JOURNAL ON EUROPEAN HISTORY OF LAW







 

The publisher of the Journal on European History of Law is the STS Science Centre Ltd. seated in London. The European Society for History of Law closely cooperates with the STS Science Centre Ltd. and helps with editing the journal. The journal is published twice a year. It is assigned for law-historians and Romanists that want to share with their colleagues the results of their research in this field.

 

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ARCHIV - Vol. 4 / 2013 No. 2



TABLE OF CONTENS


 

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.


Jiøí 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.


Miko³aj 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 (Stanis³aw Staszic, Kajetan KoŸmian, 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.



BOOK REVIEWS



Éva Jakab: Szerzõk, 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


REPORTS FROM HISTORY OF LAW



XXIX International Historical and Legal Conference "Sources of Ukrainian Law, other Countries and the International Countries’ Community: History and Modernity"


BRATISLAVA LEGAL FORUM 2013





Contents download here:





ARCHIV - Vol. 4 / 2013 No. 1



TABLE OF CONTENS


 

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.


Przemys³aw D¹browski: 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.


Miko³aj 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.

 

Key words

Advocates; judges; prosecutors; legal society and organizations; Vilnius.


Marcin Michalak: Role of the Uniform Legal System in the Process of Territorial and Social Integration – the Genesis of the Polish Criminal Code of 1932

The most important aspect of the article is to indicate to what extant uniform legislation could be a factor of territorial and social integration. This issue has been examined through the prism of the process of creation of the Polish Criminal Code of 1932. The paper indicates the attitude of the Polish elites to the problem of unification and codification of legal system at the threshold of the independence of the Second Polish Republic. The article posed a question if the way in which Polish Criminal Code was being prepared can serve as a profitable experience for those who are responsible for the creation of law nowadays, especially on the European level.


Key words

Polish Criminal Code; penal unification; legal system.


Jiøí Bílý: Jesus of Nazareth - the Most Infamous Trial

The authorities charged Jesus with being a false prophet who had uttered blasphemy by claiming to be Messiah and Son of God. The Sanhedrin could no doubt have organized a stoning as they did in the case of Stephen a few years later. The Romans neither intervened to save Stephen nor, so far as is known, took action against the perpetrators. But evidently the Jewish leaders wanted to go futher and have the hated Galilean executed with as much publicity as possible. To be hanged from a tree (Deut. 21:22-23) was a death reserved for the accursed of God, but the Roman governor was the only authority that could order crucifixion, a death that could be interpreted, as it later was, as fulfilling the terms of the Deuteronomic curse. Even so they took a risk, for in the eyes of many to die at the hand of the Romans on a poiitical charge was an honorable end. Barabbas would have become a local hero. The risk, however, was taken. The Jewish leaders were incensed by Jesus‘ calm avowal of his messianic character to Caiaphas.

So Jesus was taken before Pilate. Pilate made a futile effort to transfer Jesus to the jurisdiction of Herod Antipas who happened to be in the city for the feast. It was a good diplomatic move, but the case came back to Pilate. There the high priests gave their version of Jesus‘ answer concerning the tribute penny, suggesting to the reader of the Gospels perhaps that this question had been put as a means of collecting evidence against him. Pilate was not convinced. He turned to Jesus with the direct question, „Are you guilty or not?“ just as Pliny the Younger would question the Christians taken before him in Bythinia eighty years later – „Are you the King of the Jews?“ Jesus‘ reply gave him no help. Pilate procrastinated. Only when he was cornered and threatened with denunciation, that if he acquitted Jesus he would be „no friend of Caesar“, and confronted with growing disorder, did he give way. He also feared seditious outbreaks and had to play safe; but his contempt for the high priests was unbounded.

 

Key words

Trial; high priests; Sanhedrin; crucifixion; gospels; Passions; Judaism; Christians.



BOOK REVIEWS



Johannes Schmitt: Die Republicaner an der Prims. Untersuchungen zur Reichsherrschaft Hüttersdorf-Buprich im 18. Jahrhundert

 

Christian Baldus - Massimo Miglietta - Gianni Santucci - Emanuele Stolfi: Dogmengeschichte und Historische Individualität der römischen Juristen. Storia dei dogmi e individualita storica dei giuristi romani. Atti del Seminario internazionale (Montepulciano 14 - 17 giugno 2011)

 

Pál Sáry: Iustinianus császár egyházpolitikai rendelkezései (Die kirchenpolitische Anordnungen vom Kaiser Iustinian)

 

Gerhard Kohl – Thomas Olechowski – Kamila Staudigl-Ciechowicz – Doris Täubel-Weinreich (Hrsg.): Eherecht 1811 bis 2011. Historische Entwicklungen und aktuelle Herausforderungen = Beiträge zur Rechtsgeschichte Österreichs, 2. Jahrgang, Band 1/2012

 

Valerián Bystrický – Dušan Kováè – Jan Pešek (Hrsg.): K¾úèové problémy moderných slovenských dejín 1848 – 1992 (Schlüsselprobleme der modernen slowakischen Geschichte 1848 – 1992)


An Eager Pursuit of Justice Remarks on the Collection Volumes of Gábor Hamza



ANNEX - HISTORICAL AND WRITTEN CONSTITUTIONS: PAST AND PRESENT



Zoltán Szente: The Doctrine of the Holy Crown in the Hungarian Historical Constitution

The study analyses the basic characteristics of the doctrine of the Holy Crown in Hungarian constitutional thinking from a historical perspective. The author gives an in-depth analysis on the functions and roles of the royal crown in Hungarian public law. He finds that it was not merely a coronation jewel, or a pure symbol of the royal prerogatives, but rather, it was respected as a centerpiece of the historical, ‘one-thousand-year-old’ constitution of the country. While this doctrine was a unique Hungarian constitutional theory, symbolizing the national independence, it was sufficiently flexible to serve different political ideas and ambitions. Professor Szente describes how all sovereign powers were originated from the Holy Crown. He discusses the old principle of radix omnium possessionum, using to sustain the legal claim for all historical lands and territories of the Hungarian Monarchy. The Crown always embodied the monarchical form of the Hungarian state, and its sacred nature symbolized the strong alliance of the throne and the altar, that is, the fusion of the monarchy and the Catholic Church. As a consequence of this analysis, in contrast to the revival of the constitutional significance of the Holy Crown in the contemporary Hungarian public law, Professor Szente argues that the basic elements of its doctrine are irreconcilably incompatible with the values and requirements of the modern European and Hungarian constitutionalism.

 

Key words

Holy Crown; sovereign power; historical constitution of Hungary; monarchical form of government; development of constitutional ideas; modern constitutionalism.


Ádám Rixer: Hungary’s Fundamental Law and the Concept of the Historical Constitution

Hungary has adopted a new Constitution in 2011 (named Fundamental Law of Hungary). The reason for creating this paper was the tremendous number of questions and impetuous debates which surrounded the establishment of this instrument abroad and within the borders. During the examination of the Hungarian constitution and the Hungarian legal system in general several “sharp” preliminary questions shall be answered, such as why it was necessary to create a new fundamental law more than two decades after the fall of the iron curtain, less than one decade after joining the European Union, in possession of a constitution which fully complied with international requirements. Answering these questions we have to emphasize that a specific line of the new legal concept, formulated by the Fundamental Law, is the aspect with which it views the notion of legal continuity.

The historical constitution is mentioned several times in the Fundamental Law. According to the first sentence of the third paragraph of the National Avowal “We honour the achievements of our historical constitution”; according to Article R) paragraph (3) of the Foundation “The provisions of the Fundamental Law shall be interpreted in accordance with their purposes, the National Avowal and the achievements of our historical constitution.”


Key words

Fundamental Law of Hungary; formal legal continuity; material legal continuity; limited concept of historical constitution; radical concept of historical constitution; openness of the Fundamental Law.


Gábor Schweitzer: Fundamental Law – Cardinal Law – Historical Constitution: The Case of Hungary since 2011

The paper is focusing on the revitalization of the idea of historical constitution in Hungary after the adoption of the new constitution (Fundamental Law) of 2011. This notion has many faces and it is determinded by long legal history of Hungary. The author has also reflected the new terminology of the new Hungarian constitutional law. He focuses mainly on the notion of fundamental law, cardinal law and the Holy Crown of Saint Stephen in the Hungarian historical and modern constitution.

 

Key words

Historical constitution; fundamental law; cardinal law; Holy Crown of Saint Stephen; suspension of the historical constitution; historicizing elements of the constitution.


Ivan Halász: „WE THE MEMBERS OF THE HUNGARIAN NATION…” Remarks on the Changing Concept of Nation in  the New Fundamental Law of Hungary

The main topic of the presentation is the changing national narrative of the Fundamental Law of Hungary. This narrative is more ethnical today. The central question of the presentation is  the changing concept of the nation in the Hungarian constitutional system after the adoption of the Fundamental Law in 2011. The adoption of the new Fundamental Law of Hungary in 2011 has opened the new period in the Hungarian constitutional life. The preamble of the Fundamental Law redefines the notion of nation in the Hungarian legal context. But this redefinition, which is concerning on the cultural elements in the definition of nation, is not consequent. The preamble introduce the new terminology and several new notion too (e.g. Hungarian political community). The paper reflects the question of the minorities rights and the problem of Hungarian electoral system too.

 

Key words

Constitution; Fundamental Law; notion of nation; organic law; preamble; kin policy; diaspora; archaisation.


Karel Schelle – Renata Veselá: On the Traditions of Czech State Right Thinking: Parliamentarianism and the Struggle for Czech State Right during the Second half of the Nineteenth Century

Moderate constitutional requirements became an integral part of the Czech national programme since its very beginning. At first, they were restricted to formal confirmation of the historical rights of the Czech state. The requirements of the Czech nation relied on the statement that the independent medieval Czech state had never de iure declined. Habsburg centralization and interference, the reduction of common Czech institutions, the transfer of decisive powers to Vienna and other similar measures were declared unlawful. Therefore the Czech representatives demanded in practical politics an internal reconstruction of the Empire along federal lines that might have ensured a similar position for the Czech state as it had held when the monarchy was created in 1526. The further fortunes of the Czech nation were therefore connected with the emergence of a Habsburg monarchy in which better conditions should have been created for national development (Austroslavism). The struggle for the Czech ‘state right’, as it was called, influenced Czech politics in the course of the second half of the nineteenth century. Unlike the Hungarian efforts, it was completely unsuccessful.


Key words

Czech state right thinking; Parliamentarianism; Bohemia; František Palacký.


György Képes: Regeringsform, Grunnlov, Grundlov: Written Constitutions in Scandinavia in the 19th Century

This study focuses on the 19th century developments of the constitutional history of the Nordic countries, beginning with the new Swedish Instrument of Government of 1809 that primarily intended to restore the balance between the King and the old Parliament, however in many aspects it was an important step towards a constitutional monarchy. The famous Norwegian Constitution of 1814 which is still in force, was rather a product of the modern constitutional thought, based on the concept of separation of powers, influenced by the Constitution of the United States as well. The Constitution of Denmark of 1849 meant the end of almost two centuries of absolute monarchy. Similarly to the perfection of the Royal Law of 1665 that established royal absolutism in Denmark, the new Constitution established very accurately the institutions of a modern liberal democracy supported by guarantees, protecting fundamental rights and creating an almost universal male suffrage. These three Scandinavian constitutions of the 19th century were definitely milestones on the road of parliamentarism, making Denmark, Norway and Sweden model countries of the constitutional monarchy.

