reinhold Frank, Urteil – Vollstreckung – Nachurteil


Alexander Krey: Die Praxis der spätmittelalterlichen Laiengerichtsbarkeit. Gerichts- und Rechtslandschaften des Rhein-Main-Gebietes im 15. Jahrhundert im Vergleich


Der Wiener Kongress von 1815 im Spiegel der rechtshistorischen Literatur (Sammelrezension)


Gerhard Deter: Zwischen Gilde und Gewebefreiheit (Bd 1, Bd 2)


Michael Lauener: Jeremias Gotthelf – Prediger gegen den Rechtsstaat


Petr Toman, Ondřej Šebesta: The Nestors of Czech Advocacy (fascinating lives between sections)




Zum 300. Geburtstag von „Kaiserin“ Maria Theresia – Lebensskizze einer Reformerin


70. Geburtstag von Dr. Martin Vogel



Contents download here:


ARCHIVE - Vol. 8 / 2017 No. 1



Peter Lutz Kalmbach: The German Courts-martial and their Cooperation with the Police Organizations during the World War II

The article focuses on the military justice of the Wehrmacht and their investigation organizations. The armed forces of the Third Reich had command over hundreds of court-martials. These military courts supervise the discipline inside the army. Moreover, they were part of the occupation force of the occupied European territories. Besides the authority over the German soldiers the military judges could also decide on German and foreign civilians. Various police organizations lead investigations for the court-martials of the Wehrmacht: especially the Field-Gendarmerie, which was created in 1939 to work for the military justice just as the Geheime Feldpolizei (Secret Field-Police). The members of these formations had a bad reputation, because their methods of work were brutal and ruthless. On demand the German court-martials cooperated also with the German Ordnungspolizei (Civil Order Police), the Geheime Staatspolizei (Secret State Police) and with police organizations of the occupied European nations. During the war the military tribunals operated more radical and they always declared more death sentences. In the end of 1943 a new type of military police arose:  the Feldjäger-Kommandos (Field Hunter Commands). They consisted of disguised sergeants and officers of the Wehrmacht and the SS. Part of the Field Hunters were special military courts. But in this case the police had the commanding power over the judges - not vice versa. Towards the end of the war continuously more and more special police and SS units were created, which supervised the area behind the front. Instead of regular military tribunals these units worked together with flying drumhead trials, which let people be executed in the public.


Key words

Second World War; Third Reich; military courts; courts-martials; military judges; secret field police


Martin Löhnig: Zur Geschichte des Erbverzichts

The renunciation of inheritance is a common instrument of the preventive administration of justice. It enables the undivided transfer mortis causa of a greater fortune to a single legal successor. Also, as a consequence the admission of the renunciation of inheritance declared before the death of the testator has a big social relevance. This article intends to demonstrate the legal political as well as the dogmatic development of the renunciation of inheritance.


Key words

Renunciation of inheritance; contract of inheritance; inheritance law of the daughters; church as heiress.


Raluca Enescu: The Imperial Court of Justice, Police Authorities and Bertillon’s Measurements

At a time of social and political tensions, the Imperial Court of Justice rendered a unique judgment addressing the practice of police forces with a method of identification developed a few years earlier by Alphonse Bertillon, an anthropologist working at the police prefecture in Paris. An analysis of the line of argumentation of the judges shows how this decision extended the use of identification techniques and sheds light on the objective of their activities more than a century ago. Bertillon’s initial incentive to identify recidivists shows moreover how technical and scientific developments can serve law enforcement and contribute at the same to the production of wrongful convictions.


Key words

Identification technique; forensic analysis; Imperial Court of Justice; law enforcement; police authority; wrongful conviction.


Marta Rodrigues Maffeis Moreira: Medical Responsability in Roman Private Law

Nowadays medical responsibility is a very important issue in private law. However, Roman Private Law had already been concerned about several aspects of civil responsibility of the medical doctor, pointing out, at times, different, but possible solutions, to a particular issue, which highlights the fact that it is a polemical and complex matter.


Key words

Medical liability; Civil Responsibility; infirmitas.


Gábor Hamza: Römisch-Holländisches Recht (Roman-Dutch law, Romeins-Hollands recht, Romeins-Hollands reg) und sein Geltungsbereich in Europa und außerhalb Europas

The Humanists Legal School developed in the Netherlands in the course of the seventeenth and eighteenth centuries. The eminent epresentatives of “elegant jurisprudence” were Arnoldus Vinnius, Anton Schulting, Paulus Voëtus, Iohannes Voëtus, Cornelis van Bynkershoek, Gerhard Noodt and Ulrich Huber. Mentioning deserves also Hugo Grotius, one of the founding fathers of modern international law. Dutch jurists exercised a significant influence also on legal science all over Europe as well as in a significant number of countries (territories) outside Europe. Their greatest achievement was the application of Roman law to modern conditions. In 1838 the French Code civil was replaced in Holland by a national civil code entitled Burgerlijk Wetboek. It basically followed the French model with the exception that it contained the law of property in two books. It was professor Eduard Maurits Meijers who maintained, before and after the Second World War, that a recodification of private law was necessary. After the Second World War E. M. Meijers got adherence with his idea that a new Civil Code should be made. In 1947 he was entrusted with the revision of the civil code of 1848. Meijers managed to publish the draft of four volumes out of the planned total of nine before his death in 1954. The new Dutch civil code does not contain, unlike the German Civil code, a general part but the common regulations of property law and the law of obligations are dealt with in separate volumes. The new Dutch Burgerlijk Wetboek that came i.e. comes into force gradually has taken several of its legal principles as well as institutions from Roman law.


Key words

Roman-dutch law; Roman law; influence in Europe and beyond Europe.


István Sándor: The Medieval History and Development of Company Law

In the business life, the company is one of the most significant legal instruments for capital collection and conducting trade activity with limited personal liability. The modern company forms have direct antecedents in the medieval laws. The roots of the limited partnership can be recognized in the rules of commenda and the operation of the medieval banking and trading houses had impact on the regulation of modern stock companies. The study aims to give an overview about the origin and development of the company types in the Middle Ages.


Key words

Company; societas; commenda; charter company; regulated company; joint stock company; limited liability.


Guy Lurie: What is Modern in the State of Exception?

In this article, I explore the modernist assumption inherent in discussions of emergency powers, or, the state of exception. I dwell on some of the modern aspects of the state of exception through an overview of some examples from both pre-modern and modern political theory. More specifically, I examine the history of the political language of the state of exception. I do so in the context of three influencing and interconnected developments: the rise of the state, changes in perceptions of authority, and developments in conceptions of law. In doing so, this article contributes to the robust scholarship on emergency powers and the state of exception by combining an historical analysis of pre-modern and early modern primary sources with an institutional contextualization (the rise of the state) as well as a political theory and legal theory contextualization. In essence, for the Hobbesian modern state, the potential temporary constitutional dictatorship is part of the regular sovereign power. Within this power, I distinguish between the exception outside the law and the exception within the law, which are in a dialectical relationship. The exception outside the law, which was the state of exception on which Carl Schmitt wrote, was unimaginable prior to modern times, since it was tied to the modern positivist understanding of law.


Key words

State of Exception; Emergency Powers; Carl Schmitt; Hobbes; The Modern State.


Ivan Kosnica: Citizenship in Croatia-Slavonia during the First World War

The paper deals with the concept of national citizenship in Croatia-Slavonia, a land within the Austro-Hungarian Monarchy, during the First World War. Citizenship is analysed as multidimensional concept that includes status, rights and identity. The research question concerns influence of war on each dimension of citizenship. Therefore, in the status dimension, analysed are practices of acquisition of citizenship by naturalizations, and practices of loss of citizenship by dismissals and absence. In the dimension of rights analysed are passports and changes in migration regime. In the dimension of identity analysed is the issue of loyalty of citizens. The paper shows that the war significantly influenced all three dimensions of citizenship. The research bases on relevant literature, legislation and in great part on archival sources available in the Croatian State Archive.


Key words

Citizenship; Croatia-Slavonia; Austro-Hungarian Monarchy; First World War; naturalization; dismissal; absence; passport; migration; loyalty.


József Szalma: Solidary and Divided Liability of Joint Tortfeasors - with Special Regards to the Provisions of the New Hungarian Civil Code

According to the generally accepted standpoint in the historian and comparative literature, solidary liability should be established restrictively and not generally. The liability for nonperformance of multiparty contractual obligation, just as the contractual liability for damage arising from nonperformance, is solidary, if it explicitly provided so by a clause in the contract. The new Hungarian Civil code prescribes solidary liability of joint tortfeasors as a general rule, instead of divided liability, where the share of the tortfeasors is determined taking into account their contribution in causing of or their accountability for the damage.


Key words

Hungary; civil code; solidary; divided Liability; joint tortfeasors


Michał Gałędek: Juridification as an Ideology of Polizeiwissenschaft in 18th Century

The focus of this article is the juridification of the public domain, which took place in Germany in the period of 16th-18th centuries. Juridification is perceived here as a manifestation of a certain ideology which shrouded, as it does currently, the need for bringing order to the state and the belief that this may be accomplished through the meticulous regulation of the public sphere. The constantly increasing number of provisions is presented by the public authorities as beneficial to the public good and, per facta concludentia, it is perceived as such by a wide circle of indoctrinated recipients. 


Key words

Juridifaction; Polizeiwissenschaft; cameralism; ideology; German science; police state; well-ordered state; science of police.


Adolfo Antonio Díaz-Bautista Cremades – Patricia Blanco Díez: Execution of Tax Credits in Rome

From very soon the forced execution of tax debts followed a different path to the rest of debts. Although we have no news about the details of the application of the manus iniectio, the legis actio per pignoris capionem marks the origin of the executive privilege of the tax credit, which does not seem to have been subjected to the actio iudicati proper of the process per formulas. The sources, on the other hand, provide detailed information on the application of the singular execution (pignus in causa iudicati captum) to the levying of tax debts.


Key words

Execution; tax debts; judicial seizure; pignus in causa iudicati captum.


Iván Siklósi: Some Thoughts on the Inexistence, Invalidity and Ineffectiveness of Juridical Acts in Roman Law and in its Subsequent Fate

Our study can be considered as a brief contribution to the well-disputed questions of the so-called inexistence, invalidity, and ineffectiveness of legal transactions in Roman law and in its subsequent fate.

As a theoretical starting point, we emphasize that there are four levels of ability for producing legal effects: 1. inexistence (when a legal transaction is not able to produce any typical legal effect; 2. invalidity (when a legal transaction exists but it is not able to produce the intended legal effects); 3. ineffectiveness (when an existing and valid juridical act could produce the intended legal effects, but only potentially and not actually); 4. effectiveness (when an existing, valid, and effective legal transaction is actually producing the intended legal effects).

After the Introduction, the problem of inexistence of legal transactions, some questions of the invalidity of legal transactions (e.g. terminological questions; elimination of the cause of invalidity; partial invalidity), and the problem of the ineffectiveness of legal transactions will be analysed. Finally, our most important conclusions will be summarized.


Key words

Juridical act; inexistence; invalidity; ineffectiveness; punitive character of invalidity; terminological inconsistency and the great variety of Roman law sources concerning invalidity; nullity and annulment of contracts; convalescentia; conversio; partial invalidity; revocation of will.


János Jusztinger: Economic Significance of the Ancient Roman Superficies

This study deals with the dogmatic issues related to the origin and basic economic purpose of the ancient Roman hereditary building lease. It introduces the development of superficies, the process of having a contractual basis then gradually becoming a legal institution belonging to the right in rem during the history of Roman law. The analysis breaks with the thesis drawing a parallel between superficies and hereditary lease (emphyteusis), which has been prevailing in literature for a long time. In order to determine the exact content of hereditary building lease first of all it tries to give a clear picture of the causas establishing superficies by the thorough analysis of the relevant primary legal sources. Regarding the point of this legal institution, the study determines it as the superficiarius’s constant and – at least from the late classical period – transferable and inheritable right of building use, which was not bound to a certain person.


Key words

Roman law; hereditary building lease; superficies; inaedificatio; solarium; emphyteusis; economic significance; causas establishing superficies; primary entitlement; right of building use.


Janos Erdődy: “Parsimonia atque tenuitas apud veteres custodita sunt” Certain Aspects of Laws Preventing Extravagant Expenditures in Roman Law

Sumptuary laws, the legislative measures of the Roman republic and early imperial era, were aiming to restrain extreme and extravagant expenditure via limiting the amount of money spent on feasts, games, funerals, weddings and other social events. Not much interest is shown in sumptuary laws: contemporary jurisprudence regards it as a limitation of property, a minority of authors deem these laws the results of a social legislation, whereas earlier secondary works put a stress on their historic impact. As a first step in the detailed research of the topic of sumptuary laws, this paper intends to give an outline of the actual content of these laws, in a chronological order. Such a primary source-based analyses could serve as the first step towards a better understanding of the Roman concept of limitation of property.


Key words

Sumptuary laws; leges sumptuariae; property; limitation of property; luxury; extravagance; Gellius; Macrobius.


Ibolya Katalin Koncz: Morning-gift, a Special Marital Legal Instrument

The morning-gift as an instrument must have been an integral part of the legal system of the era for decades or centuries. In the history of Hungarian law, the instrument of morning-gift existed until the time of the 19th century civil law codification efforts; even during the discussions on the civil law bill debates, its basic form was intended to be eliminated, whereas written morning-gift was wished to be kept.

The first specific sum was determined in Werbőczy’s work. In periods before Werbőczy, the extent of this legal instrument was not provided; it was the social status and properties of the husband that were considered.

However, in the second half of the 19th century, it was pointed out that whereas specific sums were favourable in former times, as the given sum was the amount payable to the wife as a minimum, the inflation caused the sums specified in the legislation to be ridiculously low.


Key words

Morning-gift; Marital; civil law; separate legal instrument; lawful morning-gifts; written morning-gift; marital property law; Webőczy; Tripartitum; Szladits; Benő Zsögöd.


Máté Pétervári: The History of Hungarian Civil Service from the Austro-Hungarian Compromise of 1867 to the First World War

The Hungarian legislation was able to concentrate its powers on modernizing the organizational system of the state and forming the burgeouis state after the Compromise. It was at that period when an increased demand for the uniform settlement of the situation of civil servants and for the creation of „közszolgálati pragmatika” (service pragmatics) arose. As a result of the government’s efforts to settle the issue several proposals were created, none of which were finally discussed by the National Assembly. In my paper I would like to demonstrate the efforts made in Hungary to create uniform regulation on civil servants at the end of the 19th century and at the beginning of the 20th century based on legal literature and National Assembly transcripts.


Key words

Hungary; public administration; civil service; civil servants; National Assembly; Association of civil servants; service pragmatics; pension; appointment.


Katalin Siska: Thoughts on the Special Relationship between Nationalism and Islam in Particular the Late Ottoman Empire and the Early Turkish Republican Era

Due to the strong position of Islam in Turkish context the issue of secularism is the first and foremost significant principle of modern Turkey that has always remained on the national agenda as the most polarizing political problem. In my opinion Islam in Turkey was never completely abandoned but in fact has been continuously and strategically used in Turkish political life for pragmatic reasons. I think it is deeply related to Islam’s symbolic power, its potential to provide a sense of belonging and cohesion as well as present a code of ethics for people that think of themselves as sharing a way of life. So there is no exaggeration to say that the secular Turkey's most successful political ideologies, trends contains noticeably Islamic ideas, elements. In this paper the relationship between Turkish nationalism, identity and Islam is examined in the Turkish nationalist debates of the late Ottoman and early Republican era. I focus only those disputes in which the compatibility between the ideas of Islam, nationalism and modernism is proven. I analyze the two most significant thinkers of the late Ottoman era because they influenced the dominant thinkers of the officially secular Kemalist era which created the ideological basic of the present Turkey.


Key words

Turkey; Islam; Islamism; Secularism; Nationalism; National Identity; Identity Crisis; Kemalism.


Jiří Bílý: The Basic Methodology Problems in Study of Medieval Political and Legal Thought 

The present article offers the single magisterial view to be found in a Gierke, a Carlyle, or an Ullmann. Its aim is, rather, to present a conspectus, as comprehensive as is possible within prescribed limits of space, of the present state of historical scholarship in the field surveyed. Such a conspectus need not be, nor is it here, so neutral as to preclude critical assessment. The judgements of the authors concerned have been brought to bear upon the issues arising in scholarly debate; and since the division between one article and another cannot be absolute and rigid, there is room for differences of emphasis and approach in the handling of topics that are relevant to more than one article. It is hoped that such differences do not amount to contradictions and that their presence may yield a degree of cross-fertilisation rather than confusion.


Key words

Political theory; law; thought middle age.


Veronika Steinová: National Mobilization of Labour Force in Czechoslovakia (1945 – 1949)

The regulated mobilization and distribution of the labour force is a process in which individual workers are allocated to work positions in specific branches or fields of social production in such a way as to enable together the functioning of the overall social work.

After the end of World War II was a labour shortage in Czechoslovakia and of course the Czechoslovak economy focused on the needs of the war. The structure of the labour market (the employment rate and distribution of the labour force in individual branches and regions) was completely uneven. The District Labour Protection Offices were established pursuant to the Ordinance No. 13/1945 Sb., to provide for the temporary building up of Labour Protection Offices and Regulation no. 164/1945 Sb., to provide for districts and seats of District Labour Protection Offices and their branches. The compulsory recording of all changes in employment relationships was gradually implemented. A job seeker and also an employer had always the duty to apply to the Labour Protection Office when seeking or offering a job (Under Ordinance No. 15/1945 Sb.). The award prior approval of a competent District Labour Protection Office is the most important requirement to enter into the valid employment relationship (apprenticeship).

In Czechoslovakia was in 1946 – 1947 planned the labour force mobilization (based on a voluntary) only for some individual areas of the economy. Only after two years the state proceeded to the central planning of the labour force mobilization.

At the turn of the 1940s and 1950s, plan-based labour force management can be divided into reproductive movement of the labour force, recruiting new labour resources from adult citizens capable of work who had not yet been engaged in the work process or redistribution of the labour force (placement of workers within sectors. School graduates represented the largest labour recruitment as for the number of workers. The socialist law knew three major methods of the planned movement of the labour force: the selection of job seekers carried out by social authorities, recruitment of workers, direct (administrative) orders to place workers into the labour force.


Key words

National Mobilization of Labour Force; the Labour Protection Office; The compulsory recording of changes in employment relationships; mobilizing the labour force; the Communist programme of reconstruction of Gottwald´s government (two-year plan); the regulated mobilization; the distribution of the labour force; direct (administrative) orders to place workers into the labour force.


Vojtěch Vrba – Pavel Homolka: Constitutional Conflict as the Basis for American Revolution

Presented work deals with the issue of unconstitutionality of the Stamp Act, issued by British Parliament in the 1765. Authors analyse the primary sources (obtained from the Yale University database of Avalon project) in context with literature related to the issue (in minor extent Czech and primarily English). Because of the extent of the issue, only one particular colony of the Thirteen was chosen – the colony of Connecticut. The work tries to argue, that there was no formal imperfection of the Act, and so it had to be repealed not because of legal reasons, but because of the reasons presented by a public opinion.


Key words

American revolution; Connecticut; Constitutional law; taxation.



Eva Kell – Sabine Penth (Hrsg.): Vom Empire zur Restauration. Die Saarregion im Umbruch 1814-1820.


Beiträge der Wissenschaftlichen Tagung zum 175jährigen Jubiläum des Historischen Vereins für die Saargegend e.V.


Patricia Zambrana Moral: Estudios de Historia del Derecho penal. Vindicatio, inimicitia y represión penal en el Derecho espanol medieval y moderno


Guido Fontaine: Fraulautern im Dritten Reich - die Geistlichkeit im Widerstand


Janine Wolf: Aspekte des Urheberrechts bei Carl Maria von Weber, Albert Lortzing und Otto Nicolai


Johannes M. Geisthardt: Zwischen Princeps und Res Publica. Tacitus, Plinius und die senatorische Selbstdarstellung in der Hohen Kaiserzeit


Susanne Hähnchen: Rechtsgeschichte. Von der Römischen Antike bis zur Neuzeit


Christian Fischer – Walter Pauly (Hrsg.): Höchstrichterliche Rechtsprechung in der frühen Bundesrepublik


Michael Stolleis: Margarethe und der Mönch. Rechtsgeschichte in Geschichten


Joachim Rückert: Abschiede vom Unrecht. Zur Rechtsgeschichte nach 1945


Andreas Groten: Corpus und universitas: römisches Körperschafts- und Gesellschaftsrecht: zwischen griechischer Philosophie und römischer Politik




Ludwig Marum zum Gedenken – Zur Verleihung des Marum-Preises 2016 an Diemut Majer


„Gemeinsame Elemente des österreichischen und ungarischen Familienrechts zur Zeit der Doppelmonarchie und innerhalb der EU”. Bericht über das Forschungsseminar der Dezső-Márkus-Forschungsgruppe für Vergleichende Rechtsgeschichte (Pécs, den 25.-28. Oktober 2016)


„Nichtgeborene Kinder des Liberalismus? – die Zivilgesetzgebung in Mitteleuropa in der Zwischenkriegszeit“


In memoriam Imre Molnár (*1934 – †2016)


Zum 30. Todestag von Christian Broda: Lebensskizze und Reformen




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ARCHIVE - Vol. 7 / 2016 No. 2



Diemut Majer: Die Französische Revolution als Hintergrund der europäischen Grundrechtsund Privatrechtsentwicklung

The French Revolution of 1789 is the most important event in modern history. Whilst in Europe the Revolution in the first three and a half years was regarded as a mere change of the competences of the monarchic power. The execution of King Louis XVI in January 1793 and the following terroristic politics by the leftwing “sansculottes” shattered the monarchies in whole Europe, which feared their collapse.

