Law and Christianity in Poland (Law and Religion) [1 ed.] 9781032019727, 9781032019765, 9781003181255, 1032019727

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Law and Christianity in Poland

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. Franciszek Longchamps de Bérier is Professor of Law and the Head of the Depart­ ment of Roman Law at the Faculty of Law and Administration of the Jagiellonian University in Kraków; he also teaches at the Faculty of Law and Administration of the University of Warsaw, Poland. Rafael Domingo is the Spruill Family Professor of Law and Religion at Emory University in Atlanta, Georgia, USA, and Alvaro d’Ors Professor of Law at the University of Navarra, Spain.

Law and Christianity in Poland The Legacy of the Great Jurists

Edited by Franciszek Longchamps de Bérier and Rafael Domingo

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, The Center for the Study of Law and Religion at Emory University; individual chapters, the contributors The right of The Center for the Study of Law and Religion at Emory University to be identified as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-032-01972-7 (hbk) ISBN: 978-1-032-01976-5 (pbk) ISBN: 978-1-003-18125-5 (ebk) DOI: 10.4324/9781003181255 Typeset in Galliard by Taylor & Francis Books

Contents

List of contributors Foreword

vii ix

JOHN WITTE, JR.

Introduction

1

FRANCISZEK LONGCHAMPS DE BÉRIER AND RAFAEL DOMINGO

1 Wincenty Kadłubek, Magister Vincentius (ca. 1150–1223)

16

GRZEGORZ J. BLICHARZ

2 Stanisław of Skarbimierz (ca. 1360/65–1431) and Paweł Włodkowic (ca. 1370/73–1435/36)

35

MICHAŁ KOWALSKI

3 Jadwiga of Anjou (1374–1399)

48

´ SKA KAROLINA WYRWIN

4 Mikołaj Kopernik, Copernicus (1473–1543)

64

FRANCISZEK LONGCHAMPS DE BÉRIER

5 Anna Jagiellon (1523–1596)

79

ANNA KARABOWICZ

6 Mikołaj Zalaszowski (1631–1703)

94

IZABELA LEWANDOWSKA-MALEC

7 Teodor Ostrowski (1750–1802)

110

SŁAWOMIR GODEK

8 Antoni Zygmunt Helcel (1808–1870)

124

DOROTA MALEC

9 Leopold Caro (1864–1939) MICHAŁ GIERYCZ

140

vi Contents . 10 Leon Petrazycki (1867–1931)

157

JAN RUDNICKI

11 Juliusz Makarewicz (1872–1955)

174

JAN RUDNICKI

12 Roman Longchamps de Bérier (1883–1941)

187

ADAM REDZIK

13 Stefan Wyszyn´ski (1901–1981)

202

MACIEJ MIKUŁA

14 Edward Grzymała (1906–1942)

217

WOJCIECH DAJCZAK

15 Zygmunt Ziembin´ski (1920–1996)

231

MACIEJ DYBOWSKI

16 Karol Józef Wojtyła, Pope John Paul II (1920–2005)

247

RAFAEL DOMINGO

17 Irena Malinowska-Kwiatkowska (1925–1994)

263

ANDRZEJ DZIADZIO

18 Andrzej Stelmachowski (1925–2009)

279

MAŁGORZATA KORZYCKA AND PAWEŁ WOJCIECHOWSKI

19 Henryk Kupiszewski (1927–1994)

294

GRZEGORZ J. BLICHARZ

20 Remigiusz Soban´ski (1930–2010)

310

MAGDALENA SITEK

Index

325

Contributors

Grzegorz J. Blicharz, Assistant Professor of Roman Law, Jagiellonian University, Kraków, Poland Wojciech Dajczak, Professor of Law and Head of the Department of Roman Law, Legal Traditions, and Cultural Heritage Law, Adam Mickiewicz Uni­ versity, Poznan´, Poland Rafael Domingo, Spruill Family Professor of Law and Religion, Emory Uni­ versity, Atlanta, Georgia, USA, and Álvaro d’Ors Professor of Law, University of Navarra, Spain Maciej Dybowski, Assistant Professor of Legal Theory and Philosophy, Adam Mickiewicz University, Poznan´, Poland Andrzej Dziadzio, Professor of Law and Head of the Department of Common History of the State and the Law, Jagiellonian University, Kraków, Poland Michał Gierycz, Professor of Political Science and Dean of the Faculty of Social and Economic Sciences, Cardinal Stefan Wyszyn´ski University, Warsaw, Poland Sławomir Godek, Professor of Legal History, Cardinal Stefan Wyszyn´ski Uni­ versity, Warsaw, Poland Anna Karabowicz, Lecturer of Roman Law, Pablo de Olavide University, Seville, Spain Michał Kowalski, Professor of International Law, Jagiellonian University, Kraków, Poland Małgorzata Korzycka, Professor of Law, University of Warsaw, Poland Izabela Lewandowska-Malec, Professor of Legal History and Head of the Department of History of Polish Law, Jagiellonian University, Kraków, Poland Franciszek Longchamps de Bérier, Professor of Law and Head of the Depart­ ment of Roman Law, Jagiellonian University, Kraków, and Visiting Professor, University of Warsaw, Poland

viii List of contributors Dorota Malec, Professor of Law and Head of the Department of the History of Administration and Law on Religious Denominations, and Vice President of the Jagiellonian University, Kraków, Poland Maciej Mikuła, Professor of Legal History and Law on Religious Denominations, Jagiellonian University, Kraków, Poland Adam Redzik, Professor of Legal History, University of Warsaw, Poland Jan Rudnicki, Associate Professor of Roman and Comparative Law and Head of the Department of European Legal Tradition, University of Warsaw, Poland Magdalena Sitek, Professor of Human Rights, Alcide De Gasperi University of Euroregional Economy, Józefów-Warsaw, Poland John Witte, Jr., Robert W. Woodruff Professor of Law, McDonald Distinguished Professor of Religion, and Director, Center for the Study of Law and Religion, Emory University, Atlanta, Georgia, USA Paweł Wojciechowski, Professor of Agricultural Law, University of Warsaw, Poland Karolina Wyrwin´ska, Assistant Professor of Roman Law, Jagiellonian University, Kraków, Poland

Foreword

This volume is another signature title in the book series on Great Christian Jurists in World History. This multivolume series presents the interaction of law and Christianity over the past two millennia, using intellectual biographies of one thousand major legal figures from biblical times until today. Commissioned by the Center for the Study of Law and Religion at Emory University, each volume in this series focuses on a specific country, region, or era and samples the life and work of a score or more of its greatest legal minds over the centuries. These figures include not only civil, common, and canon law jurists and judges but also theologians, philoso­ phers, and leaders of the church, state, society, and the academy. What commends each figure for inclusion in this series is their decisive contributions to legal ideas and institutions, their leadership in major legal reform or resistance movements, or their efforts to craft landmark constitutions, treatises, treaties, statutes, canons, or cases. Thus, familiar Christian jurists like Gratian, Grotius, Blackstone, Story, Kuttner, and Scalia appear in this series. But so do Augustine, Isidore, Aquinas, Calvin, Bonhoeffer, Maritain, and Romero. This biographical approach is not intended to deprecate institutional, doctrinal, social, or intellectual histories of law and religion, nor will it devolve into a nostalgic form of Christian confessional hagiography. It is, instead, designed to offer a simple method and common heuristic to study the interaction of law and Christianity around the world over the past two millennia. Columbia University Press opened this Great Christian Jurists series in 2006–07 with a three-volume work on Modern Christian Teachings on Law, Politics, and Human Nature, featuring nearly thirty modern Catholic, Protestant, and Ortho­ dox Christian figures. Cambridge University Press has published new titles on great Christian jurists and legal collections in the first millennium, as well as in English, Spanish, French, Lowlands, and American history. Routledge has taken up the Italian, Nordic, Welsh, Russian, and Latin American stories; Mohr Siebeck the German story; and Federation Press the Australian story. Forthcoming titles will cover great Christian jurists in the history of Scotland, Ireland, Austria, Swit­ zerland, Greece, and, eventually, various countries and regions in Eastern Europe, Central Eurasia, the Middle East, and Eastern, Western, and Southern Africa. In the present volume, two leading Catholic jurists and legal historians—Professor Franciszek Longchamps de Bérier (Jagiellonian University) and Professor Rafael Domingo (Emory University/University of Navarra)—have combined their talents

x

Foreword

and networks to create a brilliant new account of Law and Christianity in Poland: The Legacy of the Great Jurists. The volume features fresh, crisp essays commissioned from a score of leading experts on Polish law and religion, almost all of them Polish academics. The authors of these chapters have made these historical Polish jurists vividly present to us by translating their texts, terms, and ideas into accessible and authoritative forms for Anglophone readers. Twenty-one great legal, religious, and political figures in Polish history come to life in these pages. A fine editorial introduction sets these figures within the millennium-long tumultuous and sometimes tragic political and religious history of Poland. The collection begins with several medieval legal figures, including Master Vincentius, the twelfth-century father of Polish culture, language, and law. It also includes the powerful fourteenth-century Queen Jadwiga, whose pioneering work in support of church and state, and of religious and legal education led to her later canonization. Later leaders of church and state also come in for close analysis. Notable is sixteenth-century Queen Anna Jagiellon, a devout Catholic who strengthened Poland’s longstanding policy of granting freedom to all peaceable Catholics, Orthodox Christians, Protestants, and Jews. Her pioneering efforts were echoed and elaborated by several later Polish jurists and churchmen over the centuries, notably Cardinal Wyszyn´ski, a modern champion of religious freedom during the communist period as well as an exemplary Catholic pastor, canonist, and hierarch. Most of the other Polish figures put in the dock for investigation were major jurists and legal reformers of church or state. Included are studies of several jurists from the fourteenth to the nineteenth centuries—Stanisław of Skarbimierz, Paweł Włodkowic, Mikołaj Zalaszowski, Teodor Ostrowski, and Antoni Zygmunt Helcel—who together made major contributions to Polish public, private, penal, and procedural law as well as to international law, natural law theory, and the laws of war. Several case studies take up the leading jurists who helped Poland negoti­ ate the seismic shifts in its identity, population, and geography during the past two tumultuous centuries. These include Leopold Caro, who sought a religious via . media between communism and liberalism; Leon Petrazycki, a pioneer of women’s rights; and two great codifiers of modern Polish law: Juliusz Makarewicz and Roman Longchamps de Bérier. Included as well are studies of a quintet of major twentieth-century jurists—Zygmunt Ziembin´ski, Irena Malinowska-Kwiat­ kowska, Henryk Kupiszewski, Andrzej Stelmachowski, and Remigiusz Soban´ski— who helped Poland survive the brutality of Nazism and communism and helped the Polish people navigate to its current status as a vibrant state in modern Europe and a distinct bastion of Roman Catholicism in a region dominated by Protestantism, Orthodoxy, and post-Christian ideology. Almost all of the great Christian jurists included for study here will be new to nonspecialists in the English-speaking world. Two exceptional Polish figures are much better known, but readers may be surprised to see them counted among “great Christian jurists.” The first is Nicolaus Copernicus, the famous astronomer and polymath, who proved that the sun, not the earth, is at the center of the solar system, if not the universe. What is less known today is that Copernicus was also

Foreword xi an exceptional jurist in his time, who made an enduring contribution to the reform of the Polish church’s canon law as well as to economic law and monetary theory. The second figure is Cardinal Wojtyła, who led the Polish church and people in their political resistance to communism. Wojtyła is far better known to the world as Pope John Paul II. From 1978 to 2005, he led the Catholic Church in its transformative embrace of religious freedom, human rights, and democrati­ zation for all, as well as in promulgating the 1983 Code of Canon Law and the 1990 Code of Canons of the Eastern Churches that still govern much of the global Catholic world. Readers of these chapters will learn a great deal about the power, prescience, and pervasiveness of several distinct Polish legal ideas and institutions—concerning civil and criminal procedural rights, natural-law theory, rule of law, conflict of laws, constitutional monarchy, democracy, separation of powers, and the delicate balance of privileging the majority Roman Catholic Church and protecting various religious and cultural minorities. What has helped to make Polish law so distinctive is its remarkable legal eclecticism, and the ready transplantation and integration by inventive jurists over the centuries of various legal norms and procedures of indi­ genous legal traditions, European civil law, Anglo-American common law, and Russian and other Slavic legal systems. What has also helped to make Polish law so distinctive is the pervasive influence of Catholic teachings throughout the second millennium. Time and again, major historical legal figures brought to novel legal expression several fundamental Christian values—faith, hope, love, solidarity, inclusion, forgiveness, reconciliation, hospitality, charity, and respect for human dignity. It is no accident that it was late medieval Poland that opened wide its borders and communities to the many thousands of Jews who were driven from Western European lands during the shameful scourge of inquisition and pogrom. And it is no accident that Poland today has again opened its hearts and homes to hundreds of thousands of neighboring Ukrainians who are fleeing the brutal Russian genocide. It has been a joy for me to work with Franciszek Longchamps de Bérier and Rafael Domingo and the wonderful group of scholars who contributed to this volume. Professor Longchamps de Bérier is new to this series, and having seen him in action, my colleagues and I now covet further contributions from his learned pen and wide ken. Professor Domingo has been a stalwart in leading and editing several volumes on great Christian jurists in Spain, France, Italy, and Latin America, having earlier prepared a massive four-volume collection in Spanish on Juristas universales. On behalf of my colleagues in the Center for the Study of Law and Religion, I express my profound gratitude to these two distinguished editors. This volume was made possible by the generous support of the McDonald Agape Foundation. The editors join me in extending our deep gratitude to the foundation president, Peter McDonald, and its board members for their continued generous support of our center’s work on law and Christianity. I also join the editors in their kind acknowledgments and thanks to the many colleagues at the Jagiellonian University and at Emory University who contributed so generously to this project and volume. We all give abundant thanks to our Law and Religion

xii Foreword Center’s senior editor, Dr Gary S. Hauk, who again applied his brilliant editorial skills in polishing and pruning all of these chapters. It is a delight to publish this volume and several others in the distinguished Law and Religion series, edited by one of the world’s preeminent scholars of law and religion, Professor Norman Doe. Professor Doe and his many colleagues in the Cardiff Centre for Law and Religion have been vital trans-Atlantic allies with the Emory Center for the Study of Law and Religion. On behalf of the Center, I extend thanks for their leadership in this expanding global field of interdisciplinary legal study, and for their partnership with us in publishing this and parallel volumes on law and Christianity. Finally, I express warm thanks to Alison Kirk and her colleagues at Routledge for taking on this volume and applying their usual standards of excellence in their editing, production, and marketing. John Witte, Jr. Center for the Study of Law and Religion Emory University

Introduction The Volume and Its Purpose Franciszek Longchamps de Bérier and Rafael Domingo

This book explores the relations between Christianity and law in Poland through the biographies of the Christian jurists who shaped those relations. It is part of a more general project explained in the foreword by its lead editor, the Emory professor of law and religion John Witte, Jr. The volume examines the lives and the legal contribution of twenty-one Polish Christian jurists, divided into twenty chapters (Chapter 2 deals with two “parallel jurists”). All chapters have been written by distinguished legal scholars, social philosophers, and historians—most of them Poles—with particular attention to how Christian faith was a factor in molding the evolution of law through the life and work of our selected jurists. The category of Christian jurist encompasses any Christian person who has been dedicated to the cause of justice in its broadest sense and has had an extraordinary impact on the law and the legal system. To be a Christian jurist does not require a law degree or to have practiced law; rather, it means making a significant con­ tribution to law by illuminating legal systems and communities with Christian values. John Paul II, for instance, never studied law. Still, he was rightly called the pope of human rights because he defended them to the utmost, especially against the snares of totalitarian communism. Jadwiga of Anjou and Anna Jagiellon were not formally trained as jurists, but they were outstanding statespersons who left their imprint on public and private law. These three significant Polish figures— Wojtyła, Jadwiga, and Anna—are considered Polish Christian jurists in these pages. The volume is based on the intuition that specific human beings—flesh and blood—stand behind the significant developments and evolutions of law, as is true also in empirical science. Just as the story of the theory of relativity would not have begun without the Swiss patent office clerk Albert Einstein, in 1905 (Einstein’s annus mirabilis), so the concept of constitutional courts would not have taken hold in Western Europe in the 1920s without the legal philosopher and constitu­ tional law scholar Hans Kelsen. The biographical approach has great potential in legal science because it shows both the complexity and the ambiguity and even the accidental nature of secular legal systems. Lying behind rules and legal documents are facts and, beyond them, people. The who of the person always prevails over the what and the how. To the extent that legal actors are Christians and live according to the teachings of Jesus, DOI: 10.4324/9781003181255-1

2 Introduction the law and the legal system are imbued with and permeated by Christian values. The reason for this is that legal systems are simultaneously a whole unto them­ selves, and therefore autonomous, but also a part, and thus interdependent with other parts of society. Legal systems are a whole because they have their own language, rules, principles, penalties, and actors. This wholeness provides legal systems the autonomy required for their proper development. At the same time, however, legal systems are a part, since they are dependent on other legal systems and on other dimensions of reality (for example, the moral or the political dimensions). As Ronald Dworkin well explained, the interpretation of law must make use of moral principles, especially to resolve hard cases of legal uncertainty.1 Some legal conflicts and oppositions might be resolved in a superior dimension (for example, the moral dimension) and ultimately in the transcendent realm, which provides unity to reality. This explains, for instance, the influential role of Christian forgiveness in the resolution of legal conflicts that never would have been resolved simply by applying positive law.2 The selection of the jurists for inclusion in this volume was not an easy task. In a nation with a millennium-rich history, deeply marked by Christianity, one can find many more than twenty-one notable jurists who had a significant influence in Poland and abroad. The original selection was improved by the suggestions and comments of the Routledge reviewers and, of course, of all the contributors. More than half of the Christian jurists we chose for this volume lived in the past two centuries. This period of ferment and transformation produced more central legal figures than the rest of Polish history, as also happened, for instance, in Spain during its Golden Age.3 A second important fact that complicated the selection of jurists was that Poland has expanded and reduced its borders many times in history. Poland emerged as an independent political community in the tenth century in Western Slavic lands bounded by the Oder and the Bug Rivers, the Baltic Sea, and the Carpathian Mountains. At the end of the sixteenth century, Poland, as a part of the Polish-Lithuanian Commonwealth, stretched toward the east to Belarus and central Ukraine. Between 1772 and 1795, the Commonwealth was partitioned three times by the Habsburg monarchy (later Austrian Empire), the Kingdom of Prussia, and the Russian Empire, and Poland disappeared as a nation-state from the political map of Europe. Poland regained independence in 1918 after World War I. However, its borders were very different from the ones established before the partitions. After World War II, the Soviet Union retained the eastern Polish territories that the Soviets had occupied in 1939, but compensated Poland with western parts that had previously belonged to Germany. These boundaries have 1 See Ronald Dworkin, Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011), 405–07. 2 See Rafael Domingo, “Why Spirituality Matters for Law: An Explanation,” Oxford Journal of Law and Religion 8, no. 2 (2019): 326–34; and Rafael Domingo, “Body, Soul, and Spirit of the Law,” Oxford Journal of Law and Religion 7 (2018): 230–49. 3 See Rafael Domingo and Javier Martínez-Torrón, Great Christian Jurists in Spanish History (Cambridge: Cambridge University Press, 2018).

Introduction

3

remained unchanged to our day, covering an area of 312,696 square kilometers (120,733 square miles), with a population of over 38 million.

The Baptism of Poland and the Piast Dynasty (966–1370) A pre-Christian Poland never existed. Poland entered history suddenly when some western lands inhabited by the Slavs embraced Christianity. Christianity was brought to the region by Dobrawa of Bohemia, the daughter of Boleslaus I the Cruel, Duke of Bohemia, when Duke Mieszko I was baptized and married her in 966.4 The adoption of Christianity improved political relations with the German emperor Otto the Great (962–73). Just as Otto continued unifying German tribes into a single kingdom, the new center of Christian power in Gniezno and Poznan´ began to unite the Western Slavs living on the Oder and Vistula rivers. A mis­ sionary bishopric in Poznan´ was established in 968, with the agreement of both the pope and the German emperor. During the congress in Gniezno in 1000, a metropolis was established there with three new bishoprics in Wrocław, Kołobrzeg, and Płock. When, twenty five years later, Bolesław (967–1025), the second histor­ ical ruler of Poland, was crowned with papal approval, the new country could enjoy full recognition and independence in Christian Europe. To this period of Polish history, called the Piast Dynasty, belongs the first of our selected jurists: Wincenty Kadłubek, introduced by Grzegorz Blicharz in Chap­ ter 1. Kadłubek is considered the father of Polish culture. Educated in Paris and probably in Bologna, Kadłubek served as a priest and later as a bishop of Kraków. This position made him a renowned statesman and an active participant in political life. After serving as a bishop for ten years, he voluntarily abdicated to dedicate his life to contemplation in a Cistercian monastery. There he finished his Chronicle of the Poles. The stories, myths, and legends told by Wincenty Kadłubek are imbued with legal discourse, argumentation, and interpretation. Kadłubek proscribed convictions before guilt is proven, protected liberty against the abuse of the law, and was the first to apply the concept of a republic to the Polish state. His work demonstrates his genius and independence in using the legal heritage of ancient Rome. Kadłubek’s Chronicle had an enormous impact on Polish identity and tra­ dition. It was used, for instance, as a textbook at the Kraków Academy, established in 1364.

The Jagiellonian Dynasty (1386–1572) The youngest daughter of Louis of Anjou, ten-year-old Jadwiga was crowned king in Kraków, on October 16, 1384. One year later, as a result of the Union of 4 For an overview of the history of Poland in English, see Norman Davies, God’s Play­ ground: A History of Poland in Two Volumes (Oxford: Oxford University Press, 2005); and Jerzy Lukowski and Hubert Zawadzki, A Concise History of Poland, 3rd ed. (Cambridge: Cambirdge University Press, 2019). The Encyclopia Britannica provides excellent entries and overviews on Polish history and culture: www.britannica.com/

4 Introduction Krewo, the kingdom expanded to the north and east through the arranged mar­ riage between Jadwiga and the Lithuanian Great Duke Jogaila, or Władysław Jagiełło. Jogaila was baptized and married Jadwiga in February 1386, and he was crowned jure uxoris (by the right of his wife) king of Poland in March 1386, inaugurating the Jagiellonian dynasty. Poland was transformed into a kingdom ruled over by two sovereigns: Jadwiga and Jogaila. This personal union marked the starting point of four centuries of shared history between Poland and Lithua­ nia. The Polish and Lithuanian relationship went through several stages until a Polish-Lithuanian Commonwealth was finally established in 1569, with the official name Rzeczpospolita, a Polish translation of the Latin res publica. A holy woman, a founder, and a patroness, Queen Jadwiga, or Hedwig, of Anjou (1374–1399) is introduced in Chapter 3 by Karolina Wyrwin´ska. Jadwiga’s diplomacy, sponsorship, work, and persistence led her to promote and strengthen the union between the two Commonwealth countries. Jadwiga was committed to both faith and reason, appreciating all the intellectual ways of organizing public and private life in her realm. She renewed the Kraków Academy and was successful in her efforts of establishing there a school of theology in 1400. Her con­ temporaries loved and respected her, and she became an inspirational model for generations to come. John Paul II canonized Jadwiga in Kraków on June 8, 1997. Then the Polish pope said: She knew that the strength of both State and Church have their origin in the Nation’s thorough education; that the path to the State’s welfare, sovereignty, and recognition in the world passes by way of thriving Universities. Hedwig was also well aware that faith seeks rational understanding, that faith needs culture and forms cultures, that faith lives in a world of culture.5 Jadwiga’s contemporaries were Stanisław of Skarbimierz (ca. 1360/65–1431) and Paweł Włodkowic (1370/73–1435/36), introduced in Chapter 2 by Michał Kowalski. They both were university scholars, lawyers, and diplomats who served the interests of the Polish Crown. They both elaborated original and progressive views known as the Polish fifteenth-century law of war doctrine. Their juridical legacies were created in the context of the conflict between Poland and the Teu­ tonic Order. The two jurists advocated for peaceful methods of conversion to Christianity and rejected the Teutonic Order’s belief in forcing nonbelievers in Eastern Europe to convert. Their fresh approach to religious tolerance resonated in the future Polish political and legal tradition—for instance, in the sixteenthcentury policy of religious pluralism and tolerance in Poland, which resulted in providing shelter to various religious minorities. This was unique in Europe. As Kowalski shows, Stanisław of Skarbimierz and Paweł Włodkowic’s views on peaceful coexistence and equality between Christian and non-Christian, the right of nonbelievers to own property, and state sovereignty, as well as their just-war 5 John Paul II, “Raduj sie˛ , Krakowie, oddaja˛ c hołd s´wie˛ tej Pani Wawelskiej,” L’Osser­ vatore Romano 7 (1997): 56.

Introduction

5

theory, resemble the intuitions and ideas that Francisco de Vitoria, founder of the School of Salamanca, would articulate a hundred years later. At the end of the Jagellonian dynasty, roughly in the sixteenth century, during the Renaissance, Poland experienced its Golden Age, becoming one of the largest kingdoms of Europe. The Commonwealth stretched from modern Estonia in the north to Moldavia in the east and Bohemia in the west. Its population exceeded eleven million. Polish became the common language, a lingua franca, of Central and Eastern Europe. In Chapter 4, Franciszek Longchamps de Bérier approaches Nicolaus Coperni­ cus (1473–1543), the latinized form of Nicolas Koppernik or Mikołaj Kopernik, as a Christian jurist who embodied all the Polish Renaissance ideals. For many read­ ers, this fresh approach will be new and unexpected. The most internationally recognized Pole in history, Copernicus was a mathematician, astronomer, physi­ cian, artist, governor, diplomat, and economist—a true polymath. Still, he was also a canon and a church jurist, and therefore he belongs to our story. As Longchamps de Bérier explains, Copernicus used legal maxims and rules, looked for useful distinctions, identified legal concepts, and perceived definitions as normative sources. He was a true lawyer. A privileged actor and witness of the entire Polish Golden Age was Queen Anna Jagiellon (1523–96), introduced in Chapter 5 by Anna Karabowicz. Anna Jagiel­ lon was a great queen and stateswoman and a talented manager. For her con­ temporaries and biographers, she evoked associations with the English Queen Elizabeth I. If Jadwiga was an enlightened worshiper and skillful diplomat at the time of the Western Schism, Anna Jagiellon developed a similar role in the era of the Protestant Reformation. She patronized culture and art and supported finan­ cially the university in Kraków. Anna Jagiellon observed the rise in popularity of the faiths of the Reformation and the conflicts that arose, but she also saw how the laws guaranteeing religious peace were established. Anna Jagiellon, a devout Catholic, respected the coex­ istence of other faiths. She knew and personally worked with Lutheran, Calvinist, and Orthodox Christians. She wholeheartedly loved her only niece, also named Anna, a Swedish princess who professed Lutheranism. More or less consciously and actively, Anna found herself at the center of the political machinations in the election of three successive Polish-Lithuanian rulers. Her support probably influ­ enced the decision to elect Henry de Valois, who did not keep his word to marry Anna. Although crowned as the king of Poland and grand duke of Lithuania in 1573, Henry secretly fled from Kraków just after he learned about the death of his brother, the king of France. Henry de Valois became Henry III of France in 1574, and he reigned there until his assassination in 1589. Anna married a Hungarian duke, Stephen Bathory, in 1576. Stephen became the next king of Poland, and after his death, Anna successfully called to the throne her nephew Sigismund Vasa, who later became also the king of Sweden. Both Polish queens—Jadwiga and Anna Jagiellon—provide us a good oppor­ tunity to introduce law and Christianity of their respective periods not only in Poland but also throughout Central Europe. The chapters concerning them also

6 Introduction allow us to present ambitious and educated lawyers-politicians of the era, such as Jan Zamoyski (1542–1605), who acted in the best decades of the Polish expan­ sion under the Jagiellonian dynasty.

The Polish-Lithuanian Commonwealth (1572–1795) In 1569, the Union of Lublin, immortalized by painters such as Marcello Bacciarelli and Jan Matejko, established the Polish-Lithuanian federation, an elective monarchy in which all the nobles (szlachta) of the Commonwealth were entitled to elect the king directly (viritim). Under that system, the nobles enjoyed many civil rights and legal privileges, controlled the Polish Parliament (the Sejm), and limited the power of the elected king. Unlike in many European countries, an absolute monarchy never was established in Poland. Overwhelmed by the horrors of the 1572 St. Bartholomew’s Day Massacre in France, and to overcome the objection of Polish Protestants to the election of Henry de Valois as king, the Polish Parliament signed the Warsaw Confederation on January 28, 1573. This act granted religious tolerance to nobility and free persons within the dominant Catholic Polish-Lithuanian Commonwealth and protected all non-Catholic denominations without exception, proving that no one enjoyed such liberty as the Poles did: And since there is in our Rzeczpospolita considerable disagreement caused by the Christian religion, then, to prevent lest any sedition ever so detrimental, such as we clearly see in other realms, be initiated amidst the people for this very reason, and thus we do hereby mutually promise to ourselves and to our descendants, and forever, under oath, by faith, honor, and our consciences, that we who be religious shall preserve the peace between ourselves and shed no blood out of differing faith and practices in the churches, nor penalize one another by confiscation of goods, denial of honor, or incarceration and exile.6 The well-known Polish principle of general consent (unanimous rule) and free speech in the Polish Parliament was established already in the sixteenth century, at least at the beginning of the Republic of the Two Nations.7 In the second half of the seventeenth century, however, the system of general consent started to evolve into an affirmation of individual opinion, when the paralyzing effect of free veto (liberum veto) began to be exploited. Instead of motivating the search for approval down to the last deputy, this right served to oppose one piece of legislation and potentially derail the entire parliamentary session for the slightest fear of gradually 6 The document text of the Warsaw Conference is available both in Polish and English at: https://polishfreedom.pl/en/document/the-warsaw-confederation. On reli­ gious freedom in Poland, see Grzegorz J. Blicharz, Alejandra Vanney, and Piotr Roszak, eds., The Battle for Religious Freedom: Jurisprudence and Axiology (Warsaw: IWS, 2020). 7 See Anna Grzes´kowiak-Krwawicz, Queen Liberty: The Concept of Freedom in the PolishLithuanian Commonwealth (Leiden: Brill, 2012), 55.

Introduction

7

strengthening royal power. This deformed version of liberum veto further devel­ oped into the symbol of anarchy in the eighteenth century. The famous British statesman and writer Edmund Burke described the situation this way: A king without authority; nobles without union or subordination; a people without arts, industry, commerce, or liberty; no order within; no defense without; no effective public force, but a foreign force, which entered a naked country at will, and disposed of everything at pleasure.8 In 1772, Russia, Prussia, and Austria signed a treaty that partitioned Poland. The country lost approximately half of its population and almost one-third of its land. To protect the Commonwealth, on May 3, 1791, the Parliament adopted its first national written constitution for the Polish-Lithuanian Commonwealth, which banned the liberum veto and other harmful institutions. Burke vigorously praised these Polish reforms.9 However, despite this and other challenging reforms, Poland succumbed to the neighboring foreign powers and disappeared as a nation-state after the second partition in 1793 and the third in 1795. Influenced by Enlightenment philosophes Rousseau and Montesquieu, the 1791 Polish Constitution is considered the first written national constitution in European history (the 1791 French Constitution was adopted some months later) and the second oldest in the world, after the 1789 U.S. Constitution. Over the 123 years of partitions, the 1791 Polish Constitution helped keep alive the Polish aspiration for political unity as one nation-state. Two Christian jurists witnessed the decline of the Polish-Lithuanian Common­ wealth: Mikołaj Zalaszowski (1631–1703), introduced by Izabela LewandowskaMalec in Chapter 6, and Teodor Ostrowski (1750–1802), presented by Sławomir Godek in Chapter 7. Zalaszowski and Ostrowski were both priests and lawyers. Zalaszowski lived in the second half of the seventeenth century, and Ostrowski in the second half of the eighteenth century. As a person committed to academic life in Kraków and later in Poznan´, Zalaszowski was an expert in the law and author of seminal law books. In Latin, he wrote about canon law, public law, and procedural law. He performed comparative research on the laws of the Polish-Lithuanian Commonwealth and universal laws, which included Roman law and canon law, against the backdrop of other legal systems, namely, the Saxon, French, Dutch, Italian, and Spanish laws. Zalaszowski’s intellectual efforts were overshadowed later by Teodor Ostrowski’s scholarship. Ostrowski wrote in Polish and translated into his mother tongue important parts of William Blackstone’s hugely influential treatise on English law, Commen­ taries on the Laws of England. Making his notes to the Commentaries, Ostrowski developed a program of reforms for Polish criminal law in the spirit of 8 Edmund Burke, “Appeal from the New to the Old Whigs,” in The Writings and Speeches of Edmund Burke, ed. P. J. Marshall and Donald C. Bryant, vol. 4 (Oxford: Oxford University Press 2015), 462. 9 Ibid., 464.

8 Introduction humanitarianism. His book on civil law, published twice in the 1780s, was the first attempt to scientifically frame Polish judicial law into a systematic whole in the Polish language. It became no less influential than Wincenty’s Chronicle centuries earlier. For decades, even after the partitions of the Polish-Lithuanian Common­ wealth, Ostrowski’s work was the basis for teaching law in secondary schools and academic centers. It remains a precious source for researchers of old Polish law from before the codification era.

Partitioned Poland (1795–1918) The three partitions of Poland (1772, 1793, 1795) and the Napoleonic wars in Central and Eastern Europe (1806–13) led to the imposition of a variety of the Western legal systems on the territories of the former Polish-Lithuanian Com­ monwealth. Russia, Austria, and Prussia, but also France, applied their legislation to Poland; as a result, the production and development of a genuine Polish legal system collapsed. Polish jurists, however, had enormous interest in comparative law, especially German legal thought and French codification, and they success­ fully explored the proper equilibrium between the Polish legal tradition and imported foreign law. In 1815, the Congress of Vienna reconstituted the European political order after the downfall of Napoleon. Russia received most of the Napoleonic Duchy of Warsaw, which was converted into a new Kingdom of Poland, ruled by the Rus­ sian tsar. The French civil code, traditionally called the Code Napoleon, con­ tinued, however, to be applied by Poles in the territory of the former Duchy of Warsaw. The Free City of Kraków was incorporated into the Habsburg Empire. In the west, the Grand Duchy of Poznan´ was abolished by the 1848 Prussian Con­ stitution and replaced by the Province of Posen, in contradiction to the provisions of the Treaty of Vienna. The collapse of statehood, which lasted 123 years, made Poles look for other means to determine their community and identity. The Polish language was, of course, one of those means, but the Christian faith turned out to be even more critical. Poland is based not only on the territory but on the Christianity of Poles who live all over the world. This explains their deep spiritual patriotism, which transcends any national territorialism. Catholicism as a characteristic of Poles was also strengthened by the opposition arising from a sense of separateness and dif­ ferentiation from Orthodox Russia and Protestant Prussia. Only one Christian jurist represents this partitioned period: Antoni Zygmunt Helcel (1808–70), presented by Dorota Malec in Chapter 8. A legal historian of state and law, Helcel devoted his life to academia and political activity. He saw con­ servatism not only as a refuge for the Catholic Polish nation in times of oppression, but also as a source of strength and self-confidence necessary for the recognition of Polish rights and the restoration of the Polish state. Influenced by Friedrich Carl von Savigny, the founder of the German historical school, Helcel conceived of legal sys­ tems as organic expressions of any national consciousness (Volkgeist). Helcel’s research focused on Polish legal traditions and political perspectives for Poles in the

Introduction

9

nineteenth century. He brought the tradition of civil law to Poland during the parti­ tions, since Poland, unlike Lithuania, had deliberately rejected the civil-law tradition as an alien legal heritage developed by despotic rulers.

Independence Regained and Lost (1918–45) At the end of the First World War, Poland gradually reemerged as a sovereign state. In the Treaty of Versailles of June 1919, the Allied Powers confirmed the restoration of an independent Poland. Between 1918 and 1921, Poland consolidated its territory in a series of border wars or plebiscites to become a cohesive nation-state. In 1922 the League of Nations recognized the new Polish territory. On February 20, 1919, a provisional constitution (the Small Constitu­ tion) was approved and remained in force until the final constitution was adop­ ted on March 17, 1921. This 1921 Constitution, inspired by the French Constitution of the Third Republic, established a parliamentary democratic republic securing control over the government and protecting a long list of civil liberties and rights. The Constitution guaranteed freedom of conscience and religion to all citizens while it privileged Catholicism. In accordance with Article 114, “The Roman Catholic religion, being the religion of the preponderant majority of the nation, occupies in the state the chief position among enfran­ chised religions.” The independence regained by Poland created not only an opportunity but also a necessity to prepare its own codifications for the unification of law. Along with the Constitution, the new codes of criminal procedure (1928) and civil procedure (1930), the Penal Code (1932), the Code of Obligations (1933), and the Com­ mercial Code (1934) created the foundations of a new and unified Polish legal system far removed from the variety of legal systems and codes inherited from the partitions era. The first jurist from this critical period of Polish history is Leopold Caro (1864–1939), analyzed by Michał Gierycz in Chapter 9. A lawyer of Jewish origin and an ardent Polish patriot, Caro dealt with social philosophy and the role of law, seeking a third way between social collectivism and liberal capitalism. As Gierycz explains, Caro was a pioneer in his approach to immigration, a pro­ moter of solidarism among economists, and an advocate of natural law in the era of legal positivism. The second jurist from this period is the Polish-Russian jurist and legal philo­ . sopher Leon Petrazycki (1867–1931), studied in Chapter 10 by Jan Rudnicki. Internationally considered one of the forerunners of the sociology of law and a . promoter of women’s rights, Petrazycki was born in the Mogilev Governorate in the Russian Empire (now Belarus), graduated from the University of Kyiv (now Ukraine), and received his doctoral degree from Saint Petersburg (now Russia). He was the first professor of sociology of law at the University of Warsaw, where he committed suicide in 1931. Despite the tragic manner of his death, he merited . a Catholic funeral. Whether or not Petrazycki should be considered a Christian jurist, as Rudnicki points out at the end of his chapter,

10 Introduction is not easy to answer; however, it can be said with full justification that he was a legal theorist and social thinker who simply saw and emphasized the great importance of Christ and his disciples and regarded their teaching as a force that changes people and societies for the better. The next two jurists of this period are two eminent Polish law professors from Lwów, who successfully drafted codifications: Juliusz Makarewicz (1872–1955), again studied by Jan Rudnicki in Chapter 11, and Roman Longchamps de Bérier (1883–1941), introduced by Adam Redzik in Chapter 12. Makarewicz codified criminal law, and Longchamps de Bérier codified the civil law of obligations. The latter was a legal positivist, while the former created his own, original, and coher­ ent system of legal philosophy, in which the peculiarly understood law of nature played a key role with the very Christian concept of free will. Their works outlived them by decades: the 1932 Penal Code and the 1933 Code of Obligations became testimonies to the originality of Polish legal thought. Roman Longchamps de Bérier was murdered along with his three adult sons by German officers during the massacre of Lwów professors on July 4, 1941. He remains one of the most renowned Polish jurists of the twentieth century. The occupation and new division of Poland by Nazi Germany and the com­ munist Soviet Union during World War II (1939–45) is one of the most tragic and brutal periods of history, not only for Poland but for humanity. During the occupation, both invaders tried to eradicate the Polish nation and culture through a massive and cruel genocide. The rule of law was superseded by the rule of terror. As a result, Poland lost more than six million citizens, mainly ethnic Poles and Jews, roughly a fifth of the country’s prewar population. Out of that number, nearly 5.4 million Polish citizens were victims of war crimes or crimes against humanity, including 150,000 during the Soviet occupation. To honor all the victims of the Nazi and Soviet genocide, we chose our last Christian jurist of this period, Edward Grzymała (1906–1942), studied by Woj­ ciech Dajczak in Chapter 14. A canon lawyer and Roman Catholic priest, Edward Grzymała was imprisoned in the Sachsenhausen concentration camp and died at Dachau concentration camp, near Munich, in 1942. In 1999, he was beatified by Pope John Paul II as one of the 108 martyrs of World War II. Dajczak analyses Grzymała’s research on the ratio sacra in canonical and civil marriage in the con­ text of the modernization of law in Poland in the interwar period.

Poland Under Communism (1945–89) Despite the work of the Polish resistance movement during the Second World War and the diplomatic endeavors of the Polish government in exile to set up a democratic Polish state at the end of war, under the Yalta and Potsdam agree­ ments Poland was partitioned once again, and its eastern territories were trans­ ferred to the Soviet Union. A communist regime was established in Poland within its new borders. The communist government expropriated land and nationalized business, industry, and commerce. As a satellite socialist state in the sphere of the

Introduction

11

Soviet Union, Poland adopted a temporary constitution in 1947 (the Small Con­ stitution), and a final one in 1952 after handwritten corrections by Josef Stalin. The 1952 Constitution was amended, among other occasions, in 1976, 1989, and 1992. The 1952 Constitution renamed the Republic of Poland the Polish People’s Republic. Based on the so-called principle of unity of state power instead of the traditional separation of powers, the 1952 Constitution granted the leading poli­ tical role to the Communist Party and working people. It established brotherly relations with the Soviet Union. We selected as Christian jurists of this period two prelates of the Catholic Church who advocated for human rights and religious freedom under the com­ munist regime, and three professors of law who defended Christian values against totalitarian values. The two prelates are Cardinal Stefan Wyszyn´ski (1901–81), introduced by Maciej Mikuła in Chapter 13, and Karol Józef Wojtyła, later Pope John Paul II (1920–2005), studied by Rafael Domingo in Chapter 16. A national hero and a spiritual leader for Christian Poland during tyranny, repression, and persecution under the communist government, Stefan Wyszyn´ski, primate of Poland, was a champion of religious freedom. He was imprisoned for three years by the communist regime. He repeatedly asked Poles to forgive the war crimes and communist repression as the best way for reconstructing Poland. In 1978, Wyszyn´ski played a crucial role in urging Cardinal Wojtyła to accept his election as pope. Cardinal Wyszyn´ski died of abdominal cancer on May 28, 1981, just as John Paul II was recovering from the assassination attempt in Saint Peter’s Square on May 13, 1981. Karol Wojtyła is the second-best-known Pole in the world, next to Copernicus. An ardent defender of human rights, especially the rights to life and religious liberty, John Paul II saw in human dignity and solidarity the two great levers for advancing the development of legal systems. Influenced by Saint Thomas Aquinas, Max Scheler, Gabriel Marcel, Edith Stein, and Jacques Maritain, among others, John Paul II understood the law as a necessary ethical component in the project to revitalize the world of culture and social justice in Christ, placing faith at the service of reason and reason at the service of faith. At the beginning of the 1980s, John Paul II endorsed the workers’ movement known as Solidarity (Solidarnos´c´), which laid the ground­ work for a peaceful transition to democracy in Poland in 1989. From the period of communist Poland, we also selected three Christian legal scholars: Zygmunt Ziembin´ski (1920–96), introduced by Maciej Dybowski in Chapter 15; Irena Malinowska-Kwiatkowska (1925–94), introduced by Andrzej Dziadzio in Chapter 17; and Henryk Kupiszewski (1927–94) introduced by Grzegorz Blicharz in Chapter 19. Zygmunt Ziembin´ski was an internationally recognized legal philosopher and logician, and the founder of the Poznan´ school of legal theory. He approached law as a system of norms of conduct and authored relevant books such as Practical Logic (1976) and Basic Problems of Jurisprudence (1980). Although Zygmunt Ziembin´ski was a Roman Catholic as well as a jurist, Maciej Dybowski discusses whether Ziembin´ski can be described as a true Christian jurist. Dybowski argues that Ziembin´ski remained in agreement with Christian doctrine, though he

12 Introduction formulated his views not in a religious language but rather in the language of the classical tradition while stressing the importance of the voice of conscience. Irena Malinowska-Kwiatkowska was a prominent legal historian and leading figure in Kraków. Her research in Italian, French, and Russian history of private, family, and criminal law occupies a place of honor in Polish historical and legal historiography after the Second World War. She maintained her academic inde­ pendence in communist Poland, despite extreme political and administrative pres­ sure, being one of the first women law professors. The last selected jurist of this period, Henryk Kupiszewski, was a Roman-law scholar, papyrologist, moral philosopher, and diplomat. Kupiszewski took advan­ tage of his international reputation as a Roman-law scholar to develop academic relationships with the Western world during the communist dictatorship. When Poland was being politically transformed (1989–94), Kupiszewski was appointed the first ambassador of the newly established Third Polish Republic to the Holy See. Kupiszewski argued that European legal culture is a combination of tradition and progress. Tradition focuses on what is consistent in the history of European law. Progress, however, focuses on essential changes, like those introduced by Greek philosophy, Roman law, and Christianity.

The Third Republic (1989–2020) After the communists lost the 1989 elections, the 1952 Constitution was amen­ ded to rehabilitate relevant Polish institutions such as the Senate and the pre­ sident’s office. In 1992 Poland adopted a new Small Constitution based on the separation of powers. The final Constitution of 1997 was modeled on the stan­ dards of Western constitutionalism. The 1997 Constitution introduces a strong parliamentary government, establishes a system of checks and balances, enhances judicial review, recognizes and protects a broad range of civil rights and liberties, and provides for civilian control over the military. The Constitution prohibits political parties inspired by Nazism, fascism, or communism. Following some Western models (Austria, Germany, Italy, Spain), the Constitutional Court is endowed with the adjudication of the constitutionality of laws and norms passed by other branches, as well as adjudication of individual violations of constitutional rights. In the preamble, the 1997 Constitution mentions that Polish culture is “rooted in the Christian heri­ tage of the nation and in the universal human values.” And the preamble concludes by calling for paying respect to “the obligation of solidarity with others.” These two statements synthesize the Polish spirit of the law. Poland now is a middle-power country, part of NATO (1999), and a member of the European Union (2004), with the sixth-largest economy in the European Union. Poland remains one of the most religious countries in Europe, and Roman Catholicism continues to be one of its hallmarks of national identity. We selected two Christian jurists of this current period of Polish history: Andrzej Stelmachowski (1925–2009), introduced by Małgorzata Korzycka and Paweł Wojciechowski in Chapter 18, and Remigiusz Soban´ski (1930–2010), pre­ sented by Magdalena Sitek in the last chapter. Andrzej Stelmachowski was a social

Introduction

13

activist, a politician, and a brilliant author of classics of Polish civil and agricultural law. He was able to integrate the dimensions of faith and reason harmonically, drawing abundantly on the social teaching and moral theology of the Catholic Church. Remigiusz Soban´ski was a theorist of church law and a notable judge of ecclesias­ tical courts. A priest, he became the president of the Academy of Catholic Theology. In fulfilling his academic mission, he kept his distance from the representatives of both secular and ecclesiastical authorities, both in times of totalitarianism and then in times of social and political transformations. Soban´ski was a friend of Stelmachowski and Kupiszewski. The three jurists manifested a great love and respect for the law and the academic freedom that they were able to transmit to the next generation of Polish lawyers.

Conclusion: The Polish Contribution to the Global Legal Culture Poland stands out considerably on the international scene for its contributions to music (Frédéric Chopin) and literature (Adam Mickiewicz), astronomy (Copernicus), mathematics (Stefan Banach, Stanisław Ulam), and chemistry (Marie SkłodowskaCurie, Jan Czochralski). The Polish contribution to legal culture is of lesser scope. Still, that contribution is also worthy of recognition, as it offers some precious lessons, particularly in constitutional law, international law, and human rights, especially religious freedom. Poland, for instance, has a long tradition of protect­ ing the peaceful coexistence of religions; it became one of the first countries to introduce universal women’s suffrage (1918). Following the Solidarity move­ ment, Poland was the first country in Central and Eastern Europe to recover fundamental civil rights and liberate itself from communism (1989). The Polish contribution to legal culture is the result of many factors, including geography, history, and a culture deeply rooted in Christianity. The geographically strategic location of Poland has allowed it to serve as a bridge between Western and Eastern Europe and between Latin and Orthodox Christianity. Poland’s central location and close contact with many other Slavic and non-Slavic groups allowed it to expand its borders until it became one of Europe’s dominant powers, and then to be partitioned and extinguished as a sovereign nation-state between 1795 and 1918. Poland’s geographical position forced it to develop a flexible, open, consensual, and receptive legal culture. From its origins, Poland has fostered collaborative ties with other nations through diplomatic relations and has prioritized international law, reli­ gious toleration, and equality between pagan and Christian states. Polish jurists, such as Stanisław of Skarbimierz and Paweł Włodkowic, preceded Francisco de Vitoria’s revo­ lutionary approaches to the law of nations in areas related to just war, methods of warfare, and the moral responsibility to resist executing orders that violate justice. Just as the Polish language contains numerous words borrowed from other languages, such as Czech, Latin, German, Hungarian, Italian, Turkish, French, and Russian, so Polish law borrows institutions, legal concepts, and categories from other legal systems, such as French law and German law. In the newly reunified Poland of 1918, for instance, the Polish authorities applied five different

14 Introduction civil laws at the same time, depending on the areas: the French civil code, the Austrian civil code (ABGB), the uncodified Hungarian civil law, the Russian civil compilation (Svod Zakonov), and the German civil code (BGB). This open atti­ tude to the legal regimes of other nations has also allowed Poland to handle complex legal situations successfully and to become a pioneer in domestic conflicts of law, comparative law, and international law. The unique history of Poland includes fighting among medieval tribes, Christiani­ zation, expansion, a Golden Age, decline, collapse, invasion and partition, uprisings against foreign empires, the Great Emigration, European wars, national rebirth, the Second World War, Nazi invasion and occupation, deportations to Siberia, com­ munism, and democracy. Poland has left the world with probably the most dramatic and heartbreaking images in the history of humanity (Auschwitz and the destruction of Warsaw), showing how far human barbarism can go when the human being is dehumanized, submerged in hatred, or trapped by an insatiable desire for dominance and power, as happened during the Nazi German invasion of Poland. The tragic history of Poland teaches legal actors how vital it is for a legal system to be established and applied, following justice and the common good rather than the interests of a powerful state machinery. The history of Poland encourages legal systems to respect the necessary and inalienable connection between morality and law, recognize natural moral law and the notion of solidarity as a limit of positive law, and protect the dignity of the human person and human rights with all the legal instruments at their disposal. Polish history proclaims to legal and political actors the need and value of lim­ iting the personal power of the sovereign. Poland developed a parliamentary system that avoided absolutism and promoted for centuries an elective kingship by the “grace of God and the will of the nation.” Polish law was a pioneer in the application of crucial aspects of the rule of law: In Polonia, non rex est lex, sed lex est rex (In Poland, the king is not the law, but the law is king). Polish law also was a defender of the doctrine of habeas corpus through the application of the medieval rule (1430–33) neminem captivabimus nisi iure victum (We shall not imprison anyone who has not been defeated by law). This privilege guaranteed due process to the Polish nobility (centuries later extended to all citizens) even before the English Habeas Corpus Act was promulgated in 1679. Poland was also one of the first countries in Europe to eliminate torture. Finally, Christianity is linked to Poland from its origins as an independent duchy in Central Europe to our day. To deal with the founding of Poland is to deal with a Christian event, the so-called Baptism of Poland in 966, with enormous histor­ ical consequences. But one thousand years later, the fall of communism and the democratization of Poland in 1989 can also be considered a Christian event, led spiritually by one of the universal Poles: Pope John Paul II. If Christianity is inherent to Polish culture, canon law is also intrinsic to Polish legal culture. Canon law influenced the compilation of Polish customary law (for example, the Statute of Wis´lica), private law (wills and donations), criminal law (the doctrine of personal liability), procedural law (evidence and appeals), and constitutional law (the principle of royal power), among other areas.

Introduction

15

In a broader sense, Christian values, such as hope, respect, solidarity, inclusion, and forgiveness, illuminate the Poles and frame their legal system. Poland has survived as a nation because Poles love their country heroically as a fatherland, and in their suffering they found a purpose. They fought for their independence and (golden) freedom. The Polish priest Maximilian Kolbe, who sacrificed his life for another man in Auschwitz, became a symbolic icon of love and forgiveness to the enemies. In 1939, Nazi Germany invaded Poland and partitioned the country with the Soviet Union. Today, Germany and Poland are allies and partners in NATO and the European Union. These days, legendary Polish solidarity is giving the world an example of supporting Ukrainian refugees during the Russian inva­ sion of Ukraine, making Poland worldwide a solidary temple of freedom, respect, and human dignity. All these values constitute the spirit of the Poles and their law. And this coura­ geous spirit is embodied in very different ways and under very other historical circumstances in the twenty-one Christian jurists introduced in this volume.

Recommended Reading Blicharz, Grzegorz J., Alejandra Vanney, and Piotr Roszak. The Battle for Religious Free­ dom: Jurisprudence and Axiology. Warsaw: IWS, 2020. Brzezinski, Mark. The Struggle for Constitutionalism in Poland. London: Palgrave Mac­ millan, 1998; reprint 2000. Ciancia, Kathryn. On Civilization’s Edge: A Polish Borderland in the Interwar World. Oxford: Oxford University Press, 2001. Davies, Norman. Heart of Europe: The Past in Poland’s Present. Oxford: Oxford University Press, 2001. Davies, Norman. God’s Playground. A History of Poland in Two Volumes. Oxford: Oxford University Press, 2005. Frost, Robert I. The Oxford History of Poland-Lithuania. Volume 1: The Making of the Polish-Lithuanian Union, 1385–1569. Oxford: Oxford University Press, 2015. Kłoczowski, Jerzy. A History of Polish Christianity. Cambridge: Cambridge University Press, 2000. Lukowski, Jerzy, and Hubert Zawadzki. A Concise History of Poland. 3rd ed. Cambridge: Cambridge University Press, 2019. Plassart, Anna. “Edmund Burke, Poland, and the Commonwealth of Europe.” The Histor­ ical Journal 63, no. 4 (2020): 885–910. Maciejewski, Tadeusz. The History of Polish Legal System from the 10th to the 20th Century. Warsaw: C. H. Beck, 2016. Siekanowicz, Peter. “Christianity and Law in Poland: A Thousand Years.” The Quarterly Journal of the Library of Congress 23, no. 4 (1966): 321–331. Wagner, Wenceslas J. Polish Law through the Ages. Stanford, CA: Hoover Institution Press, 1979. Zamoyski, Adam. Poland: A History. London: William Collins, 2015.

1 Wincenty Kadłubek, Magister Vincentius (ca. 1150–1223) Grzegorz J. Blicharz

Introduction—Why Start with Wincenty? Wincenty was a lawyer, but neither his life nor his works were limited to the study of law. On the contrary, to his contemporaries, to later generations, and to us now, he was the first Polish historian (Cronicam Polonorum confecit), a great scholar (vir literatissimus in toto mundo), a devotee of God (et Deo devotus),1 and, above all, the father of Polish culture2 and indeed of national identity.3 Undoubtedly, with reference to his training, he was the first Polish jurist known to us who contributed to Polish legal scholarship. His outstanding literary work, the Chronicle of the Poles (Chronica Polonorum sive Originale Regum et Principum Poloniae), confirms that he was a jurist4 not only by training but also by his per­ sonal passion, one who shared his legal knowledge with great intelligence and inventiveness. Reading the Chronicle will be most gratifying for one trained in Roman law and indeed for any lawyer. The legal aspect brings Wincenty closer to us. For a modern-day lawyer it is a real joy to discover that the foundational work of Polish culture is based on legal discourse, fundamental legal categories, case studies, and considerations that not only are valid but also have essentially lost nothing of their relevance. It is hardly surprising that Wincenty’s Chronicle became a textbook at the Kraków Academy, established in 1364, and had a sentence-by-sentence com­ mentary devoted to it (the first was issued in the fifteenth century by Jan z

1 “Rocznik małopolski” [yearbook of Lesser Poland of the fifteenth century], in Monumenta Poloniae Historica, ed. August Bielowski, vol. 3 (Lwów: Gubrynowicz i Schmidt, 1878), 162. 2 John Paul II, “List pasterski na 200 rocznice˛ beatyfikacji Wincentego Kadłubka (1964),” in Nauczyciel i Pasterz. Listy pasterskie—Komunikaty —Zarza˛dzenia 1959–1978, ed. M. Jagosz (Rzym: Os´rodek Dokumentacji Pontyfikatu Jana Pawła II, 1987), 100. 3 Stefan Wyszyn´ski, “Wychowawca narodu polskiego. Kazanie Prymasa Wyszyn´skiego z okazji Jubileuszu dwóchsetlecia beatyfikacji Wincentego (1964),” reprint in Artur Lis, “Błogosławiony Wincenty Kadłubek w eksplikacji nauczania Prymasa Stefana Wyszyn´skiego,” Pedagogia Ojcostwa 2 (2011): 285–90. . 4 Zenon Kałuza, Lektury filozoficzne Wincentego Kadłubka. Zbiór studiów (Warsaw: Instytut Tomistyczny, 2014), 11.

DOI: 10.4324/9781003181255-2

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Da˛ brówki). The Chronicle served at the Jagiellonian University in Kraków not only for lectures on Polish history but also for teaching rhetoric.5 Despite its almost obsessively legal approach to issues, it is clear that the work was in fact intended not as a legal treatise but as a narrative of the rebirth of the Kingdom of Poland, and of the foundation of the cultural consciousness of the Poles at the turn of the twelfth and thirteenth centuries.6 Using the Chronicle, Poles were to learn history on the basis of a native work, and for this reason it was written not as a typical chronicle would be but as a story about the deeds of brave Poles (aureas patrie columpnas … omnimoda honestatis insingnia ex maiorum exemplaribus velut).7

The Chronicle—Story Fueled by Legal Discourse Full of myths, legends, and images, Wincenty’s Chronicle effectively shaped the identity of the Poles. As scholars of Wincenty’s work suggest, he designed the Chronicle as the Polish chanson de geste, the Polish gesta.8 In a so-called Jakub’s manuscripts of the Chronicle on the back parchment-bound card, we read that the Chronicle is egregium opus de gestis Polonorum (excellent work on the deeds of the Poles).9 Lawyers have the good fortune that Wincenty was of their profession, and his story—their story—is grounded in legal thinking. As Oswald Balzer explains, authors of other works of the period similar in respect to Wincenty’s Chronicle took liberty to fill them with the knowledge they received in a thorough educa­ tion. In his Historia, Richer of Reims, a monk and physician of the tenth century, depicts in four volumes “the conflicts of Gauls” (congressus Gallorum) and the rise of the Capets on the throne of France, and he fills the narrative with his medical knowledge. In De arte fidei catholicae, Alanus of Lille, a theologian and poet of the twelfth century and a contemporary of Wincenty, relies heavily on mathema­ tical knowledge.10 With regard to the literary currents that influenced Wincenty, it must be noted that he does not draw exclusively on the French epic poetry of the time. His work 5 Janusz Sondel, “Rola ‘Kroniki’ Wincentego zwanego Kadłubkiem w upowszechnianiu prawa rzymskiego w s´redniowiecznej Polsce,” Zeszyty Prawnicze UKSW 11, no. 1 (2011): 64. 6 Darius von Güttner-Sporzyn´ski, “Bishop Vincentius of Cracow and His Chronica Polonorum,” in Writing History in Medieval Poland: Bishop Vincentius of Cracow and the ‘Chronica Polonorum,’ ed. Darius von Güttner-Sporzyns´ki, Cursor Mundi 28 (Turnhout: Brepols, 2017), 1. This volume is one of the most important contributions to the topic of Wincenty Kadłubek available to an international audience in recent years. Moreover, D. von Güttner-Sporzyn´ski is preparing the first English critical edi­ tion of the Chronica Polonorum. 7 “[to praise] the golden pillars of the homeland … all signs of nobleness are reflected in the examples of the ancestors”: Chronica Polonorum, Prologue 2–4. 8 Oswald Balzer, “Studyum o Kadłubku,” part I, in Pisma pos´miertne Oswalda Balzera, vol. I (Lwów: Towarzystwo Naukowe, 1934), 552. 9 Monumenta Poloniae Historica, ed. August Bielowski, vol. 2 (Lwów: self-published, 1872), 214. 10 Balzer, “Studyum,” 555–56.

18 G. J. Blicharz exhibits a great similarity in aim—that is, regarding the way they wanted to influ­ ence the audience—and even a slight convergence in content, with the works of Geoffrey of Monmouth, who was active in the first half of the twelfth century.11 That English chronicler—a master at Oxford whose influence also extended to French territories—effectively created the historical narrative of the English by distilling images of the sons of Albion—King Lear, King Arthur, and Merlin. Geoffrey’s work has been criticized for being unhistorical and fictionalized, yet he has told for all time the story of the Brythonic-English (that is, British Celts). Just as effectively, and facing similar criticism, Wincenty has told us Poles our own history of Krak (Grakch) the founder of Kraków; Princess Wanda, our her­ oine, who defended Kraków against the “Alamann tyrant” (the Alemanni); the Lechites; and even the Wawel Dragon.12 Unlike Geoffrey and other European historians of the time, however, he did not seek the roots of the Poles in Troy or in the descendants of the Romans. His genius led him to use the Athenian topos contained in Plato’s Timaeus, affirming that the Poles had always had their place in Europe—they did not come from elsewhere but had always lived in Kraków and on the Vistula.13 And yet, as regards the legal content of the Chronicle, it is nevertheless Roman law that heavily feeds the storyline. Rome and Athens fused with a Christian background are what constitute the mindset of the first Polish lawyer. Wincenty defies categorization, and the flourishing research on his work in recent years14 confirms the truth of his statement at the beginning of the Chroni­ cle, where he compared his work to ginger (Non enim sapit gingyber nisi masti­ catum), the full flavor of which is savored only with chewing and the passage of time. It may turn out that for some it proves too burning, while others will appreciate its pleasant, refreshing aroma, but everyone must admit that it has a unique flavor. The issue that will engage us here, in particular, is whether the Chronicle, which is saturated with legal knowledge and erudition, has left in our consciousness as Poles certain lasting legal principles that influence our identity and culture. After all, the aforementioned legends are found only in the first book, while all four books of the Chronicle accompany us with their legal discourse. However, it is not only the significance of the Chronicle we are concerned with but also that of the person of Wincenty himself, with respect to the legal and Christian heritage of the Poles.

11 Jacob Hammer, “Remarks on the Sources and Textual History of Geoffrey of Mon­ mouth’s Historia Regum Britanniae, with an Excursus on the Chronica Polonorum of Wincenty Kadłubek (Magister Vincentius),” Bulletin of the Polish Institute of Arts and Sciences in America 2 (1943–1944): 501–64. 12 Juan Antonio Álvarez-Pedrosa, “Cracow’s Foundation Myth: An Indo-European Theme through the Eyes of Medieval Erudition,” The Journal of Indo-European Stu­ dies 37 (2009): 6–11. . 13 Kałuza, Lektury, 38–43. 14 Artur Lis, Wincenty Kadłubek—bibliografia (Sandomierz: Wydawnictwo Armoryka, 2019).

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Biographical Introduction Wincenty Kadłubek is a colorful figure as far as his Chronicle and deeds in public affairs are concerned, but quite secretive when it comes to basic information about his personal life. In the contemporary sources he is always known as Wincenty (Vincencius, Vincentius), and the surname Kadłubek (Kadlubonis) comes from a later (and also great) Polish chronicler, Jan Długosz. Wincenty was the first Polish magister (graduating before 1189), educated in Paris and probably in Bologna (1170s/1180s), the first Polish chronicler, the first provost of the Sandomierz Cathedral (1191/1194), the first bishop freely elected to the Kraków see by the Kraków Cathedral Chapter and the pope, not by secular power (1208), a participant in the first Polish delegation to the Fourth Lateran Council (1215), the first to light the vigil lamp before the Blessed Sacrament, and the first to call Poland res publica. Finally, he was the first bishop of Kraków to voluntarily abdicate in order to join the Cistercian Order (1218), becoming the first Pole in the oldest Cistercian monastery in Poland, in Je˛ drzejów (formerly Brzez´nica, founded in the middle of the twelfth century), composed exclusively— apart from Wincenty—of French monks.15 Indeed, he was the first known light of Western culture illuminating the beginnings of Polish statehood16—the conjuror of the Polish soul. In him, as in a vital, generative spark, the light of the later his­ tory of Poland was already contained. In his work, today’s scholars find their own roots and better understand his legacy. The lives of many whom we meet in this present volume are foreshadowed by Wincenty’s own life—as bishop and histor­ ian, monk and poet, spiritual director and lawyer, church reformer and notary, magister and benefactor. We know that Wincenty died on March 8, 1223, and was buried in the mon­ astery of Je˛ drzejów, retaining his bishop’s pallium.17 However, his date of birth is still uncertain. That Wincenty could not feasibly have been born earlier than 1145 is evidenced by the fact that it was only in that year that Piotr Włostowic, belonging to the mighty Łabe˛ dz´ family from Lesser Poland, brought the relics of Saint Wincenty to Poland, or more precisely to Wrocław, an event that con­ tributed to the spread of the name of that Spanish saint throughout Poland. Thus, Wincenty was also one of the first in Poland to bear this name.18 Quite sig­ nificantly, he became the first Polish Wincenty to be beatified by the Catholic . 15 Klemens S´ wizek, “Błogosławiony Wincenty Kadłubek,” in Polscy S´wie˛ ci, vol. 2, ed. J. R. Bar (Warsaw: ATK, 1983), 38. 16 Lars Boje Mortensen, “Philosophical Learning on the Edges of Latin Christendom: Some Late Twelfth-Century Examples from Scandinavia, Poland, and Palestine,” in Medieval Analyses in Language and Cognition: Acts of the Symposium, the Copenhagen School of Medieval Philosophy, January 10–13, 1996, ed. Sten Ebbesen and Russell L. Friedman (Copenhagen: Kgl. Danske Videnskabernes Selskab, 1999), 309. 17 Maciej Zdanek, “Wincenty Kadłubek w klasztorze cystersów w Je˛ drzejowie,” in Dziedzictwo Wincentego Kadłubka. Cystersi—miasto—region od s´redniowiecza do współczesnos´ci, ed. Krzysztof S´lusarka (Kraków: Towarzystwo Wydawnicze “Historia Iagellonica,” 2018), 96. . 18 S´wizek, “Błogosławiony,” 13.

20 G. J. Blicharz Church, in 1764. The heroic picture of Włostowic and his fellow countrymen painted by Wincenty in his Chronicle, most probably indicates that Wincenty belonged to the family of the Łabe˛ dz´ and not to the Lis family. That Wincenty could not have been born later than the 1150s is evidenced by the almost photo­ graphic account in his chronicle of the 1180 synod of Łe˛ czyca (in which it is commonly assumed he must have participated), and also by the very detailed account of the assumption of power by Casimir the Just in 1177. Wincenty’s Chronicle plays an invaluable part in any sketch of his biography.

Sub Testimonio Vincentij Magistri—A Jurist We meet Wincenty for the first time outside the Chronicle in a ducal document in which he is called Vincentius magister. He is a witness in a document dated April 12, 1189, issued by Casimir the Just, Duke of Kraków, in favor of the chapter of Saint Wenceslaus Cathedral in Kraków.19 That Wincenty was also the editor of this legal document is evident from the style of the writing, and above all from the erudite references to Roman law, so reminiscent of the style of his Chronicle. Oswald Balzer, in his monumental study of Wincenty, points out that the question of Wincenty’s magisterium, and therefore of his foreign studies, deter­ mines our understanding of the character of the Chronicle; conversely, it is from the Chronicle that all Wincenty’s studies can be inferred. It turns out that the key to the fundamental question of whether Wincenty studied in Paris or Bologna is his knowledge of Roman law, and investigation into the way Roman law was taught in these two centers of learning. We learn of his deep knowledge of Roman law from numerous passages that he took directly from the originals, reworked, and then creatively and intelligently used. He is more of a Roman law scholar than a canonist—the number of his borrowings from Roman law many times exceeds the fragments taken from canon law (according to Balzer there are 189 direct citations from Roman law and 37 from canon law). These testimonies of legal knowledge have been studied by numerous experts in law and legal history since the nineteenth century. How Wincenty was taught Roman law and where he could have learnt Roman law in this way is evidenced, first, by the particular sources of Roman law that he cites; second, by how he cites them; third, which law he gives preference to—canon or Roman; and, finally, what the sense is in each case and the need for citing this particular Roman or canon law in the Chronicle.20 Surprisingly, therefore, our knowledge of the first Polish scholar, chronicler, and historiographer must be based on knowledge of Roman law and its teaching in medieval Europe. The history of Wincenty is thus intertwined with the history of the founding of the university and its primary faculty, that is, the Faculty of Law, where both Roman and canon law are taught, the knowledge of which Wincenty graciously 19 Monumenta Poloniae Palaeographica. Tabularum argumenta I–XXVII, ed. Stanisław . Krzyzanowski (Kraków: Academiae Litterarum Cracoviensis, 1907), tab. 15.

20 Balzer, Pisma, 518–51.

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spreads. Even the most recent research on Wincenty’s philosophical knowledge— while confirming that he did not use intermediaries but drew directly on the writings of Plato and Aristotle—does not determine the ultimate location of his studies, although it does definitely confirm an orientation toward France.21 Nor can it be ruled out that he studied at both Paris and Bologna. Perhaps it was in Paris that Wincenty made the acquaintance of the later Pope Innocent III, as may be evidenced by Innocent’s later favoritism toward him. Wincenty did not have to follow in Innocent’s footsteps, but it may be significant that the future pope car­ ried out his studies in theology in Paris, while he studied law in Bologna. Zenon . Kałuza emphasizes that the question of the place of study will be finally deter­ mined only by the research of jurists—experts in Roman law and canon law—who will be able to compare the tradition of glosses and the manner of commenting on law in the schools of Paris (from 1140 to 1180) and Bologna, and trace these decretals, treatises, glosses, and quaestiones in Wincenty’s Chronicle.22 The way Wincenty uses Roman and canon law is not so much an object of debate as a source of knowledge even for contemporary Romanists, especially with regard to the tradition of glosses.23 For many—and not only Polish Romanists—it has become a cause for discussion on the presence and reception of Roman law in Poland.24 The Chronicle does not seem to have been designed to serve this pur­ pose, that is, the introduction of Roman law to Poland. However, the Chronicle undoubtedly became the seed of the basic legal principles that were subsequently to bear statutory fruit and without which the later Roman legal categories, espe­ cially in matters of political system, would not have existed: the Polish res publica, which flourished in the sixteenth century, the Polish structure of government, and the Polish attachment to rights and independence from public authority, which developed as dynamically only in England. Surprisingly, Wincenty’s work is steeped in private law, in which, it would seem, by the time of the Partitions the influence of Roman law was nonexistent or purely lexicological—concerned only with the creation of forms for legal transactions on the basis of Latin vocabulary. . 21 Zenon Kałuza and Dragos Calma, “The Philosophical Reading of Master Vincent,” . Acta Poloniae Historica 112 (2015): 47–107; Kałuza, Lektury, 96–98, 143–48, 273– 77. . 22 Kałuza, Lektury, 31, note 55. 23 Tiziana J. Chiusi, Die actio de in rem verso im römischen Recht (Munich: C. H. Beck, 2011), 180, via Emil Seckel, “Vincentius Kadłubek,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte Romanistische Abteilung 76 (1959): 378–95. 24 Janusz Sondel, “Wincenty jako apologeta prawa rzymskiego,” in Onus Athlanteum. Studia nad Kronika˛ biskupa Wincentego, ed. Andrzej Da˛ brówka and Witold Wójto­ wicz, Studia Staropolskie Series Nova, vol. 25 (Warsaw: IBL PAN, 2009), 93–94; and see references there to Jan Nepomucen Janowski, Investigentur omnes sententiae et loci Juris Romani, quotquot in Cadlubcone occurant et indicentur fontes eorum (Warsaw, 1827); Henryk Zeissberg, Vincentius Kadłubek, Bischof von Krakau (1208–1218 +1223) und seine Chronik Polens: zur literaturgeschichte des dreizehnten jahrhunderts (Vienna, 1869); Balzer, Pisma; Seckel, “Vincentius Kadłubek”; and Lesław Pauli, “Randbemerkungen zur Abhandlung Emil Seckels über Vincentius Kadłubek,” Zeits­ chrift der Savigny-Stiftung für Rechtsgeschichte. Romanistische Abteilung 76 (1959): 396–431.

22 G. J. Blicharz Perhaps Wincenty contributed to the attraction of foreign studies and drew others to study abroad. It is certainly not a coincidence that both his successor at the . episcopal cathedral Iwo Odrowa˛ z, who worked in his chancellery, studied theol­ . ogy in Paris, and that Iwo’s brother, the first Polish Dominican, Jacek Odrowa˛ z, 25 received the title of doctor iuris in Bologna, and that Iwo brought back from Paris more than thirty codices (which he later handed over to the Kraków Cathe­ dral Chapter).26

The Bishop of Kraków, Church Reformer, and Benefactor A particularly valuable document marking the next stage in Wincenty’s life is the bull of Innocent III dated March 28, 1208: Eis commendat Vincentium ipsorum episcopum. In it the pope appointed Wincenty as bishop of Kraków. The decision had to be made by the pope because the Kraków Chapter, which for the first time was electing a bishop on its own (the first free bishop elections), could not decide between Bishop Gedko of Płock and the Sandomierz provost Vincentius, so in the face of doubts as to who would obtain the majority, a request for papal interven­ tion was sent. Gedko was considered to symbolize opposition to the church reforms, while Wincenty was their ardent supporter. Probably this fact, combined with his possible friendship with Innocent III, made it easier for the pope to put Wincenty—whom he described as vero dilectum filium magistrum Vincentium Sudomiriensis Ecclesiae dioecesis Cracoviensis praepositum, virum utique multimoda laude preclarum, unanimiter elegerunt (they chose unanimously his beloved son, magister Vincentius, provost of the church of Sandomierz of the Diocese of Kraków, by all means, a man famous for many glories)27—at the head of the dio­ cese. Recognition of Wincenty’s merits was not the formal rationale for the elec­ tion but rather the fact that Gedko—who was also recognized as “our venerable brother”—came from another diocese, and that the pope preferred to place a person from the same diocese at the head of the Kraków church: Ecclesiae de dioecesi propria in pastorem vir provideatur (A man from the church’s own dio­ cese is to be provided for as shepherd of the church). It was, in the event, an excellent opportunity to confirm the pope’s jurisdiction in the case of doubts regarding elections of bishop. These two moves—election by canon chapter and recourse to the pope in the case of a dubious election result—immediately reas­ sured and sealed the independence of episcopal elections from the power of the duke. One should bear in mind the significance of this moment, when the main reformer of the church in Poland, the archbishop of Gniezno—Henryk Kietlicz— was at that time in Rome, having been exiled from the Gniezno archdiocese due 25 Józef Łukaszewicz, Historya szkół w Koronie i w Wielkiem .Ksie˛ stwie Litewskiem od . najdawniejszych czasów az do roku 1794 (Poznan´: Ksie˛ garnia Zupan´skiego, 1849), 30. 26 Stanisław Płaza, Historia prawa w Polsce na tle porównawczym X–XVIII (Kraków: Ksie˛ garnia Akademicka, 2002), 92.

27 Monumenta Poloniae Historica, vol. 2, 801.

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to his conflict with duke Władysław Laskonogi. Electing a reformist to the see of bishop in Kraków was a key factor of papal policy. Seven years later Wincenty was invited to the ecumenical council along with Henryk Kietlicz. From his time as bishop, we know of his acts of founding and donating to monasteries and to the diocese of Kraków, as well as his participation in diocesan synods. It is no coin­ cidence that during his time as bishop he proved to be a benefactor of the Cis­ tercian monastery in Je˛ drzejów in particular, a thing not uncommon both for his beloved Duke Casimir and for other bishops. It was Antoni Zygmunt Helcel who particularly analyzed Wincenty’s donations both to the Cistercian monastery in Je˛ drzejów and to Sulejów, explaining exactly the meaning of the object of donation.29 Particularly noteworthy is the introduction of three reforms of the Fourth Lateran Council. First, Bishop Wincenty was the first in Poland to begin the custom of lighting a vigil lamp before the Blessed Sacrament, which he confirmed by allocating the revenues from the lands belonging to the Kraków Chapter to provide wax for the lamp in Saint Wenceslas Cathedral. Second, it was also prob­ ably Wincenty who opened a school in the church in Sandomierz, where sources shortly thereafter mention a teacher of canon law and a teacher of Roman law. And third, he took continuous action to ensure the independence of the church from the power of the duke. In fact, as proved by a document of 1217, Duke Leszek, Casimir’s son and successor, considered Wincenty a spiritual father—pater meus: he asked Wincenty to confirm his donation of an inn to the monastery of the Holy Sepulcher in Miechów—piis operis confirmacione postulavi et impetravi (I asked for and received confirmation of this pious work). Although this gift was the expression of a personal bond between these two men, it certainly confirmed the relation between state and church as propagated by Innocent III.

Jurists Need Independence? Wincenty Resigns from Bishopric The same year, 1217, brought Wincenty’s decision to resign from his office as bishop of Kraków. In a bull, Pope Honorius III granted Wincenty’s request and . approved Iwo Odrowa˛ z as the new bishop, confirming that the transfer of power was made in a responsible manner. Wincenty left Kraków and entered the gates of the Cistercian monastery in Je˛ drzejów, cutting himself off from the outside world. His entering a Cistercian monastery was an act of abdication that was revolu­ tionary at the time, although not totally unknown in Western Europe (Alanus of Lille took the same step). The small number of documents that have come down to us from the twelfth and thirteenth centuries, as well as the turbulence of Polish history (including the . 28 Piotr Plisecki, “Napomnienia papieza Innocentego III skierowane do Władysława Laskonogiego z 1207 r.,” Roczniki Humanistyczne 48 (2000): 431–46. 29 Antoni Zygmunt Helcel, O klasztorze je˛drzejowskim i be˛da˛ cym tam nagrobku Pako­ sława kasztelana Krakowskiego (Kraków: Odbitka Rocznika Towarzystwa Naukowego Krakowskiego Oddziału Sztuk i Archeologii 1/2, 1852), 15–17.

24 G. J. Blicharz fire of the Je˛ drzejów monastery in 1800, which consumed the manuscript of the Polish Chronicle and probably Wincenty’s personal library),30 make it difficult for contemporary historians to determine Wincenty’s activities in the last five years of his life. Many scholars are inclined to the view that Wincenty had the opportunity to work on the fourth and last part of his chronicle, which breaks off unexpectedly around the years 1202–05. Many suggestions have been put forward for his stopping at this historical juncture, such as his ascension to the bishopric. How­ ever, this supposed cessation may not have actually been the case. In reading the Chronicle, one gains a particularly convincing impression that in writing the last part, Wincenty used a smaller library, perhaps that of the monastery, and also formulated his thoughts much more independently of the political context—again suggesting a cloistered existence. In these pages, he finally revealed his true powers of authorship, presenting his full literary artistry, especially his poetic powers and his invariably excellent knowledge of Roman law. Antoni Helcel31 is also in favor of this thesis, pointing out that when describing one of the battles, Wincenty defines its place with reference to the monastery of Je˛drzejów, not to Kraków.32 In my opinion, Wincenty actually reread his Chronicle during his monastery period. This, in my opinion, cannot be a mere coincidence—that the beginning and the end both finish with the image of abjuring the stage of public life. This is a clear hint and possible explanation of the reasons why Wincenty entered the monastery. The Chronicle begins by outlining three reasons why one might prefer solitude rather than taking the public stage: fear of defeat, fear of the envy of others, or hubris. All of them Wincenty disregards as not noble reasons which should be rejected if someone is called to fulfill a just order (Chronica Polonorum, Prologue, 1–4). The last words of the Chronicle are also powerful: “Nevertheless, he was forced to resign suddenly from the Duchy of Kraków” (Chronica Polo­ norum, IV, 26). They refer to Duke Władysław Laskonogi, a good ruler, kind, gracious, courteous to all, and generous, but who lost its power. He was raised to the throne because Duke Lestko, Casimir’s son, decided to resign from the Duchy of Kraków. And Lestko’s story Wincenty elevates to show the noble reason to step down from the public stage. In the closing paragraphs of the Chronicle, we learn that Lestko could have become the Duke of Kraków if he would expel his faithful and trusted friend Goworek. Lestko makes a sacrifice of his own life and gives up his power for a friend, saying: “Away with the dishonest buying of the honest. For what do those offer who desire the reward of putting down the most innocent man?” The cor­ relation of main themes of the beginning and the end of the Chronicle with Win­ centy’s decision to abdicate confirms that Wincenty wrote the Chronicle while in the monastery, or at least that the intention to publish the Chronicle after his seclusion there was planned previously; and he finished the Chronicle at the place where he either died or began to be a bishop, but he did not wish to disclose these 30 Helcel, O klasztorze, 7.

31 See Chapter 8 in this volume.

32 Helcel, O klasztorze, 44.

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details in the Chronicle itself. The meaningfulness of presenting his intentions at the beginning and at the end of the Chronicle may be confirmed by his attitude expressed in the document of 1206. He highlighted that even an ordinary act of bestowal—the conveyance of a gift to a monastery in a private document—is an official document that will secure the author’s intentions for all time: It is necessary, however, at least to be more proficient in all we try to do so that through negligence or old age nothing appears which would change the power of an act into another form or even completely extinguish it, because age destroys and damages images of marble and gold.33 However, with regard to his legal knowledge, his Chronicle did not include all the ideas of legal reform introduced by Innocent III, which Wincenty would have been able to refer to while reediting his treatise after 1205.

Major Themes and Contributions Legal argumentation and interpretation—this is the main use of legal knowledge. Wincenty weaves in history with moral reflections, myth-pictures, literature, and the art of argumentation itself, frequently using concrete legal constructions and estab­ lished formulae. These constructions can be appreciated both when one knows Roman or canon law and when one does not, though readers familiar with Roman law are naturally more prone to recognize and admire his employment of these con­ structions as he makes unconventional but very apt use of both types of law. More­ over, he opens up some topics that were only later to come under the light of European scholarship—fidelity to a promise-contract, changing circumstances, an unjust ruler, and the possibility of resistance. It is worth remembering that Thomas Aquinas was born two years after Wincenty’s death, so Wincenty was living at a time when there was still a tendency for Saint Augustine’s thought to be dominant, and Wincenty’s work is the quintessence of twelfth-century scholasticism.34 Conse­ quently, Wincenty attempts to understand and explain existing customs in the con­ text of Roman and canon law. He attempts to establish valid correspondences. He sees clearly that what is pagan need not be rejected as evil; that if it is rational, it should be maintained, even though pagan. This certainly foreshadows the thought of natural law concerning the freedom and rights of pagan peoples. He is also one of the first to follow the thought of fides quaerens intellectum, that is, of the two wings of faith. Indeed, his whole work is steeped in this way of thinking. It is, after all, based on Greek and Roman—that is, non-Christian—authors, while references to the Old and New Testaments are not so numerous. Even God is mentioned, though by his pagan Latin name, Numen; Jesus Christ and Mary appear directly, but only a few times. Wincenty was the first to describe the martyrdom of Saint Stanislaus and to . 33 Krzyzanowski, Palaeographica, tab. 38. . 34 Zenon Kałuza, “Vincentius’s Chronicle and Intellectual Culture of the Twelfth Cen­ tury,” in von Güttner-Sporzyn´ski, Writing History in Medieval Poland, 139.

26 G. J. Blicharz discuss the question of when martyrdom is called for (when presenting the case of the archbishop running away and hiding from the pagan Pomeranians); he also finds arguments in favor of preserving one’s life rather than offering it as a sacrifice. Roman Law and Canon Law as Carriers of Fundamental Principles Wincenty is the supreme representative of the legal knowledge of the time in both its branches—Roman law and canon law. Interestingly, however, his Chronicle does not serve at all to instruct a reader about the actual content of canon law or Roman law; it is in no way a manual of these laws. The Chronicle can be under­ stood without any legal knowledge at all, and, moreover, Wincenty does not inform the reader every time that he makes a reference to one or the other law. Only occasionally does he explicitly indicate that he is quoting sources in Roman law, and in the case of canon law there are no such references to sources at all, apart from references to the decisions of the pope or the synod. Nevertheless, it is certain that after having read the Chronicle, one would be familiar with the fun­ damental legal principles embodied there, although the uninstructed reader would, of course, be unable to properly judge the work in all its aspects. Indeed, untrained readers would not see that they are in fact learning something about Roman or canon law. This, after all, is not the ostensible purpose of the Chronicle. Barbara Kübris is right when she claims that by using legal knowledge, Wincenty remains a humanist, that in his hands the law becomes a useful tool for telling a story and justifying a moral.35 Readers of the Chronicle will come to know and understand legal principles, even if they do not know that these principles come from Roman or canon law. Wincenty sometimes uses the principles out of context and often puts them in the mouths of both the parties in an argument. Quite frequently, the prin­ ciples neatly summarize the argument being presented and provide justification for the assessment of the whole situation. It is also sometimes the case that basic and valid legal principles are employed by the parties who are wrong. This perfectly reflects Wincenty’s attitude, knowing very well that the law is only an instrument, that the basic principles can be invoked by either side of the dispute, right or wrong. From this point of view, Wincenty’s narrative is not partisan but provides both sides with a ser­ ious argument. This is why his Chronicle was so well suited for practicing rhetoric.36 It was for this reason that Balzer considered that Wincenty reflects on Polish history in terms of Roman law. Thus, Wincenty used Roman law only for moral didactics, and not as an object of a manual of governing law. Honor What Reason Has Established, Even If Pagan . First comes the case of the ritual first haircut (postrzyzyny) for a male child, usually at the age of seven, combined with naming. This pre-Christian Slavic tradition 35 Brygida Kübris, Wste˛p, in Mistrza Wincentego Kronika polska, trans. Kazimierz Abgarowicz and Brygida Kübris (Warsaw: PWN, 1974), 60. . 36 Confirmed by Kałuza, Lektury, 30.

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allowed the child to become a full member of the family and to pass from his mother’s care to his father’s authority. This is an opportunity for Wincenty to indicate how one should judge one’s own tradition, even if that tradition is pagan. He warns against falling into ignorance and just condemning anything that does not come from the West, or even anything that is not known in Western civiliza­ tion. This illustrates Wincenty’s assertiveness, and is not just a matter of casting around for a specious argument to try to defend the Polish pagan legacy. Win­ centy intelligently shows that even pagan customs can have a natural rationality in them. Irreligiosum enim est ea non venerari, que racio instituit, que devota maiorum veneratur religio (For it is impious not to worship what reason has established, what the religious custom of the ancestors has in honor: Chronica Polonorum II, 7). Wincenty reveals here his mastery of language. Religiosum refers to the divine and religio to custom (obligation, duty), which indicates that Win­ centy is playing on the shared etymology of both words in ligo-are (to bind). Insofar as such institutions are rational, they should be respected and observed, not condemned. Brilliantly picking up on the parallels, he compares the ritual first haircut to adoption (adoptio and adrogatio) and legitimation, as well as the act of tonsure, practiced when joining a religious order. Naturally, this is an opportunity to talk about Roman law: adoption and adrogation, kinship, spiritual affinity, and laws of marriage. Nevertheless, the key idea is respect for natural rationality, which is supported by the famous Roman quotation showing that some contracts are already known to the law of nations as self-evident—for instance, sale, letting, and hiring. Moreover, Wincenty points out that even something that comes from a Western tradition can be used with pagan intentions, considering in this respect the legitimation of children coming from an illegitimate relationship. Personal Liberty—No Conviction without Just Trial Wincenty’s second case study concerns the defense of Zbigniew, an illegitimate child who had behaved treacherously toward Duke Bolesław, even though the duke had always been forgiving and merciful to him. Even in the face of Zbigniew’s evident guilt, Wincenty constructs a long defense speech in which he conveys many basic legal principles, including those related to the protection of personal freedom, protection against the conviction of the innocent, and the need for guilt to be actually proven (Chronica Polonorum II, 28). The final conviction is shown to be just precisely because all the requirements of procedure and the taking of evidence have been observed. The key lesson to be learned from this text naturally relates to proscribing convictions before guilt is proven and before the other side of the case has had sufficient time and opportunity to present its defense. The Abuse of Power and Law Wincenty’s third case study consists of a series of examples of the abuse of power by officials of Duke Mieszko III the Old (Chronica Polonorum IV, 2).

28 G. J. Blicharz Consideration of counterfeiting currency, as well as the imposition of excessive fines and penalties for behavior that is in fact permitted, leads Wincenty to con­ clusions that call into question the obligatory declaration of obedience to the ruler, and thus setting limits on the exercise of power and responsibility for offi­ cials. The climax here is the scene of the trial directed by the bishop of Kraków, in which the prince passes sentence on himself. The conclusion Wincenty draws concerns the protection of freedom—a ruler who abuses power, and especially one who persists in his abuse or allows his officials to do so—is a threat to real free­ dom. Moreover, it is important to note in this context that it is the church that should uphold the freedom of subjects and protect against abuses of power. The Legal Force of Promises—Toward Freedom of Religion? Wincenty’s fourth case study concerns an attack on an archbishop by a pagan (Chronica Polonorum III, 13). It is a rich study in that it contains both an inter­ esting and, at the time, very real question—whether the bishop should flee and protect himself for the sake of the sheep or stay and suffer martyrdom. The case enables Wincenty to develop the question of the legal force of pledges made under duress, fear, or pressure, as well as the question of the legitimacy of the promises of pagans who were forced to embrace the Christian faith. Wincenty is aware that a promise (iuramentum, foedus, promissio) requires free consent, and he cites arguments for and against being forced into the Christian faith. However, he finds justification for the validity of such a promise forced on pagans in the argument that it is for their actual and real good. His position on holy wars is in line with those of the Cistercians and Saint Augustine.37 Later this approach would be reworked by Pawel Włodkowic, although already Wincenty had doubts with regard to the effectiveness of coercive conversion.38 Włodkowic would rely on Wincenty’s clear message when discussing the independence of Poland from the German emperor also when considering holy wars.39 Wincenty does not treat faith instrumentally, nor does he try to make a show of it; in fact he simply refers to the rationality and civilization of the Roman-Greek latinitas and quotes the Bible; he prefers to find justification based on science. Even in the matter of crusades, although the Fourth Lateran Council prescribes them, he notes that mere con­ quests and profits will not bring anything if there is no propagation of the faith; he

37 Darius von Güttner-Sporzyn´ski, “Constructing Memory: Holy War in the Chronicle of the Poles by Bishop Vincentius of Cracow,” Journal of Medieval History (2014): 9– 11; and, in Crusades and Memory: Rethinking Past and Present, ed. Megan CassidyWelch and Anne E. Lester (London: Routledge, 2017), 51–56. 38 Stanislaus F. Blech, Paulus Vladimiri and His Doctrine Concerning International Law and Politics, vol. 1 (The Hague: Mouton & Co., 1965), 68. Stanisław Wielgus, “Teoria ‘ius gentium’ w s´redniowiecznej Polsce: geneza, historia, twórcy, orygi­ nalnos´c´, główne problemy,” Człowiek w Kulturze 8 (1996): 31. 39 Magdalena Płotka, “Uprawnione prawo naturalne i jego zakres w filozofii Pawła Włodkowica,” Studia Philosophiae Christianae 51 (2015): 129 n. 22.

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is concerned with effective conversion, not with mundane aims, and in this context he discusses the question of coercion, showing the arguments of both sides. The Republic as Distinct from the Princeps Wincenty is the first to apply the concept of a republic to the Polish state, and he uses this term consistently, though not exclusively (rei publice origine, progressu et consummatione). We have to wait until the sixteenth century for a complete con­ cept of the Polish republic40—the Commonwealth—but it is clear that the Polish fascination with mixed government has its origins in Wincenty’s Chronicle. Hence the reference to the senate as advisers to the duke, and even to the bishops, as a style of government which takes into account the voice of others. Both estates— the nobles and the bishops—are to constitute the senate. Wincenty thinks of the republic as a separate concept from the person of the ruler, that is, the Polish duke and princeps. In Wincenty’s thinking, the concept of private law converges with that of public law. And his concept of the republic relies heavily on the relation of pupil to tutor. Wincenty uses this same concept of the interplay between pupil and tutor to define the relations between the church and the princeps, and between the church and the republic. In a key moment after the death of Casimir II, the main argument in favor of ceding power to his minor sons runs as follows: our republic is like a minor who is in need of a tutor, and you cannot deprive minor sons of the throne just because of their need of a tutor (Chronica Polonorum IV, 21). This argument is consistent with Wincenty’s other references to the republic. He speaks about the “the management and the danger of the republic”; that kings “not by themselves rule the commonwealth, but by governmental authorities”; and, finally, that the republic has its “helpers and mentors,” who are also friends or cousins of princes. Church-State Relations Based on Tutor-Pupil Model In the case of the relation between the church and the republic, Wincenty invokes the right of bishops to become tutors of the minor princeps and in fact become the tutor of the republic itself when the duke himself is not able to govern: “the aforementioned men, Bishop Pełka and Mikołaj Voivode, together with certain gentlemen, took over the administration of the Republic, distributing it among the ablest and most faithful men” (Chronica Polonorum IV, 23). In other words, both estates have the right to oppose a duke who endangers the republic by his abuse of power. However, in the relation between the republic and a princeps who is no longer a minor, Wincenty employs the pupil-tutor model in a reversed form. Interest­ ingly, he does not use this form in the Chronicle itself but only in the preamble to the donation act of 1189. This means that by that time Wincenty had already 40 Dorota Pietrzyk-Reeves, Polish Republican Discourse in the Sixteenth Century (Cam­ bridge: Cambridge University Press, 2020), 131, 249.

30 G. J. Blicharz developed this idea, having either learned it during his studies or developed it after his arrival in Poland, very probably while already engaged on the writing of his Chronicle. In the short 1189 preamble, the princeps is described as the tutor of the church, like a mother over her children. But in the same document Wincenty, using the principles of Roman law, takes the comparison even further, stating that it is only possible for the princeps to act to the benefit of the pupil, not to the pupil’s detriment. Wincenty, however, did not go into the discourse on adoption, and in particular legitimacy when discussing church-state relations. Indeed, it was the question of legitimacy in the 1190s and early 1200s that became the first front on which Pope Innocent III advanced his theory of the supremacy of papal authority over secular authority.41 This theory is not present in Wincenty’s work. Into the mouths of wrongdoers, he even puts the words, “Public law cannot be undermined by private agreements, but it is indeed undermined if the state of the Republic deteriorates” (Chronica Polonorum IV, 25). He places this axiom in ser­ vice of an argument against implementing private agreements aimed at transferring power to the younger prince. Wincenty’s rhetorical, even sophistic, attitude does not hesitate to put the truth in the mouths of characters in the Chronicle who are not necessarily his favorites. In fact, this very sentence remains part of the identity of Poles to this day and embodies a number of constitutional and political pro­ blems that many centuries after Wincenty’s formulation led for a time to the era­ sure of Poland from the map of Europe. Love Transcends Legal Justice Wincenty’s second thought on the crossover between political and legal thought concerns the concept of justice. In essence, however, there are both philosophical and legal issues at stake. Some have considered Wincenty to have created his own definition of justice. In introducing the legendary first Polish king, Krak (Grakch), he states: All therefore greet him as king. And he makes laws, promulgates statutes. And so the knot of our civil law (ius civile) was formed and his birthday came. For before it, liberty had to yield to bondage, and equity followed injustice. And what was just was that which was most beneficial to the wealthiest. But strict justice did not take hold at once. From then on, however, it ceased to be subject to overwhelming violence, and justice was called that which was most beneficial to the one who was least (Chronica Polonorum I, 5). Clearly, the concept that justice is that which helps the weakest is not Wincenty’s original idea. It is, of course, inspired by Plato, probably from Wincenty’s reading of Gorgias, or perhaps Timaeus. The most surprising thing here is Wincenty’s 41 Constance M. Rousseau, “Innocent III, Defender of the Innocents and the Law: Children and Papal Policy (1198–1216),” Archivum Historiae Pontificiae 32 (1994): 37–41.

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strong fascination with Greek philosophy, especially Plato (this very aspect has recently been noticed also by the Polish science of constitutional law).42 We see that in one passage Wincenty brilliantly combines the Roman ius civile with the Platonic, even Socratic, conception of justice. Thus, at the heart of the Athenian topos of the Polish people, he embeds law as the key to creating a new, just state in which the weak are protected. The question is whether Wincenty develops this concept himself or gets it in some way from Roman law. First, he distinguishes between innate justice and legal justice. Both must be manifested in deeds, and are therefore expressions of virtue, which is based on “fairness in giving to each what is his own” and “prudence in passing judgment.” In particular, legal justice includes resistance to the “noise of accusers” (the “intrusiveness of advocates”); it involves hatred of slander and love of concord. For Wincenty, the concept of justice is not an empty formula, and the distinc­ tion between innate and legal justice is not a rhetorical device. The intuitive notion of innate justice, though always present, must itself be controlled by pru­ dence, and this prudence commands that legal justice be taken into account. Racio iuris imperat (dictates) that the first judgment of innate justice may, if wrong, be corrected (Chronica Polonorum IV, 2). Indeed, in the absence of further evidence, it becomes necessary to rely on the legal presumptions that arise from the mere statements of the parties involved (consistent of course with procedure); indeed, in Wincenty’s case it is through them that the truth is discovered. It is in the context of the “homeland” that Wincenty outlines another aspect of the concept of justice. “For it is no injustice if by any means whatsoever one strives to save the fatherland,” he writes (Chronica Polonorum IV, 9). In Wincenty, the need to save the homeland justifies what in ordinary circumstances might go against justice; for example, to protect the homeland he allows the authorities to seize the goods of their subjects and of the church itself, just as in the case of a threat to the republic he allows an unjust ruler to be overthrown. In Wincenty’s work, however, it is not only love of the homeland that entitles one to transgress the dictates of justice, both innate and legal. In his description of the model just ruler, he indicates that prudence in passing judgments must take into account both fear and love, austerity and godliness: He knew how to apprehend wrongdoers with appropriate concern, and to punish them with love; for he was neither godly without severity, nor severe without godliness. For there is nothing more appropriate to the king’s great­ ness than the love of his people, which imitates the love of God. So let the king be slow to punish, swift to reward. The more just, the more loving. Love also transcends justice in family relationships for the sake of parents and for the sake of brethren: 42 Marek Piechowiak, Preambuła Konstytucji Rzeczypospolitej Polskiej z 1997 r. Aksjolo­ giczne podstawy prawa (Warsaw: C. H. Beck, 2020), 67–68.

32 G. J. Blicharz He turned all treasures, domestic and public, to the ransom of his father, showing that religion prevails over love, and love over riches. [.…] Thus, he is devoted more to fraternal love than to the principles of rule, not only giving away what the law of succession required, but generously giving to brothers the provinces that did not belong to them. In this context love for the homeland appears with special prominence, for twice in the Chronicle the sacrifice of one’s own children is justified by the need to save the homeland, and, in a special way, as Wincenty expresses it, to save freedom. He presents this concept both in the image of the defenders of Głogów, who defend themselves against the Germans—who make shields out of the children taken prisoner—and in the image of the pagan Prussians, who accept the loss of children betrayed to the Poles in order to protect their own freedom.

General Appraisal and Influence Wincenty was a lawyer, and not just at the time he wrote the Chronicle. As bishop of Kraków (1208–18), he was a local legislator for his diocese, one who diligently implemented the resolutions and reforms of the Fourth Lateran Council; he was also an ally of the archbishop of Gniezno, Henryk Kietlicz, in his reformation of the church in Poland. Earlier, as a notary and adviser at the court of Duke Casimir the Just, he was in practice responsible for the creation of numerous acts of law and a number of political decisions. In the Chronicle and in the other documents he left behind, his knowledge of Roman and canon law, which he could have acquired only in the then-emerging schools of Paris and Bologna, is quite daz­ zling. As probably the first Polish graduate of a foreign studium generale, Win­ centy shows that even if Poland seemed at the time to be on the periphery of great politics, it certainly did not become a backwater intellectually. The level of famil­ iarity with and access to sources of learned law—Roman and canon law—is immense in Wincenty, at a time when Accursius’s Glossa ordinaria had not yet been written in Bologna, when the study of Roman law was in its infancy, and when the University of Paris had not yet been officially established. This means that Polish youth, as in Wincenty, its personification, was able to draw on and became a part of the intellectual current of the Renaissance of the twelfth century, in order to enrich and make use of knowledge for the needs of the state, which was at the time experiencing a crisis of regional disintegration, when the great political projects of the golden ages of Bolesław the Brave (tenth/eleventh cen­ tury) and Bolesław the Wry-Mouthed (eleventh/twelfth century) seemed far dis­ tant, and the country was experiencing a number of destructive fratricidal conflicts. The Chronicle did, however, become an object of severe criticism of Renais­ sance and nineteenth-century historiography, mainly due to its fictionalized history of the state. It is undeniable that Wincenty’s work is permeated with both Roman and canon law—so much so that scholars have considered that “he described Poland with legal categories” (Oswald Balzer); “he had a great knowledge of . Roman and canon law” (Zenon Kałuza); “he was an apologist of Roman law and

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spread it in Poland” (Janusz Sondel); and, indeed, “it was he who brought to Poland the first copies of the texts of Roman and canon law” (Stanisław Płaza). Even Michał Wiszniewski’s criticism that he interjected Roman law for his own needs—making use of Justinian’s entire Digest and Code, and only rarely referring to Justinian’s Institutes and Novels, and citing Roman law sources not important for current legal practice in the Western Europe43—does not so much expose Wincenty as only confirm his genius and independence in his use of the legal heritage of ancient Rome. Analogically, although he had access to a variety of historical accounts and sources, he used them only when useful for the goal of the Chronicle, sometimes not reporting well-known historical events.44 That he was not merely a lawyer, that he can justifiably be called the first Polish scholar, the first magister, is clear. But he is also due the title of lawyer, not only because of the Chronicle but also because of his real influence on the law of his time—as a bishop introducing the reforms of the Fourth Lateran Council and as a notary of the royal court. Finally, the twentieth and twenty-first centuries have brought an extraordinary flowering of research on Wincenty’s Chronicle as well as on his person. Karol Wojtyła, later Pope John Paul II, called him “the father of Polish culture,” and Cardinal Stefan Wyszyn´ski called him “the educator of the Polish nation.” If sci­ ence, knowledge, and culture constituted the spark from which the Polish soul was born, Wincenty was “the conjurer of the Polish soul,” and to this day many people continue to be inspired by him. Many wish to find in him and his work the source of their identity. Today his work, analyzed from a greater distance and without contemporary political overtones, reveals the genius of its author. New contexts for Wincenty’s work and previously unknown inspirations for it continue to be discovered. The greatest and perhaps most surprising is the recently established intense fascination with Greek philosophy, especially Plato. It is this aspect that has also recently been noticed by the Polish science of constitutional law. Indeed, Wincenty’s work is a capsule in which many threads of Polish history and culture, and not just Polish legal thought, have their beginning. He is called the first historian, but many find in him a kindred spirit—poets and writers, philosophers and moralists, physicians, naturalists and geographers, even astronomers and economists. His competence in Roman law, canon law, and Greek philosophy used for the sake of Polish culture and society foreshadow the contributions of Teodor Ostrowski and Henryk Kupiszewski. Wincenty’s concern for the enrichment of the cathedral library resources and the development of legal studies at the cathedral school would soon find fulfillment in the deeds of Jadwiga of Anjou45 and the renewing of the Kraków Academy. Great legal argumentative ability in exposing the relation 43 Michał Wiszniewski, Historya literatury polskiéj, vol. 2 (Kraków: Gieszkowski, 1840), 455–56. 44 Maciej Mikuła, “Mistrza Wincentego Kronika a Annales Regni Polonorum Deperditi: w poszukiwaniu z´ródeł do dziejów Polski Piastowskiej w III i IV ksie˛ dze ‘Kroniki,’” Cistercium Mater Nostra 2 (2008): 101–29. 45 See Chapter 3 in this volume.

34 G. J. Blicharz between criminal punishment and the importance of personality of the wrongdoer in the administration of punishment and the creation of an opportunity to defend an innocent would be illuminated by Juliusz Makarewicz. Knowledge of the first Polish scholar extended to liability in medical practice and abuses of the state’s mint policy, which would later be analyzed by the most prominent Polish scholar, Mikołaj Kopernik (Copernicus). Wincenty’s reflections on the state and authority were further discussed in sermons and academic speeches of Stanisław of Skarbi­ mierz and Paweł Włodkowic.46 In a word, Wincenty was a true and full-fledged humanist—a fully educated, erudite man of his time who became a true statesman. Many of the figures that readers will meet in the following chapters have drawn on and referred to the person and work of Wincenty.

. 46 Krzysztof Ozóg, Uczeni w monarchii Jadwigi Andegwan´skiej i Władysława Jagiełły (1384–1434) (Kraków: PAU, 2004), 398.

2 Stanisław of Skarbimierz (ca. 1360/65–1431) and Paweł Włodkowic (ca. 1370/73–1435/36) Michał Kowalski

Introduction Pope John Paul II, addressing the United Nations General Assembly on October 5, 1995, referred to the history of his native Poland when talking about rights: In reality the problem of the full recognition of the rights of peoples and nations has presented itself repeatedly to the conscience of humanity, and has also given rise to considerable ethical and juridical reflection. I am reminded of the debate which took place at the Council of Constance in the fifteenth century, when the representatives of the Kraków Academy, headed by Paweł Włodkowic [Paulus Vladimiri], courageously defended the right of certain European peoples to existence and independence.1 Many might have been surprised to hear the barely known name of Paulus Vladi­ miri mentioned in the pope’s speech. The legacy of Paulus Vladimiri used to be and, at the beginning of the third decade of the twenty-first century, continues to be known to only a small number of scholars, especially outside Poland. But the pope was perfectly right to mention Paulus Vladimiri at the United Nations. Indeed, Paulus’s views on the rights of peoples in their diversity, and with the aim of peaceful coexistence, deserve to have a solid place in the history of ethical and juridical thinking. His views are closely linked with the legacy of his pre­ decessor as the rector of the Kraków Academy (known officially since 1817 as the Jagiellonian University in Kraków), Stanislas de Scarbimiria (Stanisław of Skarbimierz)—especially with his reflections on the legal nature of war. The views of these Kraków scholars are sometimes labelled as the fifteenth-century Polish law-of-war school or doctrine. That school of thought placed itself in the very center of the scholarly debates of the beginning of the fifteenth century and, to some extent, proved to be ahead of its time, having impact on the later development of the field. 1 “Address of His Holiness John Paul II, United Nations Headquarters (New York),” October 5, 1995, www.vatican.va/content/john-paul-ii/en/speeches/1995/octo ber/documents/hf_jp-ii_spe_05101995_address-to-uno.html, para. 6.

DOI: 10.4324/9781003181255-3

36 M. Kowalski While mentioning the names of Stanislas de Scarbimiria and Paulus Vladimiri,2 especially in the context of their legacy as great Christian jurists, one should not overlook the name of a Polish law scholar and devoted Catholic, Professor Ludwik Ehrlich, a renowned historian of law and a worldwide expert in international law. His extensive and profound research during the middle of the twentieth century, when he was the chair of international law at the Jagiellonian University Faculty of Law, helped to properly understand and assess the legacy of these two rectors. Thus, Ehrlich’s name has become intrinsically linked with both Stanislas and Paulus. Indeed, it is no wonder that Pope John Paul II was aware of this great intellectual legacy. As the bishop of Kraków, Karol Wojtyła was acquainted with Ludwik Ehrlich and had numerous private conversations with him in the late fifties and sixties of the twentieth century. What is more, Emilia Ehrlich—the daughter of Ludwik and his American wife—taught Karol Wojtyła English and, as an Ursuline nun, later closely cooperated with the pope at the Holy See. While this chapter deals with the legacies of Stanislas de Scarbimiria and Paulus Vladimiri, it is Professor Ludwik Ehrlich who will be our main intellectual guide in the journey toward their thoughts and achievements. Thus, this chapter also emphasizes his role as the researcher who rediscovered (or, to some extent, actually discovered) the legacies of Stanislas and Paulus.

The Historical Context: The Renewal of Kraków University and the Conflict with the Teutonic Order The legacies of Stanislas and Paulus are as strictly interrelated as their lives. They lived in the same epoch, in the same place, and served the same values and interests. The extent of their actual cooperation is unknown. They must have cooperated closely, as they were both rectors of the Kraków Academy—Stanislas in 1400 and 1413, and Paulus in 1414 and 1415. Moreover, as scholars and jurists, they both dealt with the questions of just war doctrine, and Stanislas’s work resonates in the subsequent and more extensive writings of Paulus. Importantly, their doctrines originated from very practical aspects of the conflict between the Kingdom of Poland, which they served, and the Teutonic Order. Therefore, before analyzing their legacies, it is necessary to provide a short outline of the relevant historical context. After the papally approved coronation of Władysław I Łokietek (Ladislaus the Elbow-high) as the king of Poland in 1320—the king who managed to reunite the Polish duchies of the House of Piast—and, especially, during the reign of his son and successor, Kazimierz Wielki (Casimir III the Great), between 1333 and 1370, the Kingdom of Poland entered an era of rapid development and prosperity. Among numerous reforms of the state, the establishment of the Kraków Academy (under the name of Studium Generale) in 1364 was one of the most significant. Yet following the death of its founder and patron in 1370 without a successor, the 2 In Polish: Stanisław ze Skarbimierza and Paweł Włodkowic, respectively. In the pre­ sent text latinized versions of the names are used: Stanislas de Scarbimiria and Paulus Vladimiri, respectively.

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development of the university, initially so dynamic, started to decline. The situa­ tion improved when, after some transitional years during the reign of Louis the Great of Hungary, his daughter Jadwiga of Anjou3 was crowned in 1384 as the first female monarch of Poland. The power of the Polish Crown stabilized even more after the marriage of Jadwiga with the pagan grand duke of Lithuania, known as Jogaila, who—after being baptized—was crowned as the king of Poland under the name Władysław II Jagiełło, in 1386. This marriage resulted from the Act of Krewo of 1385, under which Lithuania became Christian, and which star­ ted the Polish-Lithuanian union under the Jagiellonian dynasty (later transformed into the Polish-Lithuanian Commonwealth), which for almost two hundred years was territorially the largest and one of the most prosperous states in Europe. Jadwiga and Władysław Jagiełło were both aware that the rapidly developing state was in need of educated people, especially lawyers. The monarchs also needed priests to baptize the numerous inhabitants of the vast territories of the grand duke of Lithuania, who—unlike Władysław Jagiełło and the Lithuanian elites who were baptized directly after the union agreement—were still pagan. In 1397, the monarchs managed to receive a papal consent to establish the Faculty of Theology within the renewed Kraków Academy (initially the Studium Generale had included law, medicine, and artium or the liberal arts, but not theology). Before Jadwiga died in 1399, she had donated in her last will much of her jewelry for the reestablishment of the university, and Stanislas de Scarbimiria was nomi­ nated in 1400 as its first rector after the renewal. The modern name of the uni­ versity in Kraków pays tribute to this great contribution of the Jagiellonian dynasty to the university’s development. Stanislas de Scarbimiria and Paulus Vladimiri were prime examples of clergymen educated outside Poland (Stanislas in Prague and Paulus in Italy) who became intensely involved in the development of the Kraków university following its renewal. Another important context that links the activities of Stanislas and Paulus was the conflict between the Kingdom of Poland and the Teutonic Order—the Order of Brothers of the German House of Saint Mary in Jerusalem, known also as the Teutonic Knights or the Knights of the Cross.4 The establishment of the state of the Teutonic Order was the result of the order’s thirteenth-century crusades against pagan Prussians inhabiting the southeastern Baltic shores as well as later conquests of other pagan territories. The rapidly developing Teutonic state shortly came into conflict with Poland and then-pagan Lithuania. The conflict became tense, especially after the union of Poland and Lithuania in 1385, which changed the balance of power in the region and resulted in the transformation of Lithuania, the last significant pagan state in Europe, into a Christian state no longer vulner­ able to invasion by the crusading Teutonic Order. What ensued in the years 1409 to 1411 was the great war fought by Poland and Lithuania against the Teutonic 3 See Chapter 3 in this volume. 4 More broadly, see, for example, Ludwik Ehrlich, Pisma wybrane Pawła Włodkowica /Works of Paul Wladimiri (A Selection), vol. 1 (Warsaw: Instytut Wydawniczy PAX, 1968), xiv–xxi.