 

Key words

Constitutional law; constitutional history;  Scandinavia; Nordic countries; Denmark; Sweden; Norway; Regeringsform; Grundlov; Grunnlov.





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ARCHIV - Vol. 3 / 2012 No. 2



TABLE OF CONTENS


 

Thomas Gergen: Advokaten und Mediatoren in Frankreich im 11. - 15. Jahrhundert

With the beginning of legal education in schools of law and universities of law in 12th century the graduates of these institutions also called their attention in the legal practice. Some mediators could be found in South France sources (Languedoc-Roussillon) from second half of 12th century and from first half of 13th century. A specific case of mediation in South France Catalan district illustrates the ability of lawyers to conclude the list of agreement between contra parties, with the help of law. There is also a reflection of lawyers and prosecutors viewed from religious judiciary perspective since 13th century. Attention is also paid to the patron of French lawyers to Saint Yvo (Yves) of Tréguier who lived in 13th century and whose myth was built in the following centuries.


Key words

Legal advisor; notary; mediator; school of law; arbitrator; magister; canon lawyer; prosecutor; religious judiciary; Bonaguida Aretinus/Bonaguida of Arezzo; Yves Hélory of Kermatin/Yves of Tréguier.


Alan Sked: Social Attitudes and Legal Constraints: Army Life in the Habsburg Monarchy, 1890-1914

The Habsburg Army between 1890 and 1914 was in many ways under attack within the Monarchy. Part of its defence mechanism was to see itself as a 'state within the state' relying on a code of honour and a separate military justice system. However, social forces meant in fact that it came more and more to resemble the wider society of the Monarchy.

 

Key words

Habsburg Monarchy; Habsburg army; officer corps; honour, honour code; honour courts; duelling; military justice; punishments; suicide; sex; venereal disease; homosexuality; anti-Semitism.


Nikola Galaboff: Die sozialethischen Aspekte des römischen mandatum – eine Betrachtung im Recht und in der Philosophie

The complimentary mandatum is only one of the many legal institutions which found its way to the modern codification of modern era by passing the “bridge” of reception of the ancient Roman law – e.g. to the German BGB. While concentrating on the legal-dogmatic basics it conveys quickly that the Roman mandate law was influenced to a great extent by social and socio-cultural conceptions of its day. Therefore subject of the essay at hand are the questions – what was the socio-ethical basis of this legal institution and - how much were the legal thoughts of the late-classicist Paulus in his commentary on the praetorian edict influenced by the philosophical discussions of Seneca’s de beneficiis.


Key words

Mandatum; amicitia; officium; fides; Paulus; Seneca; law; philosophy.


Christoph Schmetterer: Die Funktion von kaiserlicher Sanktion und ministerieller Gegenzeichnung in der österreichischen Gesetzgebung 1861–1918

From 1861 to the end of the Austro-Hungarian monarchy two things were necessary to enact a new law: an act of parliament and the sanction by the emperor. Before a new law was published it had to be countersigned at least one minister. The emperor was not liable for his decisions; the ministers, however, were liable for their decisions as well as the emperor’s. This article explores the scope of their liability for the emperor sanctioning laws – especially relating to the distribution of competencies.


Key words

Austro-Hungarian monarchy; emperor; sanction; distribution of competencies; act of parliament.


Alejandro Valino: Der Vertragsstrafklausel im spanischen (gemeinen und foralen) Zivilrecht: romanistische Tradition und Reformperspektiven

The author analyses the legal treatment of the penalty clause into Spanish Civil Law, with special attention to the regulation offered by the Civil Code in their articles 1152 to 1155, the differents functions which the penalty clause achieves and the differentiated regulation into Fuero Nuevo of Navarra in the Lex 518. All of this can be seen as a reflection of the dualism in Spanish Legal System between the Common Civil Law (represented by the Spanish Civil Code) and the Foral or Special Law (represented by differents regionals compilations). The regulation of the Spanish civil code sets as general rule the contractual penalty as substitute of the regime of compensation into the article 1101 of spanish Civil Code in case of breach of contract or in case of defective or untimely performance by the debtor. This provision allows to the creditor to avoid a real damage assessment, so that the penalty clause lets a advanced estimate of damages without needing to prove them. But also admits the regulation of the penalty clause into the spanish Civil Code other functions, for instance the cumulative penalty (with the legal and previously valued compensation of damages or with the specific performance). This regulation, unchanged since the enactment of the spanish Civil Code, has been object of special attention by the preliminary draft to modernisation of the law of obligations drawn up by the Commission of Codification of the Ministry of Justice in 2009, picking up some of the guidelines present in other European Civil Codes as well as in the contributions of prestigiouses scholars, which are expression of the effort aimed at the harmonisation of European Contract Law.

 

Key words

Penalty clause; estimate of damages; breach of contract; performance of contract; harmonisation of European Contract Law.


István Szászdi León-Borja: Castilian Justice and Columbian Injustice: the End of  the Government of Christopher Columbus in Hispaniola

In 2006 Consuelo Varela and Isabel Aguirre, published the book La caída e Cristóbal Colón. El juicio de Bobadilla. In it they reproduced and transcribed a new historical source that has answered many questions regrding the first decade of Spanish rule in thwe West Indies under Christopher Columbus. The “Pesquisa” against Columbus was discovered by Aguirre in the Archivo General de Simancas, in Spain. The mistery of the true reasons that led to Columbus´ dismissal from office as Governor of the Isles of the Ocean Sea has been resolved. We have researched in the plot of the Columbus Brothers against the economic officials of Queen Isabella, and how the investigation performed by Bobadilla was done following Castilian law. The death sentences signed in of Hispaniola between 1493 and 1500 have been object of interest in order to judge th personal rule of the Columbus family members.

 

Key words

Columbus; Monarchy; Spain; discovery; conquest; tort process; judicial administration; charters; evangelization; Indians; forced labour; treason; Feudalism; Catholic Church; Cortes of Toledo; government of the New World; Viceroy; sources; sodomy; conspiracy; Board of Trade; Contadores Mayores; Pesquisa.


Mariavittoria Catanzariti: New arcana imperii

The traditional approach to secrecy is differently carved out upon a public perspective, or a private one: according to the former, secrecy looks like a tool of power; according to the latter, it is an instrument of individual warranty. This framework, by and large, turns out to be the western model of admitting secrecy within the legal system.

This paper shows how secrecy, instead, does not involve different interests according to the private or the public sphere, neither we can talk about a new version of “reason d’État” nowadays. It, rather, affects at the same time the public use of information as power or control, and the private benefits of playing on individual rights.

Therefore secrecy is strictly related to the development of democracy. The hidden decisionmaking always depicts a threat in defining the public sphere, and its rise is sometimes tied to the increase of public power at the expense of individual rights. The conflict stems from the democratic process itself. Democracy, indeed, requires secrecy to protect both individual rights and state prerogatives, but an excessive use of secrecy weakens the strength of the political institutions. This paradox has been traditionally presented as the “breached promise of democracy.” Its drift, in the worst case, lets public powers manage without getting public consent. It means, in other words, to make legal practices not recognizable when public interests are at stake.

Secrecy has been here adapted to a few historical patterns that mostly address it to the public/private dichotomy, from the ancient world on. Nonetheless, this is not a historical overview of secrecy, but an attempt to use history for explaining some cultural trends.

The overall thesis of the paper is that the traditional idea of the double perspective could be somehow revised. Secrecy does not give up being a propaganda of public powers even though it involves private rights, and even though it enforces private rights. It lays where more power is allocated, as an outcome either of the struggle against power, or of the use of power itself.

 

Key words

Secrecy; democracy; theory of law; history of law;  arcana imperii; secret; public sphere; politics; raison d’état.


Roberto Scevola: On the Transactions Characterized by Mutuality and Donation: Do the Modern Criteria of Legal Qualification Have Roman Origins?

The essay, as a start-point for a wider work, aims at highlighting some guidelines in order to understand whether the legal qualification of the features concerned at the same time with bargain and donation may be linked to the Roman legal science as well as to its methods and outcomes, or the Constantinian Review (323 AD), directed to convert donation from a causa adquisitionis into a typical real contract, is the basis for a dramatic change of perspective which founded theoretical elaborations very different from the classical ones. In other words, if one considers that current  positive regulation on donation differs so much from the rules on those transactions characterized by mutuality, one may ask: as far as such a topic is concerned, is there, in the modern reconstructions, any legacy of Roman legal science? In the light of this likely legacy, may the Pandectistic theorizations be explained in a more precise manner? After examining the present legal features implied (connection of juridical acts; transactions with multiple ‘objective functions’; indirect juridical act), and after determining their origins in the introductory works to the enactment of the BGB, the main scholarly trends developed on the Roman negotium mixtum cum donatione are taken into account; and, above all, the analysis focuses on the methodological perspectives as well as on the interpretative work directed to link the obligatory bond with the donation. The essay underlines that, notwithstanding the difference existing between modern and ancient approaches, and even after the donation was deemed as a real contract, current legal qualification draws on criteria already used by classical Roman jurists, so that, this activity is clearly grounded on a logical work which is still inspired by ancient solutions. All this will be able to help to improve at the present time the quality of application, principally if these, being at the mercy of the legal science and of the courts, will be embodied in European legal consolidations.

 

Key words

Objective function of a juridical act; linked juridical acts; ‘mixed-cause’ transactions; mutual transactions; roman law; indirect juridical act; principles of common European law.


Jacek Wa³doch: Tadeusz Wróblewski – the Advocate for krajowa Idea of the Former Grand Duchy of Lithuania at the Turn of the XIX and XX century

The article presents the figure of Tadeusz Wroblewski, lawyer, politician and social activist, who represented the ideological trend of "krajowosc". It consisted of reviving the idea of ??the Grand Duchy of Lithuania, the rule of multinational, multicultural and tolerant at the same time. Due to the political situation movement "krajowosc" weakened from year to year, and eventually disappeared from the main arena for political action. Tadeusz Wroblewski was one of the last representative of this idea.

To the study of a person Wroblewski served primarily by its publications, which gave insight into the way of his thinking and gave the definition of "krajowosc" idea. I used the articles that he published in the newspaper and others representatives of the "krajowosc" idea. To define the concept of "krajowosc" was also used contemporary publications, which present this idea in the political context or for other persons representing the same point of view as Wroblewski.

 

Key words

“Krajowosc” idea; the Grand Duchy of Lithuania; Tadeusz Wroblewski; a lawyer; social activities; Lithuania, Vilnius; politics; multicultural; multi-ethnic; Wroblewski Library.


Karel Schelle: Die Rechtsregelung des Versicherungswesens in der Tschechoslowakei in der Zwischenkriegszeit

The creation of Czechoslovak Republic in 1918 was an important milestone in the development of the insurance system. The legal order of the Austria-Hungarian monarchy was fully taken over by the statute Nr. 11/1918 Coll. – the reception norm. Consequently, the statute Nr. 501/1917 about insurance contract remained valid. The new state was trying to regulate the role of foreign insurance companies in Czechoslovakia. Since the beginning of the 1920s the role of foreign insurance companies was regulated by international contracts, which the republic began to conclude.

One of the most significant legal enactments in the field of insurance in the period of the first republic was the statute Nr. 198/1932 Coll. about the motor vehicle transport, which imposed obligatory insurance of legal responsibility.

The main positive thing in this period was above all the development of the private insurance law, which was how the Czechoslovak insurance system definitely gained a compact legal base. Especially in the after-war period there was therefore possible to successfully take up to this legal base.