In the field of legislation, the monarchs tried to realize some liberal ideas (in order to push back too many revolutionary ideas). The first country to act was Prussia, which regulated the civil law (“Allgemeines Landrecht” for the Prussian states of 1794). Austria created the “Allgemeines Gesetzbuch” which was inaugurated in 1811. France was given by Napoleon the Code civil (1804). In all legislations, political rights were not guaranteed – they referred only to the economic field. In the times of absolute monarchies, political rights had no place.

These three codifications were a compromise between the uprising liberal ideas (personal freedom, propriety rights, etc.) and the principle of the old corporate society (inequality, “Ständestaat”). They lasted for centuries. The CC of 1804 (in its necessary reforms) is valid in France till nowadays, as well as the Austrian “Allgemeines Gesetzbuch”. The Prussian “Allgemeines Landrecht” was valid in the Prussian parts of Germany till 1900, before the “Bürgerliches Gesetzbuch (BGB)” for the German Reich was coming into force.


Key words

French Revolution and its impacts on Europe – legislation and Revolution between Progress and Restauration - “Allgemeines Landrecht” of 1794 (Prussia), “Allgemeines Gesetzbuch” of 1811 (Austria), Code civil of 1804 (France) – all these codifications guaranteed economic liberties but no political rights.


Philip Pajakowski: “The Free Conviction, Rising from within”: Julius Glaser and the Establishment of Trial by Jury in Liberal Austria

This essay examines the reform in criminal procedure promulgated in 1873 under Minister of Justice Julius Glaser. An aspect of the constitutional reforms associated with the establishment of the dual monarchy of Austria-Hungary, the introduction of trial by jury served to promote a sense of citizenship among the public. Glaser emphasized the centrality of the individual conscience of jurors in determining the verdicts in criminal trials and implicitly applied liberal values in evaluating the proper qualification of a well-developed conscience. The study relies on Glaser’s published writings and Austrian official documents.


Key words

Julius Glaser, liberalism, jury trial, criminal procedure, conviction intime.


Andrew Watson: The Silent Revolution in Methods of Advocacy in English Courts

George Keeton wrote, in 1943, about “a silent revolution in methods of advocacy as practiced by the English Bar over the last fifty years” Changed standards of etiquette, professional rules and greater control exerted by judges over these years led to a vast increase in courtesy in interactions with judges and between counsel. The conduct of prosecutions had also improved. They were generally no longer carried out in a sneering hectoring manner with witnesses mercilessly browbeaten or bullied. Dramatic types of 19th Century advocacy, in which counsel was prepared to use mannerisms, tricks of speech and gestures to heighten the effects of their pleas to juries, was replaced by a conversational and matter of fact tone. The idea that to cross-examine meant to examine crossly had almost vanished. Appeals to juries were now to reason combined with a controlled, subtle and focused appeal to emotion. Jury trials in civil cases had continued to decline. Advocacy before judges was concerned with facts and the law, not oratorical flourishes. Fewer criminal trials before juries took place as the jurisdiction of the magistrates had widened further. The more restrained and conversational style of advocacy before criminal juries may have been to some extent influenced by that of the civil courts, where the leaders of the bar appeared more often and increasingly without juries. Two dominant members of the bar during the first half of the 20th Century were Patrick Hastings and Norman Birkett. Their styles, because of triumphs linked with them, were influential on those of other barristers. Hastings was a master of direct forcible speech without any embellishments or ornamentation and prized brevity.


Key words

England; Advocacy.


Alessandro Hirata: Roman and Neo-Babylonian Private Law in a Comparative Legal History Perspective

The Neo-Babylonian period is a period that was marked by an outstanding development of Babylonian society. Of course, the legal phenomenon is marked so, so many examples can be found of this legal development. This period corresponds to almost a thousand years, from the beginning of the first millennium BC. until the end of the Neo-Babylonian Empire. On the other hand, there is a stock of thousands of documents from the Neo-Babylonian period, which have not yet been published in their great majority. These documents, however, show that it was a question of a legally and economically developed society. To understand this period, it is plausible to analyse the sources in a comparative legal history perspective, specially with the Roman Private Law. Thus, we understand that the concepts and Roman Private Law institutions should be used as a communication element in scientific research in history of ancient law. Even with losses as the terminological precision, there dogmatists common elements sufficient for such use modern terms, suiting also the economic purpose of these legal forms.


Key words

comparative legal history; Neo-Babylonian period.

Dmitry Poldnikov: Origins of General Concept of Contract in Western European Legal Science (12th through 16th Centuries)

The article presents the results of author's research of the origins of the general concept of contract in continental legal science in the Middle Ages and early Modern Times. This general concept marks one of the key features of the legal style in civil law countries, unknown to Roman jurisprudence, Muslim fiqh or Anglo-American common law. The formation of the general concept of contract proves to be the outcome of several generations of jurists archived through the combination of two models of contract in the medieval ius commune: agreement-based (in the commentaries on Roman law) and promise-based (in the church canons). It is argues that the synthesis of the two models in the 16th century is due to the efforts to reduce the Roman classical law to an art (as in the case of the French humanists) or to explain every rule of positive contract law through the ideal concepts of natural law and commutative justice (as in the case of Spanish legal thinkers). In arranging contract law the French jurists (such as François Connan and Ugo Donellus) followed the intended project of Cicero (ius in artem redigere) by means of the methodology of Petrus Ramus. The representatives of the Spanish late scholasticism (Domingo de Soto, Louis de Molina, Leonard Lessius) aimed at explaining all the provisions of the positive contract law in the sense of the higher moral and theological principles of natural law, as it was laid out in 'Summa Theologica' by Thomas Aquinas. The author looks into the relevant works of the French and the Spanish jurists to analyse the definition of contract, its criteria, and to trace their origins in the legal commentaries of the medieval civilians and canonists, as well as in the medieval and antique treatises on moral theology and philosophy. The analysis allows for critical assessment of the inconsistencies and contradictions of the general concept of contract in the doctrines at the beginning of Modernity.


Key words

concept of contract; promise; agreement; private law; history of jurisprudence; French humanists; Spanish late scholastics.

Gábor Hamza: Tradition des römischen Rechts und Kodifikation des Privatrechts in Bulgarien

The states on Balkan peninsula received Roman law through the mediation of the Byzantine Empire. The reception of the Byzantine law-books was made easier in the Balkan states by the fact that substantive law was not separated from the law of procedure. Private law was dealt with in conjunction with financial, criminal, and canon law. During the first Bulgarian Empire the principal source of knowledge of Roman law was  the Responsa Nicolai I papae ad consulta Bulgarorum albeit  the influence of Byzantine law still prevailed. In 1867 a code entitled Medzellé was introduced in the territory of present-day Bulgaria. Its goal was to harmonize Islamic law with European law, especially with the French Code civil. After gaining independence a code of the law of obligations was promulgated in 1892 and another one pertaining to the law of things in 1904. Their primary model was the Italian Codice civile and to a lesser degree the Spanish Código civil. The traditions of Roman law they relied on are still there in the more recent and similar codes of 1950 and 1951. The influence of the German Pandectist School can also be seen in the legal science in Bulgaria.


Key words

Act on Obligations and Contracts; Act on Ownership; Act on Private International Law; Act on Succession; Act on the Law of Persons and Family Law; Commercial Code of 1897; concept dualiste; Drafting of a Bulgarian Civil Code; Hexabiblos; ius Graeco-Romanum; Pandectist Legal Science; Responsa Nicolai I papae ad consulta Bulgarorum; Zakon sudnij liugiem.

Tamás Nótári: Some Remarks on the Issue of Suicide in Roman Criminal Law

This paper analyses the issue of suicide in the sources of Roman law, primarily criminal law. In the course of that it will focus on the following key points: after a few introductory remarks outlining the Roman custom of committing suicide, first it will discuss the judgement of suicide in criminal law in general; then it will examine the appearance of the culprit’s suicide as grounds for exclusion of culpability (and limits thereof) in sources in imperial law; finally, it will briefly analyse the legal position of suicide in military criminal law.


Key words

suicide, Roman criminal law, Roman criminal procedure.


Katalin Siska: Slavery in the Ottoman Empire

In 1842 the British Consul of Morocco stated that as part of his government he is around to abolish the slavery permanently, and do everything in order to introduce the suppression of the slave trade measures. To this statement that was addressed to I. Abdul-Mejid (1823-1861) Sultan he replied the next: “The slave trade is a case in which from the time of Adam and sons to our days all religions, sects and nations have agreed…" Then he added “I do not know any single religion, sect that specifically forbade slavery, so there is no need to raise related issues. Such and similar questions lead both to too low and too lofty answers, although the phenomenon is such natural, as the sun rises.”

Unfortunately, the Sultan’s today obsolete perception of abolition the slave trade contained legally founded statements. The institution of slavery actually existed since time immemorial in the ancient civilizations: in Asia Africa Europe and in America before Columbus. Accepted and even supported the Judaism, Christianity, Islam and other world religions.

The institution officially survived in the Ottoman Empire until 1890 significantly longer than the transatlantic slave trade. In my essay I study the reason of this phenomenon, especially the slavery traditions of the Ottoman Empire, the religious and secular legal background comparing the most important features to the transatlantic slave trade and slavery.


Key words

Ottoman Empire; slavery; elite slaves; slave trade.


István Sándor: On the Emergence and Development of the Trust Legal Institution

In the history of law, the English institution of the trust is one of the most original institutions of the private law. A jurist who studies and deals with legal systems based on the traditions of Roman law applies the principle of the numerus clausus of property rights. Therefore, in the theory of civil law, the Anglo-Saxon institution of the trust with split ownership structure appears to be an alien concept. To understand the unique feature of the equity and the trust institution it is unavoidable to discover the historical background of these. This work aims to provide a comprehensive description of the emergence and development of the trust from the Middle Ages until the 19th century.


Key words

trust, use, feoffor, feoffee, cestui que use, settlor, trustee, beneficiary, equity, common law.

Péter Bónis: Bona fides exuberans. A New Legal Concept of Twelfth Century Legal Scholarship

It is said that the dualist interpretation of good faith (bona fides) clearly distinguishes subjective good faith (guter Glaube, goede trouw) from objective good faith (good faith and fair dealing, Treu und Glauben, redelijkheid en billijkheid). When has this new distinction emerged in the legal history? In this paper it is argued that objective good faith was named by the Glossators of the 12th century, who coined the new legal term of bona fides exuberans. This new legal concept has appeared in the 1150’s, and it is probably attributable to Bulgarus.


Key words

bona fides exuberans, ius commune, glossator, societas, Treu und Glauben.

György Képes: The Birth and Youth of the Modern Hungarian Private Law

1848 was a turning point in Hungary in all senses of legal development. It is not only the emblematic year of beginning of the constitutional monarchy based on separation of powers, popular sovereignty, governmental responsibility and civil liberties, but in general, 1848 can be considered as the start year of modern Hungary. From the point of view of private law, the abolition of seigneurial relationship between landlords and peasants and the abrogation of traditional legal institutions of property and inheritance law hindering the free disposition on goods has to be mentioned. After the fall of the 1848 revolution, the introduction of the Austrian civil law also catalysed the process of modernisation, and finally, after 1861, the modern Hungarian private law was born, without the adoption of a civil code, strongly based on the jurisdiction of the courts.


Key words

Hungarian legal history; Hungarian private law; Aviticitas; Restrictions on property; Freedom of property; Legal modernisation in Hungary.

Csaba Cservák: The Theory of the Distribution of Powers and its Practical Implementation, in Particular with Regard to the United States

There are two major forms of the democratical excercise of powers:  the direct and the indirect democracy. The entire system of the separation of powers can be can ce classified within the scope of the indirect excercise of democracy, although in a broad sense methods of the direct excercise of the democracy can make up such division of powers, which can be used as a bance against the machine of power structures, which relys too much on the binary code of the government -opposition, and distances itself too far from the people. Here I would like refer to the legal instrument of the referendums, within which, it is possible to talk about a significant direct excercise of democracy. The American theory, the ’checks and balances’ shall be equal to the concept mentioned above. Usually that concept named as a synonym of it, nevertheless according to some opinions that is considered to be different from it. The demand of mentioning the constitutional power as a separate factor can be arised after the question of creating the classic branches of power is transferred from theory to practice. Namely when not just scientific foundation but social legitimacy inevitably arise. Its importance is justified that the whole framework of the system of the exercise of power is specified by the constitution, which can’t be only the ultimatum of the ruler or a particular social group, layer, class in a constitutional democracy.


Key words

Hungarian public administration; distribution of powers; constitutional court; other social factors.

Lu Da: Jus Sanguinis – The Basic Principle in Citizenship Law, Comparative Analysis of First Citizenship Law between Visegrad Four and China

Citizenship defines the relationship between the individuals and the government in the modern society. The citizenship law had a long history in the world, in central Europe, Hungary published its first citizenship law in 1879. After the independent, Czechoslovakia and Poland had their own citizenship in 1920s. In China, Qing Dynasty also had its own nationality law in 1909. Although, these citizenship laws or nationality laws have some differences because of the different conditions in these countries, i.e. culture, economic condition. However, there are still have lots of similarity in these laws, the first and the most important principle similarity is jus sanguinis. Therefore, in this article the author will examine the first citizenship law in Hungary Kingdom, Czechoslovakia and Poland, the first nationality law in Qing Dynasty as well, and make comparison between these citizenship(nationality) law.


Key words

Hungary, Czechoslovakia, Poland, China, citizenship law, nationality law, comparative analysis.

Fanny Koleva: First Trademark Regulations in Bulgaria

The aim of the paper is to disclose the specificity of trademark protection regime according to the first piece of legislation of Bulgaria as independent country (dated 1892) in comparison with the preceding regulations in the field, part of country’s past in the frames of Ottoman Empire (dated 1870). The corner stones of this comparison are the conditions and procedure of protection, its scope and instruments of support, as well as the opportunities for geographical indications’ protection available. The analysis is realized from the perspective of relevant and contemporary trends in trademark theory and practice. The study respectively reaches the conclusion that when similarities between the two acts are observed, they are mostly a result of the level of development of trademark regulations in the period than of an imitation of the norms of earlier regulation by the later one.


Key words

trademarks; trademark history; Bulgaria; Ottoman Empire; ottoman; trademark legislation; trademark regulations; trademark protection; geographical indications.

Engjëll Likmeta, Enton Dimni: Historical – Legal View of the Freedom of Religion in Republic of Albania

The legal mechanism that provided for the protection of freedom of conscience and religion were envisaged by the first contemporary Albanian state. The first law for religious statutes of Albanian state was the legal statute of religious communities. According to this law, the freedom of conscience and faith was guaranteed. In order to guarantee the freedom of religion, despite constitutional provisions and Criminal Code, other mechanisms are ratified by law by the Albanian parliament including also the Universal Declaration of Human Rights, The Declaration on the elimination of all forms of intolerance and discrimination based on religion or belief, and the Convention for the protection of children.

This paper aims to give a general overview of all the legal mechanisms in Albania that guaranteed freedom of faith during different periods and all the current mechanisms that still do guarantee it and are in force, including a short description of the punishments provided by criminal law in cases of criminal offenses against the freedom of religion. This general overview is aiming to show the importance of freedom of religion and faith, its development, as it is considered as interdependent and associated with other human rights.


Key words

Freedom; Religion; Canon; Constitution; Criminal Code.

Carmine Galloro: Der Rücktritt gemäß Art. 50 EUV unter Rechtshistorischen Aspekten. Der Fall des sog. ‚Brexit‘

The Case of the so called ‚Brexit‘ puts light on several important aspects of European Law. The issue firstly leads a historical analysis about the process of withdrawing from the EU under Article 50 of the Treaty on European Union. In particular, it is to see if there are precedent cases or similar legal figures in other jurisdictions, which can represent an important inspiration in this regard. It will allow to analyze in detail the specific provisions of art. 50 and then to understand the nature of the Brexit. The argument gives at the same time the opportunity to consider a range of matters connected with the future of the EU as institution.


Key words

European Union; Art. 50 TEU; Withdrawal; Secession; Brexit.



Peter Landau: Deutsche Rechtsgeschichte im Kontext Europas. 40 Aufsätze aus vier Jahrzehnten


Henning Kästner: Der Weimarer Landtag 1817-1848. Kleinstaatlicher Parlamentarismus zwischen Tradition und Wandel


Viktor Winkler: Der Kampf gegen die Rechtswissenschaft. Franz Wieackers „Privatrechtsgeschichte der Neuzeit und die deutsche Rechtswissenschaft des 20. Jahrhunderts“


Martin P. Schennach: Neuere italienische Rechtsgeschichte: 19. und 20. Jahrhundert


Jiří Bílý: Christianizace římského antického státu (Stát – Právo – Náboženství – Společnost)


Michael Stolleis (Hrsg.): Konflikt und Koexistenz. Die Rechtsordnungen Südosteuropas im 19. und 20. Jahrhundert (= Band 1: Rumänien, Bulgarien, Griechenland)


Julia Maria Gokel: Sprachliche Indizien für inneres System bei Q. Cervidius Scaevola





Jozef Beňa: History of Law or History of State and Law





Die Gründung der Dezső-Márkus-Forschungsgruppe für Vergleichende Rechtsgeschichte in Pécs. Beweggründe – Motive – Visionen


„Prolegomena per una palingenesi dei libri di Paolo ad Vitellium“


Forth Biennial Conference of the European Society for Comparative Legal History «Culture, Identity and Legal Instrumentalism»



Contents download here:



ARCHIVE - Vol. 7 / 2016 No. 1



Diemut Majer: Peter Saladin (1935 – 1997)

Peter Saladin (1935-1997) is one of the outstanding scientists in the field of public law at the end of the 20th century. As a professor for constitutional and ecclesiastical law in Bern (Switzerland), he founded a new understanding of the individual rights. Up to the 1970th they were considered having only a programmatic function (without obligation of the state). Saladin required that the legislation be bound by these rights and obliged to realize them through appropriate laws.

The second field of Saladins activities was the protection of the environment, for which he engaged since the 1980th.  He required independent rights for “the nature” (animals) and created the declaration for the rights of the future generations (analogue to the declaration of rights of the French Revolution 1789), which is up to our days a main – or the main task for the state and the individual. Saladin is one of the pioneers in the environmental protection for which he dedicated his whole life. In the present dissipated views of scientists in very specialist fields, he kept the overlook over the whole system of the environmental problem. This pioneer should serve as a guiding figure for the younger generations in all countries.


Key words

Peter Saladin; protection of the environment; environmental law; environmental science; ethical princips of the protection of the environment; rights of nature and rights of the future generations on the field of environmental protection.


Christoph Schmetterer: Der strafrechtliche Schutz von Kaiser und Kaiserhaus in Österreich von 1848 – 1918

In 1848 censorship was abolished in Austria. Due to the new freedom of the press it became possible to insult the emperor in the press. Thus the criminal law had to be adapted to the new situation. Three press acts were enacted in 1848/49 including new rules on lese-majesty. In 1852 the criminal code of 1803 was reformed. The reform changed the crimes of high treason and lese-majesty and introduced a new crime: insulting the Imperial family. This article analyses these crimes in detail.


Key words

Criminal Code of 1852; Criminal Law; Emperor; High treason; Imperial Family; Lese-majesty.


Astrid Lorenz: Parties and Rules. Constitution-making in the East German Länder after 1990

The article investigates how the varying party constellation in the founding parliament influenced constitution-making in the East German federal states after 1990. All other context conditions of constitution-making were almost identical. The study observes that weak governing parties accepted the opposition’s wish for an early legal obligation to adopt the constitution by a qualified majority because they needed political support. However, they tended to re-interpret or circumvent the provisions in face of stalemates. Stronger governing parties avoided constitution-making rules but involved other parties to increase legitimation at a low cost. Opposition parties accepted governments’ offers and withdrew some procedure-related demands in exchange for substantive gains, e.g. constitutionally entrenched social rights. In sum, the party constellation in parliament determined the formal procedure of constitution-making and deviances from it.


Key words

Constitution-making; constitutional law; Germany.


Andrew Watson: Victorian Jury Court Advocacy and Signs of Fundamental Change

Over the last three centuries advocacy in the courts of England and Wales, and other common law countries, has been far from static. In the second half of the 19th century, roughly until the beginning years of the 1880’s, the foremost style of advocacy before juries in English  criminal and civil cases   was melodramatic, declamatory and lachrymose  Aggressive and intimidating  cross-examination of witnesses took place, sometimes, unless restrained by judges, descending into bullying. Questions asked often had more to do with a blunderbuss than with a precise forensic weapon. Closing speeches were frequently long and repetitious. Appeals to emotion, and prejudice, usually reaching their peak in the peroration, were often greater than those to reason. The Diety and the Bible were regularly invoked. Vivid and floral language was employed and poetry liberally put to use to awaken generous sympathies. Examples of this style  of advocacy,  parodied amongst others by Gilbert and Sullivan's in their Trial by jury - a short comic operetta, first staged in 1875, about a trial of an action in the Court of Exchequer for breach of promise to marry, are presented.

