Oktawian August udzielił ochrony fideikomisom uniwersalnym, to znaczy pozwolił
fideikomisariuszo... more Oktawian August udzielił ochrony fideikomisom uniwersalnym, to znaczy pozwolił
fideikomisariuszom dochodzić spadków, które zostały już przyjęte przez
dziedziców. Niewątpliwym osiągnięciem senatus consultum Pegasianum było
stworzenie możliwości zmuszenia spadkobierców do przyjęcia spadku, przez co
uniezależniano samo istnienie uniwersalnego zapisu powierniczego od dobrej woli
dziedziców. Czy jednak całkowicie przełamano akcesoryjność fideicommissum
hereditatis? Poważny problem mógł się np. pojawić, gdyby spadkobierca zmarł
zanim doszło do aditio hereditatis. Wydaje się, że w I w. po Chrystusie nie znajdowano
jeszcze w tej sytuacji rozwiązania.
Internationales Erbrecht: EuErbVO, IntErbRVG, DurchfVO. Länderberichte, Walter Gierl, Andreas Köhler, Ludwig Kroiß, Harald Wilsch (Hrsg.), 4. Auflage, Nomos Verlagsgesellschaft, Baden-Baden 2024, 814–830, 2024
The ‘Country Report Poland’ is one of the chapters of the ‘International Law of Succession’. The ... more The ‘Country Report Poland’ is one of the chapters of the ‘International Law of Succession’. The entire book is highly acclaimed work, with numerous practical and formulation tips, which shows the safe way through international inheritance law. It deals with the ‘cornerstones’ at a high level of European Succession Regulation (EuErbVO), International Succession Procedure Act (IntErbRVG), and Implementing Regulation to the EU Succession Regulation All regulations and issues relevant to the resolution of international inheritance cases are explained, including the international treaties under inheritance law that continue to have priority, the ‘residual provisions’ of the EGBGB, international inheritance law in the Rechtspflegergesetz, in land register proceedings and in cost law. In addition, the comprehensive foreign section contains concentrated country reports on the national inheritance law of 29 countries, written from the specific perspective of the EU Succession Regulation and following a uniform structure that facilitates the daily work of courts, lawyers and notaries dealing with international inheritance matters. The new edition, i.e. the fourth edition, brings the work up to date. Newly included are country reports on Albania, Denmark, Finland, North Macedonia, Norway, Iceland and Sweden, as well as a presentation of German international tax law, which must always be taken into account when advising on inheritance law.
Studia et Documenta Historia et Iuris 88 (2022), 41–101, 2024
The comparative argument helps distinguish existing differences in legal orders, while the histor... more The comparative argument helps distinguish existing differences in legal orders, while the historical argument helps analyze how these differences developed in time. Both arguments are connected and, supported by the legal experience of other legal orders, they assist interpretation de lege lata and formulation of conclusions de lege ferenda. All three arguments should be applied in conjunction—dogmatic, comparative and historical—in order to understand a certain regulation and the foreseeable directions of its development, and, in consequence, secure legal requirements in respect of changes, not only social or economic but also alterations in the legal order. The conjunction of the three arguments is presented with respect to analyses of the presence of deathbed gifts and per vindicationem legacies in Polish law. These legacies were reintroduced in 2011, and, although the Senate of Poland had twice failed to regulate them in the Polish civil code, in 2013 the Supreme Court of Poland declared that deathbed gifts are in force in Polish law.
This chapter explores the life and work of Nicolaus Copernicus as a jurist. Although the only dip... more This chapter explores the life and work of Nicolaus Copernicus as a jurist. Although the only diploma Nicolaus Copernicus obtained in his life was in law, it is true that he had no academic interest in the subject and never wrote about it theoretically. On those occasions when he felt the need to present himself with the solemnity and importance of his full title, the famous astronomer always termed himself decretorum doctor, that is, doctor of canon law. He is usually presented almost exclusively as a mere administrator engaged in the affairs of political and social life, but the truth is that Copernicus is perhaps the most famous practicing lawyer in the world, and it was his formation as a lawyer that determined his way of perceiving and thinking about the world of affairs in which he was involved, a type of formation that distinguishes legal studies from other forms of intellectual and scientific training. He was in fact a typical in-house counsel, a practitioner in the service of the cathedral chapter to which he belonged. In carrying out his professional role as a lawyer, Copernicus fulfilled his life’s calling as a Catholic clergyman.
Research Handbook on Legal Evolution, ELGAR (pages 150-169), 2024
Roman and civil law is not only a matter of its more than 1,000 years of history in ancient Rome;... more Roman and civil law is not only a matter of its more than 1,000 years of history in ancient Rome; it also includes the 1,500 years of later European legal tradition, so that up to four lives of Roman law can be demonstrated so far. The development of Roman private law during the first 1,000 years, as well as throughout the rest of legal history, is difficult to assess and so cannot be described simply in terms of progress. Undoubtedly, it is subject to certain changes and developments, and these might sometimes be considered evolution, although, firstly, these always involve human beings and so the same human nature, and, secondly, all legal regulations are validated by their utility and social acceptability, which, as regards relations in the field of private law, is found to be similar in different epochs. It can be noted that the law fluctuates but nevertheless always remains within the spectrum of a certain amplitude of changes—its range of possibilities. Within this range, the law shows a characteristic resilience, resulting from the fact that Roman law is characterized by a staunch acceptance of reality, providing a remarkable ability to improvise at the same time as it passes down—from Roman antiquity to subsequent epochs, and thus to our own times—eternal notions and values that allow us to believe that the lawful life is meaningful.
Etyka zawodów prawniczych. Etyka prawnicza, red. H. Izdebski, P. Skuczyński, Warszawa 2006, s. 159–166, 2006
Wbrew marzeniom niektórych teoretyków, w praktyce prawnej nie daje się abstrahować od moralności.... more Wbrew marzeniom niektórych teoretyków, w praktyce prawnej nie daje się abstrahować od moralności. Najlepiej świadczą o tym faktyczne problemy z podporządkowaniem się prawu. Wskazują one na zakłócenia w relacjach między obowiązującym prawem a korzystaniem przez człowieka z wolności w celach, które rozpoznaje rozumem i chce urzeczywistniać wolą. W końcu prawo nie sprowadza się do techniki – nie wolno zapominać, że ma ono służyć realizowaniu wartości. Choć spór, co do wyboru między nimi, będzie się pojawiać w sposób nieunikniony, rozsądnie brać pod uwagę, że ostatecznym kryterium zachowań człowieka – zgodnych czy niezgodnych z prawem– jest jednak własne sumienie. Dobrze, jeśli zostało prawidłowo uformowane.
An envoy (legatus, orator) was a person sent to a community or to a ruler by his community or his... more An envoy (legatus, orator) was a person sent to a community or to a ruler by his community or his state. It was not only an individual who undertook the mission to foreign territories or came from them to Rome, but the delegate to or from provincial assemblies, municipium or civitas as well. The complete inviolability of envoys seems to be warranted in Rome of the principate era by the univerasally respected norm of ius gentium. According to it, envoys were regarded as sacred (sancti habentur legati). Therefore, they were secured against violance and safe from human trespass or assault. The priviledge was enjoyed by both ambassadors of the senate or the princeps and legates arriving to Rome from abroad, from provincial assemblies, from municipia or civitates. The word sanctum comes from the sagmina - the bunches of herbs. The legates customarily carried them as it was believed that the sagmina provide them with gods’ support, ward off outrages and protect them from human mischief. A...
Mandatum incertum occurs when the terms of this consensual contract are left imprecise by the man... more Mandatum incertum occurs when the terms of this consensual contract are left imprecise by the mandator. The article focuses on the essential determination of the object for the validity of the mandate, therefore the main question is whether mandatum incertum was not unknown to the classical jurists, as there is no doubt it was not void in the Byzantine era. The problem was broadly discussed by several authors, i.e., V. Arangino-Ruiz, G. Donatuti, G. Longo, A. Watson and N. Scapini, though no general agreement among modem jurists was achieved. It seems that terms of mandate are not the same as fines mandati. Fines mandati are not only the intrinsic restrictions given by the mandator, but the purpose to be achived as well. Yes, this purpose could be express or implied, then egressio mandati takes place only when the express boundaries are transgressed. The thorough analysis of relevant classical sources in the full context of the institution allows to state that there is no reason to ...
Wiesław Mossakowski, Roman Law, and Nicolaus Copernicus: A Researcher's Intuition to Choose Only ... more Wiesław Mossakowski, Roman Law, and Nicolaus Copernicus: A Researcher's Intuition to Choose Only Important Subjects for Study: In a paper published in 2001 Wiesław Mossakowski claimed that Nicolaus Copernicus was an expert in Roman civil law. He was convinced he was right. Discoveries and findings made in the last decade have shed new light on the search for Copernicus’ activities as a lawyer. In fact, he was a typical in-house counsel, in the service of the cathedral chapter to which he belonged in the Duchy of Warmia. Much of Mossakowski’s paper has dated, but some of his intuitions have been confirmed. With his paper he was risking a lot, even ridicule but eventually turned out to be a visionary.
By merging three different historical examples, this article shows that legal mentality influence... more By merging three different historical examples, this article shows that legal mentality influences the management of similar public goods, the composition of institutional change in the urban sphere and finally the character of legal regulations best fitted in a given circumstances for arriving at desired outcome. The authors proved that the inclinations for ex ante and ex post models are dependent on the concept of public administration and most particularly of administrative law. In a way, in the mixed public administration presented in the Roman law example, where both centralized and polycentric governance were applied, much depends on the narrative and values which accompany the institutional change in urban settings.
Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, ed. Jose María Puyol Montero, Tirant lo Blanch, Valencia; RCC Harvard.edu, 2023
In the pandemic era, laziness might be in reality one of the greatest challenges for the societie... more In the pandemic era, laziness might be in reality one of the greatest challenges for the societies of the world. If it has been observed that sloth is indeed in our present times already so widespread, there is no reason to complacently accept the theory that laziness will not be a challenge in the subsequent post-pandemic era. The answer to the question of how to combat laziness is not actually within the bailiwick of lawyers. However, they must seriously consider the legal consequences of laziness, provoked and intensified by the notorious release from duties and the loosening of social ties that life under the pandemic has witnessed. Sloth, like the matter of some other great subjects in the field of law —as unjust enrichment and the abuse of rights, proves at the same time both easy and not easy to describe. With regard to laziness, the description is easy inasmuch as the words describing this phenomenon come from everyday language. The difficulty is caused by the lack of an unambiguously established terminology. Then, one particular question that must be asked concerns the challenges that laziness creates for private law. It is most certainly worth starting with Roman law in order to answer the question. Ancient legal sources suggest that sloth was put alongside the generally understood carelessness and negligence when it comes to explaining what fault really is as a premise of liability for damages, and even more as a standard of expectations and duty in the performance of contractual provisions. Laziness, in at least some circumstances, becomes the express opposite of diligence. In private law sloth results in financial consequences. These will not always be borne directly by the slothful person himself but rather by those responsible for the person or for the resulting state of affairs, as in the case, for example, of a guardian or a seller. The study of the manifestations of laziness stigmatized by the law invites us to summon up and strengthen the motivation for persistent and tireless work, understood as a virtue and practiced with wise moderation.
RESUMEN: Durante la pandemia, la ociosidad y la pereza han sido, con probabilidad, uno de los mayores desafíos para las sociedades, al menos del llamado “mundo desarrollado”. Si observamos la actual propagación de la vagancia, existen razones suficientes para intuir que en adelante seguirá constituyendo un verdadero y preocupante reto. Aunque la forma de combatirla no competa al ámbito del Derecho, debido al notorio decaimiento de los vínculos sociales y a la relajación del sentido de responsabilidad y de las obligaciones debemos, sin embargo, considerar las consecuencias jurídicas de la misma. La holgazanería, del mismo modo que otros marcos jurídicos, cómo el enriquecimiento injusto y el abuso de derecho-, es al mismo tiempo de sencilla y difícil delimitación terminológica. A pesar de que el origen cotidiano de la vagancia clarifique su contenido, sin embargo, su descripción viene dificultada por la ausencia de una terminología fija e inequívoca. Lacuestión que se deriva de su estudio atiene a los desafíos que origina al derecho privadoy que pueden ser respondidos desde el derecho romano. Las fuentes jurídicas de la antigüedad equiparan la vagancia con el descuido y la negligencia, explicados como culpa en relación con la responsabilidad por daños, llegando a convertirse en canon de las expectativas de cumplimiento de las prestaciones contractuales. La indolencia, al menos en algunos casos, se define como el extremo opuesto dela diligencia. En el derecho privado, la vagancia tiene consecuencias económicas, que no siempre serán asumidas directamente por el propio indolente, al poder extenderse a los responsables de la persona o de la situación resultante, como puede ser el caso de un tutor o un vendedor. El estudio de las manifestaciones de la pereza estigmatizadas por el derecho nos invita a hacer un llamamiento para el fortalecimiento de la motivación para el trabajo persistente e incansable, entendido como virtud y practicado con sabia moderación.