Key words

Insurance system; insurance contract; first Czechoslovak republic; insurance companies; statute about insurance contract; insurance of legal responsibility.


Antonín Lojek: Stick in the Law – Legal Symbolism of Holding, Using, Breaking and Throwing a Stick

It would be hard to find a person, who has not heard the saying: they have broken the stick over him, they tossed a stick under his feet etc. What do these sayings mean is the topic of the following article that wishes to introduce the symbolisms of the stick in history, because until quite recently a number of acts and procedures, considered to be legal nature, could not be performed without this object. A stick was necessary to make these acts legally valid. In the article the authors mainly aim to introduce the stick that symbolized judicial power, but also the powers of a number of persons.


Key words

Judicial stick; symbolism of the stick; mayor's law; Bambersky court rules 1507; Criminal Code of Maria Theresa 1769.


Bohumil Poláèek: Der tschechoslowakische und der tschechische Hafen in Hamburg mit Kontext des Vertrags von Versailles und des Pachtvertrags

The Treaty of Versailles (a peace treaty) from 1919 provided land-locked states with the right of access to the sea. For the practical exercising of this right relating to the newly established Czecho-Slovak state, this treaty is giving to the Czecho-Slovak state the use of northern ports in Hamburg and Stettin, pursuant to articles No. 363 and 364. Based on this treaty, the leasing agreement for premises in Saalehafen and Moldauhafen (on the embankment of Hallesches Ufer and Dresdner Ufer) in the area of about 28.500 m2 was concluded in 1929 with the town of Hamburg for 99 years. Subsequently, a piece of land in Peutehafen in the area of about 13.500 m2 was purchased. The leased premises in the duty-free zone were called the Czecho-Slovak rental zone for inland navigation in the free port of Hamburg. The areas stated above were used by the Èeskoslovenská plavební akciová spoleènost Labská, later after the nationalisation, national enterprise and then state enterprise Èeskoslovenská plavba labsko-oderská (Czechoslovak Shipping Elbe-Oder). In 1992, the state enterprise was later privatised and Èeskoslovenská plavba labská, a.s. (hereinafter "ÈSPL") was established. In 1992, the above-mentioned premises in Hamburg were leased to ÈSPL by the Ministry of Industry and Commerce of the Czech Republic. In 2001, a dispute between the Ministry of Transport and Communications and ÈSPL occurred due to the fact whether the constructions built in the concerned areas are the property of the Czech Republic or whether they were transferred to the ownership of ÈSPL during the privatisation process. The same year, bankruptcy proceedings were declared to the property of ÈSPL, in which the bankruptcy trustee, who in fact held up the concerned property and leased it to third persons, entered the dispute. On 1 January 2008, the Ministry of Transport concluded the agreement on the settlement with the bankruptcy trustee on the basis of which the bankruptcy trustee excluded the rights for the immovable property (real assets) of the Czech Republic in Hamburg from the bankrupt's estates of ÈSPL, in which all controversial rights were settled.

 

Key words

Hamburg; The Treaty of Versailles; Czechoslovak Shipping Elbe-Oder; Czecho-Slovak rental zone for inland navigation in the free port of Hamburg.


Stanislav Pøibyl: Der erste Kanon des Codex Iuris Canonici und seine rechtsgeschichtlichen Grundlagen

The author of the article presents the first of the six canons of the Code of Canon Law issued in 1983. The partition of the Catholic Church into Latin and Eastern rites has its long historical development. The church of the Christian West attempted to reinstall a unity lost at the beginning of the second millennium. At present two kinds of Eastern Churches exist: One united with Rome as head of the Church, whose discipline is also regulated by the Code of Catholic Eastern Churches, the other is essentially Orthodox. According to this norm, the Code concerns only the Church of Latin rite and discipline. This regulation supposed future issue of special Code for the Eastern Catholic churches. Obviously, both Codes include norms valid for both rites, especially those concerning the dogmatic principles and natural law.

 

Key words

First Canon; Code of Canon Law.


Eszter Cs. Herger: The Introduction of Secular Divorce Law in Hungary, 1895-1918: Social and Legal Consequences for Women

The codification of civil law failed to materialize in the period of classical liberalism in Hungary. The legislative acts of the second part of the 19th century stuck to traditional family model, which assured the dominate role of the husband for the future, too. The first aspect I concentrated in the course of my research is: why the secularized law for married women was more favorable than the traditional divorce law of the denominations. I also examined the differences between the rules concerning men and women in the uniform divorce law and its consequences in the judicial practice. The acts of matrimonial cases, especially the reasons for a judgment gave me insight into the marital conflicts and therefore into the everyday life of the Hungarian families at the end of the 19th century. In light of these factors, I ask: what the position of the husband as head of the family effectively meant.

 

Key words

Divorce law; judicial practice; traditional family model; marital conflict; Jewish Matrimonial Law; Protestant Matrimonial Law; canonic law; Austro-Hungarian Monarchy.


Jakub Razim: Der Fürst Bøetislav und die Anfänge des Seniorats in Böhmen

Presented paper aims to answer the question how succession to the Bohemian throne during the Pøemyslid era was reflected by narrative sources of the 12th century. The main interest lies in re-examining the famous bohemian Chronicle of Cosmas and its description of duke Bøetislav I´s deathbed scene (1055) that is most often explained as a foundation of the seniority rule. In addition to that all relevant contemporary sources are taken into account, which can complete the evidence of Cosmas and thus deliver better insight to the problem of the medieval law of succession in Bohemia (Monk of Sazava, Canon of Vyšehrad, Gerlach of Milevsko etc.).


Key words

Pøemyslids; Middle Ages; Bohemia; Seniority Rule; Bøetislav I.; Cosmas.


Balázs Pálvölgyi: Consequences of the Changing Migration Model after the World War I.  Hungarian Legal Manoeuvres for Regaining a Blocked Tool in the USA

Before World War I Hungary built up a functioning subvention system, ensuring influence on and control over the Hungarian migrant groups. In the framework of this migration policy the government transferred amounts through the consul general and the Hungarian Mutual Aid Society for the creation of a Hungarian refuge house in New York.

After the lost war, given the new international conditions and together with the lack of funds there was no reason to maintain the subvention system for the Hungarian migrants, coupled with the financing of the pro-Hungarian movements and organizations in the USA. The block of migrant routes, followed by the Quota system, cut the migrant flow from Hungary to America, therefore the Hungarian government had to rethink its migration policy as well.

Because of the American legal framework the Hungarian government provided a loan and monetary aid in a semi-official way for the purchase, the Hungarian refuge house was in theory the propriety of the Hungarian Mutual Aid Society. Therefore, its process leading to the sale of the house in the 1920s triggered an intensive reaction on the part of the Hungarian government, which launched a series of legal manoeuvres in order to recover it for the Hungarian state.  

 

Key words

Hungary 1920-1940; migration; Hungarian refuge house New York; legal case.


Gergely Deli: „Nec facere nos posse credendum est” Ein Interpretationsversuch zur Papinian D. 28, 7, 15

The article concerns the famous Papinian fragment (D. 28, 7, 15) from Justinian’s Digest. It offers a new, alternative approach for proper understanding of the highly contested text. It argues that the condition in question has been physically possible but illegal. The problem was that illegal conditions were valid according to civil law (ius civile) of that time. However, if the condition had only been cancelled the outcome would have been strikingly unjust. Thus, the jurist making the decision wanted to refute the entire testament. For this reason he considered the condition (morally) impossible with the argument that an honest man cannot do anything against his own piety, reputation, and sense of decency.

 

Key words

Contra bonos mores; boni mores; immorality; roman law.



BOOK REVIEWS



Thomas Olechowski - Christoph Schmetterer (Hrsg.): Beiträge zur Rechtsgeschichte Österreichs (BRGÖ), Band 2/2011

 

Francisco Javier Andrés Santos - Christian Baldus - Helge Dedek: Vertragstypen in Europa. Historische Entwicklung und europäische Perspektiven



REPORTS FROM HISTORY OF LAW



Initial – Workshop: „Schlichten und Richten. Differenzierung und Hybridisierung“





Contents download here:





ARCHIV - Vol. 3 / 2012 No. 1



TABLE OF CONTENS


 

Martin Löhnig: „Der richterliche Stand ist unabhängig“ - Zur Rezeption französischen Gerichtsverfassungsrechts im Polen des frühen 19. Jahrhunderts

Pressed by Napoleon at the beginning of the 19th century in many parts of Europe the French law of constitution of the courts and of procedure was adopted. Contrary to the states founded by Napoleon these legal regulations didn’t disappear after his defeat, but instead strongly influenced the legal development in many European countries. The article at hand examines the insofar atypical development of French law in Poland.


Key words

Judiciary history;  constitution of the courts; Napoleon; Dukedom of Warsaw; Kingdom Po-land; Republic of Krakow; independent judiciary.


Benedikt Forschner: The Sceptical Mind – Towards a New European Ius Commune?

When it comes to the current Europeanisation of private law, it is little surprise that those, who – referring to Savigny – stress the necessity of an organic legal development, refer to the learned ius commune as historical role model, which had once been pushed back inter alia by the un-beloved codification movement. This essay provides an alternative view on the relationship between the ius commune and current developments in European private law by accentuating the fundamental structural differences between both concepts. It claims that a ‘sceptical’ historical approach might be more useful for the future of Europe than the myth of a ‘paradise lost’.

 

Key words

Ius Commune; Ius Communitatis; European Private Law; Political Authority.


Claudia Lydorf: Die Hildesheimer Stiftsfehde 1519-1523

The Hildesheim Diocesan Feud receives little attention in the historical research. Only few relevant monographs have been published. The standard works are not easily accessible and some are not even obtainable via external borrowing or document delivery service. Furthermore these standard works all date form the beginning of the 19th century.

This article presents the participating parties, the causes and the course of the Great Diocesan Feud. In addition the final peace negotiations and the effects of the feud on the future development of the Prince-Bishopric of Hildesheim, the Principality of Brunswick-Wolfenbüttel and the Principality of Lüneburg will be outlined.


Key words

Hildesheim Diocesan Feud; Great Diocesan Feud; Treaty of Quedlinburg; imperial election of the Holy Roman Empire; Lüneburg-Hildesheim alliance; Battle of Soltau; Prince-Bishopric of Hildesheim; Prince-Bishop John IV of Saxe-Lauenburg.


Christoph Schmetterer: Die Thronbesteigung Kaiser Franz Josephs aus rechtshistorischer Sicht

On December 2nd 1848 Austrian emperor Ferdinand I. abdicated. He was followed by his nephew Francis Joseph. This article publishes the relevant document and analyzes them from a legal point of view.

 

Key words

Ferdinand I; Franz Joseph I.; Abdication; Emperor; Pragmatic Sanction; Order of succession; Age of majority.


József Szalma: Entwicklungstendenzen bei der Abgrenzung der zivilrechtlichen von der strafrechtlichen Haftung

In the present paper the author analyses the basic legal features of civil liability (liability for damages arising from torts or breach of contractual duties), delimitating it from criminal liability, taking into account theoretical considerations, regulations and their application, beginning from traditional codifications of civil law in Europe in 19th century (French, Austrian and German). The method of incrimination in civil law is, namely, general, prohibiting by general norm any case of causing of damage (general incrimination), while the incrimination in criminal law is special, precisely describing each and every criminal act (special incrimination). Criminal liability remains a fault-based liability, while civil liability, besides fault liability, also introduces strict liability, which is not based on fault of the tortfeasor, but on causation, i.e. on the increased risk of causing damage. Civil liability may be either tortious or contractual, while continental criminal law doesn’t envisage criminal liability for breach of contract.