However signs of change began to appear. Men like Hardinge Giffard, who became Lord Halsbury and Lord Chancellor for a total of eighteen years, John Holker, later to be appointed Attorney General, Charles Russell, a future Lord Chief Justice, and Edward Clarke began to significantly change the style of advocacy. Their approach was quieter, more learned and less inclined towards violent appeals to emotions, use of florid language and quoting widely from popular verse and literature. Less concerned with relying on the tricks of the Victorian stage, they also were developing a more dignified and controlled manner in their conduct towards each other and to witnesses. These barristers tended to select the best arguments from their client's case and to drive them home forcefully to jurors, rather than saturate them with rhetorical elaboration of all conceivable points. They also avoided tiring juries with needless repetition. In the bar’s tradition of copying what appeared to succeed, they began to be emulated by its junior members. Their success may well  have been  because they recognised that  jurors, for a variety of reasons, were becoming better informed and  educated and expected more than empty rhetoric, artful bombast, verbal chicanery,  dramatic  gestures and  aggression.

At the end of the 19th Century and during the first quarter of the 20th Century the jury  advocacy of Rufus Isaacs, Edward Carson, F. E. Smith and Edward Marshall Hall, who frequently opposed each other  in greatly publicized cases, was an important influence on other barristers of the period and beyond.  In very broad terms, and aware of the limitations of this approach, it might be said that the first three were the descendants in advocacy of Hardinge Giffard, John Holker, Charles Russell and Edward Clarke, but who took the art further - especially in employing conversational language and in carefully planning  precise cross-examination rather than making long and emotive closing speeches; the small quiet sniper’s rifle with accurate sights was replacing the loud blunderbuss, often unpredictable in results and dangerous to its user. Marshall Hall’s advocacy, on the other hand, with its blatant appeal to emotion, sometimes sprinkled in tears, fell within the tradition of 19th Century histrionic advocacy.


Key words

History; Law; Advocacy; Victorian.

Patrizia Resta: The Revenge of Soghomon Tehlirian

One of the cases that emerges from the many pages of the Armenian genocide is the case of Soghomon Tehlirian who, on 15 March 1921, in Berlin, killed Talaat Pasha, the Turkish Prime Minister who was considered responsible of it. Tehlirian during the trial declared that he was guilty affirming that he acted in order to revenge his spilt-blood and he was acquitted. The analysis of this case of legal ethnography, through data and transcriptions, will focus on the judicial ability expressed by retaliative paradigm as a basic element of the jury’s choice, focusing on some aspects of the decision that the literature on revenge can help better understand.


Key words

Legal Anthropology; revenge; Armenian genocide; political trial.


Javier Belda Iniesta: The Pleasure of Privacy: Confession and Inquisition as Means to Cause the Correction of Sinful Consciences around the IV Lateran Council

The passage of the public penance to private penance was the loss of the public character of the punishment, but also that the Church lost the control of behavior, because its repression would depend now only of the personal need for forgiveness of each faithful. In addition, under these new circumstances, heterodox forms of profess religion, heresies, which infected the population, and it was linked to the fact that many sexual behavior contrary to Catholic morality extend arise among the population, which already should not purge their sins in public. This situation pushed the Church to face a new situation: to cause voluntary contrition of the penitent. The IV Lateran Council faces the problem from four aspects: 1. the annual obligation to the confession and that this is done with the “proprio sacerdote”, to ensure that the Confessor knows the circumstances of the sinner, 2. The canonical regulation of marriage, in order to exclude attitudes contrary to morality; 3. The creation of chairs of theology, to train priests and these to the faithful, through the preaching; 4. The establishment of the inquisitorial courts, which will be the punishment for those who do not accept the contrition and the amendment of its life.  Our work is focused on this need of cause the voluntary contrition, and the means employed to achieve this. We study the similar evolution of the sacrament of penance and the inquisitorial process, which together with the preaching, involves the exercise of the triple ecclesial Ministry: munus regendi and munus docendi, munus santificandi.


Key words

Heresy; Inquisition; guilt; confession; excommunication; condemnation; sin; crime.


Rudransh Sharma: History of Legal Profession in India

The Legal Profession is an important limb of the machinery for administration of justice. Without a well-organized profession of law, the courts would not be in a position to administer justice effectively as the evidence in favour or against the parties to a suit cannot be properly marshaled, facts cannot be properly articulated and the best legal arguments in support or against the case of the parties cannot be put forth before the court. “A well-organized system of judicial administration postulates a properly equipped and efficient Bar.” It is, therefore, in the fitness of things to take note briefly of the development of the legal profession in India.


Key words

India; legal profession.


János Jusztinger: Dogmatics of Criminal Law and the Roman Jurisprudence

In contrast with Roman private law, criminal legal regulations – instead of cases – are normative rules principally that have demanded jurisprudential interpretation much less. Still, in the sources of ancient Roman law we can already find several basic concepts that show surprising similarities with the modern criminal doctrine. Although we can see an absence of abstract definitions serving for the notation of legal cases, the intention to demonstrate the criminal legal mentality of antique jurists – by using these fragments as casuistic illustrations in our study – cannot be regarded as it is for its own sake. What is more, by the abstraction of their observations and the comparison with basic concepts of modern dogmatics of criminal law we can get to such general theoretical conclusions that can help to reveal the “general part” of Roman criminal law expansively and systematically.


Key words

Roman law; criminal law; jurisprudence; delicta privata; crimina publica; modern dogmatics; objective elements; subjective elements; general part; Criminal Code.


József Benke: The Remembrance of ‘Praetor Paulus’ in Mid-Tudor England

This contribution continues a previous investigation concerning parallelisms between Anti-Fraud Creditor Protection Laws (AFCPL) and their socio-economic background lying usually in crises phenomena in different ages and legal regimes. Debtors’ massive liquidity crisis in late Roman Republic and 21st century Hungarian ‘post-Lehman’ crisis of household debtors of mortgage home loans are as similar to each other as the morals of the prolific ancient casuistics based upon a general-clause-like ruling upon actio Pauliana are useful to consider for new shrewd non-contractual fraudulent misconducts committed in Hungary. This paper complements these analogous objects with the instance of 16th century England, the ‘Mid-Tudor’ era of which was also proved to be an example of the analyzed correlation between AFCPL and its critical socio-economic setting. The essay offers three evidences for proving that Mid-Tudor England and Fraudulent Conveyances Act (FCA) also suit to the comparison: the one is the history of legislation of England’s AFCPL, the second is the FCA’s way of formation and the third proof lies in the results of English historiography on the Mid-Tudor era.


Key words

Liquidity Crises; Mid-Tudor England; Fraudulent Conveyances and Transfers; Actio Pauliana; Anti-Fraud Creditor Protection Law (AFCPL); History of AFCPL in England; Frauds beyond Insolvency Processes.


Csaba Cservák: Development Span of the Hungarian Governmental Forms (in an International Comparison)

The essay compares first the two major historical governmental forms: the monarchy and republic by describing it's main characteristics. Following that it shows, how has that evolved in Hungary from one to another, by highlighting its peculiarity, with special attention to the interim eras of the lack of the permanent head of the state. The next main topic revolves around the powers and the constitutional position of the president following the regime change and the general reform of the Stalinist Constitution from 1989 up until the new Foundation Act (Alaptörvény) came into force in 2012. Thorough description is given about the relevant changes brought by the new Foundation Act regarding the scope of authority and attempts to make a comparison it's exceptional powers to another presidential powers, with special attention to the Central and Eastern European ones.


Key words

constitutional and legal history of Hungary; comparative constitutional law; scope of authority and constitutional position of the president of the State in Hungary.


Ibolya Katalin Koncz: Divorce and Undeserving of Permanent Alimony according to the Practices of the Hungarian Royal Curia

In the following section of this study, an answer will be sought to the question whether there were any court practices according to which, although the court approved the wife’s claim for permanent alimony, the husband could be exempted from this liability.

Regarding material issues and according to the resolutions of the Curia, there were three of such conditions; the issue of undeserving, the cases the contract concluded between the parties and documented as a notarial deed would be declared to be against public mores, which specifically appeared as a reason for exemption from the liability of alimony; and the unpropertied status of husbands and the respective obligation of parents to pay maintenance, and the respective options for exemptions from this liability. Within the framework of this subject, we will only focus on the issue of undeserving.


Key words

Divorce; Hungarian Royal Curia; Undeserving of Permanent Alimony; Demographic und Marriage; Marriage Customs Prior; Alimony.


Iván Halász: The Development of Czechoslovak, Polish and Hungarian Foreign Affairs Administration between the Two World Wars (1918 – 1939)

After the short intruduction to the history of Austro-Hungarian foreign affairs administration the paper focuses on the administrative development of the the Central European countries in the period between the two world wars. The Czechoslovak and Polish foreign affairs administration has formed dominantly on the basis of poliitical emigration and diaspora communities during the first world war. The Hungarian ministry of foreign affairs was established directly after the end of this war in december 1918, but the often changing governments reorganised this organ many times in unquiet 1919. The paper deals not only with the central level of foreign administration, but with the structure of the diplomatic and consular missions abroad too. Czechoslovakia and Poland had very good structure of the missions, because they were very active on the field of international relations in this time. These countries played important role inside the League of Nations too. The Post-Trianon Hungary needed the effective apparates too, but the foreign affairs administration was not very popular this time inside the country and its political life. Hungary was very active on the field  of cultural diplomacy.


Key words

administration; Czechoslovakia; diplomacy; foreign affairs; Hungary; missions; Poland; world war.


Dávid Klemm: An Attempt to Establish the European Army: The Pleven Plan

In the 1950’s the European integration took a step towards a European army, such a remarkable step, that since then no one came so close as they did.  With the Treaty Constituting the European Defence Community in 1952 a supranational common European army almost came into existence. Ahead of its time, the Pleven Plan offered the integration on the military side too soon after World War II. To create a strong foreign policy for the united Europe, it would have needed an army too.

The main cause that led to the EDC was the unsettled status of West Germany, the need to resettle it to the European setting, also on the military side, leading to its rearmament. The fear of the German aggression led France to seek the lesser evil and not rearm West Germany, but create a European military organisation and gain common control over any troops of West Germany. Fascinating thing is that France, the creator of the idea of the EDC was also who brought its downfall.


Key words

European Defence Community; Pleven Plan; European Army.


Przemysław Dąbrowski: The Structure and Powers of the Councils of State in the Kingdom of Poland between 1815 and 1867

Before 1807 in the Polish constitutional system there was no such institution as the Council of State. This year marks the establishment of both the first Council of State and the Duchy of Warsaw. The treaties stipulated that the Council of State (Conseil d'Etat) of the Duchy of Warsaw was a permanent institution performing an ancillary function to a king. During the existence of the Kingdom of Poland were three Council of State. Their competencies are changed.


Key words

Councils of State; the Kingdom of Poland; the Administrative Council; Duchy of Warsaw.


Maria Lewandowicz: On the Universalist Heritage in the Codification of Private Law in Poland and Switzerland in the 19th and 20th Century

The objective of this article is to attempt an explanation of the phenomenon which consisted in that in XIX and XX century Switzerland and Poland, whose existing body of legislation prior to the commencement of codification works was similar, took a significantly discrepant direction of developing their legal cultures. What was the reason for Switzerland, which remained in the sphere of influence of French, and Austrian law, to seek natively Swiss sources of law in the process of legal unification, while Poland, shortly after regaining independence, leaned heavily on norms drawn straight out of the civil codes of Germany, Austria and France and chose to avail itself of the old Polish law only to a very limited extent?

With the use of descriptive and comparative legal method I argue, that despite the obvious differences in the selection of sources, both Poland and Switzerland codified their private law in the universalist spirit. Differences in the national culture and circumstances preceding the codification works did not impede supporting both codifications on pillars of shared principles of private law.


Key words

Codification; history; private law; Switzerland; Poland.


Lenka Šmídová Malárová: „Causa legittimae absentiae“ in Legal Praxis of the Medieval Town Law in Moravia

Municipal books Liber negotiorum civitatis Hradisch and Liber informationum et sententiarum include a large amount of case law, which Moravian royal town Uherské Hradiště received from Brno in Middle Ages. Some of these cases were decided in accordance with the Roman law principle that did not allow to give the default judgement in the event that a party, which did not come to the court, correctly apologized for his or her absence. Town law of Brno was based on Roman law and it also applies to the case of causa absentia. The analysis of the relevant case law partly shows that Roman law procedural rules concerning the consequences of absence in the court were applied also in Brno and Uherské Hradiště legal practice.


Key words

Legal Principles; Roman Law; Procedural Law; Absence; Legal Sentences; Middle Ages; Czech Lands; Municipal Law; Case Law; Brno; Causa Absentia; Uherské Hradiště.


František Emmert: The Expansion of so-called Reich Citizenship in the Czech Territories during the War Years and its Post-war Consequences

The gradual Nazi German occupation of the territories of pre-war Czechoslovakia, during the years of 1938 to 1945, resulted in an extraordinarily broad institution of German citizenship in the Czech lands. Approximately 3, 500, 000 pre-war Czechoslovakian citizens, mainly ethnic Germans, attained German citizenship. During the period of occupation the guiding legal provisions for attainment was based on Nazi ideology. As such, ethnic Germans, who were citizens of Czechoslovakia, became citizens of the Third Reich. Initially, the declaration of this new citizenship by those affected was a marked privilege.


Key words

Citizenship; German legal; Czechoslovakia; ethnic Germans; Protectorate; race laws. 


Johan Schweigl: The Fundamental Events within the Development of Central Banking in the Czech Lands

The author has outlined the core events that occurred in the development of central banking in the territory of today’s Czech Republic. Showing the foundations of central banking in the Austrian empire, the author followed to t many important legislative measures concerning central banking in Czechoslovakia, Protectorate Bohemia and Moravia, the communist era and the relatively recent regulation of central banking in the Czech Republic. Aside from underlining the core legislation regulating this area, the author tried to set the respective regulation into broader historical context.


Key words

Central bank; central banking; Czech national bank; Privileged Austrian national bank; monetary policy.


Miriam Laclavíková, Andrea Olšovská: Besondere Arbeitsbedingungen von Frauen im Hinblick auf den Schutz vom Wert der Mutterschaft auf dem Gebiet der Slowakei – Vergangenheit vs. Gegenwart

The study presents historical and legal point of view on the formation of the special legal status of women in the field of labour law and social security law during the 20th century in Slovakia. During this period, special working conditions for women and, in this context, a particular protection of maternity (on grounds of non-discrimination approach, the legislator currently uses the term "parenthood") showed a significant, but (in some respects) cyclic shift. The study refers especially to developing of the scope of maternity leave, protection of job position, arrangement of night work and restrictions and prohibitions of certain works of women, pregnant women and mothers, which are related to the regulations on health and safety at work.


Key words

maternity; parenthood; special working conditions for women, pregnant women and mothers; maternity leave; night work of women; work restrictions for women; history of labour law.


József Szalma: Einfluss der deutschen Willens- und Erklärungstheorie auf europäische zivilrechtliche Kodifikationen und Theorie über die Willensgeschäfte - mit besonderer Berücksichtigung des serbischen Privatrechts

The author analyses the intention theory and expression theory emerged in the German doctrine of civil law in the first, and second half of the 19th century, and their impact on the European doctrine and codifications of civil law. They are most relevant in respect of formation of contract, its legal effect and construction. Special attention is accorded to the differentiation between general and special intention theory. The latter, due the methods and standards it proposes, offers applicable solutions to specific issues even today, such as mistake and deceit, simulation, mental reservation, fiduciary transactions (trust) and contracts, etc. The author puts special emphasis on the impact of the German intention theory and expression theory on the Serbian doctrine of civil law and legislation.


Key words

intention theory; expression theory; simulation; deceit; duress; mental reservation; fiduciary contracts.


Dunja Pastović: “Defect of Sex”: Exclusion of Women from Jury Service in Istria 1873 – 1918

Upon adopting the institution of jury from English Common Law, European continental legislation also took the view according to which jury service was reserved exclusively for men. The exclusion of women from jury service was also adopted by the Austrian legislator who explicitly prescribed male sex among the prerequisites for performing jury service. Legal theorists did not offer any explanation for such a decision. Only with the expressing of demands for the introduction of jury service for women at the beginning of the twentieth century did the opponents of these demands start to express arguments against the idea of female jurors. This paper will give a brief overview of the legal and social status of women in Istria and their potential impact on the ability to perform jury duty. Emphasis will be placed on showing the reasons and opinions (expressed in legal literature, parliamentary debates and the press) why women were considered incapable of performing jury service until the collapse of the Austro-Hungarian Monarchy.


Key words

women; jury service; Istria; Austrian legal system; criminal procedure; period from 1873 to 1918. 


Arijana Kolak Bošnjak: The Flip Side of Freedom. The Attitude towards Pro-Hungarians in Banal Croatia in 1848/49

This study examines the stance of the members and supporters of the Croatian political movement towards their political opponents, pro-Hungarians, in the context of proclaimed and promoted civil and political rights during the revolutionary year 1848/49. The stance of the Croatian public towards pro-Hungarians and the legal provisions implemented against them, which violated these so much advocated and proclaimed freedoms, are described. Finally, the context in which these violations of freedoms occurred and were justified by the supporters of the Croatian political movement is explained.


Key words

Freedom; Pro-Hungarians; Banal Croatia; 1848/1849; legal provisions against pro-Hungarian; Croatian political movement.


Engjëll Likmeta: Some Reflections on the Delicts of the First Criminal Code of the Republic of Albania

The Criminal Code of 1928 or Zog’s Criminal Code has been initially published in 1929, about two years after the decree of June the 3d, 1927. The Code entered into force on January 1, 1928, together with the relevant appendixes. With the adoption of the Code, the Albanian state had thus as the main source of the criminal justice its own criminal law, replacing thus once and for all the Turkish Criminal Code of 1858. This was the first Criminal Code of the period of post–independence of Albania. In this paper work will be taken into analysis the 1928 Code and the way offences were qualified, including: offenses against the state security, offenses against freedom, offenses against the public administration, offenses against the justice administration, offenses against the public order; offenses against religion; offenses against the public property, offenses against the family order and good habits, offenses against the person, offenses against the property. For weach group of these offenses, will be taken into analysis the objective and subjective side of the offences, as well as the sanctiones provided by the code. This paper aims to show that the Criminal Code of 1928 was a positive effort to bring the Western experience of the time in our country, in the legal field, which back then was still under the dictate of the Ottoman laws.


Key words

Delicts; Criminal code; Offences.

Marina A. Baratova: The Evolution of Russian Housing Law during the 20th Century

 This article deals with the process of establishing and the evolution of housing law as a branch of the Russian legal system. Different legal positions regarding the nature of housing law are reviewed and analyzed, the stages of development of housing law are proposed, and a conclusion is made as to the place of housing law within the Russian legal system. The formation of housing law in Russia substantially differs from the formation of housing law in the legal systems of other countries. Such distinctions and specificity in the evolution of housing law were predetermined by the historic features of development of the Russian state.

The author of the article identifies three distinctive chronological periods in the formation of housing law in Russia: the first period (The Empyreal Period) ending in 1917, the second period (The Soviet Period) from 1917 to 1991, and the third period from 1991 to present time. Substantiated conclusions are made that housing law in contemporary Russia exists as an independent, complex branch of the Russian legal system, and constitutes a sub-branch of the Russian civil law.


Key words

housing law; housing legislation; housing relationships; civil legislation; civil law; integrated branch of law; legal system; administrative law; Russia.


Oleksandr Gavrylenko, Oksana Skryl: Legal Regulation of Civil Contracts in Ancient City-States of the Black Sea Northern Coast

The paper pays attention to the fact that in every society an obligation can perform various functions. But their main area is property turnover, as obligations are among the principal legal measures that mediate trade turnover of any market society. The agreement between parties was considered the basis of contacts. Major contracts were concluded in writing, as a rule. Some of them, such as Chersonese contract for the sale and lease of public lands (60-70-ies. III B.C.) were fixed lapidary. It has been noted that the system of contracts in the antique states of the Northern Black Sea was quite simple. The most common contracts were those of sharing (exchange), sale and purchase, donation. Agreements of individual employment, by contract, hire, and loan were often concluded. In the ancient states of the Northern Black Sea coast, as well as in metropolitan, such debt measures as synhrafs and hirohrafs were widely practiced. In ancient states of the Northern Black Sea there were facts about the cancellation of debt, both private and public. This is the so-called sysahfiya (“shaking off the burden”), which was first made by the prominent Athenian lawgiver Solon. In Olbia, this measure was taken during the siege by Alexander Macedonian army – Zopyrion in 331 B.C. Sources indicate that there was a sufficiently developed system of rules of obligatory law that existed in the ancient states of Northern Black Sea. Contract law became the most detailed study, the foundations of which were common to most Hellenic city-states. Similarly to other Hellenic states, legal regulation of contracts in the ancient states of the Northern Black Sea was carried out primarily through discretionary rules, i.e. those applied only in the absence of any other guidance on the given issue in the agreement. Specific character of contracts was only caused specific historical circumstances evolved in a particular region in the period.