The interaction of the heritage of the Greek and Roman empires and Judaeo-Christian tradition sho... more The interaction of the heritage of the Greek and Roman empires and Judaeo-Christian tradition should be kept in mind when we discuss legal tradition. This article gives an example when discussing what Gottfried Wilhelm Leibniz called subiectum iuris (the subject of rights), namely the bearer of rights. The terms used to define a bearer of rights vary, sometimes descriptive or intuitive, at other times strictly technical. The experience of both Jerusalem and Rome leads to the question: "Who is my neighbour?" or "Who is my brother?" Although the phrasing of the fundamental and shared question proves that universalism may extend beyond one legal tradition, the answers to these questions are not unanimous. The basic yet difficult problem in any society is who may be considered a neighbour? The question of "brotherhood" boils down to "brotherhood" with whom? Who is one's neighbour? Every person? And who is a person: a slave, a foreigner, a paga...
Hermogenianus’ precept that hominum causa omne ius constitutum sit was one of the basic principle... more Hermogenianus’ precept that hominum causa omne ius constitutum sit was one of the basic principles underlying all of Roman law. Gaius’ summa divisio personarum did not make much sense to the Diocletian’s jurist, who had enormous experience as a practicing lawyer, legislator and statesman. In fragment D. 1,5,2, people are the raison d’être and goal of law; therefore, the law does not create man. The fundamental connection between ius and homo seems parallel to the Ulpian’s rooting of ius in iustitia.
1. A pope’s search for a correct conception of the human person in the writings of a pagan jurist – 2. Two ancient contexts of a pagan lawyer’s remark – 3. Ancient jurists on the question of introducing the presentation of law with the status of human beings – 4. The epoch and circumstances of the formulation of the statement hominum causa – 5. The author of the statement asserting the centrality of man in law – 6. The intellectual formation of Hermogenianus – 7. Date of creation of the works attributed to Hermogenianus – 8. The systematics of the presentation of the law in the times of Justinian – 9. Detailed analysis of the hominum causa passage – 10. Homo and persona as legacies of Roman civilization – 11. Hominum causa as an important message of Roman civilization.
Oktawian August udzielił ochrony fideikomisom uniwersalnym, to znaczy pozwolił
fideikomisariuszo... more Oktawian August udzielił ochrony fideikomisom uniwersalnym, to znaczy pozwolił
fideikomisariuszom dochodzić spadków, które zostały już przyjęte przez
dziedziców. Niewątpliwym osiągnięciem senatus consultum Pegasianum było
stworzenie możliwości zmuszenia spadkobierców do przyjęcia spadku, przez co
uniezależniano samo istnienie uniwersalnego zapisu powierniczego od dobrej woli
dziedziców. Czy jednak całkowicie przełamano akcesoryjność fideicommissum
hereditatis? Poważny problem mógł się np. pojawić, gdyby spadkobierca zmarł
zanim doszło do aditio hereditatis. Wydaje się, że w I w. po Chrystusie nie znajdowano
jeszcze w tej sytuacji rozwiązania.
Internationales Erbrecht: EuErbVO, IntErbRVG, DurchfVO. Länderberichte, Walter Gierl, Andreas Köhler, Ludwig Kroiß, Harald Wilsch (Hrsg.), 4. Auflage, Nomos Verlagsgesellschaft, Baden-Baden 2024, 814–830, 2024
The ‘Country Report Poland’ is one of the chapters of the ‘International Law of Succession’. The ... more The ‘Country Report Poland’ is one of the chapters of the ‘International Law of Succession’. The entire book is highly acclaimed work, with numerous practical and formulation tips, which shows the safe way through international inheritance law. It deals with the ‘cornerstones’ at a high level of European Succession Regulation (EuErbVO), International Succession Procedure Act (IntErbRVG), and Implementing Regulation to the EU Succession Regulation All regulations and issues relevant to the resolution of international inheritance cases are explained, including the international treaties under inheritance law that continue to have priority, the ‘residual provisions’ of the EGBGB, international inheritance law in the Rechtspflegergesetz, in land register proceedings and in cost law. In addition, the comprehensive foreign section contains concentrated country reports on the national inheritance law of 29 countries, written from the specific perspective of the EU Succession Regulation and following a uniform structure that facilitates the daily work of courts, lawyers and notaries dealing with international inheritance matters. The new edition, i.e. the fourth edition, brings the work up to date. Newly included are country reports on Albania, Denmark, Finland, North Macedonia, Norway, Iceland and Sweden, as well as a presentation of German international tax law, which must always be taken into account when advising on inheritance law.
Studia et Documenta Historia et Iuris 88 (2022), 41–101, 2024
The comparative argument helps distinguish existing differences in legal orders, while the histor... more The comparative argument helps distinguish existing differences in legal orders, while the historical argument helps analyze how these differences developed in time. Both arguments are connected and, supported by the legal experience of other legal orders, they assist interpretation de lege lata and formulation of conclusions de lege ferenda. All three arguments should be applied in conjunction—dogmatic, comparative and historical—in order to understand a certain regulation and the foreseeable directions of its development, and, in consequence, secure legal requirements in respect of changes, not only social or economic but also alterations in the legal order. The conjunction of the three arguments is presented with respect to analyses of the presence of deathbed gifts and per vindicationem legacies in Polish law. These legacies were reintroduced in 2011, and, although the Senate of Poland had twice failed to regulate them in the Polish civil code, in 2013 the Supreme Court of Poland declared that deathbed gifts are in force in Polish law.
This chapter explores the life and work of Nicolaus Copernicus as a jurist. Although the only dip... more This chapter explores the life and work of Nicolaus Copernicus as a jurist. Although the only diploma Nicolaus Copernicus obtained in his life was in law, it is true that he had no academic interest in the subject and never wrote about it theoretically. On those occasions when he felt the need to present himself with the solemnity and importance of his full title, the famous astronomer always termed himself decretorum doctor, that is, doctor of canon law. He is usually presented almost exclusively as a mere administrator engaged in the affairs of political and social life, but the truth is that Copernicus is perhaps the most famous practicing lawyer in the world, and it was his formation as a lawyer that determined his way of perceiving and thinking about the world of affairs in which he was involved, a type of formation that distinguishes legal studies from other forms of intellectual and scientific training. He was in fact a typical in-house counsel, a practitioner in the service of the cathedral chapter to which he belonged. In carrying out his professional role as a lawyer, Copernicus fulfilled his life’s calling as a Catholic clergyman.
Research Handbook on Legal Evolution, ELGAR (pages 150-169), 2024
Roman and civil law is not only a matter of its more than 1,000 years of history in ancient Rome;... more Roman and civil law is not only a matter of its more than 1,000 years of history in ancient Rome; it also includes the 1,500 years of later European legal tradition, so that up to four lives of Roman law can be demonstrated so far. The development of Roman private law during the first 1,000 years, as well as throughout the rest of legal history, is difficult to assess and so cannot be described simply in terms of progress. Undoubtedly, it is subject to certain changes and developments, and these might sometimes be considered evolution, although, firstly, these always involve human beings and so the same human nature, and, secondly, all legal regulations are validated by their utility and social acceptability, which, as regards relations in the field of private law, is found to be similar in different epochs. It can be noted that the law fluctuates but nevertheless always remains within the spectrum of a certain amplitude of changes—its range of possibilities. Within this range, the law shows a characteristic resilience, resulting from the fact that Roman law is characterized by a staunch acceptance of reality, providing a remarkable ability to improvise at the same time as it passes down—from Roman antiquity to subsequent epochs, and thus to our own times—eternal notions and values that allow us to believe that the lawful life is meaningful.
Etyka zawodów prawniczych. Etyka prawnicza, red. H. Izdebski, P. Skuczyński, Warszawa 2006, s. 159–166, 2006
Wbrew marzeniom niektórych teoretyków, w praktyce prawnej nie daje się abstrahować od moralności.... more Wbrew marzeniom niektórych teoretyków, w praktyce prawnej nie daje się abstrahować od moralności. Najlepiej świadczą o tym faktyczne problemy z podporządkowaniem się prawu. Wskazują one na zakłócenia w relacjach między obowiązującym prawem a korzystaniem przez człowieka z wolności w celach, które rozpoznaje rozumem i chce urzeczywistniać wolą. W końcu prawo nie sprowadza się do techniki – nie wolno zapominać, że ma ono służyć realizowaniu wartości. Choć spór, co do wyboru między nimi, będzie się pojawiać w sposób nieunikniony, rozsądnie brać pod uwagę, że ostatecznym kryterium zachowań człowieka – zgodnych czy niezgodnych z prawem– jest jednak własne sumienie. Dobrze, jeśli zostało prawidłowo uformowane.
An envoy (legatus, orator) was a person sent to a community or to a ruler by his community or his... more An envoy (legatus, orator) was a person sent to a community or to a ruler by his community or his state. It was not only an individual who undertook the mission to foreign territories or came from them to Rome, but the delegate to or from provincial assemblies, municipium or civitas as well. The complete inviolability of envoys seems to be warranted in Rome of the principate era by the univerasally respected norm of ius gentium. According to it, envoys were regarded as sacred (sancti habentur legati). Therefore, they were secured against violance and safe from human trespass or assault. The priviledge was enjoyed by both ambassadors of the senate or the princeps and legates arriving to Rome from abroad, from provincial assemblies, from municipia or civitates. The word sanctum comes from the sagmina - the bunches of herbs. The legates customarily carried them as it was believed that the sagmina provide them with gods’ support, ward off outrages and protect them from human mischief. A...
Mandatum incertum occurs when the terms of this consensual contract are left imprecise by the man... more Mandatum incertum occurs when the terms of this consensual contract are left imprecise by the mandator. The article focuses on the essential determination of the object for the validity of the mandate, therefore the main question is whether mandatum incertum was not unknown to the classical jurists, as there is no doubt it was not void in the Byzantine era. The problem was broadly discussed by several authors, i.e., V. Arangino-Ruiz, G. Donatuti, G. Longo, A. Watson and N. Scapini, though no general agreement among modem jurists was achieved. It seems that terms of mandate are not the same as fines mandati. Fines mandati are not only the intrinsic restrictions given by the mandator, but the purpose to be achived as well. Yes, this purpose could be express or implied, then egressio mandati takes place only when the express boundaries are transgressed. The thorough analysis of relevant classical sources in the full context of the institution allows to state that there is no reason to ...
Wiesław Mossakowski, Roman Law, and Nicolaus Copernicus: A Researcher's Intuition to Choose Only ... more Wiesław Mossakowski, Roman Law, and Nicolaus Copernicus: A Researcher's Intuition to Choose Only Important Subjects for Study: In a paper published in 2001 Wiesław Mossakowski claimed that Nicolaus Copernicus was an expert in Roman civil law. He was convinced he was right. Discoveries and findings made in the last decade have shed new light on the search for Copernicus’ activities as a lawyer. In fact, he was a typical in-house counsel, in the service of the cathedral chapter to which he belonged in the Duchy of Warmia. Much of Mossakowski’s paper has dated, but some of his intuitions have been confirmed. With his paper he was risking a lot, even ridicule but eventually turned out to be a visionary.
By merging three different historical examples, this article shows that legal mentality influence... more By merging three different historical examples, this article shows that legal mentality influences the management of similar public goods, the composition of institutional change in the urban sphere and finally the character of legal regulations best fitted in a given circumstances for arriving at desired outcome. The authors proved that the inclinations for ex ante and ex post models are dependent on the concept of public administration and most particularly of administrative law. In a way, in the mixed public administration presented in the Roman law example, where both centralized and polycentric governance were applied, much depends on the narrative and values which accompany the institutional change in urban settings.
Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, ed. Jose María Puyol Montero, Tirant lo Blanch, Valencia; RCC Harvard.edu, 2023
In the pandemic era, laziness might be in reality one of the greatest challenges for the societie... more In the pandemic era, laziness might be in reality one of the greatest challenges for the societies of the world. If it has been observed that sloth is indeed in our present times already so widespread, there is no reason to complacently accept the theory that laziness will not be a challenge in the subsequent post-pandemic era. The answer to the question of how to combat laziness is not actually within the bailiwick of lawyers. However, they must seriously consider the legal consequences of laziness, provoked and intensified by the notorious release from duties and the loosening of social ties that life under the pandemic has witnessed. Sloth, like the matter of some other great subjects in the field of law —as unjust enrichment and the abuse of rights, proves at the same time both easy and not easy to describe. With regard to laziness, the description is easy inasmuch as the words describing this phenomenon come from everyday language. The difficulty is caused by the lack of an unambiguously established terminology. Then, one particular question that must be asked concerns the challenges that laziness creates for private law. It is most certainly worth starting with Roman law in order to answer the question. Ancient legal sources suggest that sloth was put alongside the generally understood carelessness and negligence when it comes to explaining what fault really is as a premise of liability for damages, and even more as a standard of expectations and duty in the performance of contractual provisions. Laziness, in at least some circumstances, becomes the express opposite of diligence. In private law sloth results in financial consequences. These will not always be borne directly by the slothful person himself but rather by those responsible for the person or for the resulting state of affairs, as in the case, for example, of a guardian or a seller. The study of the manifestations of laziness stigmatized by the law invites us to summon up and strengthen the motivation for persistent and tireless work, understood as a virtue and practiced with wise moderation.