 

Key words

Civil liability; criminal liability; delimitation of civil from criminal liability.


Eszter Cs. Herger: The Impact of the Code of Csemegi on the Development of Religious Conditions – Judicial Practice in Baranya County, 1880 - 1900

The first modern Hungarian Criminal Code (Code of Csemegi, Act 5 of 1878) regulated religious conditions from several aspects. The religious denominations “recognised by the state” such as the Catholic, Calvinist, Lutheran, Unitarian and the not united Orthodox Churches enjoyed protection by law meaning that several felonies and misdemeanours harming the religion became enacted in the above mentioned Code. Beside these religions also the Israelite denomination was listed among the “recognised religions” both in legal literature and judicial practice but not in the Code. The statutory definitions of revolt and agitation covered a wider circle of injured parties: the term “denomination of faith” was interpreted in the court practice so, that all denominations enjoy the same protection of law – as sight of equality before the law regardless of religion. The study aims to examine the frequency and actual social significance of the felonies and misdemeanours against religion on the basis of the materials of the criminal cases initiated at the Royal Tribunal of Pécs during the two decades following the entry into force of the Code of Csemegi. The study searches answer to the question whether the judicial practice differed from the will of the legislator and if yes, why happened it so.

 

Key words

Criminal law; religion; church; judicial practice; crimen blasphemiae; turbatio sacrorum; concubinage; abortion; bigamy; anti-Semitism.


András Bertalan Schwarz: Das deutsche Bürgerliche Gesetzbuch und der Nationalsozialismus

Es geht um den Text des Vortrages von András Bertalan Schwarz (1886-1953). András Bertalan Schwarz hat diesen Vortrag in Deutschland, wahrscheinlich an der Bonner Universität, den 15. Juni 1945 gehalten. Das Manuskript wurde dem Herausgeber (Gábor Hamza) von Hans Julius Wolff zwecks Veröffentlichung zur Verfügung gestellt.


Key words

András Bertalan Schwarz; National Socialism; private law; civil code; Third Reich;


Gábor Hamza: András Bertalan Schwarz (1886-1953)

András Bertalan Schwarz was born in 1886 in Budapest where he completed his legal studies. After graduation from the Budapest University he went to Leipzig to do research at the Institute of Papyrology. As a disciple of Ludwig Mitteis he defended his „Habilitationsschrift” in 1912. He got his first „Ruf” in 1926 to succeed in Zürich Andreas von Tuhr. He spent four years in Switzerland since he accepted in 1930 the „Ruf” of the University of Freiburg im Breisgau.

After the seizure of power of the NSDAP he was deprived of his professorship and left Germany for England. During the first year of emigration he lectured in London and Oxford as a visiting professor. In 1934 he was invited to the University of Istanbul to teach Roman law and comparative law. After World War II he went to Germany to lecture at the University of Bonn where he passed away in 1953.

The oeuvre of András Bertalan Schwarz is encompassing the juristic papyrology, Roman law, modern private law as well as large fields of comparative law. The extremely manifolded and rich oeuvre of the outstanding legal scholar of Hungarian descent, who never severed his contacts to Hungary, is in our days also valuable part of the international legal science.

 

Key words

BGB; codification; comparative law; juristic papyrology; Pandectist School of Law; Roman law; Swis civil code; Swiss code of obligations; Turkish civil code.


László Papp: The Concept of Autonomous Local Governments and their Different Forms of Appearances in the Traditions of our National Public Law

The historical beginnings of the Hungarian local government system are rooted in the patrician castle counties and free royal towns of the Middle Ages. Although these local administrative units meant much more than the concept of local governments in the modern understanding of the concept. The unbroken and uncompromising county autonomy suddenly was challenged by the bourgeois state, and this clash caused the need to reform the whole system of local administration. In my short study, I wish to demonstrate this process through the deconstruction of the administrative system of the counties, taking extra care on the unique relationship between the government and the municipality.

 

Key words

Municipality; dualism; administrative refor m; local government; administrative committee.


Eszter Bakos: Extracts from 19th Century History of Citizenship and Freedom of Press in Hungary

Present Paper analyzes national development, roots and early history of freedom of press as a civil right in 19th Century in light of the relevant laws and decrees. We should keep in mind that in Hungary citizenship was not ruled at the same level at time of declaring freedom of press by the law. So, this Paper seeks to demonstrate the legal regulation of freedom of press until the first law that made it clear who would be subjects of this right.

 

Key words

19th Century; civil rights; first citizenship law; freedom of press; laws and decrees.


Bohumil Poláèek: A Brief History of River Navigation in Bohemia up to the 19th Century – Part 2.

On November 24, 1762 Vienna issued an order prohibiting boatswains from employing any persons suffering from alcoholism. The Edict of May 15, 1766 issued the Rates in the Výtoò  water toll in Prague.  This rate sheet specified how much should be paid in money and how much in material. Navigation Regulations were issued in the Edict of January 20, 1770. Maria Theresa issued a new navigation order on May 31, 1777, known as the “Navigation Regulations”. Navigation guilds were abolished in 1783, which resulted in the freedom of navigation.

 

Key words

Water toll; Navigation Regulations; Water court; Navigation Fund; Navigation committee.


Petr Beránek: Stigmata of the First Czechoslovak Republic

The text addresses the complicated development of the young Czechoslovak state in the period between two world wars taking into account the issue of cohabitation of German minority and relations between Czechs and Slovaks, in particular.

 

Key words

Czechoslovakia; Treaty of Munich; Autonomy; Czechs and Slovaks; Germans in Czechoslovakia.


Ingrid Kováøová Kochová: Development of the Legal Regulation of Compensation for Injury to Health in the Czech Republic in Period 1950 – 1990 and its Impact on Legal Regulation

Legal regulation of the Central Civil Code, act no. 141/1950 Coll., (hereinafter referred to as the “C.C.C.”), should have replaced the so-called bourgeois legal regulation, it should have been the new socialist civil law, the civil law should have become simplified. Legal regulation of compensation for damage was contained in chapter no. 16, sections no. 337 to 359 of the C.C.C., titled as Obligations to compensate for damage. The law again did not distinguish between compensation for damage inflicted by violation of an obligation or as result of violation of legal provision. The law already did not distinguish particular degrees of culpability as it was stated in case of G.C.C.; it only distinguished between culpability in forms of intention and negligence. On 1st April 1964, the act no. 40/1964 Coll., the Civil Code (hereinafter referred to as the “C.C.”) came into effect; it newly regulated liability for damage and unjust enrichment in the part 6 in sections no. 415 to 459. There was emphasized the prevention in instance of compensation for damage. Luby's conception created grounds for other authors, who devoted to liability. All authors agree with the fact that liability should be conceived as liability for intentional violation of legal duty. Consensus about requirements of liability and identification of liability with sanction are typical for the period after year 1964.

 

Key words

Compensation for injury; culpability; liability.


Lenka Doubravová: Code of International Commerce

The paper focuses on the analysis of Code No. 101/1963 Col., Code of International Trade, as amended (hereinafter referred to also as “the Code”). The main aim of the present article is to underline objective and nature of present Code and to show the historical background. An analysis of particular legal provisions and structure of the Code will be an integral part of the article with an accent to the modern elements of the Code. It became an inspiration even for the current Commercial Code and for the parts of the big set of amendments of Civil Code after the year 1989. Often, it is also stressed that only thanks to this Code of International Commerce one can follow an uninterrupted development of commercial law on Czech territory during the second half of the twentieth century, in spite of complete deformation of commercial legal obligations. The Code actually preserved in itself certain purely private law principles that the Code of Business did not contain.

 

Key words

International trade; International business contracts; Code of International Trade.


Marek Bialokur: Poland and Poles in the Biography of Carl Gustaf Emil Mannerheim

The biography of Marshal of Finland C. G. Mannerheim Poland and the Poles didn’t play important role. Despite this it can be concluded that in the first period of his adult life he had very close contacts with them. That was a consequence of stationing in the area of Poland by Russian troops in which he was serving at the end of the nineteenth century and beginning of the twentieth century. Even after gaining the independence of Finland in 1917, Mannerheim didn’t cease extensive contacts with Poles. Mannerheim’s contacts seemed particularly interesting with Joseph Pilsudski who was respected by him as a real and strong leaders of the Polish nation. In this article one also presented similar historical issues of Finnish and Polish history at the background of the Mannerheim’s biography.


Key words

Carl Gustaf Mannerheim; Poland and Finland in the XX century


Przemys³aw Dabrowski: National Democratic Camp of the Former Grand Duchy of Lithuania and its Attitudes towards War, Peace and Independence during World War I

The Polish people living in Lithuanian and Belarusian lands had ambivalent feelings about the breakout of World War I in August 1914. The war instilled fear and anxiety, but it also aroused hopes and expectations. Many people were well aware of the cruelty that military activities involved, yet he believed that the Polish nation would politically benefit from the conflict rather than fall its economic prey. Nationalist periodicals demanded all the people who could contribute to the common good to stay in the country and fulfill their civic duty. A large number of representatives of the National Democratic, propounded to all the people in the lands of former Grand Duchy of Lithuania, regardless of their nationality, education or creed, joining their forces and demonstrating solidarity. Claimed that only real danger can motivate a nation to display the moral value of an individual and society as a whole.

 

Key words

National Democratic; nationalist periodicals; peace; independence; World War I.


Anna Klimaszewska: The Maritime Law in the Commercial Code of France of 1807

The authors of the Commercial Code of France of 1807 (Code de commerce) included rules from the field of the maritime law in the act as its book II (Of Maritime Commerce). As a result, the maritime law began to be viewed as a component of the commercial law, acquiring the doctrinal name of the maritime commercial law (droit commercial maritime). The strong influence which Code de commerce and its systematics exerted all over the world  made a lot of countries treat the civil standards of the maritime law as part of the commercial law. This idea was not, however, commonly adopted, an example of which is the Anglo-Saxon and Scandinavian countries and Switzerland. But even in the countries  where the maritime law was included in the regulations from within the commercial law, criticism of the representatives of the doctrine appeared. In consequence, the view on the maritime law as a separate whole began to emerge more and more, and the commercial maritime law stopped being an object of interest for the reformers of the commercial law. Nouveau Code de commerce of 2000 maintained this approach, too.


Key words

The Commercial Code of France of 1807; maritime commercial law; contract of insurance; contract of bottomry; bill of lading; charter party; crew; master; sea ships.



BOOK REVIEWS



Joseph Georg Wolf: Die Lex Irnitana. Ein römisches Stadtrecht aus Spanien

 

Ernesto Bianchi: Per un´indagine sul principio „conceptus pro iam nato habetur“ (Fondamenti arcaici e classici)

 

Christoph Lundgreen: Regelkonflikte in der römischen Republik: Geltung und Gewichtung von Normen in politischen Entscheidungsprozessen

 

Aloys Winterling (Hrsg.): Zwischen Strukturgeschichte und Biographie: Probleme und Perspektiven einer neuen Römischen Kaisergeschichte: 31 v. Chr. – 192 n. Chr



REPORTS FROM HISTORY OF LAW



Conference Report - Family Law in Early Women‘s Rights Debates


Conference Report - ACTIONES, CONDICTIONES, EXCEPTIONES


Prof. JUDr. Jan Vážný


Prof. JUDr. Jan Vážný


ANNEX: LEGAL ARCHEOLOGY



Karolina Adamová, Antonín Lojek: About Statues of Rolands in Bohemia


Jiøí L. Bílý: Methodology, Analysis of Legal-Archaeological Objects Demonstrated on an Example of Coat of Arms


Miroslav Frýdek: Terminus - Witness of the Ancient Roman Life


Vilém Knoll: Executioner’s Swords – their Form and Development, Brief summary


Marian Ma³ecki: Cracow’s Legal Heritage


Karel Schelle: Prisons of Brno


Renata Veselá, Karel Schelle: Some Remarks on the Coins as Potential Symbols of Roman Law Tradition







ARCHIV - Vol. 2 / 2011 No. 2



TABLE OF CONTENS


 

Thomas Gergen: Regionalsprachen in Frankreich: Zersplitterung der einheitlichen Republik?