Key words

city-state; civil contract; barter agreement; contract of sale; gift; loan agreement; lease.





Allerlei Rechtsgeschichten - von Hammurabi bis zum Code civil. Ein Blick auf die Schriftenreihe des Rechtshistorischen Museums Karlsruhe


Das ABGB im Spiegel der rechtshistorischen Literatur


Guy Burak: The Second Formation of Islamic Law. The Hanafi School in the Early Modern Ottoman Empire


Wilfried Hartman, Kenneth Pennington: The History of Byzantine and Eastern Canon Law to 1500


Julian Lubini: Die Verwaltungsgerichtbarkeit in den Ländern der SBZ/DDR 1945 – 1952


Gerhard Strejcek: Erlerntes Recht. Zur Ausbildung von Juristinnen und Juristen an der Wiener Universität 1365 – 2015





Gedanken zum „Recht auf die Heimat“



Contents download here:


ARCHIVE - Vol. 6 / 2015 No. 2



Diemut Majer: Höchstgerichtsbarkeit in Deutschland im 19. und 20. Jahrhundert. Ein rechtshistorischer Rückblick

Constitutional justice and its competences towards the political powers have been discussed since the 19th century in in Europe. Who controls the laws? A court or the legislative itself? In fact the idea that a court might tell the legislation what the constitution (and the law) is (so the Supreme Court of the US) was completely new. In Germany the “Paulskirchen­verfassung” of 1849 created such judicial controls by establishing a supreme court (Reichsgericht) with widespread competences (towards the federal and central powers) in the German “Reich”, inclusive the right of every citizen to sue the state before a court on the ground of illegal treatment. The German “Grundgesetz” (Constitution) of 1949 picked up this idea and created a constitutional court (Bundesverfassungsgericht) which became a model for many European constitutions. Where did this belief in the impartiality of a court come from? Not from historical facts, but from hopes in a neutral power. These hopes go back to the Medieval Ages, when the protection of the law (and the people / citizens) belonged to the most important rights and duties of the German Kings and of the Emperor – a right given to him by God himself. Day and night, so the sources tell, the German King Konrad II. (1024-1039) on horseback hastened through the vast Empire to punish the evil-doers and to reward the righteous ones. The priority of the law towards the political powers is the essence of the idea of the German “Rechtsstaat”. This idea is contrary to the thinking in many states, which do not want its parliaments controlled by a court.


Key words

constitutional courts; control of the political power (“Paulskirchenverfassung” 1849, “Grundgesetz” 1949); priority of the law towards the political powers as a special German idea; protection of the law as the first duty of the Kings, given to them by God himself.


Christoph Schmetterer: Die Kompetenz zur Regelung des Militärstrafverfahrens in Österreich(-Ungarn)

The military criminal procedure rules in Austria (dating back to 1768) were quite old-fashioned by 1900. There were many attempts to reform criminal procedure after 1850. However it was not clear whether the emperor himself or the parliaments were competent to enact new rules. This article examines the arguments for both views.


Key words

Dualismus;  Kaiser; Militärgerichte; Militärstrafverfahren; Oberster Kriegsherr; Prärogative.


István Stipta: Rituale Blutanklage in Ungarn im Jahre 1883

This essay analyses the legal background of the blood libel process taken place in 1882-1883. It also gives an overview on the norms of Hungarian criminal process of that era and their prevail in the praxis. The paper examines each process phase, including the important momenta of the investigation, examination, accusation and the court litigation. It also follows the theoretical and practical deficiencies of the process. Furthermore, the paper searches for reasons that led to the ritual blood libel of medieval heritage in Hungary of the civil era.


Key words

blood libel; ritual murder; court process of Tiszaeszlár 1882-1883; Hungarian criminal process.


Zoltán J. Tóth: Statutory Regulation of Capital Punishment in Hungary during the Horthy Era and World War II.

The present paper deals with the history of the normative regulation concerning capital punishment in Hungary between 1919–1944, that is, during the Horthy era. Right after the end of the Soviet Republic of Hungary, in August 1919, the legal system of the Hungarian Kingdom was reinstated. Capital punishment, however, remained general penalty not only in the military criminal procedure, but in the ordinary one as well. Besides these, from time to time, numerous martial law statutes stipulated that the death penalty could be applied in cases of various criminal offences, both in peacetime (mainly in 1921, 1924 and 1931–1932) and, particularly, wartime. The implementation of capital punishment, however, culminated in 1943 and 1944 when (that is, in the end of 1944) the statehood of Hungary collapsed.


Key words

capital punishment; martial law; criminal law; legal history in Hungary; Horthy era; World War II.


Iván Halász: The Institutional Framework and Methods of the Implementation of Soviet Legal Ideas in the Czechoslovakia and Hungary during Stalinism

The main topics of paper are the institutional framework and methods of the implementation of Soviet legal ideas and solutions during Stalinism (1949-1956). The paper concentrates on the situation in Czechoslovakia and Hungary. After the short introduction, which is dealing with the history of comparative law in these countries, follow the main part, which focuses on the concrete instruments of Soviet “legal assistance” in post-war Central and Eastern Europe. Among these instruments played dominant role the legal faculties in Budapest and Prague with their departments of Soviet law, further the ministries of justice with their legal institutes and the academic journals of affected countries. Final part of paper describes the process of constitution-making in Czechoslovakia (1948) and Hungary (1949).


Key words

academy of sciences; codification; communist parties; constitution; Czechoslovakia; Hungary; law; legal assistance; legal transplants; ministry of justice; Stalinism.


Ádám Rixer: General and Legal Meaning of Civil Society in Hungary from the Beginning till 1989

This essay tries to show examples from the history of civil society in Hungary so we could point out some of the general and long-lasting tendencies of the sector. One of the most durable tendencies was the occasional, incoherent nature of the all time regulations: it seems that the lack of truly customised and comprehensive regulation was the chronic illness of Hungarian non-profit sector – before 1989.


Key words

association; church; civil society; socialism; foundation; Kádár-regime.


Anna Klimaszewska: The Reception of the French Commercial Law on the Polish Lands in the First Half of the 19th Century

The French Commercial Code of 1807 (Code de commerce) was in force on the Polish lands for 125 years and originated the functioning of the commercial law in Poland as a separate field, giving birth to many institutions connected therewith. Despite its obvious flaws, it enabled then a step forward in business relations, contrary to the Russian law, even if its potential was partly wasted. The adoption of the French commercial law in the Duchy, however, happened in a specific way. Compared to other acts, it did not arouse too much interest, which was de facto a natural consequence of the contemporary political and social circumstances. Undoubtedly, the character of the reception cast a shadow on the whole period of the presence of the code on the Polish lands. The article provides detailed analysis of the circumstances connected with its introduction.


Key words

French Commercial Code; Code de commerce; commercial law in Poland; Duchy of Warsaw; Kingdom of Poland; stock exchange;  maritime trade; freedom of business activity; commercial tribunal; insurance; translation; legal language; commentaries.


Pawel Kacprzak: Rechtliche und organisatorische Grundlagen des Funktionierens der Arbeitslager in Polen in den Jahren 1945 – 1950

After the end of WW2, numerous labor and detention camps were set up in Poland, whose purpose was mainly aiming at the resettlement of Germans. In the Census list, there were Polish citizens and locals who had been detained from the recovered areas. These bearings were reached by Soviet troops (NKVD), the local Polish authorities and in particular by the Ministry of public Security. A special group was formed by camps for forced labor at the service of the coal industry Administration. In all the forced labor camps, the inmates were subjected to repression, which also led to deaths among them. There were also the extremely poor living conditions, the chaos in organizing the matters, the falty approval of the stock orders, and the acceptance of retaliation against the Germans and their own "traitors of the Nation". This led to the gradual dissolution of the camp, including the resettlement of Germans, the control of the local population, the economic fiasco of the company and the international context.


Key words

World War II; forced labor camps; Poland.


Karol Siemaszko: Security of Post-German Movable Property in the First Years after the End of World War II in the Light of Selected Cases Considered by the Regional Court in Gorzów Wielkopolski

The end of the World War II meant change of the borders of Polish state. Under the Treaty on Polish – Soviet state border of 16th August 1945 Poland lost to Soviet Union the area between a line marked by the Treaty of Riga and so called the Curzon Line. By virtue of winning nations' decision in return for territorial loss in the East, Poland obtained eastern parts of Germany with Opole, Wrocław and Szczecin.

A major problem after joining the Polish former German territories was the economic degradation of these lands. The article was devoted to the norms of criminal law concerning protection of the post-German property on the so -called Recovered Territories. The author based on selected judgments of the Regional Court in Gorzow Wielkopolski present the practice of judicial courts of general jurisdiction relating to the crimes from so-clled looting  art. 43 Little Penal Code and misappropriation of movable property from the post- German lands art. 44 Little Penal Code.


Key words

Little Penal Code; judgments; crimes; Regional Court in Gorzów Wielkopolski.


Kamil Niewiński: Solidarity and the Judiciary in the Polish People’s Republic in the Years 1980 – 1981

The revolutionary social movement of Solidarity, which was born in the socialist Poland in 1980, was the driving force behind the political transition of 1989/90, which in turn led to the democratisation of social and political life in this country. The early years of Solidarity saw the formulation of a social reform programme that laid foundations for political transformations. The judiciary was a very important sphere of the state functioning that required major reforms. The creation of a fully independent and self-governing judiciary model has become one of the primary purposes of Solidarity. The concepts of reforms in this area, developed by Solidarity in 1980-81, are presented in the article from the perspective of state archival sources and labour union documents. The Polish justice system has been operating until this day on the basis of these concepts; some of the proposed solutions, however, have never been brought to life and may constitute comparative legal material for further discussion about the judiciary system.


Key words

Solidarity; Polish People’s Republic; judiciary; judges; independence of the judiciary; self-government of judges.


Miriam Laclavíková, Adriana Švecová: Attempts to Unify and Codify Private Law during the Period of the Inter-war Czechoslovak Republic

On the basis of the received law, Act no. 11/1918 Coll. the First Czechoslovak Republic incorporated two legal systems – the Austrian and the Hungarian. The most important task of the state administration was the fastest possible unification of the two received legal systems which established, de facto, a new Czechoslovak law. The unification (realized by means of codification) in the field of private law had a particular importance, where, on the one hand, there was applied the ABGB, and, on the other hand, in Slovakia and Carpathian Ruthenia there was applied the customary law, being constantly improved by the judicial practice, and decisions of the Curia and partial legislation were also applicable. The purpose of the present study is to briefly and, if possible, the most concisely determine the main lines and the main issues of unification and codification of the private law in the inter-war Czechoslovak Republic while taking into account the formal diversity of the received laws (ABGB versus legal customs and decisions of the Curia, i.e. generally binding rulings of the Royal Hungarian Curia (curia regis)).


Key words

unification; codification; the first Czechoslovak Republic; received law; ABGB; general private law; Slovakia; drafts of the Czechoslovak Civil Code; a legal custom.


Ján Štefanica: Selected Aspects of the Creation and Development of the Rules of International Law for the Prosecution of War Criminals

The purpose of this contribution is to present the progressive development of international legal standards of prosecution of war crimes and those who committed them within the first half of the twentieth century. In this period also international law had to respond inevitably to the two global conflicts marked by the crimes against humanity and war aggression. We focus on the dominant questions of the legal regulations of warfare, war crimes in international treaties. Emphasis was put on concrete examples from legal history that contributed to advancing the issue in international forum. Essential role was played by proficient lawyers whose names are indelibly imprinted in legal history.


Key words

prosecution of war criminals; war crimes; military conflict; The Lieber Code; Hague Conference; The Moscow Declaration; The Charter of the International Military Tribunal.


Dmitry Poldnikov: Magna Carta: Disentangling History from Myth in Russia

This article commemorates the 800th anniversary of the Great Charter (Magna Carta) by reviewing the its study in Russia during the late imperial, soviet and contemporary periods. First, it gives an overview of the key publications and their topics arranged chronologically, second, it examines the interpretative paradigms, third, it presents the results of interpreting Magna Carta as a historic(al) document and as a myth in legal history. It is shown that the distinction between the historians' and the lawyers' interpretation of Magna Carta has not been clearly drawn in the past, and even today it is contingent upon the dominant ideology embraced by the researchers.


Key words

Magna Carta; Russian legal science; liberal interpretation; Marxist interpretation; reception of liberal values; human rights; rule of law; constitutionalism.


Katrin Treska, Engjëll Likmeta: The Funds for the Execution of Obligations (Contract) according to the Albanian Customary Law

In this paperwork will be laid for discussion the question which constitutes even the fundamental issue of this paperwork: which were the main tools for the execution of obligations according to Albanian customary law? What was the meaning and their role in relation to other norms of civil nature in the Canon? The main sources of Albanian customary law were: Canon of Lek Dukagjin, Canon of Skanderbeg, Canon of Dibra, Canon of Benda, and Canon of Laberia. In this paper will be analyzed those means sanctioned in the Canons applied in Albanian territories and used to ensure the fulfillment of obligations in civil relationships. The Albanian customary law provided that obligations were executed voluntarily and precisely. This meant that, in general, the obligations arising from a contractual relationship, were executed and fulfilled on time, in the manner specified literally in the contract, and in the right quality, even though the main form of concluding a contract at that time was the verbal one. The main tools for the execution of obligations under the Albanian customary law were: the bail (escrow), the earnest, the pledge. In this paper will be taken into analysis the provisions about these tools in the Canon of Lek Dukagjin, Canon of Skanderbeg, Canon of Dibra, Canon of Benda, and in the Canon of Laberia.


Key words

Customary law; Albanian Canons; Obligations; Pledge, Earnest; Escrow.


Iván Siklósi: Treasure Trove in Roman Law, in Legal History, and in Modern Legal Systems. A Brief Summary

In our study, the problems of regulation concerning treasure trove in Roman law and in its subsequent fate have been investigated.

First of all, the Roman law regimes of treasure trove have been analysed with special regard to the famous text from Paul (D. 41, 1, 31, 1) in which the original, classical, influential, but strongly discussed definition of treasure can be found.

After research in the sources and literature of Roman law, the subsequent fate of treasure trove systems needed to be scrutinised. Therefore, the different treasure trove systems in the Medieval, as well as in the modern age, and in some modern legal systems have been closely examined.

As compared to Roman law—especially to classical and Justinian’s Roman law—utterly new regimes were created concerning treasure trove. Nevertheless, it is worth mentioning that Justinian’s ruling was sometimes equally in force. Not only in the medieval legal sources, but even in the modern age similar regulations compared to the medieval legal constructions can be found, albeit Justinian’s treasure trove related rules were also in force.

Justinian’s Roman law regime of treasure trove, as well as the famous definition by Paul has survived in many contemporary civil codes. In this respect, the regulations of some modern civil codes were analysed.


Key words

treasure; treasure trove; pecunia; monile; mobile; naturalis aequitas; droit écrit; droit coutumier; “public law” approach; “public law” elements.


Miklós Kelemen: Veränderung der Beschaffenheit der „annona militaris“ in der späten Kaiserzeit

During the period of the late Roman Empire in addition to transforming the government structure of the empire, Diocletian`s (284-305) reforms changed the foundations and methods of administration and finance significally. The constitution of the so-called annona-system is to be highlighted with an outstanding importance among the substantial changes. In this system a particular provincial unit supplied and remunerated directly the officials as well as the army stationed at its territory.

During the reorganization, associated with the new system, the annona militaris tax became the main tax of the provincial population. During the Severan era, this type of taxation meant the compulsory delivery of agricultural crops and it was imposed on the population in extraordinary cases. This unofficial tax in-kind assured the maintenance and nutrition of the army. The ad hoc obligation and occasional practice of the compulsory delivery was formalized and organized systematically by Diocletian, his reforms developed it into an imperial-wide administration and funding system.

 As an important element of the changes in connection with the reforms, the annona (i.e. a payment in kind issued within the scope of military supplies) became the primary funding source for the army and the administration instead of the stipendium (regular military pay in cash).

It should be pointed out, that during the 2nd and 3rd centuries the annona militaris had not served the logistic needs of the garrison troops stationed in the territories inhabited by the tax payer population yet, but the provision and maintenance of the field armies that had left their military bases for taking part in military operations. 

The annona militaris, by its nature still fulfilled the function of the general military supplies. The mobile field forces mobilized for the duration of campaigns continued to receive in addition to the kind benefits also the military supplies i.e. expeditionalis annona.

Due to the nature of the new type of service pay, the payment of the annona was occasionally hampered. There was a possibility of converting in-kind benefits into cash payment (replacing the annonaria species with its cash-equivalent value), especially in case of shortage of goods, spoilage of the produce or even in case of delays in receiving in-kind benefits. Converting in-kind benefits into cash (adaeratio annonae) was possible only in special cases justified by exceptional, i.e. other than administrative organizational conditions. Executing it generally and systematically was prohibited.

It’s scientifically known that the disfunctions caused by the conversion of the annona into cash benefits could only be solved by the generalization and institutionalization of cash payments. Due to the economic differences between the western and the eastern part of the empire and the fall of the Western Roman Empire, there was a possibility of transforming the annona into cash payment primarily in the Eastern Roman Empire, that was  economically and governmentally stabilized  by the reforms of the Byzantine emperor Anastasius (491-518).


Key words

annona; annona militaris; annona expeditionalis; annona adaerata; annona-system; Diocletian; taxation in the later Roman Empire; Later Roman Empire; history of public administration.


János Erdődy: The Regula “nasciturus pro iam nato habetur” and the Appearance of the Expression “mulieris portio” in the Digest and its Consequences

Interesting as it may be, there are some instances in contemporary Romanistic, when a certain regula is considered by secondary literature as if it were a rule of general application, consequently those not versed deeply enough in Roman law, might as well deem that such a rule could enjoy an overall usage, that is independently from time and place.

One amongst these regulae is presented by Paul in the Digest (Paul. D. 1, 5, 7 [lib. port., quae lib. damn. conc.]), which contains the famous phrasing “Qui in utero est, perinde ac si in rebus humanis esset custoditur, quotiens de commodis ipsius partus quaeritur […]”. In contrast to this widely cited text, it is likewise interesting to have recourse to a case, where Ulpian reports about an imperial rescript related to the admission of the application of SC Plancianum (cf. Ulp. D. 25,4, 1 pr. – 1 [24 ad ed.]). In this text, another famous, and extensively quoted wording appears, namely the expression mulieris portio. The scrutiny of the aforesaid particular case and its secondary literature, as well as its legislative echoes may lead to a layered examination of the above phrase, as well as a more nuanced understanding of the stance of the foetus in Roman law.


Key words

portio mulieris; definition; nasciturus; regula; foetus; SC Plancianum.


Pál Sáry: The Rules of Condemnation to the Mines in Imperial Rome

Forced labour in the mines was often inflicted as a punishment in imperial Rome. What was the position of this penalty in the Roman penal system? What different degrees of this punishment were there? Who were condemned to the mines? What procedural rules had to be observed when this punishment was inflicted? What were the legal consequences of the condemnation? What was the legal position of the children of the convicted women? What were the living conditions in the mines? What do we know about the period of this penalty? What happened if a convict received a pardon? The paper tries to answer these questions on the basis of the primary sources.


Key words

Roman criminal law; capital penalty;  forced labour in the mines; servi poenae.


József Benke: What Would ‘Praetor Paulus’ Do in ‘Post-Lehman’ World? A Comparative Analysis of Lawmakers’ Responses to the Spreading Practice of Fraudulent Transfers’ Novel Ruses in Late Roman Republic’s Liquidity Crisis and in 21st Century Hungarian ‘Post-Lehman’ Crunch: Some Morals of the ‘Paulian Action’

This contribution investigates certain parallelisms between laws and socio-economic settings of laws in two entirely different ages and legal regimes. Debtors’ massive liquidity crisis in late Roman Republic and 21st century Hungarian ‘post-Lehman’ crisis of household debtors of mortgage home loans accounted in foreign currency are as similar to each other as the morals of the prolific ancient casuistics based upon the general-clause-like ruling upon actio Pauliana are useful to consider for new shrewd non-contractual fraudulent misconducts committed in contemporaneous Hungary, where such general regulation towards these kinds of tricks of fraus creditorum lacks. Therefore courts of higher instance felt themselves being obliged for finding a righteous answer to these problematic questions being emerged just in these days.


Key words

Liquidity Crises; Roman Republic; Actio Pauliana; Fraudulent Conveyances; Fraudulent Transfers; Post-Lehman Crisis; Mortgage Home Loans Accounted in Foreign Currency; Comparative Law; Civil (Roman) Law; Hungarian Private and Bankruptcy Law.


Adolfo A. Diaz Bautista Cremades: Notes about Sport Finance in Rome

Sport competitions were soon in the ancient world, an important social and cultural element. Many sportsmen in the Roman Empire are dedicated at it as a professional way , athletes enjoyed great social recognition and obtained , in case of triumph, great benefits . To finance the dedication of the athletes was used the contractual figure mutuum, money- loan, with the agreement that the borrower should return only the amount of the capital and elevated interests, case victory, assuming the banker the risk of losing


Key words

Sport; Roman law; mutuum; sponsorship.