RESUMEN: Durante la pandemia, la ociosidad y la pereza han sido, con probabilidad, uno de los mayores desafíos para las sociedades, al menos del llamado “mundo desarrollado”. Si observamos la actual propagación de la vagancia, existen razones suficientes para intuir que en adelante seguirá constituyendo un verdadero y preocupante reto. Aunque la forma de combatirla no competa al ámbito del Derecho, debido al notorio decaimiento de los vínculos sociales y a la relajación del sentido de responsabilidad y de las obligaciones debemos, sin embargo, considerar las consecuencias jurídicas de la misma. La holgazanería, del mismo modo que otros marcos jurídicos, cómo el enriquecimiento injusto y el abuso de derecho-, es al mismo tiempo de sencilla y difícil delimitación terminológica. A pesar de que el origen cotidiano de la vagancia clarifique su contenido, sin embargo, su descripción viene dificultada por la ausencia de una terminología fija e inequívoca. Lacuestión que se deriva de su estudio atiene a los desafíos que origina al derecho privadoy que pueden ser respondidos desde el derecho romano. Las fuentes jurídicas de la antigüedad equiparan la vagancia con el descuido y la negligencia, explicados como culpa en relación con la responsabilidad por daños, llegando a convertirse en canon de las expectativas de cumplimiento de las prestaciones contractuales. La indolencia, al menos en algunos casos, se define como el extremo opuesto dela diligencia. En el derecho privado, la vagancia tiene consecuencias económicas, que no siempre serán asumidas directamente por el propio indolente, al poder extenderse a los responsables de la persona o de la situación resultante, como puede ser el caso de un tutor o un vendedor. El estudio de las manifestaciones de la pereza estigmatizadas por el derecho nos invita a hacer un llamamiento para el fortalecimiento de la motivación para el trabajo persistente e incansable, entendido como virtud y practicado con sabia moderación.
The interaction of the heritage of the Greek and Roman empires and Judaeo-Christian tradition sho... more The interaction of the heritage of the Greek and Roman empires and Judaeo-Christian tradition should be kept in mind when we discuss legal tradition. This article gives an example when discussing what Gottfried Wilhelm Leibniz called subiectum iuris (the subject of rights), namely the bearer of rights. The terms used to define a bearer of rights vary, sometimes descriptive or intuitive, at other times strictly technical. The experience of both Jerusalem and Rome leads to the question: "Who is my neighbour?" or "Who is my brother?" Although the phrasing of the fundamental and shared question proves that universalism may extend beyond one legal tradition, the answers to these questions are not unanimous. The basic yet difficult problem in any society is who may be considered a neighbour? The question of "brotherhood" boils down to "brotherhood" with whom? Who is one's neighbour? Every person? And who is a person: a slave, a foreigner, a paga...
Hermogenianus’ precept that hominum causa omne ius constitutum sit was one of the basic principle... more Hermogenianus’ precept that hominum causa omne ius constitutum sit was one of the basic principles underlying all of Roman law. Gaius’ summa divisio personarum did not make much sense to the Diocletian’s jurist, who had enormous experience as a practicing lawyer, legislator and statesman. In fragment D. 1,5,2, people are the raison d’être and goal of law; therefore, the law does not create man. The fundamental connection between ius and homo seems parallel to the Ulpian’s rooting of ius in iustitia.
1. A pope’s search for a correct conception of the human person in the writings of a pagan jurist – 2. Two ancient contexts of a pagan lawyer’s remark – 3. Ancient jurists on the question of introducing the presentation of law with the status of human beings – 4. The epoch and circumstances of the formulation of the statement hominum causa – 5. The author of the statement asserting the centrality of man in law – 6. The intellectual formation of Hermogenianus – 7. Date of creation of the works attributed to Hermogenianus – 8. The systematics of the presentation of the law in the times of Justinian – 9. Detailed analysis of the hominum causa passage – 10. Homo and persona as legacies of Roman civilization – 11. Hominum causa as an important message of Roman civilization.
Freedom of Speech and Religion in the United States Constitution, CH BECK: Warszawa, 2024
Reading the court decisions included in this book should allow us to confront the opinions and po... more Reading the court decisions included in this book should allow us to confront the opinions and points of view presented in the high legal culture of a large and stable democratic state, but also with the official behavior of outstanding and carefully selected judges, and with the way they carry out their public mission. Their voice is expected to resound fully in the following pages, since the book, written in the copy and paste technique, contains a selection of the best and most interesting cases. They deal with freedom of speech and religious freedom, but are also meant to introduce the European reader to the intellectual work of a lawyer of Anglo-American legal systems on these issues. The book is intended to let the judges speak. Their opinions have been stated and noted, and the opinions are authoritative and are source texts. They have been and will continue to be subject to interpretation. All the same, familiarity with the court decisions collected in this book should come in handy for any reader: if he chooses to read even just a few pages of this book, I trust he will not waste time.
This volume is the first comprehensive study of the Polish history of law and Christianity writte... more This volume is the first comprehensive study of the Polish history of law and Christianity written in English for a global audience. It examines the lives of twenty-one central figures in Polish law with a focus on how their Christian faith was a factor in molding the evolution of law in their country and the region. The individuals selected for study exhibit wide-ranging areas of expertise, from private law and codification, through national public law and constitutional law, to international developments that left their mark on Poland and the world. The chapters discuss the jurists within their historical, intellectual, and political context. The editors selected jurists after extensive consultation with legal historians looking at the jurists’ particular merits, contributions to law in general, religious perspective, and period under consideration. The collection will appeal to scholars, lawyers, and students interested in the interplay between law and religion. Political, social, legal, and religious historians, among other readers, will find, for the first time in English, authoritative treatments of essential Polish legal thinkers and authors. The book is edited by Franciszek Longchamps de Bérier and Rafael Domingo.
Rozdział I. Najsławniejszy prawnik praktyk w dziejach świata
§ 1. Prawnik a prawotwórca
§ 2. Wyks... more Rozdział I. Najsławniejszy prawnik praktyk w dziejach świata § 1. Prawnik a prawotwórca § 2. Wykształcenie nie tylko prawnicze § 3. Jedyny dyplom w życiu § 4. Problemy ze zdefiniowaniem prawnika § 5. Prawnik jako sprawny i godny zaufania administrator § 6. Typowe zainteresowania prawnika § 7. Prawnika sposób czytania książek § 8. Prawnicza formacja umysłu ścisłego
Rozdział II. Uczony prawnik niemal zapomniany § 1. Humanista i profesor prawa § 2. Wszechstronność i dojrzałość prawnika § 3. Uczony jako mistrz pytań zasadniczych § 4. Leczenie prawniczych kompleksów § 5. Prawnik zawsze komparatysta § 6. Zagadnienia prawniczych badań a napotykane problemy § 7. Życie prawa a realizm prawnika § 8. Studium prawa w rzeczypospolitej nauk
Rozdział III. Praca prawnika wobec próby czasu § 1. Kruchość elementów życiowego dorobku § 2. Pamięć własnego środowiska i bezpośrednich następców § 3. Otwarte pytania i najlepsi uczniowie § 4. Intuicja naukowa i podejmowane tematy
Rozdział I. jest w całości poświęcony Mikołajowi Kopernikowi.
Law and Christianity in Poland: The Legacy of the Great Jurists, Publisher: Routledge, 2022
This volume is the first comprehensive study of the Polish history of law and Christianity writte... more This volume is the first comprehensive study of the Polish history of law and Christianity written in English for a global audience. It examines the lives of twenty-one central figures in Polish law with a focus on how their Christian faith was a factor in molding the evolution of law in their country and the region. The individuals selected for study exhibit wide-ranging areas of expertise, from private law and codification, through national public law and constitutional law, to international developments that left their mark on Poland and the world. The chapters discuss the jurists within their historical, intellectual, and political context. The editors selected jurists after extensive consultation with legal historians looking at the jurists' particular merits, contributions to law in general, religious perspective, and period under consideration.
Adopting a comparative law perspective in deliberations on Roman law gives rise to a fundamental ... more Adopting a comparative law perspective in deliberations on Roman law gives rise to a fundamental problem: the fact that the subject matter is inexhaustible. The Roman law of succession is the most extensive branch of Roman law and if one also includes in these considerations references to the regulations adopted in other laws of succession – across the ages as well as in contemporary law – it renders any attempts to give a comprehensive account impossible, although one should not have any apprehensions about rising to the challenge. Nevertheless, when writing about the Roman legal framework and comparative law perspective, at some point one has to say that ‘enough is enough’. Every fragment of this study could be developed further: both regarding the Roman regulations and the comparative context. Not everything has been said in this book, and not only because the times when extensive summae were produced have passed. No one writes works of this kind anymore and it would also be difficult to find someone willing to plough through them. In fact no one is able to prepare such a book on account of the amount of information they would have to include. Fortunately it is not access to information that is a problem today. Information is relatively easy to obtain, although this can sometimes involve considerable financial costs. What seems to be most important is the approach taken. We expect keys to interpretation and, moreover, that they are presented in a concise and accessible manner.
The Roman law of succession, which was so well developed and dogmatically rich, evolved over many centuries. At different stages of its history it adopted many regulations concerning the same issues. Sometimes these solutions were vastly different from one another. All of them were thoroughly tested for their usefulness, perhaps with the exception of the ideas known from some of the imperial constitutions in late Roman law. The Roman law of succession thus constituted a jurisprudential framework of concepts. This framework can be treated as the language used for talking about the law of succession in general, irrespective even of which legal tradition the binding regulations derive from. Knowledge of the Roman law of succession – but not superficial knowledge, for example of selected regulations and only from a particular historical period in Roman law – allows any law of succession to be described: not only in mixed jurisdictions or in common law. Secondly, the Roman law of succession creates the framework for discussion about the law of succession and the regulations adopted by particular countries: about reforms, in the case of some countries, and building from scratch in the case of others. Thirdly, on account of the legal experience and specifically as a language of understanding, it offers great opportunities for the debate on the unification of the law of succession in Europe. It is difficult to overestimate the importance of the Roman experience, particularly in the area of the law of succession. Andrzej Stelmachowski’s students remember how he would tell them that one can only prove that the regulations pertaining to the area of the law of succession actually work in the third generation. Therefore the risk involved in creating new solutions is always substantial: and it is not easy to correct them. And then again, representatives of the younger generations who take part in the law-making process do not always remember what their predecessors had in mind; whereas lawyers are typically conservative, hence their unwillingness to change a law that is already familiar to them, including their reluctance to go back to using old regulations.
From the perspective of the history of the law of succession, the Roman regulations are not just well developed. We owe the dissemination of many solutions to Roman law. What I specifically have in mind here is the will, which was alien to ancient laws, including the oldest Greek law as well as Germanic law. Many other solutions only started to emerge as late as in Roman law. It was therefore not only more developed than the laws that preceded it, but it was also more advanced than many of the laws that came after it. In the Law of the Twelve Tables, the Romans already distinguished between testate and intestate succession. Testamentary freedom gained increasing importance in Roman law which is why this book is divided into two parts. The first part discusses the functioning of law in society in relation to claiming succession from the deceased, and the second deals with the legal conditions under which de cuius could decide about the fate of his estate in the event of his death. Therefore, in the first part, after presenting the general notions, I point to the values and principles of the law of succession, deal with the order of intestate succession and the fate of the estate after the testator’s death. The second part concerns the will: its external form, the internal requirements for disposing of the estate and the interpretation of wills.
The titles of both parts: ‘the Law’ and ‘the Testator’ point to the fulfilment of social expectations, which is so important in the law of succession, and the role of an individual as a legal entity. Two issues are involved here. The first one is understanding the law. To this end, nowadays we often make many distinctions, and European lawyers have been trying, since the Middle Ages, to formulate the law which was known to the Romans – who used it and, one could say, ‘had a ‘feel’ for it – into total formulas which describe the possible regulations theoretically and taking an overall viewpoint. In this, or in any other way, we compare and study legal history to understand our system better. The second issue pertains to man, since it is man that the law is in fact concerned with. This is connected with the tendency to create as many legal instruments as possible that enable his needs and expectations to be fulfilled. This is valued by lawyers, who like to have a lot to choose from and who are always looking for an alternative solution, because it may turn out to be better and more convenient.