The two first articles of the French Constitution declare that the French concept of State creates a connection between the unity of State and language in order to strengthen social life. Our study sheds light on the way how regional languages and lesser used languages have been treated in French history until today. Since the "Ordonnance sur le fait de la justice" from Villers-Cotterets, published in 1539 under François Ier, the French language is the symbol for national unity and predominant in justice, administration and government.

France seems to keep being one of the most famous examples for the monolinguism because the French language remains the one and only official language.

 

Key words

French constitution; Lesser used languages; Regional languages; "Ordonnance sur le fait de la justice" (Villers-Cotterets, 1539).


Sebastian Krafzik: Licet iuris – Gefecht um die Macht zwischen Kaiser und Papst

The political episode of the Middle Ages was marked by the tension between papacy and empire. In the dispute about the supremacy of institutions, there was a particularly sharp conflict about the inauguration. The apostolic Church claimed for itself to confirm and to crown the emperor selected. The kingdom, however, wanted to absolve from this influence of the church. Emperor Louis IV had a particularly large share with this debate. With his decree licet iuris papal approval should now come to an end.

This paper provides a closer look at this law and examines its previous interpretation critically. Firstly the reproduction and translation of the main part of the decree are given, followed by a historical classification and the actual exegesis. Finally an insight on the historical significance of licet juris is discussed.

 

Key words

Licet iuris; Emperor Louis IV.; approbation; inauguration.


Christoph Schmetterer: Rechtsvorschriften zur Hausnummerierung in Österreich von 1770 bis heute

This article explores the legal history of house numbering in Austria from the second half of the eighteenth century to the present. Prior to 1930, federal authorities were responsible for the legal regulation of house numbering in Austrian cities and towns, yet subsequently individual states began to pass their own house numbering laws. However, both federal and state laws had to be implemented by the municipalities. The current study therefore provides a historical overview of the rescaling of house numbering law in Austrian, focusing particularly on the case of Vienna.

 

Key words

Austria; house numbers; addresses; population census; building order; competences.


Tamara Ehs: The Other Austrians

Some observers of the recent economic crisis compare it to the Great Depression of the 1930s and discuss interwar ideas bearing on these questions such as those of “the Austrians”. There is a lively treatment of Ludwig Mises and his pupils but the other Austrian discourse of this time is neglected, that of the three full professors of political economy at the law faculty of the University of Vienna: Othmar Spann, Hans Mayer and Ferdinand Degenfeld-Schonburg – “the Other Austrians”. This paper calls them to mind and gives an insight into their stances on the economic crisis.

 

"This article is a revised version of a paper presented at EBHA 15th Annual Conference in Athens/Greece, August 2011. Financial support from the Austrian Science Fund (FWF) for the project P 21280 is gratefully acknowledged. I thank Kevin D. Hoover (Duke University) and Peter Rosner (University of Vienna) for helpful comments on previous versions of this article. Thanks too go to Patricia Haeusler-Greenfield for proof-reading of my translations."

 

Key words

Austrian School; Economic crisis; Ferdinand Degenfeld-Schonburg; First Republic of Austria; Hans Mayer; Interwar Vienna; Ludwig Mises; Othmar Spann; Political Economy; Law Faculty of the University of Vienna.


Tamás Nótári: Some Remarks on ius vitae ac necis and ius exponendi

A Roman pater familias was entitled to the following positive rights: ius vitae ac necis, ius exponendi, ius vendendi and ius noxae dedendi. What follows is an in-depth analysis of the changes in ius vitae ac necis and ius exponendi. Ius vitae ac necis denotes right of disposal over the life and death of a filius/filia familias, while ius exponendi the right to expose newborn infants. Exposing a child often contained its death or wilful murder; e.g., in case of a deformed child when the aim was to get the family or the community rid of prodigium representing ill luck. Therefore, it seems to be more proper to discuss the rights a father had against newborn infants—no matter if they applied to killing or only exposing the child—as part of ius exponendi since killing or exposing children was several times limited and sanctioned in a single imperial decree. Originally, ius vitae ac necis was sacral and punitive law power. Its sacral character came to the front when killing a deformed child since this right is the component of the father’s power over his newborn infant, and this will be discussed under the heading ius exponendi; its punitive law aspect will become obvious when it is used against an adult child. This paper, first, intends to describe changes in ius vitae ac necis, and dwell on the restrictions and rules of procedure of exercising it (I.). After that, changes in ius exponendi will be followed up, with special regard to the regulation of the legal status of the exposed child (II.).

 

Key words

Patria potestas; ius vitae ac necis; ius exponendi.


Magdolna Gedeon: Juristische Regelung der Einführung und der Organisation der Zirkusspiele im alten Rom bis zur Prinzipatszeit

In the ancient Roman sources we can find many legal rules relating to the organization of the circus games. In the regal period the king himself initiated and organised the new games in veneration of the gods. The ludi votivi and the ludi publici were established during the Republic. The organization of these games were the duty of the consuls and the aediles.

 

Key words

Roman law; Circus games; Votum; Votive games; Aediles.


Eszter Cs. Herger: Alimony in Hungarian Family Law in the 19th Century

The system of marital property law was primarily formed by the judicial practice based on traditional customary laws in Hungary in the 19th century. The traditional family model meant on the one hand the personal and property independence of both parties stemming from the full capacity of both parties, on the other hand the position of the husband as the head of the family. This position can explain the fact that temporary and final alimony – although being an institution of property law – was dealt with in the area of the legal effects of marriage on persons in special literature. During marital cohabitation it was the husband’s obligation to provide decent maintenance and cover all expenses incurred in relation to matrimony. Discontinuing marital cohabitation did not terminate this obligation, just as marriage was not terminated by it either. The temporary alimony did not depend on whether the wife was at faulty or not for causing the irretrievable breakdown of the marriage. Before the entry into force of the Matrimonial Causes Act (Act 31 of 1894), denominational laws usually regarded the obligation of the husband to provide alimony to be terminated upon the dissolution of the bond. Contrary to this, the Matrimonial Causes Act created a situation far more favourable for the woman. The intention of the lawmaker was to maintain the non-fault woman’s social and financial status enjoyed during marriage in this way, since “the husband, who caused the dissolution of marriage by his injurious conduct and thus deprived her wife of the financial advantages which she could enjoy in the conjugal life, deserves to be obliged to compensate her for the loss of those advantages.”


Key words

Marriage; marital property law; judicial practice; traditional family model; gender equality; temporary alimony; final alimony; principle of fault; Hungary.


Gábor Schweitzer: Legal Education and Ethos of the Legal Profession in Hungary in the Civil Era

The paper is dealing with several aspects of legal education in Hungary in modern times and also reflects with the image of legal professions in Hungary from the age of enlightenment up to WW I. Legal education was considered to be one of the privileges of the churches before the period of enlightenment. The only university of Hungary, established at 1635 in Nagyszombat (today Trnava), was deeply influenced by the roman catholic church. Later on the significant protestant churches, the Calvinist and the Lutheran also established their so called legal academies. After the educational reform of Maria Theresia in 1777, several so called royal legal academies were also established in Hungary. In the period of dualism, after 1867 there were existing two universities and 10 legal academies in the country. The number of legal professionals among the Hungarian intelligence was traditionally high. The paper would like to answer why legal studies were so popular in that period. Citing memoirs and literary works also describes the changing images of different legal professions.

 

Key words

Legal education in Hungary; Legal universities in Hungary; Legal academies in Hungary; ethos of legal professions in Hungary; image of lawyers; image of notars.


Norbert Varga: The Codification of the Law of Conflict of Interest (incompatibilitas) in Hungary in the 19th Century

I intend to present in my paper the development of codification of conflict of interest, which is still a very important legal institution of Hungarian parliamentary system. The aim of my study is to discuss the codification procedure of the national assembly. We are dealing with a legal institution that was of outstanding significance for the whole society, since it was through the regulation of conflict of interest situations that the principle of the separation of powers could be implemented in practice. In the course of my project, I will examine the system of incompatibility in the late feudal period, which had an influence on the legislative process in the bourgeois era.

 

Key words

Conflict of interest; national assembly; status of representatives; history of constitutional law.


Alberto Iglesias Garzón: Reformation of Law Administration in Jean Domat‘s Masterworks

The quest for clarity and legal security in Jean Domat´s legal thought binds his masterwork Les Loix Civiles dans leur Ordre Naturel (1689-1694) to the process of reformation of the judiciary administration in Louis XIV´s France. It is also through this perspective that his legal and philosophical thought reaches the 1804 French civil code. Overcoming medieval jurisprudence and its substitution by sovereign´s law as the main source of legal creation will influence Jean Domat. His great concern about what he thought to be the “false groundings of jurisprudence” came along with his concern about judges not respecting the sovereign´s law. The whole of his legal view is about the increasing absolute power of the king and his means to the unification of law. Aiming to the suppression of the judge´s discretionary legal practice and making him bounded to the sovereign´s law was a certain way to controlling the non-conformist members of the judiciary administration. The main argument for implementing Domat´s view was the (divine) perfection of roman law.

 

Key words

Jean Domat; Reformation of Justice; Code Civil; Natural law; Positive law.


Magdolna Szûcs: “Creditor rem sibi oppignoratam a debitore emere non potest” (Brev. IP. 2, 12, 6)

In the Lex Romana Visigothorum is present the rule on the prohibition to the pledgee to buy the pledged thing from the debtor. The author analyzing the texts of the Breviary intends to answer the question: why the texts of Pauli Sententiae and the Constantine’s constitution on commissoria rescindenda were interpreted as a prohibition to the creditor to purchase the object of the pledge from the debtor? By the interpretations the new rule was introduced which is contrary to the classical and Justinian’s law. Accepting the opinion that the ius was subordinated to the leges and even harmonized with it in the Breviary, the research embraces also those imperial constitutions which can show the circumstances in which the rule was made. Using both, the dogmatic and historical method, the author’s conclusion is that creditors used sale contract to cover unlawful appropriation of the debtor’s property. This practice and the problems of Vth century were well known to the interpreters and to the people as well, therefore the rule expresses the common understanding.

 

Key words

Postclassical Roman Law; pledge; lex commissoria; purchase of the pledge; Lex Romana Visigothorum.


Mirela Krešiæ: Entitlement of Female Descendants to Property of Croatian Communal Household

The paper analyses provisions of the three legal acts on communal households which had regulated the entitlement of female descendants to communal household property. Those are the rights which the female descendants practiced in the course of division of a communal household and inheritance, as well as the right to trousseau or dowry. Furthermore, the social and economic frameworks are explained for the passing and validity of communal household laws, which had marked the second half of the 19th century, and the beginning of the 20th century in the Kingdom of Croatia and Slavonia. Of particular concern is the status of communal household legislation within Croatian legal system, which was based on the General Civil Code after the abolition of feudalism in 1848.