Michael Conforti: John Wilkes, the Wilkite Lawyers and Locke’s Appeal to Law

England’s Wilkite movement of the 1760s has usually been viewed as a functional and instrumental effort to enlarge political consciousness and political participation through the use of new communicative strategies and techniques.  Most historians have judged the consequences of these efforts to be largely transitory.  Generally overlooked is the substantial and enduring contribution made by Wilkite lawyers, most notably John Glynn and John Dunning, but others as well, who instituted a series of well-coordinated lawsuits against the allegedly illegal acts of an executive believed to be insidiously enlarging its power at parliament’s expense. These lawsuits were intended to be more than simple attempts to embarrass the government of George III or crass efforts to extract a bit of financial retribution for the excesses of government functionaries.  Inspired by John Locke’s ‘appeal to law’ and his political philosophy which privileged the rights of the individual over the interests of the state, these lawyers asserted the individual’s right to be free from the intrusive searches of government particularly when those searches were intended to obtain evidence against a potential criminal defendant.  These lawsuits, collectively the first of their kind in English legal history, served as a form of active political resistance to the policies of George’s government.  The victories won by the Wilkite lawyers helped redefine the idea of ‘English liberties’, an achievement which continues to be pertinent today.


Key words

John Wilkes; John Locke; seizure of papers; general warrants; privacy; individual rights; personal autonomy; seditious libel; self-incrimination.


Jiří Bílý: Marxism in the West Thought Interpretation of Law in Postwar Period

Until now, all of the diverse and valuable contributions to the Marxist theory of law have been scattered across the academic landscape. The article is a most timely overview of the theory of law. It brings together a vision of the classical tradition before attending to a comprehensive survey of recent contributions to what has become an increasingly diversified field. It lays the basis for a fruitful engagement between these different strands. The author hopes that this article can contribute to building a truly interdisciplinary approach to the analysis of law in its varied manifestations by having clarified, and thereby uncovered the value of, the disciplinary contours of law.


Key words

social solidarity; legal profession; values of law; enforcement of law; jurisprudence.


Jacek Zieliński: Myth of the Truth in the Heterogeneous Society

In this paper we trying to draw attention to the problem of the concept oh "truth". Nowadays, however, bothers us deep skepticism abaout the possibility of its recognition. Philosophers for centuries tried to formulate various definitions and conceptions truths and truthfulness. These conceptions and definitions, rooted in own epistemology, lose the solid theory of cognition, more and more are escaping into problems of the meaning, sense, the nature of the judgment, and also language. It isn't possible to say that we have the truth, but also this state of affairs doesn't mean that we have the licence of creating the truth for instance for needs of sociotechnical steering the society. Immersed in the intuitions of truth, the focus is now only on its usefulness. Is this a good way?


Key words

Truth; Heterogeneous Society; discover the truth.




Fenyvesi Csaba: A kriminalisztika tendenciái. A bűnügyi nyomozás múltja, jelene, jövője


Iole Fargnoli/Stefan Rebenich (Hrsg.): Theodor Mommsen und die Bedeutung des Römischen Rechts


Martin Löhnig (Hrsg.): Zwischenzeit. Rechtsgeschichte der Besatzungsjahre


Gerald Mund (Hrsg.): Deutschland und das Protektorat Böhmen und Mähren. Aus den deutschen diplomatischen Akten von 1939 bis 1945


Susanne Lösch: Die coniunctio in testamentarischen Verfügungen des klassischen römischen Rechts


Anna Margarete Seelentag: Ius pontificium cum iure civili coniunctum. Das Recht der Arrogation in klassischer Zeit





Die Publikationen der Liechtensteinisch-Tschechischen Historikerkommission


János Zlinszky



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ARCHIVE - Vol. 6 / 2015 No. 1



Morris Silver: Reinstating Classical Athens: The Production of Public Order in an Ancient Community

Scholars have argued that Athens was stateless. Specifically, it is has been asserted that residents in classical Athens relied predominantly on themselves and neighbors in resisting criminals who sought to forcefully take their property. This is rather a surprising proposition since Athens was a rather large and diverse city with a well articulated division of labor and occupational specialization. The present paper begins by advancing a functional definition of 'state' as an organization (firm) specializing in the production of protection from and punishment of criminals. Then the paper theorizes about the origin, division, and demise of states and applies this reasoning to Athens. This is followed by an examination of evidence, mainly speeches delivered by Attic orators for various public occasions, political meetings, and law-courts. These texts preserve many details concerning how Athens actually dealt with property crime. The main finding is that if, as been suggested by some scholars, Athens was a 'remarkably peaceful and well-ordered society' then the explanation lies not in an unusually peaceful outlook of its residents or in their reliance on self-help and social pressures to deter criminal activity, but in reliance on harsh penalties and the provision of enforcement resources by the Athenian state.


Key words

Athens; monopoly; protection/punishment; public good; public slaves (demosioi); state/stateless.


Mark Horsley - Justin Kotzé - Steve Hall: The Maintenance of Orderly Disorder: Modernity, Markets and the Pseudo-Pacification Process

In contrast with the rather violent and unstable period between the collapse of the Roman Empire and the rise of Plantagenet monarchy, the earliest phase of England’s market economy coincided with a remarkable attenuation of brutal interpersonal violence. While, for some, this diminution of aggression is indicative of a ‘civilizing process’, this paper sets out to advance our theorization of the shift from physically violent to pacified socioeconomic competition in England and Western Europe between the late fourteenth century and the mid-twentieth century. In this pursuit we draw upon the more critical theory of the ‘pseudo-pacification process’ to explain how physical violence was sublimated and harnessed to drive the nascent market economy, which established and reproduced an economically productive condition of pseudo-pacified ‘orderly disorder’.


Key words

civilizing process; market economy; orderly disorder; pseudo-pacification; violence.


Diane Roussel: A Mosaic of Controls: The Plurality of Order Maintenance Mechanisms in 16th Century Paris

How was public order maintained in a giant city in the early modern period? Meeting this challenge before the creation of the Lieutenance générale de Police de Paris in 1667 was the result of unspectacular but effective mechanisms, far from the sensational visions of elite contemporaries and royal agents. Using Parisian criminal records as a window on everyday urban order maintenance at the local scale of Saint-Germain-des-Prés, social history unveils the work of a variety of actors (magistrates, “police sergeants” but also common people, individuals and social groups, litigants and witnesses) and a plurality of regulation processes (complaints and trials, extra-judiciary settlements, social control).


Key words

criminality; extra-justice; justice; neighbourhood; Paris; police; regulation of conflicts; Saint-Germain-des-Prés; scandal; social control.


John Walliss: Crime and Justice in Georgian Cheshire. The Chester Court of Great Sessions, 1760-1830

The criminal justice system of Georgian England and Wales has generated a great deal of interest from historians of crime for several decades. To date, however, the majority of research has focused on the south east of England and, in particular, The Old Bailey. Consequently, outside of a growing body of work on the Courts of Great Sessions in Wales, there has been little work focusing on the operation of justice in the north of England during the period. This article aims to contribute towards a refocusing of the historiography towards the north of England by presenting a quantitative analysis of the administration of justice in Georgian Cheshire, focusing on the operation of the Chester Court of Great Sessions between 1760 and its abolishment in 1830. The article will argue that analysis of the Chester Court of Great Sessions reveals a system in which, if the accused was successfully indicted, he or she faced a strong likelihood of being found guilty. More than likely, they would have been indicted for a property offence, most commonly larceny, for which they would receive a brief period of imprisonment. The sex of the accused would appear not to have influenced the verdict of the jury, although it would appear to have impacted on the severity of sentence passed. Crucially, if they were a woman and had been convicted of any other crime than murder then it was highly unlikely that, even if capitally convicted, that they would die on the gallows. Men, in contrast, could find themselves on the gallows after being convicted of a far wider range of offences.


Key words

Bloody Code; courts; crime history; eighteenth century; great sessions; legal history.


Scott Gilfillan: Institutional Imperialism. Extraterritoriality and the British Consular Court System in Japan

This essay will examine the development and imposition of the system of extraterritoriality imposed in East Asia by Western imperial powers, especially Great Britain, during the mid-nineteenth century with a specific focus on the 1860 trial of Michael Moss at a British consular court in Japan. The establishment of legal institutions such as consular courts will be classed as a form of ‘institutional imperialism’ and identified as an important aspect in the study of Western informal empire in Asia and beyond.


Key words

British Empire; consular courts; extraterritoriality; informal empire; institutional imperialism; Japan; Ottoman Empire; Qing Dynasty; Rutherford Alcock.


Jonas Campion: Maintaining Law and Order in a Democratic and Pillarised Country: the Belgian Gendarmerie between 1918 and 1957

The gendarmerie is a national armed force entrusted with judicial, administrative and military police missions. Consequently, gendarmes are deeply linked with the political ideology of the State and the Nation they serve. In this paper, the goal is to analyse the gendarme’s policing in Belgium, in the framework of keeping and restoring public order during the first half of the 20th century (1918-1957). During this period, Belgium defined itself as a democratic and pillarised country. The country was successively characterised by a period of reconstruction marked by deep economic and social progress, followed by an economic crisis, which was aggravated when parliamentary democracy was jeopardised. After the Second World War, it was necessary to rebuild the State, to deal with the Collaboration and with the Royal Question. In this context, we analyse both gendarmes’ rules and practices to characterise the construction and the transformation of public security in Western Europe.


Key words

20th Century;  Belgium; demonstrations; Gendarmerie; law; military police force; policing; riots; strikes; violence.


Martin Doherty: Tackling the Terrorists: the Experience of Internment without Trial in Northern Ireland

In August 1971, the devolved Stormont administration in Northern Ireland introduced internment without trial of those suspected of involvement in IRA terrorism.  Ever since, the policy has been regarded as an abject failure.  This article will reassess many of the key questions about internment:  why did the Northern Ireland government introduce it when it did?  Why did the Westminster government agree to a measure without parallel in British peacetime history?  Why did it fail, when it had worked before?  Was internment always doomed, or only because it was badly implemented?  What was the alternative?  How does the liberal democratic state defend itself against violent subversion without itself resorting to brutality and violence?  This article is based on archival research in Great Britain, Northern Ireland and the Republic of Ireland, and on interviews with former internees, politicians and civil servants, and former members of the security forces.  It suggests that internment was a relatively humane and honest policy and might, in different circumstances, have spared Northern Ireland thirty years of murder and mayhem.


Key words

counter-terrorism; internment without trial; Irish Republican Army; Northern Ireland; 'troubles'.


Alan Sked: Hollywood: Propaganda and Control

This article seeks to show from a review of Hollywood’s attitude towards fascism, communism, Nazism, domestic politics and foreign policy that, despite the theory of the Frankfurt School that the American masses were induced into supporting capitalism through false consciousness, the opposite was the case. The views of the masses, particularly their objection to controversy and ideology, meant that studio moguls had to respect the line laid down by them or else lose their profits. In short, Hollywood was controlled by the masses, not vice-versa.


Key words

Communism; dictatorship; Disney; Holocaust, Hollywood; ideology; Jews; Nazism; Red Scare; Vietnam.


Tony Murphy: The Nomenclature of the Undeserving Poor: an Enduring History of Marginalisation

Since the formulation of the Poor Law system in Britain, elements of the poor have been caricatured through the creation of labels which have been used to signify the perceived troublesome nature of some of the neediest in society. In a contemporary sense, the term 'underclass' is often used as a byword for the problem poor, yet such a discourse has its origins in earlier accounts of the poor. Particularly since the nineteenth century Poor Law revisions, the process of identifying groups based on their burden to society, the threat they pose to social order, and even the possibility for them to infect the nation's gene pool, has been highly notable and indeed recurrent. Demands for intervention have followed. Such intervention has transcended individual policy domains, where criminal justice mechanisms have operated alongside welfare reforms, and indeed health and education policies, in the pursuit of dealing with such problem populations or undeserving poor. The origins of the various labels applied to the underserving poor have been deeply rooted in political and cultural discourses, often related to media and policy practices, and these processes have served to mutually reinforce one another.  By charting the emergence of the labels applied to the poor, their wider context and the discourses they reflect, this paper demonstrates the enduring desire within British society to marginalise elements of the most needy, and thus, how such processes are reflected in more recent discourses of the poor.


Key words

eugenics; Poor Law; 'poverty porn'; underclass; undeserving poor.

John Lea: Back to the Future: Neoliberalism as Social and Political Regression

From the perspective of the current regime of neoliberal government the period of the welfare state appears as something of an exception to the continuity of forms of social policy stretching back to the nineteenth century. It will be argued that a focus on some aspects of the relationship between crime control, social policy and the state illustrates these continuities and enables the issues involved in future policy developments to be more clearly grasped


Key words

labour force; neoliberalism; precariat; welfare state.


Bob Jeffery - Waqas Tufail - Will Jackson: Policing and the Reproduction of Local Social Order: a case study of Greater Manchester

In light of increasing concerns in relation to police accountability, this article reviews the history of public order policing for one large provincial force (Greater Manchester Police). Explaining our misgivings about those narratives that discern a trend towards 'negotiation' and 'facilitation' between protestors and the police, we outline a critical framework for the analysis of police practice. This account is centred upon an understanding of the development of policing as the cornerstone of the fabrication of bourgeois social order, but stresses that this is mediated through its formal subservience to the rule of law, conflicting priorities and the need to establish 'patterns of accommodation' with the populations that are to be policed. All of this makes for the reproduction of 'local social orders', influenced by particular urban political contexts, as well as wider cultural currents. This article suggests that this is clearly evident in the facts surrounding the four major riots, and numerous other public order policing engagements, that mark the history of this particular provincial force.


Key words

public order policing; social order; police community relations; riots.





Zwischen Sisyphos und Herakles: Zu Heinz Barta: „Graeca non leguntur“. Zu den Ursprüngen des europäischen Rechts im antiken Griechenland. Band III Teil 1: Das griechische Recht in seinem kulturhistorischen Umfeld – Beispiele aus Dichtung, Geschichtsschreibung, Philosophie und (Kautelar)- Jurisprudenz


Hanno Rebhan: Österreich wird Verfassungsstaat. Entstehung und Entwicklung moderner Verfassungsstaatlichkeit (1918 – 1948).


Johannes Michael Rainer: Das Römische Recht in Europa. Von Justinian zum BGB. Kurzlehrbuch


Katalin Gönczi/Wieland Carls, unter Mitwirkung von Inge Bily: Sächsisch-magdeburgisches Recht in Ungarn und Rumänien. Autonomieund Rechtstransfer im Donau- und Karpatenraum


Éva Jakab, Norbert Pozsonyi (eds.): Essays in Honour of Professor Imre Molnár in Occasion of His Eightieth Birthday




Werner Ogris (Nachruf)


Drei Szegediner Rechtshistoriker und das Tripartitum (Tagungsbericht)


Das Symposium über den Einfluss des deutschen Rechtsdenkens in Mitteleuropa am 22. Oktober 2014 an der Andrássy Universität Budapest



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ARCHIVE - Vol. 5 / 2014 No. 2



Diemut Majer - Wolfgang Höhne: Der Europäische Gedanke im Zeitalter des Wiener Kongresses (The European Idea in the Time of the Congress of Vienna)

After Napoleons defeat in the battle of Waterloo / Belle Alliance (1815) and his abdication as emperor of France, the governments of all European countries assembled in Vienna, in order to restore the dynastic order and the territorial situation as it has been before the era of Napoleon. This convention, known as the “dancing convention”, had – besides the restoration of the “old world” – yet another purpose: To unite the monarchies of Austria (Habsburg), Prussia and Russia to guarantee “law and order” in Europe. This was directed against the national-democratic movements, which had, since the 1830’s, spread through Europe. They claimed civil rights and independence from the ruling monarchies. The treaty refering to this collaboration was called “the Holy Alliance”. It was followed only some weeks later by the “German Federation” (Deutscher Bund), by which all German states promised to subdue all “revolutionary actions” on their territories, especially in schools and universities. These alliances, althought of strictly upholding the monarchic structures of these states, blocked democratic movements for many years, but was able to keep peace in Europe for almost 60 years.


Key words

Vienna-convention (1815); Holy Alliance (1815); German Federation (Deutscher Bund 1815); Europe under dynastic rulers; national-democratic movements.


Thomas Gergen: Baden vor Einführung des Code civil (Baden before the Implementation of the Code civil)

The Civil Code (Napoléonic Code), a codification of natural law (Naturrecht) of 1804, has been introduced in the Grand-Duchy of Baden in 1810 with many additional rules. Our article aims to study the pre-history of the so-called “Badisches Landrecht”.


Key words

Badisches Landrecht of 1810; Civil Code/Napoléonic Code (CC) of 1804; reforms of Grand-duke Karl Friedrich (1728-1811); Johann Michael Saltzer (1710-1760); Johann Georg Schlosser (1739-1799); Johann Niklas Friedrich Brauer (1754-1813).


Sonja Pallauf: Die österreichische Gemeindeselbstverwaltung im Neoabsolutismus (1851 - 1859) (Municipal Self-Government in Austria 1851- 1859)

The self-government, the basis of municipal constitution, was established in Austria after the revolutionary events of 1848 in the early constitutional movement. The reorganisation of the municipalities based on the principle of municipal autonomy, liberty and democracy. Due to the reimported absolutism in the fifties of  the 19th century all municipalities lost their corporate status. The gradual reduction of local administrative autonomy is in the focus of research.


Key words

Habsburg Empire; Austria; constitutional and administrative law; rural municipality, municipal self-government, development of municipality law; 1851-1859.


Rainer Lukits: Gründe für den Abschluss einer Schiedsvereinbarung im römischen Recht (The Reasons to enter into Arbitration Agreements in Classical Roman Law)

This article deals with the parties’ reasons to enter into arbitration agreements in classical Roman law. For this purpose, the ordinary court procedure is compared with arbitration proceedings. In particular, the article compares the selection of judges and arbitrators, the choice of the place of proceedings, confidentiality, the influence of the magistrates, the possibility of appeal and the enforcement of decisions. The selection of arbitrators was not a main reason for choosing arbitration, because also in ordinary proceedings judges could usually be agreed on by the parties. However, the determination of the respective number of arbitrators could have been a reason for concluding arbitration agreements. Further, the free choice of the place of arbitration and the higher degree of confidentiality could have been in favour of arbitration. Also the reduced influence of the magistrates on the proceedings might have influenced the choice of arbitration. In addition, the determination of the matter in dispute and the larger discretion of the arbitrator could have played a role in certain proceedings. Most likely also the fact was important that arbitral awards could not be appealed and could be enforced quite effectively in comparison with regular judgments.


Key words

arbitration agreement; arbiter ex compromisso; judge; recuperatores; place of proceedings; place of arbitration; confidentiality;  lex Irnitana; enforcement; stipulatio poenae.


Meryl Thomas: The Early Historical Influences on Separation of Property in English Law

It is curious that a community of property regime has never developed between the spouses in England and Wales, as it has in continental Europe. This paper seeks to examine the historical factors which have influenced the development of separation of property in England and Wales. The approach taken to the issue is a comparative one, with the region of northern France (and in particular Normandy) being chosen as the comparator for several reasons, namely, because of the political connection of parts of northern France with England during the High Middle Ages, the fact that customary law operated in both legal systems and finally both systems were subject to Germanic influence in the early medieval period. The paper examines whether there is evidence for community of property in the early Germanic codes, the role of the morning gift and dower, and development in the pays de droit coutumier in the early Middle Ages. It also discusses the position in England, examining a married woman’s  property rights both in Anglo-Saxon times and post Norman conquest. There is clear evidence that community did not develop in Normandy during this period, and that it did not exist in England and Wales, and the paper suggests this may be more than coincidence. Finally the factors that influenced the development of a married woman’s property rights in England and Wales are examined, and it seems that these factors had a profound (yet inadvertent) influence on the way in way a woman’s property rights developed in England and Wales.


Key words

Community of property; married woman’s property; Norman law; dower; morning-gift;  classification of land; acquets and propres.


Low Choo Chin: The 1963 Strasbourg Convention on Single Nationality Movement: The German Experience

The Council of Europe’s Convention on Nationality affirmed the establishment of the international principle against multiple allegiances. Germany’s convergence to the 1963 European standard is marked as an important phase in its citizenship legislation. Since then, the single nationality principle has been formally accepted in its legal and judicial institutions. This principle remains unchanged in Germany up to the twenty-first century, even though other European states are converging upon a new principle that is more tolerant on the issue of dual nationality. This article suggests that Germany’s aversion to dual nationality is mainly shaped during the period between 1955 and 1974.


Key words

European Convention on Nationality; Federal Republic of Germany; dual nationality; convergence.


Melle Bakker: A History of Economic Cross-border Agreements in Europe

This article examines the history of economic thought and cross-border agreements in Europe. The work of early scholars such as Adam Smith and David Ricardo provides an insight into the benefits of trade. Additionally, David Hume’s description of fundamental laws shows the necessity of cross-border economic agreements. The first cross-border agreements on economic issues mainly relate to trade. Early cross-border agreements failed to establish economic cooperation between the countries of Europe. In contrast to the pre-Second World War agreements that failed to maintain peace, the post-Second World War cross-border agreements established peace, perhaps through this economic cooperation and interdependence.


Key words

Economic thought; History of Europe; Cross-border agreements; Trade; Economic laws; Classical economics; Enlightenment; Fundamental laws; International treaties.