Roman law should be included in analyses of comparative law. If these analyses are thorough and based on an understanding of the law and its mechanisms, aims, values and principles, and do not simply involve comparing clauses or consist in arguing to prove a hypothesis that has been formulated in advance – then they are aware of and they prove the great value of the experience of Roman law. The experience of comparative law extends the experience of Roman law, verifies it and points to the dead-end alleys into which one can be led if the precepts of Roman law are slavishly followed. Common efforts are of much greater practical use: deliberating about Roman law while always having the comparative context in mind; analyzing comparative law taking Roman law into account. Therefore I pay attention to the context of comparative law when I talk about the Roman law of succession. A serious problem lies in the fact that both specialists in Roman law and comparative law specialists find it difficult to raise the consciousness of specialists in contemporary private law, namely civil law dogmatists. Inasmuch as they like to look for support in other legal orders, and are thus open to the comparative perspective, they are reluctant to pay heed to historical arguments. It is difficult to hold this against them if those arguments are sometimes badly formulated or presented. After all, historical argumentation is concerned with the usefulness of legal experience and not about telling old tales or adopting old legal solutions.
The Abuse of Rights in Roman Private Law – Summary
This study examines the abuse of rights from ... more The Abuse of Rights in Roman Private Law – Summary
This study examines the abuse of rights from the Roman law perspective but is this a valid objective given that the issue of the abuse of rights only came to the fore in the 19th century. Despite the prevalence of questions, concepts and theories on the subject over the last two hundred years of private law, there is still a lack of consensus as to what constitutes an abuse, even though certain solutions have been adopted either through judicial interpretations or the existing regulations of specific codifications. It would, therefore, seem appropriate to investigate Roman sources with a view to ascertaining how Roman society, with its exceptionally advanced legal system, perceived an abuse of a right as opposed to the legitimate exercise of one’s rights. It is also worth asking whether they perceived the abuse of rights as an issue and whether there are any indications in their private law of any reactions to such cases of abuse. The starting point is an excerpt from Gaius’s Institutiones Gai 1.53 – in which the jurist states male nostro iure uti non debemus (we should not make improper use of our rights). After careful study of Gaius’s examples the book was divided into three parts, the first of which comprises Gaius’s testimony and which seems to provide a reliable basis for and a key to reviewing the reactions to the various types of conduct mentioned in the sources which could be interpreted as being an abuse of rights. These types of conduct are presented in part two which addresses issues such as limiting paternal authority, adoption procedures, and abuses within the law of inheritance. From these examples it was possible to form an opinion on how the Romans perceived the abuse of rights and to critically appraise the views held in contemporary literature, which are discussed in part three. Part three includes a discussion on the exceptio doli and the highly controversial question of the abuse of property rights and the abuse of rights in relationships with neighbours. However, this could not be discussed fully without understanding the significance of the maxim qui suo iure utitur neminem laedit, which was allegedly of Roman origin and has been invoked many times to refute the claim that Roman private law prohibited the abuse of rights. In addressing why objections to the abuse of rights arose, pragmatic motives associated with public interests and a sense of justice were invoked. It is hard to assess the influence of philosophical argumentation, including that of stoicism or the potential contribution of Christianity, as anything other than additional support for the two major principles mentioned above. However, there was a tendency to react to any socially undesirable consequences arising from an absolute freedom to exercise one’s rights. If that tendency cannot be fully identified with social awareness, it must have arisen from a strong sense of reciprocity which was rooted in an instinctive sense of justice. Therefore, it would be hard not to look for the origins of that tendency in man himself. This would also explain why evidence of its continuous existence cannot be found in the law itself. A characteristic feature of Roman law, in particular the archaic laws, was to grant extensive rights to citizens, without any explicit restriction as to their exercise. It would seem that this procedure was used to create the legal order, which cannot be classified as a ‘system’ in any historical period, not even under Justinian. This makes the question of the abuse of rights in the light of the Roman experience all the more interesting; despite the lack of restrictions on the exercise of one’s rights, there is no reason to believe that such rights were absolute. In discussing the abuse of rights, it is important to distinguish whether a right existed within a specific scope and whether there were any restrictions to its exercise. It is only by reference to the latter that the term ‘abuse of rights’ may be invoked if it is to retain its usefulness. There is no doubt that the Romans were aware that there were restrictions on the exercise of their rights, although they did not develop any theory or general idea on the abuse of rights. The sources do, however, provide sufficient grounds to conclude that there was a prohibition against the wrongful use of one’s rights in Ancient Rome. But the question of what ‘abuse of rights’ actually meant to the ancient Romans still has to be unanswered. What should be borne in mind is that the reactions to the various types of conduct which could be deemed as being unwarranted freedom in the exercise of one’s rights sometimes took an institutionalised legal form, however, such cases should be put aside. Roman private law used diverse legal means to prevent any absolute freedom to the exercise of one’s rights and to prevents the abuse of these rights. Therefore it is to be supposed that the prohibition to abuse one’s rights was treated as a limitation of various legal institutions. However, in the light of Roman history, the question of the abuse of rights cannot be encapsulated in an autonomous dogmatic figure; rather it points to the need to modify how the rights are actually exercised. This need seems to be part of any private law, being one of the driving forces of its development. Roman law clearly exemplifies this by reminding us that responses to the abuse of rights are in fact objections to the norms, or the manner in which they are interpreted, and which society no longer considers to be just, rational, useful or effective. This is how the term male used by Gaius in Gai 1.53 should be interpreted; it associates the abuse of rights with putting an end to the freedom to exercise one’s rights. Hence, Gaius’s observation that improper use should not be made of one’s rights (which is better understood on a historical rather than a dogmatic level) reveals in fact the need to find ways in Roman legislation to change both the conduct of the authorised parties and the legal order itself. In looking to the solutions of the ancient Romans for points of reference to present-day discussions on the abuse of rights, it is worth thinking back to the statements made by Celsus and Gaius which enable us to assess the criteria adopted by the Romans for the abuse of rights. Although neque malitiis indulgendum est can be interpreted as evidence of critical objections to the abuse of rights, male nostro iure uti non debemus leaves no doubt that the Romans adopted a much broader perspective, which also took the objective aspect into account. It is in this vein that the Justinians (Institutiones I. 1.8.2) interpreted Gaius’ sentence as: expedit enim rei publicae ne quis re sua male utatur. If we take into consideration the reasons for prohibiting the abuse of rights, then it would be expected that the Roman legal order tended to respond on the basis of objective criteria. By reviewing the sources it is possible to evaluate the views on the Roman attitude to the abuse of rights as formulated in contemporary studies of Roman law, and which have contributed to the development of the current regulations. For instance, it is plain that objections to the abuse of rights in ancient Rome were not merely restricted to the prohibition of chicanery. Nor were such objections limited to property rights, although any discussion on the abuse of basic rights leads to the question of how ownership rights should be perceived. Celsus’s and Gaius’s comments lead one to agree with the view expressed by Leon Piniński that some limitation in respect of ownership should not be treated as being exceptional. It should be seen as being fully consistent with the idea of ownership rights, and should be defined in such a way that it is an inherent part of the said rights. There was a major difference between the Roman perception of abuse of rights and how it was interpreted during the reception of Roman law. In the Middle Ages, the ancient texts were referred to selectively and, because they were misinterpreted, the question of abuse of rights was reduced to aemulatio. The belief arose that the only type of conduct to be prohibited was that which fell formally within the exercise of one’s rights and whose only intention, although yielding no or only marginal profits to the given party, was doing damage to the other parties. This was the approach adopted in pandectism because it helped pave the way for making the problem of the abuse of rights a peripheral issue. The Romans’ attitude to the abuse of rights was clearly at odds with 19th century liberal and individualist tendencies, in particular the 19th century conception of unlimited ownership, as well as the notion of legal certainty. A liberal society maintained that it could create its own legal system basing on that very notion and on the power of the freedom of the individual. However, the concept of the abuse of rights coincided with a serious crisis, be it decline of these two values. The idea gained popularity towards the end of the 19th century and in the first half of the 20th century, when it became possible to clearly expose the inadequacy and decline of these two, otherwise elusive, liberal ideas. However, the Roman response to the abuse of rights proved that this issue became valid not only at a particular stage in the history of contemporary law. Roman private law shows that the ethical dimension, though not necessarily inherent in the law itself, can always be an important issue. Although it may at times be ignored, and at times deliberately rejected, it will sooner or later manifest itself in legal practice. And the issue of the abuse of rights will always remind us of the prevailing tension in any legal order, which requires that the law be compatible with justice.
The structure of the universal fideicommissum gave rise to certain difficulties – the intention o... more The structure of the universal fideicommissum gave rise to certain difficulties – the intention of the testator was to make the fideicommissary the universal successor. While corpora hereditaria could be easily handed over, transferring rights and duties posed a serious problem. This was due to a lack of appropriate norms and a proper form. Originally, the issue was resolved by selling the estate – venditio hereditatis nummo uno – to which mutual stipulations were attached in order to transfer claims and debts (stipulationes emptae et venditae hereditatis). Yet, the sale of the estate resulted only in singular succession, due to which the fideicommissary could only be included emptoris loco. He did not become the subject of a passive or active title to appear before the court, while, at the same time, the heir was not protected against actions brought by the creditors of the inheritance. The actual reform was carried out by the Senate on 25 August 55 by issuing the resolution on the initiative of Marcus Trebellius Maximus, who was consul together with Lucius Annaeus Seneca. The essence of the regulation was the transfer of inheritance actions from the heir to the universal fideicommissary. As a result of senatus consultum Trebellianum, the rights and duties of the inheritance were transferred directly and without undertaking individual acts. The fideicommissary obtained the status of an heir as a result of the actiones utiles, fideicommissaria hereditatis petitio, utile familiae erciscundae iudicium granted to him, and also as a result of the exceptio granted to the heir, in which he was released from any liability by indicating that the inheritance had been made over. This was not treated as the solutio of an obligation, but as an actual transfer of the succession. The fideicommissary thus became heredis loco rather than emptoris loco. Universal succession was achieved through the intermediation of the heir, who retained the title of heres irrespective of having made the inheritance over to the fideicommissary. What was even more important was the fact that the heir accepting the inheritance was the condition for the existence of fiduciary bequest. This issue was addressed almost twenty years later – probably in AD 72, when – under the Emperor Vespasian’s rule, Plotius Pegasus and Lucius Cornelius Pusio Annius Messala were consuls. Senatus consultum Pegasianum introduced a procedure compelling the heir to accept the inheritance. At the motion of the universal fideicommissary, the magistratus issued a relevant order – iussum, on the basis of which the heir had to accept the inheritance. It was logical that in such case, he was exempt from any liability, which was transferred to the fideicommissary; based on the senates consultum Trebellianum, all claims were also transferred. The initiators of the Pegasian resolution of the senate also wished to create an incentive to accept the inheritance voluntarily. Inspired by lex Falcidia, they wanted to ensure that the heir received one quarter of the hereditas. If this had been provided for by the testator – that is, when the testator imposed a universal fideicommissum not exceeding three quarters of the inheritance – senatus consultum Trebellianum was still applied. In such case, the heir was held liable for any debts on the part of the inheritance he retained. If the testator had not guaranteed one quarter of the net estate for the heir, senatus consultum Pegasianum granted the heir the right to keep it. At that moment, the issue of transferring rights and duties of reappeared resepectively to the part retained. If the heir did not exercise his right, but – in keeping with the testator’s wishes – handed over more than three quarters of the inheritance, then stipulations were applied that were modelled on those used in the event of the sale of the inheritance (venditio hereditatis). Taking this aspect into account, senatus consultum Pegasianum reinstated the regulation so that it was as before the Trebellian reform and the fideicommissary was again made emptoris loco. However, the situation was even worse if the heir himself decided to keep a quarter. In such case, the Pegasian resolution required the inclusion of stipulations as in case of a partial legacy (partito legata). Consequently, the fideicommissary was put in the place of the legatee under civil law. He was neither obliged nor authorized to participate in the court proceedings concerning the inheritance. In practice, the entire responsibility for any excessive debts encumbering the inheritance remained with the heir. He was not entitled to any recourse against the fideicommissary with respect to legacies paid, which resulted in the universal fideicommissum being considered “competitive” vis-à-vis other legacies. The Pegasian resolution of the senate is another example in legal history of a justified legislative initiative which instead of ordering and improving the existing regulations caused commotion only because it had not been sufficiently well-thought out. Firstly, senatus consultum Pegasianum actually limited the testator’s freedom to dispose of property mortis causa to three-quarters of the inheritance. Secondly, allocating a quarter to the heir by virtue of the law led to effects that were contrary to the last wishes of the deceased. The consequences of applying the Pegasian resolution were, in practice, so complex that it would be difficult to expect that the testator had been able to predict who and what each person would have received from the inheritance. Thirdly, being promised a part of the inheritance was not really sufficient inducement to accept it, because in addition to the obvious – ostensible – benefit, the heir was held fully responsible for the debts. What is more surprising is the conservatism shown in maintaining all the adverse consequences of senatus consultum Pegasianum – changes were not introduced until Justinian’s Institutes. The Institutes maintained only the best solutions introduced by the Pegasian resolution of the senate: obligatory acceptance and delivery of the inheritance and the right to a quarter which were, however, subjected to the principles of senatus consultum Trebellianum.