38 M. Kowalski Order. During that war, the famous Battle of Grunwald (in German: die Schlacht bei Tannenberg) took place in 1410, one of the biggest battles of the Middle Ages. The joint armies of the Kingdom of Poland and the Grand Duchy of Lithuania—supported by, among others, the Orthodox Ruthenians and the pagan Tatars—defeated the army of the Teutonic Order. Besides military clashes, the conflict between Poland and the Teutonic Order resulted in numerous legal disputes, mediations, and arbitration, including papal invol­ vement. The legal aspects of the conflict (to a large extent based on canon law) were even introduced into the agenda of the Council of Constance, which began in 1414. Stanislas, and especially Paulus, were university scholars who served the interests of the Polish Crown as lawyers (doctors of canon law) and diplomats. This was especially the case as canon law was applied in the international relations of the time. Indeed, as Ludwik Ehrlich put it, the Faculty of Canon Law under Jagiełło and his successors, apart from the task of educating the future Church administrators, was to offer knowledge that might have helped in defending Poland’s rights in the international sphere; and this was to be done in two ways: through the holders of this knowledge having been personally involved in the defense of Poland’s rights by producing research works and papers, as well as through education of the youth in these questions and teaching how to cope with them.5

Stanislas de Scarbimiria: The Legacy Still Not Fully Discovered It is unknown when precisely Stanislas was born, and various dates are mentioned by different sources in this respect; the likeliest dates are 13606 or 1365.7 He came from Skarbimierz (Scarbimiria)—a town approximately fifty kilometers northeast of Kraków—which in the late fourteenth century was one of the prin­ cipal towns of Lesser Poland. Today the town bears the name Skalbmierz. Sta­ nislas was a highly talented person, of burgher origin, who managed to advance socially. He was very well educated by his years-long stay at the University of Prague, including at least three years sponsored directly by Queen Jadwiga of 5 Ludwik Ehrlich, “Z dziejów Wydziału Prawa UJ w wieku XV,” in Studia z dziejów Wydziału Prawa Uniwersytetu Jagiellon´skiego, ed. Michał Patkaniowski (Kraków: Uniwersytet Jagiellon´ski, 1964), 38. More broadly on the first generations of Kraków . professors, see, for example, Krzysztof Ozóg, “Die ersten Professorengenerationen an der Krakauer Universität im 15. Jahrhundert,” Acta Universistatis Carolinae—His­ toria Universitatis Carolinae Pragensis 60, no.1 (2020): 15–25. . 6 Krzysztof Ozóg, “Stanisław ze Skarbimierza,” in Profesorowie Wydziału Prawa Uni­ wersytetu Jagiellon´skiego, vol. 1, ed. Wacław Uruszczak (Kraków: Wydawnictwo Uni­ wersytetu Jagiellon´skiego, 2015), 387–90. 7 Roman Maria Zawadzki, “Stanisław ze Skarbimierza,” in Polski słownik biograficzny, vol. 42 (Warsaw-Kraków: Polska Akademia Nauk, 2003–04), 76–80.

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8

Anjou. His education in canon law led to his receiving the title of the doctor of decrees (doctor decretorum) in 1396. After his return to Kraków—he had become a prominent clergyman in the meantime—he was an active member of scholarly circles and became involved in actions aimed at renewing the Kraków university. He was also very close to the royal couple, having the function, among others, of official confessor of the queen. Known as a highly talented preacher, Stanislas left a few hundred sermons still preserved. His legacy in this respect is still studied and deserves scrupulous analysis.9 Although Stanislas gave priority to theology, he was also known as a devoted lawyer who high appreciated the discipline of canon law; his sermon presented at the inaugural ceremony of the renewed university in 1400 (“Universitatis de novo fundatae”) might be quoted as an example in this respect.10 Stanislas was also widely involved in the scholarly life of Kraków and its university, not only serving twice as the rector of the academy but also having been first an academic teacher and mentor. Moreover, he was involved—as both a clergyman and a jurist—in the public life of the capital city of Kraków. In contrast to Paulus Vladimiri, Stanislas—despite his involvement in the public sphere—did not hold any official position in the service of the Crown. The one exception was in 1422, when he was—as a procurator sub­ stitutus—one of the representatives of King Władysław Jagiełło in the judicial proceedings against the Teutonic Order before representatives of Pope Martin V. He was also coauthor of the 1429 legal opinion that offered arguments against the right of Sigismund of Luxembourg to crown Grand Duke Vytautas (Witold) as the king of Lithuania. Stanislas died as a most respected figure on January 9, 1431. . Bozena Chmielowska, trying to briefly characterize Stanislas’s views—which she labeled as practical philosophy or political theology—wrote the following: In his outlook on human relations, Stanislas was by no means an optimist; he knew very well that the model of wise government which he delineated was but a postulation, that political reality was full of conflicts, caused mainly by the pride of the rulers and the ignorance of the masses. Parti­ cularly important to him were large-scale conflicts, i.e., wars waged by arrogant or imprudent rulers. But although war triggers a deluge of moral

8 Ehrlich, “Z dziejów,” 42, and sources quoted therein. . 9 See Bozena Chmielowska, introduction to Stanislaus de Scarbimiria, Sermones de . sapientia selecti, ed. Bozena Chmielowska (Warsaw: The National Centre for Culture, 2016), v–xii. Stanislas’s sermons are highly valuable sources about university commu­ nity in Kraków of the first half of the fifteenth century. See, for example, Ryszard Skrzyniarz, “Mowy uniwersyteckie Stanisława ze Skarbimierza z´ródłem wiedzy o uni­ . wersytecie i wychowaniu młodziezy akademickiej na pocza˛ tku XV wieku w Krakowie,” Archiwa, Biblioteki i Muzea Kos´cielne 110 (2018): 327–38. 10 Magdalena Płotka, “Wojna sprawiedliwa i prawo naturalne w refleksji Pawła Włodko­ wica,” Mys´l polityczna—Political Thought 2, no. 3 (2020): 38–39.

40 M. Kowalski evil, and is a negation of wisdom, it may be acceptable to wisdom if it is a just war.11 Indeed, it is his opinions on the issue of just war that make Stanislas’s legacy especially attractive. Among Stanislas’s numerous sermons known to us, there is one of special value—especially from the legal perspective. It is titled “De bellis iustis” (or “Sermo de bello iusto et iniusto”). Roman Maria Zawadzki even suggested that this sermon overshadowed other works by Stanislas.12 One should not under­ estimate in this context the role of Ludwik Ehrlich who, in the middle of the twentieth century, elaborated (together with Zofia Budkowa) the Latin text of the sermon, and then translated it into Polish and published it with an extensive introduction and commentaries.13 One can claim that it was Ehrlich who fac­ tually introduced Stanislas to scholars studying the history of international law. Regrettably, “De bellis iustis” has not been translated into English so far, and therefore Stanislas is barely known in modern international scholarship. He is even sometimes labeled “a forgotten Polish medieval international lawyer.”14 Indeed, “De bellis iustis” fully deserves all the attention it has gained (and more that it has not). It is a treatise that in a general and systematized way (evidently typical for the late Middle Ages) elaborates the question of war from a mostly legal perspective, and—although firmly rooted in earlier views (often quoting Gratian’s Decretum as well as Raymond of Peñaforte, Guillaume de Rennes, Saint Thomas Aquinas, Sinibaldo Fieschi, and others)—it presents the problem in a new and progressive way that is ahead of its time. These two aspects make the sermon unique and seminal. What is more, although clearly written in the context of the Polish and Lithuanian disputes with the Teutonic Order, it does not at all refer explicitly to this practical background. In consequence, the treatise has universal significance. “De bellis iustis” is not dated, but it is estimated that it must have been written around 1410, that is, in the year of the Battle of Grunwald. The sermon is rather concise, as it comprises only ten pages (Ehrlich estimated that it would have taken approximately sixty minutes to present it orally), yet it is solely devoted to the question of just wars. As such, it is the first known treatise of this kind. Its scope is wide and refers to various aspects of war. Ehrlich briefly described the scope of the treatise as follows:

11 Chmielowska, introduction, xi. 12 Zawadzki, “Stanisław,” 76–80. 13 Ludwik Ehrlich, Polski wykład prawa wojny XV wieku (Warsaw: Wydawnictwo Praw­ nicze, 1955). 14 Władysław Czaplin´ski, “A Right of Infidels to Establish Their Own State? Remarks on Writing of Paulus Vladimiri and Francisco de Vitoria,” in Religion and International Law: Living Together, ed. Robert Uerpmann-Wittzack, Evelyne Lagrange, and Stefan Oeter (Leiden: Brill Nijhoff, 2018), 49.

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[The sermon] states Raymond’s [five] conditions of just war, discusses self­ defence, war loot, killing, damage inflicted in war, arguments against the admissibility of any war, and the problem of availing oneself in a just war of the help of infidels; it points to limits of obedience and mentions problems of valour, fidelity and discipline.15 At least three aspects of Stanislas’s reasoning in the sermon made it original at the time it was written. First, Stanislas mainly referred to public wars, not private wars. Including both public and private wars was typical of authors writing earlier than Stanislas (as well as some later ones, including Grotius). One should note, how­ ever, that private wars were hardly present in Poland at that time, and this might be a practical reason for this undoubtedly original approach, especially if we take into account the political context (that is, the war of Poland and Lithuania against the Teutonic Order). Ludwik Ehrlich noted that Stanislas’s approach is close to that which Gentilis presented only at the end of the sixteenth century.16 Yet one has to admit that Stanislas was neither so explicit as Gentilis nor so consistent, as some minor references to private wars may be detected in “De bellis iustis.” Second, Stanislas expressly stressed in his sermon the value of peace. Indeed, he introduced peace as a solid framework of the whole sermon: the first sentence of the first paragraph of the sermon paraphrases the reference to peace in Proverbs 3:30 (“Non contendas adversus hominem frustra cum ipse tibi nihil mali fecerit”), and the last paragraph (no. 48) makes an appeal to preserve (to love) peace to the extent that one should fight for it (expose oneself to the risk of death) if necessary (“Sic omnes pacem diligant, quod eciam, si opus es ut pax sit in terra, morti se exponat”). Such an approach is vividly present in all of Stanislas’s reasoning. Indeed, as Roman Kwiecien´ put it, for Stanislas it is the will to preserve peace, not the legal or religious status of the warring parties, that is the principal criterion for differentiating between just and unjust wars.17 The attitude toward the religious status of the warring parties is the third, and presumably the most important, aspect of the sermon’s originality. Stanislas claimed that just war was permitted not only for Christians but also for pagans, who were entitled to own their states and to exercise power, while neither the pope nor other Christian states were entitled to deny this right, as non-Christians owned their states “sinless and legally” (sine peccato ea posident et de iure, para. 40). Therefore, it was also admissible for a Christian ruler to employ non-Chris­ tians in just wars against other Christian states. Stanislas also opted for the admis­ sibility of agreements with the non-Christian states. Ehrlich was correct when he 15 Ludwik Ehrlich, “The Development of International Law as a Science,” Recueil des Cours de l’Académie de Droit International 105 (1962): 173–263, at 189. 16 Ehrlich, Polski, 51. Elsewhere Ehrlich stated expressly, “The sermon of Stanislas is the first known summary of the law of public wars” (“The Development of International Law,” 190). 17 Roman Kwiecien´, Od “wojny sprawiedliwej” do “wojny z terroryzmem”. Siła zbrojna i . reglamentacja jej uzywania (ius contra bellum) w s´wietle prawa mie˛dzynarodowego (Warsaw: Polski Instytut Spraw Mie˛ dzynarodowych, 2019), 34.

42 M. Kowalski stressed that Stanislas’s argumentation rested on the presumption of human dig­ nity of non-Christians.18 Moreover, one can claim that Stanislas opted for what we would call today a pluralistic international society. Indeed, these progressive views were pioneering and, to a large extent, foreshadowed later views of authors who are better known today, such as Francisco de Vitoria. As a side note about the focus of this chapter, it is important to add that, although no direct references to “De bellis iustis” by Paulus Vladimiri have been detected in the historical sources, the sermon must have been an inspiration and formed a basis for his own writings.

Paulus Vladimiri: Progressive Ideas in a Practical Context Paulus Vladimiri was most probably born in the early seventies of the fourteenth century in a noble family in Brudzen´, near the diocese town of Płock in the Mazovia region. Like Stanislas, he studied at the University of Prague, where he became bachelor of arts (1389), master of arts (1393), and eventually—after studying canon law—bachelor of decrees in 1396. After returning to Poland and becoming a clergyman, he exercised numerous functions in church administration. In the beginning of the fifteenth century, Paulus went to Padua to further his study of law; he obtained his licentiate of decrees in 1408. Ludwik Ehrlich stressed that the stay in Padua was especially important for Paulus because of his studies under Francesco Zabarella (Franciscus de Zabarellis), an established canonist and a subsequent cardinal archbishop of Florence, who significantly influenced Paulus’s views. What is more, the stay in Italy, which lasted until 1410, was beneficial to Paulus from the practical point of view, as he could establish personal relations within and learn much about the functioning of the Holy See. As Stanisław Bełch noted, it was also then that Paulus started to be involved in the “top-level activity in the service of the King of Poland” and, around 1409/10, began his writing activities.19 After his arrival in Kraków he received—on papal authorization—the degree of doctor of decrees (doctor decretorum) in 1411. It is worth noting that it was Sta­ nislas who, on the occasion of conferring the degree, presented the occasional address (“Sermo de dignitate doctorandi [Pauli Vlodcovicii anno 1411] et quali­ tate eius, ubi ad finem generale studium litterarum multipliciter commendatur”), in which he praised the value of university education.20 In 1413, Stanislas became rector of the university for the second time; he subsequently was replaced by Paulus, who acted as rector twice, in 1414 and in 1415. After 1412, Paulus began extensive activities in the service of the Polish Crown as a diplomat and—as we would call it today—its legal representative. In 1412, he took part in the arbitration with the Teutonic Order in Buda before Sigismund of Luxembourg (although representing mainly a Mazovian duke). Paulus would take 18 Ehrlich, “The Development of International Law,” 191. 19 Stanislaus F. Belch, Paulus Vladimiri and His Doctrine Concerning International Law and Politics, vol. 1 (The Hague: Mouton, 1965), 125.

20 Skrzyniarz, “Mowy,” 330.

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on many other diplomatic tasks, but it was his role as part of the Polish delegation to the Council of Constance, held between 1414 and 1418, that was his most remarkable achievement. As a member of the delegation, Paulus played a pivotal role in the dispute between Poland and the Teutonic Order examined by the council. Yet he also entered the debate on the reform of the church, in which he supported— orally as well as in writing—the approach based on conciliarism. It is estimated that, although nominally the rector of the Kraków university in 1414 and 1415, Paulus spent the whole time at the Council in Constance. It was exactly then that his most important works were written and submitted in defense of Polish interests. He was certainly well prepared to perform this task as a widely educated scholar and as a person acquainted with influential council figures, such as Cardinal Zabarella. Pau­ lus’s actions were appreciated already by his contemporaries and, as later historians analyzed the legacy of the Council of Constance, he found an established place in the council’s history. His polemics with John Falkenberg, who represented the Teutonic Order and had fiercely attacked Poland and Lithuania before as well as during the council, were widely known and commented on. Paulus was also very active as a statesman and a diplomat in the years following the council. Among others, he took part in another arbitration with the Teutonic Order before Sigismund of Luxembourg. The arbitral award delivered in Wrocław in 1420 was then appealed to the pope, again with Paulus as a prominent lawyer behind this successful legal action that led to the pope’s verdict in favor of Poland in 1422. Paulus died in Kraków in late 1435 or 1436. It is striking that until the end of his life, Paulus consistently opted for the peaceful settlement of the ongo­ ing dispute with the Teutonic Order in the form of judicial proceedings—instead of war or agreements with an unreliable partner. In a letter he sent in 1432 from Padua to the bishop of Kraków, he presented extensive argumentation for the judicial way of “attaining the effect of justice” [effectum iusticie consequendi].21 All of these practical activities of Paulus aimed at the defense of Polish interests on the international scene and his involvement in the real politics of his time should be seen not only in the context of characterizing him as a diplomat and statesman. This perspective is also important in assessing his intellectual and— most important—scholarly legacy. It is striking that works of Paulus were almost entirely written in practical contexts and therefore remain fragmented and lack systematization. Tadeusz Jasudowicz speculated in this respect that if Paulus had had enough time and opportunity to dedicate himself to scholarly work at the Kraków Academy, he most probably could have delivered the early fifteenth-cen­ tury equivalent of Grotius’s De jure belli ac pacis libri tres (published in 1625) and, by doing so, would have ensured for himself the most prominent place in the history of international law.22 Of course, this is only speculation (and an audacious 21 Ehrlich, Pisma/Works, 3:203–26; especially see 224–26. 22 Tadeusz Jasudowicz, S´ladami Ludwika Ehrlicha: do Pawła Włodkowica po nauke˛ o prawach człowieka (Torun´: COMER, 1995), 16. Note, however, that Grotius’s opus magnum also originated from writings aimed at a purely practical context (De iure praede commentarius); see Ehrlich, Polski, 14.

44 M. Kowalski one, indeed). Yet it is true that the practical character of Paulus’s writings was counterproductive to the popularization of his legacy. That he should not be perceived only through the perspective of the fifteenth-century conflict between Poland and the Teutonic Order is convincingly and compactly illustrated by Ludwik Ehrlich in his Hague lecture on the development of international law as a science, in which he elegantly placed the legacy of Paulus—as well as Stanislas—in the history of intellectual reflections on law of nations.23 It was also eruditely and extensively done in a two-volume work by Stanisław Bełch.24 Indeed, whereas Stanislas’s legal legacy is profoundly limited to the elaboration of the doctrine of just war, Paulus in his numerous works presented broader views. As Ehrlich put it: The papers of [Paulus] are juridical. One can not only form on their basis a systemic picture of what was then law in what is now called international relations, but many analogies can be found with views prevailing today and with problems of which the solution is still sought.25 Ehrlich identified and commented on the following problems present in Paulus’s writings: powers of authorities vis-à-vis divine and natural law; sanctions; power of secular rulers; the relation of the power of the pope and the emperor; recognition of human dignity; relations of Christian states to non-Christians; questions of the validity of papal grants; the question of the legal basis of grants made by the emperors to the Teutonic Order; questions of the validity and effectiveness of imperial grants; the law of treaties; settlement of international disputes; judicature; admissibility of war; war loot; and the legal status of the Teutonic Order.26 Obviously Paulus placed his argumentation within natural law and canon law as the law of the church, but also as laws that regulated relations within Christen­ dom. He also referred to Roman law, albeit incidentally. He firmly based his rea­ soning on quoted authorities. What is best known among Paulus’s views are his arguments in favor of the rights of non-Christians as formulated in his papers presented at the Council of Constance. These arguments were made in the context of the dispute with the Teutonic Order and opposed the order’s arguments that the support of nonChristians for Poland and Lithuania in 1409–10 war was unjust and illegitimate. Paulus consistently defended the rights of non-Christian states to exist and denied the legitimacy of religious crusades against them. Thus, he claimed that alliances with non-Christians in just wars were admissible, and that Christian rulers could legitimately employ non-Christians in just wars. This reasoning was fully consistent 23 24 25 26

Ehrlich, “The Development of International Law,” 179–224. Belch, Paulus Vladimiri. Ehrlich, Pisma/Works, 1:xl. Ehrlich, Pisma/Works, 1:xlii–lxv; see, extensively, Belch, Paulus Vladimiri, 237–740; and briefly, Władysław Czaplin´ski, “Paweł Włodkowic (Paulus Wladimiri) and the Polish International Legal Doctrine of the 15th Century,” Baltic Yearbook of Inter­ national Law 7, no. 1 (2007): 65–82.

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with the views presented by Stanislas in “De bellis iustis.” Paulus must have known the sermon, although he never made any direct reference to it. Yet the concurrence between his thinking and the reasoning and context of the sermon makes it impossible to claim otherwise. It is also worth noting that Paulus—like Stanislas—based his argumentation on the fundamental idea of preserving peace. This position led to views on the lim­ itations of killing as well as looting in just wars. These postulates were really pro­ gressive and heralded the humanism to come. They are also closely linked with another crucial aspect of Paulus’s views that relate to those of Stanislas—namely, the value of human dignity as a basis for the whole doctrine. Paulus claimed that human dignity was inherent to both Christians and non-Christians, with all the implications of such a claim: “attacks on infidels, especially without a just cause, cannot be reconciled with the love of one’s neighbour, for one contrary excludes the other, and according to the Truth both the faithful and the infidels are our neighbours, without distinction.”27 What is more, Paulus consequently claimed in this context that it was inadmissible to forcefully convert nonbelievers,28 and he clearly opted for peaceful methods of conversion. Taking this approach into account, it seems justified to refer to Paulus’s opinions—as Tadeusz Jasudowicz did in his inspiring 1995 monograph29— as the early emanations of human rights postulates. This seems especially justified in the context of the concept of freedom of religion. The value of freedom of religion as advocated by Paulus strongly resonated in the future Polish political traditions—especially in the sixteenth cen­ tury, when the policy of religious pluralism and tolerance in Poland (after 1569 in the Polish-Lithuanian Commonwealth), which resulted in giving shelter to various religious minorities, was unique in Europe. The views of Paulus on the equality of Christians and non-Christians and their peaceful coexistence, on the right of nonbelievers to own property and state sovereignty, as well as on the implications for just war theory, very closely resem­ ble the views that Francisco de Vitoria would articulate more than a hundred years later. De Vitoria, in his lectures in 1532 (published in 1557), presented his views on these questions in the most practical context—namely, the conquest and colonization of the New World and the rights of its indigenous populations. It is de Vitoria who—though a theologian rather than a jurist—is widely celebrated as one of the fathers of the law of nations and an advocate of religious tolerance. In this context numerous scholars have considered the possible influence of Paulus

27 Saevientibus (1415), Ehrlich, Pisma/Works, 1:50 (all translations by Ludwik Ehrlich). 28 Saevientibus (1415), Ehrlich, Pisma/Works, 1:60 (“[I]t is not allowed to compel infi­ dels by arms or oppressions to embrace the Christian faith, for this way is to wrong our neighbour, and bad things must not be done in order that good things should result”); Opinio Ostiensis (1415), Ehrlich, Pisma/Works, 1:129 (“It is not licit to drive infidels by arms or oppressions to the Christian faith”). 29 Jasudowicz, S´ladami. Note that the very title of this book (paraphrasing the barely translatable Polish title into English: Following Ludwik Ehrlich’s footsteps: Paulus Vladimiri’s thought as inspiration for human rights) is more than meaningful.

46 M. Kowalski on de Vitoria.30 Most of these scholars assume such inspiration, but no hard proofs exist. Yet Ludwik Ehrlich’s argumentation in this respect is hardly deniable: [De Vitoria] refers repeatedly to decisions arrived [at] the Council of Con­ stance; the acts of the Council had not at that time been published, but there can be no doubt that he had been able to study them: there had been a Spanish “nation” (one of the five groups within the Council); moreover, [de Vitoria] had studied in Paris where, again, the acts of the Council were avail­ able. This is important because the reasoning in the first lecture not only recalls, but also is arranged in a way reminiscent of, that of [Paulus].31

Ludwik Ehrlich: The Legacy Discovered and the Dignity Saved Ludwik Ehrlich’s name has become intrinsically linked with names of both Sta­ nislas and Paulus, and it is he who has guided us through the teaching of these two Kraków Academy rectors. Ehrlich’s role as a propagator of their legacy cannot be overestimated. Yet it seems justifiable to claim that Ehrlich himself deserves a short notice among the great Polish Christian jurists. Ehrlich, born in 1889 and coming from an assimilated Jewish family, studied in Lwów, Halle, Berlin, and Oxford, lectured at Oxford and the University of California, Berkeley, then became a professor at the University of Lwów in 1923. He is widely recognized as one of the leading Polish international lawyers of the midwar period. Besides authoring the leading Polish handbook on international law and serving as ad hoc judge in the Permanent Court of International Justice, he became active in the process of reconstructing the Polish state after its revival in 1918. Notably, he came from exactly the same intellectual circles of the Faculty of Law at the Uni­ versity of Lwów in the first half of the twentieth century that shaped other great international lawyers of Jewish origin, including Hersch Lauterpacht, Raphael Lemkin, and Louis Sohn (Ehrlich was an academic teacher of the last two). Ehrlich managed to survive World War II and, after the inclusion of the eastern territories of Poland, including Lwów, into the Soviet Union, he moved to Kraków, where he became a professor at the Faculty of Law of the Jagiellonian University. His dedication to discovering, translating, studying, and popularizing the legacy of Stanislas de Scarbimiria and Paulus Vladimiri had another important context. As an openly devout Catholic in a totalitarian communist state that penetrated all aspects of social (and often private) life, Ehrlich, as a professor of 30 See, for example, Alfred Dufour, “Droit International et Chrétienté: Des Origines Espagnoes aux Origines Polonaises du Droit International. Autour du Sermon De Bellis Justis do Canoniste Polonais Stanislas de Skarbimierz (1360–1431),” in The Roots of International Law. Les Fondements du Droit International. Liber Amicorum Peter Haggenmacher, ed. Pierre-Marie Dupuy and Vincent Chatail (Leiden: Martinus Nijhoff Publishers, 2013), 95–119; Czaplin´ski, “A Right,” 37–56; Barbara Díaz, “Just War against Infidels? Similar Answers from Central and Western Europe,” Studia Philosophiae Christianae UKSW 53, no. 3 (2017): 55–75. 31 Ehrlich, “The Development of International Law,” 196.

Stanisław of Skarbimierz and Paweł Włodkowic

47

international law, found intellectual shelter in the history of international law. This position helped him to preserve his dignity in the time of communism, including the nightmare of the Stalin era. Characteristically, when Ludwik Ehrlich died, in 1968, he refused in his last will the authorities’ offer of a celebrated state funeral, conditioned by its secular character. Instead, it was Cardinal Wojtyła who cele­ brated his religious funeral.

Conclusion Stanislas de Scarbimiria and Paulus Vladimiri are both examples of great minds of their time. Their juridical legacies—in substance mutually linked—were created in the very practical context of the conflict between Poland and the Teutonic Order. Yet their views on the equality of Christians and non-Christians, as well as on the crucial meaning of peace, resulted in the progressive vision of a peaceful and pluralistic international society. Their theory of just wars, which perceived recourse to force as the ultima ratio, was also mostly innovative. Such views detached themselves from the practical context they were created in and should be per­ ceived as pioneering. These views contributed to and resonated in later thinking about the law of nations, which, in their time, had only begun the long process of legal emancipation. Regrettably, it seems that the contribution of these two Kraków scholars to that process has not been properly acclaimed. Nevertheless, one should appreciate the role of Stanislas and Paulus as influential Polish scholars, academic teachers, and mentors, as well as highly skilled diplomats and statesmen. They undoubtedly inspired and influenced the rich Christian political traditions of the prosperous, pluralistic, and tolerant Poland under the Jagiellonian dynasty.

3

Jadwiga of Anjou (1374–1399) Karolina Wyrwin´ska

Introduction Few monarchs in general are remembered for their consistency, wisdom, maturity, and persistence in matters of fundamental importance. To apply such attributes to a ruler means that his or her reign proved to be exceptional, and worthy of scho­ larly analysis. Jadwiga of Anjou was such a ruler. Not only did she become the only woman to bear the title of king, but she was also the first female ruler to be canonized. Interestingly, although she was considered the Hungarian monarch, she assumed the throne of Poland.1 Also known as Jadwiga and more commonly referred to as Jadwiga of Anjou, she was not a woman of law; however, if she had not been involved in renovating the Studium Generale in Kraków, it would not have recovered its stature in the face of overwhelming odds. Subsequent prestigious alumni of the Kraków Acad­ emy would have been forced to find their alma mater elsewhere, and the academy itself would not have shone in its full splendor in the fifteenth century, when it was famous for its high standards for lawyers, mathematicians, and geographers. If Jadwiga had not intervened personally, Kraków presumably would have waited for a very long time to acquire the theology faculty. Understandably, Samuel Harrison Thomson, an American historian of Central Eastern Europe, wrote that Jadwiga raised the university in Kraków without anyone else’s support,2 and that she was, simply put, one of Poland’s greatest rulers.3 She changed the face of Europe by marrying Jogaila, Grand Duke of Lithuania, and becoming a promoter of Eur­ ope’s unification in the spirit of Christianity, peacefully resisting the violent Christianization of Lithuania. She suffered much in her short life: first, when she learned of her father’s pre­ mature death; then when she decided to accept the crown and reign in an unknown country; and subsequently when she agreed to marry a man whom she did not know. Her mother was murdered, and both of Jadwiga’s sisters died 1 “Rocznik S´wie˛ tokrzyski,” in Monumenta Poloniae Historica, vol. 3 (Kraków: Akade­ mia Umieje˛ tnos´ci, 1878), 311. 2 Samuel Harrison Thomson, Europe during the Renaissance and Reformation (New York: Harcourt Brace & World, 1963), 194.

3 Ibid., 193.

DOI: 10.4324/9781003181255-4

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before her. She struggled for years with childlessness. She bore all of these trials in the name of duty and responsibility for her new homeland. One should not be surprised that her remarkable personality and charisma are still admired by people beyond Poland and Hungary. Henryk Bitterfeld, a fourteenth-century Dominican and professor at the University of Prague, dedicated to her his treatise De con­ templatione et vita activa. This text, which is the major medieval writing dedicated to an active and contemplative life, is also the first Poland-related masterpiece in the field of mystical and ascetic theology.4 Pope John Paul II spoke about Jadwiga of Anjou, during the canonization mass on June 8, 1997, in Kraków: Jadwiga, you have been waiting for so long for this solemn day. It has been almost six hundred years since you died as a young woman. Beloved by the whole nation, you, who are standing at the beginning of Jagiellonian times, the founder of a dynasty, the founder of the Jagiellonian University in ancient Kraków, you have been waiting so long for the day of your canonization—the day when the Church solemnly announces that you are a patron saint of Poland in its hereditary terms—Poland united with Lithuania and Ruthenia: The Republic of Three Nations.5

The Life and Reign The future ruler of Poland is thought to have been born on February 18, 1374, in Buda, as the youngest daughter of Louis I of the House of Anjou, also known as Louis the Great, king of Hungary and Poland. Her mother was Elisabeth of Bosnia, a member of the Bosnian Kotromanic´ dynasty. As a result of her descent, Jadwiga was of Polish, Bosnian, and French backgrounds. Three great-grand­ mothers and both of Jadwiga’s grandmothers were from the Piast dynasty; her paternal grandmother was Elisabeth, a sister of the last king of Poland from the Piast dynasty. Jadwiga’s maternal grandfather, Stefan Kotromanic´, was a Ban of Bosnia, whereas the Angevins were a collateral line of the Capetian dynasty. While working on Jadwiga’s genealogy, the medievalist Ockar Halecki indicated that “her genealogical tree clearly shows that the queen had more Polish blood than any other, and no less than seven of the tree’s branches directly led to the earliest members of the Piast family.”6 She was named after either her great-grandmother, Jadwiga of Kalisz, the wife of Władysław I Łokietek (Ladislaus the Elbow-high), or Jadwiga of Silesia, the saint canonized at the end of thirteenth century. The Hungarian court was considered one of the most powerful in Europe at the time. Louis I was the founder of the University of Pecs and patron of scholars and . 4 Karol Górski, Od religijnos´ci do mistyki: zarys dziejów zycia wewnetrznego w Polsce. Part 1. 966–1795 (Lublin: Towarzystwo Naukowe KUL, 1962), 49. 5 John Paul II, “Raduj sie˛ , Krakowie, oddaja˛ c hołd s´wie˛ tej Pani Wawelskiej,” L’Osser­ vatore Romano 7 (1997): 54. 6 Oskar Halecki, Jadwiga of Anjou and the Rise of East Central Europe, ed. Thaddeus V. Gromada (New York: Columbia University Press, 1991), 78.

50 K. Wyrwin´ska artists. He saw to the proper education of his three daughters, Catherine, Mary, and Jadwiga. Girls were raised to become future queens, acquiring useful knowl­ edge of history and geography and learning to speak not only their native lan­ guage but also Latin, German, Italian, and Polish. No less than their secular education, their religious education was important. Jadwiga, subsequently called “the apostle of Lithuania and Ruthenia,” grew up in a family famous for its piety. The king and his court attended mass every day, and the Pauline Fathers and Franciscans were constantly present at the royal court, as the orders close to the king’s heart. Lithuania would subsequently be converted to Christianity by Franciscans from Poland, and the first bishop of Vilnius was a Franciscan—Andrew Jastrze˛ biec, a former chaplain of Elisabeth, the queen of Hungary. Louis wanted his oldest daughter, Catherine, to assume the Polish throne. Catherine died, however, in 1378, at the age of only eight. The king then decided that Mary would assume the Polish throne and that the youngest, Jadwiga, would assume the Hungarian throne. Representatives of the Polish nobility paid tribute to both of his living daughters, accepting their right and the right of descendants of Louis to inherit the Polish throne. After the death of Louis the Great, however, the Hungarians chose Mary, rather than Jadwiga, as their queen to rule alongside her future husband, Sigismund of Luxembourg. On the Polish side, there was no consent to a union by marriage with Hungary, while the nobility—reluctant to accept Sigismund—declared that they would remain faithful to whichever daughter of Louis would be constantly present in the Kingdom of Poland. After negotiations, the widowed queen, Elisabeth of Bosnia, declared in Sieradz that she would send Jadwiga to Wawel Royal Catle, in Kraków, and Jadwiga’s future was decided. In accordance with the agreement, Jadwiga was to return to Buda after her coronation and remain there for another three years. The precise date of her coming to Wawel is not known, but it occur­ red sometime in the summer or fall of 1384. What is known precisely is that on October 16, 1384, the coronation of Jadwiga of Anjou as the king—not the queen— took place. This issue was explained by Jadwiga Stabin´ska, one of Jadwiga’s bio­ graphers: “In Jadwiga’s time, if one wanted to have a fully fledged monarch with undiminished power, the only possibility was to crown her as a king—and thus it was done.”7 One should remember that when Jadwiga’s father died, she was only eight years old, but she had spent two of the previous years in the Austrian court of Leopold III, Duke of Austria and the father of William of Habsburg, who had been desig­ nated to be Jadwiga’s husband. Leopold had proposed the marriage of Jadwiga and William to Louis in August 1374, when she was only a few months old, and Louis accepted and confirmed the proposal in March 1375.8 A solemn sponsalia de futuro (the canonical form of engagement) took place in Hainburg, Austria, on June 15, 1378. The agreement between the rulers, together with the complementary rite based on marriage, accepted at that time by the church, brought serious future 7 Jadwiga Stabin´ska, Królowa Jadwiga (Kraków: Znak, 1997), 31.

8 Bolesław Przybyszewski, “Jadwiga i Wilhelm,” Analecta Cracoviensia 7 (1975): 108.

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consequences, including questions about the validity of Jadwiga’s subsequent mar­ riage to Jagiełło and numerous painful accusations of bigamy against the pious queen. A significant source mentions the public annulment of this “marriage” by the queen when she was a mature woman. The source is a calendar of the Kraków Cathedral, the same in which the queen’s coronation and the arrival of Jogaila’s emissaries were noted: “Although Jadwiga, as it was claimed, was married to Wil­ liam (the prince of Austria) in her childhood, being nowadays a mature woman, she annulled this marriage in public, if it had ever existed.”9 According to Halecki, Jadwiga’s rejection of William of Habsburg was “the worst of many harrowing experiences and painful ordeals.”10 She had known William since her childhood and had spent two years in the Viennese court, while she did not know Jagiełło at all. Hence, her emotional reaction, referred to by the chronicler Jan Długosz, is not surprising. When William arrived in Kraków, he was not allowed to enter Wawel Castle, though he attempted to get to Wawel and finalize his marriage with the queen. According to the chronicler, Jadwiga was “offended by the removal of William from the castle, and she intended to meet him in the town. When, due to the efforts and command of the lords, she found the gates of the castle closed, she tried to break them down by hand with an axe that was passed to her.”11 The knight Dmitry of Goraj persuaded her not to break down the gates. Tra­ dition has it that the monarch prayed under the figure of a crucifix that she had brought from Hungary before she made the final decision about marriage with Jagiełło, and during the prayer she heard the voice of Christ saying, “Do what you see.” This remarkable event made her abandon her dream of marrying William. From the coronation of Jogaila—who assumed the name Władysław II Jagiełło—until the death of Jadwiga on July 17, 1399, two kings ruled in Poland. Hence, medievalists writing about the matter often indicate that reigning (by Jadwiga) is not ruling (by Jagiełło). When Władysław Jagiełło ascended the throne, two courts were functioning in Wawel: the king’s and the queen’s, each with its own entourage, guests, expenses, and accounts. Nevertheless, this did not initiate competition between them. Jadwiga wanted their subjects to recognize Władysław Jagiełło as an ordinary lord and heir, just as she was, and as if she had died before him. She appealed to Kraków municipal authorities, reminding them of the need to pay tribute of loyalty to the king. The royal marriage must have been difficult, at least at the beginning, especially when William and the Teutonic Order spread accusations of the queen’s bigamy and, afterwards, a certain courtier and Polish kight named Gniewosz of Dale­ wice—William’s supporter—accused the queen of infidelity. Nevertheless, that crisis was averted. 9 “Kalendarz krakowski,” in Monumenta Poloniae Historica, ed. August Bielowski, vol. 2 (Lwów: self-published, 1872), 913. 10 Halecki, Jadwiga of Anjou, 13. 11 Jan Długosz, Roczniki czyli Kroniki sławnego Królestwa Polskiego, ks. 10: 1370–1405, ed. Stanisław Gawe˛ da and Maria Kowalczyk (Warsaw: Wydawnictwo Naukowe PWN, 2009), 198.

52 K. Wyrwin´ska During the first years of her reign, Jadwiga became a “symbol.” She was sym­ bolically necessary to maintaining the unity of the state, which had been sig­ nificantly impaired by the interregnum crisis. During the interregnum, while performing her symbolic role, she “commanded” an expedition to Red Ruthenia. Poland unsuccessfully tried to take this territory—disputed in Polish-Hungarian politics—away from Hungary after the death of Louis. During the expedition, Jadwiga performed as the king of Poland and as a daughter and successor of Louis of Hungary. Previously unconquerable, the city of Halicz finally capitulated in August 1387 to the army under the command of Jadwiga’s general and Jagiełło’s cousin, Vytautas the Great. Jadwiga’s diplomatic skills soon evolved into her mature involvement in politics. She personally engaged in averting a serious crisis between Władysław Jagiełło and Vytautas (Witold), which ended with an agreement made between the cousins in Ostrów, in August 1392. That agreement strengthened Jadwiga’s authority,12 as she was, next to Jagiełło, an equal addressee of Vytautas’s oath of allegiance. That experience made her an equal partner in solving disputes. Even the knights of the Teutonic Order, resistant to Poland and especially to Władysław Jagiełło, respected the queen. For her part, Jadwiga, in discussions with representatives of the order, was aware that the agreements between them were fragile. Due to a lively correspondence of the queen with the order, a meeting with Konrad von Jungingen—the grand master of the order—took place, with the aim of returning the Dobrzyn´ Land, along the Vistula River, to Poland. The negotiations ended in complete failure. According to sources, the queen—very upset with the turn of events—uttered prophetic words about the defeat of the order by Władysław Jagiełło after her death. The last years of Jadwiga’s reign were stigmatized more and more with the sorrow of her childlessness, which, in the context of the great politics of the day, brought uncertainty about the future of Poland and questions about the purpose of her union with Jagiełło. Her biographers indicate that this period of her life was the most pain­ ful, but at the same time she reached the summit of her spiritual growth. The turn of 1398 to 1399 brought a surprising and unexpected event: the queen and the king were expecting a baby. The happy father shared the news with Eur­ opean courts, and gifts were sent from everywhere for a royal heir. The queen’s statements preserved from those times prove that she had predicted the danger of her own death in childbirth. The prematurely born daughter of the royal couple lived for only three weeks. The worsening condition of the baby was hidden from the queen. Jadwiga died on July 17, 1399. That day, a vicar of the Kraków Cathedral, struggling with emotions, paid his last respects to the queen in a beautiful way: At noon today, Her Majesty Jadwiga died, the Queen of Poland and heir of Hungary, an untiring disseminator of divine glory, a defender of the church, a 12 Jarosław Nikodem, Jadwiga król Polski (Wrocław: Zakład Narodowy im. Ossolin´skich, 2009), 292.

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servant of justice, a root of all virtues, a humble and gracious mother of orphans. Nobody in the whole world had seen a human being like her coming from the royal family.13

Christianization of the Grand Duchy of Lithuania Jadwiga’s marriage with Jagiełło brought important changes to the political chessboard of Europe. Teutonism lost its meaning after the decision by Jagiełło to agree to baptism: the Teutonic Order no longer had an argument in favor of “evangelization with a sword.” Jadwiga made the difficult decision to marry Jagiełło—on the condition of his baptism—fully aware that when Lithuania accepted baptism, the whole of Europe would be Christian. “Jadwiga made Christianization of Lithuania possible by sacrificing her personal happiness and resisted violent conversion of those people.”14 Too frequently, it seems, the sig­ nificance of that consent is omitted. It was not only the condicio sine qua non for later events. It was the decision of the ruler. For all those reasons, Jadwiga should be considered as at least the leading creator of Lithuania’s Christianization pro­ cess. That is why the inscription on her grave states that she was “the one who brought the light of the Christian faith to pagans.” Jogaila’s agreement to be baptized and to adopt the Christian name Władysław, as well as his brothers’ baptism, was a prelude to the great venture that was the Christianization of the whole country. It was a process: uneasy against persistent accusations by the Teutonic Order of merely apparent acceptance of baptism by Lithuania; and uneasy against the necessity of fighting the cult and pagan rites performed by (it is assumed) around one fifth of the Grand Duke’s subjects.15 Lithuanian nobles accepted baptism at a convention called by the king at Vil­ nius in February 1387, whereas the Christianization of Lithuanian lands was symbolically initiated by Władysław Jagiełło and Vytautas the Great on a mission trip of a few months to spread Christianity throughout the country. The Chris­ tianization itself was not brutal and violent. Jagiełło and Vytautas preferred peaceful methods,16 but indications are that accepting Christianity meant an intolerance for allowing pagan cults to continue. One should remember that Christianization of the lower social stratum assumed collective baptism of whole groups preceding the teaching of Christian morality. It would be a mistake to believe that Jadwiga stayed on the sidelines merely observing the course and progress of Christianization of Lithuania. One can con­ clude that the successful course of this process occupied the queen’s mind as she sought effective means to carry it out peacefully. She was aware of the material needs of newly created Vilnius Cathedral and Lithuanian parishes, which is why 13 “Kalendarz krakowski,” 926.

14 Stefan Wyszyn´ski, Na szlaku tysia˛ clecia (Warsaw: Soli Deo, 1996), 415.

15 Wojciech S´wieboda, “Sytuacja religijna i wyznaniowa w monarchii Jadwigi Andega­ wen´skiej i Władysława Jagiełły,” in S´ladami s´wie˛tej królowej Jadwigi i jej epoki, ed. Tomasz Graff (Kraków: Parafia s´w. Jadwigi, 2013), 111.

16 Ibid., 112.

54 K. Wyrwin´ska she supplied them with goblets, books, monstrances, crosses, paintings, chasubles, and other jewelry and vestments.17 Undoubtedly, her main contribution to the work was her striving to renovate the Kraków Academy and her efforts to obtain the pope’s consent to create the Faculty of Theology. Spiritually formed by Christianity, aware of the importance of and power of peace in the process of spreading the new religion in Lithuania, and having on her side a husband who was a convert, Jadwiga with wisdom and care looked after the spiritual, material, and intellectual foundation for Christianity in her lands.

Relation with the Papacy during the Western Schism Jadwiga’s reign occurred during a very difficult period for the Latin Church—the Western Schism, which started with the election of the antipope Clement VII in September 1378. The Schism caused a political and religious split in Europe and was expressed by two kinds of obedience, one to Rome and the other to Avignon. Poland and the Grand Duchy of Lithuania were under the obedience of Roman popes. In this complex context, it is worth calling to mind Jadwiga’s relations with the popes in power during her reign, namely, Urban VI and then Boniface IX. The first difficulty with Pope Urban VI concerned Jadwiga’s being accused of bigamy for marrying Jagiełło, an accusation that the Habsburgs asserted on “solemnities of Hainburg,” supported by the Teutonic Order. In a letter on December 30, 1387, addressed to the Mazovian Dukes Jan and Siemowit, the pope expressed his joy at accepting the baptism of Jagiełło, but he mentioned the questions about the legality of the royal marriage, as they prevented the pope at that time from welcoming the king of Poland as a son of the Holy See.18 Very little is known about the subsequent trial in the papal curia: the Habsburgs were absent, and the Polish party was represented by Piotr Wysz, a jurist, a doctor of both civil and canon law, a subsequent bishop of Kraków and Poznan´, an executor of the queen’s will, and a renovator of the university in Kraków.19 As a result of the trial, the pope recognized the legality of Jadwiga’s marriage to Jagiełło, most likely in late 1388 or early 1389.20 One can see a definite change of narrative in Urban VI’s letter from March 1388, addressed to Dobrogost, the bishop of Poznan´. Here the pope accepted the validity of the royal couple’s marriage without reservations. A bull from Urban on 17 Długosz, Roczniki czyli Kroniki, 214. 18 “Codex epistolaris Vitoldi Magni Ducis Lithuaniae 1376–1430,” in Monumenta Medii Aevi Historica Res Gestas Poloniae Illustrantia, vol. 6 (Kraków: Academiae Literarum Cracoviae, 1882), xxxvi, 14. 19 Stabin´ska, Królowa Jadwiga, 54–55. 20 Undoubtedly, the resolution was affected by an investigation conducted by the papal legate, Maffiolus de Lampugnano, bishop of Ragusa, who confirmed Jagiełło’s sincere conversion to Christianity and testified to the “glorious consummating of Jadwiga’s and Jagiełło’s marriage.” See “Codex epistolaris saeculi decimi quinti,” in Monumenta Medii Aevi Historica Res Gestas Poloniae Illustrantia, ed. Anatolii Lewicki (Kraków: Krakowska Akademia Umieje˛ tnos´ci, 1891), 10.

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March 12, 1388, addressed to Bishop Dobrogost, entitled the bishop to found a cathedral church in Vilnius and to transfer Bishop Andrew Jastrze˛ biec to the Diocese of Vilnius; the bull named King Władysław Jagiełło “the Dearest in Christ” and Jadwiga “the daughter.” An undated letter from the queen to the pope is believed to come from this period. In this letter, she called the Roman church “the Saint Mother” and refer­ red to her own and her ancestors’ faithfulness to the church. She did not refrain from making a complaint of the inhumane way the papal auditores and iudices treated her subjects on behalf of the Holy See. The queen considered the misuse of excommunications and decrees as an affront to herself and, moreover, indicated that they scandalized converts and by no means strengthened the authority of the Holy See. The death of Urban VI in October 1389 and the election of his successor, Boniface IX, opened a new chapter in the relations between Poland and the Holy See. The preserved and abundant correspondence between Jadwiga and Boniface IX provides ample evidence of the Polish sovereign’s receiving the pope’s approval. During the papacy of Boniface IX, the papal engagement in Polish matters increased significantly; Boniface issued as many as 875 documents related to Poland,21 which is the best confirmation of active communication between the two countries. Pope Boniface IX acceded to multiple requests by the queen—for instance, for her freedom to choose her confessor, for establishing a college of psalters in the Kraków Cathedral, and for numerous prebends for the church in Poland, which the queen supported.22 Regarding relations between the pope and the Polish queen, special attention should be drawn to events crucial to herself and the state. The first concerned a request to the pope in connection with the celebration of the jubilee of 1390. Many pilgrims who set out from Poland to Rome were robbed and imprisoned in Austria and consequently forced to return to their country. The queen asked the pope to offer them the possibility to receive a plenary indulgence in Kraków without the necessity of making yet another pilgrimage to Rome. She was given such consent, and thus those subjects obtained a plenary indulgence, provided that they visit four local churches designated by the Holy See. The celebration of the jubilee lasted until the end of November 1392. In a letter from December 1391, the pope assured the queen of his support and favor toward her and asked her to instill such faith and loyalty in her husband. In the same letter, he suggested that Jadwiga should use a special code in corre­ spondence between them, which would allow Boniface to decipher her wishes for filling ecclesiastical posts. Jadwiga, acknowledging the plentitude of the pope’s . 21 Grzegorz Rys´, “Jadwiga wobec władzy papieza w Kos´ciele doby kryzysu i schizmy,” in ´ Graff, Sladami, 29. 22 Tomasz Graff, “Osobowos´c´ Jadwigi Andegawen´skiej w s´wietle kontaktów Polski ze Stolica˛ Apostolska˛ w okresie schizmy zachodniej w latach 1388/9–1399,” in S´wiat . kobiet w Czechach i w Polsce w s´redniowieczu i w epoce nowozytnej, ed. Wojciech Iwan´czak, Agnieszka Januszek-Sieradzka, and Janusz Smołucha (Kraków: Wydaw­ nictwo Naukowe Akademii Ignatianum w Krakowie, 2018), 541.

56 K. Wyrwin´ska spiritual power and remaining faithful to the Roman allegiance, nevertheless in 1392 forced Piotr Wysz’s nomination as bishop of Kraków, against the pope’s plan to nominate Maffiollus de Lampugnano and against the wishes of the Kraków Cathedral Chapter, which had suggested Sieciej of Chmielnik.23 This diplomatic tension did not impede the acquisition of a papal bull, on Jan­ uary 11, 1397, allowing the establishment of the Faculty of Theology in the Stu­ dium Generale in Kraków. However, while the academy was surely presented in the request as functioning (which was indicated by the papal response), it had remained inactive since the death of its founder, Casimir III the Great, in 1370. Thus, the queen’s effort to establish the faculty of “holy theology” became a part of a more impressive deed, the achievement of restoring the university, elaborated on separately below. The undoubtedly privileged status that Pope Boniface IX bestowed upon Jad­ wiga, “even against other European rulers,”24 can be seen in yet another vital event, which was supposed to be festive but turned out to be one of the last moments in the relationship between the Polish queen and the successor of Saint Peter. When the joyful news about the Polish royal couple expecting a desired offspring resounded in Europe, Władysław Jagiełło sent Wojciech of Jastrze˛ biec to Rome to ask the pope to be the godfather of the child. Boniface agreed and recommended that the child be given the name of Boniface or, if it was a girl, a female equivalent of it—Bonifacia—as the second name. Moreover, the pope ordered Wojciech of Jastrze˛ biec to act on his behalf. The joy after the birth of a girl, Elisabeth Bonifiacia, did not last long. The child was born prematurely, on June 22, 1399, and died on July 13. A few days later, the queen, too, died.

Spirituality of the Queen: “Who Will Bring Them Back Their Shed Tears?” Having grown up in an atmosphere of spiritual discipline and discernment, Jadwiga as a queen was renowned for her kindness and piety, possessing some spiritual traits typical of the Franciscan ascetics—joyfulness, love of God, mercifulness, humility, sympathy for every suffering creature, and inclination toward peace and kindness.25 All of these virtues could be seen during one of the first journeys made by the royal couple, to Greater Poland to be exact. According to Długosz’s narrative, when royal attendants confiscated peasants’ horses, cattle, food, and grain seeds for the royal court, the deeply distressed farmers turned to Jadwiga for help. The queen managed to convince her husband to command that the seized goods be returned. When the peasants had regained everything, Jadwiga—sensitive and responsive to human injustice—said to her husband, “We have admittedly returned the cattle to the pea­ sants, but who will bring them back their shed tears?”26 23 24 25 26

Ibid., 547.

Ibid., 552.

Przybyszewski, “Jadwiga i Wilhelm,” 147.

Długosz, Roczniki czyli Kroniki, 207.

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Jadwiga’s sensitivity to human misery, poverty, and illness was confirmed in her numerous deeds, preserved in legends, chronicles, and essays. The queen was famous for works of mercy. She took special care for hospitals by providing them with endowment and by approving their tax exemption. Moreover, she did not confine herself to donating funds but also visited the hospitals that happened to be along the trail of the royal journey, nursed the sick herself, and supported the ones in need through her charity. Two of the numerous funds and endowments she created for monasteries deserve special mention. The first was a fund that Jadwiga and Jagiełło created for the monastery of the Pauline Order at Jasna Góra in Cze˛ stochowa. The founda­ tion charter of the royal couple, from 1393, confirmed the foundation granted by prince Ladislaus of Opole and provided solid grounds for the functioning of a subsequent, very important center of the cult of the Virgin Mary in Poland. The second foundation exemplifies the queen’s spirituality and her peculiar sensitivity to the needs of worshipers celebrating the liturgy in a different rite. The foundation of the royal couple included the monastery and the church of the Holy Cross in Kleparz (which had not yet been incorporated into Kraków). The build­ ings about to be erected had been designated for the Benedictines arriving from Prague and celebrating the liturgy in the Slavic rite. It was undoubtedly an act of cultural courage on the part of the queen to highlight the originality of the Slavic culture against the supremacy of the West.27 The royal foundation was created to satisfy the spiritual needs of Ruthenians, while Slavic Benedictines were supposed to go to Red Ruthenia as missionaries in the future.28 Długosz briefly mentions the queen’s spirituality, which was molded by knowl­ edge of the Old and New Testaments as well as by homilies delivered by doctors of the church, hagiographies, stories of the martyrdoms, the revelations of Saint Bridget, and the sermons of Saint Bernard and Saint Ambrose. She appreciated books. The trilingual Sankt Florian Psalter, written in Latin, Polish, and German, is one of the most valuable treasures and artifacts of the Polish language; it was prepared for the queen while she was expecting her baby, though she did not live to see its accomplishment. Nevertheless, a monogram in the psalter, consisting of a capital M intertwined with a second M, proves its origin, for it reflected the queen’s philosophy—“Mary and Martha,” referring to the two sisters from the gospels. The life of Jadwiga was one of enlightened faith. In religion she was looking for … answers to and guidelines for everyday issues, not willing to cease to exercise religious practices. Principles of her faith were with her every step of the way throughout her life, not only behind closed doors.29 27 Krzysztof Stopka, “Jadwiga a kultura polska pod koniec XIV w.,” in Graff, S´ladami, 59. 28 Nikodem, Jadwiga król Polski, 364. 29 Anna Strzelecka, “Z biografii królowej Jadwigi,” Analecta Cracoviensia 7 (1975): 104.

58 K. Wyrwin´ska Jadwiga was also a patron of culture, which was created first and foremost by the church at the time. Her active engagement in this field, mainly in establishing various types of foundation, makes it possible to see her passion for beauty in art­ work, music, and books. Some of her gifts for Vilnius Cathedral and individual parishes were funded by her allotting her dowry gowns to this cause. The many fruits of her generosity include, for example, three altars in the Wawel Royal Cathedral, embroidered vestments, and a bishop’s rationale with pearls that had probably been a coronation gift from Jadwiga. For contemporary observers of Jadwiga’s lifework, the most important among a whole gamut of her virtues was pacifism. Undoubtedly, remaining steadfast in her love of peace was extremely difficult at the time. Particularly tense relations with the Teutonic Order (The Order of Brothers of the German House of Saint Mary in Jerusalem) would perpetually threaten peace and an outbreak of war. Upon the Christianization of Lithuania and the challenge to the decision of the Teutonic Order to invade Lithuania, the relations between Poland and the order were highly at risk. Jadwiga did her best to prevent armed conflict. Through her nego­ tiations with the grand master, Konrad von Wallenrod, she tried to prevent Teu­ . tonic raids into Zmudz´. Then she struggled unsuccessfully to regain Dobrzyn´ Land, which had been pledged unlawfully to the order by Ladislaus of Opole, and she tirelessly cooled Jagiełło’s military inclinations to pursue war with the Teutonic Order: In critical moments, she handled thorny negotiations, treating directly, in intimate conversation, with the grand master and influential leaders of this powerful organization; returning always with some kind of agreement; often, to be sure, unsatisfactory in itself but yet sufficient to prevent armed conflict.30 During the reign of Jadwiga and Jagiełło, such “critical moments” were not in short supply. However, the Teutonic Order was not the only source of crisis. In the late 1380s, as a result of a conflict between Jagiełło’s brother, Skirgiełła, and the king’s cousin, Vytautas, the latter allied himself with the Teutonic knights. War began. Considerable credit must go to the eighteen-year-old queen for set­ tling this conflict and mediating between the cousins. Soon afterward, as a consequence of the death of Mary—Jadwiga’s sister and the queen of Hungary—the position of Sigismund of Luxembourg had weakened significantly. The concern was that Jadwiga, stepping forward as an heir to the Hungarian throne, would deprive Sigismund of Luxembourg of his Hungarian crown, as the treaty from 1383 was still in effect. In accordance with the treaty, the daughter of Louis the Great who outlived the other one that had died without issue would inherit her sister’s right to the throne. The status of Jadwiga and Jagiełło was additionally strengthened by the tribute of a Wallachian hospodar 30 Charlotte Kellogg, Jadwiga, Poland’s Great Queen (New York: Macmillan, 1931), 282.

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paid to the royal couple as the successors to the Hungarian crown. For some reason, however, Jadwiga did not reach out for this crown, which had seemed to be easily accessible. Her reluctance might have been due to the fact that she had a clear picture of international affairs and was far from putting her home country at risk of a deep crisis. Admittedly, Sigismund of Luxembourg had numerous ene­ mies, yet they had been scattered, not united, and failed to form a strong camp. Her possible reign in Hungary would have meant neglecting Polish issues and, in consequence, would have jeopardized the continuance of the Polish-Lithuanian Commonwealth, the interests of which she had been protecting.31 Powerful privilege guaranteed by the title of heres Hungariae made it possible for Jadwiga to take advantage of it as an effective argument during peace nego­ tiations with Sigismund of Luxembourg. In July 1397, in the small border town of Stara Wies´, the treaty was signed; Sigismund made peace with Poland for the fol­ lowing sixteen years in return for Jadwiga renouncing her right to the Hungarian crown. Moreover, he pledged to persuade the Teutonic Order to pursue peace with Poland. The risk of armed conflict was averted yet again, and a bond between Sigismund and the Teutonic Order was broken. This was all due to her love of peace, which resulted in respecting rules in politics: internationalism and uni­ versalism exercised by Jadwiga.32

Renovation of the Kraków Academy Next to her role in the Christianization of Lithuania, Jadwiga’s contributions to renew the Kraków Academy constitute the second valuable achievement of her reign. Thus, it is not surprising that in a prayer created in approximately 1407 for the dead and living benefactors of the academy, Queen Jadwiga is mentioned first as its benefactress and renewer. What might come as a surprise, however, is the fact that considering that it had been nearly fifty years since the founding of the academy, its founder—Casimir III the Great—was not mentioned in this prayer.33 Before elaborating on the renovation itself, it is worth mentioning its initiators, for several reasons: first, to appreciate that while Jadwiga herself did not initiate the act of this remarkable, essential, complex, and expensive restoration of the Kraków Academy, this does not diminish her role in it; and, second, to appreciate the importance of Jadwiga, for after all, “the greatness of those in power is mainly defined by the people with whom they surround themselves.”34 Since Casimir III had founded the academy, the need for providing the country with a constant 31 Halecki, Jadwiga of Anjou, 228–29. 32 Ewa Maleczyn´ska, Społeczen´stwo polskie pierwszej połowy XV wieku wobec zagadnien´ zachodnich: studia nad dynastyczna˛ polityka˛ Jagiellonów (Wrocław: Wrocławskie Towarzystwo Naukowe, 1947), 19. 33 Janusz Sondel, Słownik historii i tradycji Uniwersytetu Jagiellon´skiego (Kraków: Uni­ versitas, 2012), 288. . 34 Krzysztof Ozóg, “Duchowni i uczeni w otoczeniu s´w. Jadwigi,” in S´wie˛ ta Jadwiga królowa w perspektywie III tysia˛ clecia, ed. Hanna Kowalska, Helena Byrska, and Antoni Bednarz (Kraków: Katolickie Centrum Kultury, 2002), 165.

60 K. Wyrwin´ska influx of educated people had been recognized. This belief was shared by Jadwi­ ga’s advisers, the same ones who had counseled her father and grandmother. Among those close and trusted advisers who were major proponents of revitalizing the university, a particularly important one was Jan of Radliczyce, a theologian and physician, at one time a court doctor of Louis the Great, later a bishop of Kraków, and often regarded as an initiator in planting this idea in the royal couple’s mind. After the death of Jan of Radliczyce, the dispute over naming the next bishop of Kraków ensued. Jadwiga’s rigid attitude influenced the decision to entrust the position to Piotr Wysz: Thanks to her, Kraków gained one of the most remarkable priests in its thousand-year history. He was a crucial figure, having an impact on various decisions and enterprises established by the queen as well as on her maturing in holiness.35 When discussing the circumstances in which the academy was renovated, it is impossible not to mention this jurist, a graduate of universities in Prague and Padua, where he received his doctorate in both laws (Roman and canon law), a colleague in the papal curia, a chancellor in the court of the queen, a bishop of Kraków, and afterwards a bishop of Poznan´. It was Piotr Wysz, the queen’s close and trusted adviser as well as a protector of her high repute against the Habsburgs’ accusations, who deserves credit for making the sovereign engage in the con­ cept of reintroducing the academy. He was appointed a restorer of the uni­ versity by Jagiełło, and his duties included protecting the university’s principles and privileges, allocating the university’s income, and assigning the salaries of the professors. The fact that, in the 1390s, Jadwiga undertook the project of restoring the Kraków Academy meant that a circle of scholars—like her, aware of the need to have a flourishing center of higher education in the country—gathered by her side. Stanisław of Skarbimierz36 clearly understood and was absolutely devoted to this concept. He was a jurist, a doctor of both laws, a graduate of the University of Prague, and twice a rector of the Kraków Academy, the first time in the same year as its renovation. He emphasized that educated people should bring glory to the church, whereas through their service they contribute to the growth of power of the country. Stanisław of Skarbimierz is a figure who remarkably contributed not only to the university but also to making other people know about the deeds and virtues of Jadwiga. It was he who had the great privilege of delivering a sermon during the funeral of the noble queen. He was also a member of a committee, appointed in 1426, to study the life and deeds of Jadwiga as well as miracles to support her canonization. The queen was also surrounded by others educated in Prague, in the spirit of church restoration and settling the schism—theologians and lawyers who spared 35 Ibid., 169.

36 See Chapter 2 in this volume.

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no effort to restore the university. Among them, four in particular were Bartłomiej of Jasło, Mikołaj of Gorzków, Jan Isner, and Jan Szczekna.37 Bartłomiej of Jasło, a master of liberal arts and a theologian, became famous already at the beginning of the 1390s for his sermons, in which he promoted the concept of restoring the academy and pointed out its benefits. Mikołaj of Gorzków, a professor and the first dean of the Faculty of Law at the Kraków Academy, as well as its subsequent rector and later a bishop of Vilnius, was called by Stanisław of Skarbimierz “the father of the university” because of his contribution in creating the university sta­ tutes. Jan Szczekna and his contributions have already been mentioned. Jan Isner, a doctor of theology and the first professor of theology in the renovated academy, funded a dormitory for poor students from Lithuania and Red Ruthenia, named Bursa Isneri. The restoration of the academy had yet another distinguished proponent in the person of Mateusz of Kraków, whose influence on the queen was immense. This theologian, preacher, and diplomat was a professor of the University of Prague and a rector of Heidelberg University. In 1397 he was summoned by the queen to help establish the Faculty of Theology. Convinced by the requests and arguments of her advisers, Jadwiga persuaded the king to found the university. Scholars studying the life of Jadwiga point out, as Stanisław of Skarbimierz did, that Jagiełło—unwilling to accept decisions other than his—was prone to make gallant exceptions for his wife.38 Nevertheless, there is no doubt that all these efforts made by educated priests of that time, and even the enthusiasm of the royal couple, would have meant nothing without the pope’s consent, which obviously was granted rapidly. The pope’s reverence for Queen Jadwiga was of the utmost importance in this instance. Jadwiga did not live to see the restoration of the Kraków Academy, which was formally enacted by Władysław Jagiełło on July 26, 1400. The queen had been pondering the future fortunes and survival of the university nearly until her death: faithful to her commitment, she left a bequest in her will to the university. According to Długosz, She herself appointed executors of her will, that is, a bishop of Kraków—Piotr [Wysz]—and a castellan of Kraków—Jan of Te˛ czyn—and commanded them to spend all her jewels, gowns, money, and the whole royal legacy on support for the unfortunate and the foundation of the Kraków university.39 The content of Queen Jadwiga’s will, considering the circumstances under which it had been made—the trauma of a mother after the loss of her only child and in fear of her own imminent death—makes this event overwhelmingly significant. Apparently, the queen, aware of the multiethnicity of the state joined by a marital union of the rulers, identified herself with the work which she had once been . 37 Krzysztof Ozóg, “Duchowni i uczeni,” 172–73.

38 Nikodem, Jadwiga król Polski, 375.

39 Długosz, Roczniki czyli Kroniki, 303.

62 K. Wyrwin´ska encouraged to undertake—the renovated academy was to ensure cultural integra­ tion in the Christian spirit. This concept was implemented in the act of the uni­ versity’s restoration: one of the main aims of restoration of academic activity in Kraków was to support the Christianization of Lithuania. Earlier, successful efforts of the royal couple to establish the Faculty of Theology had the same intention. The money that Jadwiga left to the academy was spent on a house later intended by Władysław Jagiełło for the Collegium Almae Universitatis Studii Cracoviensis and a salt pit in a salt mine in Bochnia. The proceeds from the pit were to go to the university funds for good. And although the queen’s generosity was considerable, there is no doubt that the permanent base for the functioning of the university was provided, after the death of his wife, by Jagiełło. Owing to the university’s restoration and to Jadwiga’s generosity, together with support from Jagiełło and numerous other benefactors, the Kraków Academy flourished so well that in the fifteenth century it became renowned in the world for its remarkable scholars and attracted students from the whole of Europe. The Studium Generale in Kraków became famous first and foremost for teaching law, mathematics, geography, and astronomy. Among its most notable graduates of the time was the jurist Paweł Włodkowic40—a canon law professor, an expert on international law, an opponent of spreading faith under duress, a proponent of the rights of the inhabitants of Samogitia (in Lithuania) oppressed by the Teutonic Order, and a defender of Polish affairs of state in disputes against the Teutonic Order during the Council of Constance. Toward the end of the fifteenth century, Nicolaus Copernicus41 began his studies at the academy, later graduating from the universities of Bologna, Padua, and Ferrara before becoming a jurist and achieving renown for his work in astronomy.

Conclusion Jadwiga could not rule Poland on her own, despite having been prepared from childhood to be a queen, despite her undoubted competence, and despite her strong character. She was a woman, and in that part of Europe at the time, a woman’s autonomous reign was out of the question. She was crowned as a king: a great-granddaughter of Władysław the Elbow-high, an heiress of the Piasts, and hence “an inherent Lady” of the Kingdom of Poland. She was essential to the state’s functioning, maintenance, and enlargement of its territory. It would be hyperbole to call Jadwiga’s reign “independent,” although the range of the Kraków nobles’ influence on the queen’s decisions is the subject of scholarly discussions and disputes to the present day. “The young lady needed a husband, an actual king. A female monarch even in the concept of the most pro­ gressive nobles was respected first and foremost as a legal source of transferring power.”42 The nobles’ choice fell on Jagiełło, though it is uncertain which side, 40 See Chapter 2 in this volume.

41 See Chapter 4 in this volume.

42 Stabin´ska, Królowa Jadwiga, 36.

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the Polish or the Lithuanian, initiated talk about his possible baptism, marriage to Jadwiga, and coronation. Undoubtedly both countries benefited from that venture. Accordingly, the Act of Krewo, in August 1385, when Jadwiga was eleven years old, included the condition that marrying Jadwiga and assuming the Polish throne depended on Jagiełło’s being baptized, thus serving as an encouragement for his subjects to be baptized as Christians. Lithuania thus came under the sphere of Wes­ tern influence but did not fall simultaneously under the influence of the Teutonic Order. Probably the desire to align with the West caused Jagiełło to abandon the idea of marrying the daughter of Dmitry Donskoy, the prince of Moscow, and accepting baptism in the eastern rite. If that marriage had been effected, Lithuania would have come under the overwhelming sovereignty of Moscow. Jadwiga, living as an enlightened worshiper, was aware of the need to constantly fan the fervor of the Christianization of Lithuania in order to form a permanent cultural community. Within two nations joined at the time solely by a personal union of their rulers, such a cultural community had to be based on a solid reli­ gious foundation.43 The union between Jadwiga and Jagiełło initiated in Krewo opened a new chapter in the history of Poland. The subsequent chain of events, beginning with the queen’s death, indicated that without the decision made more or less inde­ pendently by the eleven-year-old Jadwiga, the process of gradually strengthening Polish-Lithuanian relations, resulting in the real union of the countries in the Polish-Lithuanian Commonwealth in 1569, would not have been possible.

43 Halecki, Jadwiga of Anjou, 247.

4 Mikołaj Kopernik, Copernicus (1473–1543) Franciszek Longchamps de Bérier

Introduction The editors hope to investigate in this volume aspects of Christian and other history—including society and its laws—through the lives, work, and legacies of cer­ tain exceptional individuals, specifically jurists who can illustrate the contribution that a Christian personage can make to the common good. While the law essen­ tially concerns mundane, everyday matters, working in law and in legal fields can be a path that leads to the realization of true Christian virtues. That is why this chapter turns to the figure of one particular lawyer, one for whose life faith in the Triune God was not without significance. Copernicus was a Catholic clergyman, and his attention to good faith can be seen in the legal advice he gave in 1535 to Maurice Ferber, the bishop of Warmia (Ermland), about a dispute over a border meadow with the owners of the village of Nerwiki (Nerfken/Nerwiken) in Prussia: Apparet de dolo et mala fide, in quibus totus neruus consistit huius cause—“The whole heart of the case comes down to deception and bad faith.”1 The owners were supported by their ruler, Albrecht von Brandenburg-Ansbach, against the Warmian episcopal duchy. Albrecht had become the prince of Prussia nine years previously, when, as a grand master of the Teutonic Order, he converted to Lutheranism. Nevertheless, the bishopric of Warmia remained a Catholic principality, having belonged to the Crown of the Kingdom of Poland since the peace of 1466 concluded in Torun´ (Thorn). The city of Torun´ had been liberated from the rule of the Teutonic Order as early as 1454, and it was there, in 1473, that Nicolaus Copernicus was born. Copernicus is known to the world as an astronomer, mathematician, carto­ grapher, economist, and, to some, as a physician. Few, however, think of him as a lawyer. Between 1509 and 2013, of the thousands of works published on Coper­ nicus, only thirteen dealt with his legal side, and even lawyers are surprised when they come across discourse concerning Nicolaus Copernicus “the jurist.” Yet, contrary to how he is generally remembered by posterity, he was in his profes­ sional life principally a jurist, a Christian jurist. 1 Teresa Borawska and Henryk Rietz, “Ein rechtlicher Rat von Nicolaus Copernicus aus dem Jahre 1535,” Zeitschrift für Ostmitteleuropa-Forschung 55, no. 4 (2006): 554.

DOI: 10.4324/9781003181255-5

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Copernicus: Background and Education First, we note that Copernicus derived income from property he possessed in virtue of his positions as canon of Warmia (from 1497 until his death, in 1543)2 and scholastic of the Church of the Holy Cross in Wrocław—Breslau (from 1503 to 1538).3 According to the medieval organization of society, Canon Copernicus would have had to have been inducted into the Catholic clergy before he could receive any prebend. He did not receive major orders—not even the diaconate, let alone the presbyterate or bishopric—so he did not celebrate the sacraments or perform any pastoral ministry. He must, therefore, have received minor orders and was obliged on this basis to celibacy and the common choral prayer of the chapter members, and above all to work for his chapter. He was thus to fulfill his life’s vocation as a diocesan clergyman, having within the structures of the local church the role played in religious orders by brothers who are not priests. He was free from pastoral ministry in order to have time for other work—the holding of offices, administration, and so on—and for carrying out research and providing advice and assistance where necessary, whether medical or legal. The latter services meant that he performed functions typical of an in-house counsel in modern corporations. From early on, it was the Catholic Church and the clergy who determined Copernicus’s education and maintenance and decided the course of his life. Total dedication to God and to the church in prayer and service was also the path of his loved ones. Out of Nicolaus’s three siblings, only the older Catharina remained a layperson, as the wife of Bartłomiej Gertner, a merchant from Kraków. Brother Andrew, who was probably two years younger than Nicolaus, was, like his elder brother, a canon of the Warmia cathedral chapter in Frombork (from 1499). The eldest sibling, Barbara, entered the Benedictine convent in Chełmno; the abbess there was their mother’s half-sister, and Barbara also became abbess of this monastery. The most important clergyman in Copernicus’s life turned out to be his mother’s natural brother, Lukas Watzenrode. This uncle of Copernicus studied law in Bologna and gained the degree of doctor decretorum (that is, doctor in canon law) in December 1473. Five years later, he was ordained a priest. He belonged to several chapters, and in 1489 became bishop of Warmia. It seems this was an excellent episcopal see, and Watzenrode was to be a patron of his nephews Nicolaus and Andrew.4 After the end of the Thirteen Years’ War, in 1466, when Warmia and other western lands of the Teutonic Order passed to the Crown of the Kingdom of 2 Andrzej Radzimin´ski, “Mikołaj Kopernik—duchowny w czasach przełomu,” Zapiski historyczne 82, no. 2 (2017): 56–57. . 3 Stanisław Rospond, “Mikołaj Kopernik—scholastyk wrocławski u s´w. Krzyza,” Sobótka 2 (1973): 169–73. 4 Krzysztof Mikulski, Mikołaj Kopernik. S´rodowisko społeczne, pochodzenie i młodos´c´ (Torun´: Wydawnictwo Naukowe Uniwersytetu Mikołaja Kopernika, 2015), 67, 71, 119–28, 309–14.

66 F. Longchamps de Bérier Poland, local youths were eager to study at the Kraków Academy, and the two Copernicus brothers also enrolled. Nicolaus signed up for the facultas artium, the so-called faculty of liberal arts, starting his studies in 1491. After completing a quadrivium in Kraków in the spring of 1495, gaining knowledge in mathematics and the natural sciences, Nicolaus began studies in Bologna in late summer 1496. Watzenrode generously contributed to the stay of both the Copernicus brothers in this, his Alma Mater Bononiensis, famous for both lectures and research in Roman and canon law. And it was law that Nicolaus studied there for five years— to be precise, for seven semesters, and very productively. “The canon of Warmia was a diligent student of Roman and canon law, so it is no wonder that later in Warmia he enjoyed the opinion of being a good jurist.”5 In the middle of the great jubilee year of 1500, the brothers left Bologna and went to Rome: perhaps not only to take part in the great festivities, but also to serve as administrative and legal apprentices in the papal curia. However, they were neither the only young men educated in canon law in Rome nor even the only Warmia canons there,6 and Nicolaus’s stay in the Eternal City did not last long. He had to return to Warmia to raise funds for continuing his studies, receiving them from his Warmia chapter—but only on condition that he start medical studies, too. As a result, in 1500 Copernicus also began attending the most famous university in medicine, Padua, where he remained for two years, not finishing with a diploma in medicine, but rather earning the degree of doctor in canon law in nearby Ferrara. To acquire such a title, the obvious choice of institution might have seemed to be Bologna, but Copernicus was guided by his characteristic lawyer’s pragmatism and disregard for academic qualification: Ferrara is much closer to Padua, doctoral promotion was cheaper there, and the exam was reputed to be easier than in Bologna. The original minutes of the doctoral promotion drawn up on the spot by the scribe of the bishop’s curia, Tommaso Meleghini, have been preserved. They state that on May 31, 1503, two supervisors, Filippo Bardella and Antonio Leutus, appeared before a three-person committee and unanimously awarded Copernicus a doctorate in iure canonico; Leutus then presented the promoted candidate with his doctoral insignia.7 If Nicolaus undertook any further studies after this, he did it only privately and on his own (we know he made plentiful use of the book col­ lections available to him, mainly those of the Warmia chapter). 5 Teresa Borawska, “Pismo Mikołaja Kopernika,” in Zapiski Mikołaja Kopernika w drukach . Biblioteki Wyzszego Seminarium Duchownego Metropolii Warmin´skiej “Hosianum” w . Olsztynie, ed. Tomasz Garwolin´ski (Olsztyn: Biblioteka Wyzszego Seminarium ´ Duchownego Metropolii Warminskiej “Hosianum” w Olsztynie, 2016), 20. 6 Teresa Borawska, “Preußische Jura-Studenten an italienischen Universitäten vor 1525,” in Von Preußenland nach Italien. Beiträge zur kultur- und bildungsgeschichtli­ chen Vernetzung europäischer Regionen, ed. Mark Mersiowsky and Arno MentzelReuters (Innsbruck: Studien Verlag, 2015), 97. 7 Giulio Righini, La Laurea di Copernico allo Studio di Ferrara (Ferrara: Istituto fascista di cultura, 1932), 78, 221–27; Copernico e lo Studio di Ferrara. Università, dottori e studenti, ed. Luigi Pepe (Bologna: CLUEB, 2003), 13, 52.

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Nicolaus Copernicus’s curriculum studiorum was very full. However, at that time not every student and not all stages of a student’s education ended with a certificate. What mattered was the knowledge acquired, despite any interruption of formal studies by personal lack of resources. Nevertheless, the diploma Nicolaus obtained leads us to believe that he had had a full legal education, and, formally speaking at least, an education only in law. If Nicolaus Copernicus is in fact considered a medical doctor on the basis of the contents of his book collection, his handwritten prescriptions, his consultations with medics, and above all his care for the health of others, it would be fair and appropriate to conclude that an enrolled student of law may already be considered a lawyer: it is enough that he is dealing seriously with the law, even though his studies have only just begun. Taking this approach, we would call a lawyer anyone who learns the law (or at least has done so at some time). One assumes that those who start on law studies have in view a subsequent profession in law, in which case it seems reasonable to consider such individuals at least potential lawyers. Would this exclude those who have a legal intellectual formation but are engaged in work formally unrelated to the law? After all, thanks to the education they have already received, they would always potentially be able to take up the practice of law. Or perhaps one should consider as lawyers only those whom other lawyers consider to be so? Yet such a relational (and subjective?) criterion might prove very difficult to implement: who exactly are these “other lawyers” with the final say? How many of them would be required? And so on. A quantitative criterion is best avoided. In a similar way, should we say how much of a “true” lawyer’s life the law must take up? And should a “true” lawyer live by law alone (with no income from hobbies such as astronomy, mathematics, or cartography)? On the other hand, adopting the criteria of apprenticeship and the practice of the profession would mean that graduating from law school is insufficient, proving nothing more, in this view, than mere background legal education. And how can such preparation be sepa­ rated from the practical use of the legal skills acquired? Finally, how else, apart from a particular kind of intellectual formation, can we really define a person as, indeed, a jurist?

Copernicus’s Professional Life as a Jurist Helpful in answering these questions is the experience provided by Roman jur­ isprudence, though this only becomes clear with the advent of university law stu­ dies, from which the profession of law can take two paths: as a practitioner or as a scholar. For Copernicus, life—including his being a lawyer—meant practicality. His whole life was marked by his practical approach to matters. This clearly came out in his work as an administrator, in which he must have been efficient and dependable, his Warmia chapter repeatedly entrusting him with its most important administrative functions. Already at the end of 1510, he was elected chancellor of the chapter, and until 1512 he was also inspector of the lands of Olsztyn (Allen­ stein); he was the head of the food fund and was repeatedly entrusted with the administration of the extensive capitular property, supervising the settlement of

68 F. Longchamps de Bérier empty fields in Olsztyn with great care;8 and he was even responsible for the city’s defense against the Teutonic Knights in 1521. Subsequently, he was appointed commissioner of Warmia to recover from the Teutonic Knights the goods seized during the war. In the years 1528–37 he successively assumed the offices of chancellor, guardian of the table (mensae tutor), and inspector. In 1522 he repre­ sented the bishop of Warmia at the convention of Royal Prussia, and between 1528 and 1530 he appeared before the Prussian general assemblies as adminis­ trator of Warmia. In all of this, his legal background was advantageous: A knowledge of canon law was useful for the daily duties at the cathedral and the functioning of the Frombork chapter in accordance with its statutes. Pro­ ficiency in law and the ability to think rationally and precisely facilitated the efficient administration of the common property of the chapter and the reso­ lution of temporal and spiritual conflicts, as well as conducting difficult trials in the country and in other tribunals, mainly at the Roman Rota or at the royal court in Kraków.9 He appeared in many lawsuits representing the interests of particular parties. His writings in this respect are well known, the most famous being the complaint of 1521 against the Teutonic Order. He also performed judicial functions on behalf of the chapter as an administrator. He was the court of first instance for the village heads and also for the nobility settled in the capitular property. He was an appel­ late instance in cases decided by municipal and rural courts.10 He must have served as a judge at times, though more often as a notary11 or official witness to legal acts, which he could do as a decretorum doctor. “On those occasions when it was necessary to make a more solemn appearance or to sign in full, we always see our astronomer with this very title.”12 The man celebrated by the whole world as an astronomer had to deal with mundane matters every day, working as an ordinary lawyer. He took up many positions that required knowledge of legal and economic relations and so must have been well versed not only in canon and Roman law but also in local laws: Prussian law, Chełmno law (ius Culmense), and Magdeburg law. For instance, in 1506 Copernicus participated in the dispute over the district of Szkarpawa (Elbinger Weichsel), and as a translator of fief documents from Latin into German. From 1507 on, he officially became an adjutant canon in the bishop of 8 See Locatio mansorum desertorum per me Nicolaum Coppernic, in Kopernik, Dzieła, vol. 3, 70–80. 9 Teresa Borawska, “Prawnicy w otoczeniu Mikołaja Kopernika,” Komunikaty Mazursko-Warmin´skie 1 (2013): 299. 10 Wojciech Hejnosz, “Mikołaj Kopernik jako prawnik,” in Ksie˛ ga pamia˛ tkowa 75-lecia Towarzystwa Naukowego w Toruniu (Torun´: Towarzystwo Naukowe w Toruniu, 1952), 157. 11 Janusz Małłek, “Mikołaj Kopernik jako lekarz i prawnik,” Rocznik Muzeum w Toruniu 10 (2001): 28. 12 Hejnosz, “Mikołaj Kopernik,” 147.

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Warmia’s curia. Residing in Lidzbark (Heilsberg) for five years, he found “many opportunities to acquire further practical education, and at the same time he made himself known as an intelligent lawyer.”13 He participated as an expert in further open legal disputes, such as that of 1521, when he personally prepared a letter of complaint against the Teutonic Order about the harm done during the armistice; he spoke on this matter during the Sejmik deliberations in Grudzia˛ dz. This was not the only occasion of consequence in which Copernicus played a role. From the time he returned from his studies in 1503 until 1510, Copernicus worked as his uncle Watzenrode’s secretary, and his uncle, as bishop of Warmia and the first person in Prussia, gave Copernicus the opportunity to take part in top-level social and political life (though precisely, note, as a lawyer). He fre­ quently had to face the challenge of dealing with the most important issues trou­ bling his contemporaries, and in doing so moved among the most eminent figures of his time. In 1504 the young canon participated in several provincial Prussian councils, including the one in Torun´, where the Prussian states took an oath to the Polish king, Alexander (1501–06), who received it there in person. Coperni­ cus must also have met the king’s brother and successor, since in 1512 he took part with Watzenrode in the wedding of Sigismund I the Old (1507–48). Did he also meet Albrecht von Brandenburg-Ansbach in person on this occasion? Two personal letters to Albrecht are preserved from 1541 written by Copernicus in German, which seem personal but yet not familiar; in them, Copernicus offers his medical knowledge with regard to a sick governor.14 So, from the very beginning until the end of his legal activity in Warmia (1503– 43), Copernicus moved among the pinnacles of power, aware of the potential of such contacts, the opportunities and dangers. In general, he remained in the background, in a manner typical of lawyers: advising, representing, managing, recording, certifying—in short, carrying out a mission of service. Canon Coperni­ cus was purely a practitioner in the service of his cathedral chapter, a typical inhouse counsel, belonging to the organization for which he worked. This organi­ zation was his only client (though his work included providing legal services to the bishop). “As brilliant an astronomer as he was a versatile diplomat, he took care of the interests of his people, the defense of borders, the welfare of the peasants, and trade and industry.”15 By serving others with the use of his own knowledge and abilities, he realized both his professional and life vocations, and this for a Chris­ tian, and even more a clergyman, had to be and must be of crucial importance. Because of his (apparently estimable) work on the chapter’s behalf, Copernicus met with constant recognition from the chapter members. They willingly and confidently put into his hands their most important offices and the handling of delicate affairs. He carried out these duties with great success even in the most 13 Ibid., 156.

14 Mikołaj Kopernik, Dzieła wszystkie, vol. 3 (Warsaw: Wydawnictwo Sejmowe, 2007),

191. 15 “Mały felieton. Mikołaj Kopernik jako urze˛ dnik administracyjny,” Kurier Poznan´ski 12, no. 149 (1917): 2.

70 F. Longchamps de Bérier difficult times of crisis and war. As well as a certain agile practicality, this must have required at least some interest in these matters. But lawyers are naturally interested in the organization of social reality, and their intellectual training prepares them well for management roles, especially where order needs to be introduced (for example, regarding operating procedures), or carrying out reforms based on changes in regulations, or implementing laws that have been incorrectly or imprecisely applied. As Wojciech Hejnosz very cautiously noted, if Copernicus was able to fulfill all the difficult duties of an administrator “over such a relatively long period, this was probably due, on the one hand, to the fact that he was especially prepared for them through his law studies and subsequent practice, and, on the other, to the fact that he found a certain interest in them and perhaps even a liking for them.”16 Nevertheless, writers such as Hejnosz and Hans Thieme have tended to present Copernicus’s legal practice in the Duchy of Warmia almost exclusively in the reductionist terms of an administrator participating in political and social life. From this point of view, they consider his studies of canon and Roman law to have been mere preparation for administrative work. In a similar vein, the idea is sometimes mooted that Copernicus became a lawyer unwillingly or by chance, a contention which, as Hejnosz implies above, is simply inadequate to the facts. All the evidence suggests that it was by personal choice and inclination that Coperni­ cus took up the law, and that it was a profession from which he derived great satisfaction.

Copernicus’s Fields of Legal Interest One particular aspect of legal and social reality that interested Copernicus keenly was money. Jurists are always interested in money, seeking financial resources for themselves and their clients, and Copernicus showed much concern in this area, both in acquiring money personally for himself to live upon and in broader theo­ retical terms as a social phenomenon with all its intricate problems. He even ela­ borated a project to amend the monetary system under the Polish Crown, though it was so radical that when King Sigismund I the Old carried out his reforms, he ignored Copernicus’s suggestions. Copernicus’s works on the minting of coins, however, did make a great theoretical contribution to the subject; already in his first manuscript on this topic—Meditata (Meditations), from 151717—he descri­ bed in detail a regularity he had discovered with regard to circulation, and went on to explain it: “When coins circulate which are of the same denomination but unequal intrinsic value, that is, better, with a higher bullion content, and worse, with a lower bullion content, then the worse coins drive the better ones out of circulation.”18 This law of the circulation of money remains one of the few—if not 16 Hejnosz, “Mikołaj Kopernik,” 156–58. 17 Latin manuscript text with translation in Kopernik, Dzieła, vol. 3, 101–07. 18 Mirosław Bochenek, “Znaczenie traktatu monetarnego Meditata Mikołaja Kopernika dla rozwoju mys´li ekonomicznej (w 500 rocznice˛ jego powstania),” Ekonomista 6 (2017): 705.

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the only—unquestioned laws in economics, functioning in the definitional and postulation layer as the law of Copernicus (it is now generally called Gresham’s law). It would be two centuries before economics would take its place as a separate science. Until then, the monetary system, usury, interest, cambium (exchange transactions), restitutio (compensation for damage), pretium (price)—all these matters were heard about only in theological studies (mainly in lectures on moral theology) and in the study of law. Copernicus was prepared for these practical tasks in the field of economics by his studies in Bologna, Padua, and Ferrara, that is, his studies of Roman and canon law,19 studies that shaped his intellect and gave him the language needed for treatises in this field, enabling him to make a sig­ nificant contribution to the science of monetarism.20 Copernicus’s treatises on monetary theory did not remain on paper: he pre­ sented his findings publicly as an advocate of monetary reform. And he also took up other money-related topics, such as the nature of money—which is indeed a legal matter. It is the law that determines that a properly formed bullion gains a certain nominal value. As Copernicus himself taught, the value of coins is greater than that of the gold used to mint them. The difference in value must at least cover the costs of production. But more fundamental is the general function that the law gives to these pieces of metal, that is, the function of transferring value. Specific material designations represent the value assigned to them, so coins always behave as pure carriers of value, not like any other type of thing—res. Therefore, since at least Roman times, mixing someone else’s money with your own means gaining it for yourself, giving you the opportunity, for example, to effectively repay your own debt; and on the part of whomever the money belonged to previously, there is only a claim for the value of the lost coins, not for the coins themselves as physical objects. This claim is based on the fact of the indistinctness resulting from the aggregation of the coins. Another legal-cum-monetary issue of interest to Copernicus was “the real and just price of bread”—ad verum iustumque panis precium. The fairness of pricing and reasonableness of contracting sale has long been debated among canonists from the perspective of Christian morality and protection against exploitation. Copernicus, too, worried about prices being raised excessively by retailers, and in 1531 he wrote the treatise Ratio panaria Allensteinensis (the Olsztyn bread tax), in which he estimated the price of bread according to the price of wheat and rye and the weight of baked bread after deducting certain additional costs; this price was to apply in Olsztyn and other larger cities of Warmia. In his treatises on monetary theory of 1519 and 1526, where he described the contract of sale, Copernicus used terms that only a person educated in Roman law 19 Hans Thieme, “Copernicus als Jurist,” in Rechtsgeschichte als Kulturgeschichte. Festschrift f. Adalbert Erler zum 70. Geburstag (Aalen: Scientia Verlag, 1976), 351. 20 Wiesław Mossakowski, “Mikołaj Kopernik i prawo rzymskie,” in Historia integra. Ksie˛ ga pamia˛ tkowa ofiarowana prof. Stanisławowi Salmonowiczowi w siedemdziesie˛ cio­ lecie urodzin (Torun´: TNOiK “DomOrganizatora”, 2001), 417–18.

72 F. Longchamps de Bérier would employ (by contrast, the law of Chełmno, for example, used German terms). This was not the only case in which Copernicus consciously and expertly took advantage of the Roman jurisprudential framework, a framework considered today as characteristic of the European legal tradition.21 For example, his use of the terms bonitas and dignitas in his discourses on money suggest a reference to the definition of law found in the title of Justinian’s Digest (ius est ars boni et aequi—“the law is the art of what is good and just”)—that is, to a statement by Ulpian quoting Celsus on law.22

Copernicus, a Legal Mind In his work as a lawyer Copernicus was not academic in any way. Although it is rumored that, while in Rome for his apprenticeship in the papal chancellery, he gave a public lecture on mathematics, there are no indications at all that he tried to write about law or ever dealt with it from an academic viewpoint. On the con­ trary, his writings on law dealt with thoroughly practical issues, an approach that also characterized his dealings with medicine. His medical studies in Padua lasted but two years and resulted in no diploma, but his approach to this field was in terms not of academic qualifications but of practical skills, for, like law, medicine is not just a matter of theoretical knowledge but an art (ars). Copernicus’s practical concern appears in his undertaking to search for medicines and take care of the health of those with whom he maintained regular contacts; like any good doctor, he wished to continue expanding his knowledge. As a doctor and as a lawyer he was always pragmatic, and the words that the legal historian Bogusław Les´no­ dorski perceptively wrote about Copernicus’s intellectual formation as a humanist apply with no less force to his approach to medicine and to Roman jurisprudence: “Courage to abandon some views and, at the same time, respect for his pre­ decessors: these are the undoubted features of Copernicus.”23 His mind was thus, through and through, that of a jurist. The legal formation of Copernicus’s thinking also comes out in a remark con­ cerning his exquisite Latin. “Copernicus was not an exaggerated linguistic purist and recognized the superiority of realism in the selection of vocabulary and sen­ tence structure over strict adherence to the rules of style.”24 This is how the emi­ nent Polish classical philologist Ryszard Gansiniec assessed Copernicus’s literary 21 Franciszek Longchamps de Bérier, Law of Succession: Roman Legal Framework and Comparative Law Perspective (Warsaw: Wolters Kluwer Polska, 2011), 18. 22 Mossakowski, “Mikołaj Kopernik,” 417–21. See Franciszek Longchamps de Bérier, “Possesso e proprietà nel pensiero di san Tommaso,” Revue Internationale des Droits de l’Antiquité 52 (2005): 252. 23 Bogusław Les´nodorski, “Kopernik—humanista,” in Mikołaj Kopernik. Szkice monograficzne, ed. Józef Hurwic (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1965), 256. 24 Ryszard Gansiniec, “Wste˛ p,” in Teofilakt Symokatta, Listy. Tłumaczył z je˛zyka greckiego na łacin´ski Mikołaj Kopernik (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1953), x. See George Borski and Michał Kokowski, “Copernicus, His Latin Style and Comments to Commentariolus,” Studia Historiae Scientiarum 20 (2021): 339–438.

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debut, that is, a translation from the Greek of the letters of Theophylact Symo­ catta. Copernicus learned Greek during his time in Padua, where he was mainly concerned with medicine but, like a typical lawyer, had enough time during his studies to develop skills in another field that fascinated him and might prove useful in the future. Moreover, medicine posed no difficulties for a student skilled in learning material by heart. The translation of Theophylact’s letters was dedicated to Watzenrode, Copernicus’s main patron; and it is noteworthy that Theophylact was secretary to the Roman emperor Mauricius, just as Nicolaus, upon his return from university, became secretary to the bishop of Warmia. Though he had no academic interest in law, Copernicus did, nevertheless, have an intense interest in the subject, as is evident from the books he read. He cer­ tainly made frequent use of the bishop’s library—established in 1350—and it has long been believed that Copernicus had bibliophilic tendencies.25 During his stay in Lidzbark, shortly after returning from his studies, he was responsible, together with the chaplain of the bishop’s palace, Thomas Werner, for the purchase of books. In Frombork (Frauenburg) he probably worked for some time as a librar­ ian.26 He certainly used to buy books for himself and created a personal library. His collection is estimated today at 100 to 150 volumes, comparable to the libraries of his Frombork confreres: the library of Werner numbered more than 170 titles; canon Jerzy Donner had at least 103 volumes; and 110 items have so far been identified for the collection of Jan Dantyszek.27 Copernicus’s books unfortunately shared the fate of the other Warmian collections, being plundered by the Swedes in 1626 and again in 1704. It was not until the second decade of the twenty-first century that discoveries were made enabling the drawing up of a list of books that definitely either belon­ ged to or were used by Copernicus. Only ten volumes still bear clear signs of ownership by the astronomer, but a more complete list has been compiled by establishing the purchases he made; moreover, thanks to his own handwritten notes on the large margins, scholars have identified some of the books he used. Teresa Borawska has established that his book collection included at least fifty-four prints and two manuscripts. The latter are the well-known De revolutionibus and the so-called Uppsala Notebook, a sixteen-page copybook with planetary tables. Borawska justly testifies that the writer of these words was most pleased to find in the University Library in Uppsala Carolina Rediviva, five Venetian legal codes of Justinian and the Bologna edition of the three-volume work of the French canonist Wilhelm Durantis Speculum judiciale from 1474.28 25 Henryk Barycz, Mikołaj Kopernik wielki uczony odrodzenia (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1953), 29. 26 Clarinda Calma, “Odre˛ czne notatki Mikołaja Kopernika w Disputationes, quaestiones et consilia Fredericusa Petruciusa oraz Consilia Antoniusa de Butrio. Analiza stylome­ tryczna,” in Garwolin´ski, Zapiski, 73. 27 Borawska, “Pismo,” 16. 28 Borawska, “Pismo,” 15.

74 F. Longchamps de Bérier Before this discovery, it was believed that Copernicus did not return to books of law at all after he finished his studies. It turns out, however, that law books con­ stituted the third-largest thematic group in his collection, just behind mathema­ tical and astronomical works and medical treatises.29 It is not surprising at all that the largest number of books that Copernicus possessed are those related to mathematics and astronomy. After leaving the Kraków Academy, he never studied these subjects in a formal manner, so it devolved upon him personally to acquire literature on the matters that were of most interest to him intellectually—matters, note, that also had the greatest potential for learning and discovery. His amassing of books on law is, in truth, also unsurprising. Would not a man with a legal education who uses the law in his daily work wish to keep legal books at hand? He would—and apparently did—return to them every day as a matter of course, highlighting the text, making notes in the margins, extracting useful pas­ sages, and even making corrections where needed. “Copernicus often used blank pages to write down and record fragments of texts that were of interest to him, as well as his own reflections, and even astronomical observations and medical pre­ scriptions.”30 This is similar to the typical intellectual labor of any lawyer with a printed text. Copernicus writes quite unabashedly across the printed pages of incunabula. Notes show how he summarizes a given passage or writes keywords on the fly as he reads. These were probably ways of remembering the most important points in the text. One could also put forward a thesis that perhaps the spe­ cificity of his work in Warmia was precisely those topics that interested him the most as a lawyer.31 For he did indeed draw mainly on books of law: “It is in the legal codes that almost five hundred of Copernicus’s entries were identified, while in the remaining books from a few to several dozen.”32 Moreover, it is clear that he returned to reading these books many times.

Copernicus as a Reader Lawyers live off the spoken word, but they work with the text. It is from the text that they derive knowledge and necessary information: they learn the law, review case files, write down analyses, and compose speeches. They constantly interact with the written text, underlining, annotating, adding glosses, making notes of 29 Teresa Borawska, “Nicolaus Copernicus und die Welt seiner Bücher,” in Grenzüberschreitende Biographien zwischen Ost- und Mitteleuropa. Wirkung— Interaktion—Rezeption, ed. Tobias Weger (Frankfurt am Main: Peter Lang Internatinaler Verlag des Wissenschaften, 2009), 199–207. 30 Borawska, “Pismo,” 17. 31 Calma, “Odre˛ czne notatki,” 73. 32 Borawska, “Pismo,” 20.

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their findings, thoughts, ideas and conclusions. And this is done despite what they were taught as children—that is, that they must treat books with respect, and that it is forbidden to fold pages. But lawyers are incorrigible and, in any case, fre­ quently appreciate copies marked by other lawyers. They use these books to learn, and it is much easier to learn from copies that have been marked well. Coperni­ cus’s interaction with legal texts, then, was no different from that of other lawyers. Pausing with his pen over individual pages, Copernicus read books without haste,33 like a typical lawyer. He was not only a very attentive reader, but one who used the book.… He made notes in order, apparently, to remember relevant concepts found in the text. Coperni­ cus read the text thoroughly and for full comprehension, and from time to time summarized what, in his opinion, was the most relevant and important point. In addition, he definitely preferred short phrases and nouns. Coperni­ cus was a fascinating reader.34 To an expert in legal craft, it is obvious that Copernicus’s notes reveal a legal formation: he thinks with maxims and rules, looks for useful distinctions, specifies concepts, and perceives definitions as normative sources. What law books did Copernicus in fact use? Borawska has established that during his studies in Bologna Copernicus purchased five works. In one binding were two works devoted to feudal law: Baldus de Ubaldis (1327–1400), Super usibus feudorum et commentum super pace Constantiae, published in Venice in 1500; and Jacobus de Alvarottis (1385–1453), Super feudis, cum additionibus Matthaei de Corbinellis et Montori Mascarelli, a medieval collection of Lombard laws, published in Venice in 1498. Most important, however, were the Venetian editions of Digestum vetus from 1486 and Digestum novum from 1489, as well as Justinian’s Institutes of 1490 (bound with the 1494 edition of the collection of Justinian’s constitutions, or Novellae), all of which Copernicus acquired in Bologna. His library has a noticeable lack of books on canon law and, in parti­ cular, local laws—a lack that, however, it seems reasonable to explain by their having been stolen. The handwritten notes prove that Copernicus was also a reader of a bound block of legal texts belonging to Lukas Watzenrode and containing works by Alexander Tartagnis (Lectura super II. parte Digesti veteris, Bolonia 1473) and Matheus Mathesilanis (Sin­ gularia dicta etiam notabilia, 1474/1475) found at the Capitular Library in Łowicz by Zbigniew Skiełczyn´ski35 33 Dorota Jutrzenka-Supryn and Jolanta Czuczko and Mirosław Wachowiak and Paweł Szroeder, “Zapiski marginalne autorstwa Mikołaja Kopernika w inkunabułach i starych drukach ze zbiorów Biblioteki ‘Hosianum’ w Olsztynie w s´wietle zagadnien´ konser­ watorskich,” in Garwolin´ski, Zapiski, 95–96. 34 Calma, “Odre˛ czne notatki,” 74:

35 Borawska, “Pismo,” 16.

76 F. Longchamps de Bérier in 1978. The bishop of Warmia Ignacy Krasicki (1735–1801) apparently took these books from Warmia to Łowicz when he became the primate of Poland, in 1795. It is probably this volume that Copernicus used to pursue his learning while in Bologna. During his medical studies in Padua, when he was preparing for the doctoral examination in canon law taken in Ferrara, two works probably served him: Disputationes, quaestiones et consilia by Federico Petrucci (died 1348), and Consilia by Antoninus de Butrio (1338–1408). It may be that he also used these books later during his work in Lidzbark. Published in Rome in 1472, they were in a single bound block in which a note was made in Copernicus’s hand about the price his uncle paid for the book.36 Ewa Chlebus, a specialist in the field of incunabula binding, concluded that Copernicus purchased Baldus de Ubaldis’s Lectura super I–IX Codicis, published in 1490, and had it bound while still a student in Kraków. “This would mean that he was interested in legal issues already in the early period of his studies, during which—as is well known—he mainly explored mathematical and astronomical knowledge. Perhaps this reading was in order to prepare for subsequent studies at the law faculty in Bologna.”37 In these conclusions, Chlebus has assumed that Copernicus was the first owner of this copy and also commissioned the binding, in which case Ubaldis’s Lectura would have been the first legal work Copernicus acquired. He would have done so before even commencing legal studies, which, however, common experience in the field of law makes us think unlikely. In fact, it is rare for someone to buy legal books before starting law studies. And Baldus’s work belonged by no means to the category of popular nonfiction. But perhaps the work was recommended to Copernicus or even given to him by Watzenrode, either as an incentive to study or as a study aid: an extremely expensive one, even considering Watzenrode’s subsequent large investments in his nephews’ education. Numerous handwritten notes by Copernicus prove that he studied Baldus’s Lectura very carefully. Interestingly, at the beginning of this text is a sentence written by Copernicus that appears in the recently discovered legal advice written by the astronomer “in a hurry on an unevenly trimmed sheet of paper.”38 Teresa Borawska believes he wrote this from memory while away from his place of resi­ dence. The legal advice is about longissimi temporis praescriptio—acquisition of immovables even in bad faith by usucapion for the period of thirty or forty years. Baldus de Ubaldis’s commentary to the relevant title of Justinian’s Code, C. 7,39, has been preserved completely clean in the incunabula conserved in Warmia with notes in Copernicus’s own hand. In other titles on usucapion, there are traces of 36 Julian Wojtkowski, “Transliteracja, transkrypcja i przekład zapisków w drukach wykorzystywanych przez Mikołaja Kopernika,” in Garwolin´ski, Zapiski, 140. Accord­ ing to Calma, “Odre˛ czne notatki,” 69, 71, Watzenrode bought the book in Bologna when he obtained a doctorate in canon law there in 1473 for a price that was com­ parable to the value of half a village. 37 Ewa Chlebus, “Oprawa ksia˛ g z zapiskami Mikołaja Kopernika ze zbiorów Biblioteki WSD MW ‘Hosianum’ w Olsztynie,” in Garwolin´ski, Zapiski, 52. 38 Borawska and Rietz, “Ein rechtlicher Rat,” 551.

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careful study by Copernicus, even working with the text and returning to it. It seems that the issues related to usucapio found themselves in the orbit of Coper­ nicus’s interests. Yet it is purely a matter of Roman law, the solutions of which, however, enjoyed great authority, being highly practical and useful in the legal practice of the sixteenth century universally and with neutrality. Clearly, the law was of great interest to Copernicus.

Conclusions Nicolaus Copernicus did indeed live by the practice of his legal profession. And only in the field of law was the education he received confirmed by a university diploma. Ars boni et aequi gave him the formation that determined his way of perceiving and thinking about the world, a type of formation that distinguishes legal studies from all other forms of intellectual and scientific training. Copernicus had no wish to teach the law or deal with it academically. If he had been just an academic lawyer, would his achievements have been of such lasting fame? Except perhaps for intellectual property and a capital company, almost everything in law had already been invented by the Romans. But in Copernicus’s era it was quite possible for a man to make a major contribution to science in certain areas where there was still much to be discovered, and which were still in the process of being shaped: in astronomy, in mathematics and physics, in eco­ nomics and geography (especially in cartography). As in the case of the jurist Pierre de Fermat (1607–65), a trained lawyer known today only as a mathemati­ cian, so also in the case of Copernicus, an anachronistic perception of his person as a revolutionary astronomer has prevailed over the reality of his life, which was in fact that of a sixteenth-century Frombork canon who was an in-house counsel for the Duchy of Warmia. His everyday life was determined by a position that resulted from the education he had acquired, the work he performed, and the services he provided, as well as from his personal hobbies and passions. But the key to understanding his character is his existence as a lawyer: from the way he read books, through his presence in the most important matters of the world while always remaining humbly of service in the background, to the fact that, like any lawyer, he was interested in more than just the law itself. It was as a result of these outside interests that he was well known to his contemporaries and to future generations. The everyday life of this world-renowned astronomer is an example of the life of a reputable lawyer. It was in this profession that he fulfilled his Christian vocation, always remaining faithful to the Catholic Church. “Here he stood, he could do no other,” to paraphrase another revolutionary figure. Did Copernicus find the Reformation intellectually persuasive? He was very well acquainted with it both in theory and in practice; politically, it was very near indeed, just across the border in Albrecht’s principality, and a thorny matter in various respects. The fact remains that the Warmia clergyman belonged to a considerable group of outstanding minds of the time to whom Protestantism was completely unattractive. He knew from the Roman jurist Ulpian (D. 1,1,10,2) that “iuris prudentia est divinarum

78 F. Longchamps de Bérier atque humanarum rerum notitia [wisdom in law is an acquaintance with divine and human matters].” Nicolaus Copernicus fulfilled himself professionally as a lawyer at the same time that he carried out his life’s calling as a Catholic clergyman. Both spheres resulted from the formation he received, and he neglected neither. The summation of his life, however, was a work based on personal interests that were unconnected with his profession. He gave it the title De revolutionibus—“On the Revolutions.” The words “of the Heavenly Spheres” were added to the title later by others, but this addition was in fact inappropriate, for many reasons: not least, because as a lawyer he was also perfectly familiar with the revolutions of the other, terrestrial, human spheres.

5

Anna Jagiellon (1523–1596) Anna Karabowicz

Introduction Anna Jagiellon (or Anna Jagiellonka) was the second of two women in the entire history of Poland to hold the title of monarch in her own right, not as queen consort.1 She was the person whom fate made a bittersweet joke and placed by an outlandish coincidence of events at the very epicenter of the sixteenth-century political storm that shook the Polish-Lithuanian Commonwealth, one of the lar­ gest countries in Europe. She was not prepared for the role assigned to her, at her most mature age, by a somewhat capricious destiny. Willingly or unwillingly, she became a common point of reference and axis around which revolved the most important political events in the Polish-Lithuanian state in the last three decades of the sixteenth century—namely, those concerning the election of the head of state by its citizens, the nobility. Her life, especially long for that epoch, spanned practically the entirety of the century. It was the so-called Golden Age of the history of Poland. Anna Jagiellon became both a passive observer of and, in many cases, an active participant in moments of great importance for the history of Poland and the whole of Central Europe. She can also be credited with a considerable influence on the formation of several legal institutions in the Polish-Lithuanian Commonwealth, which made this a unique state compared to neighboring monarchies. In 1579, the Jesuit Piotr Skarga, renowned for his political and religious spee­ . ches, published Zywoty S´wie˛tych (Lives of the saints). A friend and close confidant of Anna Jagiellon, he wrote a personal dedication to her: You have brought such a treasure to this Crown while being the unique fol­ lower of the very great Jagiellonian kings and their great fame and high noble

1 After the death of Sigismund II Augustus, she began to use the title Infans Regni Poloniae, or Infanta of the Kingdom of Poland. Previously, she had used the title of reginula—princess, royal daughter—when signing letters or documents; Juljan Bar­ toszewicz, Anna Jagiellonka. Dwa tomy w jednym (Kraków: Nakładem K. Bartosze­ wicza. Drukiem A. Kozian´skiego, 1882), 146–47; Maria Bogucka, Anna Jagiellonka (Wrocław: Zakład Narodowy imienia Ossolin´skich—Wydawnictwo, 1994), 79.

DOI: 10.4324/9781003181255-6

80 A. Karabowicz virtues, as well as being a memento and darling and refreshment of this entire Kingdom.2 There is no English biography of Anna Jagiellon. The information below is based on several monographs on Anna’s life and some biographical information scattered throughout dictionaries and encyclopedias.3

Biographical Information Anna was born in Wawel Royal Castle in Kraków on October 18, 1523, into one of the most influential and respectable royal dynasties in Europe, the Jagiellons. Her brother, Sigismund II Augustus (1520/1548–1572), King of Poland and Grand Duke of Lithuania, had led the Kingdom of Poland and the Grand Duchy of Lithuania to a real union in 1569, not long before he died childless.4 The Polish-Lithuanian Commonwealth created in this way was territorially the largest state in Europe at that time. Ethnically, linguistically, religiously, culturally, and legally diverse, the newly formed Republic of Both Nations was a significant political power in Europe. According to the Union Act of 1569, the nobility of both nations was to freely elect the Polish-Lithuanian joint monarch. At the same time, a common parlia­ ment (Sejm) was created, gathering noble representatives of Poles, Lithuanians, Ruthenians, and Prussians in the same place to enact law binding for both provinces. According to the Nihil Novi statute of 1505, the legislative powers of the Polish-Lithuanian Parliament were practically unlimited. Anna was the penultimate daughter of Sigismund I the Old and Bona Sforza. Her great-grandfather was Władysław Jagiełło, the founder of the Jagiellonian dynasty. Her mother, Bona Sforza d’Aragon, Duchess of Bari and Rossano, a brilliant and ambitious woman, strongly influenced Anna, who inherited her mother’s rather explosive Italian temperament and—what was later in her life to be of considerable consequence—a dislike of the Habsburg dynasty. Anna spent . 2 Author’s translation. At the beginning of Piotr Skarga, Zywoty S´wie˛ tych Starego y . nowego zakonu na kazdy dzien´ przez cały rok wybrane (Kraków: W Drukarniey Andrzeia Piotrkowczyka, 1598). 3 Bartoszewicz, Anna Jagiellonka; Bogucka, Anna Jagiellonka; Kamil Janicki, Damy złotego wieku. Prawdziwe historie (Kraków: Znak Horyzont, 2014); Edward Rudzki, . Polskie królowe. Zony królów elekcyjnych, vol. 2 (Warsaw: Instytut Prasy i Wydawnictw “Novum,” 1987), 7–45; Wacław Sobieski and Kazimierz Lepszy, “Anna Jagiellonka (1523–1596),” in Polski słownik biograficzny, vol. 1 (Kraków: Nakładem Polskiej Akademii Umieje˛ tnos´ci, 1935), 128–32; Józef Szujski, “Ostatnie lata Zygmunta Augusta i Anna Jagiellonka,” in Dzieła Józefa Szujskiego. Serya II, Tom VI: Opowia­ dania i roztrza˛ sania, vol. 2 (Kraków: W Drukarni “Czasu” Fr. Kluczyckiego i Spółki, 1886), 297–367; Zygmunt Wdowiszewski, Genealogia Jagiellonów (Warsaw: Instytut Wydawniczy PAX, 1968), 110–13; Marek Wrede, Anna Jagiellonka: szkic biograficzny (Warsaw: Zamek Królewski, 1986). 4 Jacek Je˛ druch, Constitutions, Elections, and Legislatures of Poland, 1493–1993: A Guide to Their History (New York: Hippocrene Books, 1998), 61–62; Daniel Stone, The Polish-Lithuanian State, 1386–1795 (Seattle: University of Washington Press, 2001), 59–64.