István Szászdi: The Castilian Resistance to the Imperial Ideal (1520-1522). Factum and Iure in the first Globalization

The Comunero Revolution of 1520 in Castile, was the most dangerous upheaval in the Habsburg states until then, it was a strike to the Burgundian way of government that King Charles had introduced and it was the last time Castile and Leon saw a general uprising against Royal supremacy. Afterwards, in the Iberian Peninsula Absolutism will not be questioned until the revolt of Catalonia and Portugal in 1640-1641. How did it happen and why? Which were the claims of the Junta of Castile, and who were its opponents? We will try to answer briefly these and other questions, as well as the ideological support of the Comuneros against the Empire and their justified fears of joining the Imperial project of the House of Habsburg. The plunder of the Castilian treasury by the foreign courtiers, the King´s lack of interest to adapt to the costumes of the land and the fear that Charles would rule from Germany were some of the reasons that justified the uprising. Also the legitimate monarch, Queen Juana, Charles mother, was alive and the King had shown little interest to visit her and hear her voice. And last but not least the King had shown several times his wish to dismantle the domains of Castilian Crown. The discovery of the Aztec Empire partially changed such attitude but what is clear is that many of the Comunero demands were attended after the rebellion of 1520.


Key words

Absolutism; Castile; Empire; Habsburg dynasty;  Emperor Charles V; King Fernando II of Aragon; Cortes of Aragon; Cortes de Castilla; Pactism; Ley paccionada; rebellion; Indies; Conquest of Mexico; Hernan Cortes; Royal Council of Castile; Comunero Revolution; tyranny; uprising; Board of Trade of Seville; African slave trade; Cortes of Santiago de Compostela; Justinian; Spanish Royal Succesion; Navarre; Italian Signorias; Spanish Crown; Toledo; Junta; treason; liberty; flamencos; Junta; Ley Perpetua; Comunidades de Castilla.


Gábor Schweitzer: Responses in Hungarian Constitutional Theory to the so-called anti-Jewish Laws (1938-1943)

During the discussion of anti-Jewish laws in Hungary after 1938, relevant in terms of constitutional law, were raised. These included the interpretation of the legal equality of citizens, racist attitudes seeping into Hungarian law, and the question of constitutionality of anti-Jewish laws. Representatives of Hungarian constitutional theory were divided over the ant-Jewish laws. Kálmán Molnár and Ödön Polner were firmly against anti-Jewish legislation because they regarded the limitation of the legal equality of citizens as unacceptable. Vilmos Szontagh and Albert Kaas, on the other hand, went practically as far as accepting discriminative constitutional legitimation, in as much as they harmonized anti-Jewish laws with the changed of view of constitution and they regarded the limitation of legal equality as acceptable with reference to the public good.


Key words

Jewish question; anti-Jewish legislation; discrimination; Hungary 1938-1943; World War II; legal equality of citizens; constitutional theory.


István Stipta: Die Geschichte der Verwaltungsgerichtsbarkeit in Ungarn und die internationalen Modelle (The History of the Hungarian Jurisdiction of Public Administration and the Relating International Models)

The paper is concerned with the circumstances of the establishment of the legal protection in the Hungarian public administration in the 19th century. As part of that, it concentrates on what foreign impacts, contemporary Western models had influence on the Hungarian legislation. The author analyses the clear-defined characteristics of the English, French and German systems and their impact on Hungary. The ground thesis of the essay is that the Hungarian jurisdiction of public administration with limited competence did not adapt to neither of the models. The Hungarian contemporary political elite namely did not wish for the substantive abridgement of the executive power by the court.


Key words

jurisdiction of public administration; legal protection in the public administration; English model of public administration; French model of public administration; reforms of Hungary concerning public administration.


Péter Bónis: The self-defense in the Tripartitum and the European ius commune

In this paper the author intended to elucidate the origin of the doctrine contained in the Tripartitum on self-defence. As it is shown, there is no reason to discriminate between the Prologue and the other parts of the Tripartitum, as old Hungarian legal Historians did so. Important citations from the ius commune, from Bartolus and Baldus, were incorporated not only in the Prologue, but also in the three other parts of the Tripartitum. We have shown that the doctrine of the self-defence derived from the ius commune was incorporated in the third Part of the Tripartitum, and these legal ideas from the learned law had a huge importance in the everyday legal practice, they were not a display of legal knowledge and learning. The above-mentioned and discussed sources of Werbőczy are evidences that Werbőczy was not a half-educated and isolationist jurist of a backward country, but he was fully acquainted with the European legal science. The legal knowledge of Werbőczy was a modern and up-to-date legal knowledge.


Key words

criminal law; self-defence; Werbőczy; Tripartitum; ius commune.


István Turkovics: The Appearance of General Principles of Law in the Historical State Administration Procedures in Hungary during the Socialist Era

The real significance of the basic principles is that they provide points of reference for legislative regulations, and, on the other hand, they facilitate the adequate enforcement of the relevant legislations as well as the interpretations of laws. In this study, I wish to present when and why the basic principles became integral parts of the rules of administrative procedures. In the laws of Socialist countries, one could usually find general regulatory laws on state administration procedures. Accordingly, it can be stated that recording the legal institution that can be considered as the most sufficient safeguard of legal security, i.e. the general principles of law in the field of administrative law proceedings already took place in Hungarian law during the Socialist Era.


Key words

Socialist Era; State Administration Procedures; General Principles of Law; General Principles of Law.


Judit Kertész: Die Rotschlammkatastrophe in Ungarn (Red Mud Catastrophe in Hungary)

On October 4th, 2010, Hungary suffered its biggest ever ecological accident, which became known as the red mud catastrophe. This unprecedented natural disaster raised a number of legal questions. Germany also had to face a similar problem due to an explosion in a chemical plant of Oppau in the early 20th century.

As a result of the natural disaster, members of the  public administration were overwhelmed  with various tasks. This article examines to what extent they were able to manage these tasks and what challenges they had to face.  The catastrophe evidently necessitated changes in the legal framework as well  in order to prevent or eliminate a forthcoming accident.


Key words

red mud catastrophe; government; mayor; police; the military; financial support; changing laws.


Mikolaj Tarkowski: The Development of the Legal Profession of the North-Western Provinces of Russian Empire in the Nineteenth and early Twentieth Century

The article is dedicated to lawyers of Russian Empire, particular the lawyers of North-Western governorates. The paper describes the legal principles and the political conditions under which the lawyers of Russian Empire were acted in the late nineteenth and early twentieth century. The author focused, inter alia, on the principle of the independence of the lawyers.

He also pointed out the differences between the systems operated in the Russian Empire and in countries such as: England, Belgium, France, Germany and Austria. The main factor, which had an impact on the development of the lawyers of the North-Western governorates - was not the normative factor, but the political factor.


Key words

legal profession; Russian Empire; judicial reform 1864.


Theodore I. Kazazakis: The Treatment of Nuda Pacta in Byzantine Legal System

?he Roman law of obligations is characterized by its rigidity. Despite the incorporation of new exchange forms, the Roman system of contracts, throughout its history and evolution, remained unchanged and always moved around the necessity to abide by legal formalities. This note is concerned with a sub-category of “pacta”, the so called “nuda pacta”, which were not enforceable due to the principle: “ex nudo pactio non oritur actio.” However, the principle of non-enforceability of “nuda pacta”, which was initially maintained in the Byzantine legal system, progressively did not correspond to the practical needs and was found to be inconsistent with the legal thinking of that time. The aim of this note, dealing with the treatment of “nuda pacta” in Byzantine legislation and generally in Byzantine legal thought, is to show the systematic effort of the Byzantines to formulate a complete definition of “nuda pacta”, but basically their tendency to abandon the rule ex nudo pacto non oritur actio, which paved the way for the formulation of the modern theory of conventions.


Key words

Nuda pacta; non- enforceability; Byzantine legal system; abandonment of the rule ex nudo pacto non oritur action; modern theory of conventions.


Sami Mehmeti - Bekim Nuhija: Some Legal and Practical Aspects of the Process of Colonization and Expatriation in the Territory of Macedonia and Kosovo: 1912-1941

After the First World War in the territory of Macedonia and Kosovo intrusive and large-scale forced deprivations of private property were carried out with the aim of changing the ethnic structure. As a consequence of laws pertaining to the agrarian reform, a considerable mass of land belonging to the Albanian population of Macedonia and Kosovo was forcefully expropriated and allocated to Serbian peasants coming from Montenegro and Serbia. These actions succeeded in spreading uncertainty among the local landowners, many of whom sold out their property for symbolic prices just to avoid further persecution. The new ownership structures contributed furthermore to the forced displacement of the Albanian population.


Key words

Macedonia; Kosovo; colonization; agrarian reforms; expatriation; Turkey.


Vladimir Safonov: Evolution of Pension Legislation in the UK in the Twentieth Century (Historical and Law Aspects)

Subject of study the historical evolution of British pension law and liberal model in the twentieth century until the period of last reforming. According to the author the absence of clear constitutional guarantees of the pension right   in the UK and other European countries has been the serious factor in the formation multisectoral model. In the future, this situation prevents a more effective reform and the protection of rights of the elderly. The author identifies the main  stages  of British pension legislation and uses techniques compare  pension models   in Europe and  U.S.


Key words

universalism as main Idea citizen rights; Public Law and Private Law principles in U.K.; liberal variant of social security; Evolution of Beveridge model to hybrid system; voluntary savings schemes in Europe.

Jaroslava Vítová: Seniors' Role in Society in the Period between the Middle Ages and the 20th Century – Selected Aspects

Successful aging is an important issue which must be discussed and presented. The article deals with seniors’ role from the Middle Ages till the 20th century. It reflects the economic aspects of aging and the problematic of the elderly being dependent on economically competent members of society. Limited material conditions of families haven’t provided the elderly with safe aging. The economic development caused detachment between the places where people live and where they work. This means that the conditions of taking care for the elderly are getting worse and worse. Even modern technologies cannot change the fact that we can’t take care of the old members of our families. The life of a single person in the society has been changing constantly, so have the conditions of living. The attitude of the society towards the elderly has been changing as well; from showing respect to segregation. The article focuses on the role of an old person and reflects the historic and economic development.


Key words

senior; age; human society; economic development.



Wolfgang Höhne: 1914 – Das zwiespältige Jubiläum. Über die Ungereimtheiten im Gedenken an den Ersten Weltkrieg


Marotta, Valerio/Stolfi, Emanuele (a cura di): Ius controversum e processo fra tarda repubblica ed eta dei Severi. Atti del Convegno (Firenze, 21-23 ottobre 2010). Collana "Fra oriente e occidente" (diretta da Orazio Licandro e Giovanni Luchetti)


Andrzej Chwalba: Samobójstwo Europy. Wielka Wojna 1914-1918 (Suicide of Europe. Great War 1914-1918)


Emanuel van Dongen: Contributory negligence: a historical and comparative study


Hermann Baltl - Gernot Kocher: Österreichische Rechtsgeschichte – Unter Einschluss sozial- und wirtschaftshistorischer Grundzüge. Von den Anfängen bis zur Gegenwart


Wilhelm Brauneder: Europäische Privatrechtsgeschichte




5 Years of the European Society for History of Law


Tagungsbericht – „Anton Friedrich Justus Thibaut – Bürger und Gelehrter“


Report from an international conference of French Society for Legal History, Les Journées Internationales de Ljubljana 2014 de la Société d'Histoire du Droit, organized jointly with the Department for Roman Law and Legal History of University of Ljubljana Faculty of Law (Professors Janez Kranjc and Katja Škrubej), “Le juge dans l’histoire: Entre création et interprétation du droit”, from June 5 - 8 2014 in Ljubljana


Third Biennial Conference of the European Society for Comparative Legal History "Traditions and Changes" (Macerata, 8–9 July 2014)


Report of the scholarly conference on Transformation of Constitutional Law


Nachruf auf Prof. Dr. Louis Chlodwig Morsak


Obituary in Memory of Professor Antonio Guarino



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ARCHIVE - Vol. 5 / 2014 No. 1



Diemut Majer - Wolfgang Höhne: Der Europäische Gedanke und der NS-Staat (The European Idea and the NS-State)

In the Nazi-era the European ideas were strongly promoted in order to establish the German dominance over Europe. Since 1939 the NS-propaganda was established in all the occupied territories in northern and western Europe. This propaganda was spread by the two-weekly Magazine “Signal”, it contained military, political and economic matters. This Magazine had over two mio. Readers and was translated in over 20 languages in Europe. The aim of this propaganda was to convince the people in the occupied territories that they live in a patrimonial state, which cared for the “working class”, invested in infrastructure and energy etc. Since 1942 the NS-propaganda tried to inspire volunteers to join the Waffen-SS, saying that the war in the East was a war of all European people against “bolshevism”. In the text, the reader will find an example of the front page of “Signal”. However, the Nazi-authorities never thought of a state of autonomy for the occupied states (which fought disparately to keep their status, but were destined to be satellite states under Nazi-control.

Strangely enough, Hitler and his close followers like Himmler were strictly against any European idea, he considered the expansion in the East as a battle to get more “living space” (Lebensraum) for German settlers. He never spoke of Europe, but of the “Grossgermanisches Reich”, which should unite all people with German origins or German Language.


Key words

Nazi propaganda; European ideas; occupied territories; German dominance; Hitlers intentions for a “Lebensraum” for German settlers.


Christian Neschwara: Eduard Sturm, Rechtsanwalt aus Brünn, „Schöpfer“ der österreichischen Grundrechte? (Eduard Sturm, an Attorney from Brno, “Creator” of the Austrian Fundamental Rights?

The reconstruction of the Hungarian Constitution of 1848 – following the “Compromise” of 1867 between the monarch and the Hungarian Diet – induced the Cisleithanian parliament likewise to return to former constitutional concepts. A Constituant Committee, set up by the House of Representatives of the Austrian Imperial Council, was guided along the content of the Imperial Constitution and was brought into force with oktroy in 1849. The liberal German representative Eduard Sturm, an attorney from Brno in Moravia, was appointed to prepare a draft about fundamental rights. A subcommittee of the Constituant Committee brought Sturm’s draft to perfection. In essence only those fundamental rights enacted by an oktroy just in 1849 were left behind. Sturm pithily jotted down his notes about the results of the discussion within the Constituant Committee: “Everything 1849”!


Key words

Austrian–Hungarian Compromise; Austrian–Hungarian Monarchy; Austrian Imperial Council; History of (Austrian) Constitution; fundamental rights.


Thomas Gergen: The Reception of the Code Civil (Napoléonic Code) of 1804: An Example of "Juridical Migration"?

The Civil Code (Napoléonic Code), a codification of natural law (Naturrecht) of 1804, knew a large reception all over the world. The question is whether it was also an example of "juridical migration" that rendered possible human migration, too.


Key words

Civil Code/Napoléonic Code (CC) of 1804; Peculiarities of the CC; Reception of the CC; Migration.


David Bartlitz: Der philosophisch argumentierende Jurist – Versuch einer philosophischen Deutung der Irrtumskategorien des römischen Kaufrechts (The philosophically arguing Jurist – An Attempt to interpret the Categories of Error in the Roman Law of Sale philosophically)

It was in ancient Rome, if not before, that Jurisprudence had separated from all-embracing mother Philosophy and became an independent academic discipline. The article points to this descent trying to construe the categories of error in the Roman Law of Sale from a philosophical perspective. It shall be examined how classical Roman jurists sustained their reasoning using philosophical ways of thinking.


Key words

error; corpus; substantia; materia; qualitas; Plato; Aristotle; Epicurus; Stoicism.


Carmine Galloro: Von societas des Römischen Recht zur societas europaea. Kurzer Überblick (From societas of Roman Law to societas europaea: An Overview)

The term ,partnership’ generally means persons' association. By moving the focus to the company law, further elements - such asset or responsibility, reveal themselves to be relevant. In such context, an analysis of the societas of Roman law shows the origin of those rights. On the other hand, the continuity between the Roman societas and new figures of companies is represented by the societas europaea, according to the Council Regulation (EC) No 2157/2001 of 8 October 2001. This figure is in fact consistent with the Roman concept of societas and the recovery of the European legal tradition. That is why the whole discussion is concentrated upon the evolution of legal person’s definition.


Key words

Roman law; societas; Regulation (EC) No 2157/2001; societas europaea.


Georg W. Oesterdiekhoff: Evolution of Law and Justice from Ancient to Modern Times

The contention traces back to the 19th century that developmental psychology be helpful or necessary to understand human´s history. Nearly every early scholar in developmental psychology and many early ethnologists, sociologists, and historians contributed to this central idea. Despite the prevalence of cultural relativism in the past generation, some scholars have continued to conduct corresponding researches. For example, C. Radding published two articles in 1978 and 1979, which outlined the explanatory power developmental psychology has regarding the history of law. This article here extends and deepens these endeavours. It shows that developmental psychology explains the evolution from archaic to modern law and justice right across the whole world. The evolution from ordeals to rational proof systems in trials, from objective to subjective forms of responsibility, from sadistic to humane forms of punishment, from the holy law to democratic legislation, and the abolishment of trials against animals are to explain in terms of developmental psychology. The conclusions to be drawn go far beyond the area of the history of law. They rather touch both the foundations of historical research and the foundations of the humanities and social sciences.


Key words

developmental psychology; objective responsibility; immanent justice; ordeal; customary law; legislation; punishment law; trials against animals.


Benjamin Lahusen: Case Studies: German Law and German Society between Third Reich and Post-war Order

The study explores the sediment of legal conflict management: banal, normal cases from civil and criminal law that were conducted in Germany in late 1944 and early 1945. From a legal point of view, they are uninteresting; but historiographically speaking, they are a remarkable oddity. Downfall, break, zero hour, new beginning? None of these are portrayed in the records. Even total state, total war, and total defeat leave room for a splintering in personal experiences, which can perhaps best be described, according to Reinhart Koselleck, as the 'contemporaneity of the non-contemporaneous'. But if litigation is a way of dealing with societal conflicts, then the cases processed must somehow reflect the state a society finds itself in. The paper discusses where and how such cases connect law and society.


Key words

Case study; normality; banality; law and society; legal realism; formalism; Kant.


Andrew Szanajda: Prosecuting Indirect Perpetrators of Crimes against Humanity in Western Germany

This work is an examination of the practices and experiences of administering correctional and transitional justice in postwar Germany after 1945, examining the adjudication of informers as indirect perpetrators of crimes against humanity. Allied occupation law allowed for the prosecution of informers retroactively in the German courts through legislation specifically enacted for the purpose of prosecuting crimes against humanity. The implementation of the law and the prosecution of informers in the American, French, British occupation zones under the auspices of the military government administrations, and then later in the Federal Republic of Germany is examined. This work also addresses the theoretical and practical problems associated with the implementation of the law in this attempt to call individuals to account for their crimes against humanity through the use of retroactive legislation.


Key words

Transitional justice; crimes against humanity; Allied occupation law; occupation zones; retroactive legislation.


Christoph Schmetterer: Der Schutz des Kaisers im StG 1803 (The Protection of the Austrian Emperor in the Criminal Code of 1803)

The emperor of Austria had a very privileged position in criminal law: Due to his immunity the emperor himself could not commit any crime. On the other hand he was protected in a special way by criminal law. Attacks on him were prosecuted as high treason and insults as breaches of the peace. This article analyses these two crimes according to the Austrian criminal code of 1803.


Key words

Kaiser; Strafrecht StG 1803; Hochverrat; Ruhestörung; Majestätsbeleidigung; Lästerung des Landesfürsten.


Brian Dowrick – Meryl Thomas: The Origin of Legitim in English Law – a Reappraisal

The ability of a testator to dispose of chattels by means of a will seems to have been restricted from an early time in England. This paper re-examines the possible origins of such a concept; it considers ideas from  Roman law, Anglo-Saxon law, Canon law and Anglo-Norman law in an attempt to trace the genesis of the so-called legitim. It highlights the intrinsic problems that are faced when embarking on such a task, and concludes that legitim most likely has its roots in customary law, and is likely to pre-date the Norman Conquest.


Key words

Succession-legal history; legitim or reasonable parts; Roman law; canon law; Anglo-Saxon wills; Norman law; wills.


Dmitry Poldnikov: The Birth of the Russian Science of Civil Law in the mid-19th Century: towards the Unity of the European Legal Tradition

This paper examines Russia's accession to the (Western) European legal tradition in the mid-19th century. It reviews the key elements of traditional Russian legal culture of the 1820s and 1830s and examins Professor Dmitry Meyer's (1819–1856) contribution to the establishment of westernized Russian science of civil law, reforming legal education, and formation of professional legal consciousness. To illustrate this process this study analyses Meyer's treatment of sale and purchase contracts.


Key words

European legal tradition; traditional Russian legal culture; Russian science of civil law; legal education; legal consciousness; sale and purchase contracts.


Miklós Kelemen: Platz der munera sordida im Abgabensystem der Spätantike (Munera sordida in the later Roman System of Taxation)

The levy which is the subject of our study (munera sordida), particularly combined the conceptual characteristics of the munus and the direct services as well.

It is specific to the roman administration and organization that it evolved efficient and practical institutional and organizational solutions by reacting on emergent situations and problems. Although it is described accidental and under-organized by the literature.