The structure of the universal fideicommissum gave rise to certain difficulties – the intention o... more The structure of the universal fideicommissum gave rise to certain difficulties – the intention of the testator was to make the fideicommissary the universal successor. While corpora hereditaria could be easily handed over, transferring rights and duties posed a serious problem. This was due to a lack of appropriate norms and a proper form. Originally, the issue was resolved by selling the estate – venditio hereditatis nummo uno – to which mutual stipulations were attached in order to transfer claims and debts (stipulationes emptae et venditae hereditatis). Yet, the sale of the estate resulted only in singular succession, due to which the fideicommissary could only be included emptoris loco. He did not become the subject of a passive or active title to appear before the court, while, at the same time, the heir was not protected against actions brought by the creditors of the inheritance. The actual reform was carried out by the Senate on 25 August 55 by issuing the resolution on the initiative of Marcus Trebellius Maximus, who was consul together with Lucius Annaeus Seneca. The essence of the regulation was the transfer of inheritance actions from the heir to the universal fideicommissary. As a result of senatus consultum Trebellianum, the rights and duties of the inheritance were transferred directly and without undertaking individual acts. The fideicommissary obtained the status of an heir as a result of the actiones utiles, fideicommissaria hereditatis petitio, utile familiae erciscundae iudicium granted to him, and also as a result of the exceptio granted to the heir, in which he was released from any liability by indicating that the inheritance had been made over. This was not treated as the solutio of an obligation, but as an actual transfer of the succession. The fideicommissary thus became heredis loco rather than emptoris loco. Universal succession was achieved through the intermediation of the heir, who retained the title of heres irrespective of having made the inheritance over to the fideicommissary. What was even more important was the fact that the heir accepting the inheritance was the condition for the existence of fiduciary bequest. This issue was addressed almost twenty years later – probably in AD 72, when – under the Emperor Vespasian’s rule, Plotius Pegasus and Lucius Cornelius Pusio Annius Messala were consuls. Senatus consultum Pegasianum introduced a procedure compelling the heir to accept the inheritance. At the motion of the universal fideicommissary, the magistratus issued a relevant order – iussum, on the basis of which the heir had to accept the inheritance. It was logical that in such case, he was exempt from any liability, which was transferred to the fideicommissary; based on the senates consultum Trebellianum, all claims were also transferred. The initiators of the Pegasian resolution of the senate also wished to create an incentive to accept the inheritance voluntarily. Inspired by lex Falcidia, they wanted to ensure that the heir received one quarter of the hereditas. If this had been provided for by the testator – that is, when the testator imposed a universal fideicommissum not exceeding three quarters of the inheritance – senatus consultum Trebellianum was still applied. In such case, the heir was held liable for any debts on the part of the inheritance he retained. If the testator had not guaranteed one quarter of the net estate for the heir, senatus consultum Pegasianum granted the heir the right to keep it. At that moment, the issue of transferring rights and duties of reappeared resepectively to the part retained. If the heir did not exercise his right, but – in keeping with the testator’s wishes – handed over more than three quarters of the inheritance, then stipulations were applied that were modelled on those used in the event of the sale of the inheritance (venditio hereditatis). Taking this aspect into account, senatus consultum Pegasianum reinstated the regulation so that it was as before the Trebellian reform and the fideicommissary was again made emptoris loco. However, the situation was even worse if the heir himself decided to keep a quarter. In such case, the Pegasian resolution required the inclusion of stipulations as in case of a partial legacy (partito legata). Consequently, the fideicommissary was put in the place of the legatee under civil law. He was neither obliged nor authorized to participate in the court proceedings concerning the inheritance. In practice, the entire responsibility for any excessive debts encumbering the inheritance remained with the heir. He was not entitled to any recourse against the fideicommissary with respect to legacies paid, which resulted in the universal fideicommissum being considered “competitive” vis-à-vis other legacies. The Pegasian resolution of the senate is another example in legal history of a justified legislative initiative which instead of ordering and improving the existing regulations caused commotion only because it had not been sufficiently well-thought out. Firstly, senatus consultum Pegasianum actually limited the testator’s freedom to dispose of property mortis causa to three-quarters of the inheritance. Secondly, allocating a quarter to the heir by virtue of the law led to effects that were contrary to the last wishes of the deceased. The consequences of applying the Pegasian resolution were, in practice, so complex that it would be difficult to expect that the testator had been able to predict who and what each person would have received from the inheritance. Thirdly, being promised a part of the inheritance was not really sufficient inducement to accept it, because in addition to the obvious – ostensible – benefit, the heir was held fully responsible for the debts. What is more surprising is the conservatism shown in maintaining all the adverse consequences of senatus consultum Pegasianum – changes were not introduced until Justinian’s Institutes. The Institutes maintained only the best solutions introduced by the Pegasian resolution of the senate: obligatory acceptance and delivery of the inheritance and the right to a quarter which were, however, subjected to the principles of senatus consultum Trebellianum.
The structure of the universal fideicommissum gave rise to certain difficulties – the intention o... more The structure of the universal fideicommissum gave rise to certain difficulties – the intention of the testator was to make the fideicommissary the universal successor. While corpora hereditaria could be easily handed over, transferring rights and duties posed a serious problem. This was due to a lack of appropriate norms and a proper form. Originally, the issue was resolved by selling the estate – venditio hereditatis nummo uno – to which mutual stipulations were attached in order to transfer claims and debts (stipulationes emptae et venditae hereditatis). Yet, the sale of the estate resulted only in singular succession, due to which the fideicommissary could only be included emptoris loco. He did not become the subject of a passive or active title to appear before the court, while, at the same time, the heir was not protected against actions brought by the creditors of the inheritance. The actual reform was carried out by the Senate on 25 August 55 by issuing the resolution on the initiative of Marcus Trebellius Maximus, who was consul together with Lucius Annaeus Seneca. The essence of the regulation was the transfer of inheritance actions from the heir to the universal fideicommissary. As a result of senatus consultum Trebellianum, the rights and duties of the inheritance were transferred directly and without undertaking individual acts. The fideicommissary obtained the status of an heir as a result of the actiones utiles, fideicommissaria hereditatis petitio, utile familiae erciscundae iudicium granted to him, and also as a result of the exceptio granted to the heir, in which he was released from any liability by indicating that the inheritance had been made over. This was not treated as the solutio of an obligation, but as an actual transfer of the succession. The fideicommissary thus became heredis loco rather than emptoris loco. Universal succession was achieved through the intermediation of the heir, who retained the title of heres irrespective of having made the inheritance over to the fideicommissary. What was even more important was the fact that the heir accepting the inheritance was the condition for the existence of fiduciary bequest. This issue was addressed almost twenty years later – probably in AD 72, when – under the Emperor Vespasian’s rule, Plotius Pegasus and Lucius Cornelius Pusio Annius Messala were consuls. Senatus consultum Pegasianum introduced a procedure compelling the heir to accept the inheritance. At the motion of the universal fideicommissary, the magistratus issued a relevant order – iussum, on the basis of which the heir had to accept the inheritance. It was logical that in such case, he was exempt from any liability, which was transferred to the fideicommissary; based on the senates consultum Trebellianum, all claims were also transferred. The initiators of the Pegasian resolution of the senate also wished to create an incentive to accept the inheritance voluntarily. Inspired by lex Falcidia, they wanted to ensure that the heir received one quarter of the hereditas. If this had been provided for by the testator – that is, when the testator imposed a universal fideicommissum not exceeding three quarters of the inheritance – senatus consultum Trebellianum was still applied. In such case, the heir was held liable for any debts on the part of the inheritance he retained. If the testator had not guaranteed one quarter of the net estate for the heir, senatus consultum Pegasianum granted the heir the right to keep it. At that moment, the issue of transferring rights and duties of reappeared resepectively to the part retained. If the heir did not exercise his right, but – in keeping with the testator’s wishes – handed over more than three quarters of the inheritance, then stipulations were applied that were modelled on those used in the event of the sale of the inheritance (venditio hereditatis). Taking this aspect into account, senatus consultum Pegasianum reinstated the regulation so that it was as before the Trebellian reform and the fideicommissary was again made emptoris loco. However, the situation was even worse if the heir himself decided to keep a quarter. In such case, the Pegasian resolution required the inclusion of stipulations as in case of a partial legacy (partito legata). Consequently, the fideicommissary was put in the place of the legatee under civil law. He was neither obliged nor authorized to participate in the court proceedings concerning the inheritance. In practice, the entire responsibility for any excessive debts encumbering the inheritance remained with the heir. He was not entitled to any recourse against the fideicommissary with respect to legacies paid, which resulted in the universal fideicommissum being considered “competitive” vis-à-vis other legacies. The Pegasian resolution of the senate is another example in legal history of a justified legislative initiative which instead of ordering and improving the existing regulations caused commotion only because it had not been sufficiently well-thought out. Firstly, senatus consultum Pegasianum actually limited the testator’s freedom to dispose of property mortis causa to three-quarters of the inheritance. Secondly, allocating a quarter to the heir by virtue of the law led to effects that were contrary to the last wishes of the deceased. The consequences of applying the Pegasian resolution were, in practice, so complex that it would be difficult to expect that the testator had been able to predict who and what each person would have received from the inheritance. Thirdly, being promised a part of the inheritance was not really sufficient inducement to accept it, because in addition to the obvious – ostensible – benefit, the heir was held fully responsible for the debts. What is more surprising is the conservatism shown in maintaining all the adverse consequences of senatus consultum Pegasianum – changes were not introduced until Justinian’s Institutes. The Institutes maintained only the best solutions introduced by the Pegasian resolution of the senate: obligatory acceptance and delivery of the inheritance and the right to a quarter which were, however, subjected to the principles of senatus consultum Trebellianum.
s. 373–394 [w:] Dogmat i metoda. Wprowadzenie do badań interdyscyplinarnych w teologii dogmatycznej, red. Robert J. Woźniak ISBN 978-83-277-1845-7 Wydawnictwo WAM Kraków, 2021
Dogma and Method. An Introduction to Interdisciplinary Research in Dogmatic Theology
Law and lega... more Dogma and Method. An Introduction to Interdisciplinary Research in Dogmatic Theology Law and legal studies convince us that we do not have to be ashamed of dogma. They encourage us to develop dogmatic theology as the art of interpretation. And since the life of law and the craft of lawyers is essentially interpretation, it would probably be worthwhile for dogmatic theologians to become knowledgeable about legal methods. How can they accomplish this? First, they must become acquainted with the basic methods of legal interpretation: linguistic, systemic and functional. This will facilitate understanding and increase the self-confidence of those who, within dogmatic theology, come across expressions of a legal nature or significance. Second, they should look at a given regulation not only according to its dogmatic structure, but also taking into account the interpretative conclusions resulting from arguments of a historical or comparative nature. This will make it possible to place the discussed normative issues or solutions in their broader context. And this will in turn facilitate the evaluation of their efficiency, and, at times, enable theologians to predict a dogma’s development and prepare for possible changes or mutations in it. There is no harm in dogmatic theologians tracing the critique of law, as this might give them more to say as regards the critique of dogmatic theology. This might also help them reinforce the credibility and scientific and cognitive nature of their own research. Thus, dogmatic theologians should not be afraid to consider their theses or research results from the perspective given by legal studies. Comparisons between the two fields are methodologically justified, as both fields develop in a parallel manner. It is appropriate for them to use each other’s instruments, and the relation between dogmatic theology and law, including legal studies, can be mutually beneficial. Law and legal studies can be treated as the useful mirror of dogmatic theology. Looking at law and legal studies from the perspective of dogmatic theology is a separate task from this, but could result in interesting descriptions, comparisons, and juxtapositions, and, in consequence, suggestions or reinforcement for legal arrangements.