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most of her childhood in the company of her sisters, Sophia and Catherine, with whom she shared a genuine sisterly love and affection. Meanwhile, Anna’s parents focused all their educational efforts and endeavors on their only son, the heir to the throne, Sigismund II Augustus. The sisters were often left alone, excluded from the center of the country’s political life. However, this did not mean that they had not been appropriately educated according to their birth, status, and gender. Apart from Polish, they were fluent in Italian, probably knew Latin5 and, passively, German and Ruthe­ nian. They were well read and were familiar with women’s handicrafts as well. Their mother took care of their garments, which later influenced their love of fashion and jewelry. Raised in the Roman Catholic faith, Anna was a devout believer and practicing Catholic, a devotion that turned into bigotry as she became older. Together with her two beloved sisters, Anna spent her childhood in the Royal Castle at Wawel. In her youth, Anna’s rather monotonous life was enlivened by family celebrations, especially the marriage of her two elder sisters—in 1535 that of Jadwiga, from Sigismund I the Old’s previous marriage, followed by that of her elder sister, Isabella, in 1539. Isabella, unlike her half-sister Jadwiga, had warm feelings for the younger members of the family. Notwithstanding, the wedding of the heir to the throne, Sigismund II Augustus, to Elisabeth Habsburg in 1543, although much more splendid and ceremonious, made hardly any difference in Anna’s life, as her brother, isolated by their parents, never had a warm brotherly feeling toward his younger siblings. Anna was also surrounded by the cult of the royal dynasty and the conviction of its greatness. Educated in discipline and obedience to the will of her father and mother, she knew her place well. Her royal descent, gender, and birth order pre­ determined her future fate and role. She was fully aware of the fact that it was her destiny to marry a suitable representative, most likely a prince of one of the Eur­ opean dynasties, appointed by her parents or later by her brother. Her marriage was thus to be a tool in the dynastic politics of the monarchy. Being the penulti­ mate of Sigismund I the Old’s five daughters (from both his marriages), she knew perfectly well that she would marry one of the less significant candidates for a royal daughter’s husband. She patiently waited her turn. Having become a mature woman, still waiting for her destiny in the person of her future husband, Anna was greatly affected by the death of her father in 1548. The situation in the royal family was fraught at that time. The new monarch, Anna’s older brother, Sigismund II Augustus, elected and crowned king while his father was still alive, secretly married his beloved Barbara Radziwiłł, thus commit­ ting a misalliance. The Queen Mother, Bona Sforza, together with her three unmarried daughters, then moved from Kraków to the region of Mazovia, where they would make their principal residence in Warsaw. Mazovia, recently annexed to the kingdom, was bequeathed to Bona as a dower—that is, as a provision in case of widowhood. It was there that Anna learned, while observing her mother, 5 Bogucka, Anna Jagiellonka, 9; Rudzki, Polskie królowe, 8.

82 A. Karabowicz to deal with management and administrative duties and responsibilities. In their renovated royal residences, they created vegetable gardens and fruit orchards, which contributed to the enrichment of the diet of the local inhabitants with new vegetables and fruits imported from Italy. Unfortunately, this idyll was interrupted in 1556 by Bona’s sudden and unex­ pected departure to Italy, from which she did not return before her death a year later. In 1558, the lives of the three inseparable sisters were changed when Sophia left to marry Henry, Duke of Brunswick. The volume and content of the corre­ spondence between Anna and Sophia that has survived testify to the deep affection between them, even after Sophia had left Poland.6 Alone, Anna and her younger sister, Catherine, travelled to Vilnius in 1558. In the capital of Lithuania, in 1562, Anna attended the wedding of Catherine and John, Duke of Finland, the future King of Sweden. An anecdote connected with her younger sister’s wedding may shed some light on Anna’s personality. Already at an age considered too old for marriage in the world of that time, Anna put her beloved sister’s happiness before her own. According to ancient custom, the weddings of royal daughters should take place in the order of their birth; thus, Catherine should not have married before Anna. Anna, however, decided not to stand in the way of Catherine’s relationship with John, and thus she practically deprived herself of the chance to arrange her life. Little could she have foreseen what the future had in store for her. In 1564, she found herself alone again in Mazovia, which was close to her heart. There she continued the legacy begun by her mother of administering this territory. In the meantime, either she herself or her legal guardian, her brother— King Sigismund II Augustus—rejected several marriage offers as unsuitable. It was in Mazovia where the last meeting between Anna and her brother took place in the summer of 1572, during which he handed her his will, whereby he made her one of the richest women in Europe. Sigismund II Augustus died childless on July 7, 1572. This date marks the border between the history of Poland of the Jagiel­ lonian dynasty and that of the elected kings. After her brother’s death, Anna Jagiellon’s status and political position under­ went a profound transformation, both in the country and abroad. Already, in the face of the imminent death of Sigismund II Augustus without an heir, the more resourceful diplomats of Europe were trying to win Anna’s favor, seeing that this could be a simplified path to the Polish throne. Anna was utterly unprepared for the increased interest in her. Having lived most of her life in seclusion, far from the center of political life, surrounded only by her court and a few friends, she did not know how to cope with such unwelcome attention. Moreover, she had no one who could adequately advise her on how to behave in such an unexpected situa­ tion. In a letter to her sister Sophia, Duchess of Brunswick, a few weeks after Sigismund II Augustus’s death, she wrote: 6 Bogucka, Anna Jagiellonka, 49; the correspondence in Alexander Przez´dziecki, Jagiellonki Polskie w XVI wieku, vols. 3 and 4 (Kraków: W Drukarni Uniwersytetu Jagiellon´skiego, 1868).

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They want my will to be told to them. I have no reason in this affliction from God, nor am I to confide in anyone.… For the life of me, there has not come upon any princess such great things as upon me.7 The Polish nobility began to treat Anna with suspicion, as with just one nod from her and her acceptance of one of the candidates as her husband, all the recently acquired and still-unshaken rights to the free election of the monarch could be cancelled. For this reason, the nobility took appropriate measures to isolate Anna from her surroundings, especially from foreign legates, and sent her to a more secluded place where she would be deprived of the opportunity to influence the course of events. She was also assigned some senators to provide her with care and assistance while controlling her every move. The policy of the nobility toward Anna during the first interregnum resulted from two divergent sentiments toward her. Both were related to her royal back­ ground and unmarried state. On one hand, although the old Polish custom did not recognize the succession to the Polish throne in the female line, the nobility feared that her marriage would give her spouse the grounds to usurp the right to the throne. On the other hand, the memory of the two-century-long reign of the Jagiellonian dynasty aroused respect for Anna among the nobility and their attempts—however timid at first and, as it turned out, insufficient—to secure her future. At first, Anna concentrated her efforts on matters dealing with preserving her brother’s body, whose burial, according to custom, should take place only after the execution of his will and the election of a new ruler. As time passed, however, she became increasingly aware of her unique role and position. She described all her worries to her sister Sophia, at the same time asking her repeatedly for advice and eventually requesting her to come to Poland.8 Finally, Anna had no choice but to learn politics. Despite her isolation, information from the outside world got through to her, and she could even be reached by foreign legates. At first, it seemed that she would accede to the offer of the House of Habsburg and the proposal to marry Prince Ernest, the son of the German emperor. However, her innate antipathy to this dynasty led her to favor the candidacy of the French Duke Henry de Valois. Her biographers insinuate her considerable influence on the electors’ votes during the election process to choose a king in the early spring of 1573 near Warsaw, to which she finally and unilaterally decided to return at the beginning of that year.9 In the event, Henry was elected king. Thus, the first reservations of the nobility toward Anna became a reality. On the other hand, attempts to secure her future by placing the obligation on the kingelect to marry Anna proved unsuccessful.10 The newly crowned monarch, Henry de Valois, did not intend to keep his word and, eventually, did not marry Anna. 7 8 9 10

Author’s translation. Przez´dziecki, Jagiellonki Polskie, 3: 264–65. Bogucka, Anna Jagiellonka, 78, 80, 90; Przez´dziecki, Jagiellonki Polskie, 4: 6, 14, 35. Bogucka, Anna Jagiellonka, 88–89; Wrede, Anna Jagiellonka, 10. Sobieski and Lepszy, “Anna Jagiellonka,” 129.

84 A. Karabowicz Anna followed the coffin of her brother, the deceased king, from Warsaw to Kraków. There, at the cathedral, as the traditional place of burial of Polish kings, his funeral took place in February 1574, with the most solemn and dignified of ceremonies. Henry de Valois, crowned monarch on February 21, 1574, in Kraków, stayed in the capital of the kingdom, where he spent the next few weeks trying to become accustomed to his new country, people, language, and culture. However, upon hearing of the death of his brother, King Charles of France, in the night of June 18/19, 1574, Henry secretly fled from the royal castle in Kraków and returned to his homeland,11 leaving the republic in chaos. The Polish nobility and all the Poles soon realized that King Henry would never come back to Poland. The Polish-Lithuanian Commonwealth was left facing yet another interregnum, a fact that no one doubted when the ultimatum given to Henry for his return expired on May 12, 1575. In the autumn of that year, the whole machinery of preparations for a new election began. The atmosphere was agitated, and the competition among the candidates was even more fierce than it had been two years earlier. This time Anna was not relegated to the shadows; on the contrary, each of the candidates officially sought her support and favor. At the election itself, in November and December 1575, all the bishops and most senators of the republic favored Emperor Maximilian Habsburg’s candidacy. As a counterbalance, a few senators and nobles, led by their “tribune,” the ambitious and educated lawyer-politician Jan Zamoyski, formed a so-called Piast party (from the name of the founders of the first Polish royal dynasty, the Piasts) that supported a national candidate for the throne. Unfortunately, the prominent Polish senators, who could have had the honor of being elected king, were not thoroughly convinced, and eventually withdrew their candidacies. Anna, carefully watching the battle of the parties, did not support the national candidacy at first. On December 12, the senators, headed by the archbishop of Gniezno, Jakub Uchan´ski, unilaterally pro­ claimed Maximilian as king, against the will of the majority of the nobility. In a deadlock, the Piast party was compelled to launch a counterattack. Chroniclers point to Zamoyski as the primary author of the idea that Anna, the last of the Jagiellons, should become a Piast, and in turn Stephen Bathory, the Voivode of Transylvania, should be her husband.12 On December 14, after Anna’s endorsement, the second nomination for a king in a matter of days was made in the persons of Anna and Stephen. The literature claims that Anna was the one elected to the throne, and Stephen had to be appointed as her husband because a woman could not legally be the monarch. Anna herself never used the title of king (rex) but only titled herself as queen or regina. In the minds of the people of that time, this turn of events evoked associations with the events that had taken place almost two hundred years earlier, namely, the accession to the Polish throne of 11 On the details of Henry’s secret escape from Poland and its consequences, see Norman Davies, God’s Playground: A History of Poland, vol. 1, The Origins to 1795 (Oxford: Oxford University Press, 2013), 315–17. 12 Bartoszewicz, Anna Jagiellonka, 394–98.

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Jadwiga of Anjou and the election of Jogaila, Grand Duke of Lithuania, as her husband.13 However, the political circumstances were quite different in 1575. Jan Zamoyski and the nobility were looking for a way out of a highly complex situa­ tion, in which a smaller number of more illustrious nobles considered themselves competent to nominate and elect a king despite the resistance of the majority. Wishing to remain loyal to their party and to legitimize and justify the choice of another foreigner for the Polish-Lithuanian throne, they seemed to have found a solution to the impasse in Anna. For to the majority of the citizens of the republic during the second interregnum, Anna proved to be the salvation from the impo­ sition of an unwanted king in the person of a Habsburg. Subsequently, the second of the nobility’s sentiments toward her came to the fore, namely, nostalgia for the Jagiellonian times gone by and attachment to the extinct dynasty. The double discordant election of 1575 ended favorably for Anna and Stephen on May 1, 1576, when they were married and were jointly crowned queen and king of the Polish-Lithuanian Commonwealth. It was the first joint coronation of a monarchal couple in Poland since 1325,14 as prior to this, the coronations of spouses of the already crowned Polish kings took place separately. Anna finally fulfilled her destiny at the age of fifty-three: she was married and, at the same time, received an honor that none of her four sisters would ever have received. She ascended the Polish throne and resided as queen at the royal castle in Kraków. Unfortunately, Anna and Stephen’s relationship was not a successful one. Bathory took over the reins of the state completely and sidelined Anna. She removed herself from politics once more. Alone again and left to her own devices, she directed all her energies toward obtaining a suitable provision for the condi­ tion imposed on her just before the coronation, namely, the renunciation of the entire inheritance bequeathed to her by Sigismund II Augustus in favor of the republic.15 Eventually, in 1581 King Stephen and the Sejm agreed to the dower right of her beloved Mazovia, together with some Lithuanian lands, as compen­ sation for the cession of the inheritance rights.16 It was in Mazovia that she spent most of her time during the more than ten-year reign of Stephen Bathory. Only once did she leave Warsaw for an extended time, travelling to Kraków in 1583 to attend the wedding of Jan Zamoyski and Stephen’s royal niece, Griselda, which was celebrated with great pomp. Zamoyski became Stephen’s most trusted associate, winning the offices of great chancellor and great hetman (the highestranking military officer) of the Crown.17 Stephen Bathory devoted little time to his wife. He was very much involved politically and militarily in the civil war with the city of Gdan´sk and, afterwards, in the period between 1579 and 1582, in the three consecutive military expeditions 13 14 15 16

See Chapter 3 in this volume. Rudzki, Polskie królowe, 28. Bartoszewicz, Anna Jagiellonka, 417–18, 451–52, 457–63. Volumina Constitutionum, tom. 2, 1550–1609, vol. 1, 1550–1585, ed. Stanisław Grodziski, Irena Dwornicka, and Wacław Uruszczak (Warsaw: Wydawnictwo Sej­ mowe, 2005), 464–67. 17 Stone, The Polish-Lithuanian State, 123–25.

86 A. Karabowicz against Ivan IV the Terrible, Grand Duke of Moscow. Hence, at that time, among careful observers of their marital life, there appeared a rumor of divorce allegedly planned by Stephen, which ultimately turned out to have been fabricated, as Bathory showed his wife due respect and deference until his death (December 12, 1586). He corresponded with her when they were apart and even ordered fruit to be sent to her from Transylvania.18 In 1582, after the truce with Ivan the Terrible, the most famous Polish poet of that era, Jan Kochanowski, in the poem “Epinicion,” a victorious song in honor of Stephen Bathory, included these words about Anna Jagiellon: The royal maiden, the blood of Jagiellons, has further increased the desired joy, worthy of these praises, which in the far side you, the King, have heard being given to her, wanting to ally a close relationship with you, she put enough effort and endeavors to unite reluctant minds, to fraternize all the estates under one banner, to one womb induce all compatriots, to return to the country the peace desired, under one scepter and one crown.19 While her husband was still alive, Anna was already devising a plan to guarantee the throne to her nephews, the children of Catherine, Queen of Sweden, during the next election. Anna carefully carried out a previously conceived plan on learning of Stephen Bathory’s death and drawing on her experience of the two previous elections. This time, she intended to actively and openly support one of the candidates, her nephew, the Swedish Prince Sigismund Vasa. Anna undertook extensive diplomatic and political action. She could even go as far as blackmail to achieve her goal. Her propaganda letter to the Lithuanian dietine (sejmik) in 1587 enumerated “the benefits that will flow to Poland under Sigismund’s reign.” In particular, she emphasized that “You know how much depends on this liberum dominium maris, without which the largest states are weak, and the smallest maritime state flourishes with freedom by becoming a port country.”20 Thanks to Anna’s influence, on one hand, and Zamoyski’s support, including military support, on the other, Sigismund Vasa was elected to the Polish-Lithuanian throne in 1587. Once again, this election was discordant, as some voters favored Maximilian III of Habsburg. This disagreement culminated on the battlefield at Byczyna in January 1588, from which Sigismund Vasa’s supporter, Jan Zamoyski, 18 Sobieski and Lepszy, “Anna Jagiellonka,” 130; Rudzki, Polskie królowe, 33–34. 19 Author’s translation. Bartoszewicz, Anna Jagiellonka, 483; see Elwira Buszewicz, “The Ode as a Genre in the Latin Poetry of Jan Kochanowski (Lyricorum libellus),” Terminus 20, Special Issue (2018): 9. 20 Author’s translation. Sobieski and Lepszy, “Anna Jagiellonka,” 131; Rudzki, Polskie królowe, 34–37.

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emerged victorious. By then, already, on December 27, 1587, Sigismund III Vasa, the son of Anna’s sister Catherine, had been crowned as the Polish-Lithuanian mon­ arch Sigismund III. Unfortunately, his reign was a string of disappointments for Anna. This beloved nephew pushed her away. Her expectations disappointed, she returned again in 1592 to the place she knew and loved, Warsaw, appearing at the royal court in Kraków only during the baptism of Sigismund’s daughter and later his son, Władysław, who would be elected king of Poland in the future. Anna died in Warsaw in the presence of Sigismund III Vasa on September 9, 1596. At the very breakthrough of the election of 1575, which was the most decisive moment for the private and public spheres of Anna’s life, when asked about her motives and intentions, Anna replied that she was submitting herself entirely to “the sentence of God and the Republic.”21 This could well sum up the story of her life, which she devoted to the service of God and the republic.

To Serve God: “I Do Not Wish to Be Judge of Your Consciences” Anna Jagiellon was a faithful daughter of the Roman Catholic Church. During her lifetime, she observed the consolidation of the increasing popularity of the Reformed faiths. Among the adherents of the new churches were eminent senators of the republic. Anna’s sisters were under the overwhelming influence of the Reformed confessions: Sophia probably converted to Lutheranism, while Cathe­ rine received Holy Communion under both kinds, which was unacceptable according to Roman Catholic doctrine. Sigismund II Augustus, madly in love with a noblewoman, Barbara Radziwiłł, came into conflict with the nobility over his marriage to his beloved. After Barbara’s premature death, Sigismund II Augustus married for the third time, to Catherine Habsburg. He tried to end this unhappy marriage in a desperate attempt to marry again and have the offspring he so much longed for. He was then suspected of intending to proclaim a national church in Poland, following the example of England.22 Poland was not a religiously homo­ geneous country. Apart from the new confessions, Lutheranism and Calvinism, the republic was also home to members of the Orthodox Church, Armenians as well as Jews, Muslims, and Karaims. The relatively peaceful coexistence of so many religions in the republic would not have been possible without preserving histori­ cally established principles based on respect and tolerance. These rules, conserved de facto for centuries preceding the Reformation in Poland, were put to the test in the sixteenth century. Religious conflicts were not unfamiliar in Poland; however, they never escalated as in other parts of Europe, where they resulted in bloody religious wars. Anna Jagiellon, an ardent Catholic, had to and did tolerate the coexistence of other faiths. She knew and personally worked with Lutheran, Calvinist, and 21 Author’s translation. S´wie˛ tosław Orzelski, Bezkrólewia ksia˛ g os´mioro czyli dzieje Polski . od zgonu Zygmunta Augusta r. 1572 az po r. 1576, vol. 2, ed. Włodzimierz Spasowicz (St. Petersburg: Nakładem Bolesława Maurycego Wolffa, 1856), 331. 22 Stone, The Polish-Lithuanian State, 52–57.

88 A. Karabowicz Orthodox Christians. She wholeheartedly loved her only niece, also named Anna, a Swedish princess who professed Lutheranism.23 Anna Jagiellon was not alone in her tolerance of other religions. Her brother, Sigismund II Augustus, is attributed in historical accounts with the legendary words, “I do not wish to, and I will not be, the king of your consciences.” Her spouse, Stephen Bathory, was known for his tolerant policy. In fact, there is a dispute in the literature whether these words were spoken by Sigismund II Augustus or Stephen Bathory.24 Archival sources concerning the reign of Stephen preserve similar statements by him: “I am the king of men and not of consciences.”25 Here we can quote Bathory’s words in the mandate issued in 1581, when he learned about some religious disturbances in Vilnius. This text perfectly reflects the features of the Polish sixteenth-century principle of religious tolerance, which made this country an oasis of religious peace in Europe: So would we demand that all citizens of every state should praise one Lord God and adhere to the uniform ancient Catholic faith. However, since the Lord God foretold that the last age of this world must deteriorate, we do not wish to force anyone to believe, but in accordance with our oath, happily made at our cor­ onation to all the states of both the Polish Crown and the Grand Duchy of Lithuania: Pacem inter dissidentes de religione tueri et manutenere, we wish to preserve and defend peace between different believers and always keep this duty of our oath before our eyes, and leave the conscience of each one in faith to the judgment of the Lord God almighty, because not only for our duty in preserving and defending the peace of religion vested in our royal person from all the states of both nations, but also for the ancient custom of this state, we suffer various people in the faith in their worship.26 “To Preserve and Defend Peace between Dissidents in Faith”: The Confederation of Warsaw of 1573 In the document quoted above, King Stephen mentioned the oath he took at the time of his coronation, referring to two acts: first the coronation oath, and second, the confirmation of all the laws of the republic, which, as the crowned monarch, 23 Rudzki, Polskie królowe, 32. . 24 Author’s translation. Janusz Tazbir, “W Polsce król moze spac´ bezpiecznie,” Przegla˛ d Historyczny 81, no. 3–4 (1990): 459; Henryk Markiewicz and Andrzej Romanowski, Skrzydlate słowa (Warsaw: Pan´stwowy Instytut Wydawniczy, 1990), 637. 25 Author’s translation. Hominum ego non conscientorum rex sum, in manuscript in the Jagiellonian Library, Kraków, Poland, BJ 7217, f. 37. Bathory is also author of the following: “God deigned to leave himself these three: to create everything out of nothing, to know the future, and to rule consciences” (author’s translation; Deum sibi tria reliquisse: 1mo. ex nihilo creare omnia. 2do. futura scire. 3tio. conscientiis imperare), in manuscript in Kórnik Library, Poland, BK 423, f. 55. 26 Author’s translation. In Teksty z´ródłowe do nauki historii w szkole s´redniej. Polska za pierwszych królów elekcyjnych (1572–1586), ed. Henryk Barycz (Kraków: Nakładem Krakowskiej Spółki Wydawniczej, 1928), 30–31.

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he issued in Kraków on May 4, 1576. These laws include the duty of the monarch to observe peace among the followers of different religions. Provisions of both the oath and the confirmation referred to a confederation concluded by the nobility in Warsaw on January 28, 1573, during the first interregnum. The Warsaw Con­ federation introduced the rule of peaceful coexistence of nobles of all denomina­ tions. The Warsaw Confederation stipulated and guaranteed in religious matters unconditional and perpetual peace among the “dissidents in faith.” It prohibited in all circumstances any conflict on the pretext of religion. These rights, however, were restricted to the nobility. In 2003, the text of the Warsaw Confederation was added to UNESCO’s Memory of the World Programme. The statements of the Warsaw Confederation were also included in the Henri­ cian Articles in that same year of 1573 (more on this document below). These articles were confirmed separately by Stephen Bathory on May 4, 1576, and on May 30 they were included in extensis in the statute issued by the Coronation Sejm. The royal approval and enactment as a parliamentary act gave the contents of the Warsaw Confederation the character of a binding legal norm. The provi­ sions of the Henrician Articles, which repeated the text of the Warsaw Con­ federation, read: And as in this noble Crown of the Polish, Lithuanian, Ruthenian, Livonian, and other nations there are many dissidentes in religione, warning against any seditions and tumults due to this cause of disruption or discord of religion, some citizens of the Crown have safeguarded themselves with a peculiar confederation, that in this respect they are to be preserved in peace in causa religionis. Which we promise to keep in its entirety, for eternity.27 Toward the Unity of the Church: The Union of Brest of 1596 The sixteenth century, a Golden Age in Polish history, was an age of religious unrest throughout Europe. The Polish-Lithuanian Commonwealth was able, at least for the following decades, to legally guarantee religious tolerance. Never­ theless, at the very end of the century and at the end of Anna’s life, one more event took place that is written in golden letters in the history of the whole of Christianity. The Great Schism of the church in 1054 had divided Christ’s church in two— the Orthodox Church and the Roman Catholic Church. In the sixteenth century, the decisions of the Council of Trent, and then the actions of Pope Gregory XIII, envisioned entering into dialogue with the Orthodox Church, with the aim of ecclesiastical union. In the eyes of the Holy See, the ideal place for ecumenical activity was the territory of the Polish-Lithuanian Commonwealth, which was the territory where the areas of influence of both churches, Roman and Byzantine, met. During the military conflict between the Poland of Stephen Bathory and the 27 Author’s translation. Volumina Constitutionum, tom. 2, 1550–1609, vol. 1, 1550– 1585, 356.

90 A. Karabowicz Moscow of Ivan IV the Terrible, the role of negotiator was exercised by a Jesuit sent for this purpose by Rome, Antonio Possevino. His mission had two objectives. The first was to bring about a peace or truce between the warring monarchs. The second, much more far-reaching, was to prepare the ground for a rapprochement between the two churches. His mission ended in a half-hearted triumph.28 The war ended with a ten-year truce concluded in January 1582. In 1596, during the reign of Sigismund III Vasa, a synod of Orthodox bishops from the Polish-Lithuanian Commonwealth gathered in Brest, in Lithuania, to sign a union of churches. As a result of the union, the Ruthenian Uniate Church was established. The Uniates undertook to recognize the dogmas of the Catholic Church and the supremacy of the pope, and in return, they retained the Byzantine liturgical rite, the Julian calendar, and Orthodox church organization.

To Serve the Republic: “You Will Not Choose the King for Us”29 Anna Jagiellon was at the center of the most important political events following the death of her brother, Sigismund II Augustus, in 1572. In the eyes of the nobility, “the greatest jewel”30 was the free election of the king. The very idea of a royal election and the right to participate in the election of the sovereign in the Kingdom of Poland was slowly being formed. The first person elected by the nobility to be the Polish monarch was Władysław Jagiełło, chosen as the husband of Queen Jadwiga of Anjou. Subsequent rulers from the Jagiellonian dynasty were elected by the royal council in the presence of the nobility. However, this choice was limited by respect for the hereditary rights of the successors of the deceased monarch.31 The legal acts regulating the royal election were statutes issued by Sigismund I the Old in 1530 and 1538.32 Their ambiguous wording has caused many diffi­ culties of interpretation. In turn, the Union Act of 1569 and the Henrician 28 Antonio Possevino, Moscovia (Vilnius: Apud Ioannem Velicensem, 1586); Edward Likowski, “Rokowania poprzedzaja˛ ce Unie˛ Brzeska˛ ,” Przegla˛ d Polski, r. 20, kw. 4, t. 80 (1886): 8–11; Bolesław Kumor, “Geneza i zawarcie unii brzeskiej,” in Unia brzeska, geneza, dzieje i konsekwencje w kulturze narodów słowian´skich, ed. Ryszard . Łuzny, Franciszek Ziejka, and Andrzej Ke˛ pin´ski (Kraków: Towarzystwo Autorów i Wydawców Prac Naukowych “Universitas,” 1994), 26–28. 29 Words addressed to Anna Jagiellon by envoys from the senate in the autumn of 1572. Author’s translation. Bogucka, Anna Jagiellonka, 82; Przez´dziecki, Jagiellonki Polskie, 4:12. 30 Author’s translation. “Siem walny koronny w Warszawie A[nn]o D[omini] 1582,” in Scriptores Rerum Polonicarum, vol. 18, ed. Aleksander Czuczyn´ski (Kraków: Nakła­ dem Akademii Umieje˛ tnos´ci, 1901), 339. 31 Wacław Uruszczak, Historia pan´stwa i prawa polskiego, vol. 1, (966–1795) (Kraków: Wolters Kluwer Polska, 2010), 140–41. 32 Volumina Constitutionum, tom. 1, 1493–1549, vol. 2, 1527–1549, ed. Irena Dwor­ nicka, Stanisław Grodziski, and Wacław Uruszczak (Warsaw: Wydawnictwo Sejmowe, 2000), 80–81, 163–64.

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Articles of 1573 provided for the joint election of a single monarch by both Poland and Lithuania. Heredity to the throne was banned. Finally, this electio regis libera, or free election of the king, as specified in the act of 1538, was to be per­ formed by the entire nobility of the Polish-Lithuanian Commonwealth in the form of the electio viritim.33 Anna Jagiellon lived during the first three royal elections, which took place in 1573, 1575, and 1587. Her participation was different in each of them. During all of them, however, in the opinion of the voters—that is, the nobility—and in the eyes of the candidates themselves, her person was treated as the most important determinant, a means to an end, and, at the same time, a threat to the implementation of this libera electio. From being a passive observer and a help­ less tool in the hands of the electors, passing through the role of the ideal and unique way out of the complicated situation of the discordant election, the widowed Queen Anna in 1587 officially assumed the role of agitator and spokeswoman for the election of her nephew Sigismund, whom she treated as her own son. According to Anna, raised to worship the dynasty of which she herself was a member, Sigismund was a continuation of the Jagiellonian dynasty, the only right choice. The Henrician Articles and the Rule of Law: In Polonia Lex Est Rex, non Rex Est Lex During the first interregnum following the death of Sigismund II Augustus at the election Sejm of 1573, on May 20, a legal act was passed which, in the opinion of historians, is unanimously referred to as the first modern Polish constitution.34 It was a document prepared by the estates of the Sejm—that is, the senate and the deputies of the nobility—for the newly elected monarch, whoever he might be. In several points, it contained the duties and limitations of the future king’s power. The act’s authors intended that the candidate elected to the throne swear an oath and officially confirm the document’s validity after the coronation. From the name of the first elected monarch, Henry de Valois, this document is called the Henri­ cian Articles, although, ironically, Henry did not finally confirm this act after his coronation. Only Stephen Bathory officially confirmed the document, on May 4, 1576. The Henrician Articles guaranteed the nobility their privileges and determined the principles of the political system and the laws of the republic. They obliged the monarch to convene a general assembly every two years for six weeks or during emergencies. He was to have a permanent advisory council of sixteen senators (the so-called resident senators). The Henrician Articles prohibited the monarch from using a hereditary title and stated that the king was to be elected only by a free 33 Anna Karabowicz, Prawodawstwo sejmowe i królewskie za panowania Stefana Batorego (1576–1586) (Warsaw: Wydawnictwo Sejmowe, 2022), 46. 34 Stone, The Polish-Lithuanian State, 119–20; Dariusz Makiłła, Artykuły henrykowskie (1573–1576): Studium historycznoprawne (Warsaw: Vizja Press & IT, 2012), 54, 360–67.

92 A. Karabowicz election. Domestic and foreign policy and the declaration of war were subject to the control of the parliament. The parliament also was to consent to the imposi­ tion of taxes. The senate was also to give its consent to the king’s marriage. The Henrician Articles forbade the application of foreign laws in the republic, includ­ ing imperial or Roman law. They provided for the removal of the monarch’s function of supreme judge (iudex supremus) with respect to the nobility. The Henrician Articles imposed on the king the duty of defending the borders of the state and included the provision about preserving religious peace and tolerating other confessions. Finally, the Henrician Articles contained a provision (articulus de non praestanda oboedientia) guaranteeing the nobility the right to terminate their obedience to the monarch in the event of his violation of the law: “And if, God forbid, we should transgress or fail to fulfill any laws, liberties, articles, or conditions, then the Crown citizens of both nations shall be free from obedience and faith.”35 The inclusion of this last provision was the culmination and articulation of the rule of law, which had been applied in the Kingdom of Poland much earlier. It meant that all inhabitants of the republic, led by the king and the officials appointed by him, were obliged to obey the law. In Poland, the Roman principle Princeps legibus solutus (The ruler is not bound by the laws) would be unthinkable.

Conclusion Anna Jagiellon lived in difficult but extremely interesting times. Her life, which spanned most of the sixteenth century, was full of moments and events of immense importance for the law and Christianity. In her adult life, Anna witnessed the political reforms carried out by her brother, Sigismund II Augustus, and those introduced after his death. She observed the rise in popularity of the reformed faiths and the conflicts that arose as a result, but she also saw how the law guar­ anteeing religious peace was established. More or less consciously and actively, she found herself at the center of the political machinations in the election of three successive Polish-Lithuanian rulers. On the day of Anna Jagiellon’s funeral, November 12, 1596, the sermon was preached by the Jesuit Piotr Skarga. Of the deceased Queen, he said these words: Now the thing about this great queen Anna Jagiellon … [is that she] not only did no harm to this kingdom or to her subjects but was particularly beloved by her people, as being beneficial to them. She enlarged their peace and their weal and pulled them out of great difficulties. Therefore, we cannot remember her leaving this world without sorrow, heartfelt pain, or tears. She was not only useful to the Commonwealth and her subjects as a

35 Author’s translation. Volumina Constitutionum, tom. 2, 1550–1609, vol. 1, 1550– 1585, 358.

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mother, but she had the superior virtues of her ancestors. She was the last of their kind.36 Her person was full of contradictions. She combined noble devotion to God and the republic with a short-sighted attachment to the dynasty, its rights, and inti­ mate dreams of marriage, as well as excessive bigotry and excess of form over substance. She was an enigma even to her contemporaries. The literature casts doubt on her political skills, which were marked by excessive ambition, weakness of character, and vacillation. However, it must be borne in mind that capricious fate placed her in circumstances for which she was unprepared. Her learned obe­ dience and her always being in the background, surrounded by untrustworthy people, did not make it easy for her to find her way in the extremely complicated political circumstances of her life. Chroniclers and historians are unanimous in pointing to her management skills, which she was able to demonstrate in Mazovia, where she administered the estates, organized construction and reform, and arranged gardens, orchards, and zoos. At her own expense, she continued the construction of a bridge over the Vistula in Warsaw, begun by Sigismund II Augustus. She rebuilt many royal resi­ dences. She managed the royal estates efficiently and responsibly. Mazovia, and especially Warsaw, owes to her a period of prosperity, which was decisive for moving the center of the state and the royal residence from Kraków to Warsaw during the reign of Sigismund III Vasa.37 She patronized culture and art and supported the Kraków Academy financially, giving it a part of the book collection left by Sigismund II Augustus. As a curiosity, it should be pointed out that for her contemporaries and bio­ graphers, Anna Jagiellon has evoked associations with the English Queen Eliza­ beth I, who lived practically at the same time.38 In fact, however, their situations were completely different. Elizabeth, though not without difficulty, took over her reign, which was utterly impossible for Anna. They were united by the fact that many of the most attractive candidates for husbands from among the European dynasties ruling at that time sought the hand of both Elizabeth Tudor and Anna Jagiellon. The last two representatives of two powerful royal dynasties in Europe, they found two different fates.

36 Author’s translation. Piotr Skarga, “Kazanie na pogrzebie Krolowey Polskiey Anny, ostatniego potomka domu Jagiełowego,” in Kazania o Siedmi Sakramentach Kos´cioła S. Katholickiego (Kraków: W Drukarniey Andrzeia Piotrkowczyka, 1600), 402. 37 About the change of the capital of Poland from Kraków to Warsaw, see Davies, God’s Playground, 234–37. . 38 Janusz Tazbir, “Elzbieta I Tudor w opinii staropolskiej,” Odrodzenie i reformacja w Polsce 34 (1989): 63; Janicki, Damy złotego wieku, 446.

6

Mikołaj Zalaszowski (1631–1703) Izabela Lewandowska-Malec

Introduction Basic biographical data of Mikołaj Zalaszowski is far from certain, although we know the year and place of his birth and some details about his parents—his father’s name was probably Franciszek, . while his mother was called Anna. Mikołaj was born in 1631, presumably in Zelisławice in Kraków Voivodeship, for it was from that village that the Zalaszowski family paid the annual fee in the amount of twelve zlotys to the Juridical College of the Kraków Academy. The surname Zalaszowski appears in the sources from the period in various spellings. Mikołaj was referred to as Załaszowski, Zalazowski, Zalasowski, and Zalaszowski. How­ ever, the most often used version was Zalaszowski—and that is how he signed the title page of a copy of a book that belonged to him—so that spelling is used in this chapter. The original background of the Zalaszowski family was bourgeois; how­ ever, the family was ennobled during the reign of King Sigismund II Augustus in 1555, a fact subsequently confirmed with a permanent constitution of 1676, during the Coronation Sejm of Jan III Sobieski. Mikołaj spent his childhood in a family environment, tutored by a home pre­ ceptor; then, as was the custom for the youth of the nobility, he was sent off for education, most likely to Nowodworski College, from which he graduated before studying at the Jagiellonian University. In 1652, Mikołaj Zalaszowski received his doctorate from the Faculty of Philosophy, even though his schooling coincided with the extremely difficult period of the Swedish siege of Kraków. For the next several years, the young graduate of the university in Kraków received his educa­ tion abroad, in Italy and Germany. He then shifted the focus of his studies, as he mainly devoted himself to the study of law. Zalaszowski returned to his home country in 1659, having already been ordained and holding a doctoral degree iuris utriusque (that is, in both canon law and Roman law) from La Sapienza University in Rome. Despite his plans to study further in Paris, he was persuaded to return by the proposal of being appointed head of the Chair of Both Laws at the Kraków Academy. Henceforth, he would be teaching as a professor of that institution, at the same time strenuously devel­ oping his scholarly works. During that time, the university also delegated him to go to Lubran´ski Academy in Poznan´, which he became closely affiliated with as its DOI: 10.4324/9781003181255-7

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lecturer and governor. He achieved renown as an accomplished teacher and administrator, sparing no time, effort, or money in elevating the standards of Poznan´ College. Finally, in 1669, having been nominated as a canon of Poznan´ Cathedral, Zalaszowski moved permanently to Poznan´, where he went on to serve in a series of church offices: as parish priest in Kostrzyn and archdeacon (prelate), as well as a judge in the episcopal court in Poznan´. In Poznan´ Zalaszowski devoted himself to academic work, painstakingly collecting sources for his future writings. He already had part of his immense library, which he had accumulated during his foreign travels. Mikołaj Zalaszowski gained recognition not only as an expert in the law and author of seminal books of law but also as a social activist, benefactor, and founder. He established a scholarship for students of Lubran´ski Academy who wished to continue their legal education. The scholar died after a short illness on September 21, 1703, and was buried in Poznan´ Cathedral.1

The Oeuvre of Mikołaj Zalaszowski Mikołaj Zalaszowski was the author of legal works dealing with canon law as well as public law and procedural law. He wrote these works in Latin—the language prevalent among the judiciary of his time. As a clergyman, and one serving in various church offices, Zalaszowski was for obvious reasons interested in selected aspects of canon law: his first publication was a treatise titled Quaestio de rebus Ecclesiae non alienandis, on the prohibition of the alienation of church estates. Among his works, his opus vitae, which he labored on for several dozen years and only managed to complete toward the end of his life, deserves the most recognition; he published the first volume of Ius Regni Poloniae (Law of the Kingdom of Poland) in 1699 (a copy exists in the Jagiellonian Library in Kraków). Three years later, Zalaszowski released the second volume of his monumental work (1702), comprising almost two thousand leaves altogether. The first volume consisted of a single book, whereas the second comprised three. It is worth a little effort to classify the works of Mikołaj Zalaszowski. His Ius Regni Poloniae was selected by the authorities of the Kraków Academy as the compulsory textbook for law students. Does that mean that Zalaszowski’s book served merely as an instructional treatise for scholars of the period? One must acknowledge the state of the sources of law (fontes iuris cognoscendi) at that time in the Polish-Lithuanian Commonwealth. The law was characterized by particu­ larism, as regards both persons and places. There was one law for the nobility, another for the clergy, another still for the burghers, and one for the peasants. The situation of the clergy was relatively the best, as already in the thirteenth century the estate was the first to have been granted privilegium fori, or “privilege of forum,” the right to trial in a special court. There were successive compilations of 1 Irena Malinowska, Mikołaj Zalaszowski. Polski prawnik XVII stulecia na tle ówczesnej nauki prawa (Kraków: Zeszyty Naukowe Uniwersytetu Jagiellon´skiego, Rozprawy i studia, t. 21, 1960), 24–26, 29–31, 39–43.

96 I. Lewandowska-Malec universal canon law, starting with the famous twelfth-century Decretum Gratiani (Concordantia discordantium canonum), followed by the Code of Canon Law (Corpus Iuris Canonici) published in 1580, which became the official church compilation of canon law, having been authorized by Pope Gregory XIII.2 In towns founded under German town law, the state of affairs for burghers was satisfactory, considering that in line with the principle of personality (“law applies to citizens only”) burghers of German descent were under the rule of German law. The first sources of German law were the Sachsenspiegel and the Magdeburg Weich­ bild (Ius Municipale), that is, monuments of law applied in municipal courts throughout the Polish lands, collected in Łaski’s Statute of 1506.3 Łaski’s collection consisted above all of the land law (prawo ziemskie) relating to the nobility: Statutes of Casimir the Great of the fourteenth century, the acts issued by the king and the Sejm constitutions, as well as two written versions of the customary Law of the Land of Kraków. All of that legal material was referred to as “common law” (though not in the sense of English law), applicable to the nobility, burghers, and the clergy.4 Still, Łaski’s Statute was an imperfect and insufficient collection; hence, during the sixteenth-century Sejms, the nobility started to demand that the law be codi­ fied. This goal was achieved, however, only in a single body of law—procedure in land courts (Polish sa˛ dy ziemskie); this collection, named Formula processus, was adopted at the 1523 Sejm. Despite the large-scale project that resulted in the codification of Polish law known as the Correction of Laws (Correctura iurium), this collection, unifying the entire Polish law, was rejected by the Sejm in 1534 as a new law (iura nova); at the time, the ideology of the nobles was permeated by the conviction of the highest value of old law, considered adequate and in need of no changes. In fact, Sejm participants hailing from the nobility saw the project as introducing regulations to diminish their importance in favor of the king and the senatorial houses. The correction of laws envisaged that particular laws would no longer be applied; nevertheless, as the correction was never adopted, different regulations continued to be applied throughout the Commonwealth: the Statutes of Lithuania in the Grand Duchy of Lithuania, the Mazovian excepta in Mazovia, and the Prussian Correction in Royal Prussia. Because of the failure to codify Polish law, the system of law in Poland (Corona Regni Poloniae) was in dire need of a compilation that could be applied in prac­ tice—above all in procedural practice. Therefore, compendia, that is, private col­ lections of laws, came to be created; the best known among these were the compilations by Jakub Przyłuski (1553) and Jan Herburt (1563).5 In the next 2 Stanisław Płaza, Historia prawa w Polsce na tle porównawczym, cz. I: X–XVIII w. (Kraków: Ksie˛ garnia Akademicka, 1997), 68–70, 86, 192–93. 3 Maciej Mikuła, Prawo miejskie magdeburskie (Ius Municipale Magdeburgense) w Polsce XIV-pocz. XVI w. Studium o ewolucji i adaptacji prawa (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 2018), 15, 17, 19. 4 Wacław Uruszczak, Historia pan´stwa i prawa polskiego, vol. 1, (966–1795), 2nd ed. (Warsaw: Wolters Kluwer Polska, 2013), 167.

5 Ibid., 171.

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century one such work was the monumental study by Mikołaj Zalaszowski, Ius Regni Poloniae. Thus, it was not only a textbook for law students but, above all, a piece of jurisprudence, a scholarly legal work, even though Zalaszowski tended to abstain from including his own commentaries. Considering how widely dispersed were his sources, gathering such immense legal material required extraordinary thoroughness, expertise, and erudition.

Characteristics of Ius Regni Poloniae At that time, law was divided into political (public) law—encompassing the ques­ tions of the government of the state and social organization—and procedural law, which included the regulations of material and processus law.6 Like many other legal writers of his period, Zalaszowski in his Ius Regni Poloniae used the Roman division of law, separating material topically into personae, res, and actiones, a division that only partly matched the issues; he forced the problems under con­ sideration to fit this division, at times without any logical connection. Zalaszowski, however, was not an expert on Polish law, which he barely ever practiced; instead, he had amassed extraordinarily broad knowledge of Roman law, as he demon­ strated in numerous passages of Ius Regni Poloniae.7 Book One: Political Law Only in the content of the first volume do the collections compiled by Zalaszowski reflect the title of the volume, as it covers law that was then known as political or public law. In this part, he did in fact include regulations of Polish law, among them predominantly the Sejm constitutions, with some further historical accounts. In line with the Roman classification, Zalaszowski organized volume one around the notion of personae, attempting to treat this conception as the “law of estates of the Crown.” Hence, Zalaszowski here distinguished the regulations related respectively to the king, the senate, and the nobility. In this part of Ius Regni Poloniae, he mainly juxtaposed provisions of the Polish and the Lithuanian law, as well as particular laws applicable in the territories of the Commonwealth, and only incidentally referred to other legal systems. Be that as it may, book one commenced with matters of religion, for Zalaszowski first discussed the issue of paganism in the Polish lands, and then the adoption of Christianity in the tenth century. He paid much attention to religious dissenters (dissidents), presenting the evolution of the attitude toward dissent in legal norms, from the Edict of Wielun´ of 1424, issued by King Władysław Jagiełło against the adherents of Hussitism, all the way to the Warsaw Confederation, which provided for religious tolerance. Zalaszowski championed respect for religious freedom.

6 Płaza, Historia prawa, 10.

7 Malinowska, Mikołaj Zalaszowski, 73, 97–105.

98 I. Lewandowska-Malec He devoted a separate section of book one to the role of the king of the Commonwealth, albeit starting from the operation of the kingdom during the interregnum, when, in order to defend the country against enemies within and outside, the nobility formed confederations in voivodeships and other territories as well as the nationwide general confederation. This was intended to ensure safety during royal elections. In book one of Ius Regni Poloniae, Zalaszowski cited the provisions of the Henrician Articles—adopted by the first election Sejm in 1573, which interdicted the king from establishing hereditary succession.8 He also noted the provisions of pacta conventa, that is, the public law articles of agreement between the nobility and the elected king that consolidated the principle of the free election of the ruler; Zalaszowski considered that document to have been an act of sorts. He discussed in detail the procedure of electing a king during the election Sejm, quoting extensively the texts of the pacta conventa, underscoring the nobles’ right to resist the king; for the law itself was considered sovereign, and everyone, including the king, was subject to it. Transgression against the law by the ruler could result in the formation of a confederation against him, known as rokosz. Zalaszowski closed his discussion of the matter of election with an account of the act of the monarch’s coronation. He went on to present, alongside a juxtaposition of Sejm constitutions, the limited though still considerable scope of royal power in the Commonwealth. Specifically, it was the king’s prerogative to grant titles, offices, and lands for lifelong use (iustitia distributiva). Zalaszowski discussed the status of the queen separately, also in terms of her property, because—like every other Polish noblewoman—she had the right to financial security, which was secured on separate parts of the royal domain. Addi­ tionally, book one presented the legal situation of royal children, who were allo­ cated a provision of property. Providing financial security to the king’s spouse, as well as to his children, fell within the purview of the Sejm of the Commonwealth. Likewise, it was by an act of the Sejm that the king was allocated certain goods for his upkeep (bona mensae regiae). The royal demesne was subject to a revision every five years in order to establish its actual economic state and assess the tax, known as kwarta (a fourth of the income allocated for the purposes of the defense of the borders). Zalaszowski further indicated one of the basic binding principles in the Commonwealth, namely, the granting of the offices of court starosta, along with profits from the lands they oversaw, exclusively to noble estate owners (Polish posesjonaci), who served the Commonwealth well. This benefaction, known as “bread of the well-deserving” (panis bene merentium), was to be a means of social advancement and of remunerating the merits of citizens from among the nobility.9 Another estate discussed in book one of Ius Regni Poloniae was the senate, which grouped representatives of the so-called senatorial houses, the most affluent magnate families. In the senate, as Zalaszowski emphasized, the principle of pre­ cedence was in force; it was a kind of order of priority, beginning with the most important offices of archbishops of Gniezno and Lwów followed by bishops, the 8 See Chapter 5 in this volume.

9 Malinowska, Mikołaj Zalaszowski, 114–15, 118–22, 124–26.

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castellan of Kraków, voivodes, and minor castellans. Furthermore, the highest officials of the Crown and of Lithuania also sat in the senate: marshals, chancellors, vice chancellors, and treasurers. Pursuant to one of the provisions of the Henrician Articles, senators also served in the office of resident senators, assisting the king as his personal council of four men, who were replaced semiannually. Zalaszowski then discussed the offices of senators from the clergy, the most important of whom was the primate, archbishop of Gniezno. At this juncture Zalaszowski provided an account of the history of the arch­ diocese of Gniezno, commenting on the sources he cited, including the papal bulls, and later the history of the establishment and further development of the archdiocese of Lwów and the dioceses of Kraków, Włocławek, Vilnius, and others. In this section, Zalaszowski presented the role and prerogatives of the archbishop of Gniezno as the interrex, who exercised kingly power during an interregnum. Separately, because of the rights of the bishop of Kraków related to the academy there, Zalaszowski brought together legal acts of the period pertaining to the Jagiellonian University, particularly those on the status of its students.10 Although Zalaszowski tended not to divulge his personal opinions about the law, on this occasion, discussing the kind of law that applied to foreign students, he decided that the privilege issued by Władysław Jagiełło applied solely to Polish students. In this instance it was also clear that the opposing proposals had been informed by Roman or canon law. During that period, the systems of Roman and canon law were regarded as the common law (ius commune), while the “scholarly” law also drew from their legacy—Roman and canon law were what was studied to obtain the degree of doctor of both laws (utriusque iuris).11 Domestic law was not taught in systematic university education, and thus the need for the development of compilations such as that by Zalaszowski, especially because the jurisprudence of the time did not have at its disposal official collections of laws, or codices. However, in light of the fact that his work served simultaneously as an academic textbook, the question arises whether or not students acquainted themselves at all with domestic law during their schooling. Apparently, they had such an opportu­ nity, a duty even; nevertheless, a graduate of the academy obtained his title on the basis of his knowledge of Roman and canon law (that is, both laws). In the part of Book One devoted to the senate, Zalaszowski also outlined the status of lay senators (of whom the castellan of Kraków was the first) and, subse­ quently, the rights of voivodes and castellans. He gave particular attention to central officials, referred to as ministers, whose main competences he systematically presented. In this part of Ius Regni Poloniae, he also featured descriptions of other offices, including local ones—a clear contradiction of the adopted classification, considering that local officials did not belong to the senatorial state. Zalaszowski 10 Izabela Lewandowska-Malec, “Spór akademików z jezuitami o monopol na szkolnictwo . wyzsze w Koronie. Zagadnienia historycznoprawne,” in Cuius regio eius religio, 2, ed. Grzegorz Górski, Leszek Ćwikła, and Marzena Lipska (Lublin: Wydawnictwo KUL, 2008), 93–95. 11 Płaza, Historia prawa, 42.

100 I. Lewandowska-Malec underscored the principle of incompatibilitas in force in the Commonwealth, which prohibited holding more than one administrative office. Zalaszowski then went on to discuss the estate of the nobility, whose extremely important role he often emphasized throughout his work, understanding and accepting it as a nobleman himself. Passages on the property rights of the nobility are prevalent; in this section, however, he focused on their political rights and duties. The nobility had the right to participate in governing the country: indirectly through their deputies, and directly in their “administrative units”—lands and voivodeship—by attending assemblies known as dietines. Representatives of the nobility formed the deputy chamber of the Polish–Lithuanian Parliament, known as the General Sejm of the Kingdom of Poland. Zalaszowski exhaustively outlined the procedure of the Sejm, that is, the set of activities leading to the session of the parliament and to the announcement of its results, as well as the Sejm debates, including their place and time; nevertheless, he did not find it necessary to present his personal opinion of the system of the Polish state of his time. Irena Malinowska, the author of the monograph on this distinguished man of law, suspects that he was unable to apply his expert knowledge of Roman law to this topic, for the manner of operation of the Commonwealth greatly differed from all existing models, being completely unlike the political systems of other European countries, whose rulers held absolute authority.12 Zalaszowski classified the Commonwealth as respublica mixta. This usage demonstrates that the notion had become widespread in the seventeenth century, for the usual phrase had been monarchia mixta, applied in the belief that as a political system, the Polish– Lithuanian state was twice-mixed, a monarchy combined with a republic, which in turn involved elements of oligarchy and democracy.13 Zalaszowski’s shift in ter­ minology was probably intended to demonstrate that it was the republican and not monarchical system that dominated the political arrangements of the Com­ monwealth. He pointed out that it is the basic duty of every nobleman to defend the republic, that is, to participate in the levée-en-masse, or national conscription. The obligation of military service was treated in the ideology of the nobility as the justification for their obtaining various privileges and participating in the govern­ ment; after all, if the nobility risked their lives for the Commonwealth, they had the right to co-decide the future of the country. Books Two, Three, and Four: Procedural Law Private Law Zalaszowski’s proficiency in Roman and canon law becomes manifest in the book of Ius Regni Poloniae devoted to procedural law. Taking up procedure as it applies 12 Malinowska, Mikołaj Zalaszowski, 302–04. On Irena Malinowska, see Chapter 17 of this volume. 13 Izabela Lewandowska-Malec, Demokracje polskie. Tradycje, współczesnos´c´, oczekiwania (Kraków: Ksie˛ garnia Akademicka, 2013), 54.

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to private law, Zalaszowski identified the real law and the law of obligations, though he situated certain institutions in a different branch than where current law places them. For instance, he classified donation as an element of the real law, whereas he grouped pledge and mortgage under obligations. Within the frame of his work, Zalaszowski did not stipulate personal law of marriage,14 probably because the matter was subject to the rule of canon law. He identified real law as all property laws; hence, it is among these that he classed matrimonial property laws, property aspects of paternal authority, and inheritance laws. On the basis of Roman law, Zalaszowski divided things into those associated with the divine order and those within the human order. Among the former, he included sacred, religious, and respected things (res sacrae, religio­ sae, sanctae), while among the latter he included public, common, and private things (res publicae, communes, privatae). As real rights, Zalaszowski did not directly take into consideration the Roman division of property rights into ownership and the rights to the property of another,15 as his treatment of use and easements was selective. Nevertheless, he devoted much attention to various aspects of property. In Roman times, this broadest right to things—legal ownership (dominium, proprietas)—was clearly differentiated from possession (possessio), which involved actual possession of the thing. Ulpian indicated the difference directly: separata esse debet possessio a proprietate (possession must be separate from ownership).16 According to Zalaszowski, dominium signified not only proprietas, that is, ownership in the legal sense, but also possessio in actuality. Furthermore, in the wake of the reception of Roman law during the Middle Ages, thanks to glossarists, various notions of ownership were developed: “general ownership” (dominium directum), and “beneficial ownership” (dominium utile), of which the former constituted “full ownership” (dominium plenum), and the latter “diminished ownership” (dominium minus plenum).17 Notably, in Ius Regni Poloniae, Zalaszowski did not consider the issues related to the protection of property and protection of ownership. Among the issues related to the acquisition of property, of particular importance were the notions of prescription—that is, the right to establish a claim on the basis of a long period of possession or use—and acquisitive prescription (respectively praescriptio and usucapio). In Polish law of the time, these notions were not dis­ tinguished from one another; similarly, Zalaszowski did not differentiate between the two either, although he tried to attribute to the notion of praescriptio the acquisition of real estate ownership, at the same time associating usucapio with movables. Limitation, resulting from the lack of activity on the part of the authorized person, was referred to in Polish law as dawnos´c´, and it was identified 14 Malinowska, Mikołaj Zalaszowski, 173, 179, 226. 15 Wojciech Dajczak, Tomasz Giaro, and Franciszek Longchamps de Bérier, Prawo rzymskie. U podstaw prawa prywatnego, 3rd ed. (Warsaw: Wydawnictwo Naukowe PWN, 2018), 385–86. 16 Kazimierz Kolan´czyk, Prawo rzymskie, 3rd ed. (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1978), 266. 17 Dajczak, Giaro, and Longchamps de Bérier, Prawo rzymskie, 407–08.

102 I. Lewandowska-Malec with usucaption. For usucapio to be affected, several conditions had to be met: good faith, iustus titulus, and a certain period of ownership of an undamaged thing. In his considerations, Zalaszowski drew from both Roman law and canon law, for even though the latter was heavily indebted to the ancient system, cano­ nists did develop new approaches to certain legal institutions. For instance, for usucaption to be affected, good faith was required throughout the entire period of ownership, whereas canon doctrine required good faith only at the beginning. Later in his book, Zalaszowski meticulously juxtaposed the terms of usucaption according to canon law as well as the Roman, Saxon, Polish, Lithuanian, and royal Prussian laws. The Polish dawnos´c´ may have spanned from as little as three days, in the case of the right of a raped woman to complain, up to several scores of years (forty to sixty years). However, this notion had to be regarded as different from procedural limitation (fatalia iuris), when the interested party did not present his case before the court for a year and six weeks. Meanwhile, canon law introduced the notion of limitation defined as “time immemorial” (praescriptio immemorabilis), although the doctrine of the time saw debates about whether the period should span more or less than a century—the limitation period of demesnes owned by the pope or the monarch.18 On the basis of Roman law, Zalaszowski differentiated between inheritance under a testament and inheritance by intestacy.19 However, he pointed out the differences to be found at the time between the Polish, Lithuanian, and Prussian law in relation to the—particularly hereditary—inheritance of legal estate. Generally, there was a prohibition, introduced by way of Sejm legislation, to intestacy “on knightly law” or to bequeathing real estates that were obligated to defense of the Commonwealth. Zalaszowski referred to the constitution of the 1676 Sejm, which confirmed the entire prior legislation with regard to these prohibitions. Nevertheless, it was possible to make bequests to pious institutions.20 Due to the inability to draw up testaments, Zalaszowski mentioned fee tails, or fees limited to a particular class of heirs, which— via the exegesis of Roman regulations on the institution of fideicommissum—served as the basis for excluding intestacy in family estates; however, exclusively with the sepa­ rate agreement of the Sejm as a lex specialis. The constitution of the prohibition of testamentary inheritance was lex generalis. Each exception was lex specialis according to the rule: lex specialis derogat legi generali. This is how the fee tail of the powerful Lithuanian House of Radziwiłł, among others, was established. Zalaszowski cited the law related to this family in his work; in such an instance, specific inheritance regulations were applied, predominantly based on the principle of primogeniture. Zalaszowski devoted much more attention to the issues of marital regime. He elucidated the provisions of Polish land law that made women unable to inherit 18 Malinowska, Mikołaj Zalaszowski, 161, 167. 19 Wacław Osuchowski, Rzymskie prawo prywatne. Zarys wykładu (Warsaw: Pan´stwowe Wydawnictwo Naukowe,1988), 427–28. 20 Volumina Legum, vol. 5, 1669–1697 (St. Petersburg: wydał Jozafat Ohryzko, 1860), 184.

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family estates, and the inadmissibility of inheriting from the spouse; on the other hand, he also listed the legal instruments providing protection of a wife’s property in case of her husband’s death. For that purpose, a noblewoman received a dowry (dos), as the monetary equivalent of her legal portion. This part of the assets was increased by the husband with the endowment (Polish wiano; Latin dotalium), constituting an equivalent of the dowry—the endowment-dowry sums were bequeathed as half of the husband’s real estate—indeed, the part of it where the manor house was situated. Thus, in the event of her husband’s death, the widow retained her marital endowment and could reclaim her dowry from her husband’s heirs. Her rights had the status of a lien, known as anticresis. The ban on inheri­ tance from a spouse was considerably limited in the Polish and Prussian laws by the possibility to enter into a life estate agreement, a model of which was already provided in the codification of procedural law, titled Formula processus (1523). According to that institution, spouses mutually listed the rights that would be granted to the surviving spouse.21 A separate branch of private law that Zalaszowski discussed comprised obliga­ tions, which he understood within the Roman framework. However, when talking about typical contracts—agreements such as sale, loan, barter, rental, deposit, lease, mandate, and others—he also included institutions that had not been clas­ sified as obligations in Roman law. These were lien and mortgage, as both were already categorized in antiquity as iura in re aliena (rights to another’s thing).22 Zalaszowski distinguished between a lien and a mortgage on real estate. In line with Roman law, he pointed out the existence of a general mortgage, encom­ passing the entire real estate of the debtor; it is worth noting, however, that the institution was not a part of the Polish law because of the implemented principle of specificity. For the old Polish mortgage differed greatly from the Roman model of mortgage. Zalaszowski, his expertise being mainly in Roman and canon law, found it difficult to present the standard principle of the Polish law—that of good faith; for Roman law did not provide for lien transparency.23 Meanwhile, he pre­ sented an in-depth treatment of the principle of seniority, known from antiquity (prior tempore potior iure), although its Polish version was much simplified with regard to the classification of creditors possessing the right to satisfy their claims. That very important rule was the subject of the Sejm constitution of the Polish Sejm of 1588.24 Criminal Law Mikołaj Zalaszowski devoted a part of his work to the criminal law, discussing various types of offenses. However, he neither analyzed the general terms nor 21 22 23 24

Płaza, Historia prawa, 243, 246, 289; Uruszczak, Historia pan´stwa, 305–06. Osuchowski, Rzymskie prawo, 294–98. Kolan´czyk, Prawo rzymskie, 331. Volumina Constitutionum, vol. 2, 1550–1609, part 2, 1587–1609, ed. S. Grodziski (Warsaw: Wydawnictwo Sejmowe, 2008), 70.

104 I. Lewandowska-Malec provided a classification of offenses. At that time, criminal offenses could be dis­ tinguished only in terms of material criteria, as the formal definition of a criminal offense—expressed by the phrase nullum crimen sine lege (no crime without a law)—had not yet been developed.25 Thus, the criterion for offense classification was based on the type of goods violated—either common or private (individual) interests. Modern legal history identifies private and public crimes, a division that Zalaszowski failed to indicate in his work.26 His discussion of crimes began with crimen laesae maiestatis, or treason, then proceeded to those against life and health, against public and individual safety, against decency and public morals, and against property.27 The issues recognized today in the study of crime, such as the criminal law regulations, the subjective and objective elements of crime, the causes of impunity, and the forms of committing a crime, can only be reconstructed from the arguments Zalaszowski used while presenting the respective types of offenses. The issue of extending criminal liability to the members of the offender’s family was most noticeable in the instance of the crime of lèse-majesté. Zalaszowski points out that the Roman law applied collective responsibility, for under Roman law the monarch was protected in a much more severe manner than in the Common­ wealth. In the Polish land law, liability rested solely on the offender, who was sentenced to aggravated capital punishment, whereas lesser transgressions resulted in forced exile from the country, infamy, and confiscation of property, without prejudice to the rights of creditors and the spouse. Children were not held responsible for criminal behavior of their father. These penalties were also provided for high treason, which was differentiated from lèse-majesté in a Sejm constitution of 1588.28 Zalaszowski’s biographer is right to observe that the status of the ruler in the Commonwealth was not the same as in absolute monarchies; hence, the pun­ ishment for the crime of lèse-majesté was less severe.29 With that offense as an example, one is able to observe a certain level of individualization, though not subjectification, of criminal liability in the case of the attempted assassination of King Sigismund III Vasa in 1620 by a nobleman, Michał Piekarski, when Piekarski’s probable status as criminally insane was not taken into consideration.30 Subsequently, as a major issue of material criminal law, Zalaszowski discussed the types of homicide. Among those, he distinguished involuntary homicide (homicidium casuale). However, contrary to its name, this category of crimes included also those committed by negligence. Identifying the difference between accidental and negligent deed proved immensely difficult for the lawyers of the period. The attempts at their differentiation were instead made via casuistry.31 In Płaza, Historia prawa, 122.

Uruszczak, Historia pan´stwa, 348.

Malinowska, Mikołaj Zalaszowski, 251.

Volumina Constitutionum, 62–3.

Malinowska, Mikołaj Zalaszowski, 252.

Izabela Lewandowska-Malec, Sejm walny koronny Rzeczypospolitej Obojga Narodów i

jego dorobek ustawodawczy (1578–1632) (Kraków: Ksie˛ garnia Akademicka, 2009), 71– 72.

31 Płaza, Historia prawa, 366, 368.

25 26 27 28 29 30

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reference to the Polish law, Zalaszowski claimed that accidental homicide is not liable to punishment, but damages must be indemnified. However, his position was so unclear that it may be concluded that he failed to overcome the theoretical structure of a case. The reason behind the problems of the doctrine was the lack of abstract notions and their definitions. The issue of guilt was also part of that sub­ ject matter. Zalaszowski recognized the difference between intentional and unintentional forms of guilt, which he based on the concept of intent. Unintentional homicide occurs when the perpetrator cannot be attributed with the intent to commit murder, although his actions resulting in the death of another person were inten­ tional. On the other hand, a perpetrator with intent to kill acts deliberately; hence, his act is willfully and culpably criminal.32 The concept of unintentional guilt dif­ fered greatly from the subsequent constructs of recklessness and negligence.33 Zalaszowski had a different criterion of classification, namely, he believed that an act is unintentional either when the activity performed by the perpetrator is per­ missible but conducted without due care or, alternatively, committed while per­ forming prohibited activity. We may assume that lack of due care subsumed the modern constructs of recklessness and negligence. While discussing homicide, Zalaszowski focused on the issue of necessary defense. In his day, the institution of criminal law had already been relatively well developed, owing to canonists who drew on Roman law.34 Nevertheless, Zalaszowski still presented criminal law in a casuistic manner, for he did not use general notions, such as, for instance, circumstances precluding the criminality of the act. Zalaszowski classified the self-defense justification of homicide as necessary homicide (homicidium necessarium), emphasizing that acts in defense of life, honor, or property are not punishable. What is punishable, however, is when one exceeds the limits of necessary defense. In a relatively precise manner for his time, and considering the shortcomings in construction of notions, Zalaszowski presented the criteria for necessary defense: defense against assault, immediacy of defense, proportionality of the defensive means used, and the necessity of defense resulting from the inability to avoid danger in other ways.35 Zalaszowski did not distinguish clearly between necessary defense and the institution known at the time as “initiation,” or “the announcement of revenge,” which he referred to as diffidatio, modeled after the infringement of public order recognized in German jurisprudence. Such distrust in the conditions of the Polish land law provided for a possibility of revenge of a nobleman against another nobleman for wrongs suffered. The announcement of revenge was entered into the court’s register. The act of announcement eliminated criminal liability. In 1588, the Sejm passed a constitution limiting the use of the announcement of 32 Malinowska, Mikołaj Zalaszowski, 256–57. 33 Andrzej Dziadzio, Powszechna historia prawa (Warsaw: Wydawnictwo Naukowe PWN, 2008), 395, 397–98. 34 Płaza, Historia prawa, 370. 35 Malinowska, Mikołaj Zalaszowski, 255.

106 I. Lewandowska-Malec revenge; however, it did not ultimately abolish that institution, as the law con­ tinued to prioritize private justice.36Diffidatio often took the form of an invasion of a nobleman’s house—such instances were rather frequent at the time. It is probably for that reason that Zalaszowski discussed the offense exhaustively, in both its basic and its aggravated type, the latter further entailing murder, injury, or violation, which he refers to as tumultus. Zalaszowski was also able to recognize the need to limit, though not abolish, the criminal liability of minors. He discussed this issue in relation to the crimes of arson, theft, incest, and adultery. He also cited opinions of other lawyers who claimed that in the case of parricide, juvenile offenders should not be liable as adults, even though in the legal science of the time the commonly accepted opi­ nion was that in the case of that particular deed, a minor ought to be punished as severely as an adult. Much as in the matters discussed above, Zalaszowski presented other significant constructs, such as accessory offenses and stages of crime, only casuistically. Of the stages of crime—that is, intention, preparation, attempt, accomplishment—he focused mainly on attempt, though without defining it; still, he was aware of the name of that stage of criminal offense (conatus). Zalaszowski also recognized stages of attempt closer to or further from the accomplishment of the crime; he introduced the notion of attempt when writing about the then recognized crime of suicide (homicidium suiipsius) or self-harm, but also crimes of abortion, rape, adultery, and arson. In the case of suicide, he clarified that although punishing a suicide victim was admittedly no longer possible, it was possible to draw private law consequences and denial of Catholic burial rites. He recognized the need to differentiate between more and less advanced attempts at particular crimes in the case of adultery, stating that gradation of punishment ought to depend on the stage of the attempt. Referring to legal authorities of his time, he asserted that if a stage approaching accomplishment was reached, the attempt should be punished on par with accomplishment, and that such procedure is definitely necessary with other aggravated offenses. In Ius Regni Poloniae, criminal law provided for active criminal proceedings against forms of commitment or accessory forms, such as aiding and abetting. Zalaszowski devoted a separate chapter to accessory crime, though he did not venture to formulate a definition of that notion. He partly combined that stage of crime with incitement and obstruction of justice, that is, assistance in committing the crime. Generally, Zalaszowski thought that an accomplice should be equally liable as the perpetrator, even though he usually discussed the issue in a casuistic way, on the basis of the respective types of offenses, treating the broadly under­ stood concept of aiding as a crime sui generis. Talking about the crime of parricide, Zalaszowski identified the liability of the instigator and abettor as identical to that of the perpetrator of parricide, most likely due to the fact that this was considered one of the most severe crimes. This may be inferred from the punishment provided for that deed in Roman, Saxon, 36 Volumina Constitutionum, 66.

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and Lithuanian law, namely, the penalty of the “sack” (poena cullei): one who murdered his own father was put into a sack with a dog, a rooster, a viper, and a monkey and then, after the sack was sewn up, dropped into the open sea. That drastic punishment was subject to various modifications due to inade­ quate conditions to administer it in full, but its alternatives were also extremely violent. The treatment of the crime of abortion was identical, as long as the human fetus already had a soul, that is, was animatus—in the case of a male fetus from day forty, and for a female fetus from day sixty after conception. In such circum­ stances, the crime was punished by death, that is, in all possible accessory forms of the act.37 As a side note, it may be worth adding at this juncture that in the penal code of 1997, currently binding in Poland, these accessory forms of the crime of feticide were differentiated; however, perpetration, incitement, and abetting are subject to the same period of imprisonment.38 It is also apparent in Ius Regni Poloniae that causing sterility (procurare sterilitatem) was treated as a separate offense, regardless of whether as perpetration, incitement, or aiding. In the case of aiding, even though canon law provided for a penalty equal to that for murder, Zalaszowski shared the opinion of his contemporary lawyers that such an offender should be subject to a milder punishment. As can be observed in the above examples, when presenting the respective types of offenses, Zalaszowski indicated the penalties used at the time. Due to the fact that crime was considered also to constitute a sin (peccatum), retribution was required to propitiate God’s wrath. Therefore, the motivation for punishment was constituted by predominantly religious and retributive (for the evil caused) ratio­ nalizations; it was also intended to deter others from committing similar offenses, and the perpetrator from reoffending. The characteristic feature of the penal code of the time, however, was its estate-dependent nature, which consisted in differ­ entiation of punishments according to the social background of the perpetrator and the victim. This can be perfectly illustrated by the example of murder. If a nobleman murdered another nobleman, he had to pay a monetary fine, known as główszczyzna (man price), and he spent a year and six weeks in confinement . (referred to as wieza—tower). The tower punishment in fact constituted a prison sentence. The imprisonment could take the form of either the lower or the upper tower. Punishment in the lower tower was used on perpetrators of voluntary manslaughter; it was served in a dark dungeon with no access to light. Such cir­ cumstances often led to the death of the convict. Meanwhile, the upper tower meant a lit chamber, where the perpetrator enjoyed much better conditions—it was the penalty for involuntary manslaughter. However, when a nobleman was killed with a hand cannon during a session of the parliament or court, this was treated as an aggravated offense, and Polish legislation introduced the penalty of infamy and death. Punishment of a plebeian perpetrator was much different. If he 37 Malinowska, Mikołaj Zalaszowski, 260–61, 269–70, 273, 275, 286, 291–92. 38 Ustawa z 6.06.1997—Kodeks karny, Dziennik Ustaw 2020 poz. 1444 tekst jednolity, art. 152.

108 I. Lewandowska-Malec killed a nobleman, he was sentenced to capital punishment without the possibility of converting it to a monetary penalty.39 However, when a noblemen killed a plebeian, he paid a monetary penalty “for a head,” that is, główszczyzna, or man price; it was set higher than for a plebeian who killed another plebeian, however. For over a century, various political authors, such as Andrzej Frycz-Modrzewski, Andrzej Wolan, and Jan Cerasinus, called for alleviating this striking injustice; nevertheless, the author of Ius Regni Poloniae failed to consider this crucial issue.40 The law of the period still used mutilation as retaliatory punishment. An instance of a crime to well illustrate this form of punishment was arson—if the offense was voluntary, the perpetrator was punished by burning to death. In the case of theft, the punishment was that of cropping or cutting off an ear. When assessing the liability of perpetrators, the penal code referred to mitigat­ ing or extenuating circumstances. Zalaszowski devoted particular attention to those in relation to the crime of adultery, though he indicated that the Polish statue law did not recognize any deed of that sort at all. Here he exhaustively referred to Roman, Saxon, and canon law. Among the mitigating circumstances, the following were considered: high social status of the perpetrator, old age, and the forgiveness of the spouse. Adultery was not punished in the case of forced intercourse or as a result of an error.41

Conclusion Although he did not in principle divulge his private opinions about the legal institutions he discussed and, much like other legal men of his period, lacked theoretical background, Mikołaj Zalaszowski managed to create an outstanding work. For we have to imagine the difficulties he had to surmount, caused, for instance, by the need to gather immense legal material from various countries and systems of law. The extremely broad subject matter of his main work rendered it virtually impossible for him to develop any original theories; meanwhile, it required painstaking labor, meticulousness, diligence, and erudi­ tion. Ius Regni Poloniae is a comparative endeavor, and hence reaches beyond the framework of Polish law, particularly in its second part, devoted to proce­ dural law. However, the author intended to present the Polish legal system against a broad backdrop in order to acquaint the reader with universal laws of his time (Roman and canon law), as well as laws of other countries; while, on the other hand, the work was meant to enable Western European lawyers and statesmen to get to know the Polish political system and law. Ius Regni Polo­ niae is an encyclopedia of sorts, and at the same time an academic textbook; in parts, it may also be regarded as a commentary and a historical study. Thus, it combines various forms of legal, historical, and literary narrative. The lack of 39 Płaza, Historia prawa, 353, 385–86, 389, 409.

40 Ibid., 389; Malinowska, Mikołaj Zalaszowski, 255–56, 259.

41 Malinowska, Mikołaj Zalaszowski, 276–77, 279, 285–86.

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official codification of the law in the seventeenth century Polish–Lithuanian Commonwealth was offset by private legal works, among which Ius Regni Poloniae stands out due to its splendid immensity. And even though Zalaszowski had no practical training, his work could also be used by practicing lawyers, particularly those with a more sophisticated level of awareness and legal culture.

7

Teodor Ostrowski (1750–1802) Sławomir Godek

Biographical Introduction Teodor Ostrowski was born on November 9, 1750, in the village of Kopina, near Łuków in what was then the Lublin Province, to a noble family, and he died on February 12, 1802, in Lwów. At the age of fifteen, he entered the Piarist order novitiate in Podoliniec, in the Spisz region (the local Piarist college was one of the best schools in the Polish-Lithuanian Commonwealth), where he took his reli­ gious vows two years later. From 1768 to 1770, he studied humanities at the religious seminary in Rzeszów. He arrived in Warsaw in 1771 and completed his theological education there in 1774. He also started his teaching career in the capital. Beginning in 1771, he taught the basics of Latin at the Collegium Regium, a Piarist college founded in 1646 by King Władysław IV, and then he moved to the Collegium Nobilium, the famous Piarist school founded in 1740 by Father Stanisław Konarski, where he worked for twelve years (1773–84) as a subprefect (or educator), professor of history (1775–80), and professor of natural law (1781–84). In 1785, he returned to the Collegium Regium, where he lectured on law.1 A great merit of the Piarists, and especially of Konarski, was the publication of a collection of Polish legislation in six volumes under the title Volumina Legum; issued in the years 1732–39, the collection included chronologically arranged acts in the field of public and judicial law, from the fourteenth century until 1736. This enormously normative and highly valuable material did not become official in the period of the Polish-Lithuanian Commonwealth before partition, although some laws passed by the Sejm referred directly to it.2 In 1754 a Piarist father, Kazimierz 1 Zbigniew Zdrójkowski, Teodor Ostrowski (1750–1802). Pisarz dawnego polskiego prawa sa˛ dowego (proces, prawo prywatne i karne). Jego projekty reformy prawa karnego w Polsce oraz ich zwia˛ zek z europejskim ruchem humanitarnym (Warsaw: Wydawnictwo Prawnicze, 1956), 1–15; Wojciech Maria Bartel, “Ostrowski Teodor,” in Polski Słow­ nik Biograficzny (Polish biographical dictionary), ed. Emanuel Rostworowski, vol. 24 (Wrocław: Zakład Narodowy im. Ossolin´skich—Wydawnictwo Polskiej Akademii Nauk, 1979), 578–79. 2 Stanisław Grodziski, preface to Volumina Constitutionum, vol. 1, 1493–1549, part 1, 1493–1526, ed. S. Grodziski, I. Dwornicka, and W. Uruszczak (Warsaw: Wydaw­ nictwo Sejmowe, 1996), 7–29.

DOI: 10.4324/9781003181255-8

Teodor Ostrowski 111 . Arnolf Zeglicki, developed an inventory for the Volumina Legum, which in 1782 was supplemented, corrected, and reprinted by his confrère Father Simon Teodor Waga.3 In the same year, the Piarists published two more volumes of the Volumina Legum covering the parliamentary legislation of 1764–80. At the request of King Stanisław II August, Ostrowski prepared an inventory for both of these volumes, which was also published in 1782. For that accomplishment, he was later awarded the merentibus gold medal by the monarch. In 1785, the Piarists issued a supplement with amendments and modifications to Ostrowski’s inventory, taking into account the legislation of the successive Sejm terms of 1782 and 1784. The supplement, issued anonymously, was probably Ostrowski’s work too. At the end of the 1820s, scholars pointed to the considerable usefulness of the latter publications.4 The editorial activity of the Piarists in the field of law sources (the order enjoyed the royal privilege to print parliamentary constitutions) was of great importance for legal practice, as it greatly facilitated reading of extensive and previously scattered material. Very often quoted in court proceedings, the Sejm con­ stitutions were often drawn directly from the Piarist edition of the Volumina Legum (or inventories), the significance of which was broadly recognized, and even the par­ titions of the Polish-Lithuanian Commonwealth did not ruin the practical value of the series. Although systematically weakened, this value had an impact for several decades. The Russian authorities (indirectly) and Austrian authorities (directly) recognized the collection as official. The Prussian government did not, but in the Duchy of Warsaw, established in 1807 from the lands of the second and third Prus­ sian partitions, the Volumina Legum was recognized as an official collection by the royal decree of 1809. The compilation enjoyed the same status in Congress Poland (formally known as the Kingdom of Poland), established on the ruins of the Duchy of Warsaw after the Congress of Vienna, in 1815.5 Regardless of the application of the Volumina Legum and the hope of its authors that the collection, though incomplete, would facilitate the urgently needed codification of the law, it almost instantly became an irreplaceable source for research on the history of the political system and the law of old Poland.6 . 3 Maciej Dariusz Kossowski, “Inwentarz praw polskich Kazimierza Arnolfa Zeglickiego z adiustacja˛ druku,” Rocznik Biblioteki Narodowej [National Library yearly] 48 (2017): 263–97. . 4 Aleksander Mickiewicz, Kurs prawa cywilnego polskiego i historii tegoz wykładany w Wołyn´skim Liceum w Krzemien´cu w roku 1829 przez P. Aleksandra Mickiewicza, nauczyciela prawa krajowego i rzymskiego, MS, Biblioteka Kórnicka Polskiej Akademii Nauk [Kórnik Library of the Polish Academy of Sciences] 00768, cards 220 ff., indi­ cated the usefulness of Ostrowski’s inventory and supplement. 5 Ignacy Daniłowicz, MS, (Lietuvos mokslų akademijos Vrublevskių biblioteka, Vilnius— Wróblewski Library of the Lithuanian Academy of Sciences, Vilnius), cited hereafter as LMAVB, fond 18–186, card 63; Aleksander Łe˛ ski, Prawo krajowe dawane przez Ignacego Daniłowicza, MS, LMAVB, fond 9–3149, card 17, 20; Józef Jaroszewicz, Historia prawa krajowego, MS, LMAVB, fond 9–197, cards 74, 83; Mickiewicz, Kurs prawa cywilnego, card 220. 6 The collection has played this role successfully to this day. The re-edition of the Piarist issue made by Jozafat Ohryzko in St. Petersburg in 1859–60 is still of scholarly

112 S. Godek Already in the 1740s, Gotfryd Bogumił Lengnich was the first to use it to study Polish law. His example was followed by other researchers, including Teodor Ostrowski, who laid the foundations of Polish judicial law based on the same source in his two-volume work titled The Civil Law of the Polish People, discussed in more detail below.

The Translation of Blackstone’s Criminal Law in England Among Ostrowski’s legal works, a prominent place is held by the two-volume Polish translation of Criminal Law in England,7 the fourth book of a thorough work by the leading English jurist of the eighteenth century, William Blackstone. Published in 1786 by the Warsaw Piarist publishing house, Ostrowski’s translation included criminal law and criminal trials. The source for the translation was not the original English text, which Ostrowski probably did not know, but its French translation by Father Gabriel Franciszek Coyer, published in Paris in 1776. The value of Ostrowski’s work lay not only in introducing the valuable and (in Western Europe) extremely popular work of an outstanding English jurist to Polish readers, but also, or perhaps above all, in the fact that the learned Piarist enriched his translation with numerous comments in which he compared English law with Polish law. By pointing to the achievements and advantages of the former (though not blindly and indiscriminately), he sharply presented the deficiencies and shortcomings of the latter. Probably none of the previous Polish writer-jurists so painfully experienced the insufficiency and inadequacy of the statutory norms of Polish domestic law, and at the same time so clearly expressed their conviction. The Crown land law (that is, law applicable to nobility under the Polish Crown) lacked not only individual institutions but even entire branches of the law. In Ostrowski’s opinion, this lack was the main reason that Polish courts were forced to rely in their jurisprudence on particular national laws—for example, the Korektura Pruska (Prussian law collection) or the Statute of Lithuania—as well as on foreign rights ensured by the canon, Saxon, Magdeburg, or Roman laws. Ostrowski noticed exceptionally great shortcomings in the field of criminal law; especially important were the failure to specify the criteria of sanity and the cap­ ability to commit a crime, as well as the impact of an offender’s age on their punishment. Moreover, Ostrowski stated that there was no statutory regulation of such basic concepts in criminal law as intentional and unintentional tort, or chance. He also noted that many crimes had no established penalty. Furthermore, in cases where penalties were expressed with precise financial amounts, the con­ stant devaluation of money and lack of rules for conversion of value made these penalties lose their practical significance. Ostrowski also argued that in Poland interest. However, since 1996 a group of Polish scholars has been successively pub­ lishing individual volumes in the series titled Volumina Constitutionum, which recompiles the parliamentary legislation of the pre-partitions period. 7 Teodor Ostrowski, Prawo kryminalne angielskie przez Wilhelma Blakstona zebrane a przez ks. T. Ostrowskiego S. P. wytłumaczone i uwagami do prawa polskiego stosownymi . pomnozone, vols. 1–2 (Warsaw: Scholarum Piarum, 1786).

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there were, surprisingly, no regulations whatsoever regarding criminal trials. All these circumstances meant that in their jurisprudence, courts had to rely on cus­ toms, preliminary rulings, and foreign laws, as well as on the authority of famous jurists, whose views and decisions were sought in foreign legal literature. This overwhelming awareness of the defects of domestic criminal law and trial were the main reason for translating Blackstone’s Criminal Law in England. In this way, Ostrowski wanted to enable the widest possible group of his fellow citi­ zens to become acquainted with what he considered the most perfect criminal law of all time. By doing so, Ostrowski also made a number of remarks on legislation as well as legislative art in general; these mainly relate to the subject of criminal law. His intention was to spur improvement of national legislation, to indicate the need to break with outdated and time-honored laws, and to emphasize the demand to replace them with new ones corresponding to the requirements of modern times and modern trends. Ostrowski emphasized that similarly to amending existing legislation, the establishment of any new law had to be carefully thought out. He pointed out that good criminal legislation should be clear, concise, and accurate. Above all, it had to clearly define the principles of a criminal’s sanity—thus the key issue of capability to commit a crime—and should follow the principles of humanitarian­ ism. Ostrowski believed that the greatest challenge for the legislator was to keep the right balance between crime and penalty. In his view, the cruel criminal legis­ lation in force up to his time was clear testimony that lawmakers were unable to balance those proportions. In the opinion of this learned Piarist, a striking example of this disproportion was the punishment of theft, of which some kinds were punished by death. What is more, he thought that the principle of retaliation (talion) could not maintain punishment proportionate to the crime. Ostrowski postulated that cruel penalties were not an appropriate means of fighting crime, as cruelty rather made people despise the law and provoked its nonexecution, falling out of use (desuetudo), and final annulment. Ostrowski argued that the effectiveness of fighting crime could be achieved not by tightening penalties but only by eliminating conditions that influenced the increase in the rate of crime. That is why he called for challenging waste, idleness, and the scourge of begging. Such actions should be accompanied by efforts to improve the living conditions of the biggest number of people possible, and especially by promoting employment and secure, fair income. At the same time, Ostrowski recommended improving the administration and increasing the effi­ ciency of the police. On the other hand, he emphasized the importance of looking to the general improvement of morals, the improvement of public education, and especially the popularization of education itself, supporting the development of science and improving social welfare (shelters, hospitals). The outline of his crimefighting program was not his originally, but one he adopted from Jean Pierre Brissot de Warville. Ostrowski boldly criticized the system of punishments in Poland. Although he was a strong supporter of a strict, statutory definition of all kinds of crimes and their penalties, he also favored setting more general rules for imposing some

114 S. Godek penalties (especially financial penalties), so that courts could adjust punishment to the circumstances of a specific case within certain limits. The punishment given needed to be neither too light nor too severe. Although Ostrowski did not follow Beccaria and did not demand abolition of the death penalty, he recommended great caution and restraint in its use (like Voltaire, Brissot, and Gabriel Mably). Thus, he opposed the death penalty as punishment for counterfeiting coins, desertion, arson (especially since the penalty of being burned alive was at stake here), or drawing weapons in royal rooms. Ostrowski did not stop at reviewing the state of Polish law, but went on to formulate postulates regarding its reform, drafting their most important assump­ tions, or setting out general directions for desired changes while drawing inspira­ tion sometimes from specific English solutions. He even proposed the adoption of some English law institutions—he especially respected the Coroners Court, which he wanted to see popularized in all European countries. Ostrowski also highly esteemed the principle of the participation of jurors in criminal trials, and strongly recommended assimilation of this practice by the Polish judiciary. Moreover, fol­ lowing the example of England and France, Ostrowski spoke in favor of appoint­ ing public safety commissioners in Polish cities and towns to watch over law and order, especially during conventions or fairs, and to exercise judicial power in cases of petty crime. Overall, Ostrowski was a strong supporter of basing the urgently needed reform of Polish criminal law on English law. He believed that such reform might be favored by the general similarity of the political conditions of both countries. This argument was intended to dispose the Polish nobility positively toward the pro­ posed changes. Ostrowski understood well that without interesting the wider cir­ cles of the nobility in legal reform, without explaining to them the benefits and gaining their support for the work, no attempts would bring results, and reform would ultimately share the fate of the advanced codification project developed by a commission under the direction of Andrzej Zamoyski and finally rejected by the Sejm in 1780. Ostrowski recognized the advantages of the English local judicial system and criminal law as the main reason for imitating the English model. He wanted to highlight these advantages and present them to the nobility as a living example of legislation that functioned well in practice, thus appealing to the ima­ gination of the nobles rather than quoting dull postulates from literature. In the field of criminal law, Ostrowski particularly focused on: exhaustively defining the issue of the capability to commit a crime; precisely distinguishing between inten­ tional, unintentional, and accidental tort, as well as making punishment dependent on the form of participation in a criminal act (being a principal, aiding, or coun­ seling); and strictly adhering to the principle of nullum crimen, nulla poena sine praevia lege poenali (no crime, no punishment without a previous penal law). In the area of criminal procedure, he pointed to the following positive aspects of English law: efficiency in prosecuting crimes; institution of guarantee; incorrupt­ ibility of judges; social supervision of prisoners and prisons linked to the coroner’s office; review of the jurisprudence of lower courts by relevant higher courts; par­ ticipation of jurors in proceedings before almost all courts possible; protection of

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the rights of the accused manifested in the principle that their failure to comply with the procedural requirements would not expose them to any negative proce­ dural consequences; strict adherence to the principle of not punishing twice for the same offence; requirement for a public prosecutor to take all circumstances in favor of the accused into account; and efficient execution of sentence. Ostrowski’s good knowledge of the legal literature of the time, and in particular the writings of humanitarians, allowed him to polemicize against some of Blackstone’s views and to criticize them precisely from their own standpoint. In the introduction to his translation of Criminal Law in England, Ostrowski mentioned numerous authors and their works, or sometimes just the titles of humanitarian publications. He later referred to them many times in his remarks on particular chapters of the transla­ tion. However, it is not entirely certain whether he actually knew all of these works directly or he took some of them from other authors’ studies. This does not change the fact that among the Polish author-jurists of the Enlightenment, Ostrowski is considered the most well-read in humanitarian criminal literature. He must have been influenced by Montesquieu, Jean-Jacques Rousseau, Voltaire, Cesare Beccaria, Gabriel Bonnot de Mably, Joseph Bernardi, Jean Dumont de Saint Croix, and, above all, Brissot de Warville and his work Théorie des lois criminelles.8

Other Important Works A separate field of Ostrowski’s activity, which he busily developed in the years 1771–82, was issuing handwritten news-sheets on request.9 This peculiar form of sharing information had already been practiced in Europe for over a hundred years. In the face of the underdevelopment of the press in Poland, such newssheets played an important role and had a great impact on the nobility, thanks in part to bold critical opinions about public figures expressed on their pages. Although many such sources have survived and constitute a convenient basis for examining the social system of the Polish-Lithuanian Commonwealth and the everyday life of its inhabitants, the state of their research, as well as the degree of their scientific use, is still not satisfactory. As it turns out, Ostrowski’s news-sheets can specifically be a source of great or even key importance for some specific issues due to the accuracy of his accounts and his valuable insights.10 Ostrowski wrote them regularly with the intention of delivering the client Adam Mniszek (who paid the author a substantial amount of twenty-four ducats per year) the most extensive and latest news from domestic political, cultural, and social life. Ostrowski often emphasized his impartiality in creating these texts, but his news­ 8 Zdrójkowski, Teodor Ostrowski, 175–98, 209–11, 214–21. 9 Teodor Ostrowski, Poufne wies´ci z os´wieconej Warszawy. Gazetki pisane z roku 1782, ed. Roman Kaleta (Wrocław: Zakład Narodowy im. Ossolin´skich, 1972). 10 Witold Filipczak, Sejm 1778 roku (Warsawa: Semper, 2000), 16; Stanisław Zawadzki, “Polityczne spory wokół aresztowania biskupa krakowskiego Kajetana Sołtyka w 1782 r. w s´wietle gazetek pisanych Teodora Ostrowskiego,” Przegla˛d Historyczny 107, no. 2 (2016): 247–75.

116 S. Godek sheet writing was certainly in line with his views and character. He condemned with great courage the indecent behavior of high-ranking people. His style is characterized by the brevity and clarity of a real educator. In the era of the reforms of the Great Sejm (1788–92), Ostrowski published two works of a very different nature. One of them concerned agricultural and technical issues, namely the cultivation of certain plants and their use in textile production—Roboty około prze˛ dziwa albo uprawa lnu, konopi i innych ros´lin do prze˛dzenia zdatnych (Yarn works, or the cultivation of flax, hemp and other spin­ ning plants; Warsaw, 1788). The work was related to the establishment of one of the first joint-stock companies in Poland, namely the Royal National Company of Canvas, which operated under the leadership of the royal brother, Primate Michał Poniatowski, and launched a linen factory in Łowicz. Ostrowski wrote the text at the request of the company. In a dedication to the company’s members, Ostrowski stressed that the aim of the publication was to “improve yarn farms.” The study contained information on production performance and an opinion about the practice of cultivating the title plants in Polish territory. The second work, published anonymously in the form of an elusive political print, Odezwa bezstronnego obywatela do stanów Rzeczypospolitej wzgle˛dem podat­ ków (Appeal of an impartial citizen to the states of the Polish-Lithuanian Com­ monwealth on the subject of taxes; 1788) was a voice in the then current discussion on taxing the clergy for the country’s defense and plans to raise an army of a hundred thousand men. Ostrowski appeared here as a defender of the church and monastic goods against what he considered too strict fiscal policy of the state. After the adoption of the Constitution of May 3, 1791, according to Article 8, which mandated that codification work be undertaken, and in connection with the work on the so-called Stanisław Augustus Code, Ostrowski, who enjoyed the reputation of an outstanding jurist, joined one of the codification commissions (namely, the Crown one) on October 12. Despite his formal membership, how­ ever, he played almost no role in its activities,11 although, paradoxically, the codi­ fiers relied heavily on his Civil Law of the Polish People.12 In 1793 Ostrowski published an extensive, three-volume work titled Dzieje i prawa kos´cioła polskiego (The history and laws of the Polish church), which, although widely read and even reprinted in 1846, did not enjoy positive opinions from scholars. Already at the beginning of the nineteenth century, Ostrowski was accused of superficiality, insufficient use of source materials, and reliance almost exclusively on literature, as well as numerous inaccuracies and errors. It was also argued that, contrary to its title, Ostrowski’s work dealt with the particular law of the Polish church to a very limited extent. During the Kos´ciuszko Uprising, in 1794, Ostrowski published a small bro­ chure titled Rozmowa do okolicznos´ci dzisiejszych przystosowana (A conversation 11 Wojciech Szafran´ski, Kodeks Stanisława Augusta (Poznan´: Wydawnictwo Poznan´skie, 2007), 105–06, 125, 139, 141–42. 12 Wojciech Szafran´ski, Józef Weyssenhoff—polityk, prawnik, legislator czasów Os´wiecenia (Poznan´: Wydawnictwo Naukowe Uniwersytetu im. Adama Mickiewicza, 2017), 372.

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adapted to today’s circumstances), in which he called for opposition to foreign violence. He postulated the elimination of class differences and pointed to the need for all social classes to make an effort in solidarity in the fight to regain the independence of the Polish-Lithuanian Commonwealth. He defended the insur­ rection movement against allegations of Jacobinism. After the failure of the upris­ ing, Ostrowski left Warsaw and took refuge in Galicia, where he enjoyed the hospitality of his former students, the Komorowski counts, staying in their estate near Lwów. Ostrowski pursued pedagogical, journalistic, and scientific activities while hold­ ing many responsible positions in the provincial board of his order (he was in charge of its economic affairs for a long time). After the Third Partition of Poland, as a delegate of the religious authorities protesting discrimination against Piarists by the Prussian government, in 1800 he went to Berlin, where he handed to Frederick William III a memorial protesting the closing of the Piarist school; the protest, however, did not succeed. Ostrowski’s multifarious activities seem to prove that he was an ambitious, for­ ward-thinking, and enterprising man. The opinions of his contemporaries on his activity were contradictory. There were many voices glorifying him, especially among his confrères. Others assessed him negatively, claiming that Ostrowski was a servile sycophant to the king while powerful and rough, or even ruthless, toward his students.

Civil Law of the Polish People Undoubtedly, Ostrowski’s most important work was Civil Law of the Polish People.13 This extensive study was published in Polish in 1784 and in 1787 (a revised and supplemented edition that included the legislation from 1784 to 1787), and once again after the final collapse of the Polish-Lithuanian Common­ wealth, this time in German (volume 1, 1797; volume 2, 1802).14 The Civil Law of the Polish People was probably created in connection with and following the example of the Piarist Father Wincenty Skrzetuski and his two-volume work, Prawo polityczne narodu polskiego (The political law of the Polish people; volume 1, 1782; volume 2, 1784). Skrzetuski planned to supplement his work by pub­ lishing a separate study devoted to the civil law, but he was preceded (or perhaps replaced, it is unclear) by Ostrowski. The latest research has shown that in terms of the description of the system of courts, the two works were alike.15 One should note that the civil law—defined by Ostrowski in contrast to the political law—is in 13 The full title is: Prawo cywilne albo szczególne narodu polskiego, z statutów i konstytucji koronnych i litewskich zebrane, rezolucjami Rady Nieustaja˛ cej objas´nione, dodatkami z . praw kanonicznego, magdeburskiego i chełmin´skiego pomnozone, a porza˛ dkiem praw . rzymskich ułozone. 14 Karol Estreicher, “Ostrowski Teodor,” in Bibliografia Polska, ed. Stanisław Estreicher, vol. 23 (Kraków: Akademia Umieje˛ tnos´ci, 1910), 522–23. 15 Wojciech Organis´ciak, Wincentego Skrzetuskiego Prawo polityczne narodu polskiego (Katowice: Wydawnictwo Uniwersytetu S´la˛ skiego, 2016), 8, 48–49, 64, 425–93.

118 S. Godek fact a very broad judicial law (ius iudiciarium), which then included private law, the judicial system, civil process, criminal trial, bill of exchange proceedings, compulsory execution, and criminal law. Ostrowski began his lecture on this very broad matter with some short introductory information, then discussed private and criminal law; this constituted the first volume. In the second volume, he included issues related to the organization of the judiciary; civil, criminal, and bill of exchange proceedings; execution; a variety of court fees; and information on the measures, weights, coins in circulation, as well as the principles of converting the value of old monetary obligations into contemporary ones. Finally, he pre­ sented the templates for legal act formulas.16 As announced by the title itself, Ostrowski based his work on various sources drawn from domestic and foreign laws.17 For obvious reasons, what comes to the fore is the domestic legislation, namely that of the Crown (belonging to the Crown of the Kingdom of Poland) and of the Grand Duchy of Lithuania. He sometimes refers to both of them together using the terms “domestic,” “national,” or “bifederation.” The basic sources of The Civil Law of the. Polish People are therefore the Volumina Legum (which is why he often mentions Zeglicki’s inventory) and the collection of resolutions of the Permanent Council (of 1776–86). Ostrowski also learned about Polish legislation from compendiums of the sixteenth and seventeenth centuries by Jakub Przyłuski, Jan Herburt, Jan Januszowski, Paweł Szczerbicz, and Jan Swoszowski. Ostrowski notes the superiority of the Lithuanian law (whose core in the eighteenth century was still the already outdated Third Statute of Lithuania of 1588) over the uncodified loophole-filled Crown law. He also argues that the Lithuanian law, as the law applicable to one of the provinces of the Polish-Lithuanian Com­ monwealth, fulfilled the role of a subsidiary, supporting system in the Crown of the Kingdom of Poland and was respected in local courts of that region. Incidentally, this phenomenon described by Ostrowski—in particular the manner and scale of applica­ tion of the Statue of Lithuania in the jurisprudence of the Crown—has not yet been researched. Ostrowski refers less frequently to other Polish provincial laws, namely, the Mazovian legislation and the law of Royal Prussia. He does mention the domestic customary law and judicial practice, which is an undoubted advantage of his work. He also takes into account the Magdeburg and Chełmno laws in force in dozens of the Polish-Lithuanian Commonwealth towns and cities, for despite their foreign origin, these laws were considered domestic law already in the sixteenth century. What is particularly fascinating are his comments on succession regulations in the field of the Magdeburg and Chełmno laws and the information on their application in cases relating to noble properties in cities and succession cases arising from mixed noblebourgeois marriages. An important foundation for Ostrowski’s work comprises foreign laws, namely, canon, German (Saxon), and, above all, Roman laws.18 He points to some spheres 16 Zdrójkowski, Teodor Ostrowski, 8, 46–49. 17 Ibid., 199–209, 211–14. 18 Sławomir Godek, “Prawo rzymskie w dawnej Rzeczypospolitej. Przegla˛ d stanu badan´,” Czasopismo Prawo-Historyczne 53, no. 2 (2001): 68–70.

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of their influence on the domestic law—for instance, the influence of Saxon law on criminal law, and the influence of canon law on marriage law, regulations on tithing (the Piarists defended the church’s right to the tithe), religious crimes, duels, suicides, and asylum. Ostrowski devotes much more attention to Roman law, which he considered the keystone of all European laws and—to a greater or lesser extent—the source of all statutory law, including domestic ones. Interest­ ingly, the provision of the Third Statute of Lithuania (art. 54, chap. 4) allowing a judge to apply “other Christian rights” in a case of a loophole in the Lithuanian law, was interpreted as an authorization to apply the Roman law in a subsidiary manner, although the statutory article listed neither this ancient law nor any other laws specifically. However, in Ostrowski’s opinion, Roman law was the most commonly applicable among Christian laws. He knew that the Crown law lacked an authorization similar to the Lithuanian one, but he believed that the former was imbued with the spirit of Roman law. Moreover, he believed that since the Lithuanian law, relevant in one of the provinces of the Polish-Lithuanian Com­ monwealth, supported the Crown regulations, the Roman law was therefore an auxiliary law in the Crown too. Ostrowski presents the Lithuanian law in parallel to Roman and Polish laws within consciously created and clearly marked limits, so as to make The Civil Law of the Polish People a combination of three types of regulations for the purpose of discussing almost all legal institutions that were in the Ostrowski’s sphere of interest. Furthermore, he considers the Roman law (as in Germany) to be the universal law that filled in loopholes and clarified any ambiguities of the domestic statutory law. In the case of a loophole in the domestic law, he allows for the use of analogies and appropriate Roman solutions (for instance, in the matter of evading the obligation to look after and determining the legality of the origin of premature or overdue children), and even indicates examples of reception of Roman institutions (for example, accessio, or emphy­ teusis) allegedly visible in the light of domestic procedural practice. On the other hand, he does not claim that Roman law enjoyed the seriousness of a permanent, unshakable rule in the Polish-Lithuanian Commonwealth. Rather, it served as a general model. Therefore, he treats his analysis of Roman law as a type of an introduction to the theory of the law in general. One cannot fail to notice, how­ ever, that all the information on the Roman law that Ostrowski presents is an almost literal translation of the relevant parts of the work of the German jurist Johann Gottlieb Heineccius titled Elementa juris civilis secundum ordinem Insti­ tutionum (1725). Following the pattern established by Heineccius, Ostrowski refers to the systema­ tics of the Institutes of Justinian, although he does not simply duplicate Heineccius’s work. The Civil Law of the Polish People is divided into five parts. The first one (on persons) covers issues related to the state division of society (nobility, townspeople, peasants), family law (family, parental authority, children, adoption, emancipation), marriage law, and guardianship law (tutelage, guardianship). The second part (on things) presents the concept of things, individual categories of things, ways of acquiring property (including time-related regulations [the so-called dawnos´c´] and succession), succession law (testamentary succession and intestacy), and marriage

120 S. Godek property law (intestacy in marriage, property consequences of divorce and separa­ tion). In addition to ex contractu obligations, the third part (on contracts) discusses pledge, emphyteusis, and tithing. The fourth part starts with introductory remarks on crimes, after which Ostrowski analyzes the division of crimes into public and private ones (including ex delicto obligations under the category of private crimes), the divi­ sion of penalties (civil and criminal), and types of penalties (fines, imprisonment, and more). Finally, the fifth part deals with civil, bill of exchange, and penal proceedings; the system of courts in the Crown of the Kingdom of Poland and the Grand Duchy of Lithuania; court fees; and templates for various legal acts. In addition to the systematics, Ostrowski presents the definitions of individual legal institutions taken from Roman law; striving to deepen them theoretically, he also gives their general characteristics, which he includes in the introductory comments preceding the considerations on domestic law. The lecture on Roman law particularly helps Ostrowski to explain the concept and types of things and the ways in which rights arise and terminate in relation to things, to distinguish between property law and the law of obligations, and between the categories of public and private crimes. In this way (especially by recognizing the auxiliary role of Roman law and adopting Roman systematics), Ostrowski introduced into the content of The Civil Law of the Polish People principles alien to and not applicable in Polish domestic law. As a result, the image of the old Polish law preserved in the work was certainly distorted. In his work, Ostrowski sporadically mentions Salic and French laws, along with the Bible, which he obviously considered to be a source of law. Ostrowski also uses legal literature. He takes a smattering of information on Roman law from Szymon Starowolski (Commentarius in IV libros Institutionum juris civilis, 1638), but he relies above all on Heineccius, whose work was in common use as a text­ book in the eighteenth century. Among foreign authors, Ostrowski also mentions Cesare Beccaria, William Blackstone, the French jurist Antoine-François Prost de Royer, and the Czech author of canon law works Remigius Maschat. For knowledge about domestic law Ostrowski drew from the works of Mikołaj Zalaszowski,19 Tomasz Drezner, Teodor Zawacki, Andrzej Lipski, Wincenty Skrzetuski, Maciej Gliszczyn´ski, Michał Słon´ski, Szymon Zagórski, and Samuel Brodowski. Although Ostrowski’s contemporaries and many subsequent scholars pointed out in detail his occasional superficiality, shortcomings, and errors,20 they generally 19 See Chapter 6 in this volume. 20 The most important reservations can be grouped as follows: 1) nonexhaustive approach to the issues, ambiguities, inaccuracies, and gaps, especially in the field of procedural law, the system of courts, and criminal law; 2) misinterpretation of certain provisions, omission of some essential norms; 3) arbitrary and indiscriminate enu­ meration of a series of provisions without generalizing and drawing conclusions; 4) analyzing without maintaining a proper historical perspective, namely, treating both outdated regulations (for instance, the legislation of Casimir the Great) and newly issued acts on an equal footing; 5) no indications of scientific controversy or scholars’ differences of opinion; 6) methodological errors, striving to force Polish legal

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admitted and appreciated that he was the first to attempt to present Polish judicial law within a scientific and systematic framework, enriching it with the section on legal practice, and thus paving the way for future researchers of this important branch of the law. His work was also considered scientifically valuable—he presented all of the legal material in The Civil Law of the Polish People, including the provisions taken from the Volumina Legum, in a certain sequence, a chain of causes and effects, which “animated” them. Moreover, this method made it possible to provide an opinion on the reasons for the law’s formation and assessment in old Poland. In the scientific literature, Ostrowski has been mentioned as one of the most outstanding repre­ sentatives of Polish humanitarianism. It has also been argued that he proved to be a supporter of the widest possible use of the Polish language in legal transactions, and thus of ousting Latin, both due to the solemnity of the mother tongue, and in order to popularize the knowledge of the law, improve legal terminology, and make jur­ isprudence flourish. Clearly, Ostrowski believed that the Polish forms of legal acts were in no way inferior to Latin forms. He especially favored adjudicating criminal cases only in Polish, so that they would be fully understandable to the accused.21 Ostrowski’s study quickly gained great popularity,22 which was not undermined even by the collapse of the state at the end of the eighteenth century. His work cer­ tainly addressed a common need in the field of clerical and judicial practice. More­ over, the high-profile case of treasurer Adam Ponin´ski of 1789, analyzed at the parliamentary forum (the minister was accused of extortion, charging unjustified fees, serving foreign courts, and being paid by them), demonstrates that even those of Ostrowski’s views that were considered unconventional and dangerous to the liberties of the nobility could come in handy. Submitting a motion for Ponin´ski’s preventive detention (which could be interpreted as a violation of the nobility’s old privilege of neminem captivabimus nisi iure victum—“we shall not imprison anyone who has not been defeated by law”), Józef Weyssenhoff, MP, authorized Ostrowski’s opinion on the possibility of waiving such privilege to suspects of political crimes.23 After the partitions of the Polish-Lithuanian Commonwealth, on the huge Lithuanian-Ukrainian territories incorporated into the Russian Empire for the next decades, until 1840, the basic foundations of the old Polish-Lithuanian law, especially in the field of the private law, prevailed. The Statute of Lithuania of 1588, parlia­ mentary constitutions, and local customs remained fundamental sources of the law and, at the same time, basic teaching aids,24 along with the increasing number of Russian acts issued by the new authorities. Apart from them, Ostrowski’s work played

21 22 23 24

institutions to fit the Roman law system, shallow knowledge of the Roman law, and giving erroneous and occasionally redundant information in this field, as well as mis­ conception about the auxiliary power of the Roman law in Poland; and 7) poor knowledge of Lithuanian law. Zdrójkowski, Teodor Ostrowski, 16–33, 46–135, 222–69. Adam Vetulani, Dzieje historii prawa w Polsce (Kraków: Polska Akademia Umie­ je˛ tnos´ci, 1948), 6–7. Szafran´ski, Józef Weyssenhoff, 100–08. Sławomir Godek, III Statut litewski w dobie porozbiorowej (Warsaw: Wydawnictwo UKSW, 2012).

122 S. Godek an essential role in educating law students. It served as both a high-school textbook and the foundation of university lectures. Many Polish jurists used it in their educa­ tion. For instance, in the Gymnasium in Krzemieniec, in the Wołyn´ region (later a high school), famous for its high level of education, his work was the basis of the lecture given in 1805 by Antoni Jarkowski (along with Tadeusz Czacki’s O litewskich i polskich prawach—“On Lithuanian and Polish rights”).25 At the beginning of 1815, Ignacy Ołdakowski, Polish-Lithuanian and Roman law professor at the Krzemieniec school, reported to the school authorities that in his lecture on the personal law in force in Polish provinces incorporated into Russia, while discussing the individual institutions of the civil law, he used the very source and explained that he had based his work on “the Statute of Lithuania and the constitutions of the last edition of the Piarists in Warsaw, obtaining help of the familiar work of Teodor Ostrowski.”26 At the end of the 1820s, Aleksander Mickiewicz, who in the “Wołyn´ Athens” took over the same classes after the premature death of Ołdakowski, told his students that despite its shortcomings, Ostrowski’s Civil Law of the Polish People “was one of a kind and the best so far.”27 The deficiencies in the work were presented to students, often serving as the starting point for quite extensive debates with some of Ostrowski’s views, correcting his less fortunate interpretations of the regulations, or explaining inaccuracies.28 The usefulness of the study is confirmed by the fact that it was inclu­ ded in the registers of books intended for the study of the law in public schools.29The Civil Law of the Polish People was an important source for subsequent authors of important legal works. For instance, it was an essential reference for the book by Aleksander Korowicki titled Proces cywilny litewski (Lithuanian civil trial; Vilnius, 1826), which was appreciated by clerks and courts in the nineteenth century and is still often used by scholars.30 25 Odpisy i regestry dokumentów z archiwum Liceum Wołyn´skiego, MS, Biblioteka Narodowa, Warsaw (hereafter BN), II 7787 (I), card 56. See also Sławomir . Godek, “Kilka spostrzezen´ o prawie rzymskim w Gimnazjum i Liceum w Krzemien´cu,” Miscellanea Historico-Iuridica 17, no. 2 (2018): 194. 26 Raport od nauczyciela prawa rzymskiego i krajowego w Gimnazjum Wołyn´skim Igna­ cego Ołdakowskiego, in Dokumenty Liceum Wołyn´skiego w Krzemien´cu. I, MS, BN IV . 7785 (I), card 21 (Jan. 28, 1815). See Godek, “Kilka spostrzezen´,” 200. 27 Mickiewicz, Kurs prawa cywilnego, card 222. The same evaluation: [Ignacy Daniło­ wicz], Prawo polsko-litewskie, MS, Львівська націëнальна наукëва бібліëтека України імені В.Стефаника, Lviv (W. Stefanyk National Science Library in Lviv), Set (fond) 5. Re˛ kopisy Biblioteki Zakładu Narodowego im. Ossolin´skich (National Ossolin´ski Institute, Manuscript Department), 5355/I, 4. 28 See, for example, a longer argument on statute of limitations in Daniłowicz, Prawo polsko-litewskie, 442–50. See Sławomir Godek, “O przemianach prawa krajowego po rozbiorach Rzeczypospolitej w s´wietle wykładu ‘Prawo polsko-litewskie’ [Ignacego Daniłowicza],” Zeszyty Prawnicze UKSW 19, no. 2 (2019): 13, 36, 40. . . . 29 Rejestr ksia˛ zek uzywanych do edukacji młodziezy w szkołach publicznych guberni wołyn´skiej, in Dokumenty Liceum Wołyn´skiego w Krzemien´cu. II, MS, BN, IV 7785 (II), card 59 (signed by Michał S´ciborski). 30 Such an opinion was expressed by the eminent historian of law Ignacy Daniłowicz in his letter of May 23, 1833, to an official of the Russian Ministry of Justice, Paweł I. Degaj, MS, LMAVB, fond 18–186, card 27 (book).

