The History of Polish Legal System from the 10th to the 20th century - ebook

Translator’s note

With its sheer size and staggering variety of historical and legal terms, spanning no fewer than ten centuries, this work will definitely remain in the present writers’ memory for a long time as a particularly demanding language test and one of their most challenging tasks so far. Generally speaking, the language used by lawyers is an occupation-specific terminology inextricably connected with the legal system which it describes. Depending on the country, it also tends to have certain culture-specific foibles such as extreme verbosity (Polish) or quaint archaisms (English). Despite problems with finding the appropriate vocabulary, we have still made our best efforts to produce a good translation. That is why we hope that The History of polish legal system, in its English version, will please English-speaking readers as much as it did Polish ones and contribute to a better knowledge of our legal system abroad.

In this brief note, we would like to explain the strategies and decisions which we have made in the course of our work on this book as a translators. Firstly, most of the historical vocabulary has been drawn from Norman Davies’ “God’s Playground,” a magnificent history of our country written in English, and “The Cambridge History of Poland,” edited by Oskar Halecki. Most legal terms have been supplied by Ewa Kucharska’s English translation of the Polish Civil Code and “Dictionary of Law Terms” by Ewa Myrczak-Kadłubicka, both of them an invaluable aid to a translator. When it comes to proper names (cities, countries, regions, people, political organizations), we have taken a three-pronged approach:

1. All place names (e.g. names of cities) are given in the language version of that country, to which they now belong, with all typographic marks included (e.g. Łódź, Piotrków, Orava, etc.), except in the case of those well-known place names which have a well-established English designation (e.g. Warsaw, Silesia, Vilnius, Cracow).

2. Those proper names which may be broken down into separately meaningful units have been translated (e.g. Wielkopolska as Greater Poland; Małopolska as Lesser Poland).

3. As the book mentions scores of different offices, functions, types of laws and documents in old Poland and then goes on to compare and contrast them with others, we have found it necessary, for reasons of clarity, to be as faithful to the original as possible and use approximate translations only when the context permitted (e.g. województwo as ‘voivodship’ rather than ‘province’ or ‘region,’ as the latter two serve to translate the Polish words prowincja and region, which the text clearly distinguishes from województwo). This might be considered a little awkward by some, but it enables us to avoid terminological confusion and has the benefit of bringing the foreign reader closer to Polish reality.

There is also the problem of culture-specific terms which seem to have no English counterpart at all, e.g. wilkierz, wyderkaf. These have been given in the German version (Willkür, Wiederkauf) because German words are more easily adaptable in English.

Sebastian Macieja

in cooperation with Piotr Kitowski and

Dawid Michalski,

August 4th, 2015Foreword

This textbook is an attempt to present the history of Poland’s state system and law from the earliest times up to the present. The material has been periodized in the traditional manner. In so doing, the basic criterion of division, which has been adopted, are the transformations of the form of the state. These would, as a matter of course, lead to transformations in the substance of court law. The greatest challenge for the scholar is to periodize the state system and the law in old Poland (up to 1795). The basis for the periodization of the state system was provided by Stanisław Kutrzeba in his “The History of the State System in Poland (1905)”, and elaborated by Juliusz Bardach in “The History of the State and Law of Poland” (1957). It is as follows:

a) the rise of tribal states and, subsequently, of the Polish state (8th century – mid-10th century);

b) patrimonial monarchy (mid-10th century – 1320), whereby that period may be further divided into early-feudal monarchy, up to 1138, and fragmentation;

c) estate monarchy (1320 – 1454); and

d) the nobles’ republic (1454 – 1795), divided into subperiods of noblemen’s democracy (1454 – 1652), magnate oligarchy (1652 – 1764) and the beginnings of constitutional monarchy (1764 – 1795).

Recently, Wacław Uruszczak has proposed a new periodization by dividing the history of the law and the state system in Poland into three periods: Piast Monarchy (966–1370), Kingdom of the Angevin and the Jagiellons (1370 – 1572) and the Commonwealth of Two Nations (1572 – 1795).

The starting point and time-span of some of these periods have stirred controversy to date. This is as a result of different evaluations of processes related to the state system and the law, even despite the adoption of similar criteria of systematization. It is far easier to systematize the history of the law in the old Polish period. The basis for that was created by Michał Bobrzyński, the author of “The History of Poland in Outline” (1877), who proposed the division of his native history into three periods:

a) primeval (up to 1241);

b) medieval (1241 – 1505), and

c) modern (1505 – 1795).

On that basis, Józef Rafacz created a division of the history of old Poland’s law into the following periods: medieval (up till the late 15th century, rightly assuming that sources concerning the history of the law up to the 13th century are extremely scanty) and modern (16th - 18th centuries). To do justice to the differing periodizations of the history of Poland’s state system and law up to 1795, a common denominator has been adopted for the purpose of this textbook, to allow discussing both these issues within almost completely overlapping periods. Such a solution, although far from perfect, is based on the practice adopted in the majority of textbooks.

Further periodization of the history of Poland’s state system and law offers no major difficulties, for it may be divided into the following periods:

a) rule of the partitioning powers, taking into consideration Polish state-like entities with partial sovereignty or autonomy (1772/1795 – 1918);

b) 2nd Republic of Poland and Polish territories under occupation (1918 – 1944/45); and

c) people’s government (1944/45 – 1989), subdivided into: People’s Poland (up to 1952) and People’s Republic of Poland (up to 1989).

It is worth noting, however, that adopting such a periodization of the history of the law is simplifying matters to some extent, as it conflicts with the time-periods, in which the partitioning powers’ codifications were in force.

This textbook takes advantage of Polish scholars’ research contained both in basic handbooks on the history of the Polish state system and law, as well as in monographs and specially focused studies.

The following has been done to make using this textbook easier: the text has been divided into smaller portions (chapters, paragraph, listings with Roman and Arabic numerals), and bold type has been used for the most important terms, petit print for remarks supplementing the main text; also, an index, genealogical charts, tables and graphs have been introduced.

The present text is intended for lecturing purposes. This justifies all the short-cuts and simplifications necessitated by the need to select from an enormous body of primary sources and literature. As a result, a number of issues have been given cursory treatment or only mentioned.

This book is a translation into English of my textbook entitled Historia ustroju i prawa sądowego Polski, published by C.H.Beck, Warsaw 1999, 2003, 2008, 2011 (476 pages).

Generally speaking, this publication is intended for Polish students who are studying law in English. It also attempts to popularize the history of Poland’s law abroad. For this, it is the first study of this kind in Poland available in English. This will help to bring the subject-matter closer to all readers in the world.

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I would like to give very special thanks for funding this publication to the Authorities of the University of Gdańsk – Rector prof. Bernard Lammek, Vice-Rector for Education prof. Anna Machnikowska, Dean of the Faculty of Law and Administration prof. Jakub Stelina, the Authorities of the Powszechna Wyższa Szkoła Humanistyczna “Pomerania” in Chojnice, especially President of the Board Collegium POMERANIA dr Janusz Daszkiewicz and Notary Office Piotr Jakub Lis.

Gdańsk, April 2015

Professor Tadeusz Maciejewski