Książka dotyczy dwóch bardzo ważnych dla współczesnego prawa nieostrych pojęć: porządku publiczne... more Książka dotyczy dwóch bardzo ważnych dla współczesnego prawa nieostrych pojęć: porządku publicznego i moralności publicznej. Dobrze, że przygotowano bogatą pracę o tak ważnych klauzulach generalnych: dość powiedzieć, że są elementami dobra wspólnego, co wprost odsyła do art. 1 Konstytucji RP. Celem klauzul jest ochrona integralności polskiego systemu prawnego, motywem ich przywoływania – względy interesu publicznego. Klauzule kierują ku kryteriom pozaprawnym: moralnym, ekonomicznym czy politycznym. Toteż dla praktyki prawniczej ustalenie przez ekspertów ich treści jako kategorii prawnych wydaje się nie mniej ważne niż powierzenie lub pozostawienie dookreślania sądom i innym organom stosującym prawo, co służy zapewnieniu zachowania niezbędnej elastyczności w stosowaniu klapy czy zaworu bezpieczeństwa, jaką w istocie stanowi zwłaszcza klauzula porządku publicznego. KS. PROF. DR HAB. FRANCISZEK LONGCHAMPS DE BÉRIER, UNIWERSYTET JAGIELLOŃSKI
Temat tomu i tworzących go opracowań jest bardzo interesujący, ważny poznawczo i aplikacyjnie. Autorzy prac reprezentują różne środowiska naukowe oraz różne dyscypliny prawnicze, a istotną wartością przedstawionych analiz jest ich konkluzywność. DR HAB. KRZYSZTOF MOTYKA, PROF. KUL, KATOLICKI UNIWERSYTET LUBELSKI JANA PAWŁA II
Z dużym uznaniem należy odnieść się do zamiaru pomysłodawców omówienia problematyki „porządku publicznego” i „moralności publicznej” jako klauzul prawnych w ustawodawstwie polskim na tle rozwiązań prawnych Unii Europejskiej oraz prawa międzynarodowego. Prezentowana perspektywa umożliwia spojrzenie na tytułową problematykę w szerokim kontekście normatywnym. Pozwala także na uchwycenie źródeł oraz podobieństw polskich regulacji prawnych posługujących się ww. klauzulami do rozwiązań unijnych i międzynarodowych. Recenzowana książka ma charakter nowatorski, duże znaczenie poznawcze, nasycona jest wątkami i informacjami faktograficznymi, sprawnie łączy ustalenia literatury przedmiotu oraz dorobku judykatury zwłaszcza polskiego TK, SN, sądów administracyjnych oraz TSUE, co pozwala spojrzeć na tę problematykę nie tylko od strony teoretycznoprawnej, ale i praktycznej. Zaprezentowane definicje, rozważania teoretycznoprawne, a także orzecznictwo dotyczące klauzul „porządku publicznego” i „moralności publicznej” stanowią dla autorów punkt wyjścia do formułowaniu własnych tez i wniosków de lege lata i de lege ferenda. Autorzy umiejętnie opisywali także ww. klauzule oraz wykazywali ich ścisły związek z aksjologią konstytucyjną, podkreślając ich limitacyjny charakter oraz homeostatyczną rolę. DR HAB. PAWEŁ CICHOŃ, PROF. UJ, UNIWERSYTET JAGIELLOŃSKI
Uploads
fideikomisariuszom dochodzić spadków, które zostały już przyjęte przez
dziedziców. Niewątpliwym osiągnięciem senatus consultum Pegasianum było
stworzenie możliwości zmuszenia spadkobierców do przyjęcia spadku, przez co
uniezależniano samo istnienie uniwersalnego zapisu powierniczego od dobrej woli
dziedziców. Czy jednak całkowicie przełamano akcesoryjność fideicommissum
hereditatis? Poważny problem mógł się np. pojawić, gdyby spadkobierca zmarł
zanim doszło do aditio hereditatis. Wydaje się, że w I w. po Chrystusie nie znajdowano
jeszcze w tej sytuacji rozwiązania.
In a paper published in 2001 Wiesław Mossakowski claimed that Nicolaus Copernicus was an expert in Roman civil law. He was convinced he was right. Discoveries and findings made in the last decade have shed new light on the search for Copernicus’ activities as a lawyer. In fact, he was a typical in-house counsel, in the service of the cathedral chapter to which he belonged in the Duchy of Warmia. Much of Mossakowski’s paper has dated, but some of his intuitions have been confirmed. With his paper he was risking a lot, even ridicule but eventually turned out to be a visionary.
RESUMEN: Durante la pandemia, la ociosidad y la pereza han sido, con probabilidad, uno de los mayores desafíos para las sociedades, al menos del llamado “mundo desarrollado”. Si observamos la actual propagación de la vagancia, existen razones suficientes para intuir que en adelante seguirá constituyendo un verdadero y preocupante reto. Aunque la forma de combatirla no competa al ámbito del Derecho, debido al notorio decaimiento de los vínculos sociales y a la relajación del sentido de responsabilidad y de las obligaciones debemos, sin embargo, considerar las consecuencias jurídicas de la misma. La holgazanería, del mismo modo que otros marcos jurídicos, cómo el enriquecimiento injusto y el abuso de derecho-, es al mismo tiempo de sencilla y difícil delimitación terminológica.
A pesar de que el origen cotidiano de la vagancia clarifique su contenido, sin embargo, su descripción viene dificultada por la ausencia de una terminología fija e inequívoca. Lacuestión que se deriva de su estudio atiene a los desafíos que origina al derecho privadoy que pueden ser respondidos desde el derecho romano. Las fuentes jurídicas de la antigüedad equiparan la vagancia con el descuido y la negligencia, explicados como culpa en relación con la responsabilidad por daños, llegando a convertirse en canon de las expectativas de cumplimiento de las prestaciones contractuales. La indolencia, al menos en algunos casos, se define como el extremo opuesto dela diligencia. En el derecho privado, la vagancia tiene consecuencias económicas, que no siempre serán asumidas directamente por el propio indolente, al poder extenderse a los responsables de la persona o de la situación resultante, como puede ser el caso de un tutor o un vendedor. El estudio de las manifestaciones de la pereza estigmatizadas por el derecho nos invita a hacer un llamamiento para el fortalecimiento de la motivación para el trabajo persistente e incansable, entendido como virtud y practicado con sabia moderación.
1. A pope’s search for a correct conception of the human person in the writings of a pagan jurist – 2. Two ancient contexts of a pagan lawyer’s remark – 3. Ancient jurists on the question of introducing the presentation of law with the status of human beings – 4. The epoch and circumstances of the formulation of the statement hominum causa – 5. The author of the statement asserting the centrality of man in law – 6. The intellectual formation of Hermogenianus – 7. Date of creation of the works attributed to Hermogenianus – 8. The systematics of the presentation of the law in the times of Justinian – 9. Detailed analysis of the hominum causa passage – 10. Homo and persona as legacies of Roman civilization – 11. Hominum causa as an important message of Roman civilization.
fideikomisariuszom dochodzić spadków, które zostały już przyjęte przez
dziedziców. Niewątpliwym osiągnięciem senatus consultum Pegasianum było
stworzenie możliwości zmuszenia spadkobierców do przyjęcia spadku, przez co
uniezależniano samo istnienie uniwersalnego zapisu powierniczego od dobrej woli
dziedziców. Czy jednak całkowicie przełamano akcesoryjność fideicommissum
hereditatis? Poważny problem mógł się np. pojawić, gdyby spadkobierca zmarł
zanim doszło do aditio hereditatis. Wydaje się, że w I w. po Chrystusie nie znajdowano
jeszcze w tej sytuacji rozwiązania.
In a paper published in 2001 Wiesław Mossakowski claimed that Nicolaus Copernicus was an expert in Roman civil law. He was convinced he was right. Discoveries and findings made in the last decade have shed new light on the search for Copernicus’ activities as a lawyer. In fact, he was a typical in-house counsel, in the service of the cathedral chapter to which he belonged in the Duchy of Warmia. Much of Mossakowski’s paper has dated, but some of his intuitions have been confirmed. With his paper he was risking a lot, even ridicule but eventually turned out to be a visionary.
RESUMEN: Durante la pandemia, la ociosidad y la pereza han sido, con probabilidad, uno de los mayores desafíos para las sociedades, al menos del llamado “mundo desarrollado”. Si observamos la actual propagación de la vagancia, existen razones suficientes para intuir que en adelante seguirá constituyendo un verdadero y preocupante reto. Aunque la forma de combatirla no competa al ámbito del Derecho, debido al notorio decaimiento de los vínculos sociales y a la relajación del sentido de responsabilidad y de las obligaciones debemos, sin embargo, considerar las consecuencias jurídicas de la misma. La holgazanería, del mismo modo que otros marcos jurídicos, cómo el enriquecimiento injusto y el abuso de derecho-, es al mismo tiempo de sencilla y difícil delimitación terminológica.
A pesar de que el origen cotidiano de la vagancia clarifique su contenido, sin embargo, su descripción viene dificultada por la ausencia de una terminología fija e inequívoca. Lacuestión que se deriva de su estudio atiene a los desafíos que origina al derecho privadoy que pueden ser respondidos desde el derecho romano. Las fuentes jurídicas de la antigüedad equiparan la vagancia con el descuido y la negligencia, explicados como culpa en relación con la responsabilidad por daños, llegando a convertirse en canon de las expectativas de cumplimiento de las prestaciones contractuales. La indolencia, al menos en algunos casos, se define como el extremo opuesto dela diligencia. En el derecho privado, la vagancia tiene consecuencias económicas, que no siempre serán asumidas directamente por el propio indolente, al poder extenderse a los responsables de la persona o de la situación resultante, como puede ser el caso de un tutor o un vendedor. El estudio de las manifestaciones de la pereza estigmatizadas por el derecho nos invita a hacer un llamamiento para el fortalecimiento de la motivación para el trabajo persistente e incansable, entendido como virtud y practicado con sabia moderación.
1. A pope’s search for a correct conception of the human person in the writings of a pagan jurist – 2. Two ancient contexts of a pagan lawyer’s remark – 3. Ancient jurists on the question of introducing the presentation of law with the status of human beings – 4. The epoch and circumstances of the formulation of the statement hominum causa – 5. The author of the statement asserting the centrality of man in law – 6. The intellectual formation of Hermogenianus – 7. Date of creation of the works attributed to Hermogenianus – 8. The systematics of the presentation of the law in the times of Justinian – 9. Detailed analysis of the hominum causa passage – 10. Homo and persona as legacies of Roman civilization – 11. Hominum causa as an important message of Roman civilization.
It examines the lives of twenty-one central figures in Polish law with a focus on how their Christian faith was a factor in molding the evolution of law in their country and the region. The individuals selected for study exhibit wide-ranging areas of expertise, from private law and codification, through national public law and constitutional law, to international developments that left their mark on Poland and the world. The chapters discuss the jurists within their historical, intellectual, and political context. The editors selected jurists after extensive consultation with legal historians looking at the jurists’ particular merits, contributions to law in general, religious perspective, and period under consideration.
The collection will appeal to scholars, lawyers, and students interested in the interplay between law and religion. Political, social, legal, and religious historians, among other readers, will find, for the first time in English, authoritative treatments of essential Polish legal thinkers and authors.
The book is edited by Franciszek Longchamps de Bérier and Rafael Domingo.
§ 1. Prawnik a prawotwórca
§ 2. Wykształcenie nie tylko prawnicze
§ 3. Jedyny dyplom w życiu
§ 4. Problemy ze zdefiniowaniem prawnika
§ 5. Prawnik jako sprawny i godny zaufania administrator
§ 6. Typowe zainteresowania prawnika
§ 7. Prawnika sposób czytania książek
§ 8. Prawnicza formacja umysłu ścisłego
Rozdział II. Uczony prawnik niemal zapomniany
§ 1. Humanista i profesor prawa
§ 2. Wszechstronność i dojrzałość prawnika
§ 3. Uczony jako mistrz pytań zasadniczych
§ 4. Leczenie prawniczych kompleksów
§ 5. Prawnik zawsze komparatysta
§ 6. Zagadnienia prawniczych badań a napotykane problemy
§ 7. Życie prawa a realizm prawnika
§ 8. Studium prawa w rzeczypospolitej nauk
Rozdział III. Praca prawnika wobec próby czasu
§ 1. Kruchość elementów życiowego dorobku
§ 2. Pamięć własnego środowiska i bezpośrednich następców
§ 3. Otwarte pytania i najlepsi uczniowie
§ 4. Intuicja naukowa i podejmowane tematy
Rozdział I. jest w całości poświęcony Mikołajowi Kopernikowi.
The Roman law of succession, which was so well developed and dogmatically rich, evolved over many centuries. At different stages of its history it adopted many regulations concerning the same issues. Sometimes these solutions were vastly different from one another. All of them were thoroughly tested for their usefulness, perhaps with the exception of the ideas known from some of the imperial constitutions in late Roman law. The Roman law of succession thus constituted a jurisprudential framework of concepts. This framework can be treated as the language used for talking about the law of succession in general, irrespective even of which legal tradition the binding regulations derive from. Knowledge of the Roman law of succession – but not superficial knowledge, for example of selected regulations and only from a particular historical period in Roman law – allows any law of succession to be described: not only in mixed jurisdictions or in common law. Secondly, the Roman law of succession creates the framework for discussion about the law of succession and the regulations adopted by particular countries: about reforms, in the case of some countries, and building from scratch in the case of others. Thirdly, on account of the legal experience and specifically as a language of understanding, it offers great opportunities for the debate on the unification of the law of succession in Europe. It is difficult to overestimate the importance of the Roman experience, particularly in the area of the law of succession. Andrzej Stelmachowski’s students remember how he would tell them that one can only prove that the regulations pertaining to the area of the law of succession actually work in the third generation. Therefore the risk involved in creating new solutions is always substantial: and it is not easy to correct them. And then again, representatives of the younger generations who take part in the law-making process do not always remember what their predecessors had in mind; whereas lawyers are typically conservative, hence their unwillingness to change a law that is already familiar to them, including their reluctance to go back to using old regulations.