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Conclusion Ostrowski’s translation of the Criminal Law in England and, above all, his Civil Law of the Polish People constitute an irreplaceable point of reference even today. The latter is in fact the only outline of the judicial law written in Polish before the partitions. Moreover, some of its sections (on private law) were first presented in Polish, and some of them (like a fragmentary sketch of land criminal trial—that is, criminal proceedings in cases involving nobility in the Crown) were compiled for the first time in the history of Polish scholarship. Thus, these valuable texts are still used by publishers of memoirs31 and of legal sources32 from the Enlightenment era (primarily in order to explain legal terms) but above all by researchers of the political system and law of the Polish-Lithuanian Commonwealth before the par­ titions. This is evidenced by frequent references to the work in various scholarly publications.33 Regardless of whether one deals with the analysis of the problem of the relationship of Lithuanian law to the law of the Crown,34 the examination of a specific legal institution considered in the context of Roman law influences,35 or, finally, the judicial functions of the central administrative body,36 the authority of the invaluable Teodor Ostrowski is present everywhere.

31 Je˛ drzej Kitowicz, Pamie˛tniki, czyli Historia polska, ed. Przemysława Matuszewska (Warsaw: Polski Instytut Wydawniczy, 2005), 68, 686, 688, 692, 699–700, 703, 727. 32 Marcin Głuszak, Zbiór rezolucji interpretacyjnych Rady Nieustaja˛ cej z lat 1786–1788 (Łódz´: Wydawnictwo Uniwersytetu Łódzkiego, 2014), 322. 33 Andrzej Zakrzewski, “Prawa litewskiego ‘lepszos´c´ i wie˛ ksza z zdrowa˛ polityka˛ sto­ sownos´c´,’” in Nil nisi veritas. Ksie˛ga dedykowana Profesorowi Jackowi Matuszews­ kiemu, ed. Marcin Głuszak and Dorota Wis´niewska-Józ´wiak (Łódz´: Wydawnictwo Uniwersytetu Łódzkiego, 2016), 231–41. 34 See, for instance, recently: Andrzej Zakrzewski, “Litwa wobec Korony we wspólnej . Rzeczypospolitej, XVI–XVIII wiek,” in Spory o pan´stwo w dobie nowozytnej. Mie˛ dzy racja˛ stanu a partykularyzmem, ed. Zbigniew Anusik (Łódz´: Wydawnictwo Uni­ wersytetu Łódzkiego, 2007), 54; Andrzej Zakrzewski, Wielkie Ksie˛stwo Litewskie (XVI–XVIII w.). Prawo—ustrój—społeczen´stwo (Warsaw: Wydawnictwo “Campi­ doglio,” 2013), 279–80. 35 Marzena Dyjakowska, Crimen laesae maiestatis. Studium nad wpływami prawa rzymskiego w dawnej Polsce (Lublin: Wydawnictwo KUL, 2010), 115–16, 123, 127, 133, 136, 158, 160, 274. 36 Piotr Miłosz Pilarczyk, Sa˛ downictwo Komisji Skarbu Wielkiego Ksie˛ stwa Litewskiego w sprawach skarbowych (1765–1794). Studium historyczno-prawne (Poznan´: Wydaw­ nictwo Poznan´skiego Towarzystwa Przyjaciół Nauk, 2019), 145, 150, 270, 312, 405, 423.

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Antoni Zygmunt Helcel (1808–1870) Dorota Malec

Introduction Antoni Zygmunt Helcel (Hölzel, Hoelzel, Hoeltzel) von Sternstein (Szternsztyn) was one of the legal scholars who helped to establish the study of the history of Polish law as an academic discipline. He also laid the foundations of the Kraków historical school, a historiographical orientation that found many adherents in both academia and politics of late nineteenth-century Galicia, among them Józef Szujski and Michał Bobrzyn´ski. Bobrzyn´ski on many occasions acknowledged his indebtedness to Helcel. As was true of Bobrzyn´ski, Helcel’s life was a unique combination of scholarship and political activity. After completing a postgraduate tour of German universities, he joined the 1830–31 November Uprising in the Congress Kingdom of Poland and served with distinction in a number of battles. Back in Kraków, he began his pioneering work on critical editions of historical legal texts that earned him the post of lecturer and later professor at the Jagiellonian University. In 1837, he returned to public life as a member of the parliament of the Kraków Republic. He became very active in the turbulent years of the Galician Peasant Revolt (Rabacja galicyjska) and the revolutions of 1848, when he took part in the work of the reformist Kremsier Constitutional Assembly, the Polish Political Congress in Wrocław (Breslau), and the Slavic Congress in Prague. Later, he served as a member of the Galician Landtag and the parliament in Vienna (Reichsrat). In 1869, shortly before his death, he founded an ultraconservative Catholic society, . the Fortress of the Cross (Warownia Krzyza). Judged by the impact of his political and scholarly work on the development of Polish political thought and higher education, especially the position of the history of Polish law, Helcel has been regarded as one of the most outstanding figures of nineteenth-century Poland. In his day and age, his biography and his unique achievement often served as an inspiration, and for later generations of scholars they have remained an object of interest and fascination.1 As a matter of course, 1 See, for example, Wiesław Kozub-Ciembroniewicz, “Antoni Zygmunt Helcel (1808– 1870),” in Złota ksie˛ ga Wydziału Prawa i Administracji, ed. Jerzy Stelmach and Wacław Uruszczak (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 2000), 143 (henceforth, Złota ksie˛ ga); id., Zygmunt Antoni Helcel (Kraków: Wydawnictwo

DOI: 10.4324/9781003181255-9

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attention focuses on Helcel’s scholarly work and his politics; meanwhile, his reli­ gious views and his relationship with the Catholic Church have been practically ignored, even though they had an important influence on all his activities. Antoni Zygmunt Helcel lived at a time when the Polish-Lithuanian Common­ wealth had been divided and annexed by Russia, Prussia, and Austria. While the territorial balance of the partitions remained fixed and stable throughout the long nineteenth century, the situation of Kraków changed again and again. In 1795, Kraków came under Austrian rule, but after the defeat of Austria by Napoleon, in 1809, the city was attached to the Duchy of Warsaw. The Polish lands south of the Vistula and the San, renamed the Kingdom of Galicia and Lodomeria, remained in a province of the Habsburg Empire. In 1815, the Congress of Vienna created the Free City of Kraków as a self-governing republic under the joint pro­ tectorate of its neighbors Austria, Russia, and Prussia on a narrow sliver of land north of the Vistula. In 1846, after an aborted takeover of Kraków by Polish revolutionaries, the Free City was incorporated into the Austrian Empire as the Grand Duchy of Kraków, formally a separate entity, though practically a part of the province of Galicia. As the empire entered the phase of constitutional reforms in the 1860s, Galicia was granted a large measure of regional autonomy. Although the decentralization plan did not envision the creation of a tripartite state (with a Slavic/Polish component), local Polish politicians lost no time in joining the institutional change. Step by step, they made use of all the advantages of auton­ omy not only to reverse the Germanization policy of the previous phase but also to make Galicia a flourishing center of Polish social and cultural life.

Biography Antoni Zygmunt Helcel was born on November 12, 1808, into a wealthy, wellrespected merchant family with German roots, the eldest child of Anton Karl and Józefa, née Sonntag. His direct ancestors came from Upper Austria and Bohemia (the title Frieherr von Sternberg was officially awarded to Kaspar Hölzel by Rudolf II, the Holy Roman emperor and king of Bohemia, on January 12, 1583, and confirmed on July 15, 1604). Antoni’s father, Antoni Karol Helcel (Anton Karl Hölzel), settled in Kraków at the turn of the nineteenth century, while his brother was at that time an official of the Austrian administration on the other bank of the Vistula, at Podgórze (which remained a town in its own right until 1915).2 Polskiej Akademii Nauk, 1980); id., Austria a Polska w konserwatyzmie A. Z. Helcla 1846–1865 [Austria and Poland in the conservativism of A. Z. Helcel, 1846–1865] (Kraków: Krajowa Agencja Wydawnicza, 1986); id., “Zygmunt Antoni Helcel—kon­ serwatysta, konstytucjonalista, historyk prawa polskiego” [“Zygmunt Antoni Helcel— a conservative, constitutional lawyer, historian of Polish law”], Zeszyt Naukowy 2008, issue 2: 11–31. 2 See Henryk Lisicki, Antoni Zygmunt Helcel 1808–1810, 2 vols. (Lwów: nakładem autora, Drukarnia Ludowa, 1882); and Poczet sołtysów, wójtów i burmistrzów miast, jurydyk, wsi i gmin przyła˛czonych do Krakowa do 1915 roku [A catalogue of governors, chief magis­ trates, and mayors of towns, autonomous urban and suburban enclaves, villages, and rural

126 D. Malec Having acquired some landed estates in the Congress Kingdom of Poland, Antoni Karol became eligible for admission into Polish nobility. The Helcels, both parents and children, held a prominent position in Kraków’s public and social life. Antoni Zygmunt Helcel began his education at St. Anne’s Lyceum, one of Poland’s most renowned grammar schools, established in the sixteenth century. He left school with the maturity certificate at the age of fifteen and enrolled at the Jagiellonian University (apparently disregarding the advice to follow in his father’s footsteps).3 Having made law his principal subject, he topped it off with a year’s study at the philosophical faculty. Working with steely determination, he com­ pleted his master of laws thesis in 1828, and soon afterward a dissertation titled De querela inofficiosi testamenti secundum ius Romanum for the degree of doctor utriusque iuris. While still a student, he took up an apprenticeship with the Court of the First Instance of the Free City of Kraków, where, until 1828, he served as deputy clerk and secretary. In 1833 he obtained the post of state arbitrator at the Court of the Third Instance of the Free City of Kraków. His legal qualifications and experience must have stood him in good stead when he served for a short time on the jury of the Print Tribunal, a court created in 1848 to decide issues of press freedom. Antoni’s mind was never focused narrowly on the law. Inspired by the lectures and personal contact with Professor Julian Czermin´ski and Professor Jerzy Samuel Bandtkie, he developed a lasting interest in history, conceived as a pursuit based on thorough and strenuous research.4 Directly after securing his doctoral diploma, driven by the ambition to broaden his intellectual horizons, he set out on a study tour abroad. He spent one or two semesters in Wrocław, Berlin, and Heidelberg, where he attended lectures of the luminaries of German jurisprudence, among them Julius Abegg, Karl Unterholzern, Friedrich Carl von Savigny, Eduard Gans, Georg Wilhelm Hegel, Friedrich von Raumer, Anton Friedrich Thibaut, Carl Joseph Mittermaier, and Karl Salomo Zachariae.5 He admitted to being impressed by Hegel’s philosophy, if only for a while, but in the same breath denied having ever made it his own. On the other hand, the legal-historical approach, which is a feature of all of Helcel’s works, no doubt owes a great deal to Savigny’s new his­ toricism (Historische Rechtsschule). When, in November 1830, an armed rebellion against the Russians broke out in Warsaw, Helcel was in Paris. Without hesitation he broke off his barely begun municipalities annexed by Kraków until 1915], ed. Bogdan Kasprzyk (Kraków: Urza˛ d Miasta Krakowa, .2013), 622. 3 Przemysław M. Zukowski, “A. Z. Helcel,” in id., Profesorowie Wydziału Prawa Uni­ wersytetu Jagiellon´skiego [Professors of the Faculty of Law at the Jagiellonian Uni­ versity], vol. 2 (1780–2012), . ed. Dorota Malec (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 2014); Zukowski, “A. Z. Helcel”; and Lisicki, Antoni Zygmunt Helcel. . 4 Zukowski, “A. Z. Helcel.” In his biography of Antoni Helcel, Lisicki writes that the double burden of work and study took a toll on the young man’s health—he lost most of his hair. See Lisicki, Antoni Zygmunt Helcel, 3. See also Kozub-Ciembroniewicz, Złota ksie˛ ga, 137. 5 Kozub-Ciembroniewicz, Złota ksie˛ ga, 137.

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studies and rushed to join the fighting. He enlisted as a private in the 1st Regi­ ment of the Poznan´ Uhlans and rose through the ranks to become a lieutenant, having distinguished himself with exceptional bravery. However, in autumn 1831 it became all too clear that the war was lost. On October 1, 1831, Helcel was mustered out and returned to Kraków, where he married Franciszka z Prandotów Skrudzin´ska. Two years his junior, Franciszka was the girl that had caught his eye during his early student days. They had a happy marriage but remained childless. As soon as he settled down in Kraków, he began to seek a post—at best a chair in the Faculty of Law—at the Jagiellonian University. The story of his checkered academic career will be presented in the following section. At this point, let it be noted that practically all his life he was in poor health and had to bear the cost of expensive cures and visits to spas. In the last seven years of his life, he was paral­ yzed in his limbs and could not rise from his bed. He died on March 31, 1870, in his flat at Mikołajska Street. The funeral, which took place on April 2, 1870, began with a mass in the church of St. Therese of the Child Jesus, the conventual church of the Discalced Carmelite nuns. 6

The Scholar: First Chair of the History of Polish Law at the Jagiellonian University The introduction of a lecture course on the history of Polish law and later the establishment of a chair dedicated to this subject are two milestones in the history of the Faculty of Law of the Jagiellonian University.7 The adoption in 1797 of the Austrian curriculum (a product of the Theresian reforms, modified in the sphere of law by Franz von Zeiller in 1810) put an end to the study of Polish law, with the exception of those of its principles and provisions that were still in force after the fall of the Polish state and could be covered in the framework of civil law. Under these circumstances, the request of Antoni Helcel, at that time a young man, aged twenty-four, for permission to start a lecture on the history of Polish law appeared very bold, if not revolutionary. Yet in the autumn of 1832, the Faculty of Law endorsed the application and asked the Senate to allow Helcel to teach his course on a voluntary basis, that is, without remuneration. The Senate agreed to the request on condition that the course would strictly follow an approved program, and the reading list would include Wincenty Skrzetuski and Teodor Ostrowski.8 Helcel accepted these terms, but did not intend to take a narrow view of his sub­ ject, that is, with a focus exclusively on elements of Polish law retained under the 6 Lisicki, Antoni Zygmunt Helcel, 5. 7 Michał Patkaniowski, Dzieje Wydziału Prawa Uniwersytetu Jagiellon´skiego od reformy kołła˛ tajowskiej do kon´ca XIX stulecia, [History of the Law Faculty of the Jagiellonian University from the reforms of Hugo Kołła˛ taj until the end of the nineteenth century] (Kraków: Nakładem Uniwersytetu Jagielon´skiego, 1964), 208. 8 Ibid., 209. Both Wincenty Skrzetuski (1745–91) and Teodor Ostrowski (1750–1802) were notable historians, jurists, and political writers associated with the reform move­ ment of the reign of Stanisław August Poniatowski. On Teodor Ostrowski, see Chapter 7 of this volume.

128 D. Malec Austrian system, as was done at the University of Lwów. In his syllabus, Index Lectionum 1832/33, he makes it unambiguously clear that the lectures will cover the history of ancient Polish law, historiam iuris antiqui polonici. After just one year, however, due to a revision of the statute of the Jagiellonian University and the cancellation of unpaid lectures, the history of Polish law dis­ appeared from the university lecture list.9 The course was not restored despite Helcel’s appeal, in which he argued that lectures on that subject had been held at the University of Warsaw. He made further remonstrations at the beginning of the academic year 1834/35, but all in vain. To make sure that the content of the course would not be an easy target for his critics, Helcel sought the advice of Professor Romuald Hube from Warsaw, an eminent jurist and historian of Polish law. But Hube’s answer was rather disappointing. He contended that he was not able to offer as much help as Helcel wished, nor could he share the text of his lectures, for, as he wrote, “I do not know if I can get the good copy I had used because it is kept by a person believed to have left Warsaw for a job in a provincial town.”10 Nonetheless, he assured Helcel that “our Polish law, its history, deserves to be studied by serious minds,” and added that a well-constructed lecture course should proceed from an analysis of the statutes to the working out of their order and logic, and culminate in the study of those jurists who had their feet on the ground. After his effective dismissal by the university, Helcel “continued his studies pri­ vately,” to quote a phrase from his curriculum vitae written in 1849,11 but missed no opportunity to fight back. In 1833, he joined Paweł Popiel, Konstanty S´widzin´ski, and Aleksander Wielopolski to write a memorandum criticizing the restructuring, redundancies, and strict controls imposed on the university by a commission created by Kraków’s protector states.12 In March 1848, when it became clear that the central government was losing control, the university offered Helcel, who had built up a strong reputation as a scholar and public figure, a professorship and a newly established chair of the history of Polish law. From that position he pressed for a consolidation of the recent changes. In a memorandum in 1850 to the minister of education and religious affairs, Leopold von Thun und Hohenstein, Helcel pleaded for reforms based on guarantees of academic freedom and university autonomy. In another memorandum, concerning the rank of the university law faculty, he explained what these postulates meant in practice: the faculty (university) should have the right to appoint professors and chairs, grant academic degrees, organize study courses, set down the rules of disciplinary and 9 Henryk Barycz, “Antoni Zygmunt Helcel i pocza˛ tki katedry historii prawa polskiego w Uniwersytecie Jagiellon´skim” [Antoni Zygmunt Helcel and the early history of the Chair of History of Polish Law at the Jagiellonian University], in Studia historyczne ku czci Stanisława Kutrzeby [Historical studies in honor of Stanisław Kutrzeba], vol. 1 (Kraków: Nakładem Komitetu, 1938); Barycz, “Antoni Zygmunt Helcel,” 17; and Patkaniowski, Dzieje Wydziału Prawa, 209. 10 Letter of Jul. 18, 1832, quoted from Lisicki, Antoni Zygmunt Helcel, 31.

11 Quoted from Patkaniowski, Dzieje Wydziału Prawa, 210.

12 Lisicki, Antoni Zygmunt Helcel, 1: 32.

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financial responsibility, and, last but not least, protect the lecturer’s freedom to devise his lectures.13 Even though Vienna took the path of reform, Helcel’s demands were far too radical to be accepted. Most important, hardly anything was done to upgrade the status of the Jagiellonian University to what it used to be, at least in the early phase of the Kraków Republic. So, for example, the professors had no right to wear their ceremonial robes and birettas, a regulation Helcel criticized loudly on every occasion. The support he had was unexpectedly revealed during Franz Joseph’s first visit to Kraków on October 11–13, 1851, when, at the university, the emperor was welcomed by professors dressed in robes rather than civil servant uniforms. The minister of police reacted by ordering a closer surveillance of the Kraków academic community, and in particular Antoni Helcel, on suspicion of propagating Pan-Slavism and inciting hatred toward Austria and Germany. The investigation led to Helcel’s removal from office in 1853.14 As a result, Hecel retired for the next few years to a landed estate he had bought at Gołcza, near Miechów. What exactly Helcel stood for can best be gathered from a draft Statute of the Order of Procedures for the Law Faculty of the Jagiellonian University.15 It is a product of a dedicated traditionalist, preoccupied with the rank and place of the Faculty of Law “in the order of precedence, [that is], after the theological faculty, and before the philosophical and the medical faculties.” Helcel insists that on official occasions professors and lecturers should wear their traditional gowns. Moreover, he argues, there is nothing wrong in wearing a gown while lecturing. He then goes into the sartorial details of the academic garb to be worn by mem­ bers of the Faculty of Law. It consists of a red gown bordered with a strip of black velvet and sleeves ending in long black cuffs; a velvet black cape trimmed with gold braid; a black square bire­ tta; a long black satin cassock to be worn under the gown; a long white sash draped over the shoulders. The dean is to wear a gold chain round his neck and a biretta bordered with gold braid. The reconstruction of the historical academic gowns was a task and a challenge that was taken up not only by Helcel, but also by Józef Majer and Wincenty Pol.16 However, after the incident during the emperor’s visit and the sacking of Helcel, all such projects had to be shelved. The problem resurfaced in 1869, when the conservation of Kazimierz (Casimir) the Great’s tomb in Wawel Cathedral came to an end, and Kraków was preparing 13 Kozub-Ciembroniewicz, “Antoni Zygmunt Helcel – konserwatysta,” 18. 14 Ibid., 19. 15 The standard bound manuscript, held by the Jagiellonian Library, has been digitized and can be read at Jagiellon´ska Biblioteka Cyfrowa, https://jbc.bj.uj.edu.pl/dlibra/p ublication/595418/edition/631001/content. 16 See Janusz Sondel, Słownik historii i tradycji Uniwersytetu Jagiellon´skiego (Kraków: Universitas, 2012), 1331.

130 D. Malec for the second (or, to be absolutely precise, the third) burial of the king. Every­ body agreed that it would be inconceivable for the university delegation to join the cortege wearing anything but proper gowns. Obviously, once one exception was made, more were to follow. Nevertheless, the gown did not make a comeback until the interwar period of the twentieth century. Only then did its presence become routine. In 1869, the bedridden, terminally ill Helcel was nearing the end of his life. Yet when the royal tomb was opened at Wawel, he expressed an ardent wish to get a glimpse of the relics of the good king. Apparently, his dying wish was not ignored, and a small pile of rotten remains of the king’s coffin was sent to his home.17 As already noted, Helcel’s scholarly pursuits and acclaim were not dependent on his university career. Even when his ties with the Jagiellonian University were broken off, he carried on his research, which established his reputation as a leading expert in the history of Polish law and an outstanding editor of historical sources. In 1835, he launched Kwartalnik Naukowy (Academic quarterly), a high-quality periodical dedicated to all aspects of the humanities, while prioritizing the history of law, especially research based on direct source analysis and the exploration of Slavic themes.18 The focus on the study and editing of sources was to some extent conditioned by Helcel’s personal circumstances. In the wake of the November Uprising, the Russian authorities imposed an entry ban on the insurrectionists. As a result, Helcel could no longer travel to the Congress Kingdom where he used to spend his holidays at his father’s landed estate. In this situation, Kwartalnik Naukowy became an intellectual forum where Polish scholars could meet across the borders. For the next two years it welcomed both noted scholars and newcomers who were to become big names, such as the philosopher and art historian Józef Kremer, the poet and geographer Wincenty Pol, and the lawyer and memoirist Wiktor Kopff. At the same time, reviews of academic books recently published in Poland and abroad helped the readers of this learned journal to keep abreast with new directions and methodologies in the world of humanities.19 However, disputes with the censor’s office finally compelled Helcel to stop publishing his magazine in 1837. An attempt to replace it with a weekly named Radegast failed. In retrospect, Kwartalnik Naukowy was a highly professional and inspiring venture that showed new ways to a staid and stale academe.

17 This highly dubious story is movingly recounted in the hagiographical biography of . Helcel by Zygmunt Ludwik De˛ bicki, Antoni Zygmunt Helcel. Zyciorys [Antoni Zyg­ munt Helcel: A Life] (Kraków: Drukarnia Uniwersytetu Jagiellon´skiego, 1870); and “Helcel, Antoni Zygmunt (1808–1870), Rechtshistoriker und Politiker,” Österrei­ chisches Biographisches Lexikon 1815–1950 2, no. 8 (1958): 34–35. 18 Zbigniew Jabłon´ski, “Helcel Antoni Zygmunt,” in Polski Słownik Biograficzny, vol. 9 (Wrocław-Warszawa-Kraków: Zakład Narodowy im. Ossolin´skich—Wydawnictwo Polskiej Akademii Nauk, 1961), 355. Some issues of Kwartalnik Naukowy have been digitized and can be accessed via the internet. 19 Renata Dutkowa, “Kwartalnik Naukowy A. Z. Helcla (1835–1836)” in Studia i materiały z dziejów nauki polskiej, vol. 4 (Warsaw: Pan´stwowe Wydawnictwo Nau­ kowe, 1970), 92–93.

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Keeping his journal going while fighting the turf war with censorship did not distract Helcel from academic work of his own. His first two book-length publications went into print in 1836. One was the comparative textbook Rys poste˛pów prawodawstwa karnego (An outline history of criminal legislation), the other a translation of Gott­ fried Bogumił Lengnich’s Jus Publicum Prussiae Polonae (Common Polish law), with Helcel’s introduction and notes. In 1845 he took part in the preliminary work of the editorial board of the Biblioteka Warszawska, a learned journal that continued to be published in Warsaw until 1914, and he began cooperating with Leon Rzyszczewski on Codex diplomaticus Poloniae (Polish diplomatic code), a serial publication, whose first volume, edited by Helcel, appeared in Warsaw in 1847. He carried on with the great work of salvaging the Polish legal heritage and in 1856 published the first volume of the Starodawne prawa polskiego pomniki (Ancient sources of old Polish law), which included documents of canon law, the laws of Mazovia, digests of land court registers (iudicium terrestre), and the Statutes of Wis´lica, preceded by a monographic introduction, Historyczno-krytyczny wywód tak zwanego wi´slickiego prawodawstwa Kazimierza Wielkiego (A critical-historical analysis of the Statutes of Wis´lica commonly known as Kazimierz the Great’s laws). The idea of starting a multivolume edition of historical legal sources most probably dawned on him while he was working on the manuscripts of statues enacted by King Kazimierz the Great; he became convinced that there may be more texts that had not been given deserved recognition.20 Although subsequent studies of the origins of the Statutes of Kazimierz the Great conducted by a number of renowned legal historians (for example, Romuald Hube, Stanisław Kutrzeba, Oswald Balzer, Abdon Kłodzin´ski, Stanisław Roman, and Wacław Uruszczak), questioned some of Helcel’s findings, his bilingual edition of the statutes—the Latin text and Stanisław of Wojcieszyn’s Polish translation—retains for the most part its usefulness.21 The second volume of the Ancient Sources of Old Polish Law was not published until 1870. It contained 4,568 records of judicial procedures and the Ksie˛ga zwyczajowego prawa polskiego z XIII w. spisana˛ przez bezimiennego Niemca (A book of Polish common law of the thirteenth century written down by an anonymous German), also known as Ksie˛ga Elbla˛ska˛ (Elbinger Rechtsbuch), the earliest extant digest of Polish law.22 More volumes were published by Helcel’s disciples and followers—Michał Bobrzyn´ski, Udalryk Heyzman, Bolesław Ulanowski, and Franciszek Piekosin´ski. 20 Wacław Uruszczak, “Wydawnictwo z´ródłowe Starodawne prawa polskiego pomniki (1856–1921). Pamie˛ ci A. Z. Helcla” [The critical edition of sources Ancient Sources of Old Polish Law (1856–1921): In memory of A. Z. Helcel], in Pomniki prawa na przestrzeni wieków [Monuments of law over the centuries], ed. Kacper Górski, Damian Szczepaniak, and Jakub Pokoj (Kraków: Ksie˛ garnia Akademicka, 2016), 12. 21 Uruszczak, “Wydawnictwo z´ródłowe,” 13. 22 Ksie˛ga Elbla˛ska (Elbinger Rechtsbuch) had several critical editions, among them Józef Matuszewski, Najstarszy Zwód Prawa Polskiego [The earliest digest of Polish law] (Warsaw: PWN, 1959), and Janusz Matuszewski and Jacek Stefan Matuszewski, Naj­ starszy Zwód Prawa Polskiego. Das älteste polnische Gewohnheitsrecht (Łódz´: Wydawnictwo Uniwersytetu Łódzkiego, 1995).

132 D. Malec Stanisław Kutrzeba’s work on land court registers was interrupted by World War II and resumed by Adam Vetulani and his former students Stanisław Grodziski, Ludwik Łysiak, Stanisław Płaza, and Stanisław Roman. It is hard to overestimate the value of that collection, which successively brought to light a vast range of texts. Not all of them are highly important, yet, as a whole, they have broadened our knowledge of the history of Polish law.23 Pub­ lished in critical format, they form a solid base of source material for further research. This sense of mission was shared by all generations of scholars involved in the great work. Michał Bobrzyn´ski, Helcel’s collaborator and successor, saw the distinctive quality of his achievement in the way he brought to bear his knowledge of other law codes on the exploration and explication of Polish law. Moreover, the critical editions set the young legal historians an example of high standards of research, that is, the need to look for the original or a version as close as possible to the original and to take great care with the critical apparatus and the editing, so that when the published version is out, there is no need to consult the source. The example, we may be sure, has worked to good effect, as shown by the work of Franciszek Piekosin´ski and Bolesław Ulanowski, and the latter’s successors, who carried on with a multivolume edition of court records.24 The publication of the sources of old Polish law met with a lot of interest both in Poland and in the Polish émigré community. From Paris, Helcel received congratulations from both the leader of the conservative faction, Prince Adam Jerzy Czartoryski, and the radical democrat Leonard Chodz´ko. Antoni Helcel is also the author or editor of a number of publications, most notably “O klasztorze je˛ drzejowskim i be˛ da˛ cym tam nagrobku Pakosława kasztelana krakowskiego” (The Je˛ drzejów Abbey and the tombstone of Pakosław, Castellan of Kraków) in 1852; O dwukrotnym zame˛s´ciu Ludwiki Karoliny Radziwiłłówny . Xie˛zniczki Ludwiki Karoliny Radziwiłłownej i wynikłych sta˛d w Polsce zamieszkach. Przyczynek do dziejów panowania Jana III (Princess Ludwika Karolina Radziwiłłówna’s first and second marriage and the riots that followed throughout . Poland) in 1857; Listy Jana III Sobieskiego do zony Marii Kazimiery wraz z listami tej królewskiej rodziny i innych znamienitych osób (King Jan III Sobieski’s letters to his wife Maria Kazimiera together with letters of that royal family and other persons of quality) in Biblioteka Ordynacji Myszkowskich (Library of the Myszkowski family estate) in 1860; and Ksie˛ga pamie˛tnicza Jakuba Michałowskiego, wojskiego lubelskiego, a póz´niéj kasztelana bieckiego (The commonplace book of Jakub Michałowski, chief military officer at Lublin and then Castellan of Biecz) in 1864.25 He also left behind a personal archive with piles of manuscript writings and notes, boxes of letters concerning his scholarly pursuits and his political activities, 23 See also Wacław Uruszczak and Maciej Mikuła, “Les éditions de sources historiques et juridiques en tant que bien culturel national polonais,” Krakowskie Studia z Historii Pan´stwa i Prawa 17, no. 3 (2014): 405–17. 24 Ibid.; and Oskar Balzer, “Antoni Zygmunt Helcel 1808–1870,” in Album biograficzny . zasłuzonych Polaków i Polek wieku XIX [An album of distinguished Polish men and women of the nineteenth century], vol. 2 (Warsaw: Marya Chełmon´ska, 1903), 260. 25 Kozub-Ciembroniewicz, “Antoni Zygmunt Helcel—konserwatysta,” 13–14, 16.

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and a manuscript of his lectures on the history of Polish law. Highly praised by Michał Bobrzyn´ski for its erudite understanding of Roman, German, and canon law, the lecture is divided into two parts. The first deals with private law, orga­ nized within a thematic framework, while the other is dedicated to public law presented from a historical perspective. Each is firmly anchored in sources, used as a base for historical reconstruction rather than a springboard for abstract theory. Helcel’s unpublished works were deposited with the Historical Commission of the Academy of Arts and Sciences in Kraków. For most of his life Antoni Helcel had no formal connection with the Jagiello­ nian University. He was given permission to have a lecture course on the history of Polish law in the academic year 1831/32 without being taken on the university payroll. It soon turned out that the university was not interested in what he had to offer and cut him loose. In 1848, when the old regime began to crumble, he was invited, all recruitment proceedings being waived, to take up a post as a lecturer. It was to be the chair of the history of Polish law, created ad hoc, without his knowing about it. At any rate, he had no time to clear it up, as he was too busy doing politics and attending a series of meetings and assemblies. Elected in November 1848 to Austria’s first constitutional assembly (Reichstag), he spent most of the following months at Kremsier (Kromeˇrˇíž).26 He did not take up his duties at the university until 1849; the following year he was appointed professor of Polish law and its history. Then, for reasons mentioned earlier, his university career came to an abrupt end on January 1, 1853. Antoni Helcel was a prominent member of the Kraków Academic Society, which played a crucial role in developing Kraków’s scientific potential. From 1857 he chaired the Section of Moral Sciences of the KAS, and on his initiative the Society transformed itself into the Akademia Umieje˛ tnos´ci (Academy of Arts and Sciences).27 The Academy provided the funding for Helcel’s series of critical edi­ tions of Polish law sources and backed his plans of a systematic study of legal and historical sources. More research was planned in the field of humanities, including the search for and publication of sources and the continuation of Słownik terminologiczny powszechny (General terminological dictionary). Meanwhile, Helcel appealed to all members of the society who knew of any historical manuscripts and the place where they were stored to share that information and called for the publication of all documents held by the Archives of the Jagiellonian University. He also devised plans to com­ pile bibliographical guides to Polish history and law that would include the latest research in these areas and a comprehensive chronological guide to all source editions, such as the Volumina Legum, which had led the way in the publication of old Polish laws and the works of chroniclers like Jan Długosz and Maciej Miechowita, or the poet Jan Kochanowski. 26 Patkaniowski, Dzieje Wydziału Prawa, 211. 27 Jan Hulewicz, Akademia Umieje˛tnos´ci w Krakowie 1873–1918. Zarys dziejów [An outline history of the Academy of Arts and Sciences in Kraków, 1873–1918] (Wrocław / Warsaw: Zakład Narodowy im. Ossolin´skich, 1958), 179.

134 D. Malec In 1867, while many of his colleagues were still apprehensive about taking up open contacts with institutions associated with the Polish political emigration in Paris, Helcel accepted honorary membership in the Historical and Literary Society (Société Historique et Littéraire Polonaise). This was followed by the establish­ ment of direct contacts between the Kraków Academic Society and other cultural and scientific institutions abroad, regular exchange of books and periodicals, and the development of international cooperation, which was later continued by the Academy of Arts and Sciences.

The Political Life In 1837, after experiencing two setbacks, one at the start of his career as a lecturer in the history of Polish law and the other as a publisher and editor of a learned journal, Antoni Helcel bought the Górka Narodowa estate on the outskirts of Kraków. There he led the life of a country gentleman and continued his research. Soon enough, however, he also began his political life as a member of the Free City of Kraków Assembly (Izba Reprezentantów). His political stance was fixed from the first. He stood for patriotism and was ever ready to inspire and back patriotic activism. Yet his high commitment was tempered by criticism of the vices of the Polish national character. Thus, Helcel’s personal growth foreshadowed the shift from Romantic idealism to a clear-headed realism, that is, the positivism of Polish cultural history. An instinctive conservative, Helcel often found himself in opposition to the liberals, but did not join the conservative faction in the Kraków Assembly until 1846. In 1848, together with Adam Józef Potocki and Paweł Popiel, he founded the daily Czas (Time), which was to become Poland’s leading conservative newspaper. He was also involved in the launching of Głos (Voice) in Lwów in 1860, potentially a rival of the Kraków Czas. When the Kraków Uprising was proclaimed on February 20, 1846, Helcel joined the Committee of Public Security set up by Kraków’s political elite. Soon afterwards, as the revolutionaries led by Jan Tyssowski took over power and formed a national government, Helcel became secretary in the Ministry of Internal Affairs. In April 1848, he was a member of a team which, on behalf the City Council, negotiated the surrender of Kraków to Austrian troops. What Helcel thought about the insurrection and its leaders can be gathered from an essay titled O stosunku wie˛kszos´ci obywateli miasta Krakowa do ostatniej rewolucji 1846 (The attitude of the majority of the citizens of Kraków toward the latest revolution of 1846). Addressed to the German historian Richard Roeppel, it is an account of the events that took place in Kraków and the author’s own opinion about the ways of restoring Poland’s sovereignty. He does not hide his aversion to violent uprisings and revolution. The path to independence, he believes, leads through the extension of political and national autonomy; it must be achieved by legal means and by a joint agreement of Austria, Prussia, and Russia. An even clearer exposition of his political views can be found in Briefe eines polnischen Edelmannes an einen deutschen Publizisten (Letters of a Polish noble­ man to a German columnist), published in Hamburg in 1846. The worthy goal of

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the restoration of the Polish state, he asserted, cannot be achieved by a revolution like the Galician Peasant Revolt, inspired by Jacobin and communist demagoguery and provoked by the policies of the Austrian government, inciting the peasants against their noble overlords. In the heady days of March 1848, his hopes of Polish independence focused on Austria and Prussia, acting jointly against Russia. As hope gave way to disillusionment, he tried to bring round his old friend Alek­ sander Wielopolski to the idea of forming a national government at the Polish Congress in Wrocław. As this conservative initiative ended in failure, Helcel went to Prague, the venue of the Pan-Slavic Congress, a big convention modelled on the first German National Parliament assembled in Frankfurt. There Helcel suc­ cessfully called for including in the Manifesto to the Nations of Europe a denun­ ciation of the partitions of Poland. He also drafted An Appeal to the Emperor of Austria, setting out a prospect of Polish-Ruthenian reconciliation and the AustroSlavic Union Act (a project coauthored by Jerzy Lubomirski). The latter, as he explained in an article addressed to his voters (“Głos do wyborców”), published in Gazeta Krakowska on November 18, 1848, envisaged the transformation of the Habsburg monarchy into an Austro-Slavic federation, with Kraków as the capital of a future Polish state. Earlier that month he was elected member of Austria’s constitutional assembly at Kromeˇ rˇíž Castle. In a debate on fundamental rights, he opted for the formula of state guarantees (Staatsbürgerliche Grundrechte) for the whole spectrum of rights, including the freedom of religion and the equality of churches before the law.28 After the central government tightened its grip on the empire and adopted the neo-absolutist constitution, the Silvesterpatent of December 31, 1851, Helcel decided to withdraw from active politics. He stayed out until 1860, when Emperor Franz Joseph promulgated yet another constitution, known as the Oktoberdiplom. It signaled that the Habsburg monarchy was ready to go down the road of federalism. That prompted Helcel to resume his old struggle for the autonomy of Galicia. In a widely publicized pamphlet, Uwagi nad kwestia˛ je˛zyka w szkołach i uniwersytetach Galicji (Some points on the issue of language in the schools and universities of Galicia), he argues against the use of German in schools and calls for letting universities have a greater say in their own affairs and the right of representation in the Galician Assembly. He does not ignore the ethnic pro­ blem in eastern Galicia. Yet his solution, making Polish the first language of instruction in all primary schools, and having Ruthenian (Ukrainian) as the second language in areas with a Ruthenian majority, was hardly satisfactory.29 The issue of interethnic relations is raised again in the Address to Prime Minister Schmerling, which Helcel presented at a citizens’ convention in Kraków on the last day of 28 Kozub-Ciembroniewicz, “Antoni Zygmunt Helcel—konserwatysta,” 19–22. 29 Barbara Stoczewska, “Antoniego Zygmunta Helcla pogla˛ dy na kwestie˛ rusin´ska˛ ” [Antoni Zygmunt Helcel on the Ruthenian question], in Doktryny, historia, władza. Ksie˛ ga dedykowana profesorowi Wiesławowi Kozubowi-Ciembroniewiczowi z okazji czterdziestolecia pracy naukowej, ed. Anna Citkowska-Kimla, Małgorzata Kiwior-Filo, and Bogdan Szlachta (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 2009), 288.

136 D. Malec 1860. The document reaffirms the historical and legal foundations of Polish national identity, based on tradition, moral ties, and heirship with regard to the mother figure of the Polish state. In Galicia, both Poles and Ruthenians, conceived as two family groups bound by ancestry and succession, should be regarded as a single community.30 As a member of the lower chamber of the Austrian Parliament, Helcel joined in the chorus of criticism of the constitution of February 26, 1861 (the Februarpatent); he believed the process of federalization should proceed in the spirit of the Oktoberdi­ plom. In 1862, as his health was failing, he gave up his seat in the Reichsrat. At the same time, he declined Aleksander Wielopolski’s proposal to go to Warsaw and help in the implementation of an education reform plan and the reactivation of the uni­ versity (it had been closed down in 1831, after the November Uprising, and at that time was due for reopening under the name the Main School). The most important publication of Helcel the politician was the 1865 Memoriał (The memorandum), in the aftermath of the replacement of Anton von Schmer­ ling by Count Richard Belcredi as Austria’s prime minister. Belcredi was a con­ servative with Bohemian (Czech) connections. He advocated a new constitutional settlement, based on a balance of the German, Hungarian, and Slavic components of the monarchy. Helcel could be expected to welcome the idea of the tripartite federal order, but would not necessarily be a great supporter of the idea of Prague as the center of the Slavic part of the empire. In his Memoriał Helcel advocated the formal recognition of Polish as the official language in Galician schools and state administration; the transfer of power to the Poles; the extension of the competences of the Galician Assembly in matters of law (justices of the peace); local government and control of local administration; protection of landowners, towns, industry, and trade associations; clarification of church state relations, and protection of the interests of the Catholic Church. He also called for the creation of a Ministry for Galicia responsible for the coordination of the work of the federal and the provincial apparatus.31 The vision of Galician society in the Memoriał reflects the mind of its author, a conservative nobleman, averse to social mobility and social climbers, critical of new laws, which, if enacted, would only exacerbate the relations between various groups in society (for example, some new laws would generate more mistrust of Jews). While Helcel remained firmly committed to a conservative brand of patriotism all his life, as a politician and political writer in the period 1846–66 his allegiances and attitudes were influenced by changing circumstances and current events. So, in 1846, a sudden turn of events drove him for a while into the arms of radicals demanding the restitution of the Polish state. Then, during the period of the 1848 revolutions, he embraced the liberal idea of a new order and the creation of Eur­ ope’s emancipated nations, including Poland. When the revolutionary surge was pushed back, he tried to position himself in the federalist debate that flared up 30 Kozub-Ciembroniewicz, “Antoni Zygmunt Helcel—konserwatysta.”

31 Large portions of the Memorandum in Polish translation can be found in Lisicki,

Antoni Zygmunt Helcel, 2:191ff.

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again and again in the Austrian Empire. At first, he gave his support to the idea of Austro-Slavism, but the shifting sands of Viennese politics made him increasingly cautious. He focused on raising the autonomous status of Galicia, a practical goal justified by Polish national interest. This flexibility suited him well, as he always preferred to concentrate on the task at hand. He had little interest in theory, social constructs, or systems of political philosophy. Helcel is a forceful and uncompromising critic of revolutionary doctrines. He confronts them with a conservative affirmation of order, impervious to historical change, established by God and reflected in the natural social order, religion, the family, and private property. His conservative stance also finds its expression in the state, which is indispensable for ensuring the stability of the natural order in society, and which works well when it is built on the principles of representative democracy and constitutional order. These convictions, articulated in the two conservative essays, guided his political activities, his promotion of Galician autonomy, and his choices and allegiances. No matter what program of action he decided to support, he always stressed the role of lasting compromises and the need to keep in check the forces of division and disruption. Helcel saw in conservatism not only a refuge for the Catholic Polish nation in times of oppression, but also a source of strength and self-confidence necessary for the recognition of Polish rights and the restoration of the Polish state. His actions reveal the operation of a will that respects the law, but never crosses the line separating loyalism from servility. He regarded autonomy as a first step on the road to the restoration of a sovereign Polish state. Poland’s independence, he believed, was sure to come because it coincided with Europe’s political interest in creating a balanced and stable international order, the foundation of lasting peace. While keeping an eye on that goal, he tried to find ways of linking Polish interests and sensibilities with the interests and expectations of other nations of the Habs­ burg Empire, including those in Galicia. The difficult question of what would happen to Galicia and its institutions, were it to merge into a restored Poland, he ignored, as if the recreation of Poland need not involve the unification of its parts. All that Helcel had to say on that subject was that unity meant reestablishing the natural bond between Poles living under Austrian, Russian, and Prussian rule.32 In the final years of his life Helcel, tormented by an incurable illness, was unable to do any research. At one point, in despair, he decided he had had enough of the doctor who had looked after him, although that was none other than Professor Józef Dietl, rector of the Jagiellonian University and the highly respected mayor of Kraków in 1866–74.33 Dietl’s successor, Julian Czerkawski, came up with a dif­ ferent course of treatment. It resulted in a significant improvement of the Helcel’s condition, and he was now able to get on with his work, though not without help. Musty old books were brought to him by his collaborators, who also helped him with the sorting of note cards and the collation of sources. In this way he con­ tinued work on the second volume of the Ancient Sources of Old Polish Law. 32 Kozub-Ciembroniewicz, “Antoni Zygmunt Helcel—konserwatysta.”

33 Lisicki, Antoni Zygmunt Helcel, 2: 259ff.

138 D. Malec Gradually, however, his condition got worse. A creeping paralysis hindered him from getting outdoors and eventually left him bedridden. As his body grew weaker, his mind turned increasingly to religion. It was then that a horrifying story of a monastic abuse scandal sent shockwaves through Kraków and, as it got into the press, soon became one of the most pub­ licized sensations throughout Europe and triggered a serious political fallout in Prussia.34 It was dubbed the Barbara Ubryk Affair, after the name of a mentally disturbed nun, held in solitary confinement for twenty-one years behind the walls of the Discalced Carmelite convent in the Wesoła district. Her imprisonment, in utterly inhuman conditions, was ended in July 1869, when a police investigation team, acting on an anonymous tip, obtained permission to enter the cloistered nunnery. The authorities attempted to keep the investigation secret, but the news leaked out and provoked a massive outcry. For days, angry mobs gathered in the streets and attacked the city’s monasteries, while thousands of good citizens signed a petition demanding the expulsion of the Carmelites and the Jesuits from Kraków.35 The news of the petition alarmed Helcel so much that he decided to draft a counterpetition and, somewhat later, to set up a Catholic society named the Fortress of the Cross. Its mission was to defend the Catholic faith, the Catholic Church, and the moral interests and rights of Catholic citizens. Helcel himself wrote the statute and asked Pope Pius IX for a blessing for the society and its members. Although, to Helcel’s disappointment, the number of society mem­ bers climbed no higher than fifty, they succeeded in publishing their own maga­ zine (actually two double issues in 1870). The death of the founder precipitated the demise of the Fortress of the Cross. It failed before it arrived in the company of notable Catholic associations that functioned at that time in Kraków, but, given the fact that its statute and name had not been well received even by Helcel’s friends, its failure was only to be expected.

Conclusion Antoni Zygmunt Helcel was an outstanding legal historian with an all-round knowledge of the humanities. In his life, scholarship and politics mingle and complement one another. Of Helcel’s academic legacy, nothing has stood the test of time as well as his critical edition of sources of old Polish law that went to print in 1856. Although the source material published in Starodawne prawa polskiego pomniki (Ancient sources of old Polish law) has since been subject to emendations and critical reediting, this monumental collection remains a fine example of legal historicism in practice and a landmark of Polish legal history. 34 See Manuel Borutta, “Enemies at the Gate: The ‘Moabiter Klostersturm’ and the ‘Kulturkampf’: Germany,” in Culture Wars: Secular-Catholic Conflict in NineteenthCentury Europe, ed. Christopher Clark and Wolfram Kaiser (Cambridge: Cambridge University Press, 2003), 234ff. 35 A detailed reconstruction and analysis of the case of Barbara Ubryk can be found in Stanisław Salmonowicz, Janusz Szwaja, and Stanisław Waltos´, Pitaval krakowski [Kraków Causes Célèbres] (Kraków: Wydawnictwo Prawnicze, 1962).

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As a politician and activist, Helcel laid the foundations for Kraków and Galician conservatism, a mindset and an ideology that became very influential in the Polish lands ruled by Austria in the second half of nineteenth and the early twentieth centuries. His was a dedicated and hardworking life, marked by ever longer peri­ ods of chronic illness. The salient points of his life are recounted in his epitaph in the Church of St. Anne: Antoni Zygmunt Helcel, soldier of 1831, professor of history of Polish law at the Jagiellonian University, member of the Kraków Academic Society and many other societies, author of patriotic works, member of regional parlia­ ment, founder of the Catholic society Fortress of the Cross, generous giver to the poor, born in Kraków on 12 November 1808, died on 31 March 1870.

9

Leopold Caro (1864–1939) Michał Gierycz

Introduction A Jew from a respectable family of rabbis, an example of a Polish Catholic, an economist who fought the most commonly acknowledged economic laws, and a successful lawyer who established charitable societies—if there are figures in history who are easy to classify, Leopold Caro is certainly not one of them. Born on May 27, 1864, in Lwów (now Lviv, Ukraine), he came from a Jewish family of Polish patriots. It is possible that he was related to Joseph Caro, a famous sixteenth-century Jewish scholar and mystic. Whether this was the case or not, he considered himself a descendant of a line of Spanish rabbis. His father, Henryk Caro, took part in the January Uprising (1863–64), the Polish uprising for inde­ pendence against Tsarist Russia, one of the three states (with Austria-Hungary and Prussia) that had partitioned Poland in the late eighteenth century. The tension arising from his membership in both the Jewish community and the Polish nation contributed to Leopold Caro’s involvement, during his studies in Lwów, in the activities of the Alliance of Brothers (Przymierze Braci), an association aimed at the assimilation of Jews, and, after his studies, to his conversion to Catholicism, most probably in 1893—a step taken after many dilemmas but also with inner certainty.1 His first major works, published in German—Die Judenfrage, eine ethische Frage (1892) and Der Wucher. Eine socialpolitische Studie (1893)—take up important economic issues related to usury and are directly or indirectly related to an attempt at an intellectual approach toward the “Jewish question,” a task which, in the context of the anti-Judaic position of the Catholic Church at that time, was not simple for a Jew who was both a Polish patriot and a Catholic. In 1887, Leopold Caro graduated in law and philosophy from the University of Lwów, where he received a doctorate in law as well as a certificate of completion of studies in philosophy. Afterwards, he undertook studies in the field of economics in Leipzig, where he participated in the seminar of August von Miaskowski, one of the most eminent experts in agrarian affairs in Germany. Although it seemed that Caro would embark on an academic career, especially since he was invited to produce a postdoctoral thesis, he established a law firm, first in Lwów, then in Krosno, and, 1 Leopold Caro, Nowe Drogi (Poznan´: Ksie˛ garnia S´wie˛ tego Wojciecha, 1908), 11–12.

DOI: 10.4324/9781003181255-10

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from 1897, a year after his marriage to Salomea Chelin´ska, in Kraków. He was a well-respected solicitor, and his growing income allowed him to devote increasing attention to socioreligious issues. He participated actively in the work of the Con­ servative Club in Kraków, and together with Father Włodzimierz Ledóchowski, later the Jesuit Superior General, founded charitable societies for seamstresses, domestic servants, and women workers.2 He was particularly involved in the problems of Polish emigrants. The intellectual fruits of this involvement were not only popular scholarly works (including the 1908 collection Nowe Drogi [New roads]) but also several aca­ demic works on migration, with the particularly appreciated Auswanderung und Auswanderungpolitik in Oesterreich (1909), as well as the outline of a lecture on sociology (1912), indicating the academic ambitions and capabilities of the would-be postdoctoral researcher. Mobilized during World War I, Caro served as a military judge for AustriaHungary and subsequently (after 1918), as a military judge of the Polish Army. In 1920, he returned to Lwów, where he served in the chair of economics at the Lwów Polytechnic until his retirement in 1933. At the same time, he was a pecu­ liar economist. Although he cofounded the Economic Society and edited, throughout his life, the Przegla˛ d Ekonomiczny (Economic Review), which he had founded in 1928, he strongly rejected the achievements of classical and neoclassi­ cal economics, denying the existence of economic laws formulated by mainstream economists. Recognizing himself as a supporter of the French school of solidarism, related to the works of Charles Gide, and “of the historical and ethical English and German schools, for a greater part being in accordance with the French school,”3 he kept developing the concept of solidarism and protectionism, finding less and less understanding among the mainstream of Polish economists, and more and more sympathy within the Catholic Church. In 1933, he was appointed to the Social Council of the Primate of Poland. Involved in the matters of the reborn Poland, he wrote works devoted to specific challenges and laws of the time—for example, fiscal problems, the nationalization of loans or the equivalence of benefits, academic trea­ tises on the theory of economics, cooperatives, capitalism and fascism, academic textbooks in sociology and social economy, and—finally—works promoting and academically treating his central interest: solidarism, notably the book Solidarism, Its Principles, History, and Applications (1931). Leopold Caro died a few months before World War II, on February 11, 1939, in his native Lwów.

The Nature of Law and the Nature of Man Considering the life history of Leopold Caro, a question arises as to the legitimacy of analyzing his achievements from a legal perspective—he was, after all, a pro­ fessor of economics with a clear predilection toward sociology. It is therefore 2 Rafał Łe˛ tocha, “W imie˛ dobra wspólnego. Leopold Caro—teoretyk solidaryzmu chrzes´cijan´skiego,” Nowy obywatel, Apr. 13, 2012, http://nowyobywatel.pl/2012/ 04/13/w-imie-dobra-wspolnego-leopold-caro-teoretyk-solidaryzmu-chrzescijanskiego/ 3 Leopold Caro, Zasady nauki ekonomji społecznej (Lwów: K.S. Jakubowski, 1926), 1.a.

142 M. Gierycz worth emphasizing that, on one hand, his legal education and civic disposition made Caro an active participant in public debate, including as the initiator of and valued commentator on legal acts; on the other hand, the problem of law remained one of the significant issues in his reflection, although in a broader than strictly juridical sense. The distinction between what is law and what only appears to be law was the starting point for his critique of capitalist (free-market) and socialist (communist) economics, and justified the primacy of sociological and, ultimately, moral reflection in economics, as well as with regard to positive law. Taking Montesquieu as the starting point, Caro recognized that laws in their proper sense are “necessary dependences resulting from the essence of certain phenomena or things,” existing “wherever there exists a permanent logical rela­ tionship of independent phenomena, indicating a causal or logical relationship between them.”4 Thus, he stressed that “these are not incidental, variable, or country-specific or period-dependent truths; these are laws which are revealed in a similar way among nations and races at all times.”5 As he noted, their exemplifi­ cation in nature is the laws of nature, which are the subject of exact sciences, in which factional thinking would be nonsense. Departing from this premise, Caro argued that in economics or sociology one cannot find “laws” in the proper sense of that word.6 In the era of the domination of positivist dreams of making social sciences similar to natural sciences, leading the significant economists of that time (including David Ricardo and Richard Cobden) to recognize liberal economics as a “finite science,” “for which there are virtually no more secrets,” whose laws one should “only learn to submit to and not disturb their actions,” Caro opposed treating economic laws as “real laws” (as, for example, Ricardo wanted) or even as the laws of nature, instituted by Divine Providence (as Cobden, for example, wanted). He explained: When the action of the law of gravity is opposed by air resistance, we can accurately measure and calculate the significance of this obstacle. But the factor of personal interest, envy, revenge, love of neighbor, religious or patriotic motives is impossible to determine or weigh.7 Thus, without denying the existence of various economic regularities amidst simi­ lar conditions, he denied them the name of “laws” suggesting—by analogy to the laws of nature—their action as independent of human will or—by analogy to moral laws—as obligation. He consistently defended what Stanisław Ossowski would describe years later as the peculiarities of the social sciences. Reflecting on the nature of law, he made an essentially accurate and ruthless critique of such 4 Leopold Caro, “Prawa ekonomiczne a socjologiczne,” in Leopold Caro. Zmierzch kapitalizmu. Wybór pism, ed. Dariusz Grzybek (Kraków: Os´rodek Mys´li Politycznej, Wydział Studiów Mie˛ dzynarodowych i Politycznych Uniwersytetu Jagiellon´skiego, 2012), 174. 5 Ibid., 165. 6 Leopold Caro, Ku nowej Polsce (Lwów: Ksie˛ garnia nauczycielska, 1923), 49. 7 Caro, “Prawa ekonomiczne a socjologiczne,” 166.

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“laws” as the theory of free competition, thrift, Malthusianism, and Lassalle’s iron law of wages. He thus not only showed the harmfulness of the widespread belief in their absolutely binding nature and the instability of forecasts based on them, but also revealed—to use the much later category of Saint John Paul II—the anthro­ pological error at their root. Leopold Caro argued that the belief in economic laws is closely related to the assumed concept of the human being, especially among the Manchester school he criticized. As he aptly noted, in order for “the sale of a worker’s strength and time to be the same sale of goods as the trade in stocks on the London Stock Exchange,”8 one must first reduce a human being to homo economicus. Such a position, in fact, undermines the moral and transcendent nature of human exis­ tence and implies materialism, which suggests that human beings always consider only their benefit and act according to it, “stigmatizing other motives as erro­ neous, and [treating] the egoistic motive as the only correct one.”9 Thus, with a rhetorical zest, Caro asked five years after the Great War and three years after Poland’s war with Bolshevik Russia: Is there unknown a type of man who forgoes meeting some of his needs in order to use the funds thus obtained to support the family and raise his chil­ dren? Are we not aware of the acts of personal risk in the defense of justice? Do we, especially in Poland, not know the thousands of names of people who went to war risking death or invalidity, solely out of a sense of duty and love for the motherland? And is it all not evidence that not merely motives of personal interest decide in the social economy, and that the relevant theory is nothing but an unjustified generalization of individual facts taken from the world of international capital?10 Moreover, considering that the advocate of economic liberalism does not understand the revolutionary impact of education, wrongly assuming that the individual is unable to develop; that certain human qualities and defects rest immanently and indestruct­ ibly in an individual; and that the premise of liberalism that every individual is equally suited to economic independence is fundamentally false, Caro argued that “the idea of hominis oeconomici is far removed from reality.” Not only because human beings are not driven merely by economic considerations, nor because not everyone has economic abilities, but above all because the individual is not an object but the sub­ ject of social relations: a being endowed with a will. Individuals are therefore capable of influencing the direction and correction of economic processes. Ultimately, it was with the inadequacy of liberal anthropology that Caro justified his “doubt as to whether” laws “based on this fiction could correspond to the truth.”11 8 Caro, Zasady nauki ekonomji społecznej, 54.

9 Leopold Caro, Solidaryzm. Jego zasady, dzieje i zastosowania (Lwów: Fundusz Kultury

Narodowej, 1931), 99.

10 Caro, Ku nowej Polsce, 50.

11 Caro, “Prawa ekonomiczne a socjologiczne,” 171.

144 M. Gierycz Thanks to the anthropological perspective, Caro was able not only to put forth criticism of the opinions regarding the nature of claims by mainstream economics of the time, but also to reveal the deep convergence of the anthropological foun­ dations of liberalism and socialism.12 Even though these ideologies were two completely opposite camps at the time, Caro, seeing the rejection by both of ethical principles, revealed their deep connection and concordance regarding views and principles. As he aptly argued, it was precisely the idea of homo economicus in Marxism that had been brought to perfection, since the foundation of society is its system of property and the whole of history is, according to Marx, a class struggle driven by economic motives. Caro broadly criticized the internal contradictions of Marxism in The Principles of the Science of Social Economy, where he argued that the error of Marxism is ultimately anthropological in nature: The human will is actually influenced not only by economic interests, but also by ambition, the pursuit of power, the desire to stand out from others, per­ sonal preferences, social instincts, desire for amusement, consideration of public opinion, a taste for beauty, the search for scientific truth, and, finally, a feeling of dependence on the Creator and of honoring him. Often, these motives are much stronger than economic considerations and determine the direction of history.13 The exposure of inadequate anthropologies that resulted in erroneous economic, normative, and political theories made Leopold Caro pose a question regarding adequate anthropology. He pointed out that only those who have gotten to know the whole person know that person well enough. In this respect, he searched for knowledge in sociology, the views of which had—in his opinion—outstanding superiority, as they are closer to reality and, at the same time, cover “wider hor­ izons.” Based on his research, Caro distinguished seven sociological laws con­ cerning society and economy: (1) the law of human dependence on nature, from which society distinguishes itself by having an ethical goal that enables “all con­ scious human action”; (2) the law of the predominating influence of the human will, which modifies and tames the forces of nature; (3) the law of people’s mutual dependence and thus mutual responsibility for their common fate; (4) the law of the division of labor; (5) the law of the superiority of cooperation over competi­ tion; (6) the law of priority of the common good over the individual good; and (7) the law of the multiplicity of motives for action, both individual and collec­ tive.14 Caro did not conceive of humans as perfect beings; his anthropology was not “angelological” in nature. He emphasized that history, and in particular eco­ nomic history, teaches us that human nature is imperfect and possesses strong bad 12 For more on the anthropological foundation of ideological stands, see Michał Gierycz, European Dispute over the Concept of Man: Study in Political Anthropology (Cham: Springer, 2021), 143–98. 13 Caro, Zasady nauki ekonomji społecznej, 68. 14 Caro, “Prawa ekonomiczne a socjologiczne,” 203–09.

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drives, and thus power, and the law it establishes, is an important corrective and educational force. The nature of these seven sociological laws was heterogeneous. While the law of the predominating influence of the human will, the law of mutual dependence, or the law of the multiplicity of motives for action can be considered a sociological description of the principles of human and social activity, claims about “responsi­ bility for common fate,” about society having an ethical goal, or about the super­ iority of cooperation over competition are already clearly normative in nature, and it is hard to consider them as part of sociological principles understood descrip­ tively. Indeed, in Caro’s theory, laws of sociology were linked with moral laws. Explaining the law of responsibility, Caro elaborated that sociology and ethics addressed, as it were, two sides of the same coin: If the moral law has registered … only the side visible to everyone, which concerns the spiritual and ethical element in a human being—a sociological law stating mutual dependence, moreover, demonstrates the indispensability of this interdependence as an economic factor.15 This reveals Caro’s conviction that laws, in the sense proper to Montesquieu, although of a different nature from that of the exact sciences, also exist in social life. Sociology allows us to discover some of them (descriptive principles), and ethics allows us to discover others (normative principles). Although such an approach corresponded to the fairly widespread belief of the time, treating sociol­ ogy as the science of facts, it is worth emphasizing that, contrary to the legal positivists popular at that time (for example, Hans Kelsen), Caro placed the source of the science of norms not in law but in ethics.

Solidarist Systemic Postulates Caro’s remarks on the social sciences of economics and sociology reveal a convic­ tion about the existence of a moral core of social relations, which is an indis­ pensable consequence of the moral nature of human existence. It is worth noting that in the above-mentioned approach to the relationship between sociological and ethical laws, he recognizes the moral law of co-responsibility as “visible to everyone,” a kind of moral visuality that does not require proof. However, it is not a matter of a naive belief that everyone is spontaneously in solidarity with others. Caro had a realistic view of humanity, including the evil inclinations of human nature. Visuality refers to the epistemic abilities of human existence: the ability of every individual to get to know moral truth, revealing the indispensability of moral truths for the existence of a society that rests, above all, on the pillars of ethics and natural law. Caro’s deliberations on the foundations of politics can be classified as considerations that are constitutional in nature, as long as we understand the constitution not only narrowly, as a specific legal act, but broadly, and therefore— 15 Ibid., 206.

146 M. Gierycz in reference to Carl Schmitt, for example—as “a specific way of existence … an actual general condition of political unity and social order of a given state.”16 Leopold Caro gathered his key postulates of a systemic nature primarily in the work Solidarism, Its Principles, History, and Applications, which constituted his opus vitae. There he opposes the apparent inevitability of a choice between liberal capitalism and socialism, considering both systems as opposed to the Catholic faith, and he writes about a “solidarist system.” Even though focuses on economic issues, these lead him to much deeper and more fundamental matters, namely, to questions regarding fundamental anthropological, ethical, and ideological solu­ tions on which the specific manner of the state’s existence is based. As he notes, If one camp, from Aristotle and Thomas Aquinas, to Sismondi and Carlyle, the Gide and Pesche solidarists, and to the historical and ethical school … saw ethics as the anchor of economics, the second, liberal, camp, that is, one that shared today the governing of the cultural world with the socialist regime, strongly denied it. Caro therefore sought to restore this first camp to its proper significance. Conse­ quently, he postulated the necessity to rebuild the entire social economy on a “solid and broad” foundation of ethics. His objective, however, was not only to reveal an alternative to the liberal and communist models of economic development but also, and perhaps above all, to restore the ethical and Christian orientation of the social order, guaranteeing respect and development of every human being. The point was therefore—as in the entire tradition of Catholic solidarism—to show the universal meaning of Catholicism for the creation of a society worthy of humanity, and not to create an ideal world or—even more so—a perfect economy. From one perspective, this intention meant the postulate of respect for natural law. Already in his deliberations from the 1920s, Caro renewed the classic description of the relationship between natural law and statutory law by pointing out that the philosophy of law, creating the concept of equitable or natural law, poin­ ted to its eternal and never drying source in ethics, but it did not give us … exhaustive and unchanging guidelines for all nations and times regarding what provisions should be introduced into the legislation as right ones and how to realize the ideal of justice.17 On one hand, therefore, natural law was for Caro the foundation of legislation, guaranteeing the operation of statutory law within the framework of ethical laws in Montesquieu’s sense of the word. On the other hand, however, natural law did not explicitly determine the methods of operation and detailed norms of statutory law: first, because only free choices made within the space of what is not wrong in 16 Carl Schmitt, Nauka o konstytucji, trans. Magdalena Kurkowska and Robert Marszałek (Warsaw: Teologia Polityczna, 2013), 26. 17 Caro, Ku nowej Polsce, 49.

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itself reveal its content in specific issues; second, because, as Caro noted follow­ ing Saint Thomas Aquinas, “human law cannot forbid everything that stands in the way of virtue, but it must limit itself to keeping at a distance what destroys human coexistence.”19 Thus, there exists a space of autonomy of law (including its autonomy from the implementation of ethical norms), but it is not total auton­ omy: statutory law is clearly related to “that what is Higher”20—to natural law. Thanks to the simultaneous recognition of the existence of absolute values and the full appreciation of the human will, Caro harmonized his concept of the rightness of norms and the power of the will. This was possible only on the basis of the adequate anthropology outlined above, which, speaking of the “predominating influence of human will,” simultaneously perceived human nature as both moral (endowed with conscience) and religious. In the interwar period, this approach to statutory law was not popular. On one hand, proponents of free-market logic opposed the ethical constraints of “the laws of the market.” On the other hand, the predominance of legal positivism meant that natural law was not only ignored but rejected in the mainstream of jur­ isprudence. Suffice it to note that Kelsen’s legal theory was fundamentally based on a strong philosophical assumption, consisting of a ferocious refusal of natural law, a refusal that is a hallmark of both his legal and his political works. Although Caro, to some extent in the spirit of Kelsen, emphasizes the importance of the human will in lawmaking, he does not see the will—as Kelsen did—as a source of values, which he finds in an order higher than human will. In accordance with the whole classical and Christian tradition, Caro sees real humanism in relation to “that which is higher,” seeing the effort of the will not in the creation of values but in following the “visible” values recognized by reason. This view allowed him to maintain the relationship between statutory law and natural law and, as descri­ bed above, the primacy of ethics in public life, immunizing his theory against the relativism inherent in Kelsen’s legal positivism. However, the key aspect of Leopold Caro’s systematic thought was primarily the idea of solidarity, in which he saw a direct consequence of the primacy of ethics. As he pointed out, it was precisely moral forces that 18

gave victory over the world to Christianity, led to the abolition of slavery and serfdom, to the abolition of the estates … the extension of electoral rights, the professional organization of workers, an ever more comprehensive care for the poor and to social security.21 18 Marek Piechowiak, “Klasyczna koncepcja osoby jako podstawa pojmowania praw człowieka. Wokół s´w. Tomasza z Akwinu i Immanuela Kanta propozycji ugruntowa­ nia godnos´ci osoby,” in Prawo naturalne—natura prawa, ed. Piotr Dardzin´ski, Franciszek Longchamps de Bérier, and Krzysztof Szczucki (Warsaw: C. H. Beck, 2011), 11–12. 19 Caro, Zasady solidaryzmu, 33. 20 See R. Brague, “Prawomocnos´c´ tego, co ludzkie,” Teologia polityczna, no. 7 (2013– 14): 189–97. 21 Caro, Ku nowej Polsce, 19.

148 M. Gierycz In his view, solidarism resulted, as it were, from the order of nature because, similar to the ideas of the Catholic solidarists Pesch or Grundlach, solidarity in Caro combined two dimensions: internal and external, or—to use Caro’s lan­ guage—sociological and ethical. Solidarity referred to a certain factual, empirically observable reality, on which the obligation-related, ethical dimension of solidarity is founded. In line with the deeply rooted conviction in the Catholic tradition that one can discover an ethical message in the world order, Caro noted that the biologically and sociologically perceptible interdependence between people, or—to put it in the language of Saint Thomas—a natural inclination, includes a moral obligation. Hence, he emphasized that the solidarity worldview puts in the first place the fact that our every act affects others and evokes a necessary reaction on their part; it thus emphasizes the interdependence of people and advises us not to lose sight of this essential premise. Thus, solidarity restricts freedom “in favor of fraternity.” Arguing with Weber’s position separating “the world of values, that is, what should be, from the world of what is,” Caro argued that the demand for the ethical goal of social economy is deeply rooted in the essence of human society, so it is impossible to think about it directly without taking this goal into account. This ethical goal manifests itself in the indis­ pensable—at least to a large extent—solidarity of social life, in the social fea­ tures of work, in the demand for equality (and, therefore, fairness in trade), and in recognition of the obligations that all possession imposes.22 Caro presented solidarity as an ontological principle of social life, marking a more deeply irreducible foundation, the basis of community existence resulting from human natural inclinations, reflecting mutual obligations and connections between people, which—in the deepest sense—stem from who the human being is as a created being. The reflection on solidarism did not develop in a socioeconomic vacuum, however. Its context was the so-called social issue—a phenomenon of social crisis, widespread in industrial countries at the turn of the nineteenth to the twentieth century, resulting from extreme economic inequalities: the pauperization of the population and the exploitation of industrial workers by the economic elite of the time, and the development of communist ideology. The economic question was thus, naturally, a point of special interest for solidarism. In this context, Leopold Caro emphasized the paradox that while in other areas of life the law did not treat individual or group (class) egoism as a point of refer­ ence, balancing a particular good and the common good, capitalism understood as “unlimited drive toward gaining and retaining of goods” was commonly accepted. Contrary to this, Caro emphasized that “true progress consists in a certain restriction of an individual’s freedom of action where he could cause clear harm to another individual living in society,” adding that “criminal law understands this 22 Caro, Zasady solidaryzmu, 209.

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well, forbidding, under severe penalties, murder, theft, or fraud—that is, acts dic­ tated also by the deemed self-interest—and prohibits them in the interest of pro­ tecting life and property and other members of society,” as does “civil law, protecting the rights of creditors.” Since, therefore, as Caro concluded, “ethics has a voice, and a decisive one at that, in the field of law, there is no reason to deny it in the economic field.”23 The sense of the solidarist changes in the field of economy was therefore thought to lead to a situation in which the social order of a given state would actually begin to express that individuals have their own goals, “having a certain scope of individual rights,” preventing “treatment of a human being as a means to an end.” At the same time, the social order would be protected against the use of individual rights “to the detriment of the public” and against their collision “with the legitimate and fair interest of fellow citizens.”24 As a consequence, in the dimension of the economic system, Caro leaned toward protectionism and statism, understanding under this latter term the necessity of state interference in economic matters, allowing for the “suppression of egoism for the sake of salus reipublicae.” On one hand, state interference was to allow the meeting of individual needs most effectively, with domestic products aimed at self-sufficiency, without which there is—according to Caro—“no true inde­ pendence.” On the other hand, state interference was to favor the develop­ ment of social legislation and the continuous improvement of working conditions. Thus, Caro postulated the admissibility of state-owned enter­ prises—for example, where there is a question of satisfying a “general need,” or where “there is an opportunity of obtaining a considerable income for the state treasury.” At the same time, he wanted to ensure that support of industry and agriculture finds an end when collides with the good of the state and the general public. He emphasized not only that the matter encompassed “criminal penalties, but that it was necessary to act to prevent any exploitation in the trade by creating conditions for responsible control over producers and intermediaries.”25 The idea of statism and autarchy-oriented protectionism, seen as an ideal goal, may seem contrary to the idea of solidarity, especially in the international dimen­ sion. Caro was aware of this type of accusation, especially regarding the liberal claims that free international exchange of goods makes all nations dependent on one another and thus becomes a source of solidarity and a guarantor of world peace. Without mincing words, Caro called this type of statement not only “a cliché without content, but simply hypocrisy,” pointing out that de facto it would be an illusory solidarity, similar to the solidarity of “a usurer with a debtor, a giant with a dwarf,” or “the master with a slave,” and therefore possible “only as long as this dwarf, this exploited slave … thus far made happy without protest with Eng­ lish, French, or German goods, did not understand that he could produce similar 23 Ibid., 208–09.

24 Ibid., 9.

25 Caro, Zasady nauki ekonomji społecznej, 256.

150 M. Gierycz goods at home.”26 Hence, Caro was highly skeptical of the ideas of the pan-Eur­ opean movement of Richard von Coudenhove-Kalergi and the concept of “a fed­ eration of free states within which, naturally, all customs duties and passport restrictions would be abolished.” The projected “idyll,” as Caro called it, allowing for a reduction in production costs due to the enlargement of the scale of the market, had to have the result that “in smaller and weaker countries, their own industry will collapse completely,”27 in the long run placing the customers in those countries at the mercy of trusts. Thus, it was obvious for Caro that true international solidarity, in line with the logic of ordo caritatis, required first taking care of attaining a similar economic potential so that the “common market” does not become a source of the collapse of individual economies and a source of per­ manent dependency, which would not have much in common with solidarity. Although in the economic field Caro undoubtedly sketched the concept of solidarism quite clearly, in other areas of social life, even though he put forth solidarism as an alternative system to capitalism and socialism, he did not pre­ sent—what was underscored by his critics—a more comprehensive and “imple­ mentable” vision of such a state. While one can attempt to defend Caro by pointing out that he did formulate certain general principles of the system as well—postulating, for example, some solutions regarding ethnic relations in the state—it seems that these accusations are to some extent justified. On one hand, Caro’s minor attempts at times to rewrite solidarism onto a sociopolitical system resulted in rather challenging theses. For example, given his belief in the broad social and economic tasks of the state, he looked with interest and significant affirmation at the economic activities by fascists in Italy and, to some extent, even by the National Socialists in Germany. Consequently, however difficult it may be to hear from our perspective today, it was in “solidarism, that is, to put it plainly, in fascism, but imitating not its external features and even less so the errors of Mussolini’s system, but taking from it the deepest and essential con­ tent and the core of its ideas”28 that he saw the direction of favorable systemic changes. It seems obvious, especially from a historical perspective, that Caro’s position in this respect was more wishful than analytical, as fascism’s racial and political contempt and violence clearly contradict Caro’s solidarity directives regarding the conduct of politics. To put it in context, however—in the very beginning of the fourth decade of the twentieth century, fascism was observed with some goodwill by many, including the Catholic Church.29 Caro’s detaching of the “essence” of fascism from real fascism progresses to such an extent that, from the Italian experience, he takes away a postulate of the necessity to “suppress in himself the hatred of other nations.” Similarly, in his elaborate analyses of the 26 Leopold Caro, “Logika, metody i widnokra˛ g neoliberalizmu,” in Grzybek, Zmierzch kapitalizmu, 96. 27 Caro, Zasady solidaryzmu, 331. 28 Leopold Caro, Mys´li Japon´czyka o Polsce (Lwów: Wydawnictwo Zakładu Narodowego im. Ossolin´skich, 1931), 51. 29 See Pius XI, Quadragesimo anno, no. 95 www.vatican.va/content/pius-xi/en/ency clicals/documents/hf_p-xi_enc_19310515_quadragesimo-anno.pdf

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economy of National Socialism, Caro only “briefly summed up ‘large-scale arma­ ments’ since 1934, related to the introduction of compulsory military service by the Act of March 1935,”30 without considering their importance for the conduct of the interventionist policy that he appreciated. These leaps over the actual func­ tioning of the systems of National Socialism and fascism revealed a postulative and idealistic picture of the “essence” of these systems. From this perspective, it is easier to see that the general lack of detailed systematic concepts is not necessarily, as some claim, a sign of deficiency of Caro’s thought. The solidarist system, as can be seen from a deeper examination, was ultimately not so much a project of a new system but a project or a method of correction of the existing system. At one point, Caro even notes that “we do not want to get rid of” capitalism, “but we find it difficult to treat it with enthusiasm”; at another point, he calls his economic system “state capitalism.” In fact, therefore, like Leo XIII in Rerum novarum, while strongly criticizing socialism and capitalism, Caro sees in the latter a “window of opportunity” for transformations leading to its ethical correction. As he emphasized, the difference between capitalist and solidarist economy lies neither in the resources, which are indispensable in both cases, nor in the method, which is the same in both, but only in “the goal and the path leading to it.” Thus, it seems that the solidarism project was about a gradual transformation “from within” of liberal and capitalist structures, which, however, were not to be entirely replaced by other struc­ tures. It was, therefore, primarily about the internal transformation of people, espe­ cially producers. To some extent, the law could be of help here, as discussed in more detail below, but—it must be underscored—only to a certain extent. In the area of ethical transformation of society necessary for the existence of a solidarist system, Caro placed special hope in the Catholic Church, demanding the active participation of the clergy in public life in order to proclaim the truths of Christ and to purify public affairs with them, so that “there was no such obscene rift and contradiction as before between ethics in private and public life.”31 It was not about the alliance between the throne and the altar. On the contrary: Caro was irritated by manifestations of the defense of the elite by the church while it ordered the poor to bear their fate with humility. Rightfully recognizing the church as an institution dealing primarily with shaping consciences, the transformation of which was crucial for the success of the solidarism project, he called on priests to spread the “Christian concept of private property,” to instill it in the rich, in order to make them aware of their duties, and, above all, not to act for the benefit of the powerful, since the church must always remember the poor as especially loved by Christ.

Limitations and Ambitions of Positive Law The findings outlined above are important for understanding Caro’s attitude toward positive law. While fighting—intensively—for fairer, more solidarity­ 30 Wojciech Majchrowski, “Polityka gospodarcza Trzeciej Rzeszy w pogla˛ dach Leopolda Caro,” Krakowskie Studia Mie˛ dzynarodowe 3, no. 2 (2006): 247.

31 Caro, Nowe drogi, 78.

152 M. Gierycz oriented legislation, he was fully aware of the limited effectiveness of this struggle. Remaining faithful to the adequate anthropology based on Christian assumptions, he called “dreamers” those “who think that by changing laws and governance tools alone, without transforming human souls, they will improve the fate of humanity on earth.”32 In line with the proclaimed primacy of ethics, Caro emphasized that “every social reform should begin with an ethical reform,” and that the first goal should be “to create the public opinion that would be strong, solidarity-oriented, and consistent and in line with the principles of the Dec­ alogue.”33 Only a change in this field, impossible to be simply decreed, can bring about real improvement of the situation under the norms of positive law. Such an approach toward initiatives aimed at mending society resonated with the teaching of the Catholic Church, which—as in the social teaching of the popes of that time (Leo XIII and Pius XI)—recalled that even the best reform ideas would not bring results without societies’ spiritual transformation and recognition of the primacy of God. While expecting a lot, but not too much, from positive law, and while under­ standing the importance of natural law, Caro was not overly concerned about the instability of “the so-called legal truths.” He humorously emphasized that in each country there are great legislative machines, called parliaments and councils of the state, which every day, with almost inexhaustible conscientiousness, issue new laws to the world … and after some time they change these laws, considering the previous ones to be wrong and unjust. The service alongside the machinery is almost continuous, fire is constantly burning in the furnace … unfortunately, the lawmakers never go on strike.34 While from the perspective of legal positivism this may generate the impression of a permanent crisis of fundamental principles, in Caro’s perspective following nat­ ural law, the changeability of positive law—irritating as it may be—does not gen­ erate systemic problems precisely because there exist indisputable axiological frameworks. Here, balance is not established afresh, but it is built up based upon these frameworks. As long as all these changing laws remain within the framework of the norms of natural law, they not only favor—with more or less success—the common good, but also strengthen the visibility of ethical truths. The “instability” of statutory law also had a significant advantage from the perspective of solidarist logic: it allowed and even implied the necessity to correct the law. Statutory law was, therefore, an important tool for Leopold Caro in the struggle for the gradual transformation of the state in the spirit of solidarism. His particular concern was for the aforementioned “social issue,” and thus for striving 32 Leopold Caro, “Problem społeczny w katolickim os´wietleniu,” in Grzybek, Zmierzch kapitalizmu, 219. 33 Caro, Ku nowej Polsce, 73. 34 Ibid., 48.

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to change the unfair social relations of the developing capitalism in line with the requirements of ethics, including, above all, the improvement of the situation of the weakest groups of society. It is difficult to overestimate the importance of this issue in Poland of that time. As Archbishop Józef Teodorowicz wrote in the pre­ face to Caro’s book Nowe Drogi (New Roads), it is precisely “in the social question that all the arteries of national life and national interests converge, and the scales of our future weigh in here.” At a time when free-market economists considered any legislative initiative to be “either superfluous if it moves in the direction of ‘laws’ invented by it, or ineffective if it opposes them,” Caro praised “positive modern legislation, created under the influence of human will aiming at changing relations recognized as harmful.”35 Moreover, he himself contributed significantly to the change of these harmful conditions through his legislative proposals and his involvement in this field, as well as through raising awareness within the church regarding the importance of this issue. He believed and proclaimed that “the struggle in the front line for the resolution of the social question in a spirit of justice for all is today the church’s first task in the whole world.”36 Leopold Caro’s particularly significant contribution to reflection on the improvement of legislation, along with postulates concerning protection against usury and its prosecution, dates back to his professional activity before World War I and was the aftermath of his research on Polish emigration. As the first person in Europe, at great personal expense, to travel around European ports directly examining the emigrants departing and arriving over four years (1905–09), he collected enormous material and acquired thorough knowledge of emigration issues. He saw the exploitation of Polish workers by agents mediating in the delivery of workers to Prussia—possibly owing to the fact that there were no employment agencies under state supervision in the territories of the Russian and Austrian partitions of Poland. This reality led him to propose establishing a network of communal employment agencies. If, moreover, provincial [governorate] unions and a general national union were created between municipal employment agencies, they could regulate wages and determine other terms of employment in the country; they could provide the workers first of all to their own enterprises and farms, and direct only a significant surplus of agricultural laborers abroad, and this still under conditions to which we have not only the right but also the strength to dictate.37 He also proposed introducing a ban on travel through companies that propose so-called free tickets and to countries “where there is a serious threat to the health, life, and morality of citizens, and where trafficking in women is flourishing, such as the countries of South America.” He further proposed 35 Caro, Zasady nauki ekonomji społecznej, 88.

36 Caro, Nowe drogi, 52.

37 Ibid., 99.

154 M. Gierycz expanding the activities of welfare organizations, modeled on Italian local committees, which included: a justice of the peace, a head of the commune, a priest, a doctor, and a representative of a workers’ organization, with the participation of the episcopate and financial support from private persons.38 At the same time, he postulated statutory changes in Prussia that would lead to access to insurance by the families of workers or the right to court. Caro’s postulates regarding migrant legislation were not, however, limited to the issues pertaining to Poles. Having learned directly about the disastrous fate of migrants, Caro promoted the departure from the definition linking emigration with a permanent change of the country of residence, toward covering by this term every person looking for a job abroad. He also proposed solutions “aimed at improving the position of the emigrant on the international labor market.” Among other solutions he proposed keeping statistics of persons leaving the ter­ ritory of a given country, prohibition of trafficking in women and girls, introduc­ tion of legal provisions regulating the conditions of transporting emigrants, obliging the state to build emigration halls and simplifying the provisions on the validity of civil status records, of postal law and checking law, as well as provisions regulating the issues related to military conscription. The new solutions mainly concerned Central European countries (for example, Russia, the Austro-Hungar­ ian Empire, and the Balkan countries), where no one carried out any research on the number of emigrants, as well as host countries (for example, Argentina and Brazil), where the phenomenon of trafficking in women and children was widespread.39 These and other postulates put forth by Leopold Caro in the field of migration law (including the establishment of the International Institute for Migration Research), even before World War I, became a point of reference for the activities of various lobbying organizations, including Verein für Sozialpolitik, which grouped supporters of active social policy, protectionism, and statism. In Poland, reborn after 1918, they “played an important role in creating the foundations of the Polish system of care for the emigrant circles.”40 After the wars (World War I and the Polish-Bolshevik War) and his return to academic work in 1920, Leopold Caro turned to other pressing problems faced by the reborn Polish state. On the one hand, he took up issues related to the 38 Paweł Fiktus, “Mys´l emigracyjno-kolonialna w pogla˛ dach Leopolda Caro w latach 1908–1914,” in Wrocławskie Studia Erazmian´skie. Zeszyty studenckie, vol. 2, ed. Mirosław Sadowski, Piotr Szymaniec, and Ernest Bojek (Wrocław: Wydział Prawa, Administracji i Ekonomii Uniwersytetu Wrocławskego, 2009), 57. Caro’s postu­ lates to change the legal provisions aimed at improving not only the position of the Polish seasonal migrant but also the image of the entire Polish nation, treated “even in nonpolitical, but academic and professional bodies” as a nation “less valuable, destined to serve”: Caro, Nowe drogi, 101. 39 Fiktus, “Mys´l emigracyjno-kolonialna w pogla˛ dach Leopolda Caro w latach 1908– 1914,” 58. 40 Ibid., 60.

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“putting in order the matters related to currency and treasury, because in his opi­ nion it constituted the basis for building the economy”; on the other hand, he turned his attention to “rural problems, also proposing cooperative forms of organization,” and—finally—to the scope of “state aid for industry and agriculture in the form of protective duties or tax breaks.”41 It is impossible to mention here all his postulates related to so many areas of economic and political life. He addressed issues related to taxation, trusts, treatment of national minorities, prin­ ciples of commercial relations, and more. Their multitude resulted from his con­ viction that “since there are no unshakable laws in the social economy, we are allowed to arrange ourselves in a given nation in such a way as will suit its inter­ ests, as long as it does not run contrary to ethics.”42 Being aware that statutory law is an aid to placing under control the cartels of producers and intermediaries and agreements concluded by all those distorting the results of “free competi­ tion,” Caro therefore believed that a modern state has to fulfill broad social and economic tasks; therefore, it should have extensive influence in these areas, which should be refrained from or limited only where private initiative does not collide with the public inter­ est, but serves it.43 This conviction not only resulted from the knowledge of specific areas of the economy, where state intervention could prevent injustice, but it also constituted the fulfillment of Leopold Caro’s solidarist systematic vision.

Conclusion It was said that Leopold Caro is one of the figures in history that are not easy to classify. The same is true of his contribution to the reflection on law, society, and economy. Although his impressive intellectual legacy of over two hundred posi­ tions is “still considered very important among representatives of the social sciences,”44 there are also those who claim that Leopold Caro “was not the creator of significant works.”45 The second statement can be considered true only on grounds of anachronism. Undoubtedly, from today’s perspective, some of Caro’s theses seem obvious, and some—as in the case of the generally positive assessment of fascism—must be regarded as erroneous. There is no doubt, however, that in 41 Danuta Domalewska, “Leopold Caro 1864–1939,” Biuletyn Informacyjny Biblioteki Głównej Uniwersytetu Ekonomicznego w Krakowie 43, no. 1 (2014), https://bg.uek. krakow.pl/biblioteka/biuletyn/artykuly.php?Strona=Art&Wybor=43&Art=art_leopold_ caro 42 Caro, Ku nowej Polsce, 3. 43 Ibid., 72. 44 Wojciech Giza, “Uzasadnienie idei solidaryzmu społecznego w koncepcji Leopolda Caro,” Zeszyty Naukowe Uniwersytetu Ekonomicznego w Krakowie 948, no. 12 (2015): 17.

45 Dariusz Grzybek, “Wste˛ p” (introduction), in Grzybek, Zmierzch kapitalizmu, vii.

156 M. Gierycz his day Caro was a pioneer in many fields: in his first research on usury and emi­ gration, as a promoter of solidarism among economists, and as a defender of nat­ ural law in the era of the domination of legal positivists. His thought—sometimes presented with exaggerated rhetorical emphasis—sometimes aroused controversy, but most of all forced readers to think. His work became in some cases a reference point for normative changes (vide casus of migration law), while in other cases it provoked reflection on the status of commonly shared opinions (for example, the issue of “free economy”) or reflection on the solidarist essence of the sociopolitical system. Finally, some of his observations (like the thesis that the error of socialism is anthropological in nature) anticipated thought that would become prominent nearly a half century later.46

46 See John Paul II, Centesimus annus, no. 13, www.vatican.va/content/john-paul-ii/ en/encyclicals/documents/hf_jp-ii_enc_01051991_centesimus-annus.html

. 10 Leon Petrazycki (1867–1931) Jan Rudnicki

Introduction A Polish lawyer, when asked about the most important contribution of his coun­ trymen to the legal sciences, will most likely indicate the person and work of Leon . Petrazycki. Such an answer would probably be most common among the alumni of the University of Warsaw, where the main building of the Faculty of Law and . Administration, in which Petrazycki worked in the last years of his life, now bears his name. Yet, as Roger Cotterrell aptly summarizes, . the work of the Polish-Russian scholar Leon Petrazycki from the early decades of the twentieth century holds a strikingly paradoxical position in the literature of juristic and socio-legal scholarship. Indeed, the polarisation between available indicators of its status—on the one hand, lauded as a supremely valuable con­ tribution to knowledge about the nature of law and, on the other, widely neglected and little known—may be the most extreme in modern legal theory.1 Born as a posthumous son to a family of Polish gentry in the territories of the . Russian Empire, Petrazycki graduated in law in 1890 from the Saint Vladimir Imperial University of Kyiv,2 and in the last decade of the nineteenth century quite unexpectedly entered the academic world of Germany. With remarkable selfassurance, and even brazenly (considering that he was still in his twenties), he thoroughly criticized the draft of the German Civil Code and ruthlessly attacked the achievements of one of the greatest luminaries of German jurisprudence, . Rudolf von Ihering. In his works published in Germany,3 Petrazycki proposed a thorough redefinition of the understanding of private law and postulated the creation of the whole new science of legal policy. . 1 Roger Cotterrell, “Leon Petrazycki and Contemporary Socio-Legal Studies,” Inter­ national Journal of Law in Context 11 no.1 (2015): 2. 2 Today the Taras Shevchenko National University of Kyiv. 3 The most important being: Die Lehre vom Einkommen: vom Standpunkt des gemeinen Civilrechts unter Berucksichtigung des Entwurfs eines burgerlichen Gesetzbuches fur das Deutsche. Bd. 1, Grundbegriffe; Bd. 2, Einkommensersatz (Berlin: Verlag von H. W. Müller, 1893–95).

DOI: 10.4324/9781003181255-11

158 J. Rudnicki In 1896 he returned to Russia to become a professor at the St. Petersburg Imperial University—a position he would hold until the Bolshevik revolution.4 It was there, in the capital of the Russian Empire, that he published his other notable books5 and became one of the most important intellectuals, as well as a very popular teacher and active participant in political life in the era of constitu­ tional reforms. His psychological theory of law, presented in his Russian pub­ lications, supplemented his former contributions but became the part of his legacy for which he is most famous. He vigorously attacked all the dogmas of positivistic legal theory, definitively showing himself to be one of the repre­ sentatives of the trend in contesting positivism and traditional jurisprudence. Thus, we can list him alongside other juristic rebels of the era, such as Eugen Ehrlich, Axel Hägerström and the Scandinavian realists, American realists, and Roscoe Pound. . Petrazycki’s career was disturbed by repercussions of the Great War; faced with the communist revolution, he left Russia for good and was offered professorships in, among other places, Berlin and London. He chose the University of Warsaw instead and worked there until his tragic suicide in 1931. Much has been said and written about the limited international reception of . Petrazycki’s work. One commentator has called him a thinker who was the teacher of G. Gurvich, N. Timasheff and P. Sorokin; a person who apparently influenced Pavlov, a lawyer, psychologist, philosopher, methodologist and sociologist, who had the misfortune to write and publish . only in German, Russian and Polish—Leon Petrazycki. Sometimes the state of “social visibility” (or rather “academic visibility”) does not correspond to the scope, depth and creativity of a given area.6 . The Anglosphere had a chance to became acquainted with Petrazycki’s theories already in the 1930s, where a detailed paper on his concept of legal policy was . published by Hugh W. Babb,7 and Petrazycki’s psychological theory was briefly 8 referred to by Roscoe Pound. Later, in 1955, Babb translated, and Nicholas . Timasheff edited, the selection of Petrazycki’s Russian works.9 Since then, much . has been written about Petrazycki and his legacy, but still mostly in Polish and . 4 For a detailed description of Petrazycki’s activities in his Russian period and general . biography, see Marian K. Dziewanowski, “Leon Petrazycki: On the Fiftieth Anniver­ sary of His Death,” The Polish Review 26, no. 3 (1981): 3–19. 5 Vvedeniie v izuchcˇenie prava i nravstvennosti. Osnovy emotsional’noi psichologìi (St. Petersburg, 1905); Teoriiâ prava i gosudarstva v sviâzi s teoriei nravstvennosti (St. Petersburg: Tip. T-va Ekateringofskoe Pecˇ atnoe Delo, 1909–10). 6 Adam Podgórecki, Law and Society (London: Routledge & Kegan Paul, 1974), 212. 7 Hugh W. Babb, “Petrazhitskii: Science of Legal Policy and Theory of Law,” Boston University Law Review 17, no. 4 (Nov. 1937): 793–829. 8 Roscoe Pound, “Fifty Years of Jurisprudence,” Harvard Law Review 51, no. 5 (Mar. 1938): 809. . 9 Leon Petrazycki, Law and Morality, trans. Hugh W. Babb (Cambridge, MA: Harvard University Press, 1955).

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10

Russian. Nonetheless, his theories still exist in a peculiar, intellectual vacuum— many authors have analyzed and criticized them, many have underscored the relevance of some elements of his thinking, but the paths he traced inexorably seem to lead nowhere, since there has been no proper continuation of his ideas. Going back to the comment by Cotterrell, we can agree that the rather intuitive . statement that Petrazycki is important in the history of jurisprudence is somehow ambiguous. Exactly the same can and should be said about the very idea of pointing to him in the context of relations between jurisprudence and Christianity. Indeed, he is generally perceived as a progressive thinker, closely associated with the most liberal political and social trends of his time. It cannot be denied that this . perception of Petrazycki is perfectly legitimate. On the other hand, he was raised in a Catholic home and lived his life in a Catholic marriage. He is therefore undoubtedly a controversial and borderline example, and the main purpose of this chapter is not only to discuss his legacy but also to address this controversy. . The last issues to be clarified before having a closer look at Petrazycki’s ideas about law and jurisprudence are the structure of this chapter and the selection of literature and the threads of thought discussed. As many authors who have dealt . with the rich legacy of Petrazycki have admitted, logical and substantive relations of various elements of his thought are not reflected either in the chronology of their formation or in the most popular perception of them. Therefore, each commentator creates his or her own order. In this chapter, psychological theory, . as a supplemental one but containing Petrazycki’s core understanding of the phenomenon of law, is presented before the issues of legal policy and the idea of social progress. Concerning the literature, the desire to make this chapter as helpful for the international reader as possible resulted in the citation of primarily . English-language publications on Petrazycki; references to Polish texts are made only when it is necessary to present an essential thought absent from English texts. Moreover, we are dealing with a thinker whose achievements are multi­ faceted and elude any divisions into scientific fields. Hence, due to the subject of . this volume, emphasis is on Petrazycki as a jurist, yet to a lesser extent he will also be shown here as, for example, one of the pioneers of sociology, which he is rightly considered to be.

The Russo-Polish Master Who Did Not Create a Proper School Depending on the language he used and the country he lived and worked in, the protagonist of this chapter was called (and called himself) Leo von Petrazycki, Lev . Petrazhitskii, or Leon Petrazycki; only Germans never laid claim to his legacy. In . the introduction to the English translation of Petrazycki’s works, his own student, the famous Russian-American jurist and sociologist Nicholas Timasheff, named his 10 The most recent example is a book edited by Tomasz Giaro, containing contributions from Polish, German, and Russian authors and published simultaneously in Polish and . . German: Leon Petrazycki i współczesna nauka prawa; Leo von Petrazycki und die Rechtswissenschaft der Gegenwart (Warsaw: Wolters Kluwer Polska, 2020).

160 J. Rudnicki teacher “the most eminent of the Russian legal philosophers of the early twentieth century,” of “Polish ancestry.”11 Such notions, quite common among Russian . authors, are of course at least partially legitimate, since Petrazycki worked in Russia, wrote in Russian, and took active part in Russian public life during two decades that turned out to be perhaps the most important in his career. Andrzej Walicki, a historian and philosopher who specialized in Polish and Russian ideol­ . ogies, underscores that Petrazycki is undoubtedly more important for Russian intellectual history than he is for Polish; nevertheless, he also points out that Polish . authors can easily make a long list of Petrazycki’s life choices that clearly show his Polish national identity and patriotic commitment12—a list that includes his acti­ vism in Polish organizations during World War I and, obviously, the choice to continue his career at the University of Warsaw. We should also bear in mind that in this era, when the Polish nation-state and national institutions simply did not exist (with some exceptions within Galicia, an autonomous part of the Austrian Empire), literally every Pole who wanted to pursue any kind of career other than political insurgency simply had to do it within institutions of the existing nation­ states—and we find countless examples of such Poles in the nineteenth century all around the world, from Russia, Austria, and France to the United States, Chile, . and Peru. As for Petrazycki, Walicki concludes that an expression used elsewhere by Timasheff—“the Russo-Polish master”—is probably the most appropriate one. On the other hand, Walicki claims to be the first author to stress certain Polishness . hidden in the very essence of Petrazycki’s ideas: . First, Petrazycki’s violent reaction to the “legal idiotism” of narrow legal positi­ vism was deeply rooted in Polish history. Poland has never passed through a period of royal absolutism; the notion of law as a simple command by a legally constituted executive power was completely alien to the Polish “democracy of the gentry.”… Non rex, sed lex regnat. It was the main tenet of the Polish legal consciousness, shared by the “active citizens” of independent Poland.… Sec­ . ondly … a characteristic feature of Petrazycki’s legal philosophy was his emphasis of “rights,” on the “attributive” function of law. He gave his approval to liti­ giousness, emphasizing that one’s right should be treated as a matter of honour, that it was natural for people with strong legal emotions rather to be ruined by litigation than to give up the demands they felt to be right. It may justly be said—indeed, it seems strange that this observation has not previously been made—that such a view of law reflected the traditional mentality of the Polish nobility, proud of their rights and always ready to defend them.13 Both arguments presented by Walicki are quite convincing. Let’s limit ourselves to one quite amusing example that supports the latter: traditional litigiousness of the . 11 Nicholas S. Timasheff, introduction to Petrazycki, Law and Morality, xxiv and xxxiii. 12 Andrzej Walicki, Legal Philosophies of Russian Liberalism (Oxford: Clarendon Press, 1987), 224–25. 13 Ibid., 225–26.

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Polish gentry is widely present in Polish culture, including the most important Polish national epic, Pan Tadeusz (Master Thaddeus), by Adam Mickiewicz, in which one of the protagonists explains the attitude of his family to resolving dis­ putes: “Pray understand that the Soplicas are not wont to be reconciled; when they summon a man to court they must win their case. Sometimes a suit has continued in their name until they won it in the sixth generation.”14 Timasheff’s effort to popularize the legacy of his late professor within the English-speaking academy is one of the best evidences, though certainly not the only . one, that Petrazycki was successful as a teacher. The attendance at his lectures in St. Petersburg and Warsaw and the admiration he enjoyed by the students are almost legendary. After his death, an association was founded in Warsaw to deal with editing the master’s manuscripts and translating his German and Russian . texts into Polish. However, even Timasheff admitted that Petrazycki attracted students with his style and courage to publicly and explicitly deny the dogmas of jurisprudence, but in fact his theories were not understood by many, or even sometimes not understood at all. Around the middle of the twentieth century, it . was pointed out that some aspects of Petrazycki’s thought were continued in the scientific activity by his student, the Harvard-based sociologist Pitirim A. Sorokin.15 Today, however, after subsequent decades, it should rather be said that in fact we have not really seen any proper continuation of the ideas of “the Russo-Polish master.” In other words, despite the creation of a completely new and intriguing theory of law, he failed to achieve what the year-younger Swede Axel Hägerström did16—creating his own school of legal thought. Kazimierz Opałek, one of the most important representatives of Polish theory of law in the second half of the twentieth century, offers a rather bitter explanation . of this intriguing fact. He describes Petrazycki’s attitude by saying that the master did not discuss how much he taught, instructed, felt the mission of solving everything alone and imposing ready-made solutions on others. He also filled his writings with arguments under the slogan “they all err,” insistently opposing his “truly scientific” theory to all other views described as “unscienti­ fic.” He accused the lawyers of not being aware of what they were doing and of what they are dealing with; that they were subject to the illusions of objectivity, of “emotional phantasms,” and that they represented “naive projections” of the approach to law. No wonder that under such conditions, emotional prejudices . against Petrazycki arose.17

14 Adam Mickiewicz, Pan Tadeusz, or The Last Foray in Lithuania, trans. George R. Noyes (London: J. M. Dent & Sons, 1917), 159. . 15 Dziewanowski, “Petrazycki,” 11. . 16 Some authors perceive a certain influence of Petrazycki on the Scandinavian school. See Podgórecki, Law and Society, 14. . 17 Kazimierz Opałek, “Teoria Petrazyckiego a współczesna teoria prawa,” in Z zagadnien´ . teorii prawa i teorii nauki Leona Petrazyckiego. Studia opracowane dla upamie˛tnienia

162 J. Rudnicki Probably everyone who has come across numerous examples of exceptional . malice, sharp irony, and polemical fervor in Petrazycki’s works must at least par­ tially agree with this statement. Opałek also aptly noted that many lawyers easily . got rid of the problem that Petrazycki posed for them by sweeping his achieve­ ments into other sciences, such as logic, philosophy, psychology, or sociology. . Petrazycki’s theory—he concluded—has been a fallow land for years, actually since the master’s own works were created. Apart from his critics—full of reluctance or moderate—he had uncritical admirers, but he did not have followers who would patiently and gradually equate his theory with the current state of science, leading to the necessary confrontations and corrections.18 Those words were published in 1969, and the passage of decades by no means has falsified them. . At this point, it is worth trying to answer the question why Petrazycki’s ideas turned out to be so irritating to lawyers, not only his contemporaries. Undoubt­ edly, despite the assimilation, after a fashion, of the achievements of various schools of jurisprudence fighting against legal positivism, positivism is still entren­ ched in the mentality of the lawyer of the continental tradition. As a result, Pet­ . razycki’s extremely antipositivist position seems to have retained all its power of shocking lawyers and throwing them out of their illusory comfort zone, which is made of positivist myths that “the Russo-Polish master” destroyed ferociously and mercilessly.

In Search of an “Adequate Theory of Law” . Petrazycki’s most famous invention—the psychological theory of law—is insepar­ able from his attempt to create a theory that would meet the criterion of ade­ . quacy. Tadeusz Kotarbin´ski19 underscores that Petrazycki’s focus on this problem was rather unique in modern philosophy. He describes this idea as follows: If we wish to make general statements which could be scientific in nature, then it does not suffice that what is predicated in a given statement be true about those objects about which the statement is made: such a statement ought to cover all those objects concerning which it is true.20

stulecia urodzin, ed. K. Opałek (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1969), 114. 18 Ibid., 120. 19 Tadeusz Kotarbin´ski (1886–1981), Polish philosopher, one of the most important representatives of the Lwów-Warsaw school. 20 Tadeusz Kotarbin´ski, “Chapter 2. The Concept of Adequate Theory,” in Sociology and . Jurisprudence of Leon Petrazycki, ed. Jan Gorecki (Urbana: University of Illinois Press, 1975), 12.

. Leon Petrazycki

163 . Petrazycki considered all the preexisting theories of law as not meeting this requirement (and—in fact—any other criteria necessary for scientific theories), mostly because they were trying to deal with the understanding of law derived not from empirical sciences, but from the professional habits of lawyers. He famously (and nastily) compares such efforts of legal theorists to those of a biologist who would try to scientifically define such concepts as “legumes” or “game,” created by professional cooks, but having nothing at all in common with any scientific method. All that lawyers usually define as “law” (statutes, precedents, etc.) Petra. zycki posited as mere phantasies. Therefore, he underscored the essential need of finding the law that existed in reality and concentrating an adequate legal theory around such a phenomenon. These assumptions led him to focus on the law . understood as the real psychological experience of an individual. For Petrazycki, the legal phenomenon is a state of mind; it does not presuppose the existence of political power or, indeed, any other form of social organization issuing com­ mands and backing them by force.21 According to this theory, morality also exists . only as a state of mind, and therefore Petrazycki distinguished between morality and law by describing legal experience and legal norms as two sided, imperative-attributive, and [underlining] a connotation between right and duty. In the case of moral experience a sense of duty is not accompanied by a belief that anyone is enti­ tled to have it fulfilled and due to this feature … he termed it (and moral norms) one-sided, unilaterally binding, purely imperative.22 . Nothing would better help to understand Petrazycki’s view of legal phenomena than his own description of the nature of property: Property is not a phenomenon of the external and objective world. Property is neither a bond between a person and a thing, nor the sum total of the pro­ hibitions issued by anyone in respect of anyone. It is a psychic, impulsiveintellectual phenomenon. It exists solely in the mind of one who attributes to himself or to another a right of property. He who ascribes to another a right of property considers himself (and others) bound to tolerate any relationship toward the thing (any influence brought to bear upon it, any use or abuse of it, uti et abuti) on the part of that other, and on his part to refrain from every sort of action with regard to the thing (without the permission of that other: the owner). Consciousness of these obligations is experienced in an impera­ tive-attributive manner: the use and the freedom from interference by others is experienced as something which is due and owing to the owner. One who ascribes to himself a right of property in a given estate, or other object, 21 Walicki, Legal Philosophies, 238–39. . 22 Krzysztof Motyka, “Law and Sociology: the Petrazyckian Perspective,” in Law and Sociology: Current Legal Issues, vol. 8, ed. M. Freeman (Oxford: Oxford University Press, 2005), 127.

164 J. Rudnicki considers others bound to tolerate any economic dealing therewith that he fancies and to refrain from interference (bound not to “step in”). He experi­ ences these psychic acts with attributive force: any dealing with the property which he pleases—and he alone, free from the interference of others—is due and owing to him, and others are bound to submit thereto.23 The scope of this chapter does not leave room to present further details of the psychological theory of law, including the numerous divisions of legal phenomena, . which Petrazycki proposed in the pages of his books; reference to the readily available literature cited here should suffice. Krzysztof Motyka indicated that for . Petrazycki, law is to be understood as every imperative-attributive experience and thus, under his so-called “projection point of view,” as each and every norm of such a two-sided structure. Having been freed from coercion, the state linkage, or any limitations with respect to the substance of respective rights and duties, in any of its interpretations (psychological, sociological or linguistic), it is a minimal definition of law, arguably the widest one ever proposed.24 Walicki, in slightly different words and using simple examples, underscored that the main and most “anti-positivistic” conclusion from his theory was that official law of all kinds embraced but a small fraction of the vast sphere of legal phenomena. Law is to be found everywhere. Bandits and other criminals have their own quite elaborate and scrupulously implemented laws.… Economic activity is always dependent on laws, whether officially recognized or not. Religious and family relations … are in fact deeply permeated by the legal, imperative-attributive consciousness: every family is a complicated legal system.… Law, therefore, has very little in common with the state and, also, cannot be defined by reference to coercion.25 . Needless to say, Petrazycki offered probably the most antipositivistic understanding of the phenomenon of law ever created, which quickly turned out to be both fasci­ nating and not immune to criticism—criticism offered not so much by the more and more clearly cornered defenders of the traditional, nineteenth-century jurisprudence, but by other representatives of realistic trends in the criticism of positivism. For a particularly convincing example, we can quote Karl Olivecrona: The ideas of rights and duties are certainly realities, and so are the powerful emotions connected with them. But the printed figures in books called codes . 23 Leon Petrazycki, Law and Morality, trans. H. W. Babb (London: Routledge, 2011), 124.

24 Motyka, “Law and Sociology,” 128.

25 Walicki, Legal Philosophies, 252–53.

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are also real things; this is, of course, also the case with legislative acts, with courts and prisons, etc. In a naturalistic explanation of the realities covered by the term law, all those facts and many others have their place; nothing at all is gained by singling out a specific group among them as the reality of law.26 Aleksander Peczenik, a jurist who can also be included in the Scandinavian school despite being a Pole, goes even further: . Petrazycki, who attacked everybody else for being unscientific, seems to be unscientific himself at the crucial point: there is no sure method to confirm his hypotheses in such a way that an objective observer would be forced to accept them. His theory, based on introspection, is the private theory of Leon Pet­ . razycki, reporting his own legal impulsions, which are not necessarily identical . with anybody else’s legal impulsions.… Petrazycki’s theory is like a brilliant piece of art: it can be understood, it may be admired, and—first and fore­ most—it helps us to understand the facts we know; but it cannot be proven true, and it cannot help us to discover new facts.27 This criticism can be at least partially countered by pointing to the notion that . Petrazycki’s understanding of law has gained new relevance today, in the face of problems caused by the deepening cultural pluralism of Western societies. Roger Cotterrell explains this by using an example of a deserted polygamous wife, whose claim against her treacherous husband cannot be recognized by the standards of any official system of law in Europe or North America, yet falls easily into Petra. zyckian (to use the neologism adjective) categories of intuitive law and even posi­ tive law, created by the “normative fact” of religious or customary reality.28 Of course the mere notion that a theory may become useful in practice does not mean that it will in fact find any practical relevance in reality. Nevertheless, such . ideas presented by Cotterrell and other authors who study Petrazycki today prove beyond any doubt that despite its perhaps excessive originality and radicalism, the psychological theory of law may still prove to be thought provoking.

Civil Law and Legal Policy “Psychological theory of law” is probably the first slogan that comes to mind for a . person who knows the name of Petrazycki. However, his “science of legal policy preceded, chronologically, his psychological theory of law: the latter was devel­ oped in order to provide legal policy with a solid theoretical foundation explaining law as a part of empirical reality, in terms of causal relations.”29 The science of 26 Karl Olivecrona, “Is a Sociological Explanation of Law Possible?,” Theoria 14, no. 2 (1948): 177–78. 27 Aleksander Peczenik, “Chapter 6. Leon Petrazycki and the Post-Realistic Jur­ isprudence,” in Gorecki, Sociology and Jurisprudence, 88–89.

. 28 Cotterrell, “Leon Petrazycki,” 10.