 

Key words

Communal household; female descendants; household division; inheritance; trousseau or dowry; the General Civil Code; the Kingdom of Croatia and Slavonia.


Przemys³aw Dabrowski: Union of Brest and its Dissolution on the Territories of the Congress Kingdom of Poland, Belarusian and Lithuanian Lands

The conditions of the union of Brest were set on a meeting in Torczyn, on 2 December 1594. Once the union was announced in Rome on 12 June 1595, a synod was convoked to Brest. Two letters were drawn – one to Sigismund III, the other to the pope Clement VIII. Cyryl Terlecki and Hipacy Pociej were appointed as plenipotentiaries to talk with the pope. In a letter to the pope they announced subscribing to the provisions of the Council of Florence of 1439, and asked for preservation of the whole liturgy and Eastern rites. In the letter addressed to the king they appealed for preservation of their old privileges and granting them the privileges enjoyed by the Catholic clergy, but also for defense in case of any interference of the Constantinople patriarchs or church sanctions. This issue was to be finally concluded at the next synod convoked in Brest. The act of union was concluded on 9 October 1596. From the times of Catherine II the Union on was doomed to be annihilated. The Orthodox Church viewed Unites as its brothers, separated from the Tsardom in the 16th century. The policy of Russian authorities was very consistent, with short breaks during the rule of Paul I, Alexander I and at the beginning of Alexander II rule.


Key words

Union of Brest; dissolution; Congress Kingdom of Poland; Belarusian and Lithuanian Lands.


Anna Klimaszewska: General Principles in the Commercial Code of France of 1807

No general part was created in the French Code de commerce of 1807, which was one of the basic objections to this act since its very beginnings. Book I was in fact entitled Of Commerce in General, however, even superficial analysis of its content indicates irrefutably that it contained regulations governing a specific subject matter. The lack of a general part did not mean that codifiers were not guided in the works on the code by any higher principles. On the contrary, while creating or copying given standards from earlier binding acts, they realised a legislative policy which had been adopted in advance, and which, paradoxically, did not aim at creating a liberal background for trade, but at managing the economic crisis with intense state control.

 

Key words

French Commercial Code; Napoleonic codification; ordinances of Louis XIV; commercial law; maritime law; commercial partnerships; general principles.


Jakub H. Szlachetko: The Geopolitical Thought of Józef Pi³sudski and his Political Camp Concerning Central Europe in Comparison to the Achievements of Other Political Centers

The paper focused mainly on the ideas created by Marshall himself or people from his closest circle. It is worth stressing that federalism, the policy of balance of power or colonialism are not the only manifestations of spatial thinking in Pi³sudski’s camp’s foreign policy. During the interwar period, the members of various social organizations united in the so–called Zet Movement were very active, and created interesting variants of the ideas outlined in the article. During the Second World War and the People’s Republic of Poland, owing to political reasons, Pi³sudski’s camp’s thought on Central Europe did not influence the reality of the time at all. Yet it persisted within certain circles of the anti–communist independence movement until the 21st century, and it is at present, to a smaller or greater extent, implemented by the right–wing political parties.


Key words

Marshall Józef Pi³sudski; Second Republic of Poland; geopolitical thought; the idea of federalism; the idea of policy of balance; the colonial idea.


Kamila Kêdzierska: The Internal Organization and Supervision as Vital Issues in Post-War County Administration in Poland

In the article the matters of internal organization and supervision issues in post-war county administration in Poland are discussed on the example of Krakow County. In the first part statutes that dealt with the practical matters such as mail circulation, storing and marking the official documents are discussed. Author underlines their importance in relation to functioning of administrative offices. Next the matter of the provisions concerning handling of confidential correspondence such as internal order of the Krakow starosta issued on April 17th 1945 is discussed.

The second part of the article is focused on the supervision and approval of developed documents. Author points out that internal decree number 15 issued on 26th of March 1945 was the first regulation about internal supervision. In this decree matters such as time schedules for delivering of official documents and meetings with starosta were regulated.

Author’s conclusion is that provisions, that today seem natural for administration, were introduced to the newly created administration, which did not exist during the war and occupation, therefore they were crucial for the proper functioning of the county office.

 

Key words

Administration; history; Krakow County; postwar Poland.


Michaela Uhlíøová: Punishments Connected with Person of Offender in Selected Countries of Ancient World

The article deals with sanctions directly connected with the person of offender in the established group of selected ancient states (Egypt, Mesopotamia, Hittite Empire). In this article these sanctions are divided and, furthermore, their impact from personal (humiliation), religious (posthumous life) as well as legal (“legal death”) view is discussed. In particular the legal norms extant in collections of laws (Mesopotamia, Hittite Empire) or court protocols (Egypt) were used as the basic sources for elaboration of this article.


Key words

Hittites; Mesopotamia; Egypt; shame; degradation; personality; designation; outlaw; society; law; punishment.


Magda Schusterová: Präambel im Fokus –Anmerkungen zum Vorspruch des Podiebradschen Friedensvertrages

The preambles are generally considered to constitute an introductory or even poetical part of a legal text. The promulgation of the document is announced in the preamble and the reason for its promulgation. However a closer examination reveals that their content could be far reaching. Namely the preamble of the peace treaty of the Bohemian King George of Podebrady (1458-1471) reflects interesting philological and juridical aspects of the medieval times, in that it mentions the general peace mission of the princes and their natural commitment to defend the Christian faith. We also find therein citations from the Holy Bible, from the Codex Iustinianus or a partially copied imperial writing of Frederick III. However the Bohemian text does not go beyond the tradition of the late medieval preambles in form and content- peace making among European princes in order to fight enemies of Christianity was one of the common topos at this time.

 

Key words

Preamble; Peace; Treaty; Christian faith; George of Podebrady; Bohemia.


Bohumil Poláèek: A Brief History of River Navigation in Bohemia up to the 19th Century – Part 1

According to archaeological findings in the Elbe river bed alluvium, navigation of rivers existed in the area of Bohemia already in the middle Stone Age (i.e. 6,000 to 4,000 years ago). The first written reports on the navigation along the Elbe preserved in the chronicles relate to the time when the armies of Charles the Great conquered the Elbe Serbs and Bodrces. Around the year 805, Charles the Great forbade its traders to export arms and equipment to Bohemia and the same year some of his troops were sent into the battle on the boats upstream the Elbe to Magdeburg, where they clashed with the Elbe Slavs. Duty as a fee for the use of waterways belonging to the sovereign was introduced in Bohemia according to the Magdeburg example sometime around the 60s of the 10th century. For the college of priests gathered in the church centre of the Litomìøice Castle, the Prince Spytihnìv II founded the chapter with the Church of St. Stephen around the year 1057. With the founding charter, which is the oldest in our country and preserved in the original, the prince donated many of his revenues, among others the revenues from the Ústí and Litomìøice water shipping duties. With the gradual centralization of state administration and the growth of royal power it became possible to disrupt the Litomìøice trade monopoly on the Elbe, when with the decree issued by the King Pøemyslid Otakar II on November 25, 1274  the town of Mìlník  received the right to conduct shipping on Elbe. The trade in Roudnice  started to flourish from the second half of the 14th century. It was an old settlement of the Prague bishops, which was promoted to the town before the year 1279. Apart from towns, there were also several boats owned by monasteries and nobility which contributed to shipping and trade on the Elbe. In 1226 the Premonstratensian church in Doksany  was given the duty-free privilege to bring one boat with salt from Serbia and one boat to export domestic products. In 1340, while he was only the Margrave, Charles IV gave the Prague reeves and councilors a privilege to choose eight sworn millers. The sworn millers eventually become the highest authority on the water in Bohemia and also oversaw the construction on rivers and their navigability, etc. In doubtful cases, they published their final opinions as “the sworn miller court”, a special arbitration tribunal, which had the responsibility of deciding water management disputes.

 

Key words

Elbe river; waterway; navigation; water shipping duties; the sworn miller court.


Lucie Bendová Bednáøová: The Crime of the „Forced Abortion“ before the Regional Court in Olomouc in the Second Half of the Eighties and in the First Half of the Nineties of the Nineteenth Century

In this article I go in for the second half of the eighties and the first half of the nineties of the nineteenth century. I focus on the characterics of women who committed (or attempted to commit) the crime of the “Forced Abortion”, but also on the characteristic of men who often urged their partners to get the “Forced Abortion” carried out and also of persons who performed the illegal abortions, whether they were physicians, midwifes or persons without medical education. The specific criminal cases of the Regional Court in Olomouc identify the causes of crime, methods of its implementation (mechanical or chemical means used), the way of decision making of the court on the mitigating and aggravating circumstances, guilt and punishment and also the attitude of the Prosecutor's Office in Olomouc and advocates towards the accused and the crime. In the end I present pertinent conclusions and I try to compare two periods - the second half of the eighties and the first half of the nineties of the nineteenth century and the first quarter of the twentieth century.

 

Key words

The crime of the “Forced Abortion”; the Criminal Code of 1852; the Regional Court in Olomouc; woman as a perpetrator; the second half of the eighties and the first half of the nineties of the nineteenth century.


Katarína Fedorová: Justices of the Peace in the Judicial Reform of Tsar Alexander II.

The article deals with the creation, organization and action of the justices of the peace, established by the judicial reform of the Russian tsar Alexander II. Justices of the peace adjudged minor criminal and civil legal disputes between citizens in proceedings specifically modified for the conciliation with the fundamental acts of the judicial reform of 1864: the Court Establishment Act, the Criminal Process Act, the Civil Process Act and the Law establishing penalties, imposed by the conciliation courts. Despite the undoubted successes in deciding legal cases, hostility of the executive power led in 1889 to abolition of the justices of the peace.


Key words

Russia; Judicial Reform; Alexander II.



BOOK REVIEWS



Beiträge zur Rechtsgeschichte Österreichs. Thomas Olechowski, Christoph Schmetterer (Hrg.), Band 1/2011: Testamente aus der Habsburgermonarchie: Alltagskultur, Recht, Überlieferung




REPORTS FROM HISTORY OF LAW



Anti-Semitic Legislation in Slovakia and in Europe (Report from a Conference)


200 Years of ABGB – from the Codification to the Recodification of Czech Civil Law, 2nd – 3rd June 2011


Konferenz „Die Entwicklung des Privatrechts auf dem Gebiet der Tschechischen Republik“


Conference of Doctoral Students from the Department of the History of the State and Law at the Faculty of Law, Masaryk University, Dated 30th June, 2011


Viva Voce Examination Report







ARCHIV - Vol. 2 / 2011 No. 1



TABLE OF CONTENS


 

Zoltán Végh: Römisches Recht und Nationalsozialismus. Gedanken zur Universalität des Römischen Rechtes.

Die NS-Doktrin begegnet dem Römischen Recht von zwei Positionen aus: die Dominanz des völkischen Gedankens und die Verwirklichung des „altgermanischen“ Grundsatzes ‚Gemeinwohl geht vor Eigennutz“. Daher wird schon zum letzteren im Parteiprogramm von 1920 die „materialistische Weltordnung“ des römischen Rechtes verworfen. Zum ersteren wird alles abgelehnt, was die Grenzen des völkischen Rechtes und der Gemeinschaft sprengen könnte. Daher sind ius gentium und ius naturale und die aus ihnen ableitbaren Grundsätze allgemein anerkannter Normen und menschlicher überregionaler Grundrechte entschieden abzulehnen. Mit einiger Gehirnakrobatik gelingt es H.-H. Dietze, ein neues „Völkisches Naturrecht“ zu erfinden. – Einige Absätze widmen sich den Problemen, denen die Lehre des RR in der NS-Zeit begegnete.