The ordinary tax burdens were consisted of the taxes based on imperial assessment (canonica) and the annually completions (consuetudine, ex more) determinated by different territorial customs. These burdens were distinguished from extraordinary taxes (extraordinaria onera/munera).

The 'menial service' (munera sordida) were prescribed for the tax payers as extraordinary charges which could have been fulfilled in different forms (work, animal/equipment service).

These burdens particularly combined the conceptual characteristics of the munus and direct services. From a certain perspective they formed a transitional group between the 'annona'-like and public burdens, and even between ordinary and extraordinary taxpayer services.

Due to their characteristics, the munera sodida refer to organizational tasks, which are considered to be menial and ad hoc not like the annual tasks of the civilia munera.

The tasks covered by the munera sordida were not provided by the subject of the burden but the tax payers living on the subject's estate.

Therefore the burden was connected to the owner of the estate but considering its completion it was bound to estate itself.

The burden which is the subject of our study, the munera sordida illustrates the purpose and character of the late roman levies well. The scope of its duties indicate the disproportion between the expectations of the imperial government and the performance of the population which has already reached its limits.


Key words

Munera sordida; annona; capitatio-iugatio; munera extraordinaria; Diocletianus; dominates; curialis; Later Roman Empire; History of public administration; Taxation in the later Roman Empire.


Tamás Nótári: Academic Degrees and Titles, Classifications in Jurisprudence in Hungary from the 18th Century to the Present Day

In this paper we survey the system of academic degrees and important academic titles used in Hungary in the mirror of their historical development – as appropriate from the aspect of jurisprudence, omitting scientific titles that fall outside this field. First, we examine the requirements and statutory conditions of becoming a university professor (ordinary and extraordinary university professor) and university private professor (Privatdozent) in the period from Maria Theresa’s Ratio educationis, i.e., 1777 to 1950. After that, we present the introduction, regulations of the academic degrees introduced in 1950 and 1951 following Soviet patterns: the candidate of sciences and doctor of sciences degrees and the rules of obtaining them as well as the system of scientific and researcher classification still used today. After the historical survey, we analyse the regulation of academic degrees and titles after the change of regime on the basis of statutory and institutional regulations. As part of that, we survey the system of requirements of obtaining the doctoral (PhD) degree, the requirements of habilitation as scientific qualification, the rules of winning the doctor of the Magyar Tudományos Akadémia (MTA) [Hungarian Academy of Sciences (HAS)] title replacing the doctor of sciences degree and the conditions of becoming an ordinary and corresponding member of the Academy. Finally, in the mirror of these degrees and titles we present the current changes in the classification system of lecturers and researchers.


Key words

academic degrees; Hungarian jurisprudence; CSc; DSc; PhD; habilitation; Hungarian Academy of Sciences.


Anita Paulovics: Remedy and Legal Force in the Procedural Law of Hungarian Public Administration (1869 to 1901)

I chose the assessment of the development of remedies between 1869 and 1901 as my topic, because that was the time when initiatives characteristically determining the regulations of general public administration procedural law for the past one hundred years took place. I primarily processed the special literature and legislative practices of the era.


Key words

administrative procedural law; legal remedy; administrative jurisdiction; legal force.


Kinga Császár: Women’s Status in the Field of Labour Law in Hungary, through the Instance of Somogy County (1876-1914)

The role of women in society is characterized by their positions in their family, economic status, education, employment and political rights and their enforcement. My research on the social situation of Hungarian women starts at the second part of the 19th Century when the extension of women’s rights begun as the result of the civil reforms in 1867.

The objective of my research, whose summary is demonstrated in the present paper, is the presentation of the status of women in the field of labour law. In my work, focusing on the examination of legal status of women, I concentrated on the typical female employments in agriculture. The paper focuses on the study of the available documents about female works in the Archives of Somogy. Likewise, the research enables us to make a review of the contemporary and latter literature.

In Hungary, women’s employment became more widespread after 1890. The legislation of the Astro-Hungarian Dual Monarchy illustrates well women’s status in labour law of the time. We are going to see that reforms in female education obtained results only by the end of the examined period. Until then women’s role in society was determined by the traditional family-model, their limited educational rights, and especially by the lack of vocational training. In my study I am going to present that labour rights of women were closely connected with their educational rights in the age of Dualism. The present paper also proves that the ambitions of women’s movement to improve women’s situation were only answer to the given situation.


Key words

female rigths; education; emancipation; female work; servants.


István Turkovics: Efforts to Simplify Authority Procedures in Hungary in the Period between 1901 and 1944

Social and economic relations also had a significant impact for the regulation of administrative procedure. The management of certain social issues, such as public health, education, pensions or social affairs led to the increasingly larger differentiation of public administration. In the thus created situation, a drastic increase in the number of legislations regulating public administration could be witnessed. The need expressed by the society, according to which the regulation of public administration procedures should be collected in a transparent and well-arranged form was fulfilled by the legislative authority through Act 20 of 1901, for the first time in the history of Hungarian law. The law, as it can be seen above, stipulated the remedying system in a detailed manner and made these rules applicable in each and every type of public administration authority procedures. In the history of regulating public administration authority procedures, the largest breakthrough was the adoption of Act 4 of 1957, which is, practically, a code of authority procedures.


Key words

Simplify Authority Procedures; administrative law; remedy; public administration as a separate branch of state authority; Mid-20th century in Hungary.


Napsugar Mondovics: Lessons to be learnt from the Transformation of Community Life in Hungary (1945-1989)

This paper aims to reviewing the most important influences of legislation in establishing associations, civic fundraising and courage. I came to the conclusion that characteristics of associations were determined by prohibitive, restrictive legislation, which created new organizations as well. This sector was entirely or partially run by the state. By analysing statistics, acts and decrees I’ve researched the status of associations in retrospect before II World War.


Key words

transformation of associations; state control; social organization; working people; fund-raising; expropriations; property; social self-sufficiency.

Ibolya Katalin Koncz: The Standpoint of József Eötvös on Education

In this study, I examine the role of Eötvös in educational policies and his standpoints on education. He declared all through his career that the development of economic and political life was inevitably correlated to culture and education. The standpoint of Eötvös in the basic question is clear: culture and education should be the responsibility of the state. Based on his well-preparedness and extensive knowledge in various fields, he was able to prepare and implement his programme with creative self-reliance. It can be stated that József Eötvös know that enormous financial investment would be required for the execution of the provisions set out in the law on public schools, and that its impacts would be felt only decades later.


Key words

József Eötvös; Elementary Education; the 19th Century in Hungary; compulsory schooling.

Przemysław Dąbrowski: Alexander I about the Polish Issue in the Memoirs… of Prince Michael Kleofas Ogiński

The Memoirs… of Prince Michael Kleofas Ogiński are a very precious source of information about the social and political life on the territory of Poland, remaining under partitions. Moreover, they picture the initiative to restore the role of former Polish–Lithuanian Commonwealth, with reference to France or Russia, and present the numerous attitudes of the Polish and Lithuanian society towards the rulers of the two powers. The picture shown by Ogiński was full of radical loyalism and servility joined with „blind” belief in Tsar’s promises. It seems as if it was a need of the hour, which should have been used and treated as a moral and political obligation in view of a lost state, even with a possibility of failure. This viewpoint was definitely a result of geopolitical realism, which influenced the proposals presented to the Tsar by the Memoirs’ author.


Key words

Prince Michael Kleofas Ogiński; Alexander I.


Mikolaj Tarkowski: Czeslaw Milosz against the Communist System - Contribution to the Discussion

On the base of the scientific literature arose the disputes related to the question of whether literary works of Czesław Miłosz - exemplified by novel Zniewolony umysł - was a symptom of anti-communist or anti-totalitarian beliefs of Miłosz. We should note, apart from this dispute, that the views of the Polish poet are difficult to analyze in isolation from criticism that Miłosz spoke about the idea of nationalism and achievements of Polish Romanticism - especially the idea of messianism. Analysis of works of Czesław Miłosz, with emphasis on the anti-nationalist and anti-messianic factor, allow us to conclude that Miłosz did not represent the type of right-wing anti-communism.


Key words

anti-communist thought; anti-totalitarian thought; Polish emigration; Czeslaw Milosz.

Ewa Stawicka: Henryk Krajewski - Advocate, Insurgent 1863

Henryk Krajewski (1824-1897) was active in the underground independence movement in Warsaw. He became one of members of the underground Polish government in the time of the January Uprising, 1963-64, against the Tsarist Russia. Krajewski was imprisoned and three times exiled to Siberia. Thoroughly educated (as a young man, he graduated from law faculty at Moscow University and during long-term stays in Siberia he made a lot of self-study), the last 27 years of his life he practiced as a lawyer in Warsaw, earning fame both in civil and criminal cases and trying to organize advocates` self-government.


Key words

Advocates` Aid Found; Duchy of Warsaw; January Uprising;  Polish Kingdom; Spring of Nations.


Marek Białokur: Italy's mutilated victory after World War I as depicted in Polish historiography of the 20th century

The article present the Italian embitterment after the First World War in terms of Polish historiography based on syntheses on the  history of the 20th century. The term Vittoria mutilata, i.e. "mutilated victory", has become an inherent part of the early 20th century political mythology. It is believed to have been coined by Gabriele D’Annunzio (1863-1938), an Italian poet and novelist, after his seizure of the city of Fiume (Rijeka) in 1919, when he led a group of ardii (daredevils). Thus the Italian poet became actively involved in the politics of the country which he deemed betrayed – its victory  mutilated – by its allies, the Triple Entente. Although D’Annunzio's term mainly referred to the nationalist sentiments of the time, it has quickly become popular in other circles of the Italian socjety. The myth of “mutilated victory” depicted on the pages of the discussed syntheses lent credence to the words of an Italian economist and sociologist, Vilfredo Pareto, who wrote in one of his syntheses that the chaos which engulfed Italy after World War I was an announcement of a new turning point.


Key words

Italy; Polish historiography in the XX century; Vittoria mutilate; The Paris Peace Conference.


Engjell Likmeta: Scanderbeg’s Canon and Crimes against the Person

Within the testimony of an ancient criminal legal tradition, particular attention should be paid also to the Albanian canons as an invaluable asset of the country and the Albanian people.

This paper aims to treat the legal system in Albania during the period of our national hero Gjergj Kastriot- Skanderbeg.

In particular, in this essay a well-deserved attention will take account of canon norms of criminal nature found in the Kanun of Skanderbeg, the predictions of rules for the offenders, their responsibility, and those kinds of punitive measures taken against them for committing offenses against the person and the basics of criminal responsibility.

Also, special attention shall be given to the type of offenses against the person in the canon, such as murder, feuds, ambushes, etc., as well as punitive measures. An important part of this paper will take also the principles that characterize Canon of Skanderbeg, in particular, the principle of the protection of life. The purpose of this paper is to bring to the attention of the reader, the canons, as an important source of information with regard to how social relations were protected by the criminal law in the medieval period.


Key words

Customary right; canon; criminal activity; crimes against life; murder; blood feud; revenge.


Karolina Adamová - Antonín Lojek: The Personality of the Czech King George of Poděbrady and his Peace Project of 1462-1464

In 2014 we will be commemorating the anniversary of a peace project proposed by Czech ruler George of Poděbrady. It was a grand 15th century plan that was later to a certain extent reincarnated as the League of Nations, United Nations and the European Union.

In our three-part Contribution (not counting the Conclusion) we will introduce the Czech king George of Poděbrady as a person, then we will focus on the predecessors of George's project and, last but not least, we will analyze the basic ideas, aims and importance of George's peace plan.


Key words

George of Poděbrady, Bohemia, Peace Project.


František Emmert: The New Czech State Citizenship Act: the Further Liberalization of Individual Rights or the Enpowerment of State Authority?

On 1 January, 2014 a completely new Czech State Citizenship Act is coming into force as the Act N. 186/2013 Coll. It is the sixth act so far in the history of the Czech lands that regulates the legal title of state citizenship as integrated and complex. In comparison with the previous legislation, the act is very detailed and extensively articulated. The bill preparation and the legislative process was going on in the context of criticism from the side of nongovernmental organizations working with migrants who were pointing out, in their opinion, more restrictive conditions of Czech citizenship acquirement for foreigners.

These are the conditions not included in the previous legislation. However, we should rather talk about more detailed specifications than about stricter stipulation. In addition to this, the new Czech act enables all Czech citizens – naturalized citizens as well as citizens by birth – to have Czech citizenship and also a foreign citizenship in parallel. This means not only significant legislation liberalization, but also an important act adopted in a period when some European countries including EU members are moving in the reverse direction through highlighting the single citizenship principle. 

The act also preserves the historically proved dominating ius sanguinis principle in the title of citizenship acquirement through birth, however, it also supports the elements of the competitive ius soli principle. In my opinion, the final conclusion is unambiguous. The act is liberal and prefers the rights of an individual to the political authority of the state and, in the case of the naturalization conditions, it equally respects the rights of individual as well as the state priorities.


Key words

State Citizenship Act; ius sanguinis; individual rights; Czech citizens; EU; naturalization.





ALAI Association Littéraire et Artistique Internationale - Groupe Autrichien - Michel M. Walter (Hgg.): The proceedings of the ALAI Study Days in Vienna 2010, focused on the topics of duration of copyright and related rights


Christian Baldus/Herbert Kronke/Ute Mager (Hrsg.): Heidelberger Thesen zu Recht und Gerechtigkeit


Gábor Hamza: Origine e sviluppo degli ordinamenti giusprivatistici moderni in base alla tradizione del diritto romano


Christian Baldus/Wojciech Dajczak (Hrsg.): Der Allgemeine Teil des Privatrechts. Erfahrungen und Perspektiven zwischen Deutschland, Polen und den lusitanischen Rechten.


Karolina Adamová - Antonín Sýkora: Dědické zemské právo v české historii (Inheritance Law within Landrecht in Czech History)


Karolina Adamová – Antonín Lojek: Právníci doby rudolfínské (Lawyers of the Era of Rudolph II.)




Bericht zu dem Symposium und Podiumsdiskussion: Andrássy, Deák und die Schaffung des Dualismus aus ungarischer und österreichischer Perspektive von 5. November 2013



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ARCHIVE - Vol. 4 / 2013 No. 2



Arnd Koch: Folter und Gewaltanwendung im deutschen Strafprozess. Das Ende von Tortur und Ungehorsamsstrafen sowie die Rückkehr der „Rettungsfolter“ (Torture and Use of Force in German Criminal Procedure. The End of Torture and Enforced Testimonies as well as the Recurrence of Torture in Emergencies)

Any textbook on legal history includes a reference to the abolition of torture in Prussia under the rule of Frederick II (1740/1754). However, authors rarely depict that other types of violent enforcement of testimony remained part of Prussian and German law of criminal procedure until 1848. Even after torture to extract confessions had been abolished, massive use of force against suspects was still permissible to make them state co-perpetrators or to sanction their silence or lies. The article addresses the legal principles justifying the use of force in German criminal procedure beyond the abolition of torture. Finally, the author illustrates that, most notably since the 9/11 attacks, some well-known authors – without being aware of their historic role models - speak out in favor of forms of violent enforcement of testimony.


Key words

German Criminal Procedure; Torture; Torture in emergencies; Enforced testimonies.


Martin Löhnig: The Evolution of the Concept of Family and the “Special Protection of Family and Marriage” in German Law

As the first European country Germany put marriage and family under the special protection of the state in 1919. The article ascertains genesis and ramifications of this decison of the drafters of the constitution.


Key words

Constitution of the Weimar Republic; German Basic Law; Marriage; Family.


Diemut Majer - Wolfgang Höhne: Europäische Einigungsbestrebungen in der Weimarer Republik und in der Zwischenkriegszeit (European Integration Efforts in the Weimar Republic and during the Interwar Period)

The european idea was created in 14th and had its impact till in our days. They were widespread in the 15th to 18th century, but were also strong in modern times. Napoleon himself had ideas of an Europe consisting of satellite states dominated by him, as he confessed in his last days on St-Helena. During the Vienna-Congress 1815 and the following years the leading powers Austria, Russia and Prussia established the Holy Alliance in order to preserve order and peace in Europe and to opress the revolutionary movements since the 1830th.

Concerning the 20th century the essay points out the remarkable revival of the european project after World-War-I. Nobody beliefed in the 1920th in a revival of european ideas, because the treaty of Versailles contained so many clauses, aimed to humiliate the former enemy Germany, (e.g. article 153, which declared Germany and its alliies as the sole responsibles for the war), so that any european agreement seemed impossible. It was a private organisation, the Paneuropa-Movement, set up by the count Coudenhove-Kalergi, which tried to reconstruct the revival of Europe. Supported by the french foreign minister Aristide Briand (Briand-memorandum 1930), he succeeded in setting up a big movement which had much resonance in the public. In the era of World-War-II the Nazi goverment misused the european idea as a means for a widespread propaganda in all occupied territories which aimed to construct "Gross-Germanisches-Reich" under German domination - an illusion because the NS-collaboration in the occupied countries soon found out that they were only an instrument in the hands of the ruthless dictator Hitler.


Key words

Napoleon - congress of Vienna 1815; Holy Alliance 1815; German Federation (Deutscher Bund) 1815; Paneuropa; NS-Propaganda (Großgermanisches Reich); European unification after 1945.


Thomas Gergen: Translation von Recht im mehrsprachigen Kontext am Beispiel von Elsass-Lothringen, Saarland und Luxemburg (Translation of Law in a Multilingual Context. The Examples of Alsace-Lorraine, Saarland, and Luxembourg)

The science of translation can be useful to reconsider History of Law as a long history of translated rules and texts. Our article intends to explain the bilingual context of a region that embraces Alsace-Lorraine, Saarland and the Grand-Duchy of Luxembourg.


Key words

Globalization; translation; local context; reception of law rules; legal transplant; resignification of law.


Philipp Kauffmann: Spreading the Law – Comparative Legal Traditions

The article deals with selected points of legal traditions in the world. The main question is why the creation of one unified body of contract and tort law for several different states (e.g. European Union, ASEAN) still poses a conceptual problem (I). Reference to a unified Roman Law as a major European source remains unthinkable. The differences between common law and civil law influence not only the European states. Nevertheless, many say that the common law world and the civil law world are converging. For example, neither the United States nor the United Kingdom can be called purely-bred common law countries any more (II). On the contrary, Turkey as a country with a predominantly Islamic population and a founding member of the Organization of The Islamic Conference (OIC) also cannot be called a pure Islamic state. In fact Turkey’s constitutional set-up has adapted to some extent to contemporary Western legal thought and concepts (III).


Key words

ASEAN; zero-tolerance; OIC; code civil; ius commune; corpus iuris civilis; roman law; European Commission,european contract law.


Vanessa Kerbusch: Das Staatsangehörigkeitsrecht in der Österreich – Ungarischen Doppelmonarchie (Citizenship in the Austro-Hungarian Monarchy)

The paper deals with the acquisition and loss of the Austrian – Hungarian Citizenship during the 19th century. The aim of the article is to examine the different influences on the citizenship. Therefore the historical, geographic and economical aspects will be illustrated to understand the complexity of the citizenship.


Key words

Austrian – Hungarian Citizenship; Descent; Naturalization; Marriage; Legitimization; “Heimatrecht”; Dismissal; Authority’s decision.


David Bartlitz: Der Begriff des Konsenses im römischen Kaufrecht (The Term of Consensus in the Roman Law of Sale)

Different from most of the contemporary legal orders (e.g. the German BGB) the term consensus in the context of Roman law of sale still causes a big understanding problem in today’s science of Roman law. This article focusses especially on D. 18.1.9, D. 18.1.11 and D. 18.1.14, which provide Ulpian’s statements regarding the consensus issue. Thereby, the article deals with the question whether it is possible to establish a consistent system of the usage of the term consensus and its points of reference. Finally, the important relationship between consensus and error shall be illuminated.


Key words

emptio venditio; Ulpian; consensus; dissensus; error; essentialia; corpus; pretium; negotium.


Sonja Pallauf: Die Entstehung der Gemeindeselbstverwaltung in Österreich 1848-1850 (Origins of Municipal Self-Government in Austria 1848-1850)

Following the revolutionary events of 1848, the local administration of the Habsburg Empire experienced a massive change. A prominent demand of the early constitutionalist movement was to strengthen and expand the administrative autonomy. To analyse the development of municipal autonomy and democracy is the goal of this paper. The new constitutions and constitutional drafts in the years 1848 and 1849, together with the provisional municipality statute of 1849, were the first legislative regulations of municipalities, based on the principle of autonomous competences. They were to be equally applied in all Hereditary Lands of the empire. First and foremost, the development of the so-called „free rural municipalities“, the lowest administrative unit in Austria´s organisation of public authorities, is in the focus of research.


Key words

Habsburg Empire; Austria; constitutional and administrative law; rural municipality; rural municipal autonomy and liberty; development of rural municipality law; 1848-1850.


Christoph Schmetterer: Die Kriegserklärung vom 28. Juli 1914 aus rechtshistorischer Sicht (Declaration of War on July 28th 1914 from a Legal Historian Point of View)

On July 28th 1914 Austria-Hungary began World War I by declaring war on Serbia. The political background of this decision has already been analyzed quite often. This article explores the legal conditions of this declaration of war. In Austro-Hungarian constitutional law the emperor had the power to declare war. This power was considered to be prerogative of the crown. Before emperor Francis Joseph decided to declare war on Serbia, foreign minister count Berchtold had told him that Serbia had already attacked Austro-Hungarian troops near Temes Kubin. This was, however, not correct. Berchtold probably committed high treason by influencing the emperor’s decision by this false report. The Austro-Hungarian declaration of war on Serbia followed conformed to the rules established by the second peace conference in The Hague.