29 Walicki, Legal Philosophies, 263.

166 J. Rudnicki . legal policy was Petrazycki’s answer to what he considered nonsensical dogmatics of private law and the dominant, German idea of jurisprudence of interests (Interessenjurisprudenz), created and championed by Rudolf von Ihering. Cer­ . tainly, Petrazycki’s reactions to what the German jurisprudence considered its great achievements were not superficial. As a seminar student of the famous scholar of Roman law Heinrich Dernburg, and translator of the equally famous . handbook by Julius Baron, Petrazycki knew the pandectistic method of studying (and creating) private law very well. As a critical and inquisitive thinker, therefore, he was equipped with a full set of tools needed to point out the absurdities of the German doctrine of civil law and the shortcomings of its beloved child: the project of the Bürgerliches Gesetzbuch, the civil code of Germany. . First, Petrazycki attacked the civilist concept of fruits (Früchte), still used uncriti­ cally in the purely Roman sense of the biological benefits from an object of prop­ erty—a meaning that in the time of the Roman agricultural economy had an obvious justification, but in a capitalist context could only raise problems and force lawyers to conduct—nomen omen—fruitless deliberations. Tomasz Giaro comments: The polemic against the traditional theory of the real existence of a legal person as an organism was similar. Although this theory was introduced by . the famous Germanist Otto von Gierke (1841–1921), Petrazycki ridiculed it mercilessly. In his opinion, a legal person, which is, after all, only “a station in the process of movement and distribution of goods” or “mental warehouse, where goods separated by civil law may stay on their way to physical con­ sumers,” is an organism made of paper. A lawyer who deals with such pro­ blems in an organic spirit, that is, on the basis of an analogy between social organizations and plants, resembles an eccentric economist who would spend his time studying the colors, patterns and other external features of banknotes rather than analyzing their economic function of means of payment.30 . Confronted with Petrazycki’s sharp language, we must not forget that Gierke, who was so accurately attacked by him, was a great authority, while his critic was not yet thirty. Launching his offensive against the project of the civil code, the young new­ comer from Kyiv criticized its creators and the entire German pandectistic school for lack of sufficient scientific preparation to draft legal provisions. Responsibility for this state of affairs he placed primarily on Ihering, whom he accused of con­ firming, in his opinion, a highly harmful understanding of civil law only as a means of protecting private interests, giving any reflection on law a purely procedural . perspective. However, according to Petrazycki, this was the approach that meant that the jurists did not de facto deal with the law itself as a social and economic phenomenon, but only with its pathologies. He pointed out that

. 30 T. Giaro, “Petrazycki jako prekursor law & economics,” Studia Iuridica 74 (2018): 142.

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in the court proceedings we are dealing with exceptional, pathological phe­ nomena of legal life; legislation should take into account mainly the hygienic point of view in terms of economic, cultural, and aesthetic tasks. The proce­ dural standpoint, the standpoint of judicial practice, by its very nature, leads to various misunderstandings and legal and political errors.31 According to Giaro, . In this way, Petrazycki sought to change the centuries-old traditional approach to law that had been prevailing in continental Europe, which he . aptly described as a dogmatic-judicial approach. Petrazycki criticized it pri­ marily as completely inappropriate for considering legislative issues, known in Latin terms as issues of future law (de lege ferenda). In this respect, a lawyer must demonstrate a completely different type of rationality than a representa­ . tive of legal dogmatics or a judge. As Petrazycki metaphorically explained, since it is too late to put out a raging fire, you should focus on developing and implementing an effective fire protection system.32 . And for that—Petrazycki concludes—legislators must rely not only on their knowledge of legal texts but, most of all, on a broad and deep understanding of economic and social problems and on solid empirical data on how laws work in practice. By that he does not mean the courtroom but all possible, everyday legal relations. It is this set of necessary tools, without which lawmaking will never become a rational art, calculated to achieve specific social and economic results, . that Petrazycki calls the science of legal policy. . Legal historians may find it particularly interesting that Petrazycki underscores the role of Roman law in the formation of this science. Contrary to previous, countless generations of European jurists, he does not want to approach Roman law as the corpus of norms but as a priceless record of the application of intuitive . legal policy in practice. For Petrazycki, therefore, the history of law has a purely utilitarian function, and certainly not a monumental one, which, in his opinion, was established by pandectists. Of course, the historic data, however rich and undiscovered it may be, is not enough, and modern states and researchers should use their energies to create what in modern language could be called compre­ hensive databases on the application of law, legal problems, and their resolution. As Giaro accurately points out, such a program was rather utopian under the conditions of the time. It is worth adding that even today, when we theoretically have all the necessary technical tools at our disposal, we have not yet attempted to create a similar, comprehensive resource of empirical knowledge about law. This . 31 Leon Petrazycki, Prawo a sa˛ d, trans. Jan Sunderland (Warsaw: Towarzystwo im. . Leona Petrazyckiego, 1936), 7. Original text was published in Russian in 1900 and is . a summary of Petrazycki’s notions on a given subject formulated during his stay in Germany. . 32 Giaro, “Petrazycki,” 143.

168 J. Rudnicki allows us to conclude—perhaps in a slightly less scientific style—that for this . reason, among others, Petrazycki would probably not hesitate to level his sharp and malicious remarks at contemporary juristic authorities. Podgórecki indicates that . though Petrazycki returned to the idea of legal policy many times, he failed to elaborate its basic assumptions, propositions and methodological background. He believed that a proper elaboration of the foundations of this science was dependent on a revision of the methodological assumptions of various dis­ ciplines which he considered logically preceded legal policy.33 Jurisprudence of course was on a priority list of disciplines that needed such a . revision, and this notion resulted in what we have already seen as Petrazycki’s search for an adequate theory of law and the formation of his psychological approach to law. However, the science of legal policy was by no means supposed to be only art for art’s sake. It was designed to serve societies and individuals alike, first by rearranging private law to support not only private economic but also socioeconomic goals. Second, the ultimate objective of legal policy was to con­ tribute to achieving the universal goal: the ideal of universal, active, rational love.

“Relict of Millenarianism” . In Petrazycki’s own words, the supreme good that we should strive for in the field of politics in general and legal policy in particular is the moral development of man, the domina­ tion of high rational ethics among humanity, namely the ideal of love. The thesis that love is an ideal, the supreme good, is an axiom of practical reason and as such does not require proof and cannot be proved.34 He was not only dedicated to the propagation of this ideal in his academic and public work; he also strongly believed in social progress that leads to the ultimate fulfillment of the ideal of love. . Wacław Makowski underscored that Petrazycki’s vision of social progress is therefore completely opposite to these of many modern thinkers, especially Rous­ . seau; for Petrazycki, there is a gradual liberation of people from the influence of selfish emotions and the disappearance of fights between individuals. At the same time, altruistic tendencies and forms of peaceful coexistence develop.35 This development is possible thanks to two very powerful, interconnected factors that 33 Podgórecki, Law and Society, 241. . 34 Leon Petrazycki, Wste˛ p do nauki polityki prawa (Warsaw: Pan´stwowe Wydawnictwo . Naukowe, 1968), 25. Books authored by Petrazycki and published in Poland in the second half of the twentieth century are translations of his most important German and Russian texts. 35 Wacław Makowski, Pan´stwo społeczne (Warsaw: Biblioteka Drogi, 1930), 52–54.

. Leon Petrazycki 169 . shape human attitudes and behavior: law and morality. Petrazycki claims that evi­ dence of this process can be found throughout history. For instance: The history of the development of the legal consciousness and social life of European peoples provides us with numerous examples of such evolution. The sublime, purely imperative Christian ethics adopted by them was and is a rich source of material for shaping appropriate imperative-attributive rules of conduct. Many rules of conduct toward one’s neighbors, initially purely imperative principles resulting from the general assumptions of Christian morality, under the influence of the centuries-old cultural and educational process, gradually transformed into permanently crystallized forms of the imperative-attributive psyche, into the permanent capital of legal awareness.36 . Podgórecki names three general tendencies in legal development that Petrazycki refers to: a tendency toward increasing demands; a tendency to change the moti­ vational stimuli; and a tendency to diminish the motivational pressure toward legal behavior.37 Evolution of the liability for debts, starting with the famous passage from the Law of the Twelve Tables about cutting the debtor into pieces, then slowly but surely replaced by purely financial liability, can serve as an example of the third tendency, while the evolution of the crime of homicide illustrates the first, since people of the past were often legally allowed to kill their slaves or even . their own children, while in Petrazycki’s time the lives of all persons were legally . protected among civilized societies. Petrazycki connects such dots and, as a result, sees a picture of constant progress, at the end of which the ideal of active love will be realized thanks to the full socialization of not only individuals but also all social groups. What we should focus on now, if only because of the subject of this book, is the problem of the role of religion in this process of continuous progress, signaled by the notion of “sublime Christian ethics” seen in the passage quoted above. Petra. zycki does not stop at a single mention of this ethics, but broadly develops the theme of “great teachers.” The leading role in modern humanity, an enormous universal role, is played by morality, which refers to normative facts, to the statements of great tea­ chers of morality, having religious authority or the authority of great philoso­ phers and moralists, and which can be called the morality of teachers. A majestic example is Christian morality, which refers to the statements of Christ and his disciples. Then what plays a huge role in the world and has many millions of followers is Buddhist morality, referring to the teachings of Buddha, a philosopher who preached the insignificance of ordinary human affairs and was a spokesman for compassion and love for all creatures, . 36 Leon Petrazycki, Teoria prawa i pan´stwa w zwia˛ zku z teoria˛ moralnos´ci. Tom 1 (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1959), 204. 37 Podgórecki, Law and Society, 217–18.

170 J. Rudnicki including the simplest.… In the second row of names—after the two greatest already mentioned—the creators of positive morality for many millions of people, we can mention Muhammad (religious, moral, and legal teaching) and Confucius, the Chinese philosopher of morality.38 Nevertheless, the ideal of active love as a goal of irrevocable progress can hardly be seen as a Christian one. The ideal is, as quoted above, an “axiom of practical reason.” Thus, the simplest explanation of its origins points to the Enlight­ enment and its derivative faith in progress, achieved primarily through reason . and the application of the scientific method. However, Petrazycki, with his out­ right and clearly positive view of the role of religion, turns out again to be a real freethinker, especially in this context, in the literal, not ideological sense of the word. Walicki asks another accurate question about the connection between . Petrazycki’s vision and that of Marx and Engels, answering that there is a simi­ larity that should not be too easily dismissed. In both cases the vision of “withering away of law,” together with the idea of a final aim and end of history, was a relic of millenarianism—a thoroughly secularized millenarianism, to be sure, but mil­ . lenarianism nonetheless. [Petrazycki’s] vision of the final stage of the historical education of mankind resembled the millenarian “Kingdom of God on earth”—a state of eternal bliss, a reign of grace and love.39 . Walicki then tracks Petrazycki’s possible or alleged inspirations, going back to many authors, but focusing mostly on a clearly visible Polish trace, that is, Polish Romantics— especially the philosopher August Cieszkowski and the great Messianic poets, Mickiewicz, Słowacki, and Krasin´ski. One of the main ideas of all these thin­ kers was that Christ’s mission had been limited. He had influenced only rela­ tions between individuals, whereas the most important task of the future was to extend the reign of love to inter-group and international relations. This . idea was close to Petrazycki’s view of the limited character of Christ’s real achievement and that of other moral teachers of mankind. In view of the fact that every patriotic Polish family was steeped in the Polish Romantic tradition, and that postulated “ethicization of social and political relations” was central to this tradition, it might have been more appropriate to speak of a certain . “Polishness” of this particular aspect of Petrazycki’s historical and ethical 40 philosophy.

. 38 Leon Petrazycki, Teoria prawa i pan´stwa w zwia˛ zku z teoria˛ moralnos´ci. Tom 2 (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1960), 450.

39 Walicki, Legal Philosophies, 267–68.

40 Walicki, Legal Philosophies, 269.

. Leon Petrazycki

171 . So again, for Walicki, Petrazycki turns out to be a thinker deeply rooted in the Polish intellectual tradition, even though he himself had never expressly referred to such inspirations. . Yet another important question regarding Petrazycki’s intellectual path is whe­ ther his profound optimism was not tested by the historical events that he and his . generation witnessed or participated in. Attacking Ihering’s views, Petrazycki considered them to be a symptom of a “disease of the era,” the same as imperial­ ism or various “shameful victories” in wars waged by great powers. He despised “the worldview and direction of the nineteenth century, especially its second half, which will be characterized by the historians of the future as an embodiment of the lack of principles, selfish and heartless opportunism.” At the same time, he pointed out that this tendency is undoubtedly transitory, pointing to numerous social and academic examples of its rejection. Then came World War I and the . Bolshevik revolution, which must have shocked Petrazycki, but we have no way of finding out to what extent that turmoil verified his basic views; there are no traces of this in his much less numerous Polish writings.

Conclusion . Upon hearing of Petrazycki’s death, his old colleague from the University of St. Petersburg and collaborator in Russian politics, the Livonian Baron Alexander von Meyendorff, now an exile in London, wrote in an obituary: His labours were intense. His influence did not gain support from the direc­ tion which came to prevail in Polish affairs. The outlook seemed cloudy; the developments in the U.S.S.R. struck him more and more as disheartening, and the reactions in central and western Europe seemed to forebode grave difficulties. As his health gave way and his mind grew more and more depressed, he secured an hour of solitude and passed away.41 . As we know, what hides behind this beautiful euphemism is Petrazycki’s suicide: he shot himself in the head in his official flat in the faculty building that bears his name today. The reasons for this tragic step remain unclear. The popular percep­ tion seems to be dominated by the political interpretation, also suggested by Meyendorff, but this interpretation is not confirmed by the accounts of people . who were close to Petrazycki in the last years of his life.42 Yet what seems parti­ cularly important concerning the events surrounding his death is that—despite the manner of his passing—he had a Catholic funeral.43 Thus, beyond any doubt, he . 41 Alexander von Meyendorff, “L. I. Petrazycki,” The Slavonic and East European . Review 10, no. 28 (Jun. 1931): 186. Meyendorff unequivocally describes Petrazycki as a Pole. Perhaps, being a Baltic German himself, Meyendorff was sensitive to the excessive inclusiveness of the Russian tradition. 42 Walicki, Legal Philosophies, 224. . 43 “Pogrzeb s´. p. Leona Petrazyckiego,” Kurjer Warszawski, Year 111, no. 137, May 20, 1931, morning issue, 5.

172 J. Rudnicki never officially broke with the faith in which he was brought up. On his tomb­ stone in the Powa˛ zki Cemetery in Warsaw, under the cross, we read: “May the light of eternal truth, love, and law, which your brilliant spirit discovered by its source, serve you forever—Wife.” . As we have seen, Petrazycki’s theories and ideas were not—to put it mildly— entirely coherent with Christian orthodoxy. After all, every millenarianism is, according to the “Catechism of the Catholic Church,” a “falsification of the kingdom to come.” Nevertheless, contrary to so many modern thinkers, Petra. zycki was by no means “a personal enemy of God.” He clearly expressed his gen­ eral view of religion as an unequivocally and entirely positive factor in the history of humankind. Whether this is sufficient to recognize him as a Christian jurist is not easy to answer; however, it can be said with full justification that he was a legal theorist and social thinker who simply saw and emphasized the great importance of Christ and his disciples and regarded their teaching as a force that changes people and societies for the better. . Most of the authors who deal with Petrazycki’s legacy today try to face the question of which of his thoughts have retained (or ever had) real usefulness for a lawyer, lawmaker, or even a contemporary legal theorist.44 Instead of listing fur­ ther examples, it is worth focusing on one that may be the most distinct conclu­ sion: a notion that is often expressed by those who do not agree with his ideas. Stefan Rozmaryn, a communist constitutionalist, in a sense politically obliged to . contest the achievements of Petrazycki, wrote: . The assessment of Leon Petrazycki’s achievements in terms of the difficult problems he noticed confirms the known truth that often pointing to the existence of a problem has a value even greater than its correct solution. To this may be added that it is sometimes particularly important in science to make problematic what was previously considered indisputable and estab­ lished. And this was certainly what the creator of the psychological theory of law excelled in, who, after all, questioned almost all theses of his con­ temporary legal science.45 Aleksander Peczenik expressed a similar view in a more concise way: “Leon Pet­ . razycki had the courage to think for himself and to make his own mistakes.”46 For a contrast that may turn out to be apparent, let us return for a moment to . Baron Meyendorff, who used the example of Petrazycki to emphasize the differ­ ence between the political and intellectual realities of Romanov and Soviet Russia: . One aspect of Petrazycki’s life throws a new light on what is now held to have been the Russian ancien régime, a new light for those innumerable amateurs . 44 Cotterrell, “Leon Petrazycki”; Andrzej Kojder, “Legal Policy: The Contribution of . Leon Petrazycki,” Polish Sociological Review, no. 106 (1994): 155–63.

45 Stefan Rozmaryn, “Przedmowa,” in Opałek, Z zagadnien´ teorii prawa, 6.

46 Peczenik, “Leon Petrazycki,” 83.

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of things Russian who visualise prerevolutionary Russia as a penitentiary simi­ . lar to the present state of affairs. A Petrazycki could live, teach, and act where 47 none of his kind can breathe now. The contrast expressed by Meyendorff is a historical fact, but it is worth trying to . relate the conclusion of this statement to our times. Could a Petrazycki live, teach, and act today? Are there still any jurists of his peculiar kind, who passionately negate everything that they are being served as dogmas of contemporary jur­ isprudence, if only for the sake of forcing themselves and others to think? Or do . we perhaps still need Petrazycki to tell us, more than nine decades after his pas­ sing, that we all err?

. 47 Meyendorff, “L. I. Petrazycki,” 186.

11 Juliusz Makarewicz (1872–1955) Jan Rudnicki

Introduction Christianity constitutes a system of beliefs as well as moral principles and rules that remain mostly unchanged and untouched by the spirit of the age. Every Christian, however, lives in a specific place and time, and it is almost impossible for his or her ways of thinking and life attitudes to remain unaffected by ideological and political trends. As the history of law proves, law—especially the laws of modern times— has always been a sphere of human intellectual activities largely shaped by current ideas or fashions. Thus, probably every Christian jurist of the past few centuries has had to experience this tension between religious beliefs and the requirements of the profession. Juliusz Makarewicz was hardly an exception. A devout Roman Catholic, he studied, taught, and cocreated the law in a time when liberal axiology and faith in social progress were firmly embedded in the minds and activities of probably every lawyer in Continental Europe. Makarewicz, who lived in a difficult time of world wars, totalitarianism, and Polish struggles to regain and maintain national sovereignty, is still one of the more inter­ nationally renowned Polish legal scholars and an iconic figure for Polish legal culture and identity. Born in 1872 to the family of a successful railroad engineer, he had a rather typical background characteristic of the intelligentsia—this rather peculiar, Central and Eastern European surrogate of the middle class or even (especially in the case of nations that lacked their own, independent states) the state elite. He studied law at the Jagiellonian University in Kraków and completed his peregrinatio acade­ mica. After some perturbations, he found permanent employment at Jan Kazimierz University in Lwów. His scholarly work was widely known, not only in Europe but also on the other side of the Atlantic, where he received international honorary membership in the American Academy of Arts and Sciences. He not only witnessed the political turbulences of his age but also took part in them, by engaging in Polish parliamentarian politics and efforts to unify and codify the law of the reborn nation state. Any earnest Polish student of law should respond to the term Lex Makarewicz by indicating the penal code of 1932,1 universally considered one of the finest pieces 1 Regulation of the President of the Republic of July 11, 1932—the Penal Code (Journal of Laws of 1932, Nr. 60, position 571).

DOI: 10.4324/9781003181255-12

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of legislation ever created by Polish jurists. Since Makarewicz’s passing in his beloved home city of Lwów—then part of the Soviet Union—his life and work have never ceased being a specific topic of interest for Polish legal historians, theoreticians, and criminal lawyer. This interest has appeared to increase in the first decades of the twenty-first century. Although much has been said and written about Makarewicz, it is still worth considering him as an example of the Christian jurist wrestling with the tension between religious faith and professional commitments. This chapter is there­ fore conceptualized around this specific tension between Catholic beliefs and the legal spirit of the age, visible in the very character and public activity of Juliusz Makarewicz, a professor at the University of Lwów and a famous criminal lawyer, codifier, and Christian democratic politician.

Legal Philosopher: Christian Background against Sociological Determinism Makarewicz declared his most basic thoughts about jurisprudence very early in his career, in an article published in Lwów’s legal journal in 1905. He pointed out that four principal methods and trends in legal scholarship fight for supremacy: Having gone beyond the battlefield, we shall see the importance of all that is trending. Historical method is perfect for understanding contemporary law and practical interpretation, while comparative method is better for deeper, scientific understanding than for the immediate needs of practical use. Positivistic method is necessary for scientific study of applicable law; it tea­ ches accuracy in legal reasoning, caution in defining, and the necessity of uniform definitions for the comprehensiveness of various disciplines; for legislative technique, theoretical lectures, or the construction of legislative edifices it is inestimable. And the natural law? I leave that for last, since according to the popular view it rests in eternal sleep and belongs to legal antiquities. But this is not so, and not just because great contemporary minds take up its method and goals, but also because they create new theories and correct and renew the old ones. In any case, let’s ask a priori—have all of these hundreds of most illustrious minds working in this soil over the past twenty centuries only wasted their time for some tedious, yet pointless work? Not at all!2 A year later he published his most famous and still relevant work: the monograph Einfürung in die Philosophie des Strafrechts (Introduction to the philosophy of criminal law on the basis of developmental history),3 in which he faithfully

. 2 Juliusz Makarewicz, “Nowozytne zadania filozofii prawa,” Przegla˛d Prawa i Administracji

30 (1905): 187–88. All Polish texts quoted in this chapter were translated by the author.

3 Juliusz Makarewicz, Einfürung in die Philosophie des Strafrechts auf entwicklungs­ geschichtlicher Grundlage (Stuttgart: Verlag von Ferdinand Enke, 1906).

176 J. Rudnicki followed his previously defined own direction. As Władysław Wolter, the famous Polish criminal lawyer of the second half of the twentieth century underscored, Makarewicz’s credo cannot, therefore, appear as a pure conglomerate of all four directions because of their negative features, which are at least con­ secutive properties of their essence, nor can it be a syncretism of these direc­ tions due to the lack of a common nucleus. That is why it creates a specific concept.… He advocates the natural law, but as a law that arises and manifests itself in evolution. Conceptually, it is some natural law sui generis, dynamically developing and progressing towards the ideal, proper shaping as a result of getting to know the universal-historical development of legal institutions.4 This focus on “natural law sui generis” clearly distinguishes Makarewicz from most other criminal lawyers of his time. The first decades of the twentieth century were dominated by the sociological school, of which perhaps the most important representative was Franz von Liszt. Makarewicz himself came under the influence of the sociological way of under­ standing crime and criminal justice. He took part in von Liszt’s seminar in 1894,5 yet this fact should not prompt a superficial classification of Makarewicz into this school. In simple terms, one can say that the sociological school favored a deter­ ministic perception of crime. Makarewicz, however, could not accept such an assumption because of his Catholic formation and faith. Marek Wa˛ sowicz points out that, as a Catholic, Makarewicz was inclined to believe that crime resulted from the loss of man’s ability to control his behavior. A normal person, having an instrument of free will, can successfully avoid the temptations lurking in everyday life. A criminal is a man who has lost this instrument. There may be various reasons for this; Makarewicz lists a whole set of them, from heredity to social conditions. That is why he emphasizes the role of education in human life so much. He sees upbringing as a means of strengthening human free will, making it resistant to various dangers. Man is evil by nature, Makarewicz believes, and his evil inclinations become apparent when he loses control over himself. Free will is that element of control. With this understanding of the free will/determinism relationship, the contradiction between them does lose its dramatic expression. There is no opposition here, but both principles complement each other.6 . 4 Władysław Wolter, “O załozeniach filozoficznych pogla˛ dów Juliusza Makarewicza,” ´ Panstwo i Prawo, no. 2 (1966): 233. . 5 Adam Redzik, “Profesor Juliusz Makarewicz—zycie i dzieło,” in Prawo karne w pogla˛ dach Profesora Juliusza Makarewicza, ed. Alicja Grzes´kowiak (Lublin: Wydaw­ nictwo KUL 2005), 26–28. 6 Marek Wa˛ sowicz, Nurt socjologiczny w polskiej mys´li prawnokarnej (Warsaw: Wydaw­ nictwo UW, 1989), 91.

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In other words, not only free will but also original sin are clearly present in Makarewicz’s concepts, although most often hidden under more “neutral”-sounding terms.

Codifier of Law: Multidisciplinary Approach Based on clearly Christian assumptions, however, Makarewicz notices the evolu­ tionary development of law and social institutions, basically approving of their direction up to his day. Morover, he saw the historical development of criminal law as a constant progress. Focusing on this evolution, “he considered the essence and future of legal institutions on the basis of a very in-depth study of the devel­ opment of a given institution (or complex [of institutions]) against the back­ ground of changing social conditions in which this institution was to function.”7 This approach required the use of various scientific methods, and Makarewicz was always up to date with achievements in anthropology, ethnology, history, natural sciences, and, of course, philosophy and sociology. He combined these threads not only in his monographs and papers but also in his teaching. His success in this is glaringly and happily obvious for any reader who is used to modern, rather dry and provisions-oriented textbooks on penal law and other dogmatic fields. The reader may pick up both editions of Makarewicz’s textbook8 and find all institu­ tions and principles presented in a rich, multidisciplinary context. If we add to this method his undoubted oratorical talent, it is not surprising that his lectures in Lwów enjoyed great popularity, regardless of whether he was still a young employee of an Austrian university before 1918, a famous member of the academy in independent Poland, or, finally, an old professor still teaching future lawyers, though now with Soviet careers. This erudition and multidisciplinary approach also had a crucial impact on his work as a codifier. The Polish nation-state that emerged from the almost simulta­ neous collapse of all the regional empires during World War I inherited their legal systems. At the dawn of Polish independence, Makarewicz published the results of his historical study of the criminal law of the old Polish republic,9 beginning with a dedication containing the motto of Lwów: Patriae renascenti, ex Urbe Semper Fideli, hommagium (An homage to the reviving Fatherland, from the city that is always true). Of course, he did not treat this work as a seed of criminal law for the future, as this would have contradicted his vision of progress in law and also would have been completely unrealistic. After more than a century of partitions and the 7 Jan Skupin´ski, “Juliusz Makarewicz o teoriach kary i jej wymiarze,” in Karnopolityczne koncepcje Profesora Juliusza Makarewicza—wczoraj i dzis´ (w 50. rocznice˛ ´smierci), ed. Ireneusz Nowikowski and Paweł Strzelec (Lublin: Wydawnictwo “Morpol,” 2006), 46. 8 Juliusz Makarewicz, Prawo karne ogólne (Kraków: Leon Frommer, Drukarnia Uniwersytetu Jagiellon´skiego, 1914); Juliusz Makarewicz, Prawo karne. Wykład porównawczy z uwzgle˛ dnieniem prawa obowia˛ zuja˛ cego w Rzeczypospolitej Polskiej . (Lwów; Warsaw: Ksia˛ znica Polska, 1924). . 9 Juliusz Makarewicz, Polskie prawo karne. Cze˛ ´sc´ ogólna (Lwów; Warsaw: Ksia˛ znica Polska, 1918).

178 J. Rudnicki imposition of the legal systems of Austria, Prussia, and Russia (as well as Napo­ leonic France), the old Polish legal tradition was long gone, and the process of unification of national law required most of all the use of comparative method. The first parliament of independent Poland, which acted also as a constituent assembly, established a Codification Commission in June 1919. In two depart­ ments—of civil law and of criminal law—the commission gathered representatives of the legal academic world as well as legal practitioners. Makarewicz was a member of the commission from the very beginning and quickly gained a domi­ nant position in the Department of Criminal Law. When it comes to the organizational level, it should be noted that Makarewicz was in charge of the work of the commission in terms of both content and legislative technique.… In the second phase, when the preparation of the code clearly assumed political significance, Wacław Makowski, closely associated with government circles, came to the fore. Makarewicz surpassed the others not only with his breadth of horizon (here only Makowski could compete with him), but most of all with the coherence of his views, which formed the scientific system, and with great knowledge.… Historical and ethnographic knowledge and broad social interests, revealed in numerous publications on this subject, allowed him to stay in touch with reality, that is, with the specific conditions in which the future code was to function. He considered all ideal constructions harmful; he was generally restrained in everything he did. Finally, Makarewicz’s contribution to the language of the code and the construction of its formulas deserves special attention. In this respect, the role of Makarewicz was enormous.10 Using his position and authority on the commission, Makarewicz made the code largely reflect his conviction that when making law, one must take into account the current cultural conditions in such a way as not to make sudden jumps that could lead to disharmony between the prevailing relations and what they should be according to the order of the law being created. Thus, he declares himself to be an opponent of revolutionizing the law, [but rather] a supporter of evolutionism, taking into account as far as pos­ sible—if not opposed to the current needs of the social system—further progress emerging from the history of law. He was a realist, but not a conservative.11 For example, caution and consideration of the social context prompted Makarewicz to opt for adding Article 172, which stated that “whoever blasphemes God in public 10 Wa˛ sowicz, Nurt socjologiczny, 221–23. Wacław Makowski (1880–1942) was a pro­ fessor at the University of Warsaw, a criminal lawyer, political thinker, and politician closely associated with the authoritarian regime of Józef Piłsudski, and coauthor of the Criminal Code of 1932 and the Constitution of 1935. . 11 Wolter, “O załozeniach,” 232–33.

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is punishable by imprisonment of up to five years.” We should note that it was not because he was a Christian that he supported such a provision; to the contrary, he actually opposed it as a backward expression of a bygone era. As a realist, however, he was very well aware that his own progressive point of view was not shared by the majority of the Polish citizens, regardless of their faith.

Commentator of the Code: Predominance of the Literary Interpretation Knowing Makarewicz as a comprehensive scholar, popular lecturer, and erudite codifier, it is worth considering how he approached the issue of interpretation and practical application of the provisions of the penal law, of which he was the main creator. One can begin with a general remark that relates to the present day. In the countries of the Continental legal tradition, you can meet lawyers who often are engaged at literally every stage of the creation and use of the law in the branch of law in which they specialize. They sit on committees shaping changes in reg­ ulations, then adjudicate these regulations as judges of the highest instance, and teach students about them as university professors. Finally, they edit textbooks and commentaries on provisions they themselves drafted, describing the views of jur­ isprudence arising from their own judgments. In their persons, not only are the separate roles of legislator, judge, and legal doctrinist blurred, but so, in a sense, is the distinction between the legislature and the judiciary. Juliusz Makarewicz did not represent this kind of omnipotent lawyer. First, after becoming a professor in 1904, he never sat on a court and made judgments under either the Code of 1932 or any other law. Second, although he did write and comment on criminal law and referred in his texts to its interpretation by the courts, he maintained admirable consistency and intellectual honesty. For one thing, Makarewicz thought about codification of law in a rather tradi­ tional way, characteristic for the period in European legal history that began during the Enlightenment. Ten years before the new criminal code was enacted, he wrote in the introduction to the preliminary draft: Although the criminal code is considered to be a magna carta for the crim­ inal, this law is intended primarily for judges. The law should speak to the judge in a plain and clear language, and the judge must understand it and agree with its concepts. Yes, where you need comments, scholarly disserta­ tions, judgments of the Supreme Court, ministerial ordinances in order to properly introduce the provisions of the act, there is clearly a defect in the codification.12 Like most lawyers of his era, he believed in the possibility of creating a complete, consistent, and simple code. From our perspective, we can of course say that he 12 Juliusz Makarewicz, “Ustawa Karna (cze˛ s´c´ ogólna). Projekt wste˛ pny,” Przegla˛ d Prawa i Administracji, nos. 4–6 (1922): 2.

180 J. Rudnicki was definitely wrong about this, but it would be difficult to blame him and any of the lawyers of his time; suffice it to say that the conviction about the relevance of this very traditional idea of codification is still alive in the common, though somewhat superficial, legal thinking of our day, even after all the experiences of the twentieth and twenty-first centuries. Makarewicz’s view of legal interpretation conforms to his idea of the code and can be described as at least partially positivistic. Having encountered the accusa­ tion that his commentary on the penal code presented a different view on the essence of a certain institution of criminal law than his own textbook, he replied unequivocally that “a commentator should not force his own views into the law, contrary to the spirit of this law.”13 This general reflection would require more detail and reference to the problem of a possible conflict between the wording of the law and the prescriptions of the Christian faith; unfortunately, Makarewicz nowhere referred directly to this conflict. This could be because modern criminal law, which he considered to be a product of historical progress, does not appear at any key point to contradict Christian values. In any event, in his writings he repeatedly criticized the Polish Supreme Court for deviating from a literal inter­ pretation of the text of the penal law.14 It would be difficult to conclude, how­ ever, that he completely rejected other methods of interpretation than the literal one. As Wolter aptly pointed out, according to Makarewicz, the interpretation of the law should not be limited to linguistic directives, traditionally referred to by him as grammatical … but should also take into account the philosophical directive, which is to determine what position each institution should take over the course of the centuries and emphasize the ideal shape of a given institution, indicated by its historical development. But still with the proviso that this legal and philosophical directive, let’s say an evolutionary one, cannot exaggerate the barrier in the form of an unambig­ uous statement of the wording of the law. In other words, Makarewicz is revealed to us as a defender of—I think I can say—the formal rule of law.15

Representative of Polish Intelligentsia: Christian Democracy and Progress Makarewicz’s public activities were not limited to his work on the Codification Commission and academic career. He was also an active member of the Christian Democratic Party and served as a senator for two consecutive terms. Polish Christian democracy originated and maintained its voting base in the western regions of Silesia, Pomerania, and Greater Poland that used to be provinces of Prussia. The party’s popularity was undoubtedly accelerated by the Prussian 13 Juliusz Makarewicz, Kodeks karny z komentarzem, 2nd ed. (Lwów: Wydawnictwo Zakładu Narodowego im. Ossolin´skich, 1935), 166. 14 Nowikowski and Strzelec, Karnopolityczne koncepcje, 69. . 15 Wolter, “O załozeniach,” 234.

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Kulturkampf policy against the Catholic Church as well as attempts to Germanize these lands. In the reborn republic, the Polish political scene contained a plethora of parties of various ideological origins. The biggest success for the Christian Democrats came in 1922, when they formed a single slate of candidates with national democratic party, winning the parliamentary election and forming a coa­ lition government together with a peasant party. After much political turbulence, this coalition was ended by the bloody coup d’état of Marshal Józef Piłsudski in 1926, which started the transition of the Second Republic from a parliamentary democracy into an authoritarian state with a leading political role of the military. This transition resulted in gradual relegation of all traditional political parties to the role of parliamentary and extra-parliamentary opposition. Although he was brought up and lived all his life in Galicia, the “Austrian” part of Polish lands, far from the main sphere of influence of Polish Christian Demo­ crats, Makarewicz joined this party not only because of his religious beliefs but also because of the direct influence of Józef Bilczewski, the archbishop of Lwów (declared a saint of the Catholic Church in 2005). Bilczewski was one of the main propagators of the new social teaching of the Catholic Church, initiated by Leo XIII in his famous encyclical Rerum novarum. Makarewicz followed this path and even authored a brochure about the church’s stance on the “workers’ issue,” published by the party before the parliamentary election of 1928. In this short but relevant work, we read: Do we have a choice only between a capitalist system that cynically exploits labor, and a socialist system that takes away freedom, initiative, and creativity? Yes, we do; this solution is given by the church, given not from yesterday, [but] given for centuries, because the beginnings and foundations are to be found in the Gospel. The church’s position is to maintain private property. But understood differently than by Roman law and modern capitalism, it is not ius utendi et abutendi, the right to use and abuse. Ownership—according to the church—is only stewardship with goods that Providence has placed in our hands.… Property imposes the obligations of continuous work to main­ tain and multiply goods, because it is for the general benefit, and at the same time it imposes the obligation of social solidarity, manifested either by benefits for the whole of society or by acts of charity.16 This short passage is enough to prove that Makarewicz simply presents the main notions and political proposals of Christian democracy. The sticky legal historian will of course note that connecting the capitalist understanding of property directly with Roman law is far too simplistic, but it is hard to blame Makarewicz for it, given the nature of the text quoted. Makarewicz gives his literary talent to party propaganda, while having the comfort of writing things with which he fully and deeply agrees. 16 Juliusz Makarewicz, Sprawa robotnicza (Tarnopol: Wydawnictwo “Głosu Pracy”: nakł. Okr. Biura Wyb. B. B. W. z Rz., 1928), 7–8.

182 J. Rudnicki However, we should ask ourselves how much Makarewicz really was a demo­ crat, not only in the Christian sense, but also in the general sense of the word? As already mentioned, he was born and brought up in a typical intelligentsia family, and that fact significantly shaped his attitudes and worldview on social issues. Undoubtedly, he inherited the entire ethos of the intelligentsia in this way, with all its advantages and disadvantages. The intelligentsia emerged as a class in Poland during the partitions, filling the social and political gap created by the lack of sta­ tehood and normal political elites that a modern nation-state needs and creates. It inherited many traits of the old Polish nobility and developed an ethos of working for the society and leading other classes in the struggle for social, economic, and, finally, national emancipation. As a consequence, the Polish intelligentsia became convinced of its own significant historical role and the obligation to be the elite of the enslaved nation, and then of the independent state. Within this vision, the common people are the ones to be educated by the intelligentsia and led by it toward social progress. Such a view was, as a rule, shared by intellectuals of all ideological origins, including socialists, nationalists, and Christian democrats. As indicated earlier, for example, in the case of a provision criminalizing blas­ phemy, Makarewicz was a realist, ready to restrain his tendency to reform the people in a progressive spirit, for fear of throwing out the baby with the bath­ water. Nevertheless, he repeatedly expressed his skepticism toward the feelings and views of ordinary people, sometimes even employing a popular and not particu­ larly kind expression like, “if we followed the voice of the people too much, we would still burn witches at the stake.” When considering the proper form of gov­ ernment for Poland, Makarewicz expressed a little involuntarily the contradiction between his progressive tendencies and his sober political realism, indicating first that monarchies are, generally speaking, on a lower level of development than republics, but later indicating in an almost Machiavellian manner that the names given to particular forms of political system are irrelevant, and the focus should be placed on their content.17 He saw the further democratization of political life as inevitable, but at the same time thought it posed a threat in the attainment of public functions by unprepared people. Therefore, he underscored—of course— the role of the intelligentsia in creating elites and leading other social strata.18 During the then-famous disputes over the methods of educating lawyers, he emphasized above all that the role of legal studies is most of all to provide the new state with the officials it so badly needs.19 In light of the above, we have every right to ask how Makarewicz himself ful­ filled his own mission as a representative of the Polish intelligentsia. We already . 17 Juliusz Makarewicz, Monarchia czy republika (Warsaw: Dom Ksia˛ zki Polskiej, 1926), 13. 18 Marek Wa˛ sowicz, “Pogla˛ dy Juliusza Makarewicza na niektóre problemy społeczno­ ustrojowe II Rzeczypospolitej,” Czasopismo Prawno-Historyczne 35, no. 2 (1983): 97–109. 19 Grzegorz M. Kowalski, “O miejsce historii prawa w programie studiów uniwersyteckich. Polemika mie˛ dzy Oswaldem Balzerem a Juliuszem Makarewiczem (1919–1923),” Czasopismo Prawno-Historyczne 56, no. 2 (2004): 345–62.

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know that his role in the drafting of the Criminal Code of 1932 was more than considerable, and that the final product was indeed a piece of legislation of rare quality that shaped Polish criminal justice for decades to come. He had a sig­ nificant role in educating the next generations of lawyers. Significantly, his lectures were attended by Hersch Lauterpacht, later a judge at the International Court of Justice, while Raphael Lemkin, who coined the term “genocide,” was his seminarian, involved in scholarly work under the supervision of the professor.20 Makarewicz never played a major role as a politician. In the most extensive monograph on the history of the Polish Christian Democrats in the interwar period, his name appears several times, but he was not a figure significant enough for the author to include his biography or a description of his individual political views.21 It is worth emphasizing, however, that his political career in the Christian Democrats ended quite spectacularly. In 1929 the Department of Civil Law of the Codification Commission presented a draft of unified family law, the main author of which was Karol Lutostan´ski, a professor at the Uni­ versity of Warsaw.22 The project was very controversial because of the introduction of the universal possibility of divorce, available for all people, regardless of their faith. The party expected Makarewicz to vote against this project at the plenary meeting of the commission, yet he eventually abstained. This became the official reason for his exclusion from the ranks of the Christian Democratic Party. However, a broader context was also pointed out—namely, the courtship of some activists (including Makarewicz) toward the authoritarian government, to which the Christian Democrats consistently remained in staunch opposition. Perhaps Makarewicz really envied his colleague from the commission, Wacław Makowski, who was connected with the government and had a decisive influence on the eventual shape of legal regulations, but we do not have any clear evidence of this. On the contrary, Makarewicz did not hesitate to publicly criticize some of the ideas and policies of the authoritarian gov­ ernment, including the drafts of the new constitution, finally adopted in 1935.23 In particular, he referred to the famous provision of that constitution, according to which the President is “responsible to God and history for the fate of the State.” Makarewicz did not often refer openly to his own faith in his legal texts, but this time he did it very clearly, indicating that “responsibility to God is not a unique privilege of the president of the Republic of Poland, it is universal; this is what religion teaches us.”

In the Shadow of Two Totalitarianisms Polish political and legal disputes of the interwar period, in which Makarewicz had a considerable share, were largely made obsolete by what came from the outside. 20 Raphael Lemkin coauthored a translation of the Soviet criminal code, published with an introduction by Makarewicz: Kodeks karny republik sowjeckich, trans. Raphael Lemkin and Tadeusz Kochanowicz (Warsaw: Ksie˛ garnia F. Hoesicka, 1927). . . 21 Bozena Krzywobłocka, Chadecja 1918–1937 (Warsaw: Ksia˛ zka i Wiedza, 1974). 22 Karol Lutostan´ski (1880–1939), professor of civil law and dean of the Faculty of Law and Administration of the University of Warsaw. He died from a wound sustained during a German air raid in September 1939. 23 Juliusz Makarewicz, Kodyfikacja Konstytucji (Lwów, 1934).

184 J. Rudnicki It can be said that contemporary Poles probably cannot look at the history, problems, and achievements of their own Second Republic without envisioning the doom inevitably hanging over the Republic and its citizens and elites. In the 1920s and 1930s, the growth of two totalitarian regimes just across the eastern and western borders of Poland was of course not overlooked by Polish politicians and intellectuals. Lawyers were hardly an exception, and since we know Makarewicz as an ever-seeking erudite and persistent comparatist, it would be difficult to imagine that he would not be interested in what the USSR and the Third Reich had to say about the realm of criminal law. Indeed, he devoted a great deal of his scholarly attention to this new phenomenon. After studying Soviet penal law, he was not particularly sparse in words. He considered that the general clause of the “socialist legal sense” “indicates that we are dealing with a penal code of a political, revolutionary nature, that the legislator’s attention is focused on exterminating people with a social and legal opinion opposite to the prevailing one.” He also wrote that the introduction of the principle of analogy “corresponds to any tyranny carried out in the name of any interests; it is a complete denial of the freedom and peace of the citizen.”24 As might be expected, he assessed the Nazi criminal law no differently. Introduction of a general clause for criminalizing an act, when it is required by the basic idea of the penal law and a healthy sense of the nation (Volksempfinden), Makarewicz defines as an obvious violation of the nullum crimen sine lege principle and expresses his amazement that this is being done in a country brought up on the philosophy of Kant and Hegel.25 One can imagine that for Makarewicz, who himself studied in Germany and pub­ lished his most important philosophical and legal work in Goethe’s language, the intellectual confrontation with the legislation of the Third Reich must have been a particularly unpleasant experience. In addition, in both his day and ours, it is true that the science of substantive criminal law is so closely related to the achievements of German dogmatics of the nineteenth and twentieth centuries that conducting research in this area is practically impossible without knowledge of the literature published in German.… German dogmatics and the German language constitute the basic point of reference for criminal lawyer, and entering the scientific circu­ lation in this circle, as a rule, means obtaining international status.26 Nevertheless, Makarewicz opposed the infiltration of the Polish doctrine by German thought, pointing out that it threatened the integrity of the concepts 24 Mariusz Mohyluk, “Echa radzieckiego ustawodawstwa karnego w pis´miennictwie prawniczym II Rzeczypospolitej,” Miscellanea Historico-Iuridica 1, no. 4 (2006): 94. 25 Józef Koredczuk, “Pogla˛ dy Juliusza Makarewicza na zmiany w prawie karnym nie­ mieckim po 1933 r.,” Studia nad Faszyzmem i Zbrodniami Hitlerowskimi 28 (2005): 383. 26 Piotr Kardas, “Juliusza Makarewicza filozofia prawa karnego a podstawowe zasady odpowiedzialnos´ci karnej we współczesnym prawie karnym,” in Dziedzictwo prawne XX wieku. Ksie˛ga pamia˛ tkowa z okazji 150-lecia TBSP UJ (Kraków: Kantor Wydaw­ niczy Zakamycze, 2001), 512.

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27

adopted in Polish criminal law. Changes in German law after 1933 only strength­ ened his conviction. When reading Makarewicz’s reflections on Nazi and Soviet law, it is difficult to break free from a certain ambivalence. On one hand, his observations and theses cannot be denied; as usual, they are accurate, precise, and well argued. On the other hand, however, the prospect of the enormity of the crimes committed by both totalitarianisms, completely irrespective of what was written in their laws and adjudicated by their courts, prompts us to consider the very sense of legal delib­ eration of the principles of analogy in criminal law as a step backwards, or to consider invoking Kant or Hegel as a rhetorical figure. Of course, one can defend such deliberations by pointing out that their authors were not always able to look from the perspective that we have today. In the 1930s, however, the existence of the “gulag archipelago” and the Dachau camp was no secret, and Makarewicz himself called the statutory justifications of the Night of the Long Knives “primi­ tive lawlessness.” This statement is as true as it is obvious, and it is hard to resist the impression that intellectual formation of lawyers often results in their reacting in this way to reality that does not meet the accepted standards, somewhat detached from the essence of the problem. Makarewicz himself came out of his confrontations with both totalitarian regimes relatively fortunately, especially if we compare him with many other Polish intellectuals: victims of ghettos, concentration camps, deportations to the Soviet “inhuman land,” and deliberate extermination. In July 1941, just after entering Lwów at the beginning of Operation Barbarossa, Germany’s invasion of the Soviet Union, German special police arrested and murdered more than forty of Lwów’s professors and members of their families. Kazimierz Bartel, professor of geometry and five-time prime minister of Poland, and Roman Longchamps de Bérier, Makarewicz’s colleague, professor, and codifier of civil law,28 were among the victims. It is difficult to say why Makarewicz himself was spared. Dieter Schenk, a criminologist and researcher of German war crimes, claims that the entire criminal operation was hurried, and the list of victims was prepared negligently.29 Such a simple explanation seems accurate enough. When the Soviets finally occupied Lwów in 1944, new repressions did not omit Makarewicz. Named by the NKVD as “former senator of the Polish Government, former millionaire, belonging to reactionary Catholic party, germanophile,” he was arrested and imprisoned for several months. When he was allowed to return to Lwów, he applied to work at the university, which now bears the name of the great Ukrainian poet and political writer Ivan Franko. Thus, he made a decision not to leave his city, despite the fact that it was, after all, within the borders of the USSR. This attitude distinguishes him from most of the surviving representatives of the Polish elite of Lwów, who chose rather to migrate to Poland, in particular to Wrocław, where the university was created mainly by the staff coming from the 27 Koredczuk, “Pogla˛ dy,” 393. 28 See Chapter 12 in this volume. 29 Dieter Schenk, Der Lemberger Professorenmord und der Holocaust in Ostgalizien (Bonn: J. H. Dietz, 2007), 114–15.

186 J. Rudnicki Lwów academy. Meanwhile, Makarewicz was already an elderly man, and in Lwów he had lived in his own beautiful villa for almost forty years and enjoyed his collection of books, which the Soviet authorities did not take from him. Probably the reason for his decision to stay in his beloved city is best described by the Polish saying that old trees should not be replanted; although it has no English equiva­ lent, its meaning in this context is sufficiently clear. After Makarewicz’s passing, in 1955, some communist authors tried to prove that in his final years, he became “a soviet scholar,” but there are no specific arguments that could support that thesis. While working at the Soviet university, he published only one paper, about English criminal law, and focused mainly on his duties as a lecturer. The only subject he taught was “criminal law of bourgeois states,” which he chose to present only in a descriptive, and not a comparative, manner. This maneuver allowed him to avoid the need to prove the superiority of Soviet criminal law over concepts with which he had agreed all his life, and which he himself actively cocreated.30

Conclusion We can probably assume that Juliusz Makarewicz was a fulfilled lawyer, or at least we can be rather sure that his descendants consider him so; after all, he was a scholar who managed to exert a lasting influence on the art of jurisprudence, as well as on legisla­ tive solutions, even despite the drastic changes brought by communism to the realm of Polish law. Undoubtedly, he was to a large extent a typical jurist of his time, shaped by modern ideological trends and a specific ethos of the intelligentsia of his native Poland. Regardless of this, however, he always remained a Christian, which can be seen above all in his philosophy of law, where unambiguously Christian concepts win over socio­ logical determinism. Nevertheless, the spirit of the times in which Makarewicz lived and worked did not allow him to admit too openly his Christian inspiration in building legal concepts; but he definitely did not dissociate himself from religion in his political writing and public activities. In a sense, for most of his life he was lucky not to experience with too much intensity the contradiction between the requirements of his faith and the ideological fashions influencing law, which is often the case of Christian lawyers in the contemporary West. Such an obvious contradiction happened to him only in his last years, under the rule of Soviet law. At that time, however, he was no longer able to express himself freely, and thus we will never know what solutions he could offer us to this type of dilemma. What we know for sure is that in the circum­ stances of a legal system that respected the most obvious moral principles, Makarewicz was an advocate of resisting the temptation to infect the interpretation of the law with one’s own views. Today, when we often witness a confrontation between the content of the law as the will of the democratic majority and the activism of the lawyers who interpret it, this view is certainly worth remembering.

30 Redzik, “Profesor Juliusz Makarewicz,” 80.

12 Roman Longchamps de Bérier (1883–1941) Adam Redzik

Introduction The name of Roman Longchamps de Bérier remains well-known even today among lawyers. His legacy is alive particularly among those specializing in civil law. He draf­ ted the Polish Code of Obligations that entered into force in 1933. His most widely recognized work is the seminal textbook on the law of obligations, Zobowia˛zania (Obligations; 3rd edition, 1948). He wrote the textbook after finishing the work of codifying this branch of civil law. Zobowia˛zania continues to serve as a valuable reference in today’s scholarly literature on the subject. Yet Longchamps de Bérier’s legacy includes a much longer list of works that form a core of Polish writing on law. Studya nad istota˛ osoby prawniczej (Studies on the essence of a legal person), pub­ lished in 1911, is another pivotal example. His achievements in the field of civil law codification in Europe, as well as in the area of Polish-French and Polish-Czechoslo­ vak legal cooperation, may be known only to a handful of specialists. However, Longchamps de Bérier is remembered in much wider circles as the last Polish pre­ sident of the University of Lwów (likely the most important academic center of interwar Poland), who was brutally murdered along with his three adult sons by German Nazi criminals on July 4, 1941, during the massacre of Lwów professors. Jan Longchamps de Bérier, the only son of Roman to have survived World War II, noted that his father raised him and his brothers in the spirit of religious faith, patriotism, and tolerance, paying attention to both their mental and physical development. Every Sunday, the whole family—six members strong—would go together to attend Holy Mass in the nearby Church of St. Mary Magdalene in Lwów, at the corner of Leon Sapieha and Sykstuska streets. As a father, Roman Longchamps de Bérier found time to take his sons to the swimming pool, and to go skiing together in the winter months in the Carpathian Mountains. Summers were typically spent at the Hatowice estate near the town of Sokal; the estate belonged to the wife of Roman Longchamps de Bérier, Aniela (née de Werszo­ wicz-Strzelecka), referred to among her family and friends by the pet name Nela. The estate had sports playing fields near the manor as well as a tennis court. Nela often joined her husband on his study trips. Jan also mentioned that his father played the piano, was keen on music, and had an active social life. Despite requests urging him to become politically involved, he refused to do so. DOI: 10.4324/9781003181255-13

188 A. Redzik Roman Longchamps de Bérier’s family of origin had roots on the male side reaching back to prerevolutionary France. His ancestors were Huguenots who, according to family tradition, were among the throngs of Huguenot families leaving France in 1685 after Louis XIV revoked the Edict of Nantes (1598). Whether these ancestors found their way at that time directly to Poland or reached the country via other destinations is lost to history. There are several hypotheses on the matter. The first in the family line to reach Poland was probably Jan (date of death, 1730), who converted to Catholicism. Little is known of his life; there is, however, quite a lot of information on his son, Franciszek I (1710–84), who worked on establishing the first masonic lodges in Warsaw and Lwów. As a head of the municipal council, Franciszek I hosted the emperor Joseph II during his visit to Lwów in 1780, inviting him to in his estate, Lonszanówka. Story has it that the forest surrounding the estate was named Kaiserwald to commemorate the emperor’s visit. Roman Józef was baptized on September 23, 1883, in the St. Andrew Church (the Bernardine church). Around the time of Roman’s graduation from secondary school in 1901, his father acquired a plot of land with a garden and a single-level villa between Sapieha and Karpin´ski streets, and moved there with his family. In the period 1908–09, he used the land to build a house with two floors over the ground floor, closing off the property towards Sapieha Street. The Longchamps de Bérier family lived there together till the massacre of 1941. For a long time, Roman’s wife lived with the hope that her husband and sons were still alive. In order to survive and support herself and her surviving son, from 1941–44 she held a job as a tick feeder at Rudolf Weigl’s institute for spotted fever studies.1 She stayed in Lwów with Jan until June 1946.

Jan Kazimierz University in Lwów In October 1901, Roman Longchamps de Bérier enrolled at the Faculty of Law and Political Skills at the University of Lwów. His enrollment coincided with the beginning of a four-year period of revival of the university. At the Faculty of Law, the rising stars were Oswald Balzer (1858–1933), an expert on the history of Polish law and state; Stanisław Starzyn´ski (1853–1935), a constitutional lawyer whose work focused on individual rights; and Ernest Till (1846–1926), the author of the only full six-volume system of private law in the entire Austro-Hungarian state, the founder and editor of The Review of Law and Administration (con­ sidered to be the best Polish legal journal), and the founder of the Lwów school of private law. The university reached its peak scholarly excellence after Poland once again won its independence, in 1918.2 In the same period, the Faculty of Law played a vital role: the scholars associated with the faculty were instrumental in 1 Allen Arthur, The Fantastic Laboratory of Dr. Weigl: How Two Brave Scientists Battled Typhus and Sabotaged the Nazis (New York: W. W. Norton, 2015). 2 Joseph Rothschild, East Central Europe between the Two World Wars (Seattle: Uni­ versity of Washington Press, 1974), 382.

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codifying the law that would become the backbone of reborn Poland. Stanisław Starzyn´ski (alongside, inter alia, Stanisław Bukowiecki from Warsaw and Michał Bobrzyn´ski from Kraków) and Edward Dubanowicz provided crucial contribu­ tions to the Constitution of March 17, 1921; Dubanowicz also served as the presenter of the draft Constitution to the Polish parliament. Juliusz Makarewicz (1872–1955) was the principal author of the Criminal Code; besides working as a scholar and as a teacher, he was a politician affiliated with Christian Democrats and served as a senator.3 The Commercial Code was drafted by Aleksander Dolin´ski (1866–1930). Civil procedural law was codified with great contributions from Maurycy Allerhand (1868–1942). The Code of Obligations originated within the Lwów school of private law, discussed below. Recent scholarship has made the public more aware that the Faculty of Law in Lwów was the alma mater for several lawyers who later laid the foundation of international criminal law: Hersch Lauterpacht (who codrafted the statute of the Nuremberg International Military Tribunal and coined the term “crime against humanity”), Raphael Lemkin (who coined the term “genocide” and drafted the UN Convention on Genocide), and Louis B. Sohn (who contributed to the development of the United Nations and to the promotion of the idea of human rights).4 Furthermore, the Lwów school of diplomacy, under Ludwik Ehrlich, made a large impact; its students included not only Sohn but also Jan Karski, who carried the message of the Holocaust into the world on behalf of the Polish Underground State.5 In the period when Longchamps de Bérier was getting his education and then working at Lwów as a scholar, it was an important center of Polish science and culture, not only because of the university but also thanks to the presence in the city of other institutions of higher learning, organizations with a large social impact, and publishing houses. Besides the university, Lwów was home to the highly reputable Lwów Polytechnic, the Higher School of Forestry, and the Higher School of Veterinary Science, as well as several important scientific socie­ ties. In 1901, on the initiative of Oswald Balzer, the Society for the Support of Polish Science (transformed in 1920 into the Scientific Society in Lwów) was founded. The Legal Society had been active since the 1870s, and was known at the time as the Polish Association of Lawyers. Several journals were published regularly, including The Review of Law and Administration.

Education in Lwów and Berlin Roman Longchamps de Bérier attended lectures taught by nearly all the professors affiliated with the Faculty of Law and Political Skills. Somewhat surprisingly, he 3 See Chapter 11 in this volume.

4 Philippe Sands, East West Street: On the Origins of Genocide and Crimes against

Humanity (New York: Alfred A. Knopf, 2016). 5 Siła prawa zamiast prawa siły. Ludwik Ehrlich i jego wkład w rozwój nauki prawa mie˛ dzynarodowego oraz nauki o stosunkach mie˛ dzynarodowych, ed. Patrycja Grzebyk and Rafał Tarnogórski (Warsaw: Polski Instytut Spraw Mie˛ dzynarodowych, 2020).

190 A. Redzik also enrolled in seven seminars. The two seminars in which he participated the longest (for two years) were the Roman law seminar, under Ignacy Koschembahr­ Łyskowski, and the social economics seminar, under Władysław Ochenkowski.6 Longchamps de Bérier completed his coursework in the autumn of 1905. He was awarded a doctoral degree in August 1906 by professor Aleksander Janowicz, who administered his doctoral oath. In February 1906—that is, after completing his coursework but before obtaining the doctorate—Longchamps de Bérier took up took up a post in the State Treasury’s Legal Office (Prokuratoria Skarbu) in Lwów, renamed in 1919 the Prokuratoria Generalna Rzeczypospolitej Polskiej, Oddział we Lwowie (National General Legal Office of the Republic of Poland, Lwów Division). Many famous lawyers at the time had honed their professional skills in that office—so many, in fact, that the term “the school of the State Treasury’s Legal Office in Lwów” had been coined. The following outstanding lawyers had worked there at one time or another: Ernest Till, Alfred Halban, Stanisław Goła˛ b, Ignacy Weinfeld, Kazimierz Przybyłowski, Marian Waligórski, Józef Brzeski, and Seweryn Rosmarin.7 Longchamps de Bérier occupied a variety of posts at the State Treasury’s Legal Office over a period of fourteen years, moving through nearly all career levels, from an entry-level clerk (koncypient) to the rank of legal adviser to the National General Legal Office of the Republic of Poland, which he attained on August 1, 1919. A year later he had to leave the post, having just received his professorial title. The law at the time forbade com­ bining a professorship with active legal practice, which included the position of legal adviser to the National General Legal Office. At the same time, Longchamps de Bérier spent the academic year 1907–08 studying in Berlin at the Königliche Friedrich Wilhelms Universität, which was at the time the leading center for legal scholarship in Germany. He spent the time engaged in library research and attended lectures by brilliant scholars such as Otto von Gierke (1841–1921), Joseph Kohler (1849–1919), Theodor Kipp (1862– 1931), Heinrich Brunner (1840–1915), and Emil Seckel (1864–1924); he also took part in seminars led by Kipp and Kohler. Theodor Kipp was a specialist in Roman law and civil law, a student of Bernhard Windscheid and Rudolf von Ihering. Joseph Kohler’s interest were not limited to a single branch of the law; Longchamps de Bérier described him in the following manner: Kohler is a very interesting type. He has the German scholar’s typical head, with long greying hair falling around a pleasant, intelligent face. He walks slowly, with his chin pointing upwards a bit, and with a huge folder under his arm. A random passerby would never guess that he is a thoroughly modern 6 Adam Redzik, “Roman Longchamps de Bérier 1883–1941,” Kwartalnik Prawa Pry­ watnego 15, no. 1 (2006): 12–13. 7 Adam Redzik, “Prokuratoria Skarbu we Lwowie—Prokuratoria Generalna RP oddział we Lwowie. Szkic o dziejach instytucji,” in Lwów: miasto—społeczen´stwo—kultura, vol. 7, Urze˛dy, urze˛dnicy, instytucje. Studia z dziejów Lwowa, ed. Kazimierz Karolczak and Łukasza T. Sroka (Kraków: Wydawnictwo Naukowe Uniwersytetu Pedagogicznego, 2010), 144–56.

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man, that he owns an automobile, that he travels all around the world and writes about everything, that he even writes novels and poetry, and also composes music, beside his legal writing. In his relationships with students, he is both a bit patriarchal and a bit jovial.8 At both seminars, Longchamps de Bérier focused on issues of civil law—property law, to be specific. He considered Kipp’s seminar to be both better and more popular, as in Kohler’s less well-attended seminar each participant conducted research in a different area of law.

Teaching in Lwów and in Lublin It was probably in his second semester in Berlin that Longchamps de Bérier deci­ ded to focus in depth on the issue of legal personality. He continued this research after his return to Lwów, and his resulting treatise, Studies on the Essence of a Legal Person, was published in 1911. On the basis of this publication, in July 1911 he made an application to the members of the Faculty of Law at the University of Lwów to grant him veniam legedi (the right to teach, also known as the habilita­ tion) in the field of Austrian private law. His application was supported by Ernest Till and Aleksander Dolin´ski, two mentors of the young scholar. Unfortunately, the matter stalled, and no further steps were made in this process. It was not until five years later that Longchamps de Bérier filed another application. On July 27, 1916, Ernest Till addressed the members of the Faculty of Law, presenting his assessment of the attached publications and the opinions of two reviewers, requesting that the habilitation should be allowed to proceed. Studies on the Essence of a Legal Person received the highest marks of all the papers presented in support of the application. On August 2, 1916, Longchamps de Bérier was awar­ ded the right to teach Austrian private law, and subsequently began lecturing as a docent. In 1919, the faculty board requested his appointment to the position of an extraordinary chair of civil law, and the request was granted by the Polish head of state (Naczelnik Pan´stwa) on April 26, 1920. Two years later, on July 26, 1922, Longchamps de Bérier was awarded the title of full professor in the field of civil law by an order of the head of state. Jurij Fedynskyj noted that the Faculty of Law always had two prominent civil law specialists, one older and one younger—a master and a favored student. Initially, Till was the older one and Longchamps de Bérier the younger one. After Till’s death, in 1926, Longchamps de Bérier became the master, and the role of the student was taken on by Kazimierz Przybyłowski,9 an assistant lecturer since 1923 and a student of both Till and Longchamps de Bérier. 8 Roman Longchamps de Bérier, “Ze studyów w Berlinie,” Przegla˛ d Prawa i Adminis­ tracji 33 (1908): 1022. 9 Jurij Fedynskyj, “Prominent Polish Legal Scholars of the Last One Hundred Years,” in Polish Law Throughout the Ages, ed. Wenceslas J. Wagner (Stanford, CA: Hoover Institution Press, 1970): 470.

192 A. Redzik At his alma mater, Longchamps de Bérier held a number of official positions, including serving as a chair and vice chair of the Faculty of Law for two terms. He was elected to the first term as a chair in 1923–24, that is, in the year after he received his professorial title (as was traditional). His second term was in 1929–32, and he served as vice chair in 1924–25 and again in 1932–34. In June 1934, and again in June 1935, he was elected to serve as vice rector of Jan Kazimierz Uni­ versity, and he held that office until February 1938. In January 1938, when Stanisław Kulczyn´ski resigned as president, Longchamps de Bérier (as vice president) made efforts to solve the problem caused by students linked to nationalist organizations blocking the university and demanding that access of Jewish students to the university be limited and that designated seating be assigned to Jewish students in lecture rooms. When all attempts at finding other solutions failed, Longchamps de Bérier, as vice rector, issued an order sti­ pulating that seats should be assigned to Jewish students in the front rows on one side of the lecture rooms and to students with links to nationalist organizations in the first rows on the other side of the rooms. While this failed to fully prevent antisemitic disturbances, it curbed them sufficiently to relaunch teaching at the university.10 To crown his career at Jan Kazimierz University, Longchamps de Bérier became its president—an office he held briefly and under very difficult circumstances. He was appointed in June 1939 and began his term on September 1, 1939. Parallel to working at his alma mater, every two weeks for eighteen years Longchamps de Bérier made a trip to Lublin. It was his personal decision that required special efforts: in order to be allowed to teach at the private Catholic University of Lublin, professors affiliated with state universities had to obtain spe­ cial permissions both from their faculty boards and from the Ministry of Religious Denominations and Public Enlightenment. The Catholic university in Lublin was founded in 1918, a new incarnation of the Roman Catholic seminary in St. Petersburg, which was evacuated after the Bolshevik putsch. Originally named the University of Lublin, in 1928 it changed its name to the Catholic University of Lublin (Katolicki Uniwersytet Lubelski, KUL). For most of the interwar period, the Faculty of Law and Social and Eco­ nomic Sciences at KUL did not have the right to award degrees, and students took their final exams before a board of professors affiliated at Jan Kazimierz University in Lwów. KUL was awarded full degree-granting status in 1938. It is perhaps noteworthy that under the later communist regime in Poland, KUL was the only institution of higher learning that remained fully independent. It offered academic positions to scholars expelled from other Polish universities. For many years, Karol Wojtyła (Saint John Paul II) was a professor at KUL.11 Longchamps de Bérier started to teach in Lublin in January 1921. From that time on, he travelled to Lublin regularly every two weeks, often combining these 10 Academia Militans. Uniwersytet Jana Kazimierza we Lwowie, ed. Adam Redzik, 2nd ed. (Kraków: Wydawnictwo Wysoki Zamek, 2017): 188–96.

11 See Chapter 16 in this volume.

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trips with further trips to Warsaw for the meetings of the Codification Commis­ sion of the Republic of Poland.12 His work at the University of Lublin involved the preparation of a textbook on the general part of civil law—no small feat, since the newly independent Poland was composed of territories across which five separate post-partitions systems of civil law were in force at the same time. He completed the task very quickly, and in 1922, the university’s publishing house published his Wste˛ p do nauki prawa cywilnego (Introduction to civil law),13 a seminal text that continues to be relevant even today. It was written with the humility of youth. In 1928, Longchamps de Bérier also contributed to a joint publication on the Catholic view of the institution of marriage.14 Besides his academic work, Longchamps de Bérier was active in the realms of science and culture. He shunned politics but was willing and ready to defend his country. In 1918, when fighting broke out in Lwów, he volunteered to join a citizens’ armed force, and during the Bolshevik war he became a member of the Volunteer Civic League. For his part in the defense of Lwów in 1918–20, he was awarded two military medals: Cross of the Małopolska Units of the Volunteer . Army (Krzyz Małopolskich Oddziałów Armii Ochotniczej) and Defense Cross of . Lwów (Krzyz Obrony Lwowa), as well as a medal “for merit” (za zasługi), awar­ ded for his “courageous and steadfast service in the Małopolska Civic Guard in 1918–1928.” Furthermore, his service for his country took the form of working on the Codification Commission of the Republic of Poland and on the Law Commission at the Ministry of Justice, established in 1927. After 1936, he also sat on the panel of a special administrative court (Trybunał Kompetencyjny). For his contribution to the codification of the law of obligations, he was awarded the Commander’s Cross of the Order of Polonia Restituta on November 11, 1934.

Codification Commission of the Republic of Poland When the Republic of Poland was reestablished in 1918, its territory had formerly been part of three partition regimes. The combining of these regions created a complex legal situation involving, in the area of civil law, five legal systems: Rus­ sian, French, German, Austrian, and Hungarian. It is therefore hardly surprising that—besides the immediate need for a constitution—unification of law was an urgent necessity. While rules were in place to govern situations of conflict of laws, they tended only to complicate matters further. Thus, with a view to drafting uniform court law (that is, substantive and procedural civil law, substantive and procedural criminal law, and commercial law), the Sejm adopted on June 3, 1919, 12 Redzik, “Roman Longchamps de Bérier,” 34–37. 13 Roman Longchamps de Bérier, Wste˛ p do nauki prawa cywilnego ze szczególnym uwzgle˛dnieniem kodeksów obowia˛zuja˛cych w b. Królestwie Kongresowem, w Małopolsce i W. Ks. Poznan´skiem (Lublin: Biblioteka Uniwersytetu Lubelskiego, 1922). . 14 Roman Longchamps de Bérier, “Zawarcie i rozwia˛ zanie małzen´stwa według prawa . obowia˛ zuja˛ cego w Polsce,” in Małzen´stwo w s´wietle nauki katolickiej (Lublin: Towar­ zystwo Wiedzy Chrzes´cijan´skiej, 1928): 339–84.

194 A. Redzik the act on the Codification Commission of the Republic of Poland. It was a sui generis body subordinated neither to the Sejm nor to the government. The com­ mission existed throughout the interwar period and made an immense contribu­ tion to creating an orderly legal system. The first members of the commission were appointed (after consultations with universities and lawyers’ organizations) by Józef Piłsudski, the head of state, on August 22, 1919. The following day, Franciszek Xawery Fierich, professor of procedural civil law affiliated with the Jagiellonian University, was appointed the president of the commission. Three vice presidents were appointed, to reflect the three postpartition territories: Stanisław Bukowiecki, head of the Legal Office of the Republic of Poland (Warsaw); Ludwik Cichowicz, an advocate and a notary (Poznan´); and Ernest Till (Lwów).15 The commission had forty-four members—the country’s top scholars and practitioners of law. Ernest Till—quite elderly by then—was quick to take initiative with regard to the law of obligations. He formed the commission’s local committee in Lwów, and the committee met regularly to work on the draft new regulation. Besides Till, members of the committee included Aleksander Dolin´ski, Maurycy Allerhand, Kamil Stefko, and Roman Longchamps de Bérier; practitioners of law were also invited to take part in selected meetings.16 In March 1922, Till presented the complete draft of the general part of the law of obligations to the members of the Civil Law Section of the Codification Commission.17 A month later, the decision was made to proceed toward a full code of obligations on the basis of Till’s draft. Longchamps de Bérier took part in the drafting from the very beginning of the Lwów local committee—that is, most likely from early 1920. He was formally appointed to the Codification Commission on February 7, 1922. The work was interrupted by the death of Ernest Till on March 21, 1926, and soon thereafter, Longchamps de Bérier was put in charge of further work. The draft of the second part of the law of obligations championed by Till and Longchamps de Bérier was published in 1928. Around the same time, Longchamps de Bérier published a paper titled “Projekt francusko-włoski o zobowia˛ zaniach z r. 1927” (The French-Italian draft on obligations dated 1927), in which he criticized the idea of using the French-Italian draft as a foundation for the new Polish law, citing weaknesses in the draft’s structure and shortcomings in its terminological precisions; he also claimed that under the regulations proposed therein, parties would be referred to court too often (for instance, a declaration of the parties cancelling their agreement would be insufficient, and a court’s ruling would be necessary in that case). His position expressed in the paper was supported by a colleague from both the Faculty of Law and the commission, Maurycy Aller­ hand, who noted that the French-Italian draft “might have been appropriate in 15 Stanisław Grodziski, “Prace nad kodyfikacja˛ i unifikacja˛ polskiego prawa prywatnego (1919–1947),” Kwartalnik Prawa Prywatnego 1, nos. 1–4 (1992): 11. 16 Adam Redzik, Prawo prywatne na Uniwersytecie Jana Kazimierza we Lwowie (Warsaw: C. H. Beck, 2009): 107–13. 17 Leonard Górnicki, Prawo cywilne w pracach Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej w latach 1919–1939 (Wrocław: Kolonia Limited, 2000): 397.

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other countries but could constitute a step backward in our country.”18 Eventually the draft authored by Till and Longchamps de Bérier became the foundation of the bill presented for the first reading in the Sejm. The first reading lasted from August 1929 until March 1931. The draft laws by Ludwik Doman´ski (lawyer and Christian activist from Warsaw) and Henryk Konic (lawyer and editor) were taken into account. Once the second reading of the bill was completed, in November 1931, the bill was printed and then, in March 1932, mailed out to courts as well as various associations and societies for lawyers, with a request that comments on the bill should be sent in by July 1, 1932. The volume of comments received in return was lower than expected. The bill’s third reading lasted from November 1932 until April 30, 1933. The wording of the bill adopted by the relevant sub­ committee then cleared the Approval Committee of the Codification Commission at its sitting in June 1933, and in July that year it was officially referred to the Ministry of Justice. The work in the ministry was overseen on behalf of the Codification Commission by Longchamps de Bérier. The Code of Obligations, along with the auxiliary provisions on its introduction, were promulgated in the form of two regulations of the president of the Republic of Poland dated October 27, 1933 (Dziennik Ustaw 1933, no. 82, items 598–99). They entered into force on July 1, 1934. From 1934 to 1939, Longchamps de Bérier continued working on the Codification Commission, taking part in drafting the property law as well as the regulations on marriage and family law. The Code of Obligations was undoubtedly an outstanding achievement in the area of codification in Poland; it has even been argued that it was the single greatest codification achievement in twentieth-century Poland. The code was modern and clear, and it successfully reconciled the Roman model of law with the German model, while introducing several new original solutions at the same time. Both models were drawn from to select the best they had to offer, with a com­ promise between them on occasion. The code was well received among legal scholars and gained appreciation internationally, not least thanks to the efforts of Longchamps de Bérier himself, who travelled to various academic congresses promoting the solutions adopted in the code.19 In his monumental work on European law of obligations, Filippo Ranieri refers to the Polish Code of Obligations of 1933 as the first essentially European codi­ fication of civil law.20 Other authors have also noted the importance of the code, citing the extraordinary nature of the project thanks to the comparative metho­ dology it employed.21 18 Redzik, “Roman Longchamps de Bérier,” 43. 19 Górnicki, Prawo cywilne, 402, 455–62. 20 Filippo Ranieri, Europäisches Obligationenrecht. Ein Handbuch mit Texten und Mate­ rialien, 3, rev. ed. (Vienna: Springer, 2009), 106, 138, 142–43. 21 Wojciech Dajczak, “Kodeks zobowia˛ zan´ jako lekcja metody prawnoporównawczej,” Kwartalnik Prawa Prywatnego 23, no. 4 (2014): 853; Tomasz Giaro, “Some Pre­ judices about the Legal Tradition of Eastern Europe,” Comparative Law in Eastern and Central Europe (2013): 42–44.

196 A. Redzik

Contributions to Legal Scholarship Longchamps de Bérier was opposed to the idea of natural law, and his positivism stemmed from a deep understanding of the needs of the economy and from his authentic liberalism. He strove to develop the concepts put forward by von Ihering.… [H]e combined a masterful dogmatic analysis of law with a desire to serve legitimate social interests.22 Longchamps de Bérier was a civil-law expert with a wide range of scholarly interests, though his focus was first and foremost on the law of obligations. His academic work can be divided into periods—two or three, depending on the specific criteria used. The first period is characteristic of young scholars: it is a period of searching for the most interesting research areas. In this period, Longchamps de Bérier had an interest in the theory of law, but also in the practicality and usefulness of law. His research in those years was not limited to one field, but rather probed several branches of law. His most important treatise from this period is Studies on the Essence of a Legal Person. Viewing the subject through a wide comparative lens, this publication was a major contribution to the understanding of theoretical issues relevant to problems of legal personality; it remains a stimulating read even today.23 The second period (or, depending on perspective, the second and third periods) reflects Longchamps de Bérier’s involvement with the work of the Codification Commission and thus begins approximately in 1920. It was a time of synthesis and comparative studies, most of which were dedicated to the law of obligations, with a smaller but still significant section of research focusing on marriage and family law.24 After 1933, the great majority of writing focuses on the Polish Code of Obligations and on the unification efforts concerning this branch of law. This is when his most famous works were written, including the textbook Zobowia˛zania (Obligations), his personal summary of reasons behind the choices made in the draft code of obliga­ tions,25 and a series of papers written in a synthetic perspective for the Encyklopedia Podre˛czna Prawa Prywatnego (Small encyclopedia of private law). 22 Jan Kodre˛ bski, “Roman Longchamps de Bérier,” in Lwowskie s´rodowisko naukowe w latach 1939–1945. O Jakubie Karolu Parnasie, ed. Irena Stasiewicz-Jasiukowa (Warsaw: Wydawnictwo IHNOiT PAN, 1993), 126. 23 Andrzej Herbet, “Romana Longchamps de Bérier koncepcja osobny prawnej. W stu­ lecie publikacji Studyów nad istota˛ osoby prawniczej,” in Nauki prawne pomie˛ dzy tra­ dycja˛ a współczesnos´cia˛ . Prace dedykowane Profesorowi Romanowi Longchamps de Bérier . w 70. Rocznice˛ ´smierci, ed. Antoni De˛ bin´ski, Magdalena Pyter, and Bozena CzechJezierska (Lublin: Wydawnictwo KUL, 2011), 83–94. 24 Grzegorz Je˛ drejek, “Publikacje Romana Longchamps de Bérier z zakresu prawa rodzinnego,” in De˛ bin´ski, Pyter, and Czech-Jezierska, Nauki prawne pomie˛ dzy tradycja˛ a współczesnos´cia˛ , 39–65. 25 Uzasadnienie projektu kodeksu zobowia˛ zan´ z uwzgle˛dnieniem ostatecznego tekstu kodeksu. W opracowaniu głównego referenta projektu prof. Romana Longchamps de Bérier, art. 1–440 (Warsaw, 1934–39).

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In the mid-1930s, Longchamps de Bérier was one of the most internationally active Polish lawyers: he worked hard to promote the Code of Obligations and participated in the efforts to develop a uniform approach to the law of obligations across Europe. The publications he authored, as well as documents preserved in the archives and his correspondence (what little remains of it) all paint a picture of a scholar with many international ties, who was renowned across Europe, espe­ cially in France, the Netherlands, Germany, Romania, and Czechoslovakia. He earned this international reputation by publishing in French.26 Furthermore, he enjoyed well-earned fame due to his expertise as a codification expert in the area of the law of obligations. In late September 1929, at the Second Congress of Polish Lawyers in Warsaw, attended by representatives of legal sciences from France, Romania, and Czecho­ slovakia, Longchamps de Bérier presented a paper arguing that it is too early for international unification of the law of obligations, which, however, should not be viewed as a barrier to conceptual progress in this direction (Koschembahr-Łys­ kowski argued a different point of view). A year later, at the opening session of the Third Congress of Czechoslovak Lawyers in Bratislava, Longchamps de Bérier argued in favor of unification of the law. In the same year, he was invited (along­ side Koschembahr-Łyskowski) to organize a Congress of Comparative Law on behalf of the International Academy of Comparative Law in The Hague. The Congress took place in August 1932. It attracted many attendees from tens of countries, not only from Europe but also from the United States and Japan (nine attendees from Poland gave presentations at the event). Longchamps de Bérier was the main speaker on the topic of “Conclusion and Nonfulfillment of Con­ tracts.” In September 1933, he took part in the First Congress of Lawyers of the Slavic States in Bratislava, where he presented the main paper in the first section on civil law, discussing the unification of the law of obligations across Slavic states. Congress attendees agreed that the Polish and Swiss regulations should serve as a model for the unification of civil law in Yugoslavia and Czechoslovakia. In April and May 1935, Longchamps de Bérier gave a series of lectures on the Polish Code of Obligations at the Faculty of Law of the University of Lyon and for the members of the Comparative Law Society in Paris. He took part in the Interna­ tional Legal Week in Paris, where he gave speeches on behalf of the Polish delegation (including, besides himself, Jan Gwiazdomorski, Ignacy Koschembahr-Łyskowski, 26 Roman Longchamps de Bérier, Le problème de l’unification internationale du droit des obligations, rapport présenté au II Congrès des juristes polonais á Varsovie, 1929; Quel­ ques observations sur le projet franco-italien de code des obligations (Partie générale), 1931; Formation et inexécution des contrats en général, Rapport général au Congrès international de Droit compare á La Haye en 1932, 1935; Le responsabilité du fait des choses d’après le droit civil polonais. Rapport spécial au Deuxième Congrès international de droit comparé à la Haye en 1937. Section 2A: Droit civil, Thème 2: La responsabilité du fait des choses, 1937; La révision des contrats par le juge, rapport spécial pour la semaine de droit de Paris 1937, 1937; L’influence du droit public sur la contrat de travail dans le droit civil polonais, w: Recueil d’études en l’honneur d’Edouard Lam­ bert, 1938.

198 A. Redzik and Emil Stanisław Rappaport). He also presented a special report on amendments to contracts. Also in 1937, he became one of the founders of the Polish-French Legal Alliance, serving as the head the Polish section of the Alliance; the French section was headed by Jules Basdevant (1877–1968) from Paris. In May 1938, Longchamps de Bérier was awarded the Ordre National de la Légion d’Honneur.27 From 1920 on, Longchamps de Bérier was a member of the Scientific Society in Lwów, and from 1931 he also belonged to the most revered Polish scientific society, the Polish Academy of Arts and Sciences (Polska Akademia Umieje˛ tnos´ci), in Kraków. Beginning in 1918, he was active in the Polish Lawyers’ Society in Lwów; in 1918–28, he served as its secretary, in 1928–38 as the vice president, and after 1938 as president. After the death of Ernest Till, he became the editor of The Review of Law and Administration, which in 1934 he brought officially under the joint aegis of the Faculty of Law of the Jan Kazimierz University and of the Polish Lawyers’ Society in Lwów.

Soviet and German Occupation: Massacre of Lwów Professors, July 4, 1941 On the day on which World War II broke out, September 1, 1939, Roman Longchamps de Bérier—under the Polish act on institutions of higher learning of 1933—officially took office as the rector of the Jan Kazimierz University in Lwów. In the first week of fighting, he took charge of the Civic Committee for the Defense of Lwów, supporting the mayor of Lwów, Stanisław Ostrowski (who was a docent at the university as well). On September 17, 1939, Poland—already at war with Germany—came under attack by the Red Army. After a German siege that lasted for several days, the German troops, on the basis of a secret agreement, gave way to the Soviets, and the city surrendered. On September 28, 1939, a meeting for the academic staff and other personnel as well as students with representatives of the Soviet regime was held at the Uni­ versity.28 It was announced that the Polish university would be allowed to con­ tinue as before, and a new Ukrainian university would be established beside it. Based on this announcement, on September 30, 1939, the rector issued an ordi­ nance stipulating that on October 2, 1939, enrollment would open; the first lec­ tures began three days later. The teaching process and the syllabi remained unchanged. Kazimierz Przybyłowski noted that the rector asked all members of the academic staff to offer their best efforts to serve Polish science under the conditions of occupation.29 On October 18, 1939, Longchamps de Bérier was removed from the rector’s position, and in his place the USSR Popular Education Committee installed 27 Redzik, Prawo prywatne na Uniwersytecie Jana Kazimierza we Lwowie, 123–25. 28 Karolina Lanckoron´ska, Wspomnienia wojenne (Kraków: Wydawnictwo Literackie, . 2003), 20–22; Grzegorz Hryciuk, Polacy we Lwowie 1939–1944. Zycie codzienne (Warsaw: KAW, 2000), 128. 29 Kazimierz Przybyłowski, “S´.p. Roman Longchamps,” Pan´stwo i Prawo 2, nos. 5–6 (1947): 67.

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Mikhail Marchenko, from Kyiv. Longchamps de Bérier continued to serve as the head of the Institute of Civil Law until January 1940. During that two-month period, no significant changes were made to the organization of the Faculty of Law. Until December 5, 1939, Kazimierz Przybyłowski continued to serve as the dean. On January 3, 1940, Marchenko issued an ordinance reorganizing the Faculty of Law. A Soviet lawyer from Kharkiv was appointed as the new dean. At the same time, many institutes were eliminated, and many professors were dismissed, among them Longchamps de Bérier. The structure of the university and the curricula were reshaped to replicate the Soviet model. Classes in the new system began on January 15, 1940.30 As memorialized in a letter to his brother Andrew dated July 3, 1940, during the winter months that year Longchamps de Bérier wrote “a scientific paper on the concept of guilt in civil law,” which was to be “printed in the notes of the law faculty.” The manuscript was later found and published in 2013 (Kwartalnik Prawa Prywatnego 2013, vol. 1). The letter paints the picture of how Longchamps de Bérier spent his days after his dismissal from the university in 1940. He would get up around 5.30 A.M. and do some tidying-up. Then, around 9.00 A.M., he would go to the uni­ versity, where he would work until lunchtime in his former room, then would return home for lunch. After lunch, he occupied himself with studying Soviet codes and textbooks. From April 1940, he also studied Ukrainian, which was required at the university. To support himself, in August 1940 he became a legal adviser (juryskonsult) of the Bus Transport Department. After the appointment of yet another new rector (Marchenko was dismissed), in November Longchamps de Bérier was reinstated as a part-time professor, effective September 1, 1940, at the Institute of Civil Law headed by Przybyłowski; Maurycy Allerhand and Jurij Fedynskyj were also employed there at the time. Longchamps de Bérier lectured on contract law of capitalist countries—in essence, it was a comparative lecture on the Polish law of obligations. He lectured in Polish, introducing only some Ukrainian terminology. In January 1941, together with a group of lec­ turers, he travelled to Moscow, where, from January 17 to February 7, he par­ ticipated in a conference organized by the People’s Commissariat of Justice and the All-Union Institute of Legal Sciences. Upon his return, in March 1941, he took part in a session organized at the Faculty of Law, delivering a paper in Ukrainian (as Polish was forbidden) on the responsibility for damage caused by activity dangerous to the environment according to the legislation and jur­ isprudence of Western European countries. Lwów remained under Soviet occupation until the end of June 1941. On July 1, German troops entered the city. The next day, the former Polish prime minis­ ter, a professor of the Lwów Polytechnic, Kazimierz Bartel, was detained. On the night of July 3–4, between 10 P.M. and 2 A.M., several SS units drove around Lwów, arresting university professors on the basis of a proscription list drafted in 30 More in Redzik, Academia Militans, 940.

200 A. Redzik advance with the help of Ukrainian collaborators.31 Each time, a gendarmerie unit surrounded the house of a professor, and SS officers went inside, arresting all men aged eighteen and over.32 In the evening of July 3, the family of Roman Longchamps de Bérier went to bed. The professor, his wife, their four sons, and a cousin with a son and daughter were staying at the premises at the time. At around 1 A.M., the building at 11 Franciszek Karpin´ski Street was surrounded by German soldiers, and SS officers banged on the door. They entered when the door was opened. One of them asked Roman Longchamps de Bérier to confirm his name, and then ordered him to get ready to leave promptly. When SS officers realized that Longchamps de Bérier’s three adult sons (Bronisław, Zygmunt, and Kazimierz, who were sleeping in the living room) were also present, they too were ordered to get ready to leave. They were all eighteen or older (twenty-five, twenty-three, and eighteen, respectively). Only Jan, the youngest (thirteen), who was asleep in another room, was not detained. Many years later he recalled that the Nazis conducted a quick and superficial search, destroying a radio detector and taking a typewriter and a gold ring with them. Aniela tried to give her husband and sons coats, but the SS offi­ cers stopped her, saying that they would not be needed. The men were taken to the Abrahamovich dormitory, along with twenty-three other professors and those arrested with them. Around 3 or 4 A.M., all of them were taken to the nearby Wuleckie (Kadeckie) hills, lined up in groups over a hole that had been dug in the ground beforehand, and shot. The mass grave was then covered with soil so as not to leave traces. On October 8, 1943, a death squad (Sonderkommando 1005) made up of young Jewish prisoners was sent to the site to recover the bodies, which were then loaded onto a truck and moved to a pyre on the grounds of the camp located in Las Krzywczycki, in Lwów. The following day, October 9, 1943, the bodies were burned and the ashes scattered in a nearby forest33 in the vicinity of Longchamps’s old estate, Lonszanówka. Efforts to preserve the memory and legacy of the last rector of the Jan Kazi­ mierz University were made not only by his students and friends, but also by his university colleagues, including Stanisław Kulczyn´ski, former rector of the uni­ versity: later, as the first rector of a Polish university in Wrocław, he contributed to naming one of the university halls after Roman Longchamps de Bérier. Today, the John Paul II Catholic University of Lublin serves as the custodian of the memory of Roman Longchamps de Bérier, keeping also his private archive.

31 Grzegorz Motyka, Od rzezi wołyn´skiej do akcji Wisła. Konflikt polsko-ukrain´ski 1943– 1947 (Kraków: Wydawnictwo Literackie, 2011), 67. 32 Dieter Schenk, Der Lemberger Professorenmord und der Holocaust in Ostgalizien (Bonn: J. H. W. Dietz, 2007); Zygmunt Albert, Kaz´n´ profesorów lwowskich—lipiec 1941. Studia oraz relacje i dokumenty (Wrocław: Wydawnictwo Uniwersytetu Wrocławskiego, 1989). 33 Leon Weliczker Wells, The Janowska Road: Survival in a Nazi Death Camp (New York: Macmillan, 1963); Leon Weliczker . Wells, Brygada s´mierci. Sonderkommando 1005. Pamie˛ tnik (Łódz . ´ : Wydawnictwa Zydowskiej Komisji Historycznej przy Cen­ tralnym Komitecie Zydów Polskich, 1946), 96.

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Concluding Remarks Even though eighty years have passed since his tragic death, Roman Longchamps de Bérier remains a strong presence in Polish legal sciences. This is primarily due to his contribution to the 1933 Code of Obligations, which in 1964 formally became a part of the Polish Civil Code, incorporated as Book Three. Thus, Zobowia˛ zania (Obligations)—Longchamps de Bérier’s systematic monograph on the law of obligations—remains relevant even today. In the introduction to the 1999 edition of the work, Franciszek Longchamps de Bérier writes: It is precisely Obligations that constitutes Roman Longchamps de Bérier’s most magnificent and lasting memorial. The beauty and perfection of this monument of legal thought is strikingly clear to anyone who reads its pages. The deeper the reader’s effort, the clearer the conviction on their part that Roman Longchamps de Bérier could well say, in the words of the ancient poet: Exegi monumentum aere perennius … non omnis moriar, multaque pars mei vitabit (I have crafted a monument more lasting than bronze … I will not totally perish, and much of me will survive).34

34 Franciszek Longchamps de Bérier, “Po szes´c´dziesie˛ ciu latach,” in Roman Longchamps de Bérier, Zobowia˛ zania (Poznan´: Ars Boni et Aequi, 1999), 13.

13 Stefan Wyszyn´ski (1901–1981) Maciej Mikuła

Introduction Working on a biographical sketch of Blessed Cardinal Stefan Wyszyn´ski in 2021 has a special character—for on September 12, 2021, in the Shrine of Divine Pro­ vidence in Warsaw, Cardinal Wyszyn´ski was beatified by the Catholic Church. The multifaceted activities of the so-called Primate of the Millennium (because he served during the celebration of Poland’s millennial anniversary of Christianity, in 1966)—including his involvement in social issues and his studies in the social doctrine of the Catholic Church—are among the most widely known pages of his work.1 However, it is also worth remembering that an important moment in his intellectual formation was the preparation and defense of his 1929 doctoral dis­ sertation on canon law, titled Family, Church, and State Rights to School; lectures on canon law at the Major Theological Seminary in Włocławek (1936–38); and, as it turns out, teaching canon law during the Nazi occupation in Kozłówka. He gained practical experience as a lawyer-practitioner by defending the marriage bond (1932–38) and serving as a judge of the Bishop’s Court (1938–39). It is true that his reflections on canon law as a system were less important than his philosophical reflections on law as a phenomenon strongly imbued with values and playing an important role in shaping social reality.2 Especially his teaching in the period after his ordination as bishop (1946) was rich in reflection on the char­ acteristics of law, the indispensable links between the law and natural law, and human rights as inalienable natural rights. This reflection arose in an environment hostile to religion, during the construction in Poland of the foundations of a totalitarian state based on Marxist doctrine. There is thus an extensive number of texts by the cardinal in which he mentions legal issues. These texts can be divided into three basic groups. The first of them were written as part of his academic and journalistic work until 1946. A significant 1 Piotr Nitecki, “Prymas Wyszyn´ski a nurty teologiczne z pocza˛ tku XX wieku” [Primate Wyszyn´ski and theological trends of the early twentieth century], Biuletyn Instytutu Pamie˛ci Narodowej 131 (2011): 4–10. 2 Hanna Was´kiewicz, “Prawa człowieka w nauczaniu społecznym Stefana Kardynała Wyszyn´skiego Prymasa Polski” [Human Rights in the Social Teaching of Stefan Cardinal Wyszyn´ski, Primate of Poland], Roczniki Nauk Społecznych 10 (1982): 8.

DOI: 10.4324/9781003181255-14

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work in this respect is the doctoral dissertation, which he defended in 1929 at the Catholic University of Lublin. The second group of texts contains his teaching as bishop of Lublin and then primate of Poland. An unquestionable common feature of all of Stefan Wyszyn´ski’s writings was the primacy of social issues and the con­ sideration of the function of law through this prism. It was precisely his episcopal ministry, and especially his primate ministry after his accession to the archbishopric of Gniezno and Warsaw, that resulted in his third form of activity concerning law—the matter of establishing a modus vivendi with the communist authorities. It was necessary to stabilize the situation of the Catholic Church in Poland after the actual breaking of the Concordat of 1925 by the government on September 12, 1945. The government, under the pretext of violation of the Concordat by the Holy See, issued a resolution declaring the agreement invalid.3 These three areas—academic reflection, pastoral teaching, and participation in creating solu­ tions to problems in church-state relations—are the subject of further analysis in this chapter. This sketch is only an incomplete introduction to the legal thought of Stefan Wyszyn´ski through a discussion of selected texts. Before presenting these texts, it is worth putting in order the most important facts of his life, encouraging the reader to reach for more details in recently pub­ lished monographs.4 Stefan Wyszyn´ski was born in Zuzela on August 3, 1901, one of six children of Stanislaw and Julianna, in a religious and patriotic family. He received his primary education in a school in Zuzela, then at a school in Andrze­ jewo, and for two years with a private teacher. Beginning in 1912, he attended a private secondary school named after Wojciech Górski, in Warsaw, then, in 1915, . a secondary school in Łomza. He entered the Lower Theological Seminary in Włocławek on August 28, 1917. In 1920, he began his studies at the Major Theological Seminary in Włocławek. A serious illness prevented him from receiv­ ing the sacrament of the priesthood together with other seminarians in June 1924, and he was ordained on August 3. He continued his studies at the Catholic Uni­ versity of Lublin, completing his doctoral dissertation on June 22, 1929. During a subsequent scholarship trip, he observed the development of Italian fascism and studied sociology in Belgium and France. On his return, he completed a year’s pastoral work, and then in 1931 took up lecturing at his seminary in Włocławek and became editor-in-chief of the periodical Ateneum Kapłan´skie, in which he published frequently. He was involved in social work, including the Christian 3 The government argued that the Concordat ceased to be in force due to its breach— the failure of the Holy See to observe it during the war, in particular due to the appointment, in violation of Article IX, of Bishop K. M. Splett as apostolic adminis­ trator of the Chełmno diocese and the appointment of Bishop H. Breitinger as apos­ tolic administrator for the German population in the Gniezno and Poznan´ archdioceses. Krzysztof Krasowski, Pan´stwo a Kos´ciół Katolicki w Polsce 1945–1955 (Poznan´: Terra, 1997), 27, 31. 4 Rafał Łatka, Beata Mackiewicz, and Dominik Zamiatała, Primate Stefan Wyszyn´ski: A Biography, trans. Jerzy Giebułtowski (Warsaw: Instytut Pamie˛ ci Narodowej, Soli Deo, 2021); Ryszard Ficek, Primate of the Millenium Cardinal Stefan Wyszyn´ski. Life and Legacy (Torun´: Wydawnictwo Adam Marszałek, 2021).

204 M. Mikuła Workers’ University, the Christian Trade Union, and many other pedagogical and religious initiatives. He explored Marxist thought, pointing out its dangers in his texts, and he dealt with social teaching in several articles.5 He showed particular sensitivity to the living conditions in interwar Poland, including social and mental transformations taking place under the influence of the great economic crisis and related unemployment. In the spirit of corporatism, he pointed to the need for social reforms, including limited parceling out of landed estates. His radicalism in defense of the workers’ cause was the reason for Bishop Karol Radon´ski’s tem­ porary ban on preaching; preserved sources also confirm that the prewar author­ itarian state authorities (the so-called Sanacja) planned to arrest Father Wyszyn´ski because of his statements. His editorial work for Ateneum Kapłan´skie, lecturing at the Major Seminary in Włocławek, preparing his habilitation book, and extensive social involvement were all interrupted by the outbreak of war. During World War II, Wyszyn´ski had to hide from the Gestapo. He sought refuge with his family in Warsaw and Wrociszew, then, from the summer of 1940, in Kozłówka, at the home of Aleksander and Jadwiga Zamoyski, where he lec­ tured, including on canon law. After a stay in 1941 in Zakopane, in the Ursuline Sisters’ convent (where he was also temporarily arrested by the Gestapo), he began work in the summer of 1942 in Laski, near Warsaw, in an institution for the blind . . run by Mother Elzbieta Róza Czapska, who would later be beatified on the same day as Stefan Wyszyn´ski. He was active in the Polish resistance movement and was a military chaplain during the Warsaw Uprising in 1944. In his sermons he addressed the need to help the Jews.6 Following the war, in 1945 he became rector of the seminary in Włocławek. He developed his journalistic work, and it was then that he wrote one of his betterknown works—an analysis of the role of work in Christian life, referring to the encyclical of Pope Pius XI Quadragesimo anno: Duch pracy ludzkiej (The Spirit of Human Labor), printed in several European countries. As early as March 4, 1946, he was appointed bishop of Lublin by Pius XII. He adopted the motto Soli Deo as his vocation, later expanded to Soli Deo per Mariam. During his two years in the diocese of Lublin he made untiring visitations, supported Catholic organizations, and was active in committees of the Polish Episcopal Conference. From the beginning of his ministry in Lublin he showed particular concern for the Catholic University of Lublin, especially the teaching of the social doctrine of the Catholic Church. After the death of Primate Cardinal August Hlond (1881–1946), on November 16, 1948 the pope appointed Stefan Wyszyn´ski as archbishop of the Archdiocese of Gniezno and Warsaw, which made him the primate of Poland. He undertook the arduous task of administering the archdioceses, which was particu­ larly difficult in view of the enormous losses resulting from the Nazi occupation. 5 See, in particular, Stefan Wyszyn´ski, Catholic Program for Fighting Communism (Włocławek, 1937); Stefan Wyszyn´ski, Główne podstawy przebudowy ustroju społecznego [Bases for the reconstruction of the social system] (Włocławek, 1933); Stefan Wyszyn´ski, Zasie˛g i charakter zainteresowania katolickiej nauki społecznej [The range and nature of interest in Catholic social teaching] (Poznan´, 1937). 6 Łatka, Mackiewicz, and Zamiatała, Primate, 21–22, 26; Ficek, Primate, 70, 103, 106.

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At the same time, he strove to maintain social peace while demanding that the communist authorities enforce the rights of the church and the faithful. An expression of the ordering of relations was the conclusion of an agreement with the government on September 14, 1950, to which I will return later in this chapter. It came at the height of persecution of the church members, including fictitious show trials, the sentencing of Bishop Czesław Kaczmarek to twelve years’ imprisonment for alleged spying for the United States and the Vatican in Sep­ tember 1953, the confiscation of church property, and the disruption of the clergy through the creation by the communists of an association of progovernment “patriot priests.” The violation by the communists of the provisions described in the agreement, in particular the decree of February 9, 1953, on the staffing of church posts, ensuring the state personnel policy in the church, caused the bishops to protest on May 8, 1953, a protest best known by the final words of the letter to Bolesław Bierut, the leader of the Polish People’s Republic: Non possumus—“we do not allow.” As a direct result of Cardinal Wyszyn´ski’s opposition to the government’s actions (he became a cardinal on January 12, 1953), he was arrested on Septem­ ber 25, 1953, and held successively in Rywałd, Stoczek Warmin´ski, Prudnik, and Koman´cza until his release on October 18, 1956. He described the experiences of his three years of unlawful isolation in Zapiski wie˛zienne (The Prison notes), which were published many times. During this period, he worked intensively to prepare the nation for the one-thousandth anniversary of the Baptism of Poland, and it was then that he wrote the “Jasna Góra Vows of the Polish Nation” (May 16, 1956). The workers’ protests initiated in Poznan´ in June 1956 resulted in a poli­ tical upheaval. The internationalist-oriented, post-Stalinist group of communists originally gathered around Bolesław Bierut, who had died in Moscow in March 1956, was overthrown by the nationalist faction of Władysław Gomułka. Cardinal Wyszyn´ski was released from internment and, at the request of the authorities, returned to Warsaw on October 28, 1956. The period of so-called small stabilization gave hope for positive changes. The decree on the manning of church posts was abolished. In the spring of 1957, Wyszyn´ski was able to go to Rome to receive his cardinal’s insignia—in the winter of 1953 he had not been given permission to travel abroad. In 1958 he took part in the funeral of Pius XII and the conclave that resulted in Angelo Roncalli becoming Pope John XXIII. The cardinal worked closely with the pope and took part in the preparation and work of the Second Vatican Council, including as a member of the Council’s Presidium beginning on October 13, 1963. Soon the communist authorities sharpened their course. Strong press attacks were aroused by the “Message of the Polish Bishops to the German Bishops” of November 18, 1965. It was one of the conciliar letters and contained significant words signed by thirty-four Polish bishops: “We forgive and ask for forgiveness.” The authorities were particularly hostile toward the celebration of the thousandth anniversary of the Baptism of Poland, which they contrasted with the celebration of the thousandth anniversary of the Polish state (the baptism of Duke Mieszko I, the first confirmed ruler of Poland, took place in the year 966). In particular, the

206 M. Mikuła authorities refused permission for Pope Paul VI to come to Poland, and church celebrations were disrupted at the instigation of the authorities. December 1970 saw another political breakthrough in Poland. Militia forces opened fire on shipyard workers in Gdan´sk, who protested against rising prices. As a result of these events, Władysław Gomułka and his administration were replaced by the more liberal faction of Edward Gierek. In the changed political circumstances, Cardinal Wyszyn´ski and the episcopate succeeded in July 1974 in establishing a working commission between the Holy See and the Polish People’s Republic, which was a breakthrough in the impasse that had existed since September 12, 1945. Cardinal Wyszyn´ski participated in two successive conclaves in 1978, which resulted in the election of John Paul I as pope and, following his death after little more than a month, the Polish cardinal Karol Wojtyła as Pope John Paul II. The unquestionable success of the Catholic Church in Poland was the Polish pope’s pilgrimage to the country, which began on June 2, 1979. At the beginning of the 1980s, when the Solidarity trade union movement was being born in the context of workers’ strikes, Cardinal Wyszyn´ski expressed his support for workers fighting for decent working conditions and salaries. Cardinal Wyszyn´ski died after a long illness on May 28, 1981. On May 20, 1989, the process of beatification of the Servant of God Cardinal Stefan Wyszyn´ski began, ending with the ceremony of beatification in Warsaw on September 12, 2021. Blessed Stefan Wyszyn´ski was the author of numerous books and scattered texts. This legacy is under special care of, inter alia, the Primate Institute of Cardinal Stefan Wyszyn´ski in Warsaw. The corpus of previously uncollected texts is being successively published in the series Dzieła zebrane (Collected works), supplementing the earlier editions of texts published so far in thematic anthologies.7

Academic Work, 1929–46: Legal Guarantees of the Church Teaching Religion at School The doctoral dissertation of the future primate touches on the implementation of the tasks of the church in society: the rights of the family, the church, and the state to school. Wyszyn´ski defended his doctoral dissertation after the ratification 7 See https://wyszynskiprymas.pl. See also anthologies of texts by Stefan Wyszyn´ski from the period before his nomination as bishop: Stefan Wyszyn´ski, Katolicka nauka społeczna. Wybór artykułów z “Ateneum Kapłan´skiego” 1929–1946 [Catholic social teaching: Selection of articles from Ateneum Kapłan´skie 1929–1946] (Włocławek: Wydawnictwo Diecezjalne, 2001); Stefan Wyszyn´ski, Pocza˛ tki nauczania społecznego: 1934–1939 [The beginnings of social teaching: 1934–1939] (Warsaw: “PAX,” 2001). The legal issues analyzed in this sketch come from the anthologies: Stefan Kardynał Wyszyn´ski Prymas Polski, Nauczanie społeczne 1946–1981 [Social teaching 1946– 1981] (Warsaw: Os´rodek Dokumentacji i Studiów Społecznych, 1990); and Stefan . Wyszyn´ski, Miłos´c´ i sprawiedliwos´c´ społeczna. Rozwazania społeczne [Love and social justice: Social considerations] (Warsaw: “PAX,” 2021). See also: Marian P. Romaniuk, Kardynał Stefan Wyszyn´ski. Prymas Tysia˛ clecia. Przewodnik bibliograficzny 1921–2005 [Cardinal Stefan Wyszyn´ski: Primate of the Millennium: Bibliographic guide 1921– 2005] (Radom: Polwen, 2006).

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of the Concordat of February 10, 1925. Article 13, point 1, of that agreement guaranteed compulsory religious instruction in schools (excluding universities) and provided rules for the staffing of religion teachers.8 The conclusion of the Concordat was already determined by the Constitution of the Second Republic of Poland of March 17, 1921, which regulated the issue of freedom of conscience and religion. Stefan Wyszyn´ski wrote an extensive dissertation, of which Chapter 2—“The Rights of the Church to School,” with an introduction and conclusion—was the basis for his doctoral defense. The cruelties of the First World War, during the period of the future cardinal’s adolescence, were deeply engraved on him. He wrote at the beginning of his dissertation, “Before the postwar man stood the fundamental question: in what lies the cause of this bankruptcy of humankind.”9 The remedy for this state of affairs, experienced once again soon after the Second World War, was to be a properly arranged education. In the context of the chal­ lenges facing Poland’s independent statehood, reborn after 123 years of nonbeing (1795–1918), Wyszyn´ski emphasized that the aim of education was to bring about “a new type of man, free, independent, energetic, and at the same time thinking and feeling in Polish” (3). He saw particular challenges for schools in a profound social reconstruction, changes in the employment structure, professional work of women, and a diminished role of home teaching. He diagnosed the status quo as follows: The main reason for the inadequacy, the small results of the work of the school, despite all the intensity, lies, in our opinion, in this very discrepancy between family and school, school and church, etc. Acknowledging that a reform of the methods of teaching and education is necessary and just, we believe that these reforms must be preceded by a thorough restitution of the rights to school of all the factors concerned: family, church, state, profession, etc. (16) He saw the threat to the formation of young people posed by liberalism, which limited the influence of the family and the church in school teaching. The future cardinal derived the authority of the church to teach from the jur­ isdictional power of the church, and he pointed to the teaching office of the church. The threads of the school of public canon law, a current in canon studies whose origins can be found in the so-called Würzburg10 school, are clearly present 8 Janusz Osuchowski, Prawo wyznaniowe Rzeczpospolitej 1918–1939 (we˛ złowe zagadnie­ nia) [Law on religious denominations in the Republic of Poland 1918–1939—main . issues] (Warsaw: Ksia˛ zka i Wiedza, 1967), 135. ´ 9 Stefan Wyszynski, Prawa Rodziny, Kos´cioła i Pan´stwa do szkoły [Family, Church and State Rights to School], typescript (Lublin, 1929), 1. The dissertation is kept in the archives of the John Paul II Catholic University of Lublin. Subsequent page references are noted in parentheses in the text. 10 Remigiusz Soban´ski, Szkoły kanonistyczne [Schools of canon law] (Warsaw: Wydawnictwo Naukowe Uniwersytetu Kardynała Stefana Wyszyn´skiego, 2009), 55.

208 M. Mikuła in his thought. According to its postulates, he saw the church and the state as two separate sovereign communities with instruments at their disposal to realize their aims. He wrote that since teaching takes place at school, and the church has the right to teach, by means of which it aims to achieve its goals, then logically it should have the right to access schools and control the content taught. At the same time, he referred to the opinions of criminologists and penal scholars11 that education should contain religious threads and thus influence the formation of high moral values of society. In addition to the doctrinal justification, he presented a very extensive historical justification, in which he pointed to the various forms of educational and pedagogical activities of the Catholic Church. He presented the matter mainly based on the rich French and German literature on the subject and detailed analyses concerning late antiquity and the medieval period. From the perspective of the main goal of the dissertation, particularly important was the analysis of the situation in France after the outbreak of the Revolution in 1789 and the processes of secularization of schooling. The justification of the right to teach preceded Wyszyn´ski’s analysis of the detailed scope of the church’s rights. He wrote: The secular authority, within the scope of its competence in the field of secular teaching, should (negatively speaking) not only not teach or prescribe anything that would oppose the religious order [or] be contrary to the reli­ gious good [and] to the principles of Christian faith and morality, but (posi­ tively speaking) should make it easier for the church, in an agreed way, to exercise her teaching and educational office. (106) He divided the rights of the church into direct and indirect. The former included “the visitation of schools in matters relating to religion and morals, approval of textbooks for teaching the principles of faith, adjudication on the preparation of teachers for teaching religion, and granting them a canonical mission” (107). In turn, he included among the indirect rights of the church the demand that they be removed “from public teaching [of] all influences harmful to faith and morals” (124). In his argumentation, he referred to negative examples from France, espe­ cially to the law of 1882 on ideologically neutral schooling. Wyszyn´ski devoted the extensive third part of the doctoral dissertation to a discussion of the church’s school legislation, based on the Codex Iuris Canonici of 1917. His method of interpretation was characteristic of the so-called school of text, which was developed in canon law after the promulgation of the Codex.12 This method was based on grammatical interpretation, making the order of the argument almost fully dependent on the sequence of issues regulated in the canons. Wyszyn´ski emphasized the role of religious and moral upbringing from 11 One of the experts to whom he referred was the eminent Polish lawyer and main author of the excellent interwar Penal Code of 1932, Juliusz Makarewicz (1872– 1955); see Chapter 11 in this volume. 12 Soban´ski, Szkoły, 63–64.

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the earliest years of children, at the same time condemning “upbringing based on the so-called natural ethics (education of manners separate from religious upbringing and religious practices)” (138). In elementary school, religious instruction should not be separated from other teachings. As the Polish school system of the prewar period was often run in small towns by a single teacher, the influence of the church on the selection of teaching staff should have been important. It was different in secondary and higher schools, where religious instruction should be conducted by specially prepared clergy. A significant part of the doctoral dissertation was devoted to the attitude toward non-Catholic and neutral schools. As a rule, Catholic children could not attend them, because these schools would threaten their faith. However, canon law defined a catalog of cir­ cumstances justifying the sending of a child to non-Catholic schools, including persecution, the lack of another school near the place of residence, lack of material resources, or Catholic schooling “insufficient for a proper education” (149). Other issues that Wyszyn´ski commented on included the control of the content of textbooks, the founding of Catholic schools, the approval of schools as meeting the requirements of Catholic schools, and the founding and approval of faculties and colleges. It is also worth mentioning the future cardinal’s analysis of the exclusive right of the Catholic Church to teach religion and morals, as well as to prepare religious teachers. Throughout the dissertation there is also a theme of indispensable cooperation with parents in the religious education of children. In summary, this dissertation is characterized by a special interdisciplinary char­ acter. Stefan Wyszyn´ski took into consideration pedagogical, theological, histor­ ical, and, of course, legal aspects of education. It turned out to be a paradox, or perhaps the school of life, that the carefully deployed arguments confirming the church’s right to teach were fully negated by later communist legislation. Religion was finally removed from public schools in 1961, to return—not without objec­ tions of some social groups—after the breakthrough of 1989. The current 1997 Constitution of the Republic of Poland provides in Article 53(4) for the possibility of organizing religious instruction in schools: “The religion of a church or other legally recognized religious organization may be taught in schools, but other peoples’ freedom of religion and conscience shall not be infringed thereby.”13 This guarantee is detailed in Article 12 of the 1993 Concordat. Importantly, the matters regulated in the Concordat are among the issues whose different regula­ tion requires consultation and consensus by a joint commission of the government and the Polish episcopate, giving a guarantee that the rights set out in the agree­ ment will not be unilaterally modified or rejected.