From the perspective of the history of the law of succession, the Roman regulations are not just well developed. We owe the dissemination of many solutions to Roman law. What I specifically have in mind here is the will, which was alien to ancient laws, including the oldest Greek law as well as Germanic law. Many other solutions only started to emerge as late as in Roman law. It was therefore not only more developed than the laws that preceded it, but it was also more advanced than many of the laws that came after it. In the Law of the Twelve Tables, the Romans already distinguished between testate and intestate succession. Testamentary freedom gained increasing importance in Roman law which is why this book is divided into two parts. The first part discusses the functioning of law in society in relation to claiming succession from the deceased, and the second deals with the legal conditions under which de cuius could decide about the fate of his estate in the event of his death. Therefore, in the first part, after presenting the general notions, I point to the values and principles of the law of succession, deal with the order of intestate succession and the fate of the estate after the testator’s death. The second part concerns the will: its external form, the internal requirements for disposing of the estate and the interpretation of wills.
The titles of both parts: ‘the Law’ and ‘the Testator’ point to the fulfilment of social expectations, which is so important in the law of succession, and the role of an individual as a legal entity. Two issues are involved here. The first one is understanding the law. To this end, nowadays we often make many distinctions, and European lawyers have been trying, since the Middle Ages, to formulate the law which was known to the Romans – who used it and, one could say, ‘had a ‘feel’ for it – into total formulas which describe the possible regulations theoretically and taking an overall viewpoint. In this, or in any other way, we compare and study legal history to understand our system better. The second issue pertains to man, since it is man that the law is in fact concerned with. This is connected with the tendency to create as many legal instruments as possible that enable his needs and expectations to be fulfilled. This is valued by lawyers, who like to have a lot to choose from and who are always looking for an alternative solution, because it may turn out to be better and more convenient.
Roman law should be included in analyses of comparative law. If these analyses are thorough and based on an understanding of the law and its mechanisms, aims, values and principles, and do not simply involve comparing clauses or consist in arguing to prove a hypothesis that has been formulated in advance – then they are aware of and they prove the great value of the experience of Roman law. The experience of comparative law extends the experience of Roman law, verifies it and points to the dead-end alleys into which one can be led if the precepts of Roman law are slavishly followed. Common efforts are of much greater practical use: deliberating about Roman law while always having the comparative context in mind; analyzing comparative law taking Roman law into account. Therefore I pay attention to the context of comparative law when I talk about the Roman law of succession. A serious problem lies in the fact that both specialists in Roman law and comparative law specialists find it difficult to raise the consciousness of specialists in contemporary private law, namely civil law dogmatists. Inasmuch as they like to look for support in other legal orders, and are thus open to the comparative perspective, they are reluctant to pay heed to historical arguments. It is difficult to hold this against them if those arguments are sometimes badly formulated or presented. After all, historical argumentation is concerned with the usefulness of legal experience and not about telling old tales or adopting old legal solutions.
This study examines the abuse of rights from the Roman law perspective but is this a valid objective given that the issue of the abuse of rights only came to the fore in the 19th century. Despite the prevalence of questions, concepts and theories on the subject over the last two hundred years of private law, there is still a lack of consensus as to what constitutes an abuse, even though certain solutions have been adopted either through judicial interpretations or the existing regulations of specific codifications. It would, therefore, seem appropriate to investigate Roman sources with a view to ascertaining how Roman society, with its exceptionally advanced legal system, perceived an abuse of a right as opposed to the legitimate exercise of one’s rights. It is also worth asking whether they perceived the abuse of rights as an issue and whether there are any indications in their private law of any reactions to such cases of abuse.
The starting point is an excerpt from Gaius’s Institutiones Gai 1.53 – in which the jurist states male nostro iure uti non debemus (we should not make improper use of our rights). After careful study of Gaius’s examples the book was divided into three parts, the first of which comprises Gaius’s testimony and which seems to provide a reliable basis for and a key to reviewing the reactions to the various types of conduct mentioned in the sources which could be interpreted as being an abuse of rights. These types of conduct are presented in part two which addresses issues such as limiting paternal authority, adoption procedures, and abuses within the law of inheritance. From these examples it was possible to form an opinion on how the Romans perceived the abuse of rights and to critically appraise the views held in contemporary literature, which are discussed in part three. Part three includes a discussion on the exceptio doli and the highly controversial question of the abuse of property rights and the abuse of rights in relationships with neighbours. However, this could not be discussed fully without understanding the significance of the maxim qui suo iure utitur neminem laedit, which was allegedly of Roman origin and has been invoked many times to refute the claim that Roman private law prohibited the abuse of rights.
In addressing why objections to the abuse of rights arose, pragmatic motives associated with public interests and a sense of justice were invoked. It is hard to assess the influence of philosophical argumentation, including that of stoicism or the potential contribution of Christianity, as anything other than additional support for the two major principles mentioned above. However, there was a tendency to react to any socially undesirable consequences arising from an absolute freedom to exercise one’s rights. If that tendency cannot be fully identified with social awareness, it must have arisen from a strong sense of reciprocity which was rooted in an instinctive sense of justice. Therefore, it would be hard not to look for the origins of that tendency in man himself. This would also explain why evidence of its continuous existence cannot be found in the law itself.
A characteristic feature of Roman law, in particular the archaic laws, was to grant extensive rights to citizens, without any explicit restriction as to their exercise. It would seem that this procedure was used to create the legal order, which cannot be classified as a ‘system’ in any historical period, not even under Justinian. This makes the question of the abuse of rights in the light of the Roman experience all the more interesting; despite the lack of restrictions on the exercise of one’s rights, there is no reason to believe that such rights were absolute. In discussing the abuse of rights, it is important to distinguish whether a right existed within a specific scope and whether there were any restrictions to its exercise. It is only by reference to the latter that the term ‘abuse of rights’ may be invoked if it is to retain its usefulness.
There is no doubt that the Romans were aware that there were restrictions on the exercise of their rights, although they did not develop any theory or general idea on the abuse of rights. The sources do, however, provide sufficient grounds to conclude that there was a prohibition against the wrongful use of one’s rights in Ancient Rome. But the question of what ‘abuse of rights’ actually meant to the ancient Romans still has to be unanswered. What should be borne in mind is that the reactions to the various types of conduct which could be deemed as being unwarranted freedom in the exercise of one’s rights sometimes took an institutionalised legal form, however, such cases should be put aside.
Roman private law used diverse legal means to prevent any absolute freedom to the exercise of one’s rights and to prevents the abuse of these rights. Therefore it is to be supposed that the prohibition to abuse one’s rights was treated as a limitation of various legal institutions. However, in the light of Roman history, the question of the abuse of rights cannot be encapsulated in an autonomous dogmatic figure; rather it points to the need to modify how the rights are actually exercised. This need seems to be part of any private law, being one of the driving forces of its development. Roman law clearly exemplifies this by reminding us that responses to the abuse of rights are in fact objections to the norms, or the manner in which they are interpreted, and which society no longer considers to be just, rational, useful or effective. This is how the term male used by Gaius in Gai 1.53 should be interpreted; it associates the abuse of rights with putting an end to the freedom to exercise one’s rights. Hence, Gaius’s observation that improper use should not be made of one’s rights (which is better understood on a historical rather than a dogmatic level) reveals in fact the need to find ways in Roman legislation to change both the conduct of the authorised parties and the legal order itself.
In looking to the solutions of the ancient Romans for points of reference to present-day discussions on the abuse of rights, it is worth thinking back to the statements made by Celsus and Gaius which enable us to assess the criteria adopted by the Romans for the abuse of rights. Although neque malitiis indulgendum est can be interpreted as evidence of critical objections to the abuse of rights, male nostro iure uti non debemus leaves no doubt that the Romans adopted a much broader perspective, which also took the objective aspect into account. It is in this vein that the Justinians (Institutiones I. 1.8.2) interpreted Gaius’ sentence as: expedit enim rei publicae ne quis re sua male utatur. If we take into consideration the reasons for prohibiting the abuse of rights, then it would be expected that the Roman legal order tended to respond on the basis of objective criteria.
By reviewing the sources it is possible to evaluate the views on the Roman attitude to the abuse of rights as formulated in contemporary studies of Roman law, and which have contributed to the development of the current regulations. For instance, it is plain that objections to the abuse of rights in ancient Rome were not merely restricted to the prohibition of chicanery. Nor were such objections limited to property rights, although any discussion on the abuse of basic rights leads to the question of how ownership rights should be perceived. Celsus’s and Gaius’s comments lead one to agree with the view expressed by Leon Piniński that some limitation in respect of ownership should not be treated as being exceptional. It should be seen as being fully consistent with the idea of ownership rights, and should be defined in such a way that it is an inherent part of the said rights.
There was a major difference between the Roman perception of abuse of rights and how it was interpreted during the reception of Roman law. In the Middle Ages, the ancient texts were referred to selectively and, because they were misinterpreted, the question of abuse of rights was reduced to aemulatio. The belief arose that the only type of conduct to be prohibited was that which fell formally within the exercise of one’s rights and whose only intention, although yielding no or only marginal profits to the given party, was doing damage to the other parties. This was the approach adopted in pandectism because it helped pave the way for making the problem of the abuse of rights a peripheral issue. The Romans’ attitude to the abuse of rights was clearly at odds with 19th century liberal and individualist tendencies, in particular the 19th century conception of unlimited ownership, as well as the notion of legal certainty. A liberal society maintained that it could create its own legal system basing on that very notion and on the power of the freedom of the individual. However, the concept of the abuse of rights coincided with a serious crisis, be it decline of these two values. The idea gained popularity towards the end of the 19th century and in the first half of the 20th century, when it became possible to clearly expose the inadequacy and decline of these two, otherwise elusive, liberal ideas. However, the Roman response to the abuse of rights proved that this issue became valid not only at a particular stage in the history of contemporary law. Roman private law shows that the ethical dimension, though not necessarily inherent in the law itself, can always be an important issue. Although it may at times be ignored, and at times deliberately rejected, it will sooner or later manifest itself in legal practice. And the issue of the abuse of rights will always remind us of the prevailing tension in any legal order, which requires that the law be compatible with justice.
The actual reform was carried out by the Senate on 25 August 55 by issuing the resolution on the initiative of Marcus Trebellius Maximus, who was consul together with Lucius Annaeus Seneca. The essence of the regulation was the transfer of inheritance actions from the heir to the universal fideicommissary. As a result of senatus consultum Trebellianum, the rights and duties of the inheritance were transferred directly and without undertaking individual acts. The fideicommissary obtained the status of an heir as a result of the actiones utiles, fideicommissaria hereditatis petitio, utile familiae erciscundae iudicium granted to him, and also as a result of the exceptio granted to the heir, in which he was released from any liability by indicating that the inheritance had been made over. This was not treated as the solutio of an obligation, but as an actual transfer of the succession. The fideicommissary thus became heredis loco rather than emptoris loco. Universal succession was achieved through the intermediation of the heir, who retained the title of heres irrespective of having made the inheritance over to the fideicommissary.
What was even more important was the fact that the heir accepting the inheritance was the condition for the existence of fiduciary bequest. This issue was addressed almost twenty years later – probably in AD 72, when – under the Emperor Vespasian’s rule, Plotius Pegasus and Lucius Cornelius Pusio Annius Messala were consuls. Senatus consultum Pegasianum introduced a procedure compelling the heir to accept the inheritance. At the motion of the universal fideicommissary, the magistratus issued a relevant order – iussum, on the basis of which the heir had to accept the inheritance. It was logical that in such case, he was exempt from any liability, which was transferred to the fideicommissary; based on the senates consultum Trebellianum, all claims were also transferred.
The initiators of the Pegasian resolution of the senate also wished to create an incentive to accept the inheritance voluntarily. Inspired by lex Falcidia, they wanted to ensure that the heir received one quarter of the hereditas. If this had been provided for by the testator – that is, when the testator imposed a universal fideicommissum not exceeding three quarters of the inheritance – senatus consultum Trebellianum was still applied. In such case, the heir was held liable for any debts on the part of the inheritance he retained. If the testator had not guaranteed one quarter of the net estate for the heir, senatus consultum Pegasianum granted the heir the right to keep it. At that moment, the issue of transferring rights and duties of reappeared resepectively to the part retained. If the heir did not exercise his right, but – in keeping with the testator’s wishes – handed over more than three quarters of the inheritance, then stipulations were applied that were modelled on those used in the event of the sale of the inheritance (venditio hereditatis). Taking this aspect into account, senatus consultum Pegasianum reinstated the regulation so that it was as before the Trebellian reform and the fideicommissary was again made emptoris loco. However, the situation was even worse if the heir himself decided to keep a quarter. In such case, the Pegasian resolution required the inclusion of stipulations as in case of a partial legacy (partito legata). Consequently, the fideicommissary was put in the place of the legatee under civil law. He was neither obliged nor authorized to participate in the court proceedings concerning the inheritance. In practice, the entire responsibility for any excessive debts encumbering the inheritance remained with the heir. He was not entitled to any recourse against the fideicommissary with respect to legacies paid, which resulted in the universal fideicommissum being considered “competitive” vis-à-vis other legacies.