Key words

1. Weltkrieg; Gefecht von Temes Kubin; Haager Übereinkommen; Hochverrat; Julikrise; Kriegserklärung; Ministerverantwortlichkeit; Prärogative.


Elisabeth Greif: A Crime by all means – Female same-sex Sexuality in the First Republic of Austria

Sexual acts between people of the same sex, called “unnatural fornication” (Unzucht wider die Natur), were still criminalized in 19th and 20th century Austria. Given that Austria was among the very few European countries criminalizing male and female same-sex acts, this paper will scrutinize the impact of the culprit’s gender on proceedings as well as the almost invisibility of female same-sex acts suggesting that the sexual categories introduced by fin-de-siecle sexologists, mostly – if not solely – applied to male defendants.


Key words

unnatural fornication; homosexuality; criminal law; sexology; gender; Interwar period; prostitution.


Lucas Bento: Taming the Monarch: The Importance of Judeo-Christian Influences in the Common Law of England & Wales

Judaeo-Christian theology had a long-lasting impact on both the fabric of the English Common Law and the development of the English legal profession.  Not only has religion played a de facto role in the development of law, but it has also been consciously arranged by jurists and other legal professionals of the medieval and early modern period to assert the jurisdictional and constitutional supremacy of the Common Law, which at the time was under the threat of being engulfed by the jurisdiction of an increasingly powerful British Crown. This paper argues that Judeo-Christian sources, signs and images were systematically used by some legal professionals and commentators of the medieval and early modern period to constrain the legal powers of the Crown. In reproducing a theological culture within their community, lawyers were arguably not only re-shaping the permanent structure of their profession, but also re-defining its relationship with other social groups in the polity, namely the Crown. Ultimately, not only were constitutional arrangements re-organized, but the foundation for the Hobbesian social contract was also cemented.


Key words

history of English law; constitutional law; Hobbes; Fortescue; Judeo-Christian influences; English law; Sumptuary laws; iconography; symbolism of law; royal prerogative; common law.


Adolfo A. Díaz-Bautista Cremades: Magic, Religion and Superstition in the Tetrarchy

The study of certain practices related to the world of the supernatural in antiquity is a way to approach culture, society and power through history. "Religion", "magic" and "superstition" are means of connection between man and the spiritual world, focused on different ways throughout history.

The Roman was a deeply superstitious man. An amalgam of rites and beliefs were settled in Roman culture during the Empire -Christianity being one of them- which bloomed in the crisis of the third century, changing social, cultural and legal relationships.

Diocletian tried to face all this. He persecuted Christians, Mani’s followers, alchemists and astrologers. Traditionally there are two complementary explanations: Diocletian’s superstition (influenced or not by his colleagues) is proved with many other acts and imperial regulations as well as the need to strengthen the adhesion around the new power system established (Dominate) by a return to traditional religion. But in connection with this, a purely political interpretation lies since the centre of all these beliefs was the city of Alexandria, where there was a particularly cruel repression and that at the same time had been the origin of Domitian Domitius’ insurrection against Tetrarchy.


Key words

Diocletian; magic; superstition; persecutions; Alexandria; Dominate.


Alessandro Hirata: Das Levirat in den Mittelassyrischen Gesetzen (The Levirate Marriage in the Middle Assyrian Laws)

The levirate marriage is known in Hebrew law and even mentioned in the Old Testament. A prerequisite for the occurrence of the levirate marriage is the death of a brother without children, or without heirs, risking the property unit. In order to protect this property, in addition to the assurance of a social position to the widow, his brother, who was an adult during the life of the dead brother, should marry to his sister-in-law. In the literature, it is mentioned for the levirate marriage an Assyrian origin. The purpose of this work is to analyze the provisions of Middle Assyrian Laws that may have some relevance for the treatment of the levirate marriage.


Key words

levirate marriage; Middle Assyrian Laws; property.


Zia Akhtar: The Nation State and the Law: A Legal Critique of the Organic Development and Restrictions of the Legal Powers of the State

Has the concept of the nation state reached its apotheosis after the success of liberalism on the political spectrum? This question needs to be answered by evaluating the Constitution as the rule making authority that is embodied in the sovereign state. The nation emerged from the various strands of nationalism and there was a development into a Westphalian state that exercised territorial integrity and full sovereignty. It went through various expressions of its evolution including Hegelian’s definition of the abstract framework of the state based on the relations of power. However, there is a distinction between the nation- state and the nation and the former is a more durable concept. Philip Roeder argues that it follow a symmetry which is based on a segmented growth pattern and is premised on the state ‘s progressive development of institutions. In Europe the nation state are ancient constructs that emerged with the development of the national consciousness that enabled the nation state to be recognsied as a member state of the United Nations. The framing of treaties of setting out principles of international law has allowed some states to practice universal jurisdiction. It has been restricted because of the subjective nature of the legal political framework of the state. The approach that Kelsen takes is to confer monism and dualism as part of the theory that the state and the international order are both regulated by the basic norm. This article traces the framework or ‘glue’ that holds the nation state together. It arrives at the conclusion that the ideological state has come to an end and that liberalism has triumphed in the global consensus of modern nation states.


Key words

National identity; Volk; Westphalia; liberalism; universal jurisdiction.


Rafael Ramis-Barceló: Petrus Ramus on Law and Jurisprudence

This article, understood as an overview, tries to study the influence of Petrus Ramus on Law and Jurisprudence, according to two main criteria: the study of his writings (direct influence) and the study of the indirect influence on the historical development of the Legal and Political theory. The most relevant conclusions are that in Ramus’s scripts there are no major references to Law, but the most decisive influences are in the methodological works. The influence of Ramus was deeper in Public Law and in Political Theory than in Private Law. Nevertheless, it was neither a definitive orientation for Civil Law nor for Jurisprudence because the dilemma between a Systema iuris and a casuistic practice of Roman Law of the 16th century was not solved.


Key words

Petrus Ramus; Legal History; Public Law; Systema iuris; methodology.


József Szalma: Arbeitsvertrag Kodexfrage oder einheitliches Arbeitsrecht im ungarischen Recht (Labour Contract – Whether it Should be Governed in the Civil Code or in a Separate Statute Pertaining to Labour Law, in the light of Hungarian Law)

The process of codification of Hungarian civil law is finally finished - the new Civil code was enacted on 26th, February 2013 and will come into force on 15th, March 2014. Already during the preparatory works on the draft of the Civil Code, the Hungarian authors had different standpoints whether labour contract should be incorporated into the part of the Code pertaining to the specific types of contracts or not. Eventually, it was not incorporated into the Code, with the reasoning that the Labour Code, adopted before the enactment of the new Civil Code, should govern both the general and specific issues relating to labour contract, just as the collective agreements, in order to warrant the „unity“ of labour relation, which comes into existence by formation of a labour contract. The critics of this so-called unitary approach claim, whose standpoints supports the author of this paper as well, that labour contract, at least in its basics, has civil law nature, hence it does not belong to the scope of the public law dimension of labour law. Labour contract should be governed in general in the new Hungarian Civil Code, since such standpoint is adopted in the majority of classical European civil codes, such as the German BGB, the French Code civil and Austrian ABGB.


Key words

individual labour contract – regulated by civil code or special statute, labour contract as a part of private law, social security law as a part of public law.


Gergely Deli: Einige Gedanken über die specificatio bei Gaius (Some remarks about specificatio at Gaius)

The jurists were and still are divided upon the question whether good faith (bona fides) was necessary to acquire the ownership of a newly made thing (species). Gaius also discussed the case of specification (specificatio) in his Instituts. However, he did not explicitly answer the question. This paper seeks to offer a reasonable explanation for Gaius’ silence. It argues that the financial compensation was the main concern of the great Roman jurisconsult who reached a right solution through procedural means on the basis of some sophisticated natural law principles.


Key words

specification; good faith; acquisition of property.


Katalin Ibolya Koncz: Community Property as one of the Special Institutions of Hungarian Matrimonial Property Law of the 19. Century

I have been doing researches for years the hungarian private law from historical wiew, especially in the field of matrimony property law, and the special womans rights. The definition of collectively acquired property rights of matrimony (Errungenschaft, coacquisitio conjugalis) is, that this legal instrument means that the goods, which were earned by the parties living together in legal matrimony are collectively common, independetly from it were earned separately or collectively. Althought this definition seems to be simple and easy-to-understand, it contains some special elements.


Key words

community property; the systems of marital property; social layers; joint ownership.


István Turkovics: The Regulation of Commerce in the 19th Century in Hungary

One of the most known characteristics of sale contracts is, that they are the first and the oldest formations of contract law. Practically they are the basics of commerce, since most of the trading activities are performed in this way even nowdays. But today we can say, that sales contract are not just part of pivate law, but they are coloring the field of poblic law, beacuse sale contracts are made in commerce traffik, where we can find public controll of the administation.This studies is focusing on such govermental interventions of the administration, which have affect on the sales contract betweem the seller and the buyer, we can call this direct intervention. The typical act of this intervention is, when an governmental administrative organization imposes a fine on the seller for such activity, which goals to damage the buyers interests. This is what we can call the governmental, administrative intervention in pirvate sales. In public law, the field of consumer protection is the instrument, which regulates the governmental andministrative intervention into private sales. In this presentation I am demonstating shortly, how the field of consumer protection have evolved from a historical point of wiew, which we can call the first steps of consumer protection. In my studies I am refering to some circumstances, which have prepossessed the fact, that the consumer protection law, and so the governmentel administrative intervention showed up late, in the second half of the 19th century in Hungary.


Key words

the 19th century in Hungary; the regulation of commerce; characteristics of sale contracts; public controll of the administation; govermental interventions of the administration.


Noémi Nagy: The History of Linguistic Legislation in France

Aspirations towards reflecting an image of France where only one language is being spoken have a long history. Well before the concept of one nation–one language became widespread in the 19th century, French monarchs had used linguistic unification as a means of building a unified realm and a single French identity. In this respect, the histories of linguistic (national, autochthonous, historical) minorities share a great deal of similarities in France, Spain and the United Kingdom. However, while in the latter two states autochthonous minorities managed to gain a greater or lesser degree of territorial autonomy including the competence to legislate on linguistic rights, autochthonous minorities in France – with the only exception of Corsica – have no such power. Regional/minority languages were not allowed to be taught in state schools until 1951, and they have been recognized by the Constitution since only 2008. Also, France belongs to those few states which still not have signed or ratified either the European Charter for Regional or Minority Languages, or the Framework Convention for the Protection of National Minorities.This paper proposes to offer a detailed overview of linguistic legislation in France, and in the meantime, to dispel the myth of a monolingual France. In the last chapter, the author considers future prospects of French linguistic legislation affecting the fate of regional/minority languages spoken in the country.


Key words

linguistic legislation; regional/minority languages; France.

Jiří Bílý: The Socio-legal Environment in the Hanseatic City in the Seventeenth Century

The history of the early minutes of the Commerzdeputation Hamburg provides the basis for a case study that demonstrates the advantages of text type analysis. In 1665 the merchants of Hamburg tried to recapture the influential role of their hanseatic past by reinstituting a self-administrating body: the Commerzdeputation. The fact that its minutes were used to establish the institution within municipal administration makes them an interesting object of linguistic study. The main feature of the Commerzprotokolle to be explored in this paper is the legitimising function of the texts. Also touched are the use of High German and the relation to chancery languages.  


Key words

Germany; Hamburg; Hanseatic League.


Mikołaj Tarkowski: Additional Article from 13 February 1825. Institution of Completing the Constitution of the Kingdom of Poland from 1815

This article is devoted to an additional article of 13 February 1825, which is an example of Russian policy in the Polish Kingdom (1815-1830). The author tried to analyze the historical and legal issues, starting with the basic assumption that constitutional system of The Polish Kingdom, was based on ,,the principle of monarchy’’. The additional article introduced the secret meeting of the Sejm of the Polish Kingdom and prevented public participation in the sessions of the parliament. The author presented the one hand, the views of the opponents of such a solution, mainly Kalisz Group. They thought it was a blow to the opposition. On the other hand article presents the views of people (Stanisław Staszic, Kajetan Koźmian, prince Franciszek Ksawery Drucki-Lubecki) supporting changes in the mode of operation of the Sejm. According to the proponents of this idea, the changes introduced elementary order in the parliamentary session.


Key words

The Constitution of the Kingdom of Poland in 1815; the Kingdom of Poland; Russian Empire; Aleksander I; Nikolai I.


Blerton Sinani - Sami Mehmeti: A Historical-Legal Overview of Constitution as the Highest Political-Legal Act of a State

The constitutional history is a constituent and very important segment of the science of constitutional law. From the beginning of the political history of the society, several legal acts have been enacted to regulate different social issues, including those concerning the behavior of the rulers. The first elements of constitution, as well as the first scientific premises that are significant for its content as legal act, are introduced in the Greco-Roman world. This period is the beginning of history of the constitution in formal sense as well as in material sense even though in a rudimentary form. Even though, there is considerable data that certain states have enacted written acts with highest legal force before the end of 17th century, the science of constitutional law considers that the emergence of written constitutionalism is related to first written constitutions of American states in the 18th century.


Key words

legal act; constitution; state; legal system; contract theory; sovereignty; human rights and freedoms.




Éva Jakab: Szerzők, kiadók, kalózok. A szellemi alkotások védelmének kialakulása Európában (Authors, Publishers, Pirates: the Development of Protection of Intellectual Works in Europe)


Ricardo Gómez Rivero: Die Königliche Sanktion der Gesetze in der Verfassung von Cádiz


Wim Decock: Theologians and Contract Law: the Moral Transformation of the Ius Commune (ca. 1500-1650)


Lars Konukiewitz: Die richterliche und die einseitige Vertragsauflösung wegen Nichterfüllung im französischen Recht und die aktuelle Reformdiskussion




XXIX International Historical and Legal Conference "Sources of Ukrainian Law, other Countries and the International Countries’ Community: History and Modernity"





Contents download here:


ARCHIVE - Vol. 4 / 2013 No. 1



Jakob Fortunat Stagl: Durch Rede zum Recht am Beispiel von Quint. decl. 360

Quintilian’s Lesser Declamation 360 deals with an insolvent decedent’s estate. Both, the mother in law and the widowed daughter claim back their dowries. The solution to the problem is the favor dotis. The case and its solution give a very good insight into the relationship between rhetoric and jurisprudence in Rome. Both are far more intermingled than the modern Romanist would like them to be. Therefore, the declamation is to be considered a first rate source of Roman law of dowry.


Key words

Rhetoric; dowry; Quintlian; favor dotis; insolvent decedent’s estate.


Christoph Schmetterer: Der Kaiser von Österreich als Oberster Kriegsherr 1867–1918

After the “Ausgleich” of 1867 the Austro-Hungarian army got a complicated structure. Eventually the army was divided in three parts: the common army, the “Landwehr” in the Austrian half of the empire and the “Honved” in the Hungarian half. The emperor was commander-in-chief of all parts of the army. Regarding the common army the emperor could retain substantial prerogatives. His orders were not countersigned by a minister. For the administration of the “Landwehr” and the “Honved” though the countersignature of a minister was necessary.


Key words

Austro-Hungarian monarchy; emperor; Austro-Hungarian compromise of 1867; right of command; armed forces; prerogative.


Thomas Gergen: Gewalt gegen Kleriker und das mittelalterliche Strafrecht

Violent acts against spiritual in general and especially against high-ranking officials of the Church as bishops are phenomenons that exist in the history of the Church and in the law history. In this article there are analysed examples where the violence and even murder to religious representatives are included, and where the Peace of God and Landfrieden played its role.


Key words

Violence; spiritual; bishop Gaudri (Gaudry) from Laon; Bishop Lambert from Arras; Archbishop Engelbert from Köln; placitum Publicum.


Mariavittoria Catanzariti: Begriffsgeschichte und positives Recht: ein Jurist im Vergleich mit einem Historiker

This paper examines the connection between “Begriffsgeschichte” (History of Concepts) and positive law as regards the polarization „public/private“ and „public law/private law“. It shows how the distinction between public law and private law turns out to be clearer and more stressed than the corresponding distinction within the semantic field „public/private“. Nevertheless, the legal distinction does not lose the semantic trace. This thesis will be verified through the analysis of the Lexikon “Geschichtliche Grundbegriffe” in order to compare lawyers’ and historians’ perspectives.


Key words

„Begriffsgeschichte“; Dichotomy ‚public/private’;   Bourgeois Society;  Public sphere;  Secrecy.


Béla P. Szabó: Ungarstämmige Mitglieder des Doktorenkollegiums der Wiener Juristenfakultät vor den Universitätsreformen Maria Theresias

The essay examines the early new age history of the Faculty of Law in the University of Vienna. It analyzes in brief the causes why was not the Faculty of Law regarded as a significant educational institution before Maria Theresia’s reforms started in 1753. It introduces the functions and the importance of the Doktorenkollegium (collegium doctorum) in the life of the Faculty during this period. Finally, it reveals the data which can be found in the Archive of the University of Vienna about the 12 members from Hungary.


Key words

History of University; University of Vienna; Faculty of Law; collegium doctorum; peregrinatio academica; Law students from Hungary.


Emese Újvári: Mitbürgschaft im römischen Recht

If in Roman law the same primal obligation was insured by more surety, the creditor could originally demand the settlement of the whole amount from one surety. But in time certain legal instruments were created to protect the sureties’ interests. The sponsores and fidepromissores were protected by various acts, in turn the fideiussores could reach the division of the claim among the solvent sureties with the beneficium divisionis. But in absence of it they could enforce their claim for compensation against their joint sureties with the help of the derivative regress on the basis of beneficium cedendarum actionum.


Key words

Roman law; co-sureties; fideiussio; beneficium divisionis; beneficium cedendarum actionum.


Nikolett Lukács: Frustration and Unexpected Circumstances in the Irish and English Law in the XXth and XXIst Century - the Survival of Principle „Clausula Rebus Sic Stantibus”

The doctrine of clausula rebus sic stantibus was used the problem of unexpected changes by the contracts. The doctrine is revived the appearing of the frustration in the english and irish law in the XXth and XXIst century too. The study presents the legislation and the precendents too. The publication analyzes the reasons to which referred the identifying the frustration, for example war, inflation, illness, death and any other unexpected circumstances.


Key words

Frustration; clausula rebus sic stantibus; European Private Law; Irish Law; contracts; English Law; 1943 Law Reform Act; Roman Law; precedents.


Zsuzsa Gyöngyvér Kovács: Historical Context of Mentally Disordered Offenders in Hungary

In my article I dealt with the criminal consequence against mentally disordered offenders. The view of these group of criminals was changed during the centuries. Before the 18th century mentally disordered offenders were accomodated in prison like other offenders. Acts of the 19th century and first part of the 20th century contained only a few articles in connection with this topic. These rules emphasized only protection of the society, in spite of the fact that jourists stressed the significance of a criminal sanction against these offenders. From the middle of the 20th century legislation turded the attantion to mentally disordered. In addition to protection of the society, treatment of the offender also appeared.


Key words

Mentally disordered offender; mental institution; safety detention; dimissed capacity.


Dmitry Poldnikov: The Legacy of Classical Natural Law in Russian Dogmatic Jurisprudence in the Late 19th Century

The paper examines the inconspicuous influence of the legacy of the classical natural law of the 18th century on Russian dogmatic jurisprudence of civil law, taking as an example the authoritative “Course on Civil Law” (1868-1880) by Konstantin Pobedonostsev. Despite the dogmatic purpose of the course and the hostility of its author towards European liberal doctrines of natural law, some striking similarities between them can be found, especially in the general provisions and principles of contract law, the method of its exposition and the recourse to justice and supra-positive ideal.


Key words

Legal history; dogmatic jurisprudence; natural law; civil law; contract law; principles; justice; Russia.


Przemysław Dąbrowski: Vilnius Social Democracy after World War I (to the Beginning of 1919) – Selected Aspects of its Activism and Political and Legal Thought

Social democracy in Vilnius through various stages. This was a heterogeneous group. Some representatives supported the socialists and some of the communists. The purpose of this article is to present only part of the activity of social democracy in Vilnius, with particular emphasis on the former LSDP


Key words

Social Democracy; LSDP; Vilnius Organization of the Social Democratic Party of Lithuania.


Mikołaj Tarkowski: Participation of Vilnius Advocates in the Work of Lawyers Associations and Legal Organizations Operating in the Interwar Period in Poland

Article is devoted to the history of associations and legal organizations operating in the interwar period in Vilnius. The author of this article described the institutions institution that gathered the members of the Advocacy Bar in Vilnius. These organizations set different goals to achieve. Their work was based, inter alia, to spread legal knowledge among the residents of Vilnius and north-eastern lands of Poland, define and solve legal problems and integration of lawyers practicing in the district of the Court of Appeals in Vilnius. It should be added that the development of lawyers' associations in the years 1919-1939 was quite dynamic. However, organizational development was hindered by the difficult financial situation of some advocates in Vilnius.