Primate Teaching: What Should the Law Be? The most complete study of the legal thought of Stefan Wyszyn´ski is Agata Gumieniak’s monograph, in which the main consideration was to show that the 13 The Constitution of the Republic of Poland of April 2, 1997, as published in Dziennik Ustaw no. 78, item 483, www.sejm.gov.pl/prawo/konst/angielski/kon1.htm

210 M. Mikuła Cardinal attributed to law the function of ensuring social order.14 Following Gumieniak, it is worth mentioning the legal issues Wyszyn´ski raised: the origin of law, the role of natural law, the effects of creating law contradictory to natural law, the catalog of human rights, the catalog of family rights, the catalog of a nation’s rights, the role of the state in relation to the nation and the church, and the cat­ alog of workers’ rights. All of these issues were involved in the particular circum­ stances of the progressive enslavement of the country by the communist regime. Hence Wyszyn´ski’s homilies, pastoral letters, and addresses to authorities, as well as his lectures and conference presentations, took the form of a response to the situation. The general issues include the question about the quality of law and the minimum requirements to be met by a norm in order for it to be law, and it touches upon the catalog of fundamental rights. There are also specific issues, starting with the rights of the family. Here I focus on the first set of issues, showing, by reference to source texts, Primate Wyszyn´ski’s view of the features of law and the catalog of human rights. Primacy of the Law of God and the Law of Love During the celebration of St. Stanislaus in Kraków on May 13, 1973, Primate Wyszyn´ski said: There is a deep and indissoluble bond between divine law and human law. God’s law draws its inspiration from the power that the Heavenly Father has put into human nature; it expresses itself in a concrete way in the Ten Commandments and in the mouth of Christ—through the law of love of God and of humanity. The law of man can never be contrary to the law of God. If it were, it would not be a law in conscience (not in duty), for it ceases to be a law when it contradicts the law of God, the law of nature, the law of man as a child of God, and especially Christ’s law of love of God and of humanity.15 This statement is a condensed lecture of Wyszyn´ski’s on the essence of law. His views on the origin of law and the coherence of God’s law, natural law, and state law were rooted in the concepts of Saint Thomas Aquinas. Wyszyn´ski expressed it explicitly during a lecture on the thirtieth anniversary of the Faculty of Christian Philosophy of the Catholic University of Lublin, on March 7, 1976, when he wrote that humanity, “caught in the clutches of law, understood that above the 14 Agata Gumieniak, Prawo jako integralny element ładu społecznego w nauczaniu Pry­ masa Stefana Wyszyn´skiego [Law as an integral element of the social order in the teaching of Primate Stefan Wyszyn´ski] (Lublin: PETIT, 2010). . 15 Stefan Wyszyn´ski, “W obronie prawa Bozego. Podczas uroczystos´ci s´wie˛ tego Sta­ nisława w Krakowie 13 V 1973” [In defense of God’s law during the Feast of St. Stanislaus in Kraków, May 13, 1973], in Wyszyn´ski, Nauczanie społeczne, 551. Marian . P. Romaniuk, Zycie, twórczos´c´ i posługa Prymasa Tysia˛ clecia [Life, work, and ministry of the Primate of the Millennium], vol. 4: 1972–1981 (Warsaw: “PAX,” 2002), 93.

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eternal natural law, sometimes referred to as ius gentium, the law of God dominates.”16 He drew attention to the consequences of creating laws that are contrary to the law of God. Positive written law that does not meet the criterion of conformity with the natural law can often arouse social opposition. He wrote: “Very often an executed law—if it is against human nature—is the beginning of a ‘social revolu­ tion’ of man’s interior, of his order of thought and action, towards which man is moving.”17 He strongly emphasized that an unjust law would be a source of anguish and inner restlessness for human beings.18 The fundamental and guiding law, which Primate Wyszyn´ski repeatedly emphasized, is the law of love established by Christ. As he stated, the modern world makes less and less room for it, while the cruel experience of World War II is a lesson about the indispensable law of the Gospel, “which is the law of love in personal, family, and public life.”19 He stressed that the most important task and the most important thing is to stand up for humanity, for the rights of the human person. The defense and preservation of these rights is the cornerstone of any social order, in the spirit of justice born of supernatural love.20 He posed love as a social bond in opposition to the Marxist concept of class struggle.21 Inalienable Human Rights and Their Catalog Primate Wyszyn´ski, bearing in mind the divine origin of law, argued against the concept of civil rights granted by the state. He derived the source of fundamental rights22 from the inalienable dignity of human beings, created in the image and 16 Stefan Wyszyn´ski, “Prymat osoby nad rzecza˛ . Z okazji 30 rocznicy powstania Wydziału Filozofii Chrzes´cijan´skiej KUL 7 III 1976” [The primacy of person over thing: On the 30th anniversary of the Faculty of Christian Philosophy of the Catholic University of Lublin, March 7, 1976],. in Wyszyn´ski, Nauczanie społeczne, 715; Gumieniak, Prawo, 47, 54–56; Romaniuk, Zycie, 4:310. 17 Wyszyn´ski, “Prymat osoby,” 716; Stefan Wyszyn´ski, “Zmaganie sie˛ sprawiedliwos´ci i miłos´ci. Do prawników Warszawy 6 IV 1968” [The struggle of justice and love: To the Layers .of Warsaw, April 6, 1968], in Wyszyn´ski, Nauczanie społeczne, 359; Romaniuk, Zycie, vol. 3: 1965–1972 (Warsaw: “PAX,” 2001), 367–68. 18 Stefan Wyszyn´ski, “Realizacja praw osoby ludzkiej jako warunek pokoju. Z okazji 10 rocznicy encykliki Pacem in terris, Wrocław 3 IV 1973, . ” in Wyszyn´ski, Nauczanie spo­ łeczne, 543; Gumieniak, Prawo, s. 66; Romaniuk, Zycie, vol. 4, 83–84; Gumieniak, Prawo, 59–60, 64, 70–71, 75, 120. 19 Stefan Wyszyn´ski, “Zmaganie sie˛ sprawiedliwos´ci i miłos´ci” [The struggle between justice and love], in Wyszyn´ski, Nauczanie społeczne, 359. 20 Wyszyn´ski, “Realizacja praw,” 538; Gumieniak, Prawo, 67–68. 21 Gumieniak, Prawo, 38. 22 Stefan Wyszyn´ski, “Apel synodu w obronie praw człowieka. Po powrocie z Synodu Biskupów, Warszawa, January 26, 1972” [Synod’s appeal in defense of human rights:

212 M. Mikuła likeness of God. It is worth quoting his objection, regarding the project of amending the Constitution of the Polish People’s Republic, against making civil rights dependent on performing public duties: “A man, by becoming incapable of fulfilling public duties, does not cease to be a man. He is still a man. For he possesses in himself a deep humanistic value which gives him the right to live.”23 The cataclysm of World War II caused a radical need to rebuild values. Already in an article of September 16, 1945, tellingly titled “Human Rights,”24 Wyszyn´ski indicated a program of necessary actions: The last war dealt a heavy blow to humanity.… We ask, does the human being still have any rights? What more can be done if today whole millions of people were turned into ashes? A great cry of horror and indignation is not enough. It is necessary to demand human rights. In his article, he proposed a list of fundamental human rights “which must be pre­ served if humanity is not to perish”: the right to life, to reverence for God, to a family, to work, to choose one’s state freely, and to use one’s worldly goods. He referred to these rights as the inviolable “steel rights of humanity,” and their violation inevitably leads to a violation of the order established by God. In later texts, he returned to the systematic interpretation of the catalog of human rights several times.25 Due to the complexity of the presentation, it is worth mentioning two of them in particular. In January 1972, he wrote about the declaration adopted on October 25, 1971, by the Second Ordinary General Assembly of Bishops.26 The catalog of human rights was divided into four groups. The first included the right to life, the second referred to the right to satisfy hunger, and the third covered economic rights, including the problem of inequality between rich and developing countries. Group four included political and cultural rights, including the right to determine one’s own destiny. Primate Wyszyn´ski also stressed the importance of religious freedom and opposition to planned, administrative atheization.27 At a symposium in Wroclaw on April 3, 1973, he gave a talk titled “The Rea­ lization of the Rights of the Human Person as a Condition of Peace: On the Occasion of the Tenth Anniversary of the Encyclical Pacem in terris.” He stressed

23

24

25 26 27

After his return from the Synod of Bishops, Warsaw, January 26, 1972], in Wyszyn´ski, Nauczanie społeczne, 623; Was´kiewicz, “Prawa,” 14–15; Gumieniak, Prawo, 77. Stefan Wyszyn´ski, “Naród—Kos´ciół—Pan´stwo. Kazanie s´wie˛ tokrzyskie 25 I 1976” [Nation—Church—State. S´wie˛ tokrzyskie Sermon January 25, 1976], in Wyszyn´ski, Nauczanie społeczne, 712. Stefan Wyszyn´ski, “Prawa człowieka” [Human Rights], in Wyszyn´ski, Miłos´c´ i Spra­ . wiedliwo´sc´ (1st . printing: “Ład Bozy”, September 16, 1945, no. 3), 91, 94, 96; Marian P. ´ ´ Romaniuk, Zycie, twórczosc i posługa Prymasa Tysia˛clecia [Life, work, and ministry of the Primate of the Millennium] (Warsaw: “PAX,” 1994), 223; Gumieniak, Prawo, 99. Was´kiewicz, “Prawa,” 11–13; Gumieniak, Prawo, 101, analysis of the literature on the subject there.

Wyszyn´ski, “Apel synodu,” 623.

Gumieniak, Prawo, 41.

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the convergence of Pope John XXIII’s teaching with the fundamental principles of the Charter of Human Rights of the United Nations.28 He followed the pope in underscoring the right to life, to a decent standard of living, to culture, to religion, to choose one’s state and family life, to choose one’s job, to decent pay and pri­ vate property, to association, to emigrate and immigrate, to participate in public life, and to the protection of one’s rights (the rule of law). Primate Wyszyn´ski commented on this catalog, drawing attention to the duties that are inseparable from rights, such as the use of the right to property “in accordance with individual and social duties that are incumbent upon property.” He also pointed out that the independence of courts and freedom of expression are indispensable to ensuring rights.29 Each of these texts was written in different circumstances and in reference to different documents. Invariably, however, the right to life always came first. Wyszyn´ski wrote: “It is certain that life was not given to man by himself or by the state—only by God. And therefore no one has power over human life but God.” He pointed out that from this inalienable right follows prohibitions against persecution, sterilization, abortion, torture, war, euthanasia, genocide, mass campaigns against life, and racial persecution.30 In one of his most expressive and still emotionally evocative texts—“The basic condition of justice in the world: Thou shalt not kill”—he categorically excluded the existence of any reason for the state to justify killing defenseless and innocent human beings.31 In Conflict with the System: From Words to Deeds In the historical context, it was obvious that Primate Wyszyn´ski constantly reminded listeners and readers about the right to religious freedom. Immediately after the war, in 1945, he wrote: “One cannot, therefore, allegedly for the good of the state, close temples, destroy religious symbols and signs, forbid access to the holy sacraments, place police at confessionals, or control human conscience.”32 28 Wyszyn´ski, “Realizacja praw,” 542. He drew attention to this coincidence in his . speech in 1973 (“W obronie prawa Bozego”). One of the knotty problems of the contemporary reflection on human rights is to determine their content through the prism of multiculturalism. 29 Wyszyn´ski, “Realizacja praw,” 543. He referred to the papal encyclical several times: in the text “Zmaganie sie˛ sprawiedliwos´ci i miłos´ci,” 357, and again in his speech of May 13, 1973. 30 Wyszyn´ski, “Prawa człowieka,” 94; Wyszyn´ski, “Apel Synodu,” 624, 625; Stefan . Wyszyn´ski, “Ratujmy nasze człowieczen´stwo i zycie narodu. Do lekarzy Warszawy 23 III 1969” [Let us save our humanity and the life of the nation: To the doctors of Warsaw on March 23, 1969], in Wyszyn´ski, Nauczanie społeczne, 385. Romaniuk, . Zycie, vol. 3, 463–64. 31 Stefan Wyszyn´ski, “Podstawowy warunek sprawiedliwos´ci na s´wiecie: ‘Nie zabijaj’. Do lekarzy stolicy 15 III 1964” [The basic condition for justice in the world: ‘Thou shalt not kill’: To the doctors of .the capital, March 15, 1964], in Wyszyn´ski, Nauczanie społeczne, 227; Romaniuk, Zycie, vol. 2, 1956–1965 (Warsaw: “PAX,” 1996), 599. Was´kiewicz, “Prawa,” 13; Gumieniak, Prawo, 103, 106. 32 Wyszyn´ski, “Prawa człowieka,” 94.

214 M. Mikuła His reflections resulting from the experience of the German and Soviet occupa­ tions soon turned out to be adequate also for the communist governments. Actual freedom of religion, theoretically declared in Article 70 of the Constitution of the People’s Republic of Poland, should provide a sense of security and exclude the fear of disclosure of religious beliefs.33 He ruled out any interference by the authorities in shaping religious outlook. In 1973 he wrote, This right cannot be opposed by the most varied political or educational programs in which the freedom of the human person is restricted, especially the freedom to have one’s own worldview, which no authority on earth can impose on a person, because it does not possess such powers and authority.34 As a result of the breaking of the Concordat between Poland and the Holy See in 1945, as well as the repeal of more than seventy executive acts, there was no reg­ ulation of the legal situation of the Catholic Church in Poland. Attempts to arrange relations between the episcopate and the government were made throughout the period after the government’s resolution of September 12, 1945, making the Concordat nonbinding, but Primate August Hlond did not agree to compromise and pursued a policy consistent with the harsh course of Pope Pius XII. After Hlond’s death, the new primate, Stefan Wyszyn´ski, directed his work toward preparing a working and provisional modus vivendi, defined in a bilateral document that assumed compromises on the part of the church in the face of increasing repression. The “Agreement Concluded between the Representatives of the Government of the Republic of Poland and the Polish Episcopate” on April 14, 1950, in Kraków was formally signed by the members of the mixed commis­ sion, whose creation the church had requested already in 1948. The conclusion of the agreement with the communist government, an unprecedented event, was to the credit of Primate Wyszyn´ski, who wanted “to provide the church with a rela­ tively free and procured time to rebuild the religious life destroyed by the war.”35 The document contained a short preamble and nineteen points, supplemented by the protocol of the joint commission of the government of the Republic of Poland and the Polish episcopate in specific matters and addenda to individual points. The first half of the agreement defined the obligations of the church, while the second part outlined the church’s rights. The scope of the church’s obligations was formulated in such a way as to be convenient for the state. The episcopate was to call upon the clergy to teach the faithful to respect the law and state authority (point 1) and to exhort them to intensify their work in rebuilding the country (point 2). It was to ensure perma­ nent Polish ecclesiastical administration in the Recovered Territories—that is, the 33 Wyszyn´ski, “Pragniemy wolnos´ci,” 559, 561.

34 Wyszyn´ski, “W obronie prawa,” 552; Gumieniak, Prawo, 107–09, 111.

35 Krasowski, Pan´stwo, 29, 49–52, 60, 65–68, 93, 68; Peter Raina, Stefan Kardynał

Wyszyn´ski Prymas Tysia˛ clecia, vol. 1 (Lublin: Stowarzyszenie Absolwentów i Przyjaciół Wydziału Prawa Katolickiego Uniwersytetu Lubelskiego, 2020), 167–69, 214; Ficek, Primate, 190.

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territories annexed to Poland as a result of the decisions of the Yalta and Potsdam peace conferences (point 3)—and to oppose the claims of the German clergy (point 4). The supreme authority of the pope was to be recognized only in mat­ ters of faith, morals, and church jurisdiction (paragraph 5). The episcopate undertook to explain to the clergy the need for rural reform through the devel­ opment of cooperatives (point 6). Moreover, it was to oppose the abuse of reli­ gious feelings for antistate purposes (point 7), condemn the so-called criminal activity of the underground bands—that is, the remaining groups of the indepen­ dence underground (point 8)—and support the pursuit of peace and condemn the efforts to provoke war (point 9). The mandate provided for religious instruction in school, the possibility for those wishing to pray before and after school, and days off for Lenten retreats. The church agreed to the participation of the state in the development of religious textbooks and in the selection of visiting teachers of religious lessons (point 10). This was a significant departure from the ideal model that Wyszyn´ski had written about in his doctoral dissertation. The functioning of Catholic schools was to be undisturbed, as was that of the Catholic University of Lublin (point 11). The functioning of Catholic and Marian associations was to be ensured (point 12), as were charitable, philanthropic, and catechetical activities with respect for the law (point 13). Publishing and press rights analogous to those of non-Catholic pub­ lications were guaranteed (point 14). Public worship, pilgrimages, and proces­ sions—agreed to by the state authorities for the preservation of order—were to be permitted (point 15). Special pastoral care in the army, prisons, and hospitals was guaranteed (points 16–18), as was the free activity of religious orders (point 19). The signing of the agreement caused a wide resonance in the society and the church. It did not have the status of a legal act but, as the primate explained many times, it was a necessary element of normalization of state-church relations and prevention of further bloodshed and persecutions in the nation deeply affected by the Nazi occupation. This is not the place for a precise analysis of the expressed positions, but it is worth mentioning that the actions of the primate were fully approved by Pope Pius XII. Undoubtedly, the agreement constituted a point of reference against which it was possible to record successive cases of violations of religious freedom in Poland by the communist authorities. This, in turn, caused firm state opposition to the primate and the episcopate, which became one of the main reasons for his arrest. He made his return to Warsaw from internment dependent on the conclusion of a new agreement, which in its content referred to the original one from 1950.36

Conclusion Thousands of texts by Blessed Cardinal Stefan Wyszyn´ski constitute a huge source material, which makes it necessary to bring out only some threads in his legal 36 Krasowski, Pan´stwo, 69–71; Gumieniak, Prawo, 201–03; Raina, Stefan Kardynał Wyszyn´ski, 169, 204; Łatka and Mackiewicz and Zamiatała, Primate, 42.

216 M. Mikuła thought. I do not pretend that the issues described here complete the catalog of the most important legal questions he raised; his reflections on the rights of the family and the rights of workers were equally important. The texts discussed here do, however, highlight several important themes from the legacy of his legal thought. First is the connection of law with the world of values and the correlative acceptance of law by society, as well as the emphasis on the primacy of God’s law and the law of love. To this I would add the legacy of his thought regarding the inalienability of human rights stemming from the dignity of the person created in God’s image and likeness. In the catalog of human rights, which Wyszyn´ski for­ mulated many times, the inviolability and protection of the right to human life from conception to natural death comes first. Another specific human right is the right to religious freedom, which is inevitably concretized in the framework of state-church relations; one of the specific issues is the presence of religious education in the public space. In conclusion, it is worth emphasizing the iron consequence of Blessed Car­ dinal Stefan Wyszyn´ski in proclaiming and not abandoning these fundamental rights.

14 Edward Grzymała (1906–1942) Wojciech Dajczak

Introduction “With God’s help and grace, even what may seem difficult to us will ultimately be easy and pleasant,”1 wrote Edward Grzymała in a letter dated July 19, 1942, one of the many he sent from Dachau concentration camp to offer comfort and con­ solation to his family and his parishioners in occupied Poland. Not long after he sent this letter, camp authorities remanded him to the invalid block, citing exhaustion. On August 10, 1942, he was transferred from Dachau to the so-called euthanasia center at Schloss Hartheim near Linz, Austria. After dying as a martyr there, the Catholic priest and doctor of canon law with a degree from the Gre­ gorian University in Rome was proclaimed blessed by Pope John Paul II on June 13, 1999, alongside the rest of the 108 Martyrs of World War II. Many Christians have shown themselves capable of maintaining practical fidelity to Christian principles in concentration camps, places that many considered either forsaken by God or evidence of his nonexistence. The most famous example of such devotion involves Saint Maximilian Kolbe, who, in late July 1941, volun­ teered to be starved to death to save the life of a fellow Auschwitz inmate. Kolbe was proclaimed blessed by Pope Paul VI in October 1971 and was canonized in October 1982.2 The beatification of 108 martyrs in 1999 added three blessed jurists to the rich history of Christianity in Poland. The writings and personal archives that Grzymała left behind provide a unique lens through which to inter­ rogate the connection between Christianity and law, as his efforts as a clergyman and scholar of matrimonial law coincided with a unique period in Polish history. Barely two years after the end of World War I in November 1918, which restored Poland to sovereignty after more than 120 years of partition, Poland found itself repulsing an invasion from Bolshevik Russia. From the state’s recon­ stituting itself after 1918 until the outbreak of World War II, on September 1, 1939, debates took place across Poland over the shape of the country’s new legal 1 Edward Grzymała, letter from Dachau, Jul. 19, 1942. The letters are kept in the Archives of Greater Poland and Mazovia of the Society of Jesus in Warsaw (referred to hereafter as ATJ, shelfmark: Grzymała). 2 Elaine Murray Stone, Maximilian Kolbe: Saint of Auschwitz (New York: Paulist Press, 1997).

DOI: 10.4324/9781003181255-15

218 W. Dajczak system. Ultimately, however, no changes were made to its existing framework of matrimonial law. The renascent state had its share of social issues, such as poverty and rapid social change after World War I. Edward Grzymała faced these challenges throughout his life. His doctoral dissertation on marriage dealt with an issue that provoked considerable social tension and fueled controversy in Polish legal discussion. The legacy of Grzymała, a lawyer elevated to blessedhood, therefore inspires us to ask questions such as: How did he interpret the link between Catholic faith and the realism and rationality of legal thinking? What were the key features of his approach to social issues? What does Grzymała’s life testimony say about his legal argumentation and understanding of law?

Biographical Sketch . Edward Grzymała was born on September 29, 1906, in the village of Kołodzia˛ z, around a hundred kilometers southwest of the Polish capital of Warsaw. He lived with his parents until 1921, helping them with farm work and receiving basic education from kind neighbors to make up for the lack of public schools in the area.3 For the 1921–22 school year, he was admitted to the fourth grade of a middle school in Warsaw. Later on, however, lack of means prevented him from continuing his education in the capital. At the time, outreach programs operated by the Catholic Church and scouting organizations were a key source of support for talented children from peasant families in Poland. In Grzymała’s case, such assistance came from the Reverend Antoni Bogdan´ski from Włocławek, the first chief chaplain of the Polish Scouting and Guiding Association. Following Bogdan´ski’s intercession, the sixteen-year-old Grzymała was taken in as a ward by Janina Zalewska, a lonely widow living in Włocławek, a town located about 150 kilometers northwest of Warsaw, where he was then enrolled in secondary school. After graduating with honors on April 12, 1926, Grzymała decided to pursue his aspirations of becoming a Catholic priest and joined the seminary in Włocławek to begin his clerical education. In his recommendation letter of July 17, 1926, Reverend Bogdan´ski wrote of Grzymała: “As an individual, he stands out from his peers on account of his steadfast person­ ality, deeply religious attitude, extraordinary abilities, and unparalleled diligence.”4 At the time, the Major Theological Seminary in Włocławek was considered the premier divinity school in the country, producing clergymen who made significant contributions to the Catholic Church in Poland. The school’s alumni included, among others, Stefan Wyszyn´ski (class of 1924), who would go on to be called Primate of the Millennium.5 Studying at the seminary, Grzymała proved his abilities and diligence, receiving top marks in his class and becoming proficient in French, 3 Personal files of Edward Grzymała in the Archives of the Włocławek Diocese, 62 (referred to hereafter as ADW, shelfmark: pers. 92). 4 ADW, pers. 92, 3. 5 See Chapter 13 in this volume.

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6

English, German, Spanish, and Italian, alongside Latin, Greek, and Hebrew. After five years at the school, he was ordained a deacon at Włocławek Cathedral on June 14, 1931. In all likelihood, the needs of the local church prompted the bishop to dispatch the talented young priest to Rome, where he was to study canon law at the Pontifical Gregorian University.

Studying, Researching, and Exploring Material Cultural Heritage in Rome Edward Grzymała arrived in Rome on October 25, 1931. His academic record indicates a broad legal education, including Roman law classes with Professor Ramon Bidagor in March 1932 and with Professor Ivo Zeiger in June 1932. The profiles of the teaching staff allow us to assume that the Grzymała’s coursework combined the study of law with the broader contexts of the Western legal tradi­ tion. Bidagor published his book La Iglesia propia en España: estudio histórico­ canónico (The proprietary church in Spain: a historical-canonical study) in 1933, and followed it up in 1958 with the report Bonne foi et sa fonction en droit cano­ nique (The role of good faith in canon law). Zeiger, meanwhile, spent the 1930s writing and publishing his book Historia iuris canonici. De historia fontium et scientiae iuris canonici (History of canon law: the history of sources and the sci­ ence of canon law [1939]). His later works include the essay Naturrecht und Natur des Rechts (Natural law and the nature of law [1951/52]). At the Gregorian University, Grzymała worked on a doctoral dissertation that dealt with a hotly debated subject important in Poland at the time. Titled Ratio sacra in matrimonio canonico et civili (Sacred reason in canonical and civil mar­ riage), the dissertation was presented to the public in December 1934. Between 1931 and 1935, Reverend Grzymała was granted several audiences with Pope Pius XI. Aside from his academic work, Grzymała also diligently visited the many churches and landmarks of Rome. In 1932 he passed his Italian language, Italian literature, archeology, art history, and modern Italian history exams at the ItalianAmerican Society, earning top marks.7 Between 1934 and May 1935, he had the opportunity to study the inner workings of the Apostolic Tribunal of the Roman Rota.8

Four Years in Free Poland and Then Three as a Witness and Victim of Genocide Following his return to Poland, Grzymała served from July 1935 to August 1938 as a vicar in several parishes of the Włocławek diocese, staying the longest in Konin and Kalisz. Throughout much of his ministry, he faced the problem of how to act 6 Marek Matusik and Zbigniew Sobolewski, Chce˛ zdobyc´ całe niebo. Błogosławiony ks. Edward Grzymała (Warsaw: Dzieło Pomocy Ad Genetes, 2015), 14. 7 ADW, pers. 92, 20. 8 ADW, pers. 92, 77.

220 W. Dajczak and react in communities affected by social injustice. He spent the last year before the outbreak of World War II in Włocławek, where, on September 1, 1938, he was appointed defender of the bond (defensor matrimonii) for the ecclesiastical tribunal at the Włocławek Diocese. In that capacity, he worked on cases presided over by none other than Stefan Wyszyn´ski, the Primate of the Millennium.9 Nazi Germany’s invasion of Poland on September 1, 1939, began a five-year world war and brought about atrocities that would, in their wake, be defined as genocide. As a result, Poland lost more than six million citizens, mainly ethnic Poles and Jews, or roughly 22 percent of its prewar population. Out of that number, nearly 5.4 million citizens perished as a result of the widespread terror of the occupation.10 The term genocide was first proposed in 1944 and defined as the destruction of a nation or an ethnic group. To achieve that end, the German occupiers used a variety of means, including “the systematic pillage and destruc­ tion of church property and persecution of the clergy,” through which “the German occupying authorities have sought to destroy the religious leadership of the Polish nation.”11 The Diocese of Włocławek was affected particularly severely by these repressions because its territory was incorporated into the German Reich. Between 1940 and 1941, the Germans arrested some 90 percent of the diocese’s clergy. Shortly after the outbreak of the war, Grzymała moved to Aleksandrów Kujawski, a small town about forty kilometers northwest of Włocławek. There, he received a nomination from his bishop, then in exile in Hungary, appointing Grzymała as vicar general of the diocese. He was entrusted with managing the northern part of the diocese and looking after the clergy imprisoned in the transit camp set up for them there.12 Grzymała carried out these duties with ardor and ministered to many of the diocese’s faithful, who found themselves without a priest. Grzymała was arrested by the Germans on August 26, 1940, and was sent a mere three days later to the Sachsenhausen concentration camp, about forty kilo­ meters from Berlin. On December 14, 1940, he was transferred to the con­ centration camp at Dachau, about twenty kilometers from Munich, where he was assigned the inmate number 22664. As grounds for his detention, the records say nothing beyond, “clergyman, protective custody.”13 Concentration camp con­ finement meant backbreaking labor, grueling roll calls, starvation, and violence 9 ADW, og. III, 1, 17. 10 Sprawozdanie w przedmiocie strat i szkód wojennych Polski w latach 1939–1945 (Warsaw: Biuro Odszkodowan´ Wojennych przy Prezydium Rady Ministrów, 1947), report digitized by the University Library in Poznan´: https://www.wbc.poznan.pl/ dlibra/show-content/publication/edition/68987?id=68987. 11 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Gov­ ernment, Proposals for Redress (Washington, DC: Carnegie Endowment for Interna­ tional Peace, Division of International Law, 1944), 89. 12 Kazimierz Rulka, “Edward Grzymała,” in Włocławski Słownik Biograficzny, vol. 5, (Włocławek: Lega, 2008), 48. 13 KZ-Gedächtnisstätte Dachau, Stiftung Bayerische Gedankenstätten, message to author, Mar. 23, 2021.

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from the camp guards, which Grzymała often found himself the target of because of his manifest intelligence and piety. Despite his own physical frailty, he still managed to help inmates afflicted by despair and old age, both with his words and through his actions.14 In the final part of this chapter, I will return briefly to the testimonies of those he cared for and to Grzymała’s surviving letters from Dachau. Suffering from extreme exhaustion and no longer fit for work, Grzymała was struck from the Dachau camp inmate roster on August 10, 1942, and transferred via the so-called invalid transport to the euthanasia center at Schloss Hartheim. The exact circumstances of Edward Grzymała’s death remain unknown. Evidence presented in the Dachau trial indicated that transferring a prisoner to the invalid transport implied that they would be murdered.15 A fake German death certificate, dated September 14, 1942, stated that the Reverend Edward Grzymała died at 7:45 a.m. on September 11, 1942, in Dachau, listing cardiac arrest due to enteritis as the cause of death.16 Reflecting on his legacy, we would do well to remember that he died at the young age of thirty-six.

The Search for an Effective Implementation of Catholic Matrimony in Twentieth-Century Law When Poland regained independence in November 1918, five different systems of private law were in force in different parts of the country.17 However, the forma­ tion and dissolution of marriage (the so-called personal marriage law) was gov­ erned by religious law across most of Poland’s reconstituted territory—with each of the main monotheistic religions abiding by its own laws. Only in western Poland, in the former German partition, was the question of matrimony fully regulated by the German Civil Code. Among the religious laws, the canon law of the Catholic Church was dominant, because in 1921, 74.9 percent of the popu­ lation declared affiliation with this church.18 Already in 1920, the Civil Law Sec­ tion of the Codification Commission included among its most pressing tasks the introduction of a uniform personal marriage law. Crucial to the preparation of commission’s draft of such a uniform law were the questions: Could alternative marriages effected by a competent clergyman or public official be allowed? Should marriages concluded in religious form allow the possibility of divorce? Should the exclusive jurisdiction of church tribunals in reli­ gious marriages be abolished? 14 Matusik and Sobolewski, Chce˛ zdobyc´, 28–29. 15 Document of the International Information Office for the former concentration camp Dachau, Aug. 9, 1946. Arlosen Archives, message to author, May 26, 2021. 16 Arlosen Archives, message to author, May 26, 2021. 17 Wojciech Dajczak, “Historical Development of Private Law in Poland,” in Founda­ tions of Law: The Polish Perspective, ed. Wojciech Dajczak, Tomasz Nieborak, and Paweł Wilin´ski (Warsaw: Wolters Kluwer, 2021), 50. . 18 Zygmunt Lisowski, Prawo małzen´skie. Projekt ustawy (Poznan´: Ksie˛ garnia s´w. Woj­ ciech, 1934), 10.

222 W. Dajczak In March 1920, most members of the Civil Law Section answered these ques­ tions in the affirmative. Three of its members, however, including internationally . renowned jurists Leon Petrazycki19 and Stanisław Wróblewski,20 requested that the decision on personal marriage law be postponed on account of the unavoid­ able social conflicts it was bound to generate. While a draft law conforming to the principles already adopted in 1920 was passed by the Codification Commission in 1929, it was not publicly consulted upon, and its writing generated considerable social tension. Opponents of the changes included some supporters of the secu­ larization of marriage law and lay Catholics, as well as the Polish Episcopal Con­ ference, the Orthodox clergy, and the Congress of Polish Rabbis. The publication of the draft was ultimately delayed and rescheduled for the end of 1931,21 several months after Grzymała left for his studies in Rome. The conflict and debate over the new Polish marriage law continued throughout his stay in Italy. In 1934, Professor Zygmunt Lisowski, supported by the Polish Episcopal Conference, published a new draft, preserving the application of religious law to marriages contracted by members of the country’s main monotheistic denomina­ tions. Explaining the reasons for the revision, Lisowski pointed out the “need to reckon with the reality” of the beliefs held by the majority Catholic population and the fact that the Polish Constitution of 1921 declared Catholicism to be the first among equal religions.22 Grzymała’s doctoral dissertation should therefore be viewed in the context of this judicial controversy and attendant public disputes. Drafting his dissertation as the debate grew ever more heated, Grzymała finally completed it almost at the same time that Lisowski published his proposal. Reluctant to embroil himself in the debate unfolding back in Poland, where even the legal critiques of the Codification Commission’s project were plagued with unreliable arguments, Grzymała also believed that a canonist should not be involved in the drafting of secular law, especially amid such fiery political debate.23 On the other hand, Grzymała argued that four factors could justify further inter­ rogation of the centuries-old conflict between canon and secular law: (1) the promulgation of the first Code of Canon Law, which came into force in 1918, despite it being “based on an old law”; (2) the developing practice of concluding international treaties between states and the Holy See; (3) the drafting of new civil codifications; and (4) the inspiration brought by the encyclical Casti connubii, promulgated by Pope Pius XI on December 31, 1930.24 Written in Latin, Grzymała’s dissertation was published under the title Ratio sacra in matrimonio canonico et civili. While, as a Catholic priest, Grzymała naturally gravitated toward asserting the exclusive application of religious law to 19 See Chapter 10 in this volume. 20 See Chapter 19 in this volume. 21 Leonard Górnicki, Prawo cywilne w pracach Komisji Kodyfikacyjnej Rzeczypospolitej Polskiej w latach 1919–1939 (Wrocław: Kolonia Limited, 2000), 195–202. . 22 Lisowski, Prawo małzen´skie, 9–10.

23 Edward Grzymała, Ratio sacra in matrimonio canonico et civili (Rome: Soc. Tipo­ graphica A. Marioce, Pisani, 1935), 220.

24 Ibid., 10. Subsequent page references are noted in parentheses in the text.

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religious marriages, he still argued that such a position ought to be based on extensive legal reasoning in order to paint “a true picture of things” (11). As such, Grzymała’s reasoning was to be based on four distinct pillars: a realist approach to reconstructing human intuitions as to the nature of marriage; a realist recognition of the existence of a broad variety of unions called marriage; an effort to identify the overlap between the nature of marriage reconstructed from experience and marriage in the Catholic Church; and an effort to identify the legal instruments effective in the practical application of the Catholic doctrine of marriage to unions in which at least one party is Catholic. The realism in Grzymała’s reconstruction of his intuitions about the nature of marriage is best captured by his declaration, “Things are this way or that way not because we call them so … [but because] they are as they are” (64). Adopting a broad chronological and geographical basis for his reconstruction, he formulated a premise encapsulated by the following statements: “in ancient India, among the Semites in the time of Hammurabi, and in the cities of ancient Greece, marriage was a religious ritual” (35); “in ancient Rome, the traditional confarreatio mar­ riage celebrated in the religious form enjoyed the highest respect” (35); “while heretics may have broken off their ties with the Catholic Church, they still retained the notion of the sacred character of marriage” (79); “marriage appears as a religious act in the holy books of all nations” (28); “even those jurists who called for a secular, contractual regulation of marriage, such as Pothier or Portalis, did not deny the religious character of the institution” (35); “history shows that reli­ gious marriages commanded the greatest respect of all” (108); “those peoples who sought to preserve their indigenous cultural traditions in the twentieth century usually treated marriage as something sacred” (142); “reducing marriage to a conventional contract has no support in either biology, history, or philosophical argument” (21). These declarations formed the basis for Grzymała’s legal reason­ ing that “the most we can do is to recognize the nature of things” (65), that is, recognize that marriage is a union with a special, intrinsically sacred nature, expressed by Grzymała’s use of the Latin term ratio sacra. From this premise arose his general assumption that “the religious character of marriage does not derive from Christian doctrine, but from the fact that it is a union of a man and a woman formed for the purpose of having offspring” (27). Complementing this assump­ tion was his assertion that “the conjugal bond between unbelievers also has a sacred character” (68). Grzymała’s realism-inflected effort to grasp the specific nature of marriage had to necessarily clash with both the historical and the contemporary picture of social reality, as well as with the secularization of marriage law provisions. The essence of his realist approach to these issues is encapsulated by his assertion that “law is not based on utility (Ius enim non utilitate fundatur), as something is not just because it is useful, but because it is worthy and leads to a worthy end” (25). This was not a realism that rejected utility, but a realism that refused to allow utility to perma­ nently and generally justify a reprehensible solution. It was a realism that sought to go beyond simple frameworks, and in taking a broad view of social experience, Grzymała considered the historical and practical dimensions of the many types of

224 W. Dajczak unions between men and women, while simultaneously excluding from con­ sideration those forms of sexual activity that he described as degenerate, such as bigamy, polyandry, and polygamy. Grzymała identified three types of unions between men and women that existed at the time wholly separately from religion: civil marriages fully regulated by secular law, concubinage, and so-called free unions. Grzymała saw the state’s encroachment on, and intent to monopolize, the reg­ ulation of marriage, beginning in the sixteenth century in the Netherlands, as driven by hatred of religion. While he recognized the utility of supporting mar­ riage through secular law, Grzymała rejected, in light of the inherently sacred essence of marriage, the idea that marriage could be somehow “rediscovered” by secular law (62). He also dismissed the notion that secular law could in any way regulate a bond between Catholics that, at its core, was sacred in nature. He recognized that marriages between atheists, likewise patterned after nature, should be regulated in accordance with it by the state in the public’s interest (80). Moral decency and justice, as Grzymała understood them, precluded the reduction of the secular regulation of marriage to mere unconstrained legislation that ignores the natural and socially crucial attributes and purposes of the union (65, 170). Historical, cultural, and religious changes influenced Grzymała’s thoughts on concubinage to a considerable degree. He described the tolerance of concubinage and its special status in the eyes of the early church in the Roman Empire and among the Germans as “admirable prudence” (96). Relying on historical sources, Grzymała recounted that the Catholic Church of his time treated concubinage in which there were no obstacles from either divine or natural law as equal to a “real marriage” (97). He also pointed out that as the law developed, concubinage was eventually prohibited by the church and removed from the purview of secular law (89). Drawing on Roman law, Grzymała asserted that as a union, concubinage was similar to marriage but lacked its dignity (84). Referring to modern times, he also argued that marriage fully regulated in secular law as a contract was indis­ tinguishable from concubinage in the eyes of Catholic doctrine and “by its very nature” (91). Grzymała’s practical remarks on marriage based solely on secular law and con­ cubinage can be seen as drawing on, but not exactly echoing, the realism of the early church. Despite the fact, he asserted, that from the church’s perspective marriage based entirely on secular law went against law and morality, such a union, Grzymała noted, “by virtue of secular law acquired a certain stability, pro­ duced a number of natural and legal effects … which cannot be ignored” (81). While canon and secular law saw little to no difference between concubinage and free unions, Grzymała argued that “facts could be described differently” (103). The canonist also believed that free unions ought to be singled out in the legal debate over relationships between men and women, because they posed “the greatest danger” (103). Defining their essence as “arbitrary sexual life without regard for the rights of third parties,” (104) he linked the growing attention paid these relationships with the changes to the fabric of society following World War I, which he called collectively the “sexual revolution” (106). Grzymała pointed to

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the recognition of free unions in the laws of Soviet Russia of 1923 and 1927 as evidence of their inherent threat (112). The understanding of moral decency that underpinned Grzymała’s realist view of social reality led him to consider as decent only a legal framework in which Catholic marriage was based on and bound by canon law. However, in light of the impassioned debate over the understanding of freedom in shaping sexual life and family law, he found it fair to advocate concern for the effects of strictly secular marriages and concubinages. Grzymała also identified a moral red line that he believed should never be crossed, namely, the legal separation of family life and the rearing of children from the union of parents. One example of such a divorce could be found at the time in the laws of Soviet Russia, where free unions of men and women were uncoupled from childrearing, which was organized and run by the state (175–76). Grzymała pointed out that upheaval such as this could easily pave the way toward abortion, eugenics, and sterilization (174). The quest for a realist reconstruction of the nature of marriage and his own realist view of social reality led Grzymała to the question of how to identify the overlap between the reconstructed nature of marriage and marriage in the Catholic Church. It should be noted that Grzymała constructed his argument for the specific nature of marriage drawing on a broad array of different cultures and religions from all over the globe, with the key issue being the kind of union the man and woman wanted to enter into (118). Accordingly, he argued that the nature of marriage ultimately had no bearing on the fact that the union was seen by the Catholic Church as a sacrament, and he added that the sacramental nature of marriage essentially elevated the dignity of a union that was intuitively conceived as sacred in different cultural contexts (133). Grzymała, however, was well aware of the tension between the indissolubility of sacramental unions and the breakdown of marriages in society, and he sought to address two aspects of the apparent inconsistency between Catholic marriage and its broader social context. One revolved around the interpretation of grounds for declaring a marriage void by an ecclesiastical tribunal. Grzymała subscribed to the view that good customs and natural duties ought to be protected to the extent possible when declaring a marriage void, and, consequently, he allowed for such a decision by an ecclesiastical tribunal only in cases where marriage was entered into with deliberate malicious intent of which others were aware (199). In other situations, he believed it was the most important duty of the church to try and save the union in the hope of it ultimately bearing good fruit (200–01). The second aspect concerned the involvement of Catholic judges and attorneys in divorces between Catholic spouses before secular courts. Here, Grzymała saw some room for flexibility but ultimately believed that this problem required further clarification from the pope. With this caveat, he noted that handing such cases over to non-Catholic officers of the court could potentially bring “much greater loss to the church” (204), and he recommended that, rather than relinquish their positions, Catholics ought to “follow, to the extent possible, the instructions of the church” (206). Thus, Grzymała’s approach to the growing instability of mar­ riages emerging as early as the 1920s and 1930s seemed to gravitate toward two

226 W. Dajczak objectives: to prevent the situation from softening the rigor of church tribunals and to prevent it from weakening Catholic presence in secular courts. A realist approach to such boundaries left Grzymała with the question of how to justify the exclusive jurisdiction of ecclesiastical tribunals over marriages between Catholics. In the Polish codification debate, Lisowski based his argument for such a position on the beliefs of the majority Catholic population and the pri­ vileged position of Roman Catholicism guaranteed by the 1921 Constitution.25 Grzymała’s legal argumentation was more elaborate and took as its starting point the remaking of international law following World War I, which he believed “put state sovereignty in a different light” as a consequence of stronger conventional ties between states. He saw the key manifestations of this change in the establish­ ment of the League of Nations and its Permanent Court of International Justice, and in the conclusion of the Lateran Treaties, which recognized the sovereignty of the Vatican (139). Grzymała saw the bond between the international legal recog­ nition of the Holy See and the universality of the church as special, saying that the Catholic Church and the state were now “interdependent rather than indepen­ dent” (139). Believing that changes in international law gave new opportunities to the Catholic Church, Grzymała recommended the signing of concordats or other international agreements as a way to protect the application of canon law to Catholic marriages in particular countries (140–41). This arrangement, however, naturally precluded the possibility of extending Catholic marriage law to non-Catholics (208). Grzymała saw legal reasoning based on international treaties as supporting the implementation of the Catholic doctrine of marriage in national legal frameworks, and he criticized the draft marriage law pro­ duced by the Polish Codification Commission as a violation of canon law that ran against the provisions of the Concordat of 1925 (216–20). The privileged position of Roman Catholicism among equal major religious denominations, written into the Polish Constitution of 1921, complemented Grzymała’s argumentation based on the Concordat (216). Grzymała believed that international law was the best instrument for the implementation of the Catholic doctrine of marriage, but was well aware that violations of international law were “not that infrequent” (185). Should the violations be so serious as to render legal argumentation impotent or impossible, Grzymała’s recommendations followed his interpretation of realism: first, to act in accordance with principles arising from the nature of things; second, to protect the authority of the church to act against any enemies when it serves the salvation of souls (186–88).

Grzymała’s Efforts to Make the Message of Christianity More Accessible The popular jubilation at Poland’s reemergence as an independent state in 1918 was soon undercut by widespread economic and social strife. In the early 1930s, Reverend Grzymała found himself confronted with the question of how to speak of justice to a society fraught with discord. Although he recognized as dangerous . 25 Lisowski, Prawo małzen´skie, 9–10.

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the negation of justice brought by the revolution in Soviet Russia, which he described as a “historical error and licentiousness,”26 his sermons were attended by communists, who seemed to like them. They called him “our priest.”27 These words were later used to describe Grzymała by his superior, the parson in Konin, in a July 1936 letter, in which the parson petitioned the bishop to have “this Polish Savonarola” moved elsewhere.28 On the other hand, barely two months earlier, the bishop had been asked to extend Grzymała’s stay in that parish by the board of the local branch of Catholic Action, an association of lay Catholics established to strengthen Catholic influence in society by promoting the principles of Catholic social justice.29 Writing about Grzymała, the board said that “the parishioners, having met the priest … flocked to Catholic Action in order to meet him and listen to his words, advice, and guidance, as often as possible, which really lifted our spirits and encour­ aged us to work more intensely on behalf of Catholic Action.”30 Grzymała was capable of reaching such disparate groups of people by clearly explaining the meaning of brotherhood and the need for justice according to the Gospel. His desire to make the principles of Christianity more accessible is best exemplified by his effort to translate the Gospels. Published in 1936, the books were to give “a clear, simple, and popular translation,”31 along with commentary on various Gospel passages written for laypeople. This translation was one the first books published in Poland by the Society of Saint Paul, established with the purpose of publishing inexpensive books to pro­ mote the principles of Christianity. Grzymała, a member of the Society of Saint Paul, believed that the organized propagation of such content, preferably within the framework of a “Catholic International,” was crucial to curbing the influence of the Communist International.32 Grzymała’s approach to social issues in his ministry was consistent with his understanding of realism in legal reasoning, predicated on the belief that one should clearly explain the rationale for the solutions one was arguing for. While he sought to be effective in achieving his goals, he would not allow the adoption of a solution contrary to the premises he believed to be true.

Grzymała’s Message from the Site of Genocide Grzymała’s arrest by the Germans in August 1940 fundamentally changed the environment in which he made his decisions about how to act, and how and what 26 Edward Grzymała, “Katolicyzm i faszyzm,” Ateneum Kapłan´skie 33, no. 2 (1934): 174. 27 ADW, pers. 92, 37. 28 ADW, pers. 92, 37. 29 “Ubi Arcano Dei,” Acta Apostolicae Sedis 14 (1922): 673. 30 ADW, pers. 92, 39. 31 Edward Grzymała, Ewangelia S´wie˛ ta Pana Naszego Jezusa Chrystusa (Cze˛ stochowa: Towarzystwo S´w. Pawła, 1936), 2. 32 Edward Grzymała, “Nowy rodzaj apostolstwa Silvania,” Ateneum Kapłan´skie 33, no. 1 (1934): 51.

228 W. Dajczak to preach to his captors and fellow inmates. Alongside his seventeen surviving letters sent from the Dachau concentration camp to occupied Poland between June 1, 1941, and August 2, 1942, Grzymała’s time in the camp has been described in accounts by fellow inmates who lived to see Dachau liberated by the U.S. Army on April 29, 1945. The camp authorities limited the number of letters to two per month and censored the contents of messages written in German, greatly limiting the inmates’ freedom of expression. Notably, however, no changes appeared in the subject matter or the style of Grzymała’s letters throughout his detention, and no traces can be found of the events that would mark turning points in Grzymała’s camp life. The first of these events was the roll call of September 18, 1941, during which the assembled clergymen collectively refused to sign the Volksliste and were con­ sequently banned from religious practice.33 The second turning point was Grzy­ mała’s severe beating on January 3, 1942.34 The third was his collapse at roll call due to exhaustion and his subsequent transfer to the so-called invalid block in early July 1942.35 Grzymała’s letters from Dachau reveal concern for his loved ones back in occupied Poland and attempts at extending them a measure of comfort and solace: “Now you can be of service to others.”36 “Winter is coming. How are you on food and coal? Any news of the parish?”37 “Many suffer more than we do, so we should bear our hardships with grace.”38 There were also words of longing: “I often look back to my homeland.”39 And, “By next year, we shall be celebrating [Christmas] together.”40 Attempts to explain the existing situation using spiritual terms were also an important part of the correspondence: “It seems to me that I have become stronger, more profound, and that I value my vocation now more than I ever used to.”41 “Christmas for me, too, was like any other day, but I received so much grace during those days that I know not how to thank Jesus for all of it.”42 “In everything we should only seek the will of God, in living and dying alike.”43 The picture painted in the censored letters is consistent with the accounts of fellow inmates. A detainee that shared living quarters with Grzymała recalled that the priest “was cheerful, smiling, I never saw him nervous.… Physically frail, he still tried to help the weak and the broken.”44 Defying the Germans’ proscriptions, “every day 33 Matusik and Sobolewski, Chce˛ zdobyc´, 26–27.

. 34 Stefan Biskupski, Ksie˛za polscy w obozach koncentracyjnych: wspomnienia byłego wie˛z´nia

obozów w Sachsenhausen i Dachau (London: F. Mildner and Sons, 1946), 55. 35 Matusik and Sobolewski, Chce˛ zdobyc´, 29–30. 36 ATJ, Grzymała, letter from Dachau, Jul. 20, 1941. 37 ATJ, Grzymała, letter from Dachau, Oct. 19, 1941. 38 ATJ, Grzymała, letter from Dachau, Apr. 5, 1942. 39 ATJ Grzymała, letter from Dachau, Jul. 27, 1941. 40 ATJ, Grzymała, letter from Dachau, Jan. 11, 1942. 41 ATJ, Grzymała, letter from Dachau, Aug. 23, 1941. 42 ATJ, Grzymała, letter from Dachau, Jan. 11, 1942. 43 ATJ, Grzymała, letter from Dachau, May 17, 1942. 44 Matusik and Sobolewski, Chce˛ zdobyc´, 37. This statement is from Stanisław Kucharzak, a prisoner in Dachau beginning December 14, 1940 (inmate number 22567).

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in the huts he told us of the day’s patron saint and drew parallels between their life and our situation. With his words, he uplifted those whose spirits the camp cru­ shed.”45 Another fellow inmate recalled that Grzymała “was hated by the Gestapo and the guards because of his eloquence, intelligence, and piety.”46 Imprisoned and eventually martyred at the very heart of the genocide apparatus, Grzymała remained faithful to the values he had previously declared fundamental in his legal reasonings and his impassioned ministry. With his conduct in Dachau, he proved the sincerity of the consolations he sent in his letters from the camp. Grzymała had confirmed with his life in the camp that “a change in outfit changes nothing in the essence of life.”47

Grzymała’s Message on Law The history of Polish statehood begins with the baptism of Duke Mieszko I in 966. In the long history of Christianity in Poland, Edward Grzymała is one of only a handful of jurists to be proclaimed blessed. Obviously, his legal argument con­ cerning the jurisdiction of ecclesiastical tribunals over marriages between Catholics was influenced by his position as a Catholic priest embroiled in the dispute over the reform of marriage law in the first half of the twentieth century. Our modernday reading of these deliberations is shaped by the social changes brought about by what Grzymała referred to in the 1930s as the “sexual revolution.” The jurist, clergyman, and martyr illustrated his understanding of the law and demonstrated how this approach to the law can affect a person’s ultimate fate when it is believed to be true. Grzymała’s understanding of law rests on five pillars. First, Grzymała believed that law is based on objective values, a view reflected in his legal argumentation: We know from the church and from every jurist that there is no law that does not take justice into account. Any order violating that disposition would be an enemy of the public good, and its effectiveness would only rest upon force.48 In 1935, Grzymała faced the threat of malicious criminal prosecution for spread­ ing false news likely to cause public disorder. In a letter to the bishop, he said: “My conscience is clear, and it would be a privilege, if God wills it, to endure misery for a holy cause.”49 In one of his letters from Dachau, Grzymała wrote: “On the Day of Reckoning, we shall all be rewarded or punished for our actions accordingly, and that is the most important thing.”50 The second pillar of Grzymała’s approach to law was realism, which he under­ stood as taking historical arguments and many other kinds of experiences into 45 Matusik and Sobolewski, Chce˛ zdobyc´, 38; this statement is from Kucharzak. 46 Matusiak and Sobolewski, Chce˛ zdobyc´, 35; this statement is from Franciszek Kro­ toszyn´ski, a prisoner in Dachau beginning April 25, 1941 (inmate number 24546). 47 ATJ, Grzymała, letter from Dachau, Jul. 20, 1941. 48 Grzymała, Ratio sacra, 168. 49 ADW, pers. 92, 33. 50 ATJ, Grzymała, letter from Dachau, May 17, 1942.

230 W. Dajczak account. Third, he made clever use of existing laws and the principles of their interpretation to formulate a solution consistent with values he held to be true. Fourth, when existing laws prevented the realization of these values, he allowed flexibility to protect against greater harm. Last, but not least, he recognized the existence of red lines and would not allow behavior that implied a rejection of the truths of faith, even if the law allowed or mandated it. Grzymała’s own actions were wholly consistent with such an understanding of the law. While his interpretations and arguments were not incorporated into the marriage laws adopted by Poland in 1945, his understanding of the law and his conduct based on the truths of his faith effectively protected Grzymała from being broken by the laws of Nazi Germany, which were based on coercion, naked force, and hatred. A lawyer and a Catholic priest, he would be best described by words like “integrity” and “honesty.” The belief articulated by Grzymała while in the concentration camp, where he would die a martyr’s death, that “good prevails and evil must be defeated,”51 became one of the most important teachings of the pope from Poland, John Paul II.52

51 Matusik and Sobolewski, Chce˛ zdobyc´, 38; this statement is from Kucharzak. 52 Message of His Holiness Pope John Paul II for the celebration of the World Day of Peace, Jan. 1, 2005: “Do Not be Overcome by Evil but Overcome Evil with Good.”

15 Zygmunt Ziembin´ski (1920–1996) Maciej Dybowski

Introduction Despite being a Roman Catholic and a jurist, Zygmunt Ziembin´ski may not have been willing to be described as a Christian jurist—certainly not in the most direct sense, namely, as a learned lawyer whose personal Christian faith found definite and explicit expression in his professional legal output, especially in the form of straightforward religious declarations. This chapter presents his biography, marked by the practice of virtues both in personal and in professional life, then examines his enormous contribution to the development of legal theory and some of his ethical views. The account of his life, in turn, allows us to reflect on the deepest sources of his motivation and inspiration.1

Biographical Information Early Years Zygmunt Ziembin´ski was born in 1920 in Poland’s capital, Warsaw. His father, Zygmunt Sr., had a doctorate in psychology from the Jagiellonian University and, beginning in 1922, worked as director of libraries of the Ministry of Religious Affairs and Public Education. He was a member of the Commission for Book Evaluation, as well as the editor of the Library of the Translations of Pedagogical Works and several pedagogical journals. Interestingly, Zygmunt’s father held very clear views concerning civic education of the young generation following the Great War and the Polish-Soviet War of 1920.2 Zygmunt’s mother, Maria Romiszewska, was a painter and a translator from French. Zygmunt had an elder sister, Ewa Falkowska, who died in a German concentration camp in 1943.3 The family’s nobility records can be traced to the seventeenth century. 1 Thank you to Professors Sławomira Wronkowska-Jas´kiewicz, Marzena Kordela, Kazi­ mierz S´wirydowicz, and Wojciech Patryas for sharing with me their memories and biographical materials of Professor Ziembin´ski. . . 2 Z. Ziembin´ski Sr., “O ksia˛ zkach do czytania dla młodziezy” [On the books for youth], in Szkoła Powszechna 2 (1928): 149–50. 3 According to handwritten memoirs of Ziembin´ski’s father’s cousin Stefan.

DOI: 10.4324/9781003181255-16

232 M. Dybowski Zygmunt was educated at the elite private St. Stanislaus Kostka Secondary School in Warsaw, successfully finishing in 1938. The “elite” in this case means outstanding in virtue rather than associated with the upper class. Among the school’s graduates were the future politician, activist, and writer Władysław Bar­ toszewski (one year Ziembin´ski’s senior),4 the writer Witold Gombrowicz, and Ryszard Białous, who would become the commander of the legendary scouts’ unit of the Home Army (AK). The school’s catechist and later principal was Father Roman Archutowski, who was among the 108 World War II martyrs declared blessed by Pope John Paul II in 1999.5 Archutowski was charged by Germans with helping Jews by giving them shelter in the seminary; he was arrested and later killed in Majdanek concentration camp. It is difficult to imagine that such an engaging environment and such role models would not have affected Ziembin´ski’s personality.6 Later in 1938, after the graduation, he served in the army as a volunteer in the 1st Infantry Division in Wilno (now Vilnius), but due to poor health he was released before the end of the service period. War Years During the Second World War, the Bieganów manor, home of the Morstin family, about a hundred kilometers north of Kraków, was an important underground center. Countess Nina Morstin hid AK soldiers and made her house available as a training point for nurses. In the memoirs of her daughter Barbara Gołajewska­ Chudzikiewicz7, Zygmunt appears vividly and with gratitude, first as a teacher, until the secret final exams that she and her brother took in 1942, and later as a friend in the conspiracy. She also mentions the theater performances prepared by Ziembin´ski at the manor, including The Merchant of Venice, in which he acted as Shylock. Their everyday life as landed gentry under German occupation in the General Government consisted of helping and giving shelter to those displaced from the territories incorporated into the Reich, helping the refugees from the Warsaw Uprising, working in the AK command structures, coping with the vicis­ situdes of German occupation, being forced to support the various guerilla groups, and ultimately, in 1945, confronting the new Soviet invaders. The Morstins’ devout Catholic faith would certainly have informed their choice of a teacher.

4 During the war, Bartoszewski acted on the Council for Aid to Jews, a Polish resistance organization. In postcommunist Poland, he became the minister of foreign affairs. 5 See Chapter 14 in this volume. 6 He would return to this question in his last public lecture at the opening of the aca­ demic year 1995–96, remarking prophetically that the deficit of personal role models is filled with pseudoauthorities (for example, celebrities), a phenomenon that in his view has to do with the absence of habits of debating and the rise of value relativism, especially among passive participants of social changes. See Zygmunt Ziembin´ski, Wzory osobowe w Polsce epoki przemian [Role models in Poland’s transformation times] (Poznan´: Wydawnictwo Naukowe UAM, 1996). . ´ 7 Barbara Gołajewska-Chudzikiewicz, “Swiat, którego juz nie ma” [The Gone World], ed. Jakub Gałe˛ ziowski, Wrocławski Rocznik Historii Mówionej 5 (2015): 143–98.

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Under German occupation, Polish schools were reduced to teaching crafts­ manship to the future generations of a physical workforce. The Polish Under­ ground State, using the experience gained in the nineteenth century, organized a whole system of secret primary, secondary, and higher education. Throughout the war, more than 1.5 million people went through it, even though such activities could be punished with death.8 Ziembin´ski participated in the secret education both as a teacher and as a student. From the spring of 1944, he attended secret law courses organized by the Catholic University of Lublin (KUL) in Cze˛ s­ tochowa. He passed his first exams in 1945 in Kielce, where he continued his legal education in KUL and worked in a sewage company. Probably at the outset of the war, Ziembin´ski enlisted in the AK resistance with a nickname “Krótki,”9 then, given his prewar military training, he received a commission as a second lieutenant in the 27th Infantry Regiment. His battalion’s task was to help the Warsaw Uprising, but it turned out to be impossible due to the proximity of the front and insufficient equipment. Ziembin´ski was a deputy commander and took part in three military actions in which eight Germans were killed.10 He also participated in the tragic Freston operation in early 1945.11 The war years in Ziembin´ski’s biography bring another important insight into his personality. This period is marked by a sudden move from his school years to maturity, with its most far-reaching demands of responsibility and service to other people and the larger community. It is remarkable that before becoming an aca­ demic, Ziembin´ski was a teacher and a soldier. Such an abrupt transformation was a fate of many in his generation, but it would be unjust to claim that all of them had passed the life’s exam cum laude, as he did. The war period also turned out to be his formative years before the challenges of his adult life in communist Poland. Student Years in Poznan´ The first postwar years for Ziembin´ski were about catching up with his youth and getting back to normal. Engaging in student life and starting a family were con­ nected with moving to Poznan´, where he would remain for the rest of his life. In autumn 1945 and in June 1946, he passed his second and third legal exams at the University of Poznan´. In 1947, he completed his master’s degree in law with a thesis on Rousseau’s social contract and began studying sociology. He 8 Norman Davies, God’s Playground: A History of Poland in Two Volumes (Oxford: Oxford University Press, 2005), 342. 9 Given the fact that Ziembin´ski was a remarkably tall person, choosing a nickname that translates as “shorty” was another sign of his sense of humor. . 10 Zygmunt Ziembin´ski, “A Note,” Biuletyn. S´wiatowy Zwia˛ zek Zołnierzy AK. Okre˛ g Wielkopolska—Inspektorat Poznan´. S´rodowisko Radomsko-Kieleckie “Jodła” (1992): 30. 11 Operation Freston was the last British Special Operations Executive (SOE) operation in Poland during the war. After months of delay, on December 26, 1944, the British mission to the Home Army finally landed in Poland, but it never achieved its objec­ tive: its members were captured by the Soviets and handed over to the NKVD, who treated them not as allies but as prisoners.

234 M. Dybowski received his degree in philosophy, in the field of sociology, under the supervision of Professor Czesław Znamierowski. Sociology might have been Ziembin´ski’s first area of interest, but soon it was to be banned in communist countries during the Stalin years. Despite being declared a “bourgeois pseudoscience,” sociology could reveal the failures of communist society.12 Florian Znaniecki, the founder of Polish academic sociology who established the first Polish department of sociology at the University of Poznan´, in 1920, pointed out in 1945 that “sociologists are con­ sidered by the adherents of certain ideologies dangerous not only as theorists whose generalizations may disagree with the dogmas of communism, fascism, Nazism, or some other doctrine, but also as objective investigators of con­ temporary events.”13 Young Ziembin´ski’s passion, already exhibited at Bieganów manor, was theater. In the tradition of the Polish intelligentsia, theater was a form of cultural resistance against the enemies.14 After 1945 he was in a puppet theater. He also took part in a national competition for a play about Warsaw. His piece, Młodzi (The young ones), reflected his war experiences and had several performances. Stage skills helped Ziembin´ski organize recitation competitions for students and participate in the first postwar oratory competition for law students in Poznan´. According to a local newspaper, he won the first prize for a speech in which he chose to accuse a doctor on a euthanasia case. Professor Sławomira Wronkowska recalls that shortly before his death, Ziembin´ski told her, “Once in an oratory competition I gave a speech about the meaning of suffering. Now I have to bear witness to the truth.” Immediately after arriving in Poznan´, Ziembin´ski joined Caritas Academica (CA) at the Dominican priory. In cooperation with the young laity, the Domini­ cans, headed by Father Bernard Przybylski OP, founded this organization to sup­ port local students by fundraising, funding lunches and holiday packages, finding accommodation for rent, and arranging holiday trips. The activity of CA did not last long: the communist authorities disbanded it in 1950. According to Ziem­ bin´ski’s friend Anna Szeptycka,15 he was one of the pioneers of CA. He started and organized a students’ club where one could read books, study academic handbooks (which were rare at the time), or simply have tea. The club was very popular, as it was used to organize St. Andrew’s Day parties, literary evenings, and dances. Ziembin´ski also authored two popular texts that might have played a 12 See Yale Richmond, “Post-Stalin Era Soviet Social Sciences and Humanities: The Polish Connection,” The Polish Review 49, no. 2 (2004): 819–24. 13 Karol H. Borowski, “The Sociology of Religion in Modern Poland: A Critical Review,” Sociological Analysis 46, no. 4 (1985): 389–99, at 392. 14 See the story of young Karol Wojtyła in the Rhapsodic Theater and the program of “Theater of the Word” with the emphasis on the text rather than visuals: George Weigel, Witness to Hope: The Biography of Pope John Paul II (New York: HarperCol­ lins, 1999), 44. 15 Anna Szeptycka, historian and great-granddaughter of the famous nineteenth-century playwright Aleksander Fredro, was a director of the library of the Poznan´ University of Technology. Her memoirs of the postwar Dominican youth ministry were published in Anna Szeptycka, “Nasza praca w CA” (Our work in CA), in Poznan´scy dominikanie [Poznan´ Dominicans], ed. Tomasz Dostatni, 103–14 (Poznan´: W drodze, 1997).

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useful role in the revival of university life: the Caritas Academica brochure and Academic Savoir-Vivre, published in 1949, a short set of practical guidelines for students in the academic environment. The latter had a serious tone, with some themes reflecting Christian solidarism, and especially Pius XI’s Quadragesimo anno (1931). Ziembin´ski pointed to the respect due both to teachers and to fellow students. However, he was against obsequiousness: “Professors deserve your respect based not on the adoration of their social distinction, but their arduous and devoted work.” He described learning as independent work, requiring “intense mental activity with full con­ centration and effort.” Ziembin´ski also gave tips on how to find one’s “other half”: “When you are close to achieving independence in life, look for a compa­ nion in life not at the ball but in the study hall, not during a visit but on a stren­ uous trip.” However, it is not merely the content of this early academic manifesto, but rather reading it in combination with Ziembin´ski’s social activity in the late 1940s that echoes the Christian solidarist program. While solidarism rejected both individualism and collectivism—and collectivism in communist Poland of that era was reaching for students16—CA was a community of individuals acting for the common good in the spirit of particular solidarity among people within the same role as students. The organization also embraced principles of voluntary associa­ tion and concern about others. Small wonder that the CA was disbanded, but it is a remarkable fact that Ziembin´ski dared to publicly identify with it.17 The final mark of Ziembin´ski’s student years was making use of his own advice and finding that “other half.” In 1949, he married Felicja Tomaszewska, later a researcher in sports medicine, and a loving companion who would die shortly before Zygmunt. They had one daughter, Anna Maria. Academic and Teaching Career In September 1946, Ziembin´ski became a volunteer assistant at the Department of Theory and Philosophy of Law at the Faculty of Law and Economics. He held this position until the end of 1948, but the connection with the department and the University of Poznan´ (Adam Mickiewicz University since 1955) was to become his lifelong commitment. He went through all stages of the academic profession. In 1950, he became a doctor of law, writing a dissertation on “Defamation trials as a problem of social technique,” supervised by Znamierowski. He became a docent in 1955 and professor ordinarius in 1970. In 1958, Ziembin´ski studied at the European University Centre in Nancy, France. His studies in France were 16 Both pressure and conformism made students join such Stalinist organizations as the paramilitary Service to Poland (SP) or Polish Youth Union (ZMP), modeled on the Soviet Komsomol. 17 Ziembin´ski thus experienced the organized persecution of the church in Poland in the early 1950s, when, for example, the primate of Poland, Stefan Wyszyn´ski, was impri­ soned from 1953 to 1956. It was also the period when persecutions of the AK and political opponents by the communists led to armed clashes that continued for several years.

236 M. Dybowski completed with a thesis, “Les problémes de la stratification sociale en littérature sociologique polonaise.” Between 1966 and 1981, Ziembin´ski was head of a small research unit named Section of Legal Applications of Logic, and from 1981 to 1990, he directed the Department of Theory of Law and State, where he remained until the end of his life. He was also the editor-in-chief of the journal Ruch Prawniczy, Ekonomiczny i Socjologiczny.18 He held membership in many legal, philosophical, and sociological associations in Poland and abroad. The above list of activities, far from complete, cannot depict the actual impact Ziembin´ski exercised both on his home faculty of law and on the academic dis­ cipline of the theory of law and state in Poland. Much of his impact was due to his significant contributions in the field—which came to be called the Poznan´ School of Legal Theory—and will be discussed below, but another significant portion of that impact had to do with his personal style and involvement in teaching. As a child of an educator, Ziembin´ski from an early age would teach and work with young people, not only in education but also in broadly understood cultural and social activities. Two distinct traits of his character and attitude can be highlighted to show Ziembin´ski’s teaching genius. First, a sense of humor. It began with his appearance—very tall and thin, more and more bent through the years, with a uniquely expressive face and exploratory eyes. He was not bothered by worn suits. In his demeanor, he seemed just sloppy and awkward. He was famous for numerous faux pas and funny remarks, which he uttered during official meetings in a piercing whisper that electrified the entire room. For instance, he would refer to a fellow professor, a member of the com­ munist party and not a great legal theorist, as “my future boss.” Ziembin´ski’s eccentricity was, as remarked by Wronkowska, partly natural and partly a sophis­ ticated protective armor that made it easier for him to maintain his independence. Students and professors commonly referred to him by the nickname Gandhi, due to the physical similarity between the two men as well as their personal authority and minimalism in life. Second, a sense of serving. He was interested in the lives of his assistants and doc­ toral students. Ziembin´ski was never tired of advising them, although he could be very critical. He was an extremely modest figure. He looked after everything person­ ally, including collecting correspondence from the dean’s office, typing letters as editor-in-chief, applying for paper, and bringing copies of the journal issues from the printing house. He kept his needs to a minimum, discreetly sharing what he had with those in need. He supported, among others, Polish education in Kazakhstan. Teaching—from classes for first-year students to supervising doctoral theses— was one of his main activities. His well-known handbook Practical Logic, with nearly thirty editions and translations into English and Chinese,19 became a primer 18 Journal of Law, Economics, and Sociology, since 1921 one of the oldest and most prestigious academic journals in Poland. 19 Zygmunt Ziembin´ski, Practical Logic, with the Appendix on Deontic Logic by Z. Ziemba (Dordrecht: Springer, 1976); Zygmunt Ziembin´ski, Practical Logic (in Chi­ nese), trans. Shengen Liu (Beijing: Qunzhong Press, 1988).

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on which generations of Polish lawyers were brought up. He even managed to convince many of his students that nothing influences professional life more than well-mastered logic. Ziembin´ski’s doctoral students and first-generation followers in the Poznan´ School of Legal Theory were Maciej Zielin´ski, Leszek Nowak, Sławomira Wron­ kowska, Kazimierz S´wirydowicz, and Stanisław Czepita. Among his students were also later politicians and people of culture, including an Oscar-winning composer, Jan A. P. Kaczmarek. Public Activity in the 1980s and 1990s After thirty years of intense research and teaching as well as avoiding public pre­ sence other than strictly professional or academic activities—Ziembin´ski never joined the Polish Communist Party—Ziembin´ski became the chair of Solidarity movement at the Faculty of Law. Solidarity became the first independent labor union in the Soviet bloc. It was founded in September 1980 and forcibly sup­ pressed in December 1981, when the government imposed martial law in Poland. He offered his expertise in the negotiations of a new law on higher education’s guarantees of academic freedom and took part in other public activities of the union—for example, training Solidarity leaders in public speaking. When the movement was suppressed, Ziembin´ski supported the students on strike and those who were arrested or detained, including such close disciples as Nowak and S´wirydowicz. It should come as no surprise that the professor was of interest to the communist secret services, both when he was active in Caritas Academica and later, for example, in the Solidarity period.20 He also collaborated publicly with church authorities. For example, in 1983, in preparation for John Paul II’s visit to Poznan´, Ziembin´ski was among a few intellectuals who, at the invitation of the curia, conducted evenings of recollection for workers from Poznan´ factories. It is otherwise known that Ziembin´ski was critical of Archbishop Jerzy Stroba because of his dislike of the Solidarity move­ ment. “I always told [the archbishop] that the church has one way out: forward through holiness. Managing alone will not do,” Ziembin´ski recalled.21 In the 1990s, when he enjoyed universal recognition and moral authority, he remained critical of the Polish transformation, which was scarcely based on the moral order. When Ziembin´ski retired, a large event was organized. When allowed to speak, he said, “I understand that today’s celebration is a rehearsal for a com­ pletely different celebration.” The professor died in 1996 and was buried in St. John Vianney Parish Cemetery. Those who knew him personally confirm that throughout his life he attended the Mass in his parish daily. 20 See Kazimierz S´wirydowicz, “Profesor Zygmunt Ziembin´ski jako obiekt inwigilacji policji politycznej” [Professor Zygmunt Ziembin´ski under surveillance by the political police], Kronika Miasta Poznania, no. 3 (2008): 281–88. 21 Ewa Staniewicz, “Zygmunt Ziembin´ski. Gandhi czyli Długi Uczony,” in Poznaniacy. Portretów kopa i troche˛, ed. Roma Brzezin´ska (Poznan´: W drodze, 1996), 402.

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Major Themes and Contributions in Legal Theory Zygmunt Ziembin´ski was competent in logic, sociology, and ethics. His ethical and metaethical views will be discussed later. However, the discipline to which he made the greatest contribution was the theory of law.22 In this area, he was able to introduce original theoretical concepts that earned him great recognition and led to the establishment of the Poznan´ School of Legal Theory, which continues developing along Ziembin´ski’s lines.23 Inspirations for Ziembin´ski’s views in the field of legal theory came from several sources. First, his research program was largely influenced by the rigorous con­ ceptual analysis and ideas of Czesław Znamierowski, especially the conceptions of norms (critically revised) and conventional acts.24 Second, Ziembin´ski’s analytical theory of law likely would not have emerged without the influence, also personal, of Kazimierz Ajdukiewicz,25 one of the most outstanding logicians of the LwówWarsaw school.26 It was via Ajdukiewicz’s approach that Ziembin´ski started to work on the logical analysis of the linguistic form of a norm of conduct.27 Third, some inspiration for Ziembin´ski’s theoretical works came from Georg Henrik von Wright’s28 landmark writings in the postwar rise of formal modal and deontic logic, and from the realist conceptions of Alf Ross. 22 For the sake of non-Polish readers, in the footnotes I try to include only the academic texts published in English and translate Polish texts where necessary. 23 For up-to-date information about the school in English, see Mark Smolak and Paweł Kwiatkowski, eds., Poznan´ School of Legal Theory (Leiden: Brill Rodopi, 2020), 1–27. 24 Znamierowski was a professor of legal sciences from 1924 to 1967 at the University in Poznan´. This lawyer and philosopher, educated at German and Swiss universities, wrote eighteen books, 120 articles, more than 100 reviews, and twenty-one translations. Zna­ mierowski’s philosophical ideas were inspired by English empiricist philosophy, the ana­ lytical philosophy of the Lwów-Warsaw school, and the philosophy of Edmund Husserl. For more in English about Znamierowski’s theories and their origins, see Stanisław Cze­ pita, “Conception of Law System Formulated by Czesław Znamierowski (in comparison with H. L. A. Hart’s Conception),” Studies in. the Theory and Philosophy of Law 2 (1986): 111–24; Giuseppe Lorini and Wojciech Zełaniec, “Czesław Znamierowski’s Social Ontology and Its Phenomenological Roots,” in The Phenomenological Approach to Social Reality: History, Concepts, Problems, ed. Alessandro Salice and Hans Bernhard Schmid (Cham: Springer International Publishing, 1986), 75–89; Maciej Dybowski, “Criticism of Classical Pragmatism: The Unknown Origins of Czesław Znamierowski’s Theory and Philosophy of Law,” Ruch Prawniczy, Ekonomiczny i Socjologiczny—Journal of Law, Economics and Sociology 1 (2020): 25–39. 25 Kazimierz Ajdukiewicz (1890–1963) before the war was a professor at Jan Kazimierz University of Lwów, later at the University of Poznan´, where he was a rector from 1948 to 1952, and at the University of Warsaw. Ziembin´ski participated in his semi­ nars and remained in contact with him. 26 See, for example, Jacek Juliusz Jadacki, Polish Analytical Philosophy (Warsaw: Semper, 2009); and Jan Wolen´ski, Logic and Philosophy in the Lvov-Warsaw School (Dordrecht: Kluwer, 1989). 27 Marzena Kordela, “Zygmunt Ziembin´ski and His Analytical Theory of Law: For­ malization of Law as an Instrument to Protect Its Minimal Moral Content,” Review of Central and East European Law 45, no. 2 (2020): 268–80, at 270. 28 Ziembin´ski invited von Wright to Poznan´ and hosted him in 1967.

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It was Ziembin´ski’s practical and modest approach, however, that left its mark on the scope of the legal-theoretical themes he contributed to developing. He would seldom and reluctantly engage in analysis of the concept or nature of law. Instead, he would choose to analyze the basic elements of law (legal norms), their relationships (the structure of a legal system), their formation (sources of law), and application and interpretation of law or legal reasoning. In choosing the issues on which he would elaborate, Ziembin´ski characteristically showed great concern for practical usefulness. This is another sign of his commitment to be helpful to both legal theorists and legal professionals. Ziembin´ski undertook and completed a huge task of ordering the conceptual apparatus used by lawyers and legal science. His enormous bibliography consists of twenty monographs, twenty handbooks, and some three hundred articles and reviews. Some of his major contributions to this ordering work include building firm methodological foundations for legal scholarship, defining a theory of legal phenomena, introducing the distinction between a legal provision and a legal norm, and developing a normative conception of the sources of law. Methodological Foundations for Legal Scholarship Ziembin´ski devoted much attention to the methodological status of legal sci­ ences because he considered the traditional division of academic legal scholarship into legal theory, historical sciences, and dogmatic sciences to be insufficient. Instead, he believed that legal science deals with four types of problems: theo­ retical, dogmatic, sociotechnical, and methodological. The most important con­ clusion from this reflection on the dogmatics of law is that these sciences not only perform a cognitive function but also have great social significance related to social life being influenced by law. Ziembin´ski’s ambition was to provide lawyers with useful methodological and conceptual tools for moving between different sets of problems with a self-consciousness of what they were doing. This was, in my view, a particular help or service that he wanted to offer to the legal world at large. Theory of Law as a Theory of Legal Phenomena The theory of law as a theory of legal phenomena would include statements explaining all phenomena related to the existence and changes of law. Ziembin´ski considered the creation of norms of conduct in a specific social system to be a major legal phenomenon. Since these norms can be articulated as linguistic utter­ ances, they can be the subject of scientific examination. According to Ziembin´ski, norms as statements can be examined in two aspects. First, they can be examined formally, by considering the characteristics of the language in which they are for­ mulated and the structure of the system they create. Second, they can be studied in a real aspect, that is, as a factor that influences individuals in society as well as the structure of the world in which they live.

240 M. Dybowski Legal Norm Ziembin´ski’s most important achievements in legal theory are related to the study of the formal, linguistic aspect of law. As early as 1960,29 he introduced a distinction between a legal provision and a legal norm. Provisions are for­ mulated by the legislator and expressed in legal texts, while legal norms are idealized expressions that explicitly order or prohibit certain addressees from acting in a certain way in certain circumstances. Among the legal norms, Ziembin´ski further distinguished substantive norms, which set out specific behaviors for the addressees, and competence norms, which require the addressee to react in a certain way to a conventional act performed by another entity. Legal norms, according to Ziembin´ski, do not have a truth value. Following Znamierowski, he concluded that his distinction between axiological and thetic norms is, in fact, a distinction between two types of norms’ validity. An axiological norm is justified by referring to the fact that the conduct prescribed by the norm is, based on one’s evaluations, considered good or even the best possible. A thetic norm’s validity is grounded in the fact that it was enacted by an entity being in the social position of power over its addressees. This approach to the legal norm gave Ziembin´ski and his successors a tool for developing several mutually coherent theoretical accounts: of law as a system, of legal interpretation, and of the application of the law. According to Ziembin´ski, a legal system is a set of norms characterized by consistency, completeness, and ordered relationships, in terms of both competence-rela­ tionships and content-relationships. This is a direct polemic with Hans Kelsen’s account of the legal system as merely dynamic or merely static, which Ziem­ bin´ski considered untenable. Using his typology of legal norms, he also pre­ sented an original concept of the application of the law, understood as making use of granted competencies. This concept is novel because the acts of creating the law (except through revolution) are treated as the acts of applying the law (making use of the norm of legislative competence). However, Ziembin´ski supplemented this formal account by describing different factors that affect such acts. Account of Law in a Normative Conception of Sources of Law According to Ziembin´ski, law arises as a result of specific lawmaking facts which, in particular legal orders, may include enacting laws, concluding agreements, or shaping customary law or legal precedent. However, legal norms are not for­ mulated directly, and to be grasped, they need to be decoded in the process of legal interpretation from legal texts or other cultural artifacts. A detailed elabora­ tion of this process would come to be developed in the 1970s into a “derivational 29 Most of this seminal paper, originally in Polish, was translated into English by Stephen Dersley, in Smolak and Kwiatkowski, Poznan´ School, 63–76. Chapters 5 to 8 of this work provide insights into later developments of Ziembin´ski’s theory of legal norms.

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30

theory of interpretation” by Maciej Zielin´ski. The decoding is not an arbitrary process, according to Ziembin´ski. Hence his fully developed normative theory of the sources of law presented in his 1980 The Basic Problems of Jurisprudence,31 a theory that should be able to set the criteria for deciding “which norms belong, and which do not belong, to a given legal system.” Such criteria consist of (1) rules of validation that require taking into account the sociopolitical ideologies and axiology of a given legal system, the competence-norms of state organs, and the lawmaking role of custom and precedents; and (2) rules of exegesis, including the rules of legal interpretation and the rules of inference and solving collisions adopted in a given system. It is not difficult to see how far from positivism this account of law is, and how close it is to viewing law as a complex, historical product of culture. Legal Theory and Philosophy Ziembin´ski’s attitude toward philosophy has to be considered in the light of his deep commitment to being a theorist of law. His references to Marxism were superficial and ritualistic. The best evidence for this is the fact that most of his work is a formal theory of law, without any connection—as Marxists had—with the theory of the state. Formalism and logic might have been Ziembin´ski’s shield against ideology. Toward the end of his life, Ziembin´ski did not so much revise his position on the relationship between philosophy and the theory of law as rather verbalized it without understatement. On one hand, he held the conviction that it is legitimate to distinguish what is philosophical and legal from what is theoretical and legal, but, on the other hand, he strongly emphasized the entanglement of every theo­ retical and legal concept into philosophy. The nonphilosophical way of practicing the broadly understood theory of law, like in other scientific disciplines, may— according to Ziembin´ski—consist either in relying on some minimalist philosophy or in unconsciously adopting certain philosophical assumptions, while these hidden layers of philosophical matter may be very extensive.32

Ethical Views and Christianity in Ziembin´ski’s Writings This chapter cannot fail to reflect on the extent to which Ziembin´ski’s ethical views were influenced by his personal Christianity and whether his ethics translated 30 For a synthetic account of the derivational theory of legal interpretation by its author in English, see Smolak and Kwiatkowski, Poznan´ School, 163–73. 31 An English translation of the chapter “The Normative Conception of the Sources of Law,” prepared by Stephen Dersley, can be found in Smolak and Kwiatkowski, Poznan´ School, 38–61. 32 See Zygmunt Ziembin´ski, “Teoria prawa a filozofia prawa i jurysprudencja ogólna” [Theory of law versus the philosophy of law and general jurisprudence], a conference . paper presented in 1991 in Katowice, cited in Grazyna Ska˛ pska, “The Law: An Object of Social Aspirations,” in Legal System and Practical Reason, ed. Robert Alexy and Ralf Dreier (Stuttgart: Franz Steiner Verlag 1993), 246–54, at 254.

242 M. Dybowski into his publicly proclaimed views on the law. As far as Ziembin´ski’s straightfor­ ward moral views expressed in his writings are concerned, I am going to raise three issues: (1) expression of his personal moral stand; (2) moral views concern­ ing particular legal issues; and (3) views concerning the morality of law in general. Ziembin´ski’s Personal Moral Stand Paradoxically, the personal axiological views of an author who devoted so much of his academic writing to axiology must be deciphered from some scant remarks cast in a footnote: Ziembin´ski inserted a declarative statement of his own moral views—strictly speaking, also a metaethical statement—in a footnote to a chapter titled “Values and Law” in his 1990 Introduction to Axiology for Lawyers.33 It is also very telling of Ziembin´ski’s humble view of the importance of his personal stand. However, his personal position can be reconstructed with regard to both metaethics and ethics. Metaethical Views For Ziembin´ski, the metaethical view for lawyers, unlike for philosophers, ultimately concerns a practical justification for choosing a particular formula of justice,34 espe­ cially when making and applying the law.35 Making such views explicit requires solving some conflicts among values and determining “how one comes to understand the existence and cognition of values.”36 An implicit assumption here is that if lawyers are to be able to solve any or some social problems, they must have moral views and not merely describe such views in statistical terms. Contemporary metaethical positions—cognitivism (in naturalist or intuitionist versions) and noncognitivism (emotivism)—are, according to Ziembin´ski, unsatisfactory.37 Metaethical naturalism assumes that value (good) is perceived as a natural property of states of affairs, but does not answer the question of why a particular property equates with moral good. Intuitionism treats values as cognitive mental states, but these intuitions may differ completely for different people. Emotivism, on the other hand, considers statements about values only as a way of expressing emotions, which, according to Ziembin´ski, leads to des­ perate consequences, because recognizing any mental fact as a value is equally legitimate. 33 Zygmunt Ziembin´ski, Wste˛p do aksjologii dla prawników [Introduction to axiology for lawyers] (Warsaw: Wydawnictwo Prawnicze, 1990), 67–68. 34 According to Ziembin´ski, lawyers or legislators may not be expected to produce moral dissertations, but they may be asked to reveal their reasoning in such matters. See Zygmunt Ziembin´ski, Sprawiedliwos´c´ społeczna jako poje˛ cie prawne [Social justice as a legal concept] (Warsaw: Wydawnictwo Sejmowe, 1996), 51. 35 See Zygmunt Ziembin´ski, Warto´sci konstytucyjne [Constitutional values] (Warsaw: Wydawnictwo Sejmowe, 1993), 10 36 See Ziembin´ski, Wste˛ p do aksjologii, 63. 37 Ibid., 63–66.

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Presenting his own view on metaethics, Ziembin´ski first recognizes that people want to know objective values and strive to overcome relativism (“hunger for the absolute”), and that this involves some ontological assumptions about what is good and what is evil. In his opinion, the objectivity of values cannot be ensured by38: (1) “ethnocentric” reference to the values of a given social group; (2) refer­ ence to God’s evaluations, because when the absolute authority is questioned in a society, the corresponding and often too general values are also questioned; (3) idealizing concepts that reduce evaluations to a typified “representative of a spe­ cies” or “social class,” as in utilitarianism or Marxism. Second, Ziembin´ski rejects noncognitivism (emotivism), because denying the objective existence of values cannot justify any solution of axiological problems: For those scientists who refuse to refer to the absolute system of values… emo­ tivism produces desperate consequences, in the light of which any evaluation by anyone is simply a mental fact, and values become records of the universality of such facts. All ways of evaluation … become equal, or rather equally unauthor­ ized. In this way, an all too scientific solution to the problem is achieved, free from all metaphysics, from any risky philosophical assumptions—and at the same time a nihilistic solution, sterile for solving axiological problems faced constantly by someone who studies or applies the law.39 Third, Ziembin´ski adds that the best pragmatic solution for moral discourse is to build a naturalistic consensus on broadly understood natural properties equated with good (for example, pleasure, lack of suffering, sense of inner harmony, spiri­ tual development, optimal development of humanity, etc.).40 Note, however, that he is talking only about how to best argue about values in cognitivism, and not about his own moral position. Besides, he adds, in such disputes an equal com­ mitment to “naturalistic fallacy” must be assumed. Personal Ethical Views Two observations can be made about Ziembin´ski’s personal ethical views. First, he holds that ethical consequences result from a deliberate rejection of relativism and noncognitivism at the metaethical level. Second, for Ziembin´ski conscience comes first and foremost in determining one’s action. I take it that moral intuition and conscience sensu stricto are two aspects of conscience.41 Ziembin´ski assumes that conscience qua moral intuition is intrapsychic in two ways: as what has shaped one’s individual personality and as common “semina innata of the psyche of the human species.”42 On the other 38 39 40 41 42

Ibid., 60–63.

Ibid., 65–66.

Ibid., 64.

Ziembin´ski, Wste˛p do aksjologii, 65.

Ibid.

244 M. Dybowski hand, the conscience in its proper and classical sense is a “ratio recta, properly formed … by certain moral directives common to all people of good will.”43 In other words, in Ziembin´ski’s view, conscience has, in addition to a subjective ele­ ment, also an objective element, related to practical rationality and the influence of culture (society) on the content of moral norms. This influence, however, must be treated selectively, by leaving behind the limits of permissible pluralism from what is not common to “people of good will.” Moral Views Concerning Particular Legal Issues Ziembin´ski did not lecture on how to live, but he spoke up on specific issues, for example, by arguing against the view that confession is therapeutically harmful or by rejecting the permissibility of assisted suicide.44 These were clearly statements dictated by conscience and in conformity with the Catholic teaching. They had the significance of non possumus (we cannot), with its clear demarcation of what goes beyond moral compromise while leaving room for otherwise tolerable choices. Among many ecclesiastical uses of the phrase—which was not intended to express incapacity but moral determination to obey the requirements of faith—in the history of Poland it evokes a 1953 letter from Polish bishops to the Communist Party leaders in which the bishops refused to subordinate the church to the state. In the 1990s, Ziembin´ski explicitly pointed out the “moral inconsistency” of the legal situation in which private law protects the economic interests of a con­ ceived child, while the criminal protection of its life “in some legal systems remains limited, and sometimes is only symbolic.”45 Another concern of his was the denial of the right of severely handicapped individuals to exist. According to Ziembin´ski, such a “cruel conception of justice,” understandable in the animal world, “is repugnant in societies living in abundance.”46 Ziembin´ski’s Views Concerning the Moral Content of Law in General Ziembin´ski did not take a stand on what makes the law moral in general, albeit he would describe or reconstruct what lawyers and philosophers do when they make such attempts. According to an accurate observation by Sławomira Wronkowska: He did not claim that as a scholar he may be able to discover the one just law. He was afraid of one-sided accounts: he saw the danger associated with accepting one of the positions promoted by classical schools in the philosophy of law, in particular by the natural law and legal positivism, which proclaims that law is any set of norms established or recognized by the competent 43 Ibid. 44 See Zygmunt Ziembin´ski,“Prawne i moralne problemy s´mierci i umierania” [Legal and moral problems of death and dying] Etyka, no. 14 (1975): 107–15. 45 See Zygmunt Ziembin´ski, O pojmowaniu sprawiedliwos´ci [On the understanding of justice] (Lublin: Daimonion, 1992), 46. 46 Ibid., 46–47.

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“authority.” Being committed to the understanding of science associated with the “Lwów-Warsaw school,” he avoided using the university classroom to decide what the law is instead of making propositions about the law.47 Ziembin´ski would always formulate several caveats when discussing either legal positivism or iusnaturalism, but he was by far closer to soft positivism, or perhaps to an attitude of “critical legalism,” than to natural law. Indeed, he seemed to perceive the dualism of legal positivism and iusnaturalism as symmetric, with each side displaying significant ambiguities and dependencies on external grounds. For instance, just as he would note that thetic validity, typical of positivism, encom­ passes “ignotum, in the form of reference to the possession of power … [which] in turn is a sociological notion,”48 so the notion of “nature” in various versions of iusnaturalism is an ambiguous one.49 Despite all reservations, Ziembin´ski’s account of law has an undeniable moral dimension. A methodological and theoretical construction that enabled him to endow a system of formally characterized legal norms with a necessary moral content was the concept of “rational legislator.”50 That concept consists of a set of idealizing (modeling, counterfactual) assumptions that capture some essential properties of the practices the lawyers engage in with regard to a particular legal system. Treating the legislator as a single subject—whose actions are guided by a coherent and justified knowledge and an ordered and relatively stable axiology— enables homogeneous interpretation of the law and justifies rejecting those actions of the actual lawmaker that violate requirements of linguistic or axiological rationality. This is how formal assumptions connect with legal cultures and what they preserve as minimal moral content of the law. Moreover, following Zna­ mierowski, Ziembin´ski considered proper moral justification of law to be a condi­ tion of its effectiveness.

Conclusion The portrait of Zygmunt Ziembin´ski as a Christian and legal scholar reveals, above all, the importance of role models and specific moral choices in shaping a mature personality capable of consciously practicing the requirements of his faith. Such a personality made Ziembin´ski himself a role model for those who fell within the 47 Sławomira Wronkowska, “Zygmunt Ziembin´ski,” in 90-lecie filozofii w Poznaniu [90 years of philosophy in Poznan´], ed. Tadeusz Buksin´ski (Poznan´: Wydawnictwo Naukowe Instytutu Filozofii UAM, 2010), 335–46, at 338. 48 Zygmunt Ziembin´ski, Problemy podstawowe prawoznawstwa [Basic problems of jur­ isprudence] (Warsaw: PWN, 1980), 144. 49 See Zygmunt Ziembin´ski, O pojmowaniu pozytywizmu oraz prawa natury [On the understanding of positivism and natural law] (Poznan´: Os´rodek Wydawnictw Nauko­ wych PAN, 1993), 32. 50 A recent account in English of Ziembin´ski’s concept of “rational legislator” and of some of its sources can be found in Kordela, “Zygmunt Ziembin´ski and His Analytical Theory of Law.”

246 M. Dybowski circle of his influence. His achievements in practicing the theory of law were based on his consistent pursuit of the truth and search for the best justification. It can be assumed that such an attitude serves to implement the Christian model of a tea­ cher and a scientist better than, for example, the introduction of religious themes into one’s works. Rarely taking a direct position on ethical issues, Ziembin´ski remained in agreement with Christian doctrine, although he formulated his views not in a religious language but rather in the language of the classical tradition with which Christianity had identified for centuries. He stressed the primacy of the voice of conscience, which—as he often emphasized—disappears when unused.

16 Karol Józef Wojtyła, Pope John Paul II (1920–2005) Rafael Domingo

Introduction Considered one of the great protagonists of world history in the twentieth cen­ tury, Pope John Paul II (born Karol Józef Wojtyła in Wadowice, May 18, 1920, died at the Vatican, April 2, 2005) has risen to even greater stature and esteem over time.1 An intellectual and mystic, with a Polish heart and a cosmopolitan soul, a playwright and a ruler, a bishop and a professor, a sportsman and a pope, a witness to faith and a herald of reason, John Paul II rightly deserves to be called a Christian jurist as well, given his monumental contributions to the law and legal theory. It is no surprise that La Sapienza University of Rome, in recognition of his important contributions, awarded him an honorary doctorate in law on May 17, 2003, to mark the seventh centenary of the founding of this prestigious academic center.2 John Paul II did not approach law tangentially, but went through it like an arrow through a target. For him, this target was the human person, who, from Karol Wojtyła’s youth, took the place of honor in his thought, as it should in any system worthy of the name of law.

1 George Weigel is an internationally recognized biographer of John Paul II. See George Weigel, Witness to Hope: The Biography of Pope John Paul II, 3rd ed. (New York: Harper Perennial, 1999, 2020); and George Weigel, The End and the Begin­ ning: Pope John Paul II: The Victory of Freedom, the Last Years, the Legacy (New York: Doubleday, 2010). Interesting autobiographical reflections are in the following books: John Paul II, Crossing the Threshold of Hope (New York: Alfred A. Knopf, 1994); John Paul II, Rise, Let Us Be On Our Way (New York: Warner Books, 2004); John Paul II, Memory and Identity: Personal Reflections (London: Weidenfeld & Nicolson, 2006); and John Paul II, In God’s Hands: The Spiritual Diaries of John Paul II (1962–2003), trans. Joanna Zepa (London: Harpers Colins, 2007). 2 John Paul II, “Address for the 7th Centenary of the Founding of La Sapienza Uni­ versity of Rome,” May 17, 2003, no. 2, www.vatican.va/content/john-paul-ii/en/sp eeches/2003/may/documents/hf_jp-ii_spe_20030517_univ-sapienza.html. Most of Pope John Paul II’s writings to which I refer can be found on the Vatican website: www.vatican.va/content/john-paul-ii/en.html. Whenever this is not so, I expressly quote the source. When it is required, I have made some improvements in the official English translation.

DOI: 10.4324/9781003181255-17

248 R. Domingo The word “law” appears profusely in the Polish pope’s encyclicals: ninety-nine times in the Centesimus annus, eighty-five times in Evangelium vitae, forty-three in Sollicitudo rei socialis, and twenty-five times in Veritatis splendor, to consider a few examples. His thoughts about law are also found in famous speeches, such as the addresses he gave to the United Nations General Assembly (1979 and 1995), to UNESCO (1980), to the Polish Parliament (1999), and to the world in the twenty messages for World Day of Peace (1986–2005). Fundamental legal ideas and proposals for legal reform also mark his less well-known speeches, such as the traditional ones to the legendary Tribunal of the Rota or his many speeches or addresses on the occasion of various legal congresses. John Paul II built his legal thought on the profound conviction that the justice to which the law aspires, the dignity that justifies the law, the freedom that pro­ tects the law, the truth that sustains the law, and the good that the law procures constitute one and the same reality and are therefore completely interdependent. He reached this profound conviction from his Christocentric vision, which enabled him to distinguish yet, at the same time, integrate divine law and human law, natural law and positive law, justice and love, private good and public good, patriotism and cosmopolitanism, family and community, freedom and order, individual conscience and objective truth, and private property and universal charity and destination of goods. From his Christian humanism, John Paul II understood the law as a necessary ethical component in his project to revitalize and renew the world of culture and social justice in Christ, placing faith at the service of reason and reason at the ser­ vice of faith. He saw the law as an indispensable social instrument for achieving peace and harmony among peoples. With his Christian humanism, Wojtyła shook the foundations of the oppressive communist system in his beloved Poland and in Eastern Europe; that system collapsed during the first half of his pontificate. Today, all experts acknowledge the important role that John Paul II played in the fall of the Berlin Wall and the Iron Curtain.

The Human Person and Human Dignity at the Center of Legal Systems Influenced by Saint Thomas Aquinas, Max Scheler, Gabriel Marcel, Edith Stein, and Jacques Maritain, among others, John Paul II developed a personalist anthropology and ethics which, together with Christian humanism, acted as a framework for his legal thinking.3 He understood that no legal theory explained the law completely, just as no mathematical theory gives perfect meaning to mathematics, and nothing within physics can give a complete explanation of the physical. Therefore, the starting point of Wojtyła’s legal thinking is not strictly legal but spiritual, namely, that it is human persons, not states or social classes, 3 In this regard, see Karol Wojtyła, The Acting Person, trans. Andrzej Potocki (Dor­ drecht: D. Reider Publishing, 1979). About Pope John Paul II’s personalism, see John Crosby, The Personalism of John Paul II (Steubenville, OH: Hildebrand Press, 2019).

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who love and are loved by God as God’s favorite children. Therefore, it is people, not states or social classes, who are the main targets of the civilization of love, and who therefore must be placed at the center of all legal systems. John Paul II’s conception of the human person is profoundly Christian. In no way does he consider that this conception should be secularized. Nor should it be overpositivized, if I may put it that way, when applied to the law, as most of the positivists in the world have done, beginning with Hans Kelsen, who was influ­ ential in Poland as Karol Wojtyła began his ministry. John Paul II was very clear that the person is not a creation of the law but exists prior to it. The law follows the human person—protects, respects, accompanies, and facilitates the life and work of each person. This is what the pope explained to those attending the symposium on Evangelium vitae and law in 1996: “The centrality of the human person in law is effectively expressed by the classical aphorism: hominum causa omne ius constitutum est [every law has been created for the sake of men].4 This means that law is such if and to the extent to which it is based on man in his truth.”5 For John Paul II, what defines a person is not just the fact of being the subject of rights and duties but being “the visible image of the invisible God.”6 The fact is that a subject of rights and duties does not necessarily love, as does a human person. By contrast, a visible image of God does love, because God—love itself— cannot stop loving. In addition to the capacity to love, this divine image is shown in the human ability to know the truth objectively and in the human capacity to adhere freely to it. The status to which every person is entitled by virtue of being created in the image of God is called dignity, which “[is] revealed in all its fullness in the mystery of the Incarnate Word.”7 Dignity is therefore the most radical and inherent quality of the human being. It is more than a right, a basic good, a moral value, or a philosophical principle. It is the transcendent premise of human equality, of indi­ vidual and collective freedom and responsibility, of human rights and duties. The status conferred by dignity is neither temporary nor territorial. It is central to any human being, since the image of God follows every human being regardless of who or where they are. In this sense, each person is unique and occupies an unrepeatable position in the legal system. Dignity gives the human being pre­ eminence over the rest of creation, from which ensues an unalienable responsibility and obligation of collaboration and service with the creative work. For John Paul II, dignity is a metalegal reality, not a legal concept on the order of a contract or a crime. Dignity calls for the protection of law but not the control of law—not the manipulation of law but its recognition and defense. The human 4 On this Roman law aphorism coming from Hermogenian, Digest 1.5.2, see Rafael Domingo, ed., Principios de Derecho Global. 1000 reglas jurídicas y aforismos comen­ tados, 2nd ed. (Cizur Menor: Thomson Aranzadi, 2006), 402. 5 John Paul II, Speech to participants in the Symposium on Evangelium vitae and Law, May 24, 1996, para. 4. 6 Centesimus annus, May 1, 1991, 44. 7 Ibid., 47.

250 R. Domingo person’s transcendent nature goes beyond the realm of what is changeable, what is material, temporal, and fleeting—even beyond the realm of law. The Polish pope viewed dignity and the soul as interchangeable concepts, since the human being receives dignity from God through spiritual human nature. Therefore, denying God, in any form of theoretical or practical atheism, deprives the person’s dignity of its foundation and consequently induces humanity to organize the social order in a way that dispenses with the person’s authentic free­ dom and responsibility: At the heart of every culture lies the attitude man takes to the greatest mys­ tery: the mystery of God. Different cultures are basically different ways of facing the question of the meaning of personal existence. When this question is eliminated, the culture and moral life of nations are corrupted.8 The pope’s emphatic statement also remains valid in the field of legal culture. This theistic vision of dignity provides an objective validity (imago Dei) to the idea of dignity that is beyond the reach of any agnostic or atheistic approach. Without this theistic perspective, dignity can easily be reduced to a substantial subjective self, to a pure capacity for rational autonomy, to mere self-respect as a prerequisite for living well and taking moral responsibilities seriously, or to a simple right to be recognized as a person in law. In the worst case, dignity absent the image of God can become a formal, empty concept without a specific function in the legal sphere because of its dangerous ambiguity. When the idea of human dignity weakens, legal systems teeter. When dignity ceases to have its origin in God, it becomes the rationale for a falsely divinized humanity, no longer a child of God but master and ruler of itself, ethically sovereign, with no other limit than its own will and its responsibility for the rights of others.

Natural Law Protecting the Person’s Dignity In his encyclical letter Veritatis splendor (August 6, 1993), John Paul II extensively broaches the issue of natural law, in a way very similar to the thinking of Saint Thomas Aquinas. For John Paul II, the ultimate foundation of the human per­ son’s dignity does not lie in its being granted by positive law, that is, in the con­ sent of human society. Instead, dignity is external to every human being, it comes from without. Something similar occurs with life itself. If dignity is received, given by God, so is the law that governs it: the so-called natural law. This law acts as a moral guide and limit to the legal system and to positive law as a whole, because when a person strays from natural law, their divine image is tarnished and dis­ figured and their conscience is troubled. For John Paul II, this natural law is a “light of understanding infused in us by God, whereby we understand what must be done and what must be avoided”;9 it 8 Ibid., 24.

9 Veritatis splendor, Aug. 6, 1993, 12.

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gives us “an objective criterion of good and evil, beyond the will of those in power.”10 In other words, the human person, owing to the dignity of intelligence, is equipped to know the truth and to seek the absolute11—and to do so freely. Freedom and truth are the two wings that allow human dignity to fly high, to expand and to facilitate the development of each human person and all human peoples. John Paul II’s exploration of this relationship between truth and freedom, in the light of the Second Vatican Council, is at the heart of his book The Acting Person—namely, that the human person is capable of achieving with free actions something that is objectively good, because it is true.12 The human being’s capacity for freedom unfolds completely only through the quest for and acceptance of truth: “Affirming the right of the person to freedom while depriving the objective truth of that person, makes it impossible to construct an intrinsically just legal system.”13 In a world without truth, freedom is emptied of its content, and the human person falls prey to utilitarianism, relativism, and totalitarianism. Therefore, the genuine moral autonomy of the human being entails accepting moral law. This inseparable relationship between truth and freedom is manifest in the essential link between divine wisdom and human will and justifies the universal character of natural moral law. This universality, in turn, John Paul II explains, does not ignore the individuality of human beings, nor is it opposed to the absolute uniqueness of each person. On the contrary, it embraces at its root each of the person’s free acts, which are meant to bear witness to the uni­ versality of the true good.14 The encounter between human freedom and natural law takes place in the conscience of each person who, after assimilating the truth contained in the law, can pass judg­ ment on the right conduct to be chosen at that precise moment of today and now. The stance that brings together truth and law in the temple of consciousness is the total opposite of the dominant individualistic ethics, which promotes a kind of right to ethical independence.15

Human Rights, Common Human Patrimony John Paul II earned the apt nickname of the “human-rights pope,” because he put human rights at the center of his papal message. He explained this in his address at La Sapienza University, when he received his honorary doctorate: Centesimus annus, 45. Fides et ratio, Sep. 14, 1998, 3 and 102. Wojtyła, The Acting Person. John Paul II, Speech to participants in the Symposium on Evangelium vitae and Law, para. 3. 14 Veritatis splendor, 51. 15 Ronald Dworkin, Justice for Hedgehogs (Cambridge MA: Harvard University Press, 2013), 368–69. 10 11 12 13

252 R. Domingo In my years of pastoral service to the church, I have considered it part of my ministry to give ample space to the affirmation of human rights because of their close connection with two fundamental features of Christian morality: the dignity of the person and peace.… Awareness of this has motivated me to do my utmost to serve these values; but I could not carry out the mission required of me by my apostolic office without having recourse to the categories of law.16 The decision to put human rights at the heart of his message was supported by his life experiences. He suffered under both the Nazi and communist totalitarianism regimes in his native Poland, and survived the assassination attempts in St. Peter’s Square (1981) and, less known, in Fatima (1982). These serious assaults on his own flesh contributed decisively to shaping John Paul II’s thinking and to estab­ lishing his priorities. When Wojtyła spoke of human rights, he knew from experi­ ence what he was talking about. That gave his words even stronger effect. For John Paul II, a society that does not take human rights seriously—however democratic it may be—cannot live in peace or develop in harmony, because it ends up falling into political totalitarianism, moral relativism, and sometimes religious fundamentalism. In his two addresses to the United Nations General Assembly, John Paul II accepted and backed the international system of human rights that emerged from the ashes of the Second World War: The Universal Declaration of Human Rights—with its train of many declara­ tions and conventions on highly important aspects of human rights, in favour of children, of women, of equality between races, and especially the two international covenants on economic, social and cultural rights and on civil and political rights—must remain the basic value in the United Nations Organization with which the consciences of its members must be confronted and from which they must draw continual inspiration.17 Fully in line with the preamble of the Declaration, John Paul II saw the ultimate foundation of human rights in the dignity to which the human person is entitled by nature. These rights, which constitute a “common human patrimony,”18 are not vague, abstract points but specific, objective, and inviolable demands ensuing from natural moral law. They remind us that “there is a moral logic which is built into human life and which makes possible dialogue between individuals and peoples.”19 In his first address to the UN, in 1979, John Paul II proposed a distinction between the human rights that protect material goods (for example, property and 16 Address for the 7th centenary of La Sapienza University of Rome, no. 2. 17 Address to the General Assembly of the United Nations, New York, Oct. 2, 1979, no. 9, www.vatican.va/content/john-paul-ii/en/speeches/1979/october/documents/ hf_jp-ii_spe_19791002_general-assembly-onu.html 18 Address to the United Nations, New York, Oct. 5, 1995, www.vatican.va/content/ john-paul-ii/en/speeches/1995/october/documents/hf_jp-ii_spe_05101995_addres s-to-uno.html 19 Ibid.

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a minimum wage) and those that protect spiritual goods (for example, culture and religious freedom). He praised different states’ efforts to develop rights regarding material goods, but, echoing Vatican II’s Dignitatis humanae, he insisted on the primacy of spiritual goods since, by their very nature, they have an indestructible and immortal value and can be enjoyed and shared in solidarity by all people. To achieve peace in the world, John Paul II proposed that nations place greater emphasis on developing the intangible dimension of human rights, since this would generate stronger bonds than those created by tangible goods: For centuries, the thrust of civilization has been in one direction: that of giving the life of individual political societies a form in which there can be fully safeguarded the objective rights of the spirit, of human conscience and of human creativity, including man’s relationship with God.20 In his countless speeches and his incessant cosmopolitan activity, John Paul II defended human rights in their specific manifestations. Among the main ones, he mentioned: the right to live in a united family and in a moral environment conducive to the growth of the child’s personality; the right to develop one’s intelligence and freedom in seeking and knowing the truth; the right to share in the work which makes wise use of the earth’s material resources, and to derive from that work the means to support oneself and one’s dependents; and the right freely to establish a family, to have and to rear children through the respon­ sible exercise of one’s sexuality.21 Yet, without a doubt, John Paul II always showed a special predilection for two human rights: the right to life and the right to religious freedom. This predilection was in no way arbitrary, since both rights, to a certain extent, underpin all the others.

The Right to Life John Paul II dedicated one of the most emblematic encyclicals of his pontificate, Evangelium vitae (March 25, 1995), to the issue of life. It is a highly significant document, which describes life as God’s greatest gift to humanity. This divine gift deserves the utmost social and scientific respect and the greatest legal protection, he declared. In this encyclical, the Polish pope clearly and forcefully denounced the great threats to human life in the so-called era of human rights. According to John Paul II, society risks serious moral deterioration and a kind of cultural contradiction in trying to make the brilliant international human-rights declarations and the entire institutional system surrounding them compatible with the scandal of laws that permit or command aberrant attacks on human life: 20 Address to the General Assembly of the United Nations, Oct. 2, 1979, no. 19.

21 Centesimus annus, 47.

254 R. Domingo How can we reconcile these declarations with the refusal to accept those who are weak and needy, or elderly, or those who have just been conceived? These attacks go directly against respect for life and they represent a direct threat to the entire culture of human rights.22 For John Paul II, to advocate or legalize the right to abortion, infanticide, or euthanasia implies attributing to human freedom an annihilating power over others and against others. Precisely therein lies “the death of true freedom.”23 Choosing life means that law must have a higher moral and spiritual vision, and implies an unwavering rejection of any form of physical or moral violence: the violence of material poverty, of arms and armed conflict, of racism, of drug traf­ ficking, or of environmental violence. John Paul II also spoke out against the death penalty, which he saw as cruel and unnecessary: “Today however, as a result of steady improvements in the organi­ zation of the penal system, such cases are very rare, if not practically non­ existent.”24 (The practice, however, remains common in fifty-four countries, including, notoriously, the United States, which had eighteen executions in 2020.) Pope Francis, in full accord with Pope John Paul II’s doctrine, has taken a further step forward and has settled the question of capital punishment with a reform of the Catholic Church Catechism that absolutizes the principle: “The death penalty is inadmissible because it is an attack on the inviolability and dignity of the person.”25 The source and sanctuary of life is the family, the teacher of love, compas­ sion, happiness, and forgiveness. The Polish pope dedicated his encyclical Familiaris consortio to this on November 22, 1981. This document, together with Evangelium vitae, forms a whole, and the two must be read and interpreted together.