The Pegasian resolution of the senate is another example in legal history of a justified legislative initiative which instead of ordering and improving the existing regulations caused commotion only because it had not been sufficiently well-thought out. Firstly, senatus consultum Pegasianum actually limited the testator’s freedom to dispose of property mortis causa to three-quarters of the inheritance. Secondly, allocating a quarter to the heir by virtue of the law led to effects that were contrary to the last wishes of the deceased. The consequences of applying the Pegasian resolution were, in practice, so complex that it would be difficult to expect that the testator had been able to predict who and what each person would have received from the inheritance. Thirdly, being promised a part of the inheritance was not really sufficient inducement to accept it, because in addition to the obvious – ostensible – benefit, the heir was held fully responsible for the debts. What is more surprising is the conservatism shown in maintaining all the adverse consequences of senatus consultum Pegasianum – changes were not introduced until Justinian’s Institutes. The Institutes maintained only the best solutions introduced by the Pegasian resolution of the senate: obligatory acceptance and delivery of the inheritance and the right to a quarter which were, however, subjected to the principles of senatus consultum Trebellianum.
The actual reform was carried out by the Senate on 25 August 55 by issuing the resolution on the initiative of Marcus Trebellius Maximus, who was consul together with Lucius Annaeus Seneca. The essence of the regulation was the transfer of inheritance actions from the heir to the universal fideicommissary. As a result of senatus consultum Trebellianum, the rights and duties of the inheritance were transferred directly and without undertaking individual acts. The fideicommissary obtained the status of an heir as a result of the actiones utiles, fideicommissaria hereditatis petitio, utile familiae erciscundae iudicium granted to him, and also as a result of the exceptio granted to the heir, in which he was released from any liability by indicating that the inheritance had been made over. This was not treated as the solutio of an obligation, but as an actual transfer of the succession. The fideicommissary thus became heredis loco rather than emptoris loco. Universal succession was achieved through the intermediation of the heir, who retained the title of heres irrespective of having made the inheritance over to the fideicommissary.
What was even more important was the fact that the heir accepting the inheritance was the condition for the existence of fiduciary bequest. This issue was addressed almost twenty years later – probably in AD 72, when – under the Emperor Vespasian’s rule, Plotius Pegasus and Lucius Cornelius Pusio Annius Messala were consuls. Senatus consultum Pegasianum introduced a procedure compelling the heir to accept the inheritance. At the motion of the universal fideicommissary, the magistratus issued a relevant order – iussum, on the basis of which the heir had to accept the inheritance. It was logical that in such case, he was exempt from any liability, which was transferred to the fideicommissary; based on the senates consultum Trebellianum, all claims were also transferred.
The initiators of the Pegasian resolution of the senate also wished to create an incentive to accept the inheritance voluntarily. Inspired by lex Falcidia, they wanted to ensure that the heir received one quarter of the hereditas. If this had been provided for by the testator – that is, when the testator imposed a universal fideicommissum not exceeding three quarters of the inheritance – senatus consultum Trebellianum was still applied. In such case, the heir was held liable for any debts on the part of the inheritance he retained. If the testator had not guaranteed one quarter of the net estate for the heir, senatus consultum Pegasianum granted the heir the right to keep it. At that moment, the issue of transferring rights and duties of reappeared resepectively to the part retained. If the heir did not exercise his right, but – in keeping with the testator’s wishes – handed over more than three quarters of the inheritance, then stipulations were applied that were modelled on those used in the event of the sale of the inheritance (venditio hereditatis). Taking this aspect into account, senatus consultum Pegasianum reinstated the regulation so that it was as before the Trebellian reform and the fideicommissary was again made emptoris loco. However, the situation was even worse if the heir himself decided to keep a quarter. In such case, the Pegasian resolution required the inclusion of stipulations as in case of a partial legacy (partito legata). Consequently, the fideicommissary was put in the place of the legatee under civil law. He was neither obliged nor authorized to participate in the court proceedings concerning the inheritance. In practice, the entire responsibility for any excessive debts encumbering the inheritance remained with the heir. He was not entitled to any recourse against the fideicommissary with respect to legacies paid, which resulted in the universal fideicommissum being considered “competitive” vis-à-vis other legacies.
The Pegasian resolution of the senate is another example in legal history of a justified legislative initiative which instead of ordering and improving the existing regulations caused commotion only because it had not been sufficiently well-thought out. Firstly, senatus consultum Pegasianum actually limited the testator’s freedom to dispose of property mortis causa to three-quarters of the inheritance. Secondly, allocating a quarter to the heir by virtue of the law led to effects that were contrary to the last wishes of the deceased. The consequences of applying the Pegasian resolution were, in practice, so complex that it would be difficult to expect that the testator had been able to predict who and what each person would have received from the inheritance. Thirdly, being promised a part of the inheritance was not really sufficient inducement to accept it, because in addition to the obvious – ostensible – benefit, the heir was held fully responsible for the debts. What is more surprising is the conservatism shown in maintaining all the adverse consequences of senatus consultum Pegasianum – changes were not introduced until Justinian’s Institutes. The Institutes maintained only the best solutions introduced by the Pegasian resolution of the senate: obligatory acceptance and delivery of the inheritance and the right to a quarter which were, however, subjected to the principles of senatus consultum Trebellianum.
The actual reform was carried out by the Senate on 25 August 55 by issuing the resolution on the initiative of Marcus Trebellius Maximus, who was consul together with Lucius Annaeus Seneca. The essence of the regulation was the transfer of inheritance actions from the heir to the universal fideicommissary. As a result of senatus consultum Trebellianum, the rights and duties of the inheritance were transferred directly and without undertaking individual acts. The fideicommissary obtained the status of an heir as a result of the actiones utiles, fideicommissaria hereditatis petitio, utile familiae erciscundae iudicium granted to him, and also as a result of the exceptio granted to the heir, in which he was released from any liability by indicating that the inheritance had been made over. This was not treated as the solutio of an obligation, but as an actual transfer of the succession. The fideicommissary thus became heredis loco rather than emptoris loco. Universal succession was achieved through the intermediation of the heir, who retained the title of heres irrespective of having made the inheritance over to the fideicommissary.
What was even more important was the fact that the heir accepting the inheritance was the condition for the existence of fiduciary bequest. This issue was addressed almost twenty years later – probably in AD 72, when – under the Emperor Vespasian’s rule, Plotius Pegasus and Lucius Cornelius Pusio Annius Messala were consuls. Senatus consultum Pegasianum introduced a procedure compelling the heir to accept the inheritance. At the motion of the universal fideicommissary, the magistratus issued a relevant order – iussum, on the basis of which the heir had to accept the inheritance. It was logical that in such case, he was exempt from any liability, which was transferred to the fideicommissary; based on the senates consultum Trebellianum, all claims were also transferred.
The initiators of the Pegasian resolution of the senate also wished to create an incentive to accept the inheritance voluntarily. Inspired by lex Falcidia, they wanted to ensure that the heir received one quarter of the hereditas. If this had been provided for by the testator – that is, when the testator imposed a universal fideicommissum not exceeding three quarters of the inheritance – senatus consultum Trebellianum was still applied. In such case, the heir was held liable for any debts on the part of the inheritance he retained. If the testator had not guaranteed one quarter of the net estate for the heir, senatus consultum Pegasianum granted the heir the right to keep it. At that moment, the issue of transferring rights and duties of reappeared resepectively to the part retained. If the heir did not exercise his right, but – in keeping with the testator’s wishes – handed over more than three quarters of the inheritance, then stipulations were applied that were modelled on those used in the event of the sale of the inheritance (venditio hereditatis). Taking this aspect into account, senatus consultum Pegasianum reinstated the regulation so that it was as before the Trebellian reform and the fideicommissary was again made emptoris loco. However, the situation was even worse if the heir himself decided to keep a quarter. In such case, the Pegasian resolution required the inclusion of stipulations as in case of a partial legacy (partito legata). Consequently, the fideicommissary was put in the place of the legatee under civil law. He was neither obliged nor authorized to participate in the court proceedings concerning the inheritance. In practice, the entire responsibility for any excessive debts encumbering the inheritance remained with the heir. He was not entitled to any recourse against the fideicommissary with respect to legacies paid, which resulted in the universal fideicommissum being considered “competitive” vis-à-vis other legacies.
The Pegasian resolution of the senate is another example in legal history of a justified legislative initiative which instead of ordering and improving the existing regulations caused commotion only because it had not been sufficiently well-thought out. Firstly, senatus consultum Pegasianum actually limited the testator’s freedom to dispose of property mortis causa to three-quarters of the inheritance. Secondly, allocating a quarter to the heir by virtue of the law led to effects that were contrary to the last wishes of the deceased. The consequences of applying the Pegasian resolution were, in practice, so complex that it would be difficult to expect that the testator had been able to predict who and what each person would have received from the inheritance. Thirdly, being promised a part of the inheritance was not really sufficient inducement to accept it, because in addition to the obvious – ostensible – benefit, the heir was held fully responsible for the debts. What is more surprising is the conservatism shown in maintaining all the adverse consequences of senatus consultum Pegasianum – changes were not introduced until Justinian’s Institutes. The Institutes maintained only the best solutions introduced by the Pegasian resolution of the senate: obligatory acceptance and delivery of the inheritance and the right to a quarter which were, however, subjected to the principles of senatus consultum Trebellianum.
Law and legal studies convince us that we do not have to be ashamed of dogma. They encourage us to develop dogmatic theology as the art of interpretation. And since the life of law and the craft of lawyers is essentially interpretation, it would probably be worthwhile for dogmatic theologians to become knowledgeable about legal methods. How can they accomplish this? First, they must become acquainted with the basic methods of legal interpretation: linguistic, systemic and functional. This will facilitate understanding and increase the self-confidence of those who, within dogmatic theology, come across expressions of a legal nature or significance. Second, they should look at a given regulation not only according to its dogmatic structure, but also taking into account the interpretative conclusions resulting from arguments of a historical or comparative nature. This will make it possible to place the discussed normative issues or solutions in their broader context. And this will in turn facilitate the evaluation of their efficiency, and, at times, enable theologians to predict a dogma’s development and prepare for possible changes or mutations in it.
There is no harm in dogmatic theologians tracing the critique of law, as this might give them more to say as regards the critique of dogmatic theology. This might also help them reinforce the credibility and scientific and cognitive nature of their own research. Thus, dogmatic theologians should not be afraid to consider their theses or research results from the perspective given by legal studies. Comparisons between the two fields are methodologically justified, as both fields develop in a parallel manner. It is appropriate for them to use each other’s instruments, and the relation between dogmatic theology and law, including legal studies, can be mutually beneficial. Law and legal studies can be treated as the useful mirror of dogmatic theology. Looking at law and legal studies from the perspective of dogmatic theology is a separate task from this, but could result in interesting descriptions, comparisons, and juxtapositions, and, in consequence, suggestions or reinforcement for legal arrangements.
niezbędnej elastyczności w stosowaniu klapy czy zaworu bezpieczeństwa, jaką w istocie stanowi zwłaszcza klauzula porządku publicznego.
KS. PROF. DR HAB. FRANCISZEK LONGCHAMPS DE BÉRIER, UNIWERSYTET JAGIELLOŃSKI
Temat tomu i tworzących go opracowań jest bardzo interesujący, ważny poznawczo i aplikacyjnie. Autorzy prac reprezentują różne środowiska naukowe oraz różne dyscypliny prawnicze, a istotną wartością przedstawionych analiz jest ich konkluzywność.
DR HAB. KRZYSZTOF MOTYKA, PROF. KUL,
KATOLICKI UNIWERSYTET LUBELSKI JANA PAWŁA II
Z dużym uznaniem należy odnieść się do zamiaru pomysłodawców omówienia problematyki „porządku publicznego” i „moralności publicznej” jako klauzul prawnych w ustawodawstwie polskim na tle rozwiązań prawnych Unii Europejskiej oraz prawa międzynarodowego. Prezentowana perspektywa umożliwia spojrzenie na tytułową problematykę w szerokim kontekście normatywnym. Pozwala także na uchwycenie źródeł oraz podobieństw polskich regulacji prawnych posługujących się ww. klauzulami do rozwiązań unijnych i międzynarodowych. Recenzowana książka ma charakter nowatorski, duże znaczenie poznawcze, nasycona jest wątkami i informacjami faktograficznymi, sprawnie łączy ustalenia literatury przedmiotu oraz dorobku judykatury zwłaszcza polskiego TK, SN, sądów administracyjnych oraz TSUE, co pozwala spojrzeć na tę problematykę nie tylko od strony teoretycznoprawnej, ale i praktycznej. Zaprezentowane definicje, rozważania teoretycznoprawne, a także orzecznictwo dotyczące klauzul „porządku publicznego” i „moralności publicznej” stanowią dla autorów punkt wyjścia do formułowaniu własnych tez i wniosków de lege lata i de lege ferenda. Autorzy umiejętnie opisywali także ww. klauzule oraz wykazywali ich ścisły związek z aksjologią konstytucyjną, podkreślając ich limitacyjny charakter oraz homeostatyczną rolę.
DR HAB. PAWEŁ CICHOŃ, PROF. UJ, UNIWERSYTET JAGIELLOŃSKI