 

Keywords

Naturrecht; NSDAP u. Römisches Recht; Parteiprogramm NSDAP; Gemeinwohl u. Röm. Recht; Röm. Recht und Rassismus.


Thomas Gergen: Anfänge und Entwicklung des Copyright-Systems in England und den USA

Ausgehend von den beiden unterschiedlichen Systemen des Urheberrechtsschutzes, d.h. das des droit d’auteur und das des Copyright, untersucht der Beitrag die Anfänge und Entwicklungen des Copyrights in England und in den Vereinigten Staaten von Amerika bis in die Gegenwart.

Der Schutz begann im 16. Jahrhundert in England mit der Verleihung des Rechts an die „Company of Stationers“ (Buchhändlergilde), die ein Bücherregister (Bücherrolle) führen durfte. 1709/10 folgte mit der „Statute of Anne“ das erste Urheberrechtsgesetz in England, das erste der USA war der „Copyright Act“ von 1790. Im Jahre 1998 verlängerte der amerikanische Gesetzgeber die Schutzfrist für die Mickey Mouse mit einem eigenen Gesetz um 20 Jahre; die Frist läuft also 2018 aus.

 

Keywords

Urheberschutz; Copyright; England; die USA.


Christoph Schmetterer: Die Rechtsstellung der Mitglieder des österreichischen Kaiserhauses von 1839 bis 1918

Die Mitglieder des Kaiserhauses waren österreichische Staatsbürger mit zahlreichen Privilegien. Sie waren strafrechtlich besonders geschützt. Privatrechtlich unterstanden sie der Hausgewalt des Kaisers, dessen Genehmigung sie für Eheschließungen, Adoptionen und letztwillige Verfügungen benötigten. Im Zivilverfahren hatten die Mitglieder des Kaiserhauses einen eigenen Gerichtsstand vor dem Obersthofmarschallamt.

Der Aufsatz beschreibt die Rechtsstellung der Mitglieder des österreichischen Kaiserhauses anhand des habsburgischen Familienstatuts, der entsprechenden Gesetzesbestimmungen und der zeitgenössischen juristischen Literatur. Außerdem werden konkrete Beispiele für die Anwendung der rechtlichen Regelungen gegeben.

 

Keywords

Kaiserhaus; Erzhaus; Erzherzog; Erzherzogin; Familienstatut; Privatfürstenrecht.


Barna Mezey: Rechtsgeschichte an der Juristischen Fakultät in Budapest

Man könnte glauben, dass die Entfaltung der Lehre und der wissenschaftlichen Erfassung der Rechtsgeschichte gleichzeitig vor sich gingen. In der Wirklichkeit ist aber schon die Festlegung der Grenzlinie problematisch: Wann begann wohl die Lehre der Rechtsgeschichte an der Juristischen Fakultät der Königlichen Ungarischen Universität? Bis zur bürgerlichen Umwälzung 1848 ist nämlich das Fach als selbstständiges Studium in der Ausbildung nicht präsent. Aber als Teil des auf dem Gewohnheitsrecht basierenden so genannten einheimischen Rechts ist die ganze Rechtsgeschichte, von den Gesetzen Stephans des Heiligen bis zum Habsburgischen Patentrecht, vom landesweiten und örtlichen Gewohnheitsrecht bis zu den Traditionen der Gesetzgebung, im Lehrstoff vorzufinden. Die namhaften Lehrenden des ungarischen Rechts, die auch Lehrbücher veröffentlicht haben (so z. B.  Imre Kelemen, Mátyás Vuchetich, Pál Szlemenics), lehnen sich stark an das traditionelle Recht an. Das Privatrecht ist sogar ein Geschichtsfach (Andor Csizmadia), während das Strafrecht angesichts der Kodifizierungsbewegungen gerade dabei ist, die Bande der ständischen Geschichtlichkeit loszuwerden.

Deshalb ist es vielleicht richtig, wenn wir anders formulieren und die Anfänge dort vermuten, wo wir mit historischer Analyse (und mit historischem Unterricht) zu tun haben, die sich auf die Rechtsentwicklung konzentriert, ausgesprochen historische Gesichtspunkte in den Mittelpunkt stellt und sich den Sachen kritisch und rechtsgeschichtlich nähert.

 

Keywords

Rechtsgeschichte; Ungarn; Budapest.


Kamila Staudigl-Ciechowicz: Zur Entstehung der Wiener Kriminologie und Kriminalistik in der 1. Republik

Der Beitrag beschäftigt sich mit der Kriminalistik und Kriminologie in Österreich mit einem Schwerpunkt auf Wien in der Zwischenkriegszeit. Ausgehend von weitgehend ungedrucktem Quellenmaterial wird die Gründung des Universitätsinstitutes für die gesamte Strafrechtswissenschaft und Kriminalistik beschrieben und im Hinblick auf die beteiligten Personen und Lehrinhalte beleuchtet. Besondere Aufmerksamkeit verdient dabei Wenzel Gleispach als Gründer des Instituts sowie die wissenschaftlichen MitarbeiterInnen. In diesem Zusammenhang wird der Frage nach der Öffnung der juridischen Fakultät für Frauen als Arbeitnehmerinnen nachgegangen. So stellte dieses Institut als erste Einrichtung der rechts- und staatswissenschaftlichen Fakultät Frauen als wissenschaftliche Mitarbeiterinnen an. Abschließend wird das Verhältnis zum Kriminalistischen Institut der Polizeidirektion Wien erläutert.

 

Keywords

Wenzel Gleispach; Strafrecht; Zwischenkriegszeit; Kriminologie; Kriminalistik; Wiener Rechts- und Staatswissenschaftliche Fakultät; Hubert Streicher; Wiener Bundespolizeidirektion; Siegfried Türkel; Kriminalbiologie; Hans Gross; Franz von Liszt.


Claudia Lydorf: Accursius, Bartolus und Baldus und die Auswirkungen ihrer Lehren auf das Privatrecht am Beispiel der Lex Aquilia

Der moderne Jurist kommt wieder verstärkt mit alten europäischen Rechtsinstituten in Kontakt, die in Europa als „ausgestorben“ bezeichnet werden können, während sie in außereuropäischen Rechtsordnungen in ähnlich Ausprägung weiterhin existieren und  im Wege der Globalisierung, ihren Weg zurück nach Europa finden. Das stellt die Rechtswissenschaft vor die Aufgabe, die sich aus den verschiedensten Gesetzen speisenden Rechtspositionen in Einklang zu bringen. Vor diesem Hintergrund lohnt es sich, sich in Erinnerung zu rufen, dass die Schaffung des Internationalen Privatrechts sowie die Harmonisierung des europäischen Zivilrechts auf eine lange Tradition zurückblicken können. So war es bereits im 12. Jahrhundert in Bologna erfolgreich gelungen, das von Justinian geschaffenen Corpus iuris civilis wiederzubeleben und somit ein einheitliches, europaweit Geltung beanspruchendes Gesetzeswerk für das Zivilrecht zur Verfügung zu stellen.  Die personellen, institutionellen und methodischen Ursprünge der europäischen Rechtswissenschaft sollen im Folgenden Beitrag vorgestellt werden. Darüber hinaus werden am Beispiel der Lex Aquilia einige, in dieser Ursprungszeit entwickelten Rechtsgedanken aufgezeigt werden, deren Wirkung sich bis in die Neuzeit feststellen lässt.

 

Keywords

Accursius; Bartolus; Baldus, Glossatoren; Kommentatoren; Lex Aquilia; Bologna; Perugia; Glossatorenschule; Kommentatorenschule; Privatrecht; Corpus iuris civilis; Glossa ordinaria; justinianische Kodifikation; Glossierung; damnum; lucrum; Digesten; Interesse  extra rem; Schadensersatz; Deliktsrecht.


Pál Sáry: Der auf die Bibel abgelegte Eid im justinianischen Recht

Die heidnischen Römer maßen, ähnlich wie andere Völker der Antike, dem Eid eine große Bedeutung bei. Diese wichtige Rolle der Eidablegung blieb auch nach dem Sieg des Christentums, sowohl im privaten als auch im öffentlichen Bereich, bestehen. Der Akt des Eides erhielt nun einen christlichen Inhalt, der in der Anwendung der Bibel seinen formalen Ausdruck fand. Die Konstitutionen von Kaiser Justinian liefern viele Hinweise auf die Anwendung des auf die Bibel abgelegten Eides. Aus diesen Erlassen geht klar hervor, dass dieser symbolische Rechtsakt, der trotz seiner christlichen Form, in vielerlei Hinsicht weiterhin Ähnlichkeit zu den alten heidnischen Eidesformeln aufwies, breite Anwendung fand.


Keywords

Römisches Recht; justinianisches Recht; Eid; Bibel.


Karel Schelle: Die Rechtsregelung der Schadenshaftpflichtversicherung im ABGB

Dieser Aufsatz befasst sich mit der Analyse der Rechtsregelung der Schadenshaftpflichtversicherung in der zweiten Hälfte des 19. und am Anfang des 20. Jahrhunderts in der österreichich-ungarischen Monarchie. Einer gründlichen Analyse werden die betreffenden Bestimmungen des Allgemeinen Bürgerlichen Gesetzbuches von 1811, die Versicherungsregulative und der Vorbereitungsprozess der Verabschiedung des Gesetzes über den Versicherungsvertrag unterzogen.


Keywords

Versicherungswesens; Schadenshaftpflichtversicherung; Gesetz über den Versicherungsvertrag; Versicherungsregulativ; ABGB.


Jaromír Tauchen: Die Grundcharakteristik des Privatrechts im Protektorat Böhmen und Mähren

Der Zweck dieses Beitrags besteht in der Analyse der Grundänderungen, zu denen es im Bereich des Privatrechts nach der Errichtung des Protektorats Böhmen und Mähren gekommen ist. Das Privatrecht in Protektorat stellt ein sehr umfangreiches und trotz seine häufigen Änderungen und Eingriffe ein sehr unübersichtliches Gebiet dar, deswegen sind hier nur die wichtigsten Momente erwähnt, damit sich der Leser einen Grundeinblick in diese Problematik verschaffen könnte.

 

Keywords

Protektorat Böhmen und Mähren; Nationalsozialismus; Privatrecht; NS-Ideologie.


Dmitry Poldnikov: Dogma and Legal History in Russian Science of Civil Law

The paper presents the analysis of correlation between the legal dogma and legal history as it was reflected in the theoretical publications of several renowned Russian Private Law scholars throughout the 20th century. The author states that historical argument may, and should, perform the explanatory and corrective functions in relation to legal dogma, but de facto it serves as an ornament in Russian Private Law studies. The author traces the causes of this discrepancy between the desired and actual state of the legal discipline by examining colloquial, philosophical and legal meanings of “dogma” in Russia; European ancient and medieval origins of the legal dogma; and its link with the modern Roman law. The author argues in favour of a more active usage of Legal History in order to correct the inherent drawbacks of dogmatic approach to legal research.

 

Keywords

Dogma; legal history; medieval ius commune; Russian legal science; Roman law; Pandectists; civil law theory; argument; methodology; legal terminology.