Religious Freedom First as capitular vicar (1962–64), and then as archbishop of Krakow (1964–78), Wojtyła had to defend the exercise of his own faith, and his faithful’s religious freedom and to negotiate hard with the communist regime for the necessary per­ mits to build new parishes and pastoral centers and to restore religious processions and pilgrimages. Famous cases include the creation of the parishes of Nowa Huta, a town specifically designed to have no church, and of Miestrzejowice. Wojtyła’s remarkable strategic ability and invincible courage did not go unnoticed by the communist authorities, who subjected him to oppressive surveillance.26

Evangelium vitae, Mar. 25, 1995, 18. Ibid., 20. Ibid., 56. Catechism of the Catholic Church, no. 2267. See also Pope Francis, Fratelli tuti, Oct. 3, 2020, nos. 263–70.

26 Weigel, Witness to Hope, 189.

22 23 24 25

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With these and other experiences of religious freedom violations, Wojtyła’s opinion was given the highest auctoritas in the debates at the Second Vatican Council con­ cerning the drafting of the declaration on religious freedom, Dignitatis humanae, of December 7, 1965. Together with other council fathers, Wojtyła proposed additions to the final document that were considered and included.27 He was always proud of this council’s declaration, which he considered revolutionary: “The Council’s Declaration on Religious Freedom resulted in the release of enormous moral and religious energies, which have had a real bearing on the social and political transfor­ mations of recent years, and indeed on the whole structure of international relations,” he affirmed in his address of December 7, 1995, marking the thirtieth anniversary of Dignitatis humanae. John Paul II regarded the right to religious freedom as the foundation of the person’s rights, and he often said that no social progress is possible without respect for the truth and the right to know the truth, including notably divine truth. He explained this himself in one his addresses on the World Day of Peace: “The civil and social right to religious freedom, inasmuch as it touches the most intimate sphere of the spirit, is a point of reference of the other fundamental rights.”28 So for John Paul II, protecting religious freedom was not just a strategy of aggior­ namento adopted by the church to bring its dialogue up to date with con­ temporary culture, even if it naturally facilitated such a modernization. Nor was protection of religious freedom a mere instrument to achieve peace in the world, however much it contributed to it. Rather, religious freedom was the source and foundation of other human rights—“the first right.” Precisely this freedom, he said, is understood “as the right to live in the truth of one’s faith and in con­ formity with one’s transcendent dignity as a person.”29 This firm internal conviction of the good of religious freedom led John Paul II, as pontiff, to substantially improve the Catholic Church’s relations with the Jewish and Islamic communities, and to promote a fresh and dynamic ecumenism with Rome’s Protestant and Orthodox Christian brothers and sisters. The fruit of his passionate love for religious freedom and interreligious dialogue was the creation of the Pontifical Council for Interreligious Dialogue in 1988. John Paul II also became the first pope to visit a synagogue (the Great Synagogue in Rome) and to pray inside a mosque (in Damascus). In 1986, he convened the World Day of Prayer for Peace, a tradition that has continued to this day.

The Rights of Nations and Eradication of War John Paul II went even further in his defense of human rights than the Universal Declaration of Human Rights. On October 5, 1995, addressing the Fiftieth Gen­ eral Assembly of the United Nations, he put forward the possibility of a Universal Declaration on the Rights of Nations. These were his words: 27 On this intervention and its context, see Weigel, Witness to Hope, 158–66.

28 Message for the celebration of the World Day of Peace, Jan. 1, 1988.

29 Centesimus annus, 47.

256 R. Domingo The Universal Declaration of Human Rights, adopted in 1948, spoke eloquently of the rights of persons; but no similar international agreement has yet adequately addressed the rights of nations. This situation must be carefully pondered, for it raises urgent questions about justice and freedom in the world today.30 There is little doubt that he was thinking about the tragic history of his own nation, Poland, which for more than a century had been literally wiped off the European map. Divided among Russia, Prussia, and Austria in 1795, Poland did not regain its independence until the end of the First World War, and in 1939 it was invaded by Nazi Germany and the Soviet Union. Yet he was also thinking about the fall of the Berlin Wall and the Iron Curtain, which occurred peacefully as a nonviolent revolution. The rights of nations that he proposed are the same human rights enumerated in the Universal Declaration, but seen from the perspective of community life. These rights therefore have nothing to do with breaking up the international community through exclusive nationalism, as they are oriented toward the common good of humanity. The Polish pope argued that nations and peoples have the right to existence, freedom, autonomy, cultural identity, self-government, handling of their own affairs without outside interference, and so much more. John Paul II insisted on this same idea in his message on the fiftieth anniversary of the start of the Second World War: There is no peace if the rights of all peoples—and particularly the most vul­ nerable—are not respected! The whole edifice of international law is based on the principle of equal respect, by the States, of the right to self-determination of each people and their free cooperation in view of the higher common good of humankind.31 He intended his proposed Universal Declaration of the Rights of Nations to become the right legal framework for settling international conflicts, without the need to resort to war or violent encounters. For John Paul II, war had ceased to be the last suitable legal instrument for settling conflicts between peoples when diplomacy had been exhausted. War is monstrously cruel and must simply be era­ dicated, he argued, even as a possibility or threat. In this regard, John Paul II can be considered a forerunner of what we now call global law, which, unlike inter­ national law, does not contemplate war as a possibility. Without speaking expressly about a global right, John Paul II sensed it when he said that humanity “(today) needs a greater degree of international ordering, at the service of the societies, economies and cultures of the whole world.”32 These were his words in his first address to the United Nations: 30 Address to the United Nations, Oct. 5, 1995, no. 6. 31 Message on the Occasion of the 50th Anniversary of the Beginning of the Second World War, Aug. 27, 1989, n. 8. 32 Sollicitudo rei socialis, Dec. 30, 1987, 43.

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It is therefore necessary to make a continuing and even more energetic effort to do away with the very possibility of provoking war, and to make such catastrophes impossible by influencing the attitudes and convictions, the very intentions and aspirations of governments and peoples. This duty, kept constantly in mind by the United Nations Organization and each of its institutions, must also be a duty for every society, every regime, every government.33 Twelve years after giving this address, John Paul II complained about the inefficiency of the United Nations in this regard: “The United Nations, moreover, has not yet succeeded in establishing, as alternatives to war, effective means for the resolution of international conflicts. This seems to be the most urgent problem which the interna­ tional community has yet to resolve.”34 Firmly convinced of the effectiveness of diplomacy and peaceful means of struggle, which had brought such good results in Eastern Europe during the “velvet revolution” that he helped to lead in Poland, John Paul II devoted all of his energy to preventing any declaration of war on the planet. He made tireless, even if futile, diplomatic efforts to prevent, at any cost, the Falklands War (1982), the Gulf War (1990–91), and the Iraq War (2003–11). He described these wars as a failure of humanity.35 Thanks to his mediation, the so-called Beagle conflict between Argentina and Chile was resolved with a peace treaty (1984). Yet above all, his mediation enabled Poland to undergo a peaceful transition from a totali­ tarian communist regime in the orbit of the USSR to a democratic state governed by the rule of law and part of the European Union. He recounted this with joy in his famous address to the Polish Parliament on June 11, 1999, probably one of the happiest and most historic moments in his life. All of his efforts as a great promoter of justice had borne fruit in his beloved homeland.

Solidarity as the Inspiring Principle of Social Justice Solidarity takes center stage in two of John Paul II’s encyclicals: Sollicitudo rei socialis (December 30, 1987) and Centesimus annus (May 1, 1991). Human per­ sons not only have dignity because they are created in the image of God, they also have solidarity. For John Paul II, dignity and solidarity go hand in hand. It is characteristic of dignified persons to act in solidarity with their neighbors and with their surroundings in general. Insofar as it affects all human action, solidarity touches the very essence of law. John Paul II’s thought clearly shows that the quality of a legal system can be measured by the degree to which people’s dignity is protected through the defense of their fundamental rights and the degree to which citizens are required 33 Address to the General Assembly of the United Nations, Oct. 2, 1979, no. 11. 34 Centesimus annus, 21. 35 Paul Kengor, A Pope and a President: John Paul II, Ronald Reagan, and the Extra­ ordinary Untold Story of the 20th Century (Wilmington, DE: ISI Books, 2017); and Weigel, Witness to Hope, 272–73, 434–36, and 619–23.

258 R. Domingo to act in solidarity with each other, their environment, their religion and culture, and the institutions of modern society. Just as dignity, for the Polish pope, is a profoundly Christian principle, so too is solidarity: In the light of faith, solidarity seeks to go beyond itself, to take on the specifically Christian dimension of total gratuity, forgiveness, and reconciliation. One’s neighbor is then not only a human being with his or her own rights and a fun­ damental equality with everyone else, but becomes the living image of God the Father, redeemed by the blood of Jesus Christ and placed under the permanent action of the Holy Spirit. One’s neighbor must therefore be loved, even if an enemy, with the same love with which the Lord loves him or her; and for that person’s sake one must be ready for sacrifice, even the ultimate one.36 According to John Paul II, the principle of solidarity manifests itself in many dif­ ferent ways in the field of social and economic justice, whether at the local, regional, national, or global level. I refer briefly to five of the ways that solidarity affects legal systems very directly. Universal destination of goods and respect for private property. Creation is ori­ ginally meant for all persons. Therefore, the necessary right to private property is not absolute, but has an intrinsically social function and is under a kind of social mortgage. At the heart of this social mortgage lies the preference for the poor.37 That is why no legal system is completely fair, unless it exemplifies solidarity and guarantees the complete disappearance of poverty at all levels. b Ecological solidarity. The principle of solidarity requires us to look after the planet as a treasure to be enjoyed without damaging it, in order to preserve it for future generations. Legal systems play an outstanding supportive function by regulating the ecological question from the perspectives of administrative law, health law, and criminal law, among others.38 c Principle of subsidiarity. The principle of subsidiarity is a practical expression of the principle of solidarity, which applies when subsidiarity acts vertically. A social structure of a higher order, if it is truly supportive, should not interfere in the internal life of a community of a lower order, limiting its competencies and preventing its development. The higher structure should support the lower structure, not stifle it, and should work with it to achieve the common good. Subsidiarity gives people enough freedom to act freely and develop, while preventing them from being subjected to suffocating structures.39 d Solidarity of democracy. John Paul II valued the democratic system “inasmuch as it ensures the participation of citizens in making political choices, guaran­ tees to the governed the possibility both of electing and holding accountable a

36 37 38 39

Sollicitudo rei socialis, 40.

Ibid., 42, and Centesimus annus, 30.

Centesimus annus, 37–39.

Ibid., 48.

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those who govern them, and of replacing them through peaceful means when appropriate.”40 For a democracy to be truly supportive, John Paul II deman­ ded that it be sustained by a state of law and based on a correct conception of the human person. Solidarity of the economic model. John Paul II called for a model of economic organization—at the regional, national, and international levels—that supports and respects the person’s dignity. For the Polish pope, neither the socialist model nor the capitalist model meets the necessary requirements of dignity and solidarity. As an alternative, and without in any way claiming to define the model, he proposed “a society of free work, of enterprise and of parti­ cipation. Such a society is not directed against the market, but demands that the market be appropriately controlled by the forces of society and by the state, so as to guarantee that the basic needs of the whole of society are satisfied.”41

The Great Reformer of the Catholic Church’s Canon Law To bring the law of the Catholic Church into line with the prescriptions of the Second Vatican Council, John Paul II carried out a profound legislative reform of canon law, thus completing the work begun by his predecessors Pope John XXIII and Pope Paul VI. This reform rested mainly on three main pillars: the 1983 Code of Canon Law (Codex Iuris Canonici), the 1990 Code of the Canons of Eastern Churches (Codex Canonum Ecclesiarum Orientalium), and the 1988 Apostolic Constitution Pastor Bonus on the reform of the organization and government of the Roman Curia. Pastor Bonus was fully abrogated and replaced by the apostolic constitution Praedicate Evangelium, promulgated by Pope Francis on March 19, 2022. The new Code of Canon Law, applicable to the (Western) Church of the Latin rite, replaced that of 1917. It was promulgated on January 25, 1983, by the apostolic constitution Sacrae disciplinae leges, which John Paul II drafted personally.42 He reviewed the code of 1983 in detail before its approval. It is structured differently from the European codes of Roman tradition, which the 1917 code had followed, and its organizational structure is clearly ecclesiological. More doctrinal and theological than the 1917 code, the 1983 code represents an effort to translate the ecclesiology of the Second Vatican Council into legal language. The renewed ecclesiology of the Second Vatican Council revolves around the notion of communion as a hermeneutic key to the mystery of the church. Com­ munion gives one a better understanding of the meaning of the church as the people of God, collegiality, hierarchical authority as a service, the relations between the universal church and the particular church, the importance of ecu­ menism, and the central role that laypeople play in the church’s life, since all of 40 Ibid., 46.

41 Ibid., 35.

42 Weigel, Witness to Hope, 445.

260 R. Domingo God’s people participate in the priestly, prophetic, and royal functions of Christ.43 The 1983 code has been reformed many times by John Paul II himself, by Pope Benedict XVI, and, above all, by Pope Francis. The crisis that the Catholic Church went through after clerical sexual abuses came to light underscored the code’s shortcomings in criminal and procedural matters and the need to strengthen the code with subsequent complementary legislation. John Paul II himself began this reform on his own initiative with the apostolic letter Sacramentorum sanctitatis tutela, in 2001. In this apostolic letter, among many other measures, John Paul II reserved judgment on any sexual offense committed by a cleric with a minor to the competence of the Sacred Congregation for the Doctrine of the Faith. The pope’s desire to eradicate sexual abuse in the church was profoundly sincere, and when he shouted at the cardinals to meet the challenge with “uncompromising courage,” the cry came straight from his heart, aching at the damage caused to the victims and to the whole church.44 This does not mean that John Paul II did not make mistakes, as any human being would—sometimes with serious consequences, for not correctly interpreting the facts and circumstances with the information avail­ able to him, for not having sufficient proof, or for being cynically deceived by someone in whom he placed his trust. This seems to be clear from the Holy See’s extensive report on the case of former Cardinal Theodore Edgar McCarrick, who has been defrocked, or the case of Marcial Maciel and the Legionaries of Christ.45 What is more, the fact that John Paul II suffered the slander orchestrated by the secret services for so many years—and was even accused in 1983 of having sexual relations with an acquaintance who had died, on the basis of a forged diary pur­ ported to belong to her—could no doubt have influenced his excessive prudence before condemning anyone for sexual abuse unless the evidence was guaranteed to be fully reliable.46 Attempting to damage the memory and annihilate the legacy of Pope John Paul II for these regrettable events during his pontificate is clearly meaningless. As he himself said, referring to the work of the Catholic Church: “A great work of art may be blemished, but its beauty remains; and this is a truth which any intellectually honest critic will recognize.”47 On October 18, 1990, by means of the apostolic constitution Sacri Canones, John Paul II promulgated the Code of Canons of the Eastern Churches, which contains the norms of canon law applicable to the twenty-three Eastern Catholic Churches sui iuris (Armenian, Chaldean, Maronite, and Coptic, among others). This is a complete code, common to all the Eastern churches, which aims to 43 See Sacrae disciplinae leges, Jan. 25, 1983. 44 Address to the Cardinals of the United States, Apr. 23, 2002. 45 “Report on the Holy See’s Institutional Knowledge and Decision-Making Related to Former Cardinal Theodore Edgar McCarrick,” Nov. 10, 2020, www.vatican.va/ resources/resources_rapporto-card-mccarrick_20201110_en.pdf. On the Maciel case, see Weigel, The End and the Beginning, 512–15. 46 About these false accusations, see Weigel, The End and the Beginning, 132, and José María Zavala, El enigma Wojtyla. Un retrato desconocido de Juan Pablo II (Madrid: Ediciones Martínez Roca, 2020), 182–84. 47 Address to the Cardinals of the United States.

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reinforce and protect the richness of the diversity of rites in the Catholic Church. Each rite is considered “the liturgical, theological, spiritual, and disciplinary patri­ mony, culture, and circumstances of history of a distinct people, by which its own manner of living the faith is manifested in each autonomous [sui iuris] Church.”48 The underlying idea behind the whole legal text is that the full union of the Eastern Catholic Churches with the Church of Rome must in no way entail their losing sight of their own traditions and authenticity, since each rite embellishes the universal church itself. John Paul II referred to the two codes as the two lungs—of the East and of the West—through which the Catholic Church breathed.49 With Pastor Bonus, John Paul II adapted the Roman Curia to the inspiring principles of the Second Vatican Council. He designed ecclesiastical power as a service and made canon law even more dependent on ecclesiology. The new con­ stitution expressly states that “The Curia is the complex of dicasteries and insti­ tutes which help the Roman pontiff in the exercise of his supreme pastoral office for the good and service of the whole Church and of the particular Churches,” to strengthen “the unity of the faith and the communion of the people of God,” and to promote “the mission proper to the church in the world.”50 After more than thirty years of applying the apostolic constitution, and owing to the economic scandals generated within the Vatican, Pope Francis is carrying out, little by little, a profound reform of the curia. Along with these three important reforms, John Paul II made other important contributions to canon law, such as the establishment of the first personal pre­ lature, Opus Dei (1982), thus challenging the fundamental principle of territori­ ality, and the establishment of the Pontifical Council for the Interpretation of Legislative Texts (1986), the organization of spiritual assistance to the military (1986), the reform of the universities and ecclesiastical faculties (1979), the reform for the election of the supreme pontiff (1996), and the publication of the Catechism of the Catholic Church (official Latin text of 1997), which condenses and updates all the magisterium of the Second Vatican Council.

Conclusion Pope John Paul II’s contribution to the realm of law remains relevant to the church and the broader world, and the Polish pope well deserves the name of lawyer. He approached law from the perspective of philosophy, ethics, and theol­ ogy, but also as a statesman, world leader, and pastor of the Catholic Church. Not only was he a theoretician of law, but he also created and applied it, as a pastor of the Catholic Church and head of the Vatican State. Through his public action, he contributed to the substantial transformation of the legal systems in Eastern Europe and especially in his beloved Poland. 48 Canon 28 § 1 of the Code of Canons of the Eastern Churches (Washington, DC: Canon Law Society of America, 2001). 49 Apostolic Constitution Sacri Canones, Oct. 18, 1990. 50 Apostolic Constitution Pastor Bonus, Jun. 28, 1988, art. 1.

262 R. Domingo John Paul II grasped the importance of law for the establishment of a culture of love, which represented the purpose of his pontificate. Without law there is no justice, and without justice there is no love. At the heart of the legal system, John Paul II placed the human person, whose dignity stems from being created in the image of God. Dignity, therefore, is a metalegal and transcendent idea, which needs to be protected by the law, yet which in turn transcends the legal system. When dignity ceases to stem from God, it is easy for systems to focus attention on a falsely divinized human being, no longer a child of God but master and lord of self, ethically independent of any divine command. That is when dignity becomes trapped by the arbitrariness of one’s own behavior. By acknowledging the gift of dignity, one can find full harmony between moral law and conscience, nature and freedom, justice and truth. From the dignity of human nature spring human rights, which are objectively true, so that their existence does not depend on the will of public authorities. Human rights are not granted but rather acknowledged. Among these rights, the right to life and the right to religious freedom shine in Karol Wojtyła’s mind. For John Paul II, solidarity is the principle that shows how people act and confirms their dignity. Any fair system must be essentially supportive. This solidarity is shown in the universal destination of all goods, in the responsibility to care for the planet, in the preferential option for the poor, in the principle of subsidiarity, in the political participation of citizens, and in an economic organization of solidarity that goes beyond the socialist and capitalist models. Last of all, Pope John Paul II was a great reformer of canon law. To him we owe, among other legal texts, the promulgation of the 1983 Code of Canon Law, the 1990 Code of Canons of the Eastern Churches, and the 1988 Apostolic Constitution Pastor Bonus, on the organization and government of the Roman Curia (fully abrogated and replaced by the Apostolic Constitution Praedicate Evangelium promulgated by Pope Francis in 2022).

17 Irena Malinowska-Kwiatkowska (1925–1994) Andrzej Dziadzio

Introduction Irena Malinowska-Kwiatkowska belonged to a group of eminent Polish legal his­ torians whose professional lives and academic careers were shaped by the totali­ tarian communist state from 1944 to 1989. She belonged to the so-called Generation of Columbuses (in Polish, pokolenie Kolumbów), who were born in the 1920s and looked back to the time of the sovereign and independent Second Polish Republic, which had been established in 1918 after more than a century of subjugation. The early years of this generation were marked by the cruelty of World War II (1939–45), because they “looked at Auschwitz,” as she wrote in a letter to her father, who was in exile in Paris.1 Nazi German totalitarianism, through the extermination of the Jewish people and the enslavement of Polish society, as well as the physical extermination of its elites, forced that generation of young Poles to mature early. An entire generation of Poles thus entered postwar life with a burden of strong negative experiences, which were intensified by the new political reality of the communist state. Communist rule in Poland engen­ dered further enslavement of the Polish nation. For Irena Malinowska, who was brought up in a spirit of national patriotism and devotion to Catholicism, the communist regime contradicted everything that had been instilled in her at home. She owed this grounding to her father, Władysław Pobóg-Malinowski (1899– 1962), who was a participant in the Polish-Soviet war of 1920. Despite his lack of formal historical education, he successfully practiced historical journalism. His successes in this field led to his employment, in 1929, at the Institute for Research in Modern Polish History. In 1935, he published his two-volume biography of Marshal Józef Piłsudski, the creator of Polish statehood and leader of the Polish state from 1926 to 1935. It was an entirely scholarly work, but maintained the spirit of the Piłsudski cult.2 Before the outbreak of World War II, Pobóg­ 1 “Jes´li wspaniałomys´lnie napiszesz list …”: listy córki Ireny do Władysława PobógMalinowskiego (Letters from daughter Irena to Władysław Pobóg-Malinowski), ed. . Przemysław M. Zukowski, Archiwum Emigracji. Studia-Szkice-Dokumenty 2, no. 19 (2013): 159, letter dated Sep. 20, 1957. 2 Henryk Wereszycki, “Malinowski (Pobóg-Malinowski) Władysław (1899–1962),” Polski Słownik Biograficzny (Kraków: Polska Akad. Umieje˛ tnos´ci, 1974), 19: 365–67.

DOI: 10.4324/9781003181255-18

264 A. Dziadzio Malinowski worked in the Ministry of Foreign Affairs. In 1939 he was responsible for the evacuation of the ministry’s files outside the country in the face of Nazi Germany’s invasion of Poland and, two weeks later, the Soviet Union’s invasion from the east. At the turn of 1940, he managed to escape through Romania and Italy to France, where he took part in the French defense against Germany. After the end of the war, he remained in France, where he published a three-volume work titled Najnowsza historia polityczna Polski, 1864–1945 (A modern political history, 1864–1945), which was banned by communist censorship. After parting from his daughter in 1939, he maintained contact with her by letter, leading the life of an émigré with a new family. The separation affected their relationship, which is reflected in Irena Malinowska’s letters to her father from the years 1945 to 1959, preserved in Paris archives. They met (probably twice) in Italy during her terms on a scholarship in Rome and Bologna. Irena Malinowska inherited her father’s passion for history and scholarly endeavor. Despite a difficult financial situation, relying only on her working mother, she decided to study law at the Jagiellonian University in Kraków, which reopened in 1945. This was the city where she had spent the entire period of German occupation. It was also no coincidence that she attended a seminar on the discipline of the world history of law, because as well as history, she was passionate about learning foreign languages. She knew Latin, English, French, German, Ita­ lian, and Russian. The talent for academic work and the linguistic flair of the young law student were immediately noticed by Professor Michał Patkaniowski (1907–72), the supervisor of her MA thesis.3 In the difficult postwar period, he endeavored to recruit for the department talented students who were intellectually and ethically rooted in Latin civilization, under the conditions in which the com­ munist authorities were implementing ideas that contradicted Western culture. Thus, Malinowska found herself in the circle of Kraków’s historians of law who had learned from the masters, the luminaries of Polish prewar legal scholarship. Patkaniowski was a protégé of Stanisław Estreicher, the rector of the Jagiello­ nian University and the dean of its Faculty of Law. Estreicher’s university lectures broadly covered the history of the political systems in Germany, England, France, and Italy from the Middle Ages to the nineteenth century. He presented a com­ parative view of the development of procedural law (criminal and civil). Politically linked to the Kraków conservatives, Estreicher taught his students not only specific knowledge but also the basics of the history of culture and political thought. He was arrested by the Germans in 1939 during the Sonderaktion Krakau operation, together with other professors at the Jagiellonian University. He died the same year in the Sachsenhausen concentration camp near Oranienburg. Patkaniowski remained faithful to his teacher, both in the content and style of his university lectures, and in his civil courage in expressing his views. Another historian of law whose attitude influenced the scholarly career of Irena Malinowska was Adam Vetulani, a professor in the Department of the History of . 3 Stanisław Salmonowicz, “Zycie jak osioł ucieka …”: Wspomnienia (Gdan´sk: Instytut Pamie˛ ci Narodowej, 2014), 120.

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the Polish Political System and a supporter and successor of Stanisław Kutrzeba, the most prominent Polish historian of law in the Second Republic of Poland. Vetulani made a name for himself in the postwar period as an eminent expert on medieval sources of canon law, whose works on the Decretum Gratiani brought him international recognition.4 Academic contacts with Vetulani were maintained by the metropolitan bishop of Kraków, Cardinal Karol Wojtyła, later Saint Pope John Paul II. Vetulani was regarded as a clericalist and an opponent of the com­ munist authorities. In the early postwar years, he was involved in the activities of the Polish People’s Party, which opposed the communists. For this reason, he was under surveillance by the communist Security Service.5 The intellectual, academic, and moral authority of both of these professors, who had international contacts from prewar times (Patkaniowski’s with Italian researchers, Vetulani’s with his French counterparts), meant that the Kraków legal historians’ circle maintained relative research independence throughout the communist era. The Kraków legal historians were perceived by the Polish academic community as a group of scholars who resisted pressure from the communist authorities, unlike many other lawyers with professorial titles, who either openly or secretly supported the communist regime. Thus, in 1947, Irena Malinowska joined a group of scholars who shared her religious (Catholic) worldview. Her colleagues from that period, and later professors of law at the Jagiellonian University, inclu­ ded Lesław Pauli (1919–86) and Wojciech Maria Bartel (1923–92). With them, under the leadership of Patkaniowski, she formed an academic team that con­ ducted research in the field of world legal history: Italian law (MalinowskaKwiatkowska), English law (Bartel), and Austrian law (Pauli). They were united not only by their academic cooperation but also by the teaching of legal history based on reliable knowledge of Western European constitutionalism and law. The skillful narration of historical facts, whether from the history of the British parliamentary monarchy (against the background of the system of the former Polish-Lithuanian Commonwealth), or the American and French democracies, enabled students to draw the correct conclusions about the differences between the Western legal tradition and the tenets of the totalitarian communist state. It was something of a paradox that, in communist Poland, the teaching of the his­ tory of political systems and law gained a high profile. This was due to the fact that Marxist ideology was based on so-called historical materialism, the scientific application of which was to demonstrate the superiority of the socialist laws and system in contrast to the historically formed institutions of the bourgeois (capital­ ist) state. However, the communist authorities did not find many followers of this way of communicating knowledge. They had to rely on university staff who were unable to meet the ideological requirements, either academically or in terms of 4 Wacław Uruszczak, “Adam Vetulani (1909–1976),” in Uniwersytet Jagiellon´ski. Złota Ksie˛ ga Wydziału Prawa i Administracji, ed. Jerzy Stelmach and Wacław Uruszczak (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 2000), 396. 5 Stanisław Salmonowicz, “Profesorowie Uniwersytetu Jagiellon´skiego jako przedmiot inwigilacji organów UB i SB,” Czasy Najnowsze 13 (2002): 186–87.

266 A. Dziadzio their outlook on the world. Surveilled by the Security Service, W. M. Bartel was characterized as follows: He belongs to the group of academics at the Jagiellonian University with a decidedly negative attitude toward the ongoing sociopolitical changes.… He is known at the Jagiellonian University for his intransigent clerical fanaticism, recognizing no compromises when it comes to the state-church relationship. Moreover, for many years, Associate Professor Bartel has had close contacts with the Kraków Curia, where he has been invited several times by Cardinal K. Wojtyła.… From the entirety of Bartel’s attitude as presented, it should be concluded that his influence on the environment of young students and aca­ demics is harmful from the ideological point of view. The aim of the operational activities of the Security Service was “to isolate Associate Professor Bartel from the academic community, and to prevent him from influencing the young.”6 Thus, during the Polish People’s Republic, students of law at the Jagiellonian University acquired reliable knowledge on the history of law, consistent with the achievements of Western European scholarship. The model of education adopted by Kraków’s scholars differed from that imposed by the authorities. Irena Malinowska-Kwiatkowska played an undeniable role in this. High personal propriety, discreetly expressed religiosity, outstanding academic skills, broad intellectual horizons, fluency in foreign languages, and an engaging manner—all these qualities undoubtedly made her, as the first female historian of law at the Jagiellonian University, an exceptional personality of the Faculty of Law in the twentieth century.

Biographical Information Irena Zofia Krystyna Malinowska was born on May 14, 1925, in Kraków. She completed primary school in Grudzia˛ dz in 1937, where she also attended her first year of junior high school in the 1937–38 school year. In 1938, she returned with her family to Kraków, where she completed the second year of junior high school before the outbreak of war. During the occupation of the Polish territory by the Third Reich, she first attended the third form of the school for kindergarten tea­ chers. After it was closed by the Germans, she attended a preparatory course for higher-level vocational schools (the equivalent of the fourth form of junior school, but without the teaching of Latin and history). After completing this course in 1941, she began attending the higher-level School of Commerce in Kraków, but had to discontinue her studies after a year, because she took a job as a clerk (accountant) at the State Agricultural and Commercial Cooperative, “Jednos´c´.” She worked there until the beginning of 1945. In this way, she helped her 6 See the Archives of the Institute of National Remembrance (hereafter cited as INR Archives), file No. Kr 010/12007.

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mother, on whom “since 1939 the whole burden of supporting the family had rested, because her father had gone away, and we no longer had any contact with him,” as she wrote in her own curriculum vitae from 1949, which she had sub­ mitted to the authorities of the university.7 At the same time, she attended covert classes at the Princess Wanda Junior and Senior Secondary School in Kraków. She supplemented her junior secondary school knowledge during these underground lessons, passing the so-called small baccalaureate (in Polish, mała matura) in the autumn of 1943. Then, in October 1944, she passed the humanistic secondary-school-leaving exam (matura). In March 1945, she enrolled at the Faculty of Law at the Jagiellonian University, from which she graduated in July 1947. The tuition covered the entire curriculum of prewar legal studies, which lasted two and a half years, without summer breaks. After receiving her master of arts degree in law on July 4, 1947, she began writing her doctoral dissertation under the supervision of Professor Patkaniowski. During her law studies she also studied at the Faculty of History (for two years only). In addition to attending Patkaniowski’s seminars, she also participated in Professor Jerzy Lande’s seminars on the history of philosophy and the theory of law. She completed her dissertation, titled “Freedom Rights in the Statutes of Italian Communes,” in 1949, and on its basis the council of the Faculty of Law of the Jagiellonian University awarded her the degree of doctor of laws in 1950. At the same time, beginning in 1947, she worked at the Regional Court in Kraków as a trainee. Following the completion of her work practice in December 1949, she began working as an assistant at the Jagiellonian University’s Department of the World History of State and Law. After defending her doctorate, she was appointed senior assistant and, in July 1953, adiunkt (assistant professor). She remained in this post until October 1963, when, after receiving her habilitation, she was appointed docent (senior assistant professor). In April 1948, Irena Malinowska married attorney-at-law Juliusz Wisłocki, PhD (1909–73), but in June of the following year she was granted a divorce on the grounds of her husband’s culpability and reassumed her maiden name. Following her parents’ marital troubles, this was another painful experience for her. After the breakdown of her marriage, she devoted herself, on the one hand, to caring for her mother and, on the other, to academic and professional work. In 1955, she 7 The Archives of the Jagiellonian University (hereafter cited as AJU), WP IV, 154. In the documents submitted to the university authorities, Malinowska concealed the fact of maintaining contact with her father, because any information about the family abroad could have been investigated by the security organs. In her letters, she avoided giving any information that might identify the sender and the recipient of the letters. She also asked her father not to admit that she was his daughter to Polish people visiting Paris. If this information had reached the authorities, she would have undoubtedly been dis­ missed from the university. This is why she used a euphemism in a letter, describing her father’s wartime fate as going “on a journey.” It was only in her curriculum vitae from 1993 that the information about her father was included. Not until the mid-1970s did the Security Service take an interest in Irena Malinowska-Kwiatkowska in connection with its operations against Tygodnik Powszechny, a Catholic magazine published in Kraków. See the INR Archives, file no. Kr 0101/159 Jacket.

268 A. Dziadzio returned to the practice of law by registering as an attorney at law. For five years, she was a member of Law Firm No. 4 in Kraków, but in 1960 she resigned from the firm, as it proved impossible to combine working as an attorney with lectures at the university. It was only after 1956 that new research opportunities opened up for Polish academics, as the communist regime had abandoned the repression of society on a mass scale. The authorities allowed limited travel (including the necessity to obtain a passport) to carry out academic research in Western Europe. Malinowska chose Italy as the destination for her research tour, due to her special interest in that country. This was probably also inspired by Professor Patkaniowski, who, before the war, had conducted research into the criminal law of medieval Italian towns. His Italian academic connections undoubtedly facilitated the efforts to obtain a scholarship for Malinowska from the Italian government. Malinowska studied in Italy on her research scholarship from November 1959 to June 1960. She studied in Rome under Francesco Calasso, and in Bologna under Giovanni de Vergottini. During her Italian studies, she prepared several treatises, for which she was awarded a distinction by the Italian Ministry of Foreign Affairs, which was communicated to the Polish Embassy in Rome in a letter dated January 18, 1962.8 After her return from Italy, she completed a habilitation dissertation on the history of legal culture of the seventeenth century: “Mikołaj Zalaszowski—polski prawnik XVII wieku na tle ówczesnej nauki prawa” (Mikołaj Zalaszowski—Polish lawyer of the seventeenth century against the background of the legal studies of the time). From her first stay in Italy, she had specialized in the history of Italian law, maintaining throughout the period of her academic activity contacts with Italian university centers and with the Italian Law History Association (Società Italiana di Storia del Diritto). Her thorough research into medieval Italian law culminated in a monograph titled Prawo prywatne w ustawodawstwie Królestwa Sycylii (1140–1231) (Private law in the legislation of the Kingdom of Sicily [1140–1231]), which became the basis for awarding her the title of professor of legal studies in 1974. She actively participated in international conferences and congresses of legal historians organized by Italian research institutions (Venice 1967, Bergamo 1967, Florence 1973, Milan 1979, Naples 1980, Bologna 1980, Siena 1986). Irena Malinowska-Kwiatkowska was, as it were, an ambassador of Italian legal culture in Poland, thanks to her numerous reports on Italian academic life and research work, which she published systematically in Polish periodicals, mainly in Czaso­ pismo Prawno-Historyczne (Legal history journal). In Italian academic journals, she published reports and reviews on the achievements and output of Polish legalhistorical studies.9 Thanks to her work, the Jagiellonian University became the only academic center in Poland to conduct research into the history of Italian law. 8 Irena Malinowska-Kwiatkowska’s handwritten curriculum vitae from November 1980, in the Archives of the Common History of the State and Law Department at the Jagiellonian University. 9 See “Bibliografia prac naukowych profesor Ireny Malinowskiej Kwiatkowskiej,” pre­ pared by Marian Małecki, in Szkice z dziejów ustroju i prawa pos´wie˛ cone pamie˛ ci Ireny Malinowskiej-Kwiatkowskiej (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego 1997), 17–26.

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Her unsuccessful marriage did not shatter Malinowska’s dreams of “a happy family home,” as she confided to her father. In July 1969, she married Zbigniew Kwiatkowski (1903–90), deputy director of the Center for Electronic Computing Technology in Kraków. Their daughter, Anna Maria, was born in August 1971. The daughter married early and soon gave birth to two children. In a letter writ­ ten in June 1994, after her return from a scholarship in Germany, MalinowskaKwiatkowska shared this reflection: “I am happy to return home after this luxur­ ious exile (because the working conditions are excellent in Germany!), because I have two little grandchildren here, whose development I watch with joy.”10 Unfortunately, Irena Malinowska-Kwiatkowska could not enjoy the joy of her grandchildren for long. She died on December 18, 1994, in Kraków. Malinowska-Kwiatkowska did not belong to any political party. She did not flaunt her views, but the affairs of Poland were close to her heart. She supported the political changes initiated by the Solidarity movement.11 In 1980, she joined this “independent self-governing trade union,” established under the leadership of Lech Wałe˛ sa. In 1989 she welcomed the formation of the first government with representatives of the anticommunist opposition. In 1993 she became disheart­ ened by the return of the postcommunists to power in Poland.12 In the memoirs of her long-time collaborator at the Department of the World History of the State and Law, Professor Kazimierz Baran aptly captured her attitude to life and scho­ larship: “She was a righteous and straightforward person, uncompromising, with perfect manners. Deeply religious, she often stressed her patriotism and attach­ ment to tradition. All her life she served people and academic truth.”13

University Career and Work The beginnings of Irena Malinowska-Kwiatkowska’s academic career were not easy. She started work on her doctoral dissertation under the conditions of the Jagiellonian University’s relative autonomy, but the defense of her dissertation coincided with the period of the flagrant sovietization of Poland, that is, the rebuilding of public and social life based on the model of the Stalinist communist dictatorship in the Soviet Union. The Jagiellonian University, like all scientific and educational institutions in Poland, was subjected to ideological and political 10 Letter from Irena Malinowska-Kwiatkowska, May 9, 1994, to Juliusz Bardach, in the Archives of the Common History of the State and Law Department at the Jagiellonian University. 11 The Security Service, taking advantage of Malinowska-Kwiatkowska’s trip to Italy in 1983, planned to interview her in order to warn her against attempting “to undertake activities in Italy which could be detrimental to the Polish People’s Republic.” See INR Archives, Kr 0101/159/Jacket. 12 Letter to Stanislav Balik from Prague, Oct. 25, 1993, in the Archives of the Common History of the State and Law Department. 13 Kazimierz Baran, Wspomnienie o profesor dr hab. Irenie Malinowskiej Kwiatkowskiej (1925–1994), in Szkice z dziejów ustroju i prawa pos´wie˛ cone pamie˛ci Ireny Malinowskiej-Kwiatkowskiej (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 1997), 12.

270 A. Dziadzio pressure, which significantly limited the research independence of the academic staff. Undoubtedly, the subject of her doctoral dissertation, titled “Prawa wol­ nos´ciowe w statutach komun włoskich” (Freedom rights in the statutes of the Italian communes), corresponded to the scholarly research interests of her super­ visor, Professor Patkaniowski. At the same time, this research issue formulated in this way at the end of the 1940s could have been regarded as a certain intellectual “provocation,” in view of the fact that the communist authorities did not respect individual rights at all. The conclusions of the supervisor-approved doctoral dissertation were not politically tolerated. Summarizing the results of his doctoral student’s research, Patkaniowski stated that already in the statutes of medieval Italian communes there were individual rights, which in the eighteenth century were emphasized by the school of natural law: the ban on arrest before being sentenced by a court, the freedom of movement and the right to leave a municipal commune, the freedom to buy and sell real property, the freedom to leave a will, and, above all, the free­ dom to trade.14 Poland’s political reality in 1950 contravened all these rights: arrests of opponents of the regime were commonplace, prisoners were tortured, citizens were deprived of their property rights, the authorities’ consent was needed to leave the country, and private trade was completely nationalized. The author of the dissertation could by no means count on its publication in print. She had to hide it deep in a drawer and deal only with issues that did not have political connotations. The publication of the results of Irena Malinowska’s first research into Italian law did not become possible until thirty years later, when Polish society, represented by the Solidarity trade union, demanded in 1980 that the communist authorities democratize and liberalize the country. As a result, the government’s ideological pressure weakened for some time (1980–81). In 1980 Irena Malinowska-Kwiatkowska’s book Gwarancje wolnos´ci w ustawodawstwie s´redniowiecznych miast włoskich (Guarantees of freedom in the legislation of med­ ieval Italian cities) appeared in print. It was a corrected and extended version of her doctoral dissertation. She could then, without fear of censorship, write the significant words: The creators of the French Declaration of Rights of 1789 tried to prove the existence of these rights by the principles of the law of nature. Concrete proof of their existence a few centuries earlier is provided by the sources of medieval Italian law. Every right of freedom is an exponent of the current needs of society. Society feels certain grievances, and strives, if possible, to remove them. This is how demands are made on the legislator, and their imple­ mentation is the creation of freedom rights.15 14 AJU, WP III 201, Malinowska Irena, Referat o pracy doktorskiej mgr Ireny Malinowskiej pt. Prawa wolnos´ciowe w statutach komun włoskich. prof. dr Michała Patkaniowskiego z dnia 17 maja 1950 r. The dissertation supervisor’s opinion was shared by Adam Vetulani. 15 Irena Malinowska-Kwiatkowska, Gwarancje wolnos´ci w ustawodawstwie ´srednio­ wiecznych miast włoskich (Wrocław: Zakład Narodowy im. Ossolin´skich, 1980), 87.

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In the conclusion of her monograph, she emphasized that in antiquity individuals generally did not have subjective rights but accepted without reservation the unlimited rights of the state. A change in the legal position of the individual in relation to the authorities only occurred as late as the Middle Ages, under the influence of the Catholic Church and canon law. From 1947 to 1956, Poland was cut off from the West by the Iron Curtain, which made any contact with Western European scholarship impossible, whether through trips on scholarships or exchange of publications. This isolation made it necessary to modify plans and academic interests, and even to adapt research to the conditions imposed by the authorities. Scientific trips to Western Europe became possible only at the turn of the 1960s. Irena Malinowska-Kwiatkowska could not therefore continue her research into Italian law, which she had begun with such good results. She had to direct her research to a field that would not arouse reservations on the part of the guardians of Marxist academic orthodoxy.16 She therefore chose as the subject of her subsequent studies the criminal law of the Prussian Landrecht of 1794, the so-called General State Laws for the Prussian States. The problem, however, was that the issues in the history of criminal law had to be integrated with the concept of the class struggle as a central tenet of historical materialism. Malinowska-Kwiatkowska thus faced a very difficult challenge, because, in order to continue her university career, she had to adopt a different way of performing scholarly work, by treating legal-historical knowledge exclusively from the point of view of the economic conditions for creating and applying the law. She made an attempt to work on a fragmentary issue from the provi­ sions of the Prussian code of 1794, which would allow combining the content of the source of law with a class (socioeconomic) analysis of feudal relations between peasants and landowners.17 The article that Malinowska-Kwiatkowska published in 1953 in Czasopismo Prawno-Historyczne, titled “Tak zwane prawo karcenia chłopów poddanych i czeladzi według kodyfikacji pruskiej z 1794 r” (The so-called right of punishing serfs and servants according to the Prussian Code of 1794), was admitted to print because it met new methodological assumptions, yet it met with severe criticism in the same issue of the journal. The author of the article was stigmatized for not being thorough enough in her assessment of economic relations, which, as an extensive review noted, 16 At the beginning of the 1950s, the political authorities demanded that representatives of the social sciences and humanities use Marxist methodology and historical materi­ alism as the only correct research and scientific basis. Therefore, the editors of Czaso­ pismo Prawno-Historyczne, inspired by Juliusz Bardach, a professor at the University of Warsaw, the main guardian of methodological correctness in historico-legal works at that time, submitted a “self-criticism” in 1953, declaring, “Czasopismo Prawno-His­ toryczne stood on idealistic positions, was characterized by an uncritical attitude to bourgeois Western science, and understated the achievements of Soviet science.” See Czasopismo Prawno-Historyczne, vol. 5 (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1953), 7. 17 AJU Z 90/I.

272 A. Dziadzio “blurred the class function of the institution in question and its significance for the feudal base.”18 The negative review of Irena Malinowska’s first academic publication from Marxist positions most probably made her realize that she should deal with other, more ideologically “neutral,” issues. Her academic mentors were of a similar opi­ nion, and they decided that it would be much safer for the young generation of legal historians to undertake research on the law of the old Republic of Poland. That is why, in July 1955, she began to prepare a monograph devoted to the life and work of Mikołaj Zalaszowski, the most outstanding Polish lawyer of the seventeenth century.19 She completed the work on Mikołaj Zalaszowski at the beginning of 1958 and submitted it to the Jagiellonian University Publishing House. The reviewers of the monograph, Adam Vetulani and Wacław Osuchowski (an eminent professor of Roman law at the Jagiellonian University), appreciating the great academic value of the work, suggested that the author should introduce significant changes to the text, “both in the structure of the work and in the detailed arguments.”20 Malinowska did not hesitate to recount to her father that this work was highly appreciated by the reviewers. In a letter from 1958, she informed him with great satisfaction: I have recently received a very pleasant surprise, because one of the reviewers of my dissertation—the harshest—whom I feared the most, and at the same time the most eminent expert in the country—called me to a meeting in his room and began by congratulating me on the work, which he considered very successful. As he is a very demanding person—and stingy with praise—I was downright surprised; joy only came later. I’m still waiting for the second review, but I’m already getting down to work on some additions and rewrites, as I can still see many gaps myself. It will not appear in print until next year at the earliest. In spite of the excellent assessment of her scholarly work, however, the publication of her book on Zalaszowski and the habilitation process were delayed. This out­ come depressed her deeply. She expressed her deep disappointment in correspon­ dence with her father. I am writing about this with a certain bitterness, because, although I’m extremely pleased with my work, despite my best efforts it does not give me what it should. Moreover, I am dependent on men, who are often guided by personal considerations, so that promotion depends only to a small extent on my own merits. The work is great but the people are often nasty! And the higher you look, the clearer you see it. 18 Kazimierz Orzechowski, “Na marginesie prawa karcenia poddanych i czeladzi (ius castigandi),” Czasopismo Prawno-Historyczne 7, pt. 1 (1955): 324–47. 19 See Chapter 6 in this volume. 20 Editorial opinion by Adam Vetulani, Apr. 3, 1958, in “Jes´li wspaniałomys´lnie napiszesz list … ,” 147.

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At that time, at the Jagiellonian University, people who were supported or favored by the communist authorities were quickly promoted, regardless of their academic achievements.21 It was not easy for Malinowska-Kwiatkowska to fight for her rightful place in an academic world that was then completely dominated by men! In a letter from March 1959, she again shared with her father bitter reflections on her professional situation at the Jagiellonian University. She wrote about her struggle to obtain academic promotion, which would be the culmination of the work she had put into learning about Polish, but also European, legal culture of the seventeenth century: I am hastily finishing the final typescript of my work; a few months ago I was told to expand it further. Although it cost a lot of effort I did it willingly, as the work will benefit from it.… You can’t imagine how much application and stress it all took, because, not only did I have to work hard, but I also had to wait months for an opinion, and tremble over what the verdict would be, especially since my entire professional future was at stake. In addition, the people I depend on at work are often originals, with different sensitivities and complexes. Although we like one another, it sometimes takes a lot of diplomacy to get my way. But I am very persistent and determined to achieve my goals.22 Finally, in June 1961, the council of the Faculty of Law at the Jagiellonian University decided to instigate the habilitation procedure, which took place on March 13, 1962. The reviewers of her habilitation dissertation and her academic output were professors Karol Koranyi from the University of Warsaw, Kazimierz Kolan´czyk from the Adam Mickiewicz University in Poznan´, and Michał Patkaniowski. After the Faculty Council had heard the opinions and conclusions of the reviewers, a colloquium took place, followed by a habilitation lecture on “Ius Commune in Contemporary Italian Scholarship.” At the end of the proceedings, by a unanimous resolution, the Faculty Council awarded Irena Malinowska-Kwiatkowska the degree of docent (senior assistant professor) in the world history of the state and 21 In 1961, the Council of the Faculty of Law and Administration of the Jagiellonian University habilitated Julian Polan-Haraschin, who served as deputy head of the Mili­ tary District Court in Kraków from 1946 to 1951. He was the judge who was the most servile toward the communist regime. He conducted the most important poli­ tical cases against members of the independence underground, passing sixty death sentences. In 1950, he defended his doctorate at the Jagiellonian University. From 1952, he was a full-time employee of the Chair of Criminal Procedure at the Jagiel­ lonian University. He was a paid agent of the Security Service. See Filip Musiał, “Julian Polan-Haraschin (1912–1984),” in Aparat Represji w Polsce Ludowej 1944– 1989, no. 1 (Rzeszów: Instytut Pamie˛ ci Narodowej, 2004), 411ff. It was an open secret that at the Faculty of Law, Haraschin corrupted employees and sold exams and diplomas. Vetulani and Patkaniowski openly opposed his habilitation by the Faculty Council. 22 Letter from Irena Malinowska to her father, Mar. 23, 1959, in “Jes´li wspaniałomys´lnie napiszesz list … ,” 166.

274 A. Dziadzio the law. This resolution was approved by the Minister of Higher Education in June 1962.23 After her habilitation, Malinowska-Kwiatkowska was able to devote herself wholeheartedly to her favorite field, namely, the history of Italian law. Italian works were therefore the most important element in her activities in the 1960s and 1970s. By the end of the 1970s, however, Byzantine and Russian law attrac­ ted her attention, especially the codification of 1649, the Sobornoe Ulozhenie. Thus, after a period of intensive research on the medieval institutions of private law, she returned to her earlier interest in criminal law. Her publications in this field consisted of treatises on the influence of the German penal codification of 1532, the Constitutio Criminalis Carolina on the law in Poland (the Crown of the Kingdom of Poland), Lithuania, and Russia. In a monograph on Russian criminal law in the seventeenth century, published in 1984, she summarized the results of her research in this field. When Malinowska-Kwiatkowska became head of the Department of the World History of the State and Law at the Jagiellonian University in 1986, after the death of Lesław Pauli, another change in her research took place, although Italian issues remained her constant field of interest. In Italy, Malinowska-Kwiatkowska was considered an academic authority in the history of institutions of medieval Italian law, as demonstrated by numerous invitations to conferences organized by Italian legal historians. In 1991, she was invited as a lecturer to Erice, Sicily, as part of the International School of Ius Commune. She turned to the history of matrimonial law in France and Germany in modern times. She presented her first research findings in this field at a conference in Vienna/Krems in 1987, with a paper titled “Die Gesetzgebung der franzözischen Könige in Ehesachen.” From then on, she maintained lively contacts with histor­ ians at the University of Vienna, including Wilhelm Brauneder and Werner Ogris, thinking above all about the young members of the department who were at that time undertaking detailed studies on the legal history of the Habsburg monarchy.24 In the early 1990s, Malinowska-Kwiatkowska carried out many months of source research on the history of matrimonial law at the Catholic University in Eichstätt (Bavaria), and at the Max-Planck Institute in Frankfurt am Main. During her scholarship stays in Germany, she collected valuable archival material, which, however, she only managed to partially use; her plans for extensive research into the history of matrimonial law in Europe were unexpectedly halted by her fatal illness. In addition to publishing several articles on matrimonial law, in 1993 she prepared a monograph on marriage licenses in prerevolutionary France. In her academic career, one can see her courage in undertaking multidirectional research topics, often far apart in terms of content and geography. Working on each of these required an enormous amount of effort, but always resulted in a work that 23 Lesław Pauli, “Habilitacja dr Ireny Malinowskiej z powszechnej historii pan´stwa i prawa,” in Czasopismo Prawno-Historyczne 15, pt. 2 (1963). 24 The Archives of Science, K III -202.

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has attracted the deserved attention of her contemporaries and constitutes an invaluable source of historical and legal knowledge for posterity.

Academic Legacy Irena Malinowska-Kwiatkowska demonstrated her excellent research skills in her first book, on Mikołaj Zalaszowski (1631–1703). Here, she applied the compara­ tive-law method, examining Polish and European legal culture following the example of her subject, the most eminent Polish lawyer of the seventeenth cen­ tury.25 Conducting comparative legal-historical studies on such a broad scale was rare in Poland. Zalaszowski’s work on Ius Regni Poloniae, a form of university treatise on Polish public and private law, contained references to various legal systems. To assess the substantive content of this work, in which Zalaszowski lib­ erally used the constructs of Roman, canon, German (mainly Saxon), French, Italian, and even Spanish, Portuguese, and English law, Malinowska had to trace many legal systems, as if following the footsteps of Zalaszowski. Therefore, it was only by confronting the arguments in Zalaszowski’s lecture with her knowledge of the legal issues he had raised that she could authoritatively assess the scholarly value of his work. In the concluding remarks of the monograph, she emphasized Zalaszowski’s erudition and reliability in describing legal institutions, which, however, were presented from the perspective of foreign law (mainly Roman and canon law) rather than Polish law. She confirmed that he had a very good knowledge of Roman law, which made it possible to regard him as the leading Romanist of prepartition Poland. Malinowska’s research findings made legal historians aware of the influence Roman legal culture had on Polish legal literature, which in turn could influence judicial practice. The results of her study on Zalaszowski’s legal output inspired Polish researchers to undertake studies on the reception of Roman law in Poland, which were later initiated at the Jagiellonian University by Janusz Sondel (1937–2017).26 Malinowska’s book and her first academic articles revealed her expertise and methodological preparation for dealing with the legal scholarship, dogmatics, and practice of the Middle Ages and the modern era. The knowledge she gained from studying and analyzing the state of jurisprudence in the seventeenth century on the example of the most important Polish jurist allowed her to focus her further research on the institutions of civil and criminal law. Undoubtedly, mastering the 25 Irena Malinowska, Mikołaj Zalaszowski: polski prawnik XVII stulecia na tle ówczesnej nauki prawa (Mikołaj Zalaszowski, seventeenth-century Polish lawyer, against the background of the science of law at that time) (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 1960). 26 Janusz Sondel, Ze studiów nad prawem rzymskim w Polsce Piastowskiej (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 1976); id., Studia nad prawem rzymskim w ‘Jus Culmense’ (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 1984). Together with Malinowska-Kwiatkowska, Sondel translated the Latin text of the Chełmno law (ius Culmense) into Polish.

276 A. Dziadzio basics of Roman private law for the monograph on Zalaszowski led her to devote herself to the study of the history of Italian civil law. But her later interest in Russian criminal law was also rooted in her first monograph. On the example of Zalaszowski’s work, she noted the impact of German criminal law on the content of codified Lithuanian law, especially the Statute of 1588. One can therefore assume that Malinowska’s first extensive academic work determined, to a certain degree, the future direction of her research. Malinowska-Kwiatkowska’s next book, Prawo prywatne w ustawodawstwie Królestwa Sycylii (1140–1231) (Private law in the legislation of the Kingdom of Sicily, 1140–1231),27 confirmed her exceptional ability to describe civil law institutions in a three-dimensional perspective: legal scholarship, legislation (norms), and judicial practice. In this monograph she presented a lucid exposition of the entire complex private law system of southern Italy at the turn of the thirteenth century. This was not an easy task. The legal fields she described brought together the most important currents of Mediterranean legal culture, which became the cradle of modern civil law. In addition to indicating the norms of customary law, Malinowska-Kwiatkowska noted the influence on the codification of Sicilian, Byzantine, Germanic (Longobardian and Frankish), Norman, canon, feudal, and Arabic law, and, above all, the reception of whole sections of Roman law. With regard to the regulation of private-law relations, she noted the predominance of property law over other branches of private law. The codification of the law of the Kingdom of Sicily (Constitutiones Regni Siciliae), the so-called Constitution of Melfi of 1231—the second great codification of the law of the Emperor Frederick II Hohenstauf after the Justinian Corpus Iuris Civilis of the sixth century—was unparalleled in Europe at that time. Thanks to Malinowska-Kwiatkowska’s monograph, knowledge of the significance of this codification of law for the development of law in Europe found its proper place in Polish historiography, as well as in university textbooks.28 The comparative legal approach, as one of the distinctive features of Irena Malinowska-Kwiatkowska’s academic work, was also clearly marked in her third monograph, Prawo karne w kodyfikacji rosyjskiej z 1649 r. (Criminal law in the Russian codification of 1649).29 Here she convincingly presented the influence of ancient Russian and Byzantine law on this codification, emphasizing at the same time the strong bond between Orthodox law and religion in Russian legal culture. A comparative analysis of the provisions of the Russian codification of the midseventeenth century, the Third Statute of Lithuania, and the German codification of 1532, finally led her to the conclusion that there were similarities between these sets of laws in terms of the general concepts of criminal law, the principles of

27 Irena Malinowska-Kwiatkowska, Prawo prywatne w ustawodawstwie Królestwa Sycylii (1140–1231) (Warsaw: Wydawnictwo Polskiej Akademii Nauk, 1973). 28 See Andrzej Dziadzio, Powszechna historia prawa (Warsaw: Wydawnictwo PWN, 2020), 396. 29 Irena Kwiatkowska, Prawo karne w kodyfikacji rosyjskiej 1649 r. (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 1984).

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punishment, and the system of penalties. This could have meant that the authors of the Russian codification drew on the achievements of Western legal culture. Irena Malinowska-Kwiatkowska developed her own style of narrating historical and legal issues, which consisted of her triad of academic analysis—legal scholar­ ship, legislation, and judicial practice. She perfected this way of presenting the fundamental issues of the history of matrimonial law in her last book, Pozwolenie . na małzen´stwo w prawie francuskim XVI–XVIII stulecia (The marriage license in French law in the 16th–18th centuries).30 She began her work with lawyers’ views on the monarch’s right to impose obstacles to marriage, then moved on to describe the royal legislation in this matter, and focused on the content of court judgments. She was very satisfied with the assessment she received of her work from Professor Juliusz Bardach, a very good researcher, who, during the Polish People’s Republic, made sure that works of legal historians corresponded to the assumptions of historical materialism. In communist-free Poland, he expressed his appreciation for the academic achievements of Malinowska-Kwiatkowska, who had remained faithful to academic integrity throughout her career at the Jagiellonian University. He addressed the following words to her: The book presents itself superbly, as usual in your case, with rich source doc­ umentation, exhaustive literature, and very interesting cases. These alone justify the choice of topic, which in the light of the secular courts’ case law of the day, turned out to be fascinating, which calls for a French edition.… Once again, congratulations on a beautiful, exemplary (let the young learn!), work on matrimonial licences in French Ancien Régime law.31 Irena Malinowska-Kwiatkowska truly set standards with regard to both the method of practicing the history of law and ethical stances.

Conclusion Due to her background, upbringing, and religious world view, Irena MalinowskaKwiatkowska could not expect an easy and straightforward academic career during the communist era. In the world of legal studies in the Polish People’s Republic, prominent positions and rapid promotions were reserved for those who supported the communist system of power. However, her intellectual potential and abilities allowed her to attain every level in her university career, which coincided with crucial periods in the history of postwar Poland. She received the degree of docent during the so-called October Thaw, initiated by the workers’ revolt in Poznan´ in . 30 Irena Malinowska-Kwiatkowska, Pozwolenie na małzen´stwo w prawie francuskim XVI– XVIII stulecia (Kraków: Wydawnictwo Uniwersytetu Jagiellon´skiego, 1993). 31 Letter from Juliusz Bardach to Irena Malinowska-Kwiatkowska, May 9, 1994, in files of the Department of the Common History of the State and Law, Jagiellonian University.

278 A. Dziadzio 1956. She received her professorship at a time when communist Poland, after the bloody suppression of workers’ strikes on the Baltic Coast in December 1970, was opening up economically to Western Europe. The crowning achievement of her academic career came at a time when the establishment of Solidarity gave rise to mass resistance against the communist rule. At the Jagiellonian University, Malinowska-Kwiatkowska’s scholarly achieve­ ments were held in high esteem by her colleagues at the department of the history of law. She was an academic and moral authority for the staff of the Faculty of Law. Through her research into medieval Italian law and Italian legal culture, she became a link between the academic Western world and Polish scholarship during the period of the so-called real socialism. Thanks to her research and international contacts, academic and cultural ties with legal studies in Western countries, parti­ cularly Italy, as the cradle of Latin civilization, were not severed. MalinowskaKwiatkowska was one of the leading legal historians who, during the communist period in Poland, maintained academic independence, despite strong political and administrative pressure. Her faithfulness to Christian values and ethics made the Kraków legal history community a rare example of intellectual opposition to the ideological expectations of the authorities regarding both the practice of scholar­ ship and the transmission of legal knowledge during the communist regime.

18 Andrzej Stelmachowski (1925–2009)

Małgorzata Korzycka and Paweł Wojciechowski

Biographical Introduction Andrzej Stanisław Ksawery Stelmachowski was born in Poznan´ on January 28, 1925, to Bronisław and Wisława (née Majewska) Stelmachowski. His parents and their strong ties to the legal and civic-forming tradition profoundly influenced the development of the future lawyer’s personality and attitude toward life. Bronisław, a professor of civil procedure at the University of Poznan´, was also president of the Court of Appeal in Poznan´. Wisława, who came from a family of pencil-factory owners in Pruszków, near Warsaw, took care of the daily responsibility of raising Andrzej and his sister, Hanna, who was two years younger.1 In the mother’s social activities, one can discern the sources of the professor’s later involvement in public affairs. Wisława devoted herself to the essential political initiatives of her time. She also expressed her patriotic commitment by participating in the plebiscite cam­ paign, which aimed to secure Poland’s borders after the partitions. Andrzej Stel­ machowski grew up in love with and had great respect for independent Poland. In the interwar period, Andrzej Stelmachowski studied at primary and second­ ary schools in Poznan´. He spent his holidays in Zofiówka, the dowry estate of his mother, about one hundred kilometers from Poznan´. His studies and happy family life were interrupted by the outbreak of World War II. In dramatic circumstances, the Stelmachowskis were forced to leave Poznan´ and were separated from their father, Bronisław Stelmachowski, who, as president of the Court of Appeal in Poznan´, evacuated in September 1939, together with a group of the court’s staff, and he was arrested by the Soviets and probably murdered in 1940. However, the father had ensured that his family got on the last train to Lithuania, where Andrzej Stelmachowski continued his studies at the Polish Gymnasium in Kaunas.2 In 1940, thanks to the help of his father’s friends, the Stelmachowski family managed to obtain the necessary documents to travel to Switzerland. Eventually, however, influenced by the news of France’s defeat, they decided to go to Prusz­ ków, where the family moved into the house of Andrzej Stelmachowski’s grand­ father. During the German occupation, Stelmachowski studied at an underground 1 See Krystyna Zienkiewicz, Andrzej Stelmachowski pragmatyczny romantyk. Szkic do biografii (Warsaw: Oficyna Wydawnicza Łos´graf, 2011), 26.

2 Ibid., 43.

DOI: 10.4324/9781003181255-19

280 M. Korzycka and P. Wojciechowski upper secondary school and obtained his upper secondary school certificate in 1943. That year, he took the oath of a soldier of the Home Army and adopted the pseudonym Jaz´wiec. He graduated from an underground officer cadet school. Although he participated in the Warsaw Uprising of 1944, he did not take part in direct combat. After the failure of the Warsaw Uprising, about fifty residents of the destroyed city were taken in at his grandfather’s small house, and Andrzej Stel­ machowski procured and brought in food for these sheltered people.3 After the war, he returned to Poznan´, where he continued his studies in law at the Faculty of Law and Economics at the University of Poznan´, graduating with the degree of master of laws in 1947. In the same year, he started his judicial training and passed the judicial examination in 1949. He served for several years as a judge in civil cases, resigning in 1951. From 1947 to 1950, he worked as an assistant at the Faculty of Law of the University of Poznan´, where, in 1950, he defended his doctoral dissertation on possession, written under the supervision of the well-known and highly respected civil law professor Alfred Ohanowicz. Stelmachowski married the physician Anna (née Mirkowska), with whom he had two sons, Stanisław and Zbigniew. He began working at the University of Warsaw, where he received the academic degree of candidate of legal sciences in 1956, and, at the beginning of 1958, the post of docent at the Faculty of Law and Administration of the University of Warsaw. At the beginning of the 1960s, the University of Warsaw applied to the State Council with the request to award a professorship to Stelmachowski. For his open participation in religious practices and a pilgrimage in 1957 to Jasna Góra, a shrine dedicated to the Virgin Mary, he was denied a professorial appointment at the University of Warsaw. The first secretary of the Polish United Workers’ Party (PZPR) at the time, Władysław Gomułka, decided that Stelmachowski, as a Catholic, could become a professor, but not in Warsaw.4 In 1962, Stelmachowski and his family moved to Wrocław, where he became a professor at the university. At the University of Wrocław, he devoted himself to highly fruitful scientific work and the education of the young staff, who were the beginnings of the Polish school of agricultural law. There he wrote his most famous work, Wste˛p do teorii prawa cywilnego (Introduction to the theory of civil law) and headed the Depart­ ment of Agricultural Law for seven years. He also initiated the first empirical research of his Wrocław team. He returned to Warsaw in 1969 at the invitation of the authorities of the Faculty of Law at the University of Warsaw, taking up the post of professor and head of the Department of Agricultural Law, and in 1973 receiving the title of full professor (professor ordinarius). He taught agricultural law as well as civil law. He was organizationally involved in the long process of estab­ lishing a branch office of the University of Warsaw in Białystok, and then the 3 Ibid., 46. 4 See Andrzej Stelmachowski, “Wysta˛ pienie prof. Andrzeja Stelmachowskiego doktora honoris causa Uniwersytetu Wrocławskiego,” Przegla˛ d Uniwersytecki. Pismo informa­ cyjne Uniwersytetu Wrocławskiego 10 (2005): 31.

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Faculty of Law and Administration of the University in that city. Beginning in 1970, he taught at the Białystok branch of the Univeristy of Warsaw, where he lectured on agricultural law, civil law, and business law and served as dean of the Faculty of Administration and Economics from 1975 to 1981. From 1970 he was also a lecturer at the Faculty of Evangelical Law of the Academy of Catholic Theology (established in 1954 by the theological faculties separated from the University of Warsaw and the Jagiellonian University). Andrzej Stelmachowski dealt with civil and agricultural law, economic law, family law, labor law, and the history of state and law. He represented the direc­ tion of functionalism in law. The breadth of his scientific output, comprising over two hundred items (published in Poland and abroad), is impressive. These include books, textbooks, commentaries, reviews, and reports on empirical research con­ ducted under his supervision by teams of his students. He is first and foremost the author of the work Wste˛ p do teorii prawa cywilnego (Introduction to the theory of civil law, 1969; second edition 1984; third edition as Zarys teorii prawa cywilnego [An outline of civil law theory], 1998), and many monographs, including: Przy­ sposobienie w polskim prawie rodzinnym (Adoption in Polish family law, 1957), Istota i funkcja posiadania (The essence and function of possession, 1958), Kon­ traktacja produktów rolnych (Contracting of agricultural products, 1960), and . Nominalizm pienie˛zny a waloryzacja (Monetary nominalism and valorization), Studia cywilistyczne (vol. 6, 1965). As a scholar, he gained broad and widespread international recognition, receiving honorary doctorates from the Sorbonne and the University of Ferrara and prestigious membership in the Academie de l’Agri­ culture de France. He was the first Polish scholar on the European Committee for Agricultural Law (CEDR); thanks to his efforts and authority, the Polish Association of Agrarian Lawyers, which he chaired, was elevated to the national section of the European Committee for Agricultural Law. Stelmachowski made important contributions to the social function of the Catholic Church, which played a peculiar role in Poland as an alternative structure to the totalitarian communist power. In 1973 he joined the Club of Catholic Intelligentsia (Klub Inteligencji Katolickiej, KIK), which repeatedly elected him as a member of the board and president. He was also involved in supporting the repressed workers who took part in the strikes of June 1976. Beginning in 1975, he participated as a member of the primate’s Council for the Construction of Churches (whose main aim was to negotiate with the authorities the right to build churches), and he was a member of the Episcopal Commission Iustitia et Pax (1984–89) and the Church Agriculture Committee. He served as an adviser to the episcopate and represented the Catholic Church in work on the act on the relationship between the state and the Catholic Church in Poland, passed in May 1989. In 1982–85, he chaired the Organi­ zational Committee of the Church Foundation for Agriculture. He was a member of the Knighthood of the Order of the Black Madonna of Cze˛ stochowa, bringing together persons of merit in various fields of public, social, scientific, economic, and cultural life.

282 M. Korzycka and P. Wojciechowski It was with great hope that he welcomed the election in 1978 of the Metro­ politan Archbishop of Kraków, Cardinal Karol Wojtyła, as pope, about whom he wrote: For the first time, hundreds of thousands of people (several million nation­ wide) took part in meetings with the pope. People realized that millions felt the same way as them for the first time. It was also the first time that words of the kind spoken by the pope in Warsaw were uttered: “May your Spirit come down and renew the face of the earth, this earth!” … In a social sense, the ground for the events that were to follow in 1980 had been prepared, although no one was fully aware of this at the time.5 During the strike at the Gdan´sk Shipyard in August 1980, Stelmachowski became an adviser to the Interfactory Strike Committee. He served as an expert for the Centre for Social and Occupational Work at the National Commission of NSZZ Solidarnos´c´ (Solidarity). In 1981, he became an adviser to the Solidarity Trade Union of Individual Farmers, and he continued to serve as an adviser to the workers after the Gdan´sk Agreement. After the imposition of martial law in December 1981, he was repeatedly interrogated. During a search of his flat, the Security Service looked for “Vatican instructions” for negotiations with the com­ munists. His son Zbigniew, active in the outlawed Independent Students’ Union, spent several months in prison. During the period of martial law (1981–83), Pro­ fessor Stelmachowski was an adviser to the underground Provisional Coordination Commission of the Solidarity Trade Union. Despite its ban, he worked on the statutes of the union. In December 1988, he became a member of the Civic Committee appointed by Lech Wałe˛ sa, the chairman of the Solidarity Trade Union. Stelmachowski was an adviser to Wałe˛ sa and the governing bodies of the Solidarity Trade Union and the Solidarity of Individual Farmers. That year he also served as an observer from the Holy See at the 63rd Conference of the International Law Association in Warsaw. He was one of the creators and participants in the 1989 round table talks, which were one of the most critical events in the modern history of Poland and marked the beginning of political changes in the People’s Republic of Poland, including the introduction of partially free elections to the Sejm. He was one of the principal negotiators for the Solidarity opposition and the Polish episcopate in talks with the communist authorities. As a representative of the opposition Soli­ darity party, he cochaired the rural affairs and agriculture team. After the political transformation in Poland, he was elected, in the first free parliamentary elections, to the Senate—the upper house of parliament restored after the communist period—where he was entrusted with the dignity of the first marshal of the Senate. His great attachment to Catholicism and Christian values is

5 Andrzej Stelmachowski, Kształtowanie sie˛ ustroju III Rzeczpospolitej (Warsaw: Oficyna wydawnicza Łos´graf, 2011), 31.

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evidenced by the words of his speech at the first inaugural session of the Senate, on July 4, 1989, when he stated: I would very much like us to be able to contribute to the building of a Poland that is fully independent and at the same time friendly to all its neighbors, that is prosperous but also pursues the principles of social justice, that is vigorously governed but also ensures civil liberties. A Poland in which a friendly smile will erase sorrow and tears. Regarding the Sunday Mass celebrated in Warsaw Cathedral by the primate for the commencement of the Sejm and Senate, may I express the wish that the Lord and Creator of all things, our father, may bless our efforts so that in building a new and better state system we may be able to combine concern for great public matters with concern for each of our fellow men and women.6 During his two-year term in the Senate, he was involved in the issues of local government reforms, changes in agriculture, reforms in the administration of jus­ tice, and settling accounts of the communist system (for example, annulment of political verdicts in the Stalinist period). He was also one of the first to initiate changes to the Stalinist law that permitted abortion.7 Stelmachowski was appointed minister of education in Jan Olszewski’s govern­ ment, the first government formed as a result of free elections after 1989. During his eight months in the post, Stelmachowski proposed the first post-1989 reform of the education system. His tenure at the Ministry of Education saw the intro­ duction of religious instruction in public schools. He also began the process of supporting Polish schools in Lithuania. In 1990 he initiated, and for eighteen years chaired, the Polish Community Association, which unites and supports Poles abroad. He was an advocate of state aid for the repatriation of Poles from the former Soviet Union. During his time in office, he visited the largest concentrations of Poles scattered across several con­ tinents. He supported the passing of the Act on the Card of the Pole, which came into force in 2008 and, under certain conditions, grants membership in the Polish nation to noncitizens of Polish descent. In 2005, he was appointed adviser to the president of the Republic of Poland, Lech Kaczyn´ski, for Polonia and Poles abroad. As his students emphasize, in addition to Stelmachowski’s creative scientific and teaching achievements and public activities, he was committed to helping ordinary people. He was active in the Society of Children’s Friends, where he helped in adoption cases without publicity. He helped the highlanders of the Podhale region to regain their rights to forests within the Tatra National Park. His students also 6 See “Stenographic Report from the 1st Sitting of the Senate of the Polish People’s Republic on July 4, 1989 (Senate of the 1st term),” 14. . 7 See “10. Rocznica s´mierci profesora Andrzeja Stelmachowskiego, załozyciela stow­ arzyszenia ‘Wspólnota Polska,’” http://wspolnotapolska.org.pl/wiadomosci.php?id= 6775/

284 M. Korzycka and P. Wojciechowski emphasize that he built agreements between opposing sides and tried to bring together those in conflict. His ability to forgive, along with his capacity to distance himself from matters unrelated to his convictions and, above all, his amicable and optimistic attitude toward people bore exceptional fruit: he fostered trust and understanding. At the same time, he was characterized by a firm moral stance. As his students point out, the moral foundations of Catholic social teaching were always evident in his responsible attitude in various situations, and he was always faithful to the truth.8 Professor Stelmachowski was a noble, righteous man with a fascinating person­ ality, a model of an academic master. He carried out his teaching activities with great passion and expertise, combined with a practical illustration of the matter at hand. In his teaching, he strove for clear, accessible lectures, which were indeed a feast for his listeners thanks to his wealth of knowledge, excellent intellect, and masterful use of language. In the didactics of agricultural law, he introduced stu­ dents to field exercises for aiding their practical recognition of farm ownership structure and functioning. Andrzej Stelmachowski received numerous honors, memberships in orders, and national decorations. During his lifetime, the highest honor bestowed upon him was the Grand Cross of the Order of Polonia Restituta, and he was posthumously awarded the Order of the White Eagle. He received the papal decoration of Knight of the Order of St. Gregory for special services to the Catholic Church and was awarded honorary doctorates by the Universities of Ferrara, Sorbonne, and Wrocław as well as the Cardinal Stefan Wyszyn´ski University, among others. He died on April 6, 2009—Easter Monday— and the solemn funeral Mass took place at St. John’s Cathedral in Warsaw’s Old Town. Professor Stelmachowski’s piety was described by Cardinal Józef Glemp, Primate of Poland, in his homily at the funeral mass: He had the piety of a secular man without exaltation, without ostentatious devotion, but he dared to trust in God. This evangelical man is a diligent, vigilant, responsible worker. He keeps his eyes and ears open for every flash, every rustle. Such was professor Andrzej.9 He was laid to rest at the Powa˛ zki Cemetery in Warsaw.

Foundations of Legal Thought Stelmachowski was one of the few in the communist period in Poland who will­ ingly referred in his scientific works to morality as a category in law, not hiding his attachment to Christian values—for example, in the chapter “Pierwiastek moralny 8 See Paweł Czechowski, Małgorzata Korzycka-Iwanow, and Stanisław Prutis, “Wspomnienie o naszym Mistrzu—Profesorze Andrzeju Stelmachowskim,” Przegla˛ d Prawa Rolnego 1 (2019): 250. 9 Homily of Cardinal Józef Glemp quoted in Zienkiewicz, Andrzej Stelmachowski, 284.

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w prawie cywilnym” (Moral element in civil law) of his most important work, Wste˛p do teorii prawa cywilnego. In this chapter, he defined moral norms as those rules of conduct “which are based on the criterion of right and wrong.”10 He considered the detachment of legal norms from the system of values constituting the intrinsic content of law to be a serious danger. He opposed the idea of an “immaterial legal value of legalism,” since this could lead to submission to any system of power, even the most tyrannical. He believed that “the power of the law lies not in its formal elements, but precisely in the intrinsic values it carries with it. An old Roman legal maxim—ius est ars boni et aequi [the law is the art of what is good and just]—is more than a beautiful ornament; it is an expression of the conviction that there are certain limits beyond which the legislator should not go, that the moment the law misappropriates its function as the bearer of certain values, it will transform itself into its opposite and become lawlessness, a form which will constitute a semblance of law.” As he pointed out, “already Saint Thomas Aquinas recognized this issue when he wrote that ‘secular rulers are to be obeyed only insofar as the order based on justice demands.’”11 As Stelmachowski noted, after the Second World War the crime of genocide was clarified, and the Nuremberg Tribunal delivered its famous verdict on war criminals, recognizing, among other things, that some laws and orders have no binding force precisely because of their genocidal nature.12 Stelmachowski also referred to the philosophy of Aquinas when discussing the issue of equity in civil law.13 He identified three interfaces between legal norms and moral norms: (1) the influence of moral norms on lawmaking (though there may also be a feedback effect of lawmaking on moral norms); (2) the influence of moral norms exerted by the legislator on the extent to which legislator refers to moral norms; and (3) the degree to which law incorporates certain moral principles. At the same time, he drew attention to the need to preserve the proper character of moral norms and their place in the legal system, as he stressed that not every moral norm lends itself to consideration on either of these above three levels. He pointed to an example of such a moral norm: Thus, those norms which refer to the relation to suprahuman beings—for example, God—which must be applied to oneself, etc., do not come into play. Moreover, they must be applicable norms, since this is the tacit assumption of all legal norms. However, moral standards can sometimes give very extreme indications.14 With this proviso, he was unequivocally in favor of the view that if the law is not to misappropriate its essence, it must not blatantly contradict moral norms, 10 Andrzej Stelmachowski, Wste˛p do teorii prawa cywilnego, 2nd ed. (Warsaw: Pan´stwowe Wydawnictwo Naukowe, 1984), 79. 11 Ibid., 14. 12 Ibid., 81. 13 Ibid., 140. 14 Ibid., 80, 81.

286 M. Korzycka and P. Wojciechowski especially the universally recognized elementary ones. He drew attention to the important directive never to go beyond the necessity of fighting evil when using the means of legal coercion.15 He stressed that the moral element played a very important role in civil law, and that the idea that civil law was merely a game of competing interests had turned out to be extremely one-sided.16 He also expres­ sed his Christian approach to the study of law when he stated in this work that the opportunity and goal of civil law should be to bring people together, especially those who are not indifferent to the cause of the other. Stelmachowski additionally developed the topic of dilemmas at the junction of law and morality in Chapter 4 of Zarys teorii prawa cywilnego titled “Pierwiastek moralny w prawie cywilnym” (The moral element in civil law), referring to the view of Aquinas on the close relationship that should exist between moral norms and legislation.17

Selected Trends in Scientific Creativity The scope of Stelmachowski’s research interests was very broad and comprehen­ sive. He was well known for his parallel research and publications on agricultural law and civil law in all its areas—including business law. He also did not shy away from scientific inquiries into the “interface” between private law and public law. In all areas he achieved excellent, acclaimed research results.18 Importance of Civil Law Stelmachowski’s academic output in the field of civil law is fundamental. He always dealt with the most sensitive (and thorny) problems in Polish civil studies. His views have sometimes aroused opposition but have always inspired interesting and important debates in the wider legal community, bringing a clear breath of fresh air. A significant event in the development of Polish civil studies was the first (1969) edition of Wste˛p do teorii prawa cywilnego, in which Stelmachowski included reflections on such important issues as the principles of civil law, general clauses in the Civil Code, sources of civil law, and the issue of legal persons. The second edition of Wste˛ p do teorii prawa cywilnego (1984) brought about a reevaluation of certain notions and legal constructions under the influence of the then fresh experience of the Solidarity movement and martial law. The cycle culminated in Zarys teorii prawa cywilnego (1998), which richly took into account the experience and achievements of the Third Republic of Poland in building a democratic legal state and market economy. Tomasz Kozłowski remarked that in this work, 15 Ibid., 84. 16 Ibid., 92. 17 Andrzej Stelmachowski, Zarys teorii prawa cywilnego (Warsaw: Wydawnictwo Praw­ nicze PWN, 1998), 65. 18 See Stanisław Prutis, “Wspomnienie o Profesorze Andrzeju Stelmachowskim,” Przegla˛d Sa˛ dowy 7–8 (2009): 7.

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it has been possible, in the sphere of civil law, to show in its reflection on the general regularities of civil law—unprecedented in the communist camp— such a strength of the independent existence of civil law in the face of even such an extensive apparatus of coercion and appropriation of human creativity as had been built in the states dependent on the Soviet Union. Since civil law has maintained its independence even under totalitarianism, this means that there is de facto a ius from which the lex is to be derived.19 Notably, Stelmachowski derives the autonomy of subjects from two fundamental values: (1) the dignity of each human being as unique and unrepeatable, and (2) the equality of all people regardless of their nationality, religion, race, sex, age, or social position, and thus an implied equality in mutual relations.20 This modern framing of the issue of the autonomy of parties in terms of human dignity was several decades ahead of the rhetoric of its era. Stelmachowski noted that the contract, the basis of trade and market relations, also becomes the basis of the so-called social contract. He stressed the need to complement the autonomy of subjects with the absence of direct coercion by state organs, a feature he considered wrongly overlooked in many works of civil law. Observing the authoritarian legal reality of the socialist system, he creatively used the theme of synallagma—that is, a form of mutual agreement originating from antiquity—which entailed the necessity of dialogue and reconciliation of various interests by way of compromise, and which he presented in contrast to the legal doctrine in force. At the same time, in this context, he referred to the agreements concluded in 1980 in Poland, between striking workers and the communist authorities, which regulated economic and political issues.21 Until the end of his life, Stelmachowski participated in developing fundamental synthesis of civil law: System Prawa Prywatnego (System of private law). He elabo­ rated, in the third volume (Warsaw, 2003), the problems of models of ownership and their social and political conditions, the content and exercise of ownership and the acquisition and loss of ownership. The guiding theme of his work in civil law was— while emphasizing that civil law is the law of everyday life—the perception of law as an instrument for realizing social aims and protecting socially essential values. In his view, civil law should respond flexibly to changes in social reality; he did not shy away from approving the lawmaking role of the courts.22 Ownership and Possession Stelmachowski made original statements on the fundamental concepts of law, namely ownership and possession. He actively participated in creating syntheses of 19 See Tomasz Kozłowski, “Globalne prawo a partykularne pan´stwo według Andrzeja Stelmachowskiego,” in Prawo w dobie globalizacji, ed. Tomasz Giaro (Warsaw: Liber, 2011), 22. 20 Stelmachowski, Wste˛p do teorii, 39.

21 Ibid., 107.

22 See Stelmachowski, Zarys teorii, 295–308.

288 M. Korzycka and P. Wojciechowski civil law in which he presented a model of the property right in its social and political conditions.23 Faced with the interpretation and largely deformation of these concepts by the communist authorities, he grounded his understanding of these fundamental human rights in Christian social teaching. Citing the encyclical Rerum Novarum (1891) in his introduction to the theory of civil law, he followed Leo XIII in emphasizing that “The protection of private property was mentioned [there] as the first task of the state.” In turn, referring to the text of Pius XI’s Quadragesimo anno (1931), he pointed out that, with the need to maintain a balance between the social and individual functions of property, its character as an “inviolable and natural right” was inalienable. The following section of the work offers an overview of the Catholic Church’s teaching in this sphere over the dec­ ades since 1931. His choice of quotations is not accidental. One is the words of Pope John XXIII in his encyclical Mater et Magistra (1961): “Where a political system does not recognize the right of individual human beings to own productive goods as well, there the exercise of human freedom in essential matters is either impeded or even completely prevented.” In John Paul II’s encyclical Laborem exercens, Stelmachowski’s attention is drawn to the close relationship between property and labor in relation to the concept of capital and an interpretation of their role in the historical experience of humanity that opposes the Marxist interpretation. Referring to ownership as the broadest right to things, Stelmachowski expressed the critical thought that the constitutional legislator (the Constitution of the Republic of Poland of 1997) must take account of the danger of limitations that could distort the content of the property right. Such limitations must not lead to a situation in which the rights of the owner can be reduced to nudum ius (naked law), and in this connection he argued that the most difficult problem is that of protecting agricultural property in respect of that attribute of it which we traditionally refer to as the use of the thing (Article 140 of the Civil Code). This is because it is a conglomerate of legal rules that regulate other matters, but that sometimes indirectly affect the right to use the property.24 He also stated that it would be a mistake today to regard property solely as a subjective right. Property is rather a complex of rights and obligations.… Who knows whether the correlation of rights and obligations, so typical of bond rights, should not also be treated accordingly in the field of absolute rights. Property is thus a right effective against the public, but also limited by the needs of the public.25 23 Andrzej Stelmachowski, “Modele własnos´ci i ich uwarunkowania społeczno-ustro­ jowe,” in System prawa prywatnego, tom 3, Prawo rzeczowe, ed. Tomasz Dybowski (Warsaw: C. H. Beck, 2007), 71–423. 24 Ibid., 192.

25 Stelmachowski, Wste˛p do teorii, 1st ed., 227, 228

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Thus, he emphasized the importance of a harmonious balance of rights and duties—that is, the owner’s responsibility before the community for use of the property and conscientious performance of work that will bring socioeconomic good to the local community, and to a broader extent to the national community, while at the same time the duties of the state authorities to protect individual property as a natural right.26 On the other hand, Stelmachowski’s conception of agricultural property gives a specific character to an agricultural holding as an active, organized aggregation of property. Civil law solutions relating to things do not sufficiently determine the legal situation as a whole. The object of agricultural property is agricultural holding. Therefore, in addition to civil law, the legal situation of the farmer is determined by public law provisions that affect the ability to exercise ownership rights.27 In the sphere of research into the concept of possession, Stelmachowski is the creator of a pioneering approach that presents possession as a subjective right or an expective right. He fully developed and justified this thesis in his doctoral thesis.28 In the study of civil law, the prevailing view is that possession is merely a de facto state of affairs, although nowadays, more and more voices favor treating possession as a specific right. The view of Stelmachowski is significant, as he equates possession and property in terms of compensation protection. He expres­ ses his thought as follows: “For since possession carries with it the presumption that the possessor is entitled to the right which he possesses, the possessor should then, as a rule, be treated as the owner.”29 Founder of the Polish School of Agricultural Law Andrzej Stelmachowski played a unique role in the field of agricultural law. He was the founder of the Polish school of agricultural law. He is credited with defining the subject matter and scope of agricultural law and developing basic agricultural law constructs, such as the principles of agricultural law and the con­ cept of agricultural property. He formulated a definition of agricultural law that departed from the collectivization objectives30 then prevalent in the rest of the agricultural law literature in the Polish People’s Republic,31 and he instead 26 Stelmachowski, Wste˛p do teorii, 2nd ed., 290. 27 See more on property rights in the work of the professor’s student, Stanisław Prutis, Instytucje podstawowe prawa cywilnego (Białystok: Temida2, 2018), 319. 28 Andrzej Stelmachowski, Istota i funkcje posiadania (Warsaw: Wydawnictwo Praw­ nicze, 1958), 41. 29 Ibid., 289. 30 Andrzej Stelmachowski and Bohdan Zdziennicki, Prawo rolne (Warsaw: Pan´stwowe Wydwnictwo Naukowe, 1980), 11; and Andrzej Stelmachowski, Polskie prawo rolne na tle ustawodawstwa Unii Europejskiej (Warsaw: Wydawnictwa Prawnicze PWN, 1999), 19. 31 Józef Paliwoda, Przebudowa ustroju rolnego (Warsaw: Wydawnictwa Prawnicze, 1964), 7; Henryk S´wia˛ tkowski, Prawo rolne (Łódz´: Pan´stwowe Wydawnictwo Naukowe, 1962), 31.

290 M. Korzycka and P. Wojciechowski introduced the satisfaction of the economic and social needs of the population as the overriding point of reference. His achievement was concrete legal solutions to protect individual agriculture. He introduced the inclusion of research, including empirical studies, into the sci­ entific practice of individual farms, which the communist system perceived as a transitional form of farming in the countryside, inferior to collectivized forms. His scientific activity in agricultural law was characterized by a specific integrated workshop and methodological approach. Theoretical hypotheses were subject to verification in the course of empirical research, and their results formed the basis for legislative postulates; they were also used in the current teaching of agricultural law. The research method that he applied resulted in collaborative works devel­ oped under his supervision: Przemiany własnos´ci ziemi w rolnictwie polskim (Changes in land ownership in Polish agriculture; Wrocław, 1974); Wpływ instru­ mentów prawnych na przestrzenna˛ strukture˛ rolnictwa (Impact of legal instruments on the spatial structure of agriculture; Warsaw, 1977); Problemy zarza˛ dzania rejonami uprzemysłowionymi (Management problems in industrialised areas; Warsaw, 1986); and Ewolucja pozycji włas´ciciela indywidualnego gospodarstwa rol­ nego w Polsce (Evolution of the position of an individual farm owner in Poland; Warsaw, 1989). The professor gathered a group of students around him, creating a thriving Polish school of agricultural law that continues to function to this day, developing in various research centers—initially in Wrocław (between 1962 and 1969) and later in Warsaw, Białystok, and elsewhere. The lasting fruit of the school’s activities is the conduct of diversified research in the field of agricultural law in various regions of Poland. Stelmachowski’s merits in the area of textbook preparation for teaching agri­ cultural law merit separate emphasis. He was the creator of the concept, and at the same time the main coauthor of the academic textbook Prawo rolne (Agricultural law; Warsaw, 1966, 1970, 1980), and later of the textbook Polskie prawo rolne na tle ustawodawstwa Unii Europejskiej (Polish agricultural law against the back­ ground of European Union legislation; Warsaw, 1994, 1997, 1999). He also coedited the most comprehensive textbook on agricultural law, Prawo rolne (Warsaw, 2003, 2005, 2008, 2009), integrating the work of twenty authors from nine Polish universities in this study. In the legislative process for improving agri­ cultural law, Stelmachowski had a permanent function as an expert whose opinion counted when many fundamental agricultural laws were passed. During the period of harmonization of Polish agricultural legislation with that of the European Union, he was also involved in preparing new Polish agricultural laws. Constitutional Law As noted, Stelmachowski’s systematic approach in his work was to view the law as an instrument for achieving social goals and protecting socially essential values. The political transformation in Poland at the end of the 1980s and the beginning of the 1990s brought about many epoch-making changes, but it was not without its difficulties, including the need to rebuild the legal order. One of the challenges

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was to draw up a new constitution, moving away from socialist political concepts and setting the course for building the state on new foundations. It seems that despite the professor’s support for the newly forming state, the direction set by the postcommunist groups ruling Poland in the 1990s was not particularly close to his heart. Referring to the political transformations in the monograph Kształtowanie sie˛ ustroju III Rzeczypospolitej (Formation of the system of the Third Republic of Poland),32 he summarized the wording of the preamble and selected provisions of the Constitution of the Republic of Poland of 1997 in the following way: “It is essentially born of the spirit of secular legal positivism. This is evident in the text of Chapter 3, titled ‘Sources of law.’ There is no reference to any system of moral norms, customs, etc.” He also wrote that “the Polish Nation”33 cannot be iden­ tified with “the citizens of the Republic of Poland,” among whom there are, after all, representatives of national minorities; they are different categories. He also drew attention to the words of the preamble, referring to God, and expressed the assessment that the essence of God is not reduced to the attributes listed in the Constitution, and that the “other sources” from which the beliefs of nonbelievers would be derived “appear very vague.”34 Family Law Clearly, Stelmachowski’s research interests were not limited to specialization in one field. It is not difficult to see that his activity in the field of family law and children’s rights was inspired by the Christian view of humanity and the role of the family in society. He was, among others, the author of the monograph Przysposo­ bienie w polskim prawie rodzinnym (Adoption in Polish family law; 1957) and an article titled “O włas´ciwe s´rodki prawne w zakresie realizacji polityki rodzinnej” (On appropriate legal measures for the implementation of family policy), in the journal Pan´stwo i Prawo (1976). For ideological reasons, the editorial committee hesitated to publish the article because of its critical theses toward the applied family policy in the socialist system of Poland. As a compromise, the committee proposed that the article be published alongside a polemic by members of the editorial committee and other lawyers invited to the discussion. Such a formula was unprecedented and proved the controversial nature of the author’s theses. Stelmachowski was also invited to this discussion. In his concluding statement, he agreed to modify some of the theses of the article. However, he did not see the possibility of abandoning his position on the issue of abortion: “The freedom of the individual [and] issues of individual convenience cannot justify either the kill­ ing of nascent life or, on a social scale, the undercutting of the biological basis of 32 Stelmachowski, Kształtowanie sie˛ ustroju. 33 A fragment of the preamble to the Constitution of the Republic of Poland reads: “We, the Polish Nation—all citizens of the Republic of Poland, both those who believe in God as the source of truth, justice, good, and beauty, as well as those not sharing such faith but respecting those universal values as arising from other sources.” 34 Stelmachowski, Kształtowanie sie˛ ustroju, 155.

292 M. Korzycka and P. Wojciechowski society.” There is a clash here between the Christian values represented by the professor for the protection of life from conception to natural death and the leg­ islation of the atheistic state, which allows abortions for economic as well as medical reasons. As part of that polemic, he wrote: I strongly believe, however, that the social consequences of officially accepted abortion can lead to an unintended upset of the hierarchy of values. Contrary to the assumption of socialism that the greatest value is the human being, it is all too easy to infiltrate petit bourgeois ideals, in the worst sense of the word, to remove the child out of the family for purely consumerist purposes.35 He also unequivocally outlined his position on the family’s status, pointing to the “principle of the family’s autonomy.” As he stressed, state interference in family relations should be an exception limited to particular situations, most often pathological.36 He pointed out that the sphere of family relations is where legal norms come remarkably close to the arrangement of moral norms.37

Conclusions Andrzej Stelmachowski was without doubt an outstanding figure, perfectly com­ bining his rich scientific activity with extensive involvement in public affairs. He was an active participant and cocreator of the political transformation of the state and the legal system in Poland after 1989. As the first marshal of the Senate of the reborn Republic of Poland, he played a very significant role in the fight for democracy, laying the foundations of the rule of law. As the Polish Senate emphasized in its resolution commemorating Professor Stelmachowski: Throughout his life, Andrzej Stelmachowski remained faithful to the motto “God, Honor, Homeland.” As a man of great courage and prudence, he per­ fectly understood the Polish national interest. He always made difficult political choices out of a sense of responsibility for the fate of the nation and the state. His life view was characterized by a profoundly Christian attitude to others, respect for human dignity, reliability, eloquence, modesty, and honesty.38 The resolution also noted that Professor Stelmachowski had exerted a significant and positive influence on the course of the history of the Polish nation as an out­ standing statesman of great merit for his homeland and its public affairs. 35 Andrzej Stelmachowski, O włas´ciwe ´srodki prawne w zakresie realizacji polityki rodzinnej, Pan´stwo i Prawo 8–9 (1976): 60. 36 Stelmachowski, Wste˛p do teorii, 2nd ed., 43. 37 Stelmachowski, Wste˛p do teorii, 2nd ed., 89. 38 Resolution of the Senate of the Republic of Poland of April 11, 2019, commemorat­ ing Professor Andrzej Stelmachowski, Speaker of the Senate of the first term in con­ nection with the tenth anniversary of his death and the thirtieth anniversary of the rebirth of the Senate of the Republic of Poland (M.P.2019.385).

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In a short chapter it is impossible to exhaust the legacy that Andrzej Stelma­ chowski left behind. Each of the three editions of his most important work, Wste˛p do teorii prawa cywilnego (Introduction to the theory of civil law), ends with a quotation from Teilhard de Chardin, SJ: “We have every right to claim that the universal instinctive human faith in humanity is in a sense more ancient than any civilization, and that this very faith is the engine of history which shapes our exis­ tence.”39 Such a conviction permeates the whole of Stelmachowski’s legal thought. The primacy of service to humanity emerges as the principle that guided him, whatever the circumstances, in all his impressively varied activities.

39 Pierre Teilhard de Chardin, Mój wszechs´wiat, wybór pism (Warsaw: Instytut Wydaw­ niczy Pax, 1966), 303.

19 Henryk Kupiszewski (1927–1994) Grzegorz J. Blicharz

Biographical Introduction Nearly eight hundred years separate Wincenty Kadłubek,1 the father of Polish culture, whose profile is presented at the beginning of this volume, and Henryk Kupiszewski, one of the most famous Polish Roman law scholars and one of the fathers and guardians of the study and teaching of Roman law in the second half of the twentieth century. He personally became known as the “Institution of Polish Roman Legal Scholarship.”2 Kupiszewski’s fascination with Roman law and his extraordinary ability to inspire younger people to take an interest in this demanding subject and undertake academic research in this area allow us to see in him a continuation of Wincenty’s method: using Roman law to shape social con­ sciousness. Kupiszewski, like Wincenty, studied Roman law in order to bring out the values needed for developing future generations of his people. Living in com­ munist Poland, he brought the world of the West closer to the Polish people once again, as Wincenty had done in the twelfth and thirteenth centuries. Kupiszewski explained anew European culture and its roots, patiently and persistently show­ ing—as in a prophetic parable but tailored for his contemporaries—the develop­ ment of Roman law as “the way to base human relations on equity, justice, good faith, benignitas (benevolence), misericordia (mercy), and caritas (charity).”3 In addition to being a lawyer, Kupiszewski was a moralist. In the first part of his academic life, he shunned meaningful political activity. In 1980, however, he became openly involved in opposition activities as a member of the Solidarity movement.4 Then, when the Iron Curtain fell (at the crucial moment of recent Polish history, the transformation from a totalitarian state to a democratic one), he appealed for society to be educated with regard to law. As in the Roman method, 1 See Chapter 1 in this volume. 2 Tomasz Giaro, “Henryk Kupiszewski (13.1.1927–3.4.1994),” Zeitschrift der SavignyStiftung für Rechtsgeschichte: Romanistische Abteilung 112 (1995): 739. English translations from non-English citations are by the author, unless otherwise indicated. 3 Henryk Kupiszewski, “Wacław Osuchowski (1906–1988),” Prawo Kanoniczne 33 (1990): 204. 4 Institute of National Remembrance in Warsaw, Kartoteka opiniodawcza Departa­ mentu I tzw. OCK, IPN BU 01918/2079/Jacket.

DOI: 10.4324/9781003181255-20

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law should be included at the very initial stages of education as a precondition for the success of the new state, which, he advocated, should be based on the rule of law and should positively promote the education of the young.6 At a time when the country was being politically transformed, he was not only a careful observer of and commentator on the process but also an active participant, being called to take a role in serving the new Polish state. Like Wincenty, who was bishop of Kraków and a member of the first Polish delegation to the Fourth Lateran Council (1215), Henryk Kupiszewski not only had great concern with Roman law but also acted as envoy to the home of the Catholic Church in Rome. On June 16, 1990, Kupiszewski began his service as the first ambassador from the newly established Third Polish Republic to the Holy See, the seat of John Paul II, who, while still Cardinal Karol Wojtyła, had been Wincenty’s successor in the episcopal see of Kraków. The complete reunification of Poland with Latinitas became a fact. This was possible, just as it had been at the beginning of the Polish state, thanks to the strong relationship between Poland and the pope. This rela­ tionship had not only religious but, above all, geopolitical significance, confirming Poland’s independence among the countries of Europe and, as Kupiszewski stres­ sed, allowing it to enter global politics. Kupiszewski’s diplomatic service was ended prematurely by a painful and pro­ longed illness. He “went to glory”7 without additional suffering—by the grace of God through the intercession of Padre Pio8—and fell asleep on Resurrection Sunday. His diplomatic achievements were recognized by Pope John Paul II, who said that Kupiszewski “was a worthy representative of his country and Polish cul­ ture”9 and that “he is worthy of being emulated.”10 . Born on January 13, 1927, in Ksia˛ znice Wielkie in the Kielce region, he died in Warsaw on April 3, 1994. During the Second World War, he was a colporteur of the underground press in the Peasants’ Battalions (1943–45) and a graduate of teaching in secret. During the People’s Republic of Poland, he graduated as a lawyer from the Jagiellonian University in Kraków (1950) and was trained as a papyrologist at the University of Warsaw (1951). Beginning in 1960, he served as a professor of Roman law at the University of Warsaw (until 1990) and as secre­ tary and later editor of The Journal of Juristic Papyrology. He became a moral philosopher, a lecturer at the Academy of Catholic Theology from 1961 to 1983, and vice rector of the University of Warsaw (1981–82) freely elected at the heyday 5 Henryk Kupiszewski, “La nozione di Stato nel De republica di Cicerone,” Ciceroniana 7 (1990): Atti del VII Colloquium Tullianum (Warsaw, May 11–14, 1989): 196–97. 6 Sound recording of interview with Henryk Kupiszewski, June 11–16, 1990, Marek Lehnert papers, Box 8, Hoover Institution Library and Archives, Stanford, California. 7 Franciszek Longchamps de Bérier, “Nietykalnos´c´ posła w Rzymie okresu pryncypatu,” Prawo Kanoniczne 37, nos. 3–4 (1994): 173. 8 Bronisław Sitek’s personal account of the event (private interview, Oct. 2021). 9 John Paul II, “Discorso di Giovanni Paulo II a S.E. il Signor Stefan Frankiewicz, nuovo ambasciatore di Polonia presso la Santa Sede, 11.07.1995,” L’Osservatore Romano, weekly edition in English 29 (1995): 6. 10 Jan Zabłocki, “Profesor Tomasz Dybowski,” Zeszyty Prawnicze UKSW 3 (2003): 9.

296 G. J. Blicharz of Solidarity. He was a driving force behind the international scientific cooperation of Polish Roman law scholars and was the head of the Department of Roman and Ancient Laws (1965–90) and vice dean of the Faculty of Law at the University of Warsaw (1969–71). During the Third Republic of Poland, he also served as ambassador to the Holy See. Author of more than 160 works, he focused on preserving both the study and the teaching of Roman Law for the benefit of society as a whole, as a way of patiently and persistently showing the way to the creation of law instituted on the basis of humanitas.

The Role of Roman Law: Professor and Mentor Kupiszewski had absorbed his vision of Roman law from his first professor of Roman law, Wacław Osuchowski, whose lectures he attended as a first-year law student at the Jagiellonian University in Kraków. For the “freshmen of Anno Domini 1946/47,” Osuchowski’s lectures were “an entrance into the fantastic world of legal thought; they showed the possibility of building a better tomorrow on the ashes of World War II.”11 This awakening taught Kupiszewski the importance of the didactics of Roman law. As a student, he had experienced very demanding Roman law exams, and even at the end of his life he could recall clearly an exam from this period that consisted of reading and commenting on Latin texts.12 For Kupiszewski, this experience was both refreshing and inspiring: from the third year of his studies, he was one of the outstanding students. After receiving his law degree in Kraków in 1950, he moved to Warsaw to the Ministry of Higher Education as a clerk. He began attending a PhD seminar—extremely lively and full of discussion—in Roman law and juristic papyrology at the University of Warsaw under his future mentor, Rafał Taubenschlag. Kupiszewski himself began teaching Roman law relatively late—in the 1960s, when he was transferred to the Faculty of Law and Administration and took over the Chair of Roman and Ancient Laws at the University of Warsaw, and later became responsible for teaching Roman law at the Academy of Catholic Theology in Warsaw, receiving missio canonica there. Kupiszewski himself, as a great lecturer and humane but very demanding and careful examiner, endeavored to use Roman law to open the door to the younger generations to a world that then still seemed far distant. Kupiszewski turned his calling for didactics into action—and very successfully. Five of the seven students closest to him went on to receive doctorates and pursue academic careers to earn professorships. They all became prominent Polish Roman law scholars at the most important universities in Kraków and Warsaw, and they in 11 Henryk Kupiszewski, Prawo rzymskie a współczesnos´c´, 2nd ed., revised by T. Giaro and F. Longchamps de Bérier (Kraków: Wydawnictwo Od.Nowa, 2013), 17. 12 Kupiszewski, “Osuchowski,” 203. Kupiszewski earned a grade of 3 on the Roman law exam (3 out of 5 max.); Jagiellonian University Archives, WP III 112, Protokoły egzaminów rocznych 1947—rok I.

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turn became mentors to many students. Kupiszewski himself was a student of great professors, indicating as his own mentors, first, Wacław Osuchowski, and, subsequently, Rafał Taubenschlag and Max Kaser. In 1951 Kupiszewski became the assistant to Taubenschlag, the world-famous juristic papyrologist. The genealogy of his mentorship can be traced further through a multigenerational family of Roman law scholars that developed along the Kraków and Warsaw link through a straight line from Kupiszewski’s academic and scientific “grandfather,” Stanisław Wróblewski. A professor at the Jagiellonian University, known as the “Polish Papinian,” Wróblewski had studied under Fryderyk Zoll the Elder (thus Kupiszewski’s “academic great-grandfather”). Following this particular path of didactic genealogy but speaking now personally, my own mentor is Franciszek Longchamps de Bérier, the head of the Chair of Roman Law at the Jagiellonian University, whose mentor was no less than Henryk Kupiszewski himself.

Roman Law: The Gateway to the West Kupiszewski thought in global terms. He learned this way of thinking from Taubenschlag, who was, among other things, from 1942 a highly regarded visiting research professor in ancient civilization at Columbia University. Although the Germans had burned his valuable private Roman law library in Kraków, composed of hundreds of books, Taubenschlag was able to continue his papyrological research in New York until 1947.14 In the United States in 1946, he founded The Journal of Juristic Papyrology, which would prove to be a window into Kupiszewski’s career. Taubenschlag returned to Warsaw in 1947, taking the Chair of Ancient Laws at the University of Warsaw; at the Faculty of History, he established the Chair of Papyrology. It was there that Kupiszewski began his scientific path, for this was the beginning of the celebrated Kraków-Warsaw School of Roman Law. Kupiszewski understood from Taubenschlag that legal papyrology could not exist without Roman legal studies. Taubenschlag’s own papyrus collection, which he had donated to the Jagiellonian Library before his escape, survived the war. However, the loss of his sizable library of Roman law studies made it quite impossible for him to conduct scientific research on papyri.15 His insistence on the indispensability of a Roman law library is reflected in Kupiszewski’s attitude, too,

13 Tomasz Giaro, Dean of the Faculty of Law and Administration at the University of Warsaw; Franciszek Longchamps de Bérier, Chair of Roman Law at the Jagiellonian University in Kraków; Bronisław Sitek, Chair of Roman Law and Comparative Law at SWPS University in Warsaw; Maria Zabłocka, Chair of Roman Law and Ancient Laws at the University of Warsaw; and Jan Zabłocki, Chair of Roman Law at the Cardinal Stefan Wyszyn´ski University in Warsaw (previously the Academy of Catholic Theology). 14 Letter of Rafał Taubenschlag to Jan Gwiazdomorski (dean of the Faculty of Law of the Jagiellonian University in Kraków), Jan. 2, 1946, Jagiellonian University Archives, WP III 39, Katedry i Seminaria Prawa Rzymskiego 1945–50. 15 Letter of Rafał Tabuenschlag to Jan Gwiazdomorski, Jun. 14, 1946, Jagiellonian University Archives, WP III 39, Katedry i Seminaria Prawa Rzymskiego 1945–50.

298 G. J. Blicharz for the latter consistently understood, as did his master, that papyrology is only a subdiscipline of Roman law. After Taubenschlag died, in 1958, Kupiszewski went to study with the worldrenowned Roman law scholar Max Kaser—his “foreign” mentor—at the University of Münster with a Ford Foundation scholarship.16 In Germany, he immersed himself in the study of classical Roman law, especially with regard to family law and betrothal; this study allowed him in 1964 to obtain habilitation, which was highly regarded internationally. In Germany he also met a number of future great Roman law scho­ lars, friends who opened up new opportunities for international collaboration. In particular, a unique friendship bound him to Luigi Labruna, and thus to the Uni­ versity of Camerino and later to the University Federico II of Naples and other cen­ ters in Italy—Padua and the Academia dei Lincei. In the late 1970s, Kupiszewski met Franz Wieacker and learned much from him, opening himself up to exploring the role of Roman law in shaping the European legal tradition, which ultimately defined his own Roman law research. His strong ties with Italy came out not only in his membership on the scientific committee of the journal Iura but also in a symbolic legacy after his death. Since 1996, there has been a special prize named after Henryk Kupiszewski as part of the prestigious Premio Romanistico Internazionale Gérard Boulvert. The award, first endowed by the Centro Romanistico Internazionale Copanello (in Catanzaro, Italy), was dedicated to the memory of the Polish legal historian and was intended to promote the better diffusion of Roman law worldwide. Many have benefited directly from Kupiszewski’s advice and assistance in developing their passion for Roman Law. Indirectly, as part of his legacy, he has also become an inspiration to later generations of lawyers who were not fortunate enough to know him personally.

The Holy See: The Gateway to the World Global Law and One Unified World: The Role of Roman Law and the Catholic Church Just as Kupiszewski viewed Roman law as an opportunity to connect with the Wes­ tern world, so, in a similar way, he saw the renewal of diplomatic relations with the Holy See as a chance for Poland to enter global politics. He recognized the Holy See as a particular subject of international law, one that thinks in universal categories. According to Kupiszewski, the mediation and intercession of this particular political channel presented the new Polish state with an opportunity for broader and fuller participation in international diplomacy. Thus, he also participated in the preparation of the concordat between the Holy See and Poland. Similarly, Kupiszewski recognized that Roman law could be a source of inspiration for creating global law for a new global society because it relied on a universal ethical element and the universality of legal constructs. Because of this, 16 Józef Mélèze-Modrzejewski and Maciej Jon´ca, “Disputare necesse est,” Zeszyty Praw­ nicze UKSW 14 (2014): 222.

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Roman law can play various roles in unifying the world. The laws of the entire planet could be based on Roman law, which could serve as a model for the coex­ istence of multiple peoples within a single legal organism as it did in the Roman Empire. New Poland: The Land of Justice and True Freedom Official relations between the Polish state and the Holy See were broken for the first time in history after World War II—during the communist era—and their renewal represented the opening of a “new page of history” for the country and an opportunity to create “the Poland of the future.”17 Pope John Paul II, in his response to the new ambassador’s letter, emphasized the necessity for Poland to develop as “the land of justice and true freedom, where all citizens are united for the common good.” Kupiszewski tried to promote the development of Poland in these directions in his role as a diplomat. He was especially focused on helping young generations of Poles; as he indicated, he always felt more like a professor than an ambassador.18 Perhaps he did not always find his true self when acting in his new role as a representative of the state, especially as he had to organize his post from scratch, but he took on the challenge. He used his position as a diplomat to promote Polish culture by bringing to the fore its heroes, both his­ torical ones, such as Saint Adalbert, and contemporary heroes like Karolina Lanckoron´ska. Professor and Ambassador Kupiszewski never stopped researching further into Roman law. Without a doubt, while he served in the Vatican, he remembered the example of his mentor Taubenschlag, who, while serving in World War I, was still writing and publishing.19 As Witold Wołodkiewicz recalled, Kupiszewski would come to the embassy very early to read and write about Roman law. This is evidenced by the works published while he was ambassador and by the numerous works in preparation for publication that he did not manage to complete before his death.20 His scientific grandfather Stanisław Wróblewski was also familiar with this serious approach to study, and with a feeling of isolation in a governmental environment. Kupiszewski’s concern for the academic went beyond not only his position as an 17 John Paul II, “Discorso di Giovanni Paulo II a S.E. il Signor Henryk Kupiszewski, nuovo ambasciatore di Polonia presso la Santa Sede, 16.06.1990,” L’Osservatore Romano, weekly edition in English 25 (1990): 4, 10. 18 Sound recording of interview with Henryk Kupiszewski, Jun. 11–16, 1990. 19 Henryk Kupiszewski, “Rafał Taubenschlag 1881–1958,” reprint, in Portrety Uczonych. . Profesorowie Uniwersytetu Warszawskiego po 1945, S−Z, ed. W. Baraniewski, W. Tygielski, and A. K. Wróblewski (Warsaw: Wydawnictwo Uniwersytetu Warszawskiego, 2016), 388. 20 Maria Zabłocka, “Wykaz publikacji Profesora Dra hab. Henryka Kupiszewskiego,” Prawo Kanoniczne 37 (1994): 19–20.