John E. Fahey: The Secret Poison Plot Adolf Hofrichter and the Austro-Hungarian General Staff

The Austro-Hungarian Empire's military justice system, like much in the Empire, adapted slowly to changing times.  First Lieutenant Adolf Hofrichter's 1909 poisoning of a member of the Army's General Staff, and his subsiquent investigation and trial, illustrate the weaknesses of the Austro-Hungarian court marshal system and its' perception in broader society.  The Viennese press's suggestions and complaints about Hofrichter's court marshal, show the need for adaptation and change.  The press also illustrate the role of the military within the broader criminal justice system of the fin-de-siecle Austro-Hungarian Empire. 

 

Keywords

Austro-Hungarian Empire; military justice; court marshal; murder; poison.


István Stipta: The Main Tendencies of Hungarian Legal Historiography in the 20th Century and its Present Situation

The essay analyses first the Hungarian legal historiography in the 20th century. It gives the list of scientific schools of the Horthy era and its most important representatives. In addition, the essay examines the intellectual impacts that shaped the contemporary science of Hungarian legal history. After then, the paper deals with the so called socialist science appearing after World War II. The essay refers to the ideological subjection (determination) of the science and the battle of the old and new approach. The chapter that introduces the present situation of the science of legal history displays the research centers of legal history reawakening from the 1970’s. The paper also reviews the process of development of the education and research centers in the provinces. It also introduces the procedure of how the science of history and legal history approached each other.  The author endeavors to name each important scholar and to refer to the most remarkable works written by those.

 

Keywords

Legal historiography; constitutional and legal history of Hungary; education of legal history; constitutional-historical research centers; legal academies; historical and legal scientists.


Norbert Varga: The Private Law Elements of Citizenship Law in the 19th Century

The bourgeois transformation created the conditions subsequent to which the demand for statutory regulation of Hungarian citizenship could emerge. The codification of citizenship law was helped by the appearance of the idea of sovereignty and of the principle of equality before the law. The development of a bourgeois state organisation striving to rid itself from the vestiges of feudalism made the reform of citizenship law, as one of the elements of state sovereignty, unavoidable. The bourgeois transformation played a major role not only in the extension of the principle of equality before the law, but also in changing the meaning and the content of the concept of citizenship. Citizenship was an expression of the legal relationship existing under public law between a state and its citizen. In the public law of feudalism, this concept did not exist. As a result of this process, citizenship law also became a part of public law in Hungary (act L of 1879), despite the fact that certain elements of private law continued to play a role in case of both the acquisition and the loss of citizenship.

 

Keywords

Citizenship; public law; Hungarian constitutional history; legitimization; naturalization; marriage; concept of citizenship;loss of citizenship; private law; foreign citizens; family law; illegitimate child.


Balázs Pálvölgyi: Ethnic Questions in the Hungarian Migration Policy until 1914 – Forming the Main Lines of a State-Backed Action Concerning the Migrants in the United States

In the second half of the 19th century, when the mass-migration flow started from Hungary mainly to the United States and to other American destinations, the Hungarian government slowly revealed the complexity of this social phenomenon. In the early years of the Hungarian migration, it was the economic and military question, which gave a push to the governmental steps in a higher level, and from the end of the 19th century, it was the ethnic problem, which made the Hungarian policy ambiguous.

 

Keywords

Migration; Austria-Hungary; United States; ethnic questions; secret governmental action.


Kamila Kêdzierska: Local Administration in the Years 1944 –1950 – Overview and Selected Problems Based on the Example of Krakow County

This article includes the overview of political system and functioning of the local administration in Poland in the years 1944-1950, as well as the problems of clerical (officials) law after World War II. On the background of these general statements the article shows selected issues concerning the activity of Krakow County, dealing in the vast majority with the employed officials. In accordance with the above scheme, the article is divided into three equivalent parts.

 

Keywords

Krakow; Poland; local administration.


Zdenìk Koudelka: The Arms of Moravia and Silesia

Moravia and Silesia are historical lands which nowadays create the eastern part of the Czech Republic. Nevertheless, the major part of Silesia belongs to contemporary Poland, a smaller part belongs to Saxony. Moravia as a margraviate and Silesia as a duchy belonged as integral parts to the Holy Roman Empire and were feudally dependent on the Czech king, later on the Habsburg and Prussian state. Their historical lines projected in that aspect that their coats of arms exist in two versions.  


Keywords

Moravia; Silesia; arms.



BOOK REVIEWS



Alexander K. Schmidt: Erfinderprinzip und Erfinderpersönlichkeitsrecht im deutschen Patentrecht von 1877 bis 1936


Gábor Hamza: Entstehung und Entwicklung der modernen Privatrechtsordnungen und die römischrechtliche Tradition



REPORTS FROM HISTORY OF LAW



Internationales Kolloquium: „Kodifikationsgenesis des Privatrechts und ihr Gedankenhintergrund“


Viva Voce Examination Report





Contents download:







ARCHIV - Vol. 1 / 2010 No. 2



TABLE OF CONTENS


 

Christoph Schmetterer: „Geheiligt, unverletzlich und unverantwortlich“. Die persönliche Rechtsstellung des Kaisers von Österreich im Konstitutionalismus

 

Marcel Senn: Sovereignty – Some critical Remarks on the Genealogy of Governance

 

Thomas Gergen: Die Verwertungsgesellschaft VG WORT: Genese und neue Herausforderungen

 

Gábor Hamza: Das römische Recht und die Privatrechtsentwicklung in Russland im modernen Zeitalter

 

Pál Sáry: Letztwillige Zuwendungen zu frommem Zweck im christlichen römischen Reich

 

Karel Schelle: Die Änderungen im tschechoslowakischen Zivilverfahrensrecht in der Zwischenkriegszeit

 

Sebastian Krafzik: Die Herrschereinsetzung aus der Sicht des Bartolus von Sassoferato

 

Balázs Pálvölgyi: The First Steps of Migration Legislation and its Consequences in Hungary

 

Jaromír Tauchen: Einige Bemerkungen zur Entwicklung des Arbeitsrechts im Protektorat Böhmen und Mähren

 

Ewa Stawicka: Criminal Courts in the Kosciuszko Uprising (an outline)

 

Jiøí Bílý: Law in the Early Christian Church

 

Stephan Schreiber: Die Rechtslehre von Fichte im Kontext

 

Zdenìk Koudelka: Development of local administration in Moravia, Silesia and Bohemia

 

Renata Veselá: Czechoslovak Family Law after 1945

 

Miroslav Frýdek: Leges de repetundis

 

Lucie Bendová Bednáøová: Delicts Against Morals Before the Regional Court in Olomouc in the End of the 19th and in the Beginning of the 20th Century



BOOK REVIEWS



Herbert Elzer: (I) Die deutsche Wiedervereinigung an der Saar; (II) Konrad Adenauer, Jakob Kaiser und die „kleine Wiedervereinigung“

 

Karel Schelle, Jaromír Tauchen: Grundriss der Tschechoslowakischen Rechtsgeschichte

 

Ius romanum schola sapientiae – Pocta Petrovi Blahovi k 70. narodeninám

 

Mario Pani: Il costituzionalismo di Roma antica

 

Andrea Švecová, Tomáš Gábriš: Dejiny štátu, správy a súdnictva na Slovensku.

 

Adam Lityñski: Prawo Rosji i ZSSR 1917 –1991 czyli historia wszechzwi¹zkowego komunistycznego prawa (bolszewików). Krótki kurs

 

Pocta Eduardu Vlèkovi k 70. narozeninám

 

Ján Švidroò: Právnohistorické a právnoteoretické základy práva duševného vlastníctva a jeho místo v systéme slovenského práva

 

Schelle, K., Šedivý, M., Tauchen, J., Veselá, R.: Stát a právo v dobì Metternichovì

 

Schelle, K., Veèeøa, J., Veselá, R., Vojáèek, L.: Podíl èeských zemí na integraèních a unifikaèních snahách v Evropì

 

Jaromír Tauchen: Vývoj trestního soudnictví v Nìmecku v letech 1933 –1945

 

Karel Schelle: Liste der Literaturstellen der Rechtshistorischen Arbeiten der Juristischen Fakultät der Masaryk Universität Brno (1919 – 2009)

 


REPORTS FROM HISTORY OF LAW



International Conference «Roman Private Law and Legal Culture of Europe»

 

Konferenz „Entwicklung des Privatrechts auf dem Gebiet der Tschechischen Republik“

 

Vor hundert Jahren wurde der Brünner Rechtshistoriker Prof. JUDr. Bohumil Kuèera, DrSc. (1910 –1979) geboren

 

110 Jahren seit der Geburt vom bedeutenden mährischen Rechtshistoriker und Numismatiker Prof. JUDr. Jaroslav Pošváø, CSc. (1900 –1984)

 

Days of Law of Olomouc 2010




Contents download:






ARCHIV - Vol. 1 / 2010 No. 1



TABLE OF CONTENS



Foundation of „The European Society for History of Law“


Entstehung der wissenschaftlichen Gesellschaft „The European Society for History of Law“


Christian Neschwara: Franz von Zeiller und das Strafrecht


Gábor Hamza: Das römische Recht und die Privatrechtsentwicklung in Ungarn im Mittelalter


Balázs Pálvölgyi: Hungarian views on the French proposal to the planned international accord concerning the crimes of political terrorism (1934)


Stanislav Balík: Brief History of the Constitutional Court of the Czech and Czechoslovak Republic and its role in upholding the rule of law


Kai Müller: Die Einheit von Wirtschafts- und Sozialpolitik in der Ära Honecker. Anspruch, Realität, Scheitern


Jaromír Tauchen: „Beneš-Dekrete“ von einer rechtlich historischen Perspektive


Martin Bermeiser: Die Tschechoslowakei zwischen 1945 und der Mitte der 1960er aus einem deutschen Blickwinkel


Karel Schelle: Zu den Anfängen der tschechoslowakisch-polnischen Beziehungen


Vilém Knoll: Legal personality of natural persons in the Czech medieval private law Brief Summary


Jiøí Bílý: The legal position of the Dalmatian merchants in medieval Lübeck


Renata Veselá: Protektorat Böhmen und Mähren und die Änderungen im Familienrecht


Miroslav Frýdek: Terminology of Roman Criminal Law – crimen et delictum


Lucie Bendová Bednáøová: The Crime of the Forced Abortion (The culpability of foeticide in the first quarter of twentieth century)



BOOK REVIEWS



Pál Sáry: Bûnvádi eljárások az Újszövetségben


Karel Schelle [Hrsg]: Dìjiny èeské veøejné správy


Jiøí Bílý: Homo oeconomicus evropského feudalismu


Jiøí Bílý: Moc a právo v evropské politické tradici


Stanislav Balík [Hrsg.]: Dìjiny advokacie v Èechách, na Moravì a ve Slezsku


Karel Schelle, Jaromír Tauchen: Grundriss der Tschechoslowakischen Rechtsgeschichte


Karel Schelle, Jaromír Tauchen: Recht und Verwaltung im Protektorat Böhmen und Mähren




REPORTS FROM HISTORY OF LAW



11th Conference of Law Romanists of Slovak Republic and Czech Republic


Bericht aus der sechsten Konferenz über die Geschichte der Rechtsanwaltschaft


Days of law 2009, 18th – 19th November 2009 in Brno, Czech Republic


Konferenz „Metternich und seine Zeit“


Meeting of pedagogues from departments of Legal History this time with the topic of Tradition of Czech and Slovak legal science and teaching of law


Konferenz „Politische Prozesse in der Tschechoslowakei (1948 – 1989)“


Das siebzigste Jubiläum von Prof. Vlèek





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