300 G. J. Blicharz ambassador but also his own reading and writing to the promotion of others’ aca­ demic contacts. He took pains that his students should enter the world of Roman law studies, too—Bronisław Sitek, who was staying at Corso di Alta Formazione in Diritto Romano at Sapienza University of Rome, received a visit from him at the university every other day. Kraków, Rome, and the Vatican—Academia Iuridica Pontificia Romae It was not only through his diligence that Kupiszewski, in his role in the Vatican, followed the example of his mentor Rafał Taubenschlag. For the Vatican and the relationship with the Holy Father connected Kupiszewski not only with Wincenty Kadłubek but also with Taubenschlag himself. Before the Second World War, Taubenschlag had struck up a deep friendship with Pius XI, who, while still Achille Ratti, was the first apostolic nuncio to Warsaw and, before that, prefect of the Vatican Library. The two shared a passion for historical research, especially into old prints and papyri. In the 1934 international papal congress in celebration of the fourteen-hundredth anniversary of Justinian’s Code and the seven-hundredth anniversary of the Decretals of Gregory IX, Taubenschlag was invited to the Vatican—the only layman from Poland, and still a non-Christian at that moment.21 One of the results of this congress was the idea of creating the Aca­ demia Iuridica Pointificia Romae (the Pontifical Academy of Law at Rome), which should gather together both Catholic and non-Catholic scholars. In 1938, the pope offered to have Taubenschlag moved permanently to the Vatican, a move to which Taubenschlag happily agreed. The sudden death of Pius XI thwarted Tau­ benschlag’s plans to leave Kraków. Henryk Kupiszewski symbolically completed the story by moving permanently to Rome and the Vatican. His last public mission as an ambassador and professor was organizing the official fifteenth anniversary of John Paul II’s pontificate on December 16, 1993, at Angelicum Pontifical Uni­ versity, where Kupiszewski delivered his last public speech.

Major Themes and Contributions Anyone writing about Henryk Kupiszewski must come up against his view that “biographies of scholars should be written when the author is in retirement”— mainly, Kupiszewski thought, since one should not base one’s academic career on mere biographies alone. The writer of this chapter is not retired, but this volume has a nonbiographical purpose in dealing with Henryk Kupiszewski. Following the reinterpretation of Franciszek Longchamps de Bérier,22 this work is not so much about recreating Kupiszewski’s life story as about trying to learn from what he 21 Rafał Taubenschlag, “Miscellanea: Mie˛ dzynarodowy Kongres Prawa Rzymskiego i Kanonicznego w Rzymie z okazji 1400-Lecia Corpus Iuris Civilis a 700-Lecia Dek­ retałów Grzegorza IX,” Ruch Prawniczy, Ekonomiczny i Socjologiczny 1 (1935): 288. 22 Joanna Kruszyn´ska and Jarosław Kola, “Sprawozdania i Informacje: ‘Jurysprudencja Lwowska,’” Ruch Prawniczy, Ekonomiczny i Socjologiczny 2 (2012): 324.

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researched and wrote; not judging but understanding; not reading about him personally but reading his texts. For the purpose of the present volume, this chapter is about discovering the connections between law and Christianity in Kupiszewski’s thoughts and life. Henryk Kupiszewski left his mark on the study of law not so much by any brilliant legal constructions—for which he so respected Stanisław Wróblewski, the pandectists, and the Roman jurists, especially Julian—but by grounding the scholarship and didactics of Roman law and pointing out the directions of their development along with showing why Roman law is important for modern society. His contribution comes down to his synthesizing the vast under­ standing of Roman law that he had gained from both his mentors and his international contacts. He was the originator of leitmotifs that have survived in the consciousness of most contemporary Polish lawyers in general, not just specialists in Roman law, and some of these motifs have currency among a wider audience still. Europe: Greece, Rome, and Christianity The ongoing intensified discussion of Roman law in Western Europe in the postWorld War II world, particularly the discussion of the future of Roman law and its role in building a European identity that was marked by Nazism, in Poland passes through the filter of the Iron Curtain and is embraced in its own specific way. Kupiszewski was confronted with the problem of defending Roman law at uni­ versities against the temptations of communists, who viewed Roman law reduc­ tively as a means of importing Western ideas. Kupiszewski paraphrased the debate of the time, making his most famous statement that “three areas of antique culture exerted a special influence on the formation of the spiritual and cultural face of Europe. These are Greek philosophy most broadly conceived, Christianity, and Roman law.”23 Making clear Europe’s triune identity became Kupiszewski’s pro­ grammatic task in the final stage of his scientific research, and it might be said that this is the most lasting legacy of his thought. It also bore unexpected fruit, becoming a statement that is not only repeated by Roman law scholars or legal historians, but already during the political transformation was heard in the mouths of Polish politicians.24 Once again, references to Roman law as the foundation of Europe recurred long after Kupiszewski’s death, during discussions on Poland’s accession to the European Union. Kupiszewski himself treated this formulation in a context broader than the merely scientific. In a speech delivered during the presentation of letters of credence at the Holy See, he developed his thought into a discourse of a political nature. He pointed out that it was above all “Christianity which gave Europe and the world a system of supreme and universal values,” and that “common to the West and the East of the continent, from Rome to the 23 Kupiszewski, Prawo rzymskie, 31. 24 Witold Wołodkiewicz, “Henryka Kupiszewskiego—wizja prawa rzymskiego,” Zeszyty Prawnicze UKSW 15, no. 2 (2015): 119.

302 G. J. Blicharz Third Rome, they will become the foundation on which the friendship and fra­ ternity of peoples, nations, and states will blossom.”25 Two Elements of European Law: Tradition and Progress Henryk Kupiszewski did not stop at just paraphrasing the seminal triune identity of Europe. His fundamental book from 1988 (republished in 2013), which col­ lects some of his earlier works, and where his most famous statement appears, is constructed around the axes of tradition and progress. He points out that legal culture is always the result of the combination of these two elements. Tradition is based on what is identical in the history of European law. Progress is based on the qualitative change introduced by Greek philosophy, Roman law, and Christianity. Transcendentals of the Law of Europe The properties of European law that Kupiszewski considers fixed—identical to what European law is—are personalism, socialitas, and abstractness. According to Kupiszewski, “from the earliest times until today,” the individual person (persona) is “the subject, the point of reference, the goal,” of the law of Europe. For this reason, the law “serves to satisfy the human being’s spiritual and material needs,” and therefore the individual “has rights and obligations.” By socialitas Kupiszewski means communitarianism, that is, that in the history of Europe, the individual “does not exist alone, but in different groups. The human being appears in a family, a tribe, a religious association, a professional association, a state.” The term socialitas expresses the orientation toward human equality. Finally, European law is always based on abstraction, that is, on the canons of logic that make it possible to create more perfect systems. Because the law uses general ideas, they give it “a certain humanistic expression.” Among these general ideas, Kupiszewski mentions rightness, justice, and equality.26 Wisdom and Beauty, Peace and Love, and Roman Law Kupiszewski attributes progress in the tradition thus understood to ancient culture and Christianity. While Greek philosophy teaches wisdom and beauty, Christianity seeks to bring peace and love into all relationships: individual, collective, national, and state. Finally, Roman private law shapes the relationships between citizens to varying degrees in different places and times. In depicting the development of legal constructs, he shows “what is inherited and what is added to the inherited itself.”27 Embedding law in an axiological context also becomes Kupiszewski’s trademark. He called for a search for truth through scholarly analysis of sources and context; not to rely only on others’ interpretations, but to encounter the text 25 Wołodkiewicz, “Henryka Kupiszewskiego,” 120.

26 Kupiszewski, Prawo rzymskie, 15–17.

27 Ibid., 17.

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itself—the original—to form one’s own judgment based on sources and context, and often a very broad context. Kupiszewski’s awareness of the complexity of tra­ dition is intended to provide a deeper understanding of contemporary problems. Law and Ethics as a Defense Against Technology One of the problems of modernity that Kupiszewski identified and highlighted is its revolution in the understanding of nature and technology, which has led to technology “putting us on the edge of nonbeing” in the twentieth century.28 Kupiszewski was committed to the thesis that traditional societies tried to conform to a life in harmony with nature, while, in opposition to this, the revolution of modernity drove humanity to subordinate nature to its own will. One result of this is that the law is freed from axiological constraints. This perspective is also present in Kupiszewski’s address to John Paul II, where he points out the challenges of modern law. Norms should flow, he contends, from “ethical precepts. Precisely basing the law on the ideas of iustitia, aequitas, fides, benignitas will make it ars boni et aequi and ensure suum cuique, that it will recognize as its natural and fundamental principle: homo est et qui futurus and ensure the protection of human life in all its spiritual and material dimensions.”29 Kupiszewski then transfers the general thesis of the rivalry between nature and technology to the specific field of protecting unborn life—an issue of particular importance to John Paul II, even defining his teaching. Kupiszewski was aware that neither Greek philosophy nor Roman law led to full respect for human life from the very moment of conception (even though, already in antiquity, we find aptly expressed by Tertullian the truth that the futurus is already human).30 On the other hand, he also recognized the substantial ethical value present in Roman law, a value that seems to have been forgotten in the positivist legal world, making it possible for Roman law to be “still a living source of inspiration” for us. History Facilitates and Deepens Our Knowledge of the Sacred Kupiszewski did not often turn to religious topics. His work at the Academy of Catholic Theology, however, provided him with this opportunity as well. When it comes to the trial of Jesus, it is hard to miss the connection between Roman law and the Gospels.31 This becomes for Kupiszewski an opportunity to point out the 28 Ibid., 317.

29 Wołodkiewicz, “Henryka Kupiszewskiego,” 120.

30 See Grzegorz Blicharz, “Why Justice Blackmun’s Appeal to Roman Law to Justify Roe

v. Wade Is Wrong,” Harvard Journal of Law and Public Policy: Per Curiam (2021), https://www.harvard-jlpp.com/why-justice-blackmuns-appeal-to-roman-law-to-justify­ roe-v-wade-is-wrong-grzegorz-blicharz/. 31 Henryk Kupiszewski, “Nowy Testament a historia prawa (wykład z okazji pie˛ c´dzie­ sie˛ ciolecia pracy naukowej ks. prof. Dr Mariana Myrchy),” Prawo Kanoniczne 29, nos. 3–4 (1986): 14.

304 G. J. Blicharz purpose and method of conducting research on the border between law and theology. When it comes to Roman law, his approach always begins with posing research questions that stem from conviction rather than compulsion and then proceeds with a conservative reading of the source texts, which may require his­ torical, dogmatic, and philological research. “Finally, analysis always requires a close connection between society and law, between individuals and legal institu­ tions.”32 This ability to visualize and place in historical context can also, in Kupiszewski’s view, enable us to get a better understanding of sacred texts, including the discovery of additional meaning in both the Old and New Testaments. A Limit to the Defense of Temporality That Must Not Be Crossed The main conclusion that emerges from Kupiszewski’s analysis of the trial of Jesus is the indication of the limit of the defense of temporality.33 For Kupiszewski this thin red line is marked by two moments in Jesus’s trial. During the trial before the Sanhedrin, Jesus abandons the defense strategy of silence, when the question is asked, are you the Messiah? And then, during the trial before Pilate, it is at the very moment when Pilate’s own political position is threatened that he abandons the strategy of defending Jesus, even though convinced of his innocence. Kupiszewski draws from this the lesson that the limit of the defense, which Pilate could not fail to cross, is fidelity to the truth—not denying the truth, not betraying oneself, even at the cost of losing one’s social position or one’s life. For Kupiszewski this truth had a specific concrete content—that Christ is the Son of God. “Each Generation Comes with Its Own Questions”—An Organic Vision of the State and University This sentence of Kupiszewski’s, remembered especially by students, refers in con­ text to the methodological freedom of those dealing with Roman law or indeed with the study of law in general. For Kupiszewski, Roman law was a fundamental legal science based on logical constructs and ethical ideals that continue to be valid. At the same time, the development of science requires the research freedom of young scholars and, inevitably, the posing of new questions, questions that are essential for a particular given generation. Kupiszewski understood this statement from a broader perspective, including the political. In his text on the republic in the thought of Cicero, Kupiszewski emphasizes the concept of a state that is cre­ ated by generations. The state is a succession of generations, it is an organism, not a mechanism. In the same text, he asks questions that had become important for his own particular generation in the political sphere: how to escape totalitarianism, how to create a democracy where one does not exist, how to strengthen 32 Luigi Labruna, “‘Quasiadfinitas’ Henryka Kupiszewskiego,” Zeszyty Prawnicze UKSW 15, no. 2 (2015): 40. 33 Kupiszewski, “Nowy Testament,” 26.

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democracy where it is weak, how to ensure its governability where it does exist?34 He finds the answer in Cicero’s reflection on the state, which has been further developed through the education of many generations. In his text on ignorantia iuris nocet (ignorance of the law is harmful), Kupiszewski emphasizes that law played an important role in this development, and the increasing legal awareness of society increased the functionality of the state. Hence comes Kupiszewski’s resounding appeal for the education of generations, on which the future of the state depends, and on which the posing of further questions and the organic development of the state turns. Salus patriae suprema lex esto—Taking Care of Youth and the Lesson of Solidarity, Compromise, and Dialogue The idea of educating future generations accompanied Kupiszewski during his service as an ambassador and finds its way into the speech he made in that role. There he points out the need to promote humanistic content in society in which the institutions of the [Polish] state and the church are involved. The Polish nation has matured in fighting for its freedom: the priceless good is the individual as a citizen and as God’s creation. He recognizes the principle of the common good as the rationale for state action, and Christian doctrine as the criterion for evaluating political transformation.35 He emphasizes that the reunification of the Polish nation, which for five generations had lived under different partitions, was only possible thanks to tradition and identity, and the most important task in the maintenance of these factors fell to schools. Before John Paul II’s fourth pilgrimage to Poland, in 1991, Kupiszewski pointed out that the new Poland must be a state based on law, and this requires organic evolution, not revolution. “All personal and institutional changes must be done with deliberation, moderation, and tact; only solid construction will ensure a good future.” In an interview on June 16, 1990, he mentions among the most urgent needs of the new state that youth should be able to study and work in peace, purchase housing, and start a family. According to Kupiszewski, it is necessary to lay proper, lasting foundations for the new state: secure borders, rebirth with clearing away the remnants of Stalinism, the need for consensus and unanimity, learning to give up certain beliefs, and the art of compromise in building democracy. In the teaching of John Paul II, he sees a possible basis, with the implementation of these teachings in everyday life, for the much-needed moral renewal of society.

34 Kupiszewski, “La nozione,” 194. 35 “Przemówienie ambasadora Henryka Kupiszewskiego,” L’Osservatore Romano, Polish edition, 6 (1990): 3.

306 G. J. Blicharz Humanitas—Ethical/Moral Foundations of Legal Orders For Kupiszewski, the idea of humanitas was crucial to understanding the devel­ opment of Roman law, which abandoned harsh and inhumane solutions under the influence of the saturation of law with ethical postulates, “or, more generally, that a far-reaching convergence of ethical and legal postulates arose.” Of course, Roman law had its limitations, which only Christianity makes it possible to trans­ cend. However, as Kupiszewski pointed out, the influence of Christianity does not take a revolutionary form in the Christian Roman Empire. Not everything was dogmatically imposed by Christianity, and the empire did not necessarily take over everything that was in Christianity, though it did develop jurisprudential ideas. He was also aware that certain philosophical currents influence today’s law as they did in antiquity and the Middle Ages. Kupiszewski was aware of con­ temporary pluralism and even relativism, and the way positivism manifests itself as indifference to ethics. The consequence of abandoning the union of law and ethics under modern absolutism is that this gave the state an excellent opportunity to enforce its own law without regard for ethics. Codification and Inflation of the Law—State of Alert Another leitmotiv of Kupiszewski’s is his reflection on codification and the role of the code and the transformation of technology within legal regulation. The tran­ sition from the scroll to the code as a book—stapled on a spine of wooden plates—provides Kupiszewski with an opportunity to demonstrate the significant influence of Christianity. Legal practitioners followed the Christians custom to use the codex as a carrier of the Gospel. The codex, as applied to law, slowly became a collection of legal rules as a result of the custom of quoting law before a court and the new theory of the sources of law that developed in the postclassical period.36 The Enlightenment premises of code as the ultimate and complete regulatory tool, different from the Roman law codex, however, has its shortcomings and is not an ideal solution. As Kupiszewski eloquently summarizes: “based on yesterday’s experience, we regulate tomorrow’s needs.”37 Before the collapse of the Polish People’s Republic, in 1989, Kupiszewski had already warned against the over­ production of lists of normative acts and the inflation of legal norms which led to the crisis of legal codes. Kupiszewski was aware that “the legislator, in the name of democracy, equality, and justice, regulates more and more!”38 Perhaps that is why he tried to emphasize the role of custom and pointed out that “nowadays [in the People’s Republic of Poland] Andrzej Stelmachowski39 consistently opts for custom as a source of law.”40 36 Henryk Kupiszewski, “Dal codice-libro al codice-raccolta di precetti giuridici,” The Journal of Juristic Papyrology 20 (1990): 84. 37 Kupiszewski, Prawo rzymskie, 290. 38 Ibid., 295–96. 39 See Chapter 18 in this volume. 40 Kupiszewski, Prawo rzymskie, 197.

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The remedies Kupiszewski offered to the crisis of codification include, first, a mechanical reduction of regulations and of the volume of norms; and, second, an increase in the level of legislation and legal awareness among citizens and better pre­ paration of lawyers in the application of the law. In this regard Kupiszewski under­ stood the key role that can be played by the university, didactics, and legal scholarship. Legal Education of Society—A Consumer Society or an Open Society? While analyzing the ignorantia iuris nocet principle, Kupiszewski formulates one of his most famous postulates—his call to take responsibility for citizens’ legal awareness and education.41 The principle ignorantia iuris nocet was a product of the whole spirit of Roman upbringing, in which knowledge of the law was very prominent. This whole question also gives rise to the decision regarding the role of Roman law didactics and, ultimately, to the whole model of society—whether we should choose to be or to have—and consequently, as regards our present investigation, to the role Roman law should play in the study of current law. Kupiszewski provides us with a choice: do we want a consumer society or an open society? Only the latter appreciates humanistic values in education, as he assumes Polish society does. This question comes down in matter-of-fact reality to the choice between practical legal studies and theoretical studies—law faculties or law schools?42 According to Kupiszewski, an open society appreciates humanistic values and law faculties that embrace Roman law as a key element of the academic curriculum. He evaluated critically the reduction of requirements for exams in Roman law at Polish faculties of law, and called for the publishing of comprehen­ sive Roman law handbooks and the embracing, in particular, of a more metho­ dological approach to Roman law studies and to understanding Roman law as a common denominator of the legal orders in both Eastern and Western Europe.

General Appraisal and Influence: Christianity and Humanism The Kraków-Warsaw school of Roman law does seem to be thoroughly Christian and humanistic, even if we look only at its three main representatives, Kupiszewski, Taubenschlag, and Wróblewski. Okko Behrends wrote of Kupiszewski that he was a Christian, a tolerant and open-minded Romanist, and a humanist.43 Wróblewski’s “extensive education, especially in the humanities,” his “truly Benedictine diligence, thoroughness, and conscientiousness,” “and finally his nobility and goodness” were 41 Henryk Kupiszewski, “Ignorantia iuris nocet,” Prawo Kanoniczne 25, nos. 1–2 (1982): 304. 42 Franciszek Longchamps de Bérier, “Roman Law and Legal Knowledge—Law Faculties versus Law Schools,” in Roman Law and Legal Knowledge: Studies in Memory of Henryk Kupiszewski, ed. Tomasz Giaro (Warsaw: Stowarzyszenie Absolwentów Wydziału Prawa i Administracji Uniwersytetu Warszawskiego, 2011), 16. 43 Okko Behrends, “Der Romanist Henryk Kupiszewski,” in Giaro, Roman Law and Legal Knowledge: Studies in Memory of Henryk Kupiszewski, 42–43.

308 G. J. Blicharz all emphasized by those who knew him.44 Undoubtedly, his whole attitude to life was also a point of reference for Taubenschlag in the context of faith. For him, the standard of kindness was that shown to him by his own “unforgettable teacher.”45 In his will, Taubenschlag ordered that he be buried in the same cemetery where his mentor rests,46 and he was baptized in 1938, the same year when his mentor passed away. It is interesting that Kupiszewski’s gentle and polite character resembled that not of Taubenschlag but of Wróblewski, whom he had never met in person. Kupiszewski’s conciliatory nature allowed him to hold important positions at the University of Warsaw and as ambassador to the Holy See. In fact, he was some­ times considered too pious.47 His faith, however, was home-made. During his work at the Academy of Catholic Theology, in Warsaw, he was critical in his atti­ tude to certain clerical approaches to the work—such as that of carrying out doc­ toral dissertations based on biographies of bishops; he would say with a sneer, “when there are no bishops, one will have to write about clerics.” He demanded scientific excellence from his acquaintances in ecclesiastical circles.48 However, Kupiszewski also had a moment when, like Wróblewski, he showed he could be a fighter when necessary. As was noted by the security services of the People’s Republic of Poland, Kupiszewski’s 1982 resignation from his position as vice rector of the University of Warsaw was a gesture of protest against the ousting of president Henryk Samsonowicz. Already at that moment, he was working for the opposition movement and even organized a campaign to support Samsonowicz among the Solidarity movement.49 Moreover, as vice rector, he intervened in cases of students detained by the police after protests at the university and organized financial and legal aid for them.50 This reawakening of Kupiszewski’s political soul, perhaps for the first time so pronounced since his wartime involvement in the Peasants’ Battalions, coincided with a shift in emphasis in his research toward showing the achievements of the European legal tradition and the necessity of shaping a legal order based on humanitas. Kupiszewski was appointed ambassador to the Holy See, finding encourage­ ment from both the Polish government and the Polish Roman Catholic Church. Henryk Samsonowicz, with whom Kupiszewski was very close, became a member 44 “Leksykon prawników polskich: Stanisław Wróblewski,” Rzeczpospolita, Oct. 19, 2000, https://archiwum.rp.pl/artykul/304497-Stanislaw-Wroblewski.html 45 Letter of Rafał Tabuenschlag to Jan Gwiazdomorski, Jun. 14, 1946, Jagiellonian University Archives, WP III 39, Katedry i Seminaria Prawa Rzymskiego 1945–50. 46 Kupiszewski, “Taubenschlag,” 402. . 47 Mirosław Ikonowicz, “Ambasadorowie za Spizowa˛ Brama˛ ,” Przegla˛ d, Jul. 30, 2001, www.tygodnikprzeglad.pl/ambasadorowie-spizowa-brama/ 48 Bronisław Sitek’s personal account of the event, private interview, Oct. 2021. 49 Institute of National Remembrance in Warsaw, IPN BU 01221/39, notatka infor­ macyjna opracowana w Wydziale III SUSW. 50 Katarzyna Sójka-Zielin´ska and Michał Pietrzak, “Henryk Kupiszewski—professeur à l’Université de Varsovie,” in Le droit romain et le monde contemporain. Mélanges a la memoire de Henryk Kupiszewski, ed. Witold Wołodkiewicz and Maria Zabłocka (Warsaw: Uniwersytet Warszawski 1996), 29.

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of the newly formed government in 1989 (as the minister of national education who reintroduced teaching of religion to public schools). The successor of Cardinal Stefan Wyszyn´ski was Józef Glemp, who was Kupiszewski’s assistant at the Academy of Catholic Theology in the 1970s and became primate of Poland in 1981, reinforcing Kupiszewski’s ties with the church. On June 17, 1983, during the second pilgrimage of John Paul II to Poland, Cardinal Glemp invited Kupiszewski to the closed dinner with the pope—probably one of Kupiszewski’s first meetings with the Polish pope in private. It was, indeed, Glemp’s friend, Archbishop Bronisław Da˛ browski, secretary of the Polish Bishops Conference, who finally persuaded Kupiszewski to accept the post of ambassador, although Kupiszewski was afraid that he was too old to start on such a mission.51 But in the end, Kupiszewski, as ambassador, gained proximity to and the favor of the head of the Vatican state, and also became a worthy symbol for both Roman law scholarship and renewed Polish statehood—a fitting finish to the stellar career of an illustrious man.

51 Longchamps de Bérier, “Roman Law and Legal Knowledge,” 14.

20 Remigiusz Soban´ski (1930–2010) Magdalena Sitek

Introduction Remigiusz Soban´ski was one of the most outstanding Polish theoreticians of church law after the Second Vatican Council. He was a great scholar with broad scientific horizons, while at the same time he was a Catholic clergyman, lecturer, and man of immense personal culture. He can be counted among the best canon lawyers of the Catholic Church of the second half of the twentieth century. He lived and worked at the time of the great breakthrough in the science of church law caused by cultural changes taking place inside and outside the church. It was the time of the Second Vatican Council, the promulgation of the new Code of Canon Law in 1983, and the fall of communism. These transformations caused the gradual change in the position of the Catholic Church in the world, consisting in a departure from its vision as a perfect society understood as a sui generis state, to a community whose goal is salus animarum—the salvation of souls. As a scholar, Soban´ski was able to maintain and protect his identity and research independence from external influences. His academic achievements focused mainly on the analysis of theoretical legal aspects of the construction of the theory of church law. In his theoretical deliberations, Soban´ski often referred to con­ temporary German, Italian, Spanish, and French views of doctrine.

Biographical Information Soban´ski was born on August 1, 1930, in Miasteczko S´la˛skie, and died on December 11, 2010, in Katowice. He completed his theological studies at the Jagiellonian University in 1954, and in 1971 obtained the degree of habilitated doctor of laws in the field of canon law on the basis of the monograph Baptism as the Basis of the Unity of the Church. Thus, Soban´ski changed his research interests, moving from the scientific discipline of theology to the discipline of church law. In 1982 he was awarded the title of full professor of law.1 1 Józef Wrocen´ski, “Sylwetka naukowa Ksie˛ dza Profesora Remigiusza Soban´skiego,” in Ars boni et aequi. Ksie˛ ga pamia˛ tkowa dedykowana Ksie˛ dzu Profesorowi Remigiuszowi Soban´skiemu z okazji osiemdziesia˛ tej rocznicy urodzin, ed. Józef Wrocen´ski and Helena Pietrzak (Warsaw: Wydawnictwo UKSW, 2010): 23–27.

DOI: 10.4324/9781003181255-21

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As a priest, Soban´ski was involved in pastoral work and served in various administrative capacities. In 1989, he was appointed as head of the Bishop’s Court, and in 1992 was named the official of the Metropolitan Court in Katowice. In recognition of his knowledge of canon law, the Holy See authorized him to hear marriage annulment cases in the third instance. From 1976 to 1982, he served as a consultor of the Congregation of the Clergy in the Roman Curia. Regardless of the outcome of the cases he oversaw, he found time to talk with petitioners. Such meetings were usually held over coffee. As the professor used to say during his lectures, a party to the proceedings must be satisfied first of all with the way he or she was treated by the judge. Privately, he was a football fan. He and his friends watched matches most often with a box of beer, a popular drink in Silesia. Soban´ski loved the sun and spent his holidays almost every year on Italian or French beaches; students and fellow lecturers admired his postsummer suntan.

Academic Vita of Soban´ski Remigiusz Soban´ski was primarily a scholar associated with the Academy of Catholic Theology in Warsaw. In addition to the function of lecturer at this institution of the highest education, he was successively the dean of the Faculty of Canon Law (1975– 78), then vice president (1978–81) and president (1981–87) of the academy. From 1991, he also worked as a professor at the University of Silesia in Katowice. As president of the Academy of Catholic Theology, he was an independent person. To understand the importance of this independence, it is necessary to outline the political situation in Poland at the time and the position of the Acad­ emy of Catholic Theology. The academy was dependent upon the communist state authorities, a situation that raised suspicions on the part of church autho­ rities, especially the primate of Poland, Cardinal Stefan Wyszyn´ski. It was precisely in this difficult political situation that Soban´ski did well. He did not seek the favor of political authorities, but he also knew how to keep his distance from the church hierarchy. The strong position of bishops in Poland had made the former chan­ cellors of Catholic universities feel obligated to comply with them. Soban´ski believed that if a bishop had an issue to settle, he had to come to the president of the university, not the president to the bishop. Initially, this behavior of the pre­ sident of the academy was somewhat surprising, but with time it was accepted as normal. Even more surprising was the fact that Soban´ski, as the president, did not wear a cassock and rarely appeared in a clerical collar. He put on elements of priestly attire only during church ceremonies or during visits to the pope. Beginning in 1958, Soban´ski gave lectures in the theology of canon law and theory of canon law, among other topics. In recognition of his knowledge, he was invited to lecture at numerous European universities in Germany (including Munich, Munster, Berlin, Freiburg, Bonn, and Regensburg), Italy (including Bari, Milan, Rome, and Turin), Spain (including Salamanca, Bilbao, Pamplona, and Madrid), and Austria (including Vienna, Salzburg, and Graz). In addition, he lectured at the universities of Ottawa, Paris, Budapest, and Bucharest. Many Polish universities invited Soban´ski to give lectures. In recognition of his scientific achievements, the Faculty of Catholic

312 M. Sitek Theology of the Rhenish Frederick-William University in Bonn awarded Soban´ski a doctorate, honoris causa. In addition, in recognition of his outstanding achievements in the field of legal science, Soban´ski received the Commander’s Cross, the Order of Polonia Restituta, the second-highest Polish civilian state decoration. He was awar­ ded many other medals and national and foreign decorations as well. Soban´ski’s methods of assessing students were interesting. Above all, he highly valued logical thinking. It was not uncommon for him to give a student two grades during an exam, one for thinking and the other for knowledge. The final rating was the average of the two. The exams were oral, so it was not enough to memorize a text. Soban´ski promoted a large group of graduate students and two doctors. His scho­ larly achievement includes some six hundred publications. The real significance of his achievements is evidenced by the numerous citations of his publications in Polish and international canonical literature, including citations in foreign publications by Guy Boulanger,2 Salvatore Berlingò,3 Rudolfus G. W. Huymans,4 and Karl-Theodor Geringer.5 During his scientific activity, Soban´ski collaborated with many foreign canonists, including, inter alia, Rinaldo Bertolino, former president of the University of Turin; Eugenio Corecco, distinguished Swiss canonist and bishop of Lugano; Péter ˝, canonist, cardinal, and primate of Hungary; Renato Baccari, distinguished Italian Erdo canonist from Bari; Raffaele Coppola from Bari; and Francesco J. Urrutia from Bari. Professor Soban´ski invited many of them to lecture at his alma mater in Warsaw. Soban´ski had great passion for new technologies, especially computers and com­ puter programs. Already in the early 1990s, working at the Bishop’s Court in Kato­ wice, he introduced a computer program that aggregated the documentation of all pending cases and reminded the judge about the need to perform another court action in the case. At the beginning of my studies at the Academy of Catholic Theology, during one of the meetings, the professor proudly presented his computer with a capacity of twenty megabytes. He said then that this disk capacity would be enough for a scholar to work throughout his life. He did not foresee the appearance of gigantic databases for which the computers with several terabytes of memory are needed.

Soban´ski’s Main Research Areas Soban´ski’s main research subject was church law. According to Soban´ski, the phrase “canon law” is the heritage of the early church, which was governed by canons (canones) passed by synods and councils. Provisions of law created in this way resulted from the reference to the norms of the Roman law (lex) understood as an instrument that organizes the live of the community of believers. Meanwhile, 2 Guy Boulanger, “La paroisse communauté eucharistique et les réaménagements paroissiaux,” (Diss., University of Ottawa, 2009), 122. 3 Salvatore Berlingò, “Ordinamento canonico,” Stato, Chiese e pluralismo confessionale (Feb. 2008): 3. 4 Rudolfus G. W. Huysmans, “Sacramenten en kerkrecht: Overzicht en inzicht,” Bij­ dragen 39, no. 2 (1978): 118–43. 5 Karl-Theodor Geringer, “Rezension von: Louis Carlen (Hg.): Räte in der Kirche zwischen Recht und Alltag,” Archiv für katholisches Kirchenrecht (1987): 300–03.

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even before the Second Vatican Council, canonists indicated the need to change the concept of the role of law in the Catholic Church. This law should contain incentives rather than orders or prohibitions. Hence, to embrace this new vision of the church, the term “church law” should be used.6 The theory and philosophy of law was one of the leading research problems in studies of church law. As a precursor of this research trend in Polish canon studies, Soban´ski strove to demonstrate the scientific character of canon law. This direc­ tion of research was undoubtedly correlated with the dynamically developing theory of law in Poland and around the world. In Poland, the theory of law was undertaken as a research topic by the representatives of the so-called Poznan´ School of Law—a school founded by Zygmunt Ziembin´ski.7 This direction of the development of the Soban´ski’s academic research was also inspired by the devel­ opment of studies in this field around the world. Soban´ski’s basic work in this field is the monograph titled Theory of Church Law, published in Warsaw in 1992. The concepts from the theory of canon law were ones he had developed in earlier studies connected with theology8 and ecclesiology.9 Soban´ski’s collective development of the theory of canon law is a book published in Italian, titled La Chiesa e il suo diritto. Realtà teologica e giuridica del diritto ecclesiale (Turin, 1993). His achievements in the field of church law theory also include numerous studies in Italian,10 German,11 English,12 French,13 and Spanish14 but also Latin.15 6 Remigiusz Soban´ski, Kos´ciół, prawo, zbawienie [Church, law, salvation] (Katowice: Ksie˛ garnia s´w. Jacka, 1979): 200–04.

7 See Chapter 15 in this volume.

8 Remigiusz Soban´ski, Zarys teologii prawa kos´cielnego (Warsaw: ATK, 1973).

9 Soban´ski, Kos´ciół, prawo, zbawienie.

10 Remigiusz Soban´ski, “Note sulla questione della collazione scientifica della canonistica,” Communio 66 (1977): 70–81; and idem, “Le norme canoniche e la ‘salus ainmarum,’” in Atti del Congresso Internazionale Incontro fra canoni d’Oriente e d’Occidente, ed. R. Coppola (Bari: Cacucci Editore, 1994): 17–22. 11 Remigiusz Soban´ski, “Comunio als Formalprinzip des Kirchenrechts,” Theologie und Glaube 72 (1982): 175–88; idem, “Die Methoden des Rechts im Leben der Kirche,” Archiv für Katholisches Kirchenrecht 151 (1982): 3–24; and idem, “Bemerkungen zur epistemologischen Problematik des Begriffes des Kirchenrechts,” Archiv für katho­ lisches Kirchenrecht 157 (1988): 430–41. 12 Remigiusz Soban´ski, “The Theology and the Juridic Status of Episcopal Conferences at the Second Vatican Council,” The Jurist 48 (1988): 68–106. 13 Remigiusz Soban´ski, “Remarques sur la place du droit ecclésial dans la culture juridique,” Monitor Ecclesiasticus 108, no. 3 (1983): 313–33; idem, “Quelques remarques sur le droit et la miséricorde,” Collectanea Theologica 57 (1987): 107–13; and idem, “Comunio—principe de dynamisation du droit ecclésial,” Il Diritto Ecclesiastico 1987: 1039–61. 14 Remigiusz Soban´ski, “La theologia y el statutu iuridico de las Conferencias Episco­ pales en el Concilio Vaticano II,” in Naturaleza y futuro de las Conferencias Episco­ pales. Actas del Coloquio Internacional de Salamanca 3–8 enero 1988, ed. H. Legrand et al. (Salamanca: Universidad Pontificia de Salamanca, 1988), 99–146. 15 Remigiusz Soban´ski, “De theologicis et sociologicis praemissis theoriae iuris ecclesialis elaborandae,” Periodica de re morali canonica liturgica 66, nos. 3–4 (1977): 657–81.

314 M. Sitek The reflection on the Code of 1983, promulgated by John Paul II, was an important research topic for Soban´ski. The new legal order in the Catholic Church was the subject of many of his studies, including Rechtstheologische Vorüberlegun­ gen zum neuen kirchlichen Gesetzbuch.16 The publications related to the prepara­ tion of the text of the new code and the publications that appeared immediately after its promulgation focused on aspects of theological and ecclesial justification for the existence of church law. Soban´ski also saw the need to develop a scientific justification for placing the science of church law among the legal sciences—or, in other words, in the legal culture. This need was due to the fact that the teaching of ecclesiastical law was restored in the law faculties of Italian and Spanish uni­ versities. An important research thread in connection with this fact was to discuss the principles of interpreting this law.17 Some of Soban´ski’s publications were quite loosely related to church law. These were studies in theology, the first research area of the Polish canonist, or publica­ tions concerning the sacraments, offices in the church, and the relationship of canon law to the external environment in legal culture. The issue of human rights was a secondary, but quite well developed, research area. Together with his team of assistants, in 1994 he organized one of the first international conferences dedicated to human rights in Poland, titled “The Fun­ damental Rights of Man and the Environment in the Changes in Central and Eastern Europe.” This conference was not only widely echoed in the world, but was also symbolic in that it was held in the former seat of the Warsaw Pact. The conference was attended by, among others, the then chair of the UN Human Rights Commission. In this regard, two collective publications appeared under Soban´ski’s editorship. An extremely valuable study was to demonstrate the acceptance of certain secular legal norms in the system of canon law, using the original term “canoni­ zation of civil law.”18 An example of an institution for the reception of secular law into the canon law system is canon 1290, in which the ecclesiastical legislator sti­ pulates that what state law provides regarding contract law also has binding force in canon law. Soban´ski claimed that the concept of ius civile in this canon refers not to a specific act—for example, to the civil code—but to the entire secular law,

16 “Law Preliminary Theological Considerations for the New Ecclesiastical Code,” Theol. Quartalschr. 163 (1983): 178–88. Among other more important publications of Soban´ski regarding the new code, the following should be indicated: Remigiusz Soban´ski, “Duch i funkcja prawa kos´cielnego,” Prawo Kanoniczne 27, nos. 1–2 (1984): 15–39; and Remigiusz Soban´ski, “Der neue Codex des kanonischen Rechts als ein kirchliches und rechtliches Ereignis,” Österreichisches Archiv für Kirchenrecht 31 (1985): 5–24. 17 Remigiusz Soban´ski, “Kanonistyka ws´ród nauk prawnych,” Prawo Kanoniczne 37, nos. 1–2 (1994): 249–58; and idem, “Kanoniczne dyrektywy interpretacji prawa,” in Studia z wykładni prawa, ed. Czesław Martysz and Zygmunt Tobor (BydgoszczKatowice: Oficyna Wydawnicza Branta, 2008): 100–11. 18 Remigiusz Soban´ski, “Kanonizacja prawa ‘cywilnego’ w prawie kanonicznym,” Studia Iuridica 21 (1994): 305–11.

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that is, to legal norms in force in the territory of a particular state, including cus­ tomary law and international law.19 In his publications, Soban´ski also introduced canon law to secular lawyers, outlining its significance for the European legal culture. According to him, canon law may seem genetically strange to someone outside the church. The average person may be surprised by a subject regulated by the provisions of church law. Church law is not about specifying legal rules—for example, where and how to keep the key to the tabernacle for the Host, or how a procession should look—but about regulating human matters that result from the order of the church’s faith.20 Hence, one finds in Soban´ski’s scientific works the study of the relationship between freedom and law. Soban´ski conducted these considerations in the context of the different tasks of the state and the church. The protection or guarantee of freedom, especially of the individual, is the basic task of the state. The system of positive law serves the purpose of implementing this sentence. The task of the church is to pursue the truth resulting from the principles of faith. The state strives to guarantee justice and freedom. Religion, on the other hand, aims to show the faithful the truth resulting from the principles of faith. Therefore, the truth pro­ claimed by a given religion does not follow from the provisions of positive law. It does not bind the whole of society, but only the part that receives it by an act of faith. The task of the state is to ensure the peaceful coexistence of various social groups that are convinced of their ideological statements. This is not a part of the church’s task. Soban´ski’s subsequent publications on issues such as law and mor­ ality or law and the system of values are maintained in a similar vein.21

The Evolution of the Concept of Church and Church Law According to Soban´ski The history of the Catholic Church’s self-perception since the Middle Ages was an important and quite well-elaborated issue for Soban´ski. The issue is important as it affects the concept of church law. Soban´ski returned to this topic many times in his publications, conducting an in-depth analysis of church doctrine and the documents of the magisterium. His studies in this field constitute an extremely original presentation of the history of the changes in the concept of the Catholic Church that took place over several centuries, starting in the Middle Ages.

19 Józef Krukowski and Remigiusz Soban´ski, Komentarz do Kodeksu Prawa Kano­ nicznego, vol. 1, book 1, Normy ogólne (Poznan´: Pallotinum, 2003): 77; and Bartosz Rakoczy, “Umowy w kodeksie prawa kanonicznego w s´wietle kan. 1290,” Studia z prawa wyznaniowego 12 (2009): 57–70. 20 Remigiusz Soban´ski, “Czy prawo kanoniczne jest dziwne?,” S´la˛ skie Studia Historyczno-Teologiczne 35, no. 2 (2002): 426–31. 21 Remigiusz Soban´ski, “Wolnos´c´ a prawo,” Prawo Kanoniczne 37, nos. 3–4 (1994): 21–38; idem, “Prawo i moralnos´c´,” S´la˛ skie Studia Historyczno-Teologiczne 32 (1999): 161–72; and idem, “Prawo jako wartos´c´,” Czasopismo Prawno-Historyczne 51 (1999): 37–50.

316 M. Sitek From the Middle Ages, the Catholic Church as an institution functioned not only in leading people, the community of believers, to salvation but above all as a temporal state. Canonists looked for state-like attributes in the church—the church had citizens or believers, territory, and power in the person of the pope. In this way, the church saw itself as an equal partner to other states. Thus, ecclesias­ tical law played a role analogous to that of secular law—an ordering function. An example of such a view is the theories preached by Cardinal Roberto Bellarmino (1542–1621), according to which the church is as visible as the Kingdom of France or the Republic of Venice. Representatives of the School of Salamanca, including Francesco de Vitoria (1483/1486–1546), Domingo de Soto (1494–1560), and Francisco Suárez (1548–1617), argued that the existence of the political community and the church stems from natural law. Christ founded the church as a spiritual republic with a monarchical nature. Thus, despite the social, political, and ideological changes taking place, the concept of the church as a perfect society and as a sui generis state was established. Hugo Grotius (1583–1645) and Samuel von Pufendorf (1632–94) postulated the separation of the law of nature from religious content, which, in their opinion, results from the constantly changing interpretation of the content of revelation. According to Soban´ski, the views of these two philosophers exerted greater influence on the works of canonists who insisted on the concept of the church as a perfect society. Soban´ski further noted that the philosophical currents of the Enlightenment had a significant influence on the theory of the church’s conception. Baron de Mon­ tesquieu (1689–1755) proposed a tripartite division of power.22 This concept rein­ forced earlier views on the primacy of statutory law over natural or revealed law. In addition, in accordance with the principle developed during the Peace of Augsburg (1648)—cuius regio eius religio—religious matters came to be considered as belong­ ing to the exclusive competence of the ruler, meaning that they were internal affairs of state. Such views became a threat to the unity of the church and the position of the pope. Hence, there followed publications of, among others, Justin Febronius (1701– 90), defending the unity of the church, especially the pope’s position as ruler of all the faithful. Tendencies to subordinate religion to secular power also occurred in Austria. Empress Maria Theresa (1717–80) and then her son, Emperor Joseph II (1741–90), claimed that it was the secular authority that decides what is useful for citizens. Consequently, in Austria canonists began to think that canon law should be rational and consulted with secular rule. According to Soban´ski, the clericalization of the church was the result of Enlightenment views and the adopted position of the church doctrine of that time. The church had become a community of unequal members. Only the clergy became the subject of the church’s activities, and the faithful were treated as passive recipients of the church’s spiritual ministry. In this way, the church became like other societies of the Enlightenment.23 22 Charles-Louis de Secondat, Baron de Montesquieu, De l’esprit des lois (Nourse, 1772), book 11, chap. 6. 23 Remigiusz Soban´ski, Kos´ciół jako podmiot (Warsaw: ATK, 1983): 22–24.

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Church as Societas Perfecta Soban´ski showed that the idea of the church as a perfect society originated in Aristotle’s concept of politeia, which implies that the human being is by nature a social being. This concept was taken up by Saint Thomas Aquinas, claiming that the church is one com­ munity that embraces the temporal and supernatural order. With the end of the Middle Ages, this concept underwent far-reaching transformations. There are new theories, often divergent, about the essence of the church. The direction of these changes was influenced by the views of, among others, Jacobus de Paradisio (1381–1465), who proclaimed the need to separate the ecclesiastical community from the state. He argued that the state and the church had ceased to form a single social organization. In his publications, Soban´ski demonstrated that as early as the end of the nine­ teenth century, there appeared the first voices rejecting the vision of the church as a perfect society. Hugo Laemmer (1835–1918), at the end of the nineteenth century, stated that the church cannot be identified with the state, and only some similarities can be seen because the church is a society using its own law.24 The concept of the perfect community, which is altogether reminiscent of the earlier concept of the church as a state, found its reflection in the teaching of the church’s magisterium. The understanding of the church as societas genere et iure perfecta was found at the end of the nineteenth century in many encyclicals, including those of Pope Leo XIII, or at the beginning of the twentieth century in the apostolic constitution of Benedict XV—Providentissima Mater Ecclesia (1917)—on the basis of which the Code of Canon Law was promulgated. For the last time, the concept of the church as a perfect society appeared in the documents of the popes in Pius X’s encyclical Mystici corporis (1943). Pius stated that the Divine Redeemer had brought the church to life as a perfect society—perfectam voluisse genere suo societatem constitutam, with its nature endowed in all the jur­ idical and social elements. Felix M. Cappello (1879–1962), one of the most prominent canonists and lec­ turers of public church law in the first half of the twentieth century, wrote about the church in a different way than earlier canonists. He argued that the church was a community established by Christ so that only through it and in it could people receive salvation. Hence, he further wrote that the church is an institution of divine law, not of natural law. The church, therefore, is not a perfect institution or society, and therefore it is not the same as the state.25 This canonist, in addition to using the term ecclesiastical public law, began to use the term ecclesiastical constitutional law.26 24 Hugo Laemmer, Institutionen des Katholischen Kirchenrechts (Freiburg im Breisgau: Herder Verlag, 1892), 11. 25 Felix M. Cappello, Summa iuris publici ecclesiastici (Rome: Universitatis Gregoriana, 1943): 76. 26 Emilio Fogliasso, “Ius Publicum Ecclesiasticum e il ‘Ius Constitutionale Ecclesiae,’” Salesianum 27 (1965): 425–35; Giuseppe Ferrante, “Diritto Pubblico Ecclesiastico o Diritto Costituzionale Ecclesiastico?,” Palestra del Clero 45 (1966): 876–86; Juan Calvo, Teoría general del derecho publico eclesiástico (Santiago de Compostela: Porto y Cía, 1968): 10n; and Antonio María Rouco Varela, “Grundfragen einer katholischen Theologie des Kirchenrechts. Überlegungen zum Aufbau einer katholischen

318 M. Sitek According to Soban´ski, the nineteenth-century domination of the concept of the Catholic Church as a sui generis state had to lead to the separation of public and private ecclesiastical law. Church public law developed mainly within the socalled Würzburg School. The distinguished representatives of this school include, Jan K. Barthel (1697–1771), Jan A. Von Ickstatt (1702–91), and Filip A. Schmidt (1734–1805). In the doctrine of church law, one can find views according to which councils and synods play a similar role as parliaments in individual countries. Public law, meaning the law concerning the essence, organization, and structure of the church, began to be recognized as part of canon studies; at the same time, however, it was claimed to be a separate scientific discipline due to the develop­ ment of its own scientific method. Ecclesiastical public law became a subject taught at the universities of the Papal States, that is, Rome and Bologna. After the fall of the Papal States in 1870, there was a crisis in teaching the church’s public law. This was expressed in view that the pope cannot be compared to a secular ruler. As Soban´ski showed, people began to realize that the church had its own mission to accomplish, and that the pope was a symbol of this mission. At this point, the word societas, or community, became the key concept for ecclesiastical public law. Due to the existence of different types of community, the previously known concept of a perfect community seemed to be the most appro­ priate—that is, one that, thanks to the means at its disposal, is able to achieve natural and supernatural happiness. A perfect community also needs authority to determine the measures necessary to achieve common goals, settle disputes, and enforce the application of prescribed measures necessary for achieving those goals.

The Contribution of Soban´ski to the Development of Polish and World Canon Studies Church Law Theory One of the main research tasks that Soban´ski set for himself was the development of a theory of church law. By theory, Soban´ski understood a set of statements explaining reality or a fragment of reality. Developing a theory is an expression of the methodological maturity of a scientific discipline. From this point of view, one should talk about the theory of law as a phenomenon functioning not only in a state but also in church law. The theory of church law aims to explain the essence and sense of the existence of church law. However, this law is related to a specific regulated object or community, namely, the church, both in its invisible aspect resulting from the mystery of faith and in its visible aspect, with its organization and institutions. For Soban´ski, the existence of church law can be explained only from the perspective of the church’s faith and its mission. According to Soban´ski, the theory of church law is related to theology but cannot be equated with it. As part of building the theory of church law, Soban´ski Theologie des Kirchenrechts,” Archiv für Katholisches Kirchenrecht Mainz 148 (1979): 341–52.

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not only addressed ontological issues but also symmetrically twinned church law with secular law, as, for example, in lawmaking, customary law, legislative power, codification, validity of a legal norm, compliance with the law, or application of the law. Soban´ski also discussed many issues typical for the theory of church law, such as the foundations of church law, canonical norm, canonical equity, God’s law, or the application of the law by the faithful. Soban´ski returned to issues rela­ ted to the theory of church law many times in his numerous articles.27 As part of the theory of church law, Soban´ski attempted to explain the essence of the phenomenon of church law and its placement in the church. He conducted this research in terms of the solutions adopted in the documents of the Second Vatican Council. In a publication from 1972, he still used traditional terminology, namely, the fundamental law of the church.28 However, even then Soban´ski made postulates that should constitute the basis for the changes to the church law. According to Soban´ski, church law should reflect the essence of the church; hence, it cannot be a juridical law but should come closer to the vision of the church that emerges from the documents of the Second Vatican Council, and it should define the relationship between the institutions of the church and the community of the faithful.29 The Second Vatican Council meant that many European canonists, such as Pedro Lombardia, Francisco Urrutia, and Soban´ski himself, were already in the 1970s searching for a different justification for the existence of ecclesiastical law than the need to organize the structure and functioning of the church community. According to them, ecclesiastical law should be subordinated to the spiritual good, an expression of which is, for example, granting a dispensation from the obliga­ tions imposed on the faithful by the provisions of the ecclesiastical law. Only then does the pastoral purpose of church law manifest itself. The theory of church law according to Soban´ski was embedded in the scientific discussion of the time. Significant contributions to this discussion were made by, among others, Eugenio Corecco, Pedro Lombardia, and Ralf Dreier. The issues of the theory of church law were not thoroughly explored by other Polish canonists contemporary to Soban´ski. Edward Sztafrowski dealt mainly with personal law, synods, and commentaries on the new code of 1983, and only incidentally did he deal with ontological issues of church law. Tadeusz Pawluk, on the other hand, dealt with church administrative and procedural law, marriage law, sacramental law, and concordat law. 27 There are other articles on the theory of church law, such as: Remigiusz Soban´ski, “Geist und Funktion des Kirchenrechts,” Archiv für Katholisches Kirchenrecht 151 (1982): 369–94; idem, “Kanonische Norm—ethische Norm. Grundlegende Vorbe­ merkungen zum Problem,” Collectanea Theologica 53/Fasciculus specialis (1983): 95– 100; and idem, “Modell des Kirche-Mysteriums als Grundlage der Theorie des Kirchenrechts,” Archiv für Katholisches Kirchenrecht 145 (1976): 2–44. 28 Remigiusz Soban´ski, “Refleksje o kos´cielnym prawie fundamentalnym,” S´la˛ skie Studia Historyczno-Teologiczne 5 (1972): 43–57. 29 Remigiusz Soban´ski, “O nowa˛ koncepcje˛ kos´cielnego prawa publicznego,” S´la˛ skie Studia Historyczno-Teologiczne 4 (1971): 143–59.

320 M. Sitek Church Law in Conjunction with the Second Vatican Council The Second Vatican Council played an important role in the historical changes in the ecclesiological vision of the church and in the nature and role of church law as an autonomous legal order with its own goals. Already in the pre­ conciliar period, the Munich school, led by Klaus Mörsdorf, attempted to demonstrate the theological character or importance of ecclesiastical law.30 Soban´ski, noticing the crisis of ecclesiastical law long before the Second Vati­ can Council, did not lose sight of the methodological issues determining the separation of the science of church law both from secular law and from theol­ ogy and ecclesiology.31 Soban´ski noted that the term societas was used many times in the documents of the Second Vatican Council. In Lumen gentium (no. 8), the council attempted to define the church in a new dimension. For them, the church is a fusion of a community and the mystical body of Christ (reference to Pius XII’s encyclical Mystici corporis). The church has a visible and spiritual character at the same time. However, these are not two separate parts of the church but form one complex reality. The visible church is the people of God equipped with hierarchical organs of power. However, Christ himself is the head of this people. Such a structure of the church recognizes as a matter of fact that all the faithful are called to the uni­ versal priesthood, next to which there is a hierarchical priesthood (Lumen gentium, no. 10). In 1981, Soban´ski noticed that the new views on church law had had little impact on the content of the conciliar documents. The proof of this is the call for the revision of the Code of Canon Law and not for the promulgation of a new one (Christus Dominus, 44). The Second Vatican Council also called for the compilation of a set of pastoral directives in order to provide pastors with certain guidelines for the easier and better fulfillment of their pastoral tasks. In turn, the decree Apostolicam actuositatem (no. 1, in fin), recommended that the apostolate of the laity be one of the criteria for revising canon law. Such a conciliar message clearly indicates a typically positivist view of church law. Such a vision for modifying canon law meant that the theology and ecclesiology that were developed on the basis of the conciliar decisions found little reflection in postconciliar doctrine of church law.32 This view was a repetition of the previously unflattering opinions expressed by representatives of the doctrine of church law regarding the state of canon studies after the Second Vatican Council. Hans Dombois pointed to the low effectiveness of canon law in the life of the church, 30 Klaus Mörsdorf, Fondamenti del diritto canonico (Venice: Marcianum Press, 2008): 189; and Heribert Schmitz, “Die Gesetzessystematik des Codex Iuris Canonici Liber I—III,” in Münchener theologische Studien (Munich: Hueber, 1963). 31 Remigiusz Soban´ski, “I problemi sostanziali e metodologici dell’insegnamento dei fondamenti di diritto canonico,” Apollinaris 51 (1978): 81–113; and idem, “Merytoryczne i metodologiczne problemy wykładu podstaw prawa kos´cielnego,” in W kierunku chrzes´cijan´skiej kultury, ed. Bohdan Bejze (Warsaw: ATK, 1978): 149–69. 32 Remigiusz Soban´ski, “Kryzys czy odrodzenie nauki prawa kanonicznego?,” Prawo Kanoniczne 24, nos. 1–2 (1981): 25–27.

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33

and even on the antijuridical trends in the church. This position of church law was a reflection of the situation that arose after the promulgation of the Code of Canon Law of 1917, which adopted the systematization of law taken from the Institutes of Gaius (ad personas, ad res, ad actiones) and the linguistic, meaning the literal interpretation of the law (canon 18—stricte subsunt interpretationi). Repre­ sentatives of the Navarra school claimed that this had devalued the law in the life of the church. Those views were groundbreaking in the context of the views of earlier Spanish doctrine preached in the 1950s and 1960s.34 According to Soban´ski, in the light of the council documents, the science of church law and theology are two equal scientific disciplines, closely related to each other. The theological foundations of church law are its ontological foundations, and this is because church law grew out of theology. With time, however, church law gained independence as a scientific discipline and, at the same time, became an instrument for ordering relations between the faithful in a community based on God’s justice, which is revealed as love and mercy. The Second Vatican Council documents show that the church is a specific community characterized by the fact that it carries out the mission of Christ, the ministry of the word and the sacraments.35 Such a theological and ecclesiological vision of ecclesiastical law results from the constitution Lumen gentium, no. 8. Soban´ski’s ecclesiological views were thus manifested in reflections on the sacramentality of the church and its mission resulting from the mission of Christ. These views are not original but had been expressed by German canonists, including Johannes L. Witte. Never­ theless, later German canonists, such as Gabriele Zinkl, referred to the views of Soban´ski. The Code of Canon Law of 1983: A New Inspiration for Research Even before the new Code of Canon Law was published, Soban´ski asked himself a research question about the role of law in the church. In 1975, he preached a point of view which contained elements of both old concepts of church law and those to come. He argued that the new code should take care to optimize church law in terms of its form—that ecclesiastical law should meet the criteria of a law 33 Hans Dombois, Kirchenrechtliche Betrachtungen nach dem Konzil. Die Autorität der Freiheit (Munich: J. Chr. Hampe, 1967): 529. 34 Manuel Useros Carretero, “Temática relevante en los estudios actuales sobre la naturaleza peculiar del ordenamiento canónico,” Revista Española de Derecho Canónico 14 (1959): 73–129; Lamberto De Echeverría, “L’enseignement et les recherches de droit canonique en Espagne, L’Année canonique” 5 (1958): 125–41; Alberto de la Hera, “El carácter Jurídico de la norma canónica en la visión del dogmatismo del Derecho,” Ius Canonicum 7 (1967): 93–106; and Javier Hervada, “El concepto de ordenamiento canónico en la doctrina contemporánea,” Ius canonicum 5 (1965): 5–61. 35 Remigiusz Soban´ski, “Teologia prawa jako nauka o ontologicznych podstawach prawa kos´cielnego,” S´la˛ skie Studia Historyczno-Teologiczne 5 (1972): 69–70; Marian Stasiak, “Problem ukazania teologicznej natury prawa kos´cielnego,” Roczniki Teologiczno­ . Kanoniczne 26, no. 5 (1979): 66–67; and Marian Zurowski, “Wprowadzenie do teologii prawa kanonicznego,” Prawo Kanoniczne 10, nos. 1–2 (1967): 17–19.

322 M. Sitek that is formally correct.36 Above all, however, church law must be immanently linked with justice, and therefore with ethical, metaphysical, ecclesiological, and theological determinants. The subject of the church law written down in the code should be, above all, concern for a person who is on the way to salvation. The theological approach to church law would make the code not only an instrument of the church’s administrative power but a way to achieve the main goal of the church, which is salus animarum.37 According to Soban´ski, this vision of church law and the new code should guide future reformers of the Code of Canon Law.38 After promulgation of the new Code of Canon Law in 1983 by Pope John Paul II, Soban´ski assessed it and found that, in his opinion, a significant change was the appre­ ciation of the faithful. This led to the possibility of building the unity of the universal church, which had seemed until then to be divided into two parts—the clergy on one hand and, on the other, the faithful, who were passive receivers of the provisions of church law. The new idea was that the law should help in building this unity. Soban´ski also noticed that the code of 1983 did not overcome the dichotomy between theological and legal thinking. Nevertheless, the new code, according to Soban´ski, expressed the normative order proper to the church—ordo Ecclesiae— and not to the temporal order typical for the sphere of state activity. Similar posi­ tions were expressed by, among others, the Italian canonist Eugenio Corecco. The effect of the change in the view of church law in the 1983 code was the intro­ duction of a new systematization of the codex material divided into seven books. This new systematization is more in line with the ecclesiology of the Second Vatican Council. The Latest Challenges in Church Law In view of the changes that took place after the Second Vatican Council and the promulgation of the new code, Soban´ski took up new challenges related directly or indirectly to the theory of church law. These new research problems engaged him through the turn to the present century. One such problem was the search for an answer to the question about the place of church law in secular legal culture.39 36 Remigiusz Soban´ski, “W sprawie zasady formalnej prawa kos´cielnego,” Prawo Kano­ niczne 21, nos. 1–2 (1978): 24–26. 37 Remigiusz Soban´ski, “Salus animarum jako cel prawa kanonicznego. Wszcze˛ ta przez Jana XXIII reforma K.P.K. w s´wietle dyskusji o celu prawa kos´cielnego,” in W kie­ runku prawdy, ed. Bohdan Bejze (Warsaw: ATK, 1976): 202–04; idem, “Kos´ciół–jego konstytucja, i prawo w tajemnicy zbawienia,” Analecta Cracoviensia 8 (1976): 217– 46; idem, “Prawno-teologiczne uwagi o nowym Kodeksie Prawa Kanonicznego,” Prawo Kanoniczne 27, nos. 1–2 (1984): 6–7; and idem, “Zbawcza funkcja prawa kos´cielnego,” S´la˛ skie Studia Historyczno-Teologiczne 6 (1973): 157–59. 38 Remigiusz Soban´ski, “De constitutione Ecclesiae et de natura iuris in Mysterio Divino intelligendis,” Monitor Ecclesiasticus 100 (1975): 269–94; and idem, “Wprowadzenie do zagadnienia roli prawa w Kos´ciele,” Prawo Kanoniczne 18, nos. 1–2 (1975): 22–23. 39 Remigiusz Soban´ski, “Erwägungen zum Ort des Kirchenrechts in der Rechtskultur,” Archiv für katholisches Kirchenrecht 155, no.1 (1986): 3–15.

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Without going too deeply into Soban´ski’s discourse on the relationship between church law and legal culture, it is worth considering the issue of legal interpreta­ tion. According to Soban´ski, church law does not live its life, as it is a part of the legal culture. Thus, in relation to ecclesiastical law, one cannot speak of an authentic interpretation. Lex disciplinae is inherently related to lex fidei. The ecclesiastical legislator is not supposed to interpret the text of the canon, but rather to engage in its understanding and proper application of the legal norm by all believers. This interpretation of the provisions of church law is influenced by the community of believers in which the church legislator exists and functions.40 In the latest research, an important issue raised by Soban´ski was the person in law. It is the baptized person and the believer—christifidelis is at the heart of the church and its law. The faithful are now in the place formerly occupied by the hierarchy. The rights of the faithful, especially the right to salvation, have become the most impor­ tant law. Moreover, in the image of christifidelis in the church, all views of human being held by the so-called “secular” sciences—philosophy, psychology, biology, or sociology—must be taken into consideration. Therefore, the believer must be guar­ anteed in the church such rights as freedom and autonomy of the person.41 Soban´ski also took up a subject that is extremely difficult from the point of view of church teaching, namely, the ability of transsexual people to marry.42 Soban´ski thus referred to similar views expressed, for instance, by Eugenio Corecco.43 The relationship between church law and state law was another research pro­ blem Soban´ski explored in this period. He argued that church law must remain in communication with synchronously and diachronically different legal cultures. But ecclesiastical law cannot lose its own distinctiveness. Faith is important here, since it determines the categories of thought. These categories of thought protect church law from static, positivist understanding. Such a vision of church law is therefore a decisive departure from the concept of legal stability and refraining from future changes, a concept typical of the 1917 Code of Canon Law. The church and its law, according to Soban´ski, must be faithful to aggiornamento, which means the need to adapt the church to the present day.44 The publication on the validity of the norm of state and church law remains related to this issue.45 40 Remigiusz Soban´ski, “Uwagi o interpretacji prawa kos´cielnego,” Prawo Kanoniczne 30, nos. 1–2 (1987): 44. 41 Remigiusz Soban´ski, “Znaczenie poje˛ cia osoby w kanonicznym porza˛ dku prawnym,” Prawo Kanoniczne 40, nos. 3–4 (1997): 10–11. . 42 Remigiusz Soban´ski, “Transseksualizm a zdolnos´c´ do zawarcia małzen´stwa. Questio disputanda,” in Plenitudo legis—dilectio. Ksie˛ga pamia˛ tkowa dedykowana prof. dr. hab. . Bronisławowi W. Zubertowi z okazji 65. urodzin, ed. Anatoni De˛ bin´ski and Elzbieta Szczot (Lublin: KUL, 2000): 653–64. 43 Eugenio Corecco, “Die kulturellen und ekklesiologischen Voraussetzungen des neuen CIC,” Archiv für katholisches Kirchenrecht 152 (1983): 3–30. 44 Remigiusz Soban´ski, “Immutabilità e storicità del diritto della Chiesa: diritto divino e diritto umano,” Ius Ecclesiae 9 (1997): 43–44. 45 Remigiusz Soban´ski, “Zum Problem der Geltung der Normen des (stattlichen und kanonischen) Rechs,” in Unterwegs zu einem Glauben. Festschrift für Lothar Ullrich zum 65 Geburtstag, ed. Wolfgang Beinert (Leipzig: Benno Verlag, 1997), 188–95.

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Conclusion Remigiusz Soban´ski was a prominent Polish theorist of church law and one of the most significant specialists in this field in Europe in the second half of the twen­ tieth century. His views became extremely useful for understanding the essence of ecclesiastical law, given that he was active in a very difficult period for the Catholic Church after the Second Vatican Council. In Poland, Soban´ski was actually the only canonist who took up difficult pro­ blems in the field of legal theory, especially the nature of church law, its position among legal sciences, and the role and importance of church law in the life of the church. He set forth considerations on the theory of church law in the context of the theory of Polish and global law. Analysis of his articles allows one to recognize that he deployed outstanding knowledge of the latest philosophical views while emphasizing the specificity of the theory of church law. Well known in European canon law circles, Soban´ski was well versed in the latest research and quoted the views of others, but was also critical of them and proposed his own solutions. Soban´ski’s extremely original contribution was a thorough, or even compre­ hensive, study of the history of the development of the concept of the church and the teaching of canon law, from the Middle Ages up to the Second Vatican Council. He criticized the concept of the church as a perfect society. Hence, the division of church law into public and private law does not correspond to the essence of the church and church law. The implementation of this research task made it possible to show the ecclesiological and theological foundations of church law enshrined in the new code of John Paul II.

Index

Note: Locators followed by “n” indicate footnotes.

1952 Constitution of Poland see People’s Republic of Poland abortion 106, 107, 213, 225, 254, 283, 291, 292 abstractness 302 Academia Iuridica Pontificia Romae 300 Acting Person, The (John Paul II) 251 Act of Krewo (1385) 3–4, 37, 63 Address to Prime Minister Schmerling 135–36 adoption in Polish family law see Przysposobienie w polskim prawie rodzinnym (Stelmachowski) Ajdukiewicz, Kazimierz 238, 238n25 Alexander, Polish king 69 Allerhand, Maurycy 189, 194, 199 Ancient Sources of Old Polish Law 131, 137, 138 Álvarez-Pedrosa, Juan Antonio 18n12 anticresis 103 “anti-positivistic” understanding of legal phenomenon 164 Apostolicam actuositatem 320 Appeal to the Emperor of Austria, An (Helcel) 135 Approval Committee of the Codification Commission 195 Aquinas, Thomas ix, 11, 25, 147, 211, 248, 317 Archutowski, Roman 232 ars boni et aequi see ius est ars boni et aequi Arthur, Allen 188n1 Ateneum Kapłan´skie 203, 204 Augustine of Hippo ix, 25, 28 Augustine, Saint see Augustine of Hippo Austrian civil code (ABGB) 14

Austrian private law 191 see also private law in Poland Auswanderung und Auswanderungpolitik in Oesterreich (Caro) 141 autarchy-oriented protectionism 149 Babb, Hugh W. 158, 158n7 Balik, Stanislav 269n12 Baccari, Renato 312 Bacciarelli, Marcello 6 Baldus de Ubaldis 75, 76 Balzer, Oskar 132n24 Balzer, Oswald 17, 17n8, 17n10, 20, 20n20, 21n24, 26, 32, 131, 188, 189 Baptism as the Basis of the Unity of the Church (Soban´ski) 310 Baptism of Poland 3, 14, 205 Baran, Kazimierz 269 Barbarossa Operation 185 Bardach, Juliusz 271n16, 277, 277n31 Bardella, Filippo 66 Baron, Julius 166 Bartel, Kazimierz 185, 199, 269n13 Bartel, Wojciech Maria 110n1, 265–6 Barthel, Jan K. 318 Bartłomiej of Jasło 61 Bartoszewicz, Juljan 79n1, 84n12, 85n15, 86n19 Bartoszewski, Władysław 232, 232n4 Barycz, Henryk 73n25, 128n9 Basdevant, Jules 198 Basic Problems of Jurisprudence, The (Ziembin´ski) 11, 241 Bathory, Stephen 5, 84–86, 88, 88n25 Beccaria, Cesare 115, 120 Behrends, Okko 307n43

326 Index Belch, Stanislaus F. 28n36, 42n19, 44n24

Belcredi, Count Richard 136

Bellarmino, Roberto 316

Berlingó, Salvatore 312, 312n3

Berlin Wall, fall of 256

Bernardi, Joseph 115

Bertolino, Rinaldo 312

Białous, Ryszard 232

Biblioteka Warszawska journal 131

Bidagor, Ramon 219

Bierut, Bolesław 205

Bilczewski, Józef 181

Biskupski, Stefan 228n34

Bitterfeld, Henryk 49

Blackstone, William ix, 112–15, 120

Blicharz, Grzegorz J. 3, 6n6, 303n30

Bobrzyn´ski, Michał 131, 132, 133, 189

Bochenek, Mirosław 70n18

Bogdan´ski, Antoni 218

Bogucka, Maria 79n1, 80n3, 81n5, 82n6,

83n8, 83n9

Boleslaus I the Cruel 3

Bolesław, Duke see Bolesław I, king

Chrobry

Bolesław I, king Chrobry 3,27, 32

Bolesław the Brave see Bolesław I, king

Chrobry

Bolesław the Wry-Mouthed 32

Bonhoeffer, Dietrich ix

Boniface IX (Pope) 56

Bonne foi et sa fonction en droit canonique

(Bidagor) 219

Borawska, Teresa 64n1, 66n5, 66n6, 68n9, 73, 73n27, 73n28, 74n29, 74n30, 74n32, 75n35, 76n38 Borowski, Karol H. 234n13

Borutta, Manuel 138n34

Boulanger, Guy 312, 312n2

“bourgeois pseudoscience” 234

Brague, Rémi 147n20

Brandenburg-Ansbach, Albrecht von 70

“bread of the well-deserving” (panis bene

merentium) 98 Breitinger, Hilarius 203n3 Briefe eines polnischen Edelmannes an einen deutschen Publizisten 134–35 British Special Operations Executive (SOE) 233n11

Brunner, Heinrich 190

Brzeski, Józef 190

Buddhist morality 169–70

Bukowiecki, Stanisław 189, 194

Bürgerliches Gesetzbuch see German Civil Code (BGB) Burke, Edmund 7, 7n8 Calma, Clarinda 73n26, 74n31, 75n34 Calma, Dragos 21n21 Calvin, John ix

Calvo, Juan 317n26 “canonization of civil law” 314

canon law 33, 99, 108, 112, 118, 209, 25,

275; as carriers of fundamental principles

26; conflict with secular law 222;

Pope John Paul II as great reformer

of 259–61, 262; Soban´ski’s work in

312–13

Cappello, Felix M. 317, 317n25 Caritas Academica (CA) 234–35 Caro, Henryk 140

Caro, Leopold x, 140–56; limitations and ambitions of positive law 151–55; about nature of law and nature of man 141–45; solidarist systemic postulates 145–51 Casimir III the Great 56, 59

Casimir the Just 20, 32

Casti connubii (Pius XI) 222

Catholic Church: Catechism reform 254; evolution of 315; role in Holy See 298–99; as societas perfecta 317–18; as sui generis 318; as temporal state 316; see also Second Vatican Council Catholic matrimony implementation, Grzymała’s role in 221–26 Catholic University of Lublin (KUL) 192,

204, 215, 233

causing sterility (procurare sterilitatem) 107

Centesimus annus (John Paul II) 257

Chelin´ska, Salomea 141

Chełmno law (ius Culmense) 68 Chiesa e il suo diritto. Realtà teologica e

giuridica del diritto ecclesiale (Soban´ski)

313

Chiusi, Tiziana J. 21n23 Chlebus, Ewa 76, 76n37 . Chmielowska, Bozena 39, 39n9 Chodz´ko, Leonard 132

Christianity/Christianization 174; of Grand Duchy of Lithuania by Jadwiga 53–54; Grzymała’s efforts to make message more accessible 226–27; and humanism 248, 307–9; Kupiszewski’s contributions to 301–2; morality 169; in Poland 3, 14–15 christifidelis 323

Index 327 Chronicle of the Poles (Kadłubek) 3, 16–18,

24–25, 29–30, 32

church law 313, 315; challenges in 322–23;

in conjunction with Second Vatican

Council 320–21; evolution according to

Soban´ski 315; theory 318–19; see also

Catholic Church

Cichowicz, Ludwik 194

Cieszkowski, August 170 civil law 165–68, 286–87, 289

Civil Law of the Polish People (Ostrowski)

112, 116, 117–22

Civil Law Section of Codification

Commission 221, 222

Club of Catholic Intelligentsia (KIK) 281

Cobden, Richard 142

Code Napoleon 8, 14

Code of Canon Law (1917) 222, 321–23 Code of Canon Law (1983) 96, 208,

259, 262

Codex Canonum Ecclesiarum Orientalium

(1990) 259, 262

Codex diplomaticus Poloniae (Polish

diplomatic code) 131

Codex Iuris Canonici (1983) see Code of Canon Law (1983) Codification Commission of Republic of Poland 193–95 cognitivism 242

Columbuses, Generation of 263

Commentaries on the Laws of England 7

“common human patrimony” 251–53 common law see ius commune Common Polish law see Jus Publicum Prussiae Polonae (Lengnich) communism in Poland 10–12, 263

communitarianism 302

Concordat (1925) breaking (between

Poland and Holy See) 203, 203n3, 207

concubinage, tolerance of 224

Constitutio Criminalis Carolina on law in

Poland 274

constitutional law 290–91 Constitution of Republic of Poland 207,

209, 214; 1791 Constitution 7; 1997

Constitution 12

Copernicus, Nicolaus x–xi, 5, 34, 64–78; background and education 65–67; curriculum studiorum 67; fields of legal interest 70–72; as legal mind 72–74; professional life as jurist 67–70; as reader 74–77 Coppola, Raffaele 312

Corecco, Eugenio 323, 323n43

Coroners Court 114

Corpus iuris canonici 96

Corpus iuris civilis 276

Correction of Laws (Correctura iurium) 96

Cotterrell, Roger 157, 157n1, 159, 165,

165n28, 172n44

Coudenhove-Kalergi, Richard von 150

Coyer, Gabriel Franciszek 112

“crime against humanity” 189

crime of suicide (homicidium suiipsius) 106

criminal law: of bourgeois states 186;

Zalaszowski’s contribution to 103–8 Criminal Law in England (Blackstone),

Ostrowski’s Polish translation of

112–15, 123

Criminal law in the Russian codification of 1649 see Prawo karne w kodyfikacji rosyjskiej z 1649 r (MalinowskaKwiatkowska) criminal offense, definition of 104

“critical legalism” attitude 245

Crown land law 112

Crown law 118, 119

cuius regio eius religio 316

culture of love 262

Czacki, Tadeusz 122

Czaplin´ski, Władysław 40n14, 44n26

Czartoryski, Adam Jerzy 132

Czasopismo Historyczno-Prawne

journal 268

Czasopismo Prawno-Historyczne (Malinowska-Kwiatkowska) 271

Czechowski, Paweł 284n8

Czepita, Stanisław 237, 238n24

Czerkawski, Julian 137

Czuczko, Jolanta 75n33

Da˛ browski, Bronisław 309

Dajczak, Wojciech 10, 101n15, 195n21,

221n17

Daniłowicz, Ignacy 111n5

Dantyszek, Jan 73

d’Aragon, Bona Sforza 80, 81

Davies, Norman 3n4, 233n8

dawnos´c´ 101–2, 119

De arte fidei catholicae (Alanus of Lille) 17

De bellis iustis 40–42, 45

De˛ bicki, Zygmunt Ludwik 130n17

De contemplatione et vita activa

(Bitterfeld) 49

Decretum Gratiani (Concordantia

discordantium canonum) 96

Department of Civil Law of the

Codification Commission 183

328 Index De revolutionibus 73

Dernburg, Heinrich 166

Dersley, Stephen 240n29

Der Wucher. Eine socialpolitische Studie

(Caro) 140

Die Judenfrage, eine ethische Frage

(Caro) 140

Dietl, Józef 137

diffidatio 105–6

Dignitatis humanae (Declaration) 253, 255

dignity 249–50, 262

Divine Providence 142

Długosz, Jan 51, 51n11, 54n17, 56,

56n26, 61, 61n39, 133

Dmitry of Goraj 51

Dobrawa of Bohemia 3

Doe, Norman xii

Dolin´ski, Aleksander 189, 191, 194

Domalewska, Danuta 155n41

Doman´ski, Ludwik 195

Dombois, Hans 320, 321n33

Domingo, Rafael ix–x, xi, 2n2, 2n3, 11

Donner, Jerzy 73

Dubanowicz, Edward 189

Dufour, Alfred 46n30

Dutkowa, Renata 130n19

Dworkin, Ronald 2, 2n1, 251n15

Dybowski, Maciej 11–12, 238n24

Dyjakowska, Marzena 123n35

Dziadzio, Andrzej 11, 105n33, 276n28

Dzieje i prawa kos´cioła polskiego 116

Dziewanowski, Marian K. 158n4, 161n15

Echeverría, Lamberto De 321n34

ecological solidarity 258

Ehrlich, Emilia 36

Ehrlich, Eugen 158

Ehrlich, Ludwik 36, 37n4, 38n5, 39n8,

40n13, 41n15, 41n16, 42, 42n18, 43n21, 44n23, 44n25, 44n26, 45n27, 45n28, 46n31, 189; identified and commented in Paulus’s writing problems 44; legacy of 46–47; role in elaborating Latin text of sermon 40–41; role in Stanisław and Włodkowic’s legacies 46–47 Einfürung in die Philosophie des Strafrechtes (Makarewicz) 175

Einstein, Albert 1

Elementa juris civilis secundum ordinem

Institutionum (Heineccius) 119

Elizabeth I (English Queen) 93

emotivism 242, 243

Engels, Friedrich 170

Erdö, Péter 312

Estreicher, Karol 117n14

Estreicher, Stanisław 264

ethics: as defense against technology

303; ethical/moral foundations of legal orders 306

European law, elements of 302

European legal culture 12

Evangelium vitae (John Paul II) 248, 249,

253–54 Faculty of Law of Jagiellonian University 127–34

Falkowska, Ewa 231

Family, Church, and State Rights to School

(Wyszyn´ski) 202

family law 291–92

Febronius, Justin 316

Fedynskyj, Jurij 191, 191n9, 199

Ferber, Maurice 64

Ferrante, Giuseppe 317n26

Ficek, Ryszard 203n4

Fierich, Franciszek Xawery 194

Fiktus, Paweł 154n38

Filipczak, Witold 115n10

Fogliasso, Emilio 317n26

Formation of the system of the Third

Republic of Poland see Kształtowanie sie˛ ustroju III Rzeczypospolitej (Stelmachowski)

Formula processus 96, 103

Franciscans 50

Franko, Ivan 185

Fredro, Aleksander 234n15

free economy 156

free unions 224

free veto 6

French civil code see Code Napoleon

French law 13, 120

Freston Operation 233n11

fundamental and guiding law 211

futurus 303

Gansiniec, Ryszard 72n24

Gazeta Krakowska 135

General State Laws for Prussian States 271

genocide 220; Grzymała as witness and

victim of 220–21; Grzymała’s message from genocide site 227–29

Geoffrey of Monmouth 18

Geringer, Karl-Theodor 312, 312n5

German Civil Code (BGB) 14, 166, 221

German law see Saxon law

Gertner, Bartłomiej 65

Index 329 Giaro, Tomasz 101n15, 159n10, 166,

166n30, 167, 167n32, 294n2,

297n13

Giebułtowski, Jerzy 203n4

Gierke, Otto von 166, 190

Gierycz, Michał 9, 144n12

Glemp, Józef 309

Giza, Wojciech 155n44

główszczyzna (man price) 107, 108

Głuszak, Marcin 123n32

Gniewosz of Dalewice 51

Godek, Sławomir 7, 118n18, 121n24

Goła˛ b, Stanisław 190

Gołajewska-Chudzikiewicz, Barbara 232,

232n7

Gombrowicz, Witold 232

Gomułka, Władysław 205, 206, 280

Górnicki, Leonard 194n17, 195n19,

222n21 Górski, Karol 49n4 Graff, Tomasz 55n22 Grand Duchy of Lithuania Christianization 53–54

Grand Duchy of Poznan 8

Gratian ix, 40

Great Schism 89

Greek philosophy, Kupiszewski’s

contributions to 301–2

Gregory XIII (Pope) 89, 96

Grodziski, Stanisław 110n2, 132,

194n15

Grotius, Hugo ix, 41, 43, 43n22, 316

Grunwald, Battle of 38

Grzes´kowiak-Krwawicz, Anna 6n7

Grzybek, Dariusz 155n45

Grzymała, Edward 10, 217–30; biographical

information 218–19; efforts to make message of Christianity more accessible 226–27; life in free Poland 219–20; mes­ sage from genocide site 227–29; message on law 229–30; search for implementation of Catholic matrimony 221–26; studying, researching, and exploring material cul­ tural heritage in Rome 219; as witness and victim of genocide 220–21 Gumieniak, Agata 209–10, 210n14, 212n27, 215n36 Güttner-Sporzyn´ski, Darius von 17n6, 28n35 Gwarancje wolnos´ci w ustawodawstwie s´redniowiecznych miast włoskich

(Malinowska-Kwiatkowska) 270

Gwiazdomorski, Jan 197, 297n14,

297n15

Habsbourg, William of see William of Habsburg

Hägerström, Axel 158

Halban, Alfred 190

Halecki, Ockar 49, 49n6, 51, 51n10,

59n31, 63n43

Hammer, Jacob 18n11

Hauk, Gary S. xii

Hedwig of Anjou see Jadwiga of Anjou

Hegel, Georg Wilhelm Friedrich 184, 185

Heineccius, Johann Gottlieb 119

Hejnosz, Wojciech 68n10, 70, 70n16, 71

Helcel, Antoni Zygmunt x, 8, 23, 23n29,

24, 24n30, 124–39; biography of

125–27; chair in Faculty of Law of

Jagiellonian University 127–29;

honorary membership in Historical

and Literary Society 134; Kwartalnik

Naukowy 130; political life 134–38;

publication work 131–33; research plan

in humanities field 133

Henrician Articles 91–92

Herbet, Andrzej 196n23

Herburt, Jan 96, 118

Hervada, Javier 321n34

Heyzman, Udalryk 131

Historia (Richer of Reims) 17

Historia iuris canonici. De historia fontium

et scientiae iuris canonici (Zeiger) 219

Historia iuris antiqui Polonici (history of

ancient Polish law) 128

historical error and licentiousness 227

historical materialism 265, 271n16

history and laws of the Polish church, the

see Dzieje i prawa kos´cioła polskiego Hlond, August 204, 214

Hohenstein, Leopold von Thun und 128

Holy See 42, 55, 89, 203; Kupiszewski as

professor and ambassador 299–300,

308; Kupiszewski’s role in Kraków,

Rome, and Vatican 300; relationship

with Polish state 299; role of Roman law

and Catholic Church 298–99; Third

Polish Republic to 12

homicide: accidental 105; homicide 104–5; self-defense justification of 105

homo oeconomicus 143

hominum causa omne ius constitutum

est 249

homo economicus 143, 144

Honorius III (Pope) 23

Hube, Romuald 128, 131

Huguenots 6, 188

Hulewicz, Jan 133n27

330 Index human beings, inalienable dignity of 211–13 human dignity concept 248, 249–50 humanism, Christianity and 307–9 humanitas 306, 308

human person concept 248–49 human rights 251–53, 262

human will 144

Hungarian civil law, uncodified 14

Huysmans, Rudolfus G. W. 312, 312n4 ignorantia iuris nocet principle 305, 307

Ihering, Rudolf von 157, 166, 190

Ikonowicz, Mirosław 308n47 incompatibilitas principle 100

Innocent III (Pope) 30

Introduction to Axiology for Lawyers

(Ziembin´ski) 242

Introduction to the theory of civil law see Wste˛ p do teorii prawa cywilnego (Stelmachowski) Iron Curtain 256, 271

irreligiosum 27

Isidore of Seville ix

Isner, Jan 61 iura in re aliena (rights to another’s

thing) 103

ius commune 96, 99

ius es ars boni et aequi see ius est ars boni et aequi ius est ars boni et aequi 77, 285, 303, 311

ius gentium 211

Ius Regni Poloniae (Zalaszowski) 95,

108–9, 275; political law 97–100;

procedural law 100–8

Ivan IV the Terrible 86, 90

Jabłon´ski, Zbigniew 130n18 Jadacki, Jacek Juliusz 238n26 Jadwiga of Anjou x, 1, 3–5, 33, 37, 39,

48–63, 85; Christianization of Grand

Duchy of Lithuania 53–54; life and reign

49–53, 62–63; relation with papacy

during Western Schism 54–56; renova­ tion of Kraków Academy 59–62;

spirituality of 56–59

Jadwiga of Kalisz 49

Jagiellon, Anna x, 1, 5, 79–93; biographical information 80–87; Henrician Articles 91–92; to serve republic 90–91; toler­ ance of other religions 87–88; Union of Brest (1596) 89–90; Warsaw Con­ federation (1573) 88–89 Jagiellon, Catherine 81, 87

Jagiellonian Dynasty (1385–1572) 3–6 Jagiellonian University in Kraków see Kraków Academy

Jagiellon, Isabella 81

Jagiellonka, Anna see Jagiellon, Anna

Jagiellon, Sophia 81, 82

Jagiełło, Władysław 4, 37, 39, 48, 51, 52,

56, 57, 61, 63, 85, 99

Janicki, Kamil 80n3

Jan Kazimierz University in Lwów 188–89

Janowski, Jan Nepomucen 21n24

January Uprising (1863–64) 140

Januszewski, Jan 118

Jarkowski, Antoni 122

Jasudowicz, Tadeusz 43, 43n22, 45n29

Je˛ drejek, Grzegorz 196n24

Je˛ druch, Jacek 80n4

Jogaila see Jagiełło, Władysław

John Paul II (Pope) xi, 1, 4n5, 10, 11,

16n2, 16n11, 33, 35, 36, 47, 49n5,

156n46, 192, 206, 230n52, 232,

234n14, 247–62, 265, 295n9, 299,

299n17, 303; Christian humanism

of 248; foundation of human rights

251–53; as great reformer of Catholic

Church’s canon law 259–61, 262;

human dignity concept of 248, 249–50,

262; human person concept of 248–49;

about Jadwiga of Anjou 49; about

natural law protecting person’s dignity

250–51; about religious freedom 254–55;

about rights of nations and eradication of

war 255–57; about right to life 253–54;

solidarity as inspiring principle of social

justice 257–59, 262; thoughts about

law 248

John XXIII (Pope) 205

Jon´ca, Maciej 298n16

Joseph II, Emperor 316

Journal of Juristic Papyrology, The 297

Józef, Roman 188

judicial law (ius iudiciarium) 118

jurisprudence of interests (Inter­ essenjurisprudenz) 166

Jus Publicum Prussiae Polonae

(Lengnich) 131

justice, concept of 30–32

Jutrzenka-Supryn, Dorota 75n33

Kaczmarczyk, Stanisław 205

Kaczmarek, Jan A. P. 237

Kadłubek, Wincenty 3, 8, 16–34; abuse of

power and law 27–28; appraisal and influence 32–34; as benefactor 22–23;

Index 331 biographical introduction 19–20; as bishop of Kraków 22–23, 32; Chronicle of the Poles 16–18; church-state relations based on tutor-pupil model 29–30; as church reformer 22–23; as jurist 20–22; legal force of promises 28–29; love transcends legal justice 30–32; personal liberty 27; pre-Christian Slavic tradition 26–27; republic as distinct from princeps 29; resigns from bishopric 23–25; Roman law and canon law as carriers of fundamental principles 26 . Kałuza, Zenon 16n4, 18n13, 21, 21n21, 25n32 Kant, Immanuel 184, 185

Karabowicz, Anna 5, 91n33 Kardas, Piotr 184n26 Karski, Jan 189 Kaser, Max 297, 298

Katolicki Uniwersytet Lubelski see Catholic University of Lublin (KUL) Kazimierz II the Great 36, 131

Kazimierz the Great’s laws 131

Kellogg, Charlotte 58n30 Kelsen, Hans 1, 240, 249

Kengor, Paul 257n35 Kietlicz, Henryk 23, 32

Kipp, Theodor 190

Kirk, Alison xii

Kitowicz, Je˛ drzej 123n31 Kłodzin´ski, Abdon 131

Klub Inteligencji Katolickiej (KIK) see Club of Catholic Intelligentsia (KIK) Kochanowski, Jan 86–87, 133 Kodre˛ bski, Jan 196n22 Kohler, Joseph 190

Kola, Jarosław 300n22 Kolan´czyk, Kazimierz 101n16, 103n23,

273

Kolbe, Maximilian 217

Konarski, Stanisław 110

Konic, Henryk 195

Kopernik, Mikołaj see Copernicus, Nicolaus Koppernik, Nicolas see Copernicus, Nicolaus Koranyi, Karol 273

Kordela, Marzena 231n1, 238n27 Koredczuk, Józef 184n25, 185n27 Korektura Pruska 112

Korowicki, Aleksander 122

Korzycka, Małgorzata 12, 284n8 Koschembahr-Łyskowski, Ignacy 190, 197

Kossowski, Maciej Dariusz 111n3

Kotarbin´ski, Tadeusz 162, 162n19, 162n20 Kotromanic, Stefan 49

Kowalski, Grzegorz M. 182n19 Kowalski, Michał 4 Kozłowski, Tomasz 286, 287n19 Kozub-Ciembroniewicz, Wiesław 124n1, 126n5, 129n13, 132n25, 135n28, 136n30, 137n32 Kraków Academic Society (KAS) 133

Kraków Academy 4, 35, 36; Jadwiga’s role

in renovation of 59–62; renewal of

36–38; Włodkowic’s scholarly work at 43

Kraków, Free City of 8

Kraków Uprising 134

Krasicki, Ignacy 76

Krasin´ski, Zygmunt 170

Krasowski, Krzysztof 203n3, 214n35, 215n36 Kremer, Józef 130

Krukowski, Józef 315n19 Kruszyn´ska, Joanna 300n22 . Krzywobłocka, Bozena 183n21 Ksie˛ ga Elbla˛ ska˛ (Elbinger Rechtsbuch) 131

Kształtowanie sie˛ ustroju III Rzeczypospo­ litej (Stelmachowski) 291

Kulczyn´ski, Stanisław 192, 200

Kulturkampf Prussian policy 180–81 Kübris, Brygida 26n33 Kumor, Bolesław 90n28 Kupiszewski, Henryk x, 11, 12, 33,

294–309; as ambassador to Holy See

298–300, 308; Christianity and human­ ism 307–9; codification and inflation of

law 306–7; contributions of Greece,

Rome, and Christianity 301–2; elements

of European law 302; history facilitates

and deepens our knowledge of sacred

303–4; idea of humanitas 306; law and

ethics as defense against technology 303;

legal education of society 307; limit to

defense of temporality 304; organic

vision of state and university 304–5;

Salus patriae suprema lex esto 305;

transcendentals of law of Europe 302;

vision of Roman law 296–98; wisdom

and beauty, peace and love, and Roman

law 302–3

Kutrzeba, Stanisław 131, 132, 265

Kuttner, Stephan ix

kwarta 98

Kwartalnik Naukowy (by Helcel) 130

Kwiatkowska, Irena see MalinowskaKwiatkowska, Irena

332 Index Kwiatkowski, Paweł 238n23 Kwiecien´, Roman 41, 41n17 Labruna, Luigi 298, 304n32 Ladislaus of Opole 57, 58 Laemmer, Hugo 317, 317n24 La Iglesia propia en España: estudio histórico-canónico (Bidagor) 219 Lanckoron´ska, Karolina 198n28, 299 Lande, Jerzy 267 land law of Poland 104 Łaski’s Statute 96 Lateran Council, Fourth 32 Lateran Treaties 226 Łatka, Rafał 203n4, 204n6, 215n36 Lauterpacht, Hersch 183, 189 law: civil 165–68, 286–87, 289; codification and inflation of 306–7; constitutional 290–91; criminal 103–8; as defense against technology 303; family 291–92; of God 210–11; of love 210–11; Magdeburg 68; morality and 163; of nature 142; ownership and possession concept of 287–89; Petraz´ycki’s psychological theory of 158, 162, 165; political 97–100; positive 151–55; private 100–3; public 98; of responsibility 145; Salic 120; Saxon 13, 96, 108, 118; statutory 152–53; theory of legal phenomena 239; see also canon law; church law; Roman law law, nature of 141–45 Law of the Kingdom of Poland see Ius Regni Poloniae (Zalaszowski) League of Nations 226 Lectura super I–IX Codicis (Baldus de Ubaldis) 76 Ledóchowski, Włodzimierz 141 legal education of society 307 legal guarantees of church teaching religion at school 206–9 legal idiotism 160 legal norm 240 legal phenomenon 163–64 . legal policy, Petrazycki’s definition of 165–68 legal positivism 152 legal scholarship, Ziembin´ski’s methodological foundations for 239 legal systems 2 legal theory, Ziembin´ski’s contributions in 238–41 legal truths 152 Lemkin, Rafael (Rafał) 183, 183n20, 189, 220n11

Lengnich, Gottfryd Bogumił 112, 131 Leo XIII (Pope) 152 Lepszy, Kazimierz 80n3, 83n10, 86n18 lèse-majesté 104 Les´nodorski, Bogusław 72n23 Lestko, Duke 24 Leszek, Duke 23 Łe˛ tocha, Rafał 141n2 Letters of a Polish nobleman to a German columnist see Briefe eines polnischen Edelmannes an einen deutschen Publizisten Leutus, Antonio 66 Lewandowska-Malec, Izabela 7, 99n10, 100n13, 104n30 Lex disciplinae 323 Lex Makarewicz see Makarewicz, Juliusz lex specialis derogat legi generali 102 liberum veto 6, 7 lingua franca language 5 Lis, Artur 18n14 Lisicki, Henryk 125n2, 127n6, 128n12, 137n33 Lisowski, Zygmunt 221n18, 222, 222n22, 226, 226n25 Lithuanian parishes 53–54 Longchamps de Bérier, Aniela (née de Werszowicz-Strzelecka) 187, 200 Longchamps de Bérier, Bronisław 200 Longchamps de Bérier, Franciszek I (1710–84) 188 Longchamps de Bérier, Franciszek (1969-) ix–x, xi, 5, 72n21, 101n15, 201, 201n34, 295n7, 307n42, 309n51 Longchamps de Bérier, Jan 187 Longchamps de Bérier, Roman x, 10, 187–201; contributions to legal scholarship 196–98; education in Lwów and Berlin 189–91; massacre of Lwów professors 198–200; role in Codification Commission of Republic of Poland 193–95; role in Jan Kazimierz University in Lwów 188–89; teaching in Lwów and in Lublin 191–93 Longchamps de Bérier, Kazimierz 200 Longchamps de Bérier, Zygmunt 200 longissimi temporis praescriptio 76 Lorini, Giuseppe 238n24 Louis I of House of Anjou see Louis the Great Louis the Great 49–50 love transcends legal justice 30–32 Lubran´ski Academy in Poznan 94–95 Łukaszewicz, Józef 22n25

Index 333 Lukowski, Jerzy 3n4 Lumen gentium 320, 321 Lutostan´ski, Karol 183n22 Lvov-Warsaw School see Lwów-Warsaw School Lwów-Warsaw School 238, 238n24, 245 Łysiak, Ludwik 132 Mably, Gabriel Bonnot de 115 Mackiewicz, Beata 203n4, 204n6, 215n36 Magdeburg law 68, 96, 112, 118 Magdeburg Weichbild (Ius municipale) 96 see Magdeburg law magister Vincentius see Kadłubek, Wincenty Majchrowski, Wojciech 151n30 Makarewicz, Juliusz x, 10, 34, 174–86, 189, 208n11; Christian background against sociological determinism 175–77; as codifier of law 177–79; as commentator of code 179–80; as representative of Polish intelligentsia 180–83; in shadow of two totalitarianisms 183–86 Makowski, Wacław 168, 168n35, 183 Malec, Dorota 8, 126n3 Małecki, Marian 268n9 Maleczyn´ska, Ewa 59n32 Malinowska-Kwiatkowska, Irena x, 11, 12, 95n1, 97n7, 100, 100n12, 101n14, 102n18, 104n27, 104n29, 105n32, 105n35, 107n37, 108n40, 108n41, 263–78; academic legacy 275–77; biographical information 266–69; career and work in Jagiellonian University 269–75, 278; influential historians of law for scholarly career 264–65; role in Jagiellonian University 265, 266 Malinowska, Irena Zofia Krystyna see Malinowska-Kwiatkowska, Irena Małłek, Janusz 68n11 man, nature of 141–45 Marcel, Gabriel 11, 248 Marchenko, Mikhail 199 Maria Theresa, Empress 316 Maritain, Jacques ix, 11, 248 Markiewicz, Henryk 88n24 marriage license in French law in the 16th–18th centuries see Pozwolenie . na małzen´stwo w prawie francuskim XVI–XVIII stulecia (MalinowskaKwiatkowska) Martínez-Torrón, Javier 2n3 Martin V (Pope) 39 Marxism 144, 265, 271n16

Marxist ideology see Marxism Marx, Karl 170 Maschat, Remigius 120 Matejko, Jan 6 Matusik, Marek 219n6, 221n14, 228n33, 228n35, 228n44, 229n45, 229n46, 230n51 McCarrick, Theodore Edgar 260 McDonald, Peter xi Mélèze-Modrzejewski, Józef 298n16 Melfi, Constitution of (1231) 276 Merchant of Venice, The 232 metaethical naturalism 242 Meyendorff, Alexander von 171, 171n41, 172, 173, 173n47 Mickiewicz, Adam 161, 161n14, 170 Mickiewicz, Aleksander 111n4, 122, 122n27 Miechowita, Maciej 133 Mieszko I, Duke 205, 229 Mieszko the Old, Duke 27 Mikołaj of Gorzków 61 Mikuła, Maciej 11, 33n42, 96n3, 132n23 Mikulski, Krzysztof 65n4 . millenarianism of Petrazycki 168–71 modus vivendi establishment, Wyszyn´ski’s role in 203, 214 Mohyluk, Mariusz 184n24 monarchia mixta 100 Montesquieu (French philosopher) 7, 115, 142, 145, 316, 316n22 morality 169; and law 163; moral decency and justice 224, 225 Mörsdorf, Klaus 320, 320n30 Morstin, Nina 232 Mortensen, Lars Boje 19n16 Mossakowski, Wiesław 71n20, 72n22 Motyka, Grzegorz 200n31 Motyka, Krzysztof 163n22, 164, 164n24 Najnowsza historia polityczna Polski 1864–1945 (Malinowska-Kwiatkowska) 264 Napoleonic Duchy of Warsaw 8 National Socialism 151 natural ethics 209 natural law: protecting person’s dignity 250–51; sui generis 176 Naturrecht und Natur des Rechts (Zeiger) 219 Nazi German totalitarianism 263–64 Nela see Longchamps de Bérier, Aniela (née de Werszowicz-Strzelecka) Nihil novi statute 80

334 Index Nikodem, Jarosław 52n12, 57n27, 61n38 Nitecki, Piotr 202n1 noncognitivism 242, 243 normative theory of Ziembin´ski 240–41 November Uprising 124, 130, 136 Nowak, Leszek 237 Nowe Drogi (New Roads) (Caro) 153 Nowikowski, Ireneusz 180n14 nullum crimen sine lege 184 objective values 229 Ochenkowski, Władysław 190 October Thaw 277–78 Odezwa bezstronnego obywatela do stanów Rzeczypospolitej wzgle˛ dem podatków 116 . Odrowa˛ z, Iwo 22 . Odrowa˛ z, Jacek 22 Oeuvre of Mikołaj Zalaszowski 95–97 Ohanowicz, Alfred 280 Ohryzko, Jozafat 111n6 Ołdakowski, Ignacy 122 O litewskich i polskich prawach (Czacki) 122 Olivecrona, Karl 164, 165n26 On Lithuanian and Polish rights see O litewskich i polskich prawach (Czacki) Opałek, Kazimierz 161, 161n17 ordo Ecclesiae 322 Organis´ciak, Wojciech 117n15 Orzechowski, Kazimierz 272n18 Orzelski, S´wie˛ tosław 87n21 Ossowski, Stanisław 142 Ostrowski, Teodor x, 7, 33, 110–23, 127, 127n8; biographical introduction 110– 12; Civil Law of Polish People 117–22, 123; issuing handwritten news-sheets 115–16; pedagogical, journalistic, and scientific activities 115–17; publishing work about agricultural and technical issues 116–17; translation of Blackstone’s Criminal Law in England 112– 15, 123; work on Stanisław Augustus Code 116 Osuchowski, Janusz 207n8 Osuchowski, Wacław 102n19, 103n22, 272, 297 Otto the Great 3 outline history of criminal legislation, An see Rys poste˛ pów prawodawstwa karnego (Helcel) outline of civil law theory, An see Zarys teorii prawa cywilnego (Stelmachowski)

ownership concept of law 287–89 . Ozóg, Krzysztof 34n44, 38n6, 59n34 pacta conventa see public law Paliwoda, Józef 289n31 Pan-Slavism 129 Pan Tadeusz see Mickiewicz, Adam Paradisio, Jacobus de 317 parricide, crime of 106–7 Partitioned Poland (1795–1918) 8–9 Pastor Bonus 259, 261, 262 Patkaniowski, Michał 127n7, 133n26, 264–65, 267, 268, 270, 273 Patryas, Wojciech 231n1 Pauli, Lesław 21n24, 265, 274n23 Pauline Fathers 50 Paul VI (Pope) 206 Paulus Vladimiri see Włodkowic, Paweł Paweł Włodkowic see Włodkowic, Paweł peace and love 302–3 Peczenik, Aleksander 165, 165n27, 172, 172n46 People’s Republic of Poland 11 “perfect community” concept 317 personalism 302 . Petrazycki, Leon x, 9, 157–73, 222; activism in Polish organizations 159–60; about civil law and legal policy 165–68; concept of legal policy 158–59; criticism on draft of German Civil Code 157; death of 171–72; ideas about law and jurisprudence 159; millenarianism of 168–71; psychological theory of law 158, 162, 165; as “Russo-Polish master” 159–62; in search of “Adequate Theory of Law” 162–65 . Petrazycki, Leo von see Petrazycki, Leon Petrucci, Federico 76 philosophy, legal theory and 241 Piast dynasty (966–1370) 3 Piechowiak, Marek 31n40, 147n18 Piekarski, Michał 104 Piekosin´ski, Franciszek 131, 132 Pietrzak, Michał 308n50 Pietrzyk-Reeves, Dorota 29n38 Pilarczyk, Piotr Miłosz 123n36 Piłsudski, Józef 181, 194, 263 Pius IX (Pope) 138 Pius XI (Pope) 150n29, 152, 204, 219, 222, 235, 288, 300 Pius XII (Pope) 204, 205, 214, 215, 320 Plato 31 Płaza, Stanisław 22n26, 96n2, 97n6, 99n11, 103n21, 104n25, 105n34, 108n39, 132

Index 335 Plisecki, Piotr 23n28 Płotka, Magdalena 28n37, 39n10 Pobóg-Malinowski, Władysław 263–64 Podgórecki, Adam 158n6, 168, 168n33, 169 pokolenie Kolumbów see Generation of Columbuses Polan-Haraschin, Julian 273n21 Polish-Lithuanian Commonwealth (1572–1795) 2, 6–8, 37, 63, 79, 80, 84, 89; binding principles in 98; Magdeburg and Chełmno laws in 118; social system of 115; and Zalaszowski’s Ius Regni Poloniae 95 Polish/Poland 2; baptism of 3, 14, 205; Code of Obligations 10, 187, 189, 195–97, 201; Codification Commission in 178, 226; under communism (1945– 89) 10–12, 263; conflict with Teutonic Order 37–38; contribution to global legal culture 13–15; fifteenth-century law of war doctrine 4; Golden Age of 5, 79; independence regained and lost (1918–45) 9–10; intelligentsia 180–83; Jagiellonian Dynasty (1385–1572) 3–6; Nazi Germany’s invasion of 220; Partitioned Poland (1795–1918) 8–9; Piast Dynasty (966–1370) 3; Polish-Lithuanian Commonwealth (1572–1795) 6–8; res publica 21; Romantics 170; school of agricultural law 289–90; shape of new legal system 217; Third Republic (1989–2020) 12–13 Polish Youth Union (ZMP) 235n16 politeia concept of Aristotle 317 political law, Zalaszowski’s contribution to 97–100 political theology 39–40 Poniatowski, Stanisław August 111, 127n8 Ponin´ski, Adam 121 Popiel, Paweł 128, 134 positive law 151–55 possession concept of law 287–89 Possevino, Antonio 90n28 Potocki, Adam Józef 134 Potocki, Andrzej 248n3 Pound, Roscoe 158, 158n8 Poznan´ School of Legal Theory 236, 237, 238 . Pozwolenie na małzen´stwo w prawie francuskim XVI–XVIII stulecia (Malinowska-Kwiatkowska) 277 Practical Logic (Ziembin´ski) 11, 236–37 practical philosophy 39–40

praescriptio 101 Prawo karne w kodyfikacji rosyjskiej z 1649 r. (Malinowska-Kwiatkowska) 276 Prawo prywatne w ustawodawstwie Królestwa Sycylii (Malinowska-Kwiatkowska) 276 Primate of the Millennium see Wyszyn´ski, Stefan primate teaching of Wyszyn´ski 209–10; in conflict with system 213–15; inalienable human rights and catalog 211–13; primacy of law of god and law of love 210–11, 216 Princeps legibus solutus 92 Principles of the Science of Social Economy, The 144 private law in Poland 14, 275; ecclesiastical 318; Helcel’s work in 132–3; in Kingdom of Sicily legislation 268, 276; Ostrowski’s work in 123; Petraz´ycki’s work in 157, 166; Starzyn´ski’ work in 188; systems of 221; Wincenty’s work in 21, 29; Zalaszowski’s contribution to 100–3, 106 privilegium fori (“privilege of forum”) 95–96 procedural law, Zalaszowski’s contribution to 100; criminal law 103–8; private law 100–3 Proces cywilny litewski (Korowicki) 122 Prost de Royer, Antoine-François 120 protectionism 141 Prussian law 68 Prutis, Stanisław 286n18, 289n27 Przegla˛ d Ekonomiczny (Economic Review) 141 Przybyłowski, Kazimierz 190, 191, 198n29, 199 Przybyszewski, Bolesław 50n8, 56n25 Przyłuski, Jakub 96, 118 Przysposobienie w polskim prawie rodzinnym (Stelmachowski) 291 psychological theory of law 158, 162, 165 public law 97, 98, 275; ecclesiastical 317–8; Helcel’s work in 133 Pufendorf, Samuel von 316 Quadragesimo anno (Pius XI)) 204 Quaestio de rebus Ecclesiae non alienandis (Zalaszowski) 95 Radon´ski, Karol 204 Radzimin´ski, Andrzej 65n2 Radziwiłł, Barbara 87

336 Index Radziwiłł, Lithuanian House of 102 Raina, Peter 214n35, 215n36 Ranieri, Filippo 195, 195n20 Rappaport, Emil Stanisław 198 “rational legislator” concept 245 ratio panaria Allensteinensis 71 ratio sacra in matrimonio canonico et civili (Grzymała) 219, 222, 223 realism 229–30 Redzik, Adam 10, 176n5, 186n30, 190n6, 190n7, 193n12, 194n16, 195n18, 198n27, 199n30 religiosum 27 religious freedom, right to 213–14, 216, 254–55 Republic of Three Nations 49 respublica mixta 100 revenge, announcement of 105–6 Review of Law and Administration, The journal 188 Ricardo, David 142 Richer of Reims 17 Richmond, Yale 234n12 Rietz, Henryk 64n1, 76n38 Righini, Giulio 66n7 rights of nations 255–57 right to life 253–54 Roboty około prze˛ dziwa albo uprawa lnu, konopi i innych ros´lin do prze˛ dzenia zdatnych (?) 116 Roeppel, Richard 134 Romaniuk, Marian P. 210n15 Roman law 25, 27, 33, 71–72, 99, 108, 112, 118, 219, 275, 304; as carriers of fundamental principles 26; concubinage in 224; important for modern society 301; Kraków-Warsaw school of 307–8; Kupiszewski’s contributions to 301–2; limitations 306; private law 302; role in Holy See 298–99; wisdom and beauty, peace and love, and 302–3; see also private law in Poland Romanowski, Andrzej 88n24 Roman, Stanisław 131, 132 Romero, Óscar Arnulfo ix Romiszewska, Maria 231 Rosmarin, Seweryn 190 Rospond, Stanisław 65n3 Ross, Alf 238 Roszak, Piotr 6n6 Rothschild, Joseph 188n2 Rousseau, Constance M. 7, 30n39 Rousseau, Jean-Jacques 115 Rozmaryn, Stefan 172, 172n45

Rozmowa do okolicznos´ci dzisiejszych przystosowana (A conversation adapted to today’s circumstances) 116–17 Rudnicki, Jan 10 Rudzki, Edward 80n3, 85n14, 88n23 Rulka, Kazimierz 220n12 Russian civil compilation, Svod zakonov 14 Ruthenian Uniate Church 90 Rys´, Grzegorz 55n21 Rys poste˛ pów prawodawstwa karnego (Helcel) 131 Rzyszczewski, Leon 131 Sachsenspiegel (source of German law) 96 Sacrae disciplinae leges 259 Sacri Canones 260 Saint Augustine see Augustine of Hippo Saint Croix, Jean Dumont de 115 Salic law 120 Salmonowicz, Stanisław 264n3, 265n5 salus animarum 322 Salus patriae suprema lex esto 305 Samsonowicz, Henryk 308 Sanacja 204 Sands, Philippe 189n4 Savigny, Friedrich Carl von 8 Saxon law 13, 96, 108, 112, 118 Scalia, Antonin ix Scheler, Max 11, 248 Schenk, Dieter 185, 185n29, 200n32 Schmidt, Filip A. 318 Schmitt, Carl 146n16 “school of the State Treasury’s Legal Office in Lwów” 190 Seckel, Emil 21n23, 190 Secondat, Charles Louis de see Montesquieu Second Polish Republic 263 “secular” sciences 323 secular law conflict with canon law 222 senatorial houses 96, 98 Service to Poland (SP) 235n16 sexual revolution 224–25, 229 Sigismund I the Old 69, 70, 80 Sigismund II Augustus 80–82, 85, 87–90, 92, 94 Sigismund III Vasa 5, 87, 90, 93 Silvesterpatent 135 Sitek, Bronisław 295n8, 300, 308n48 Sitek, Magdalena 12 Skarga, Piotr 79, 80n2, 92, 93n36 Skrzetuski, Wincenty 127, 127n8 Skrzyniarz, Ryszard 39n9, 42n20 Skupin´ski, Jan 177n7

Index 337 Słowacki, Juliusz 170 Smolak, Mark 238n23 Soban´ski, Remigiusz 12, 207n10, 208n12, 310–24; academic vita of 311–12; biographical information 310–11; challenges in church law 322–23; church as Societas Perfecta 317–18; church law in conjunction with Second Vatican Council 320–21; church law theory 318–19; Code of Canon Law (1983) 321–22; evolution of concept of church and church law according to 315; research areas 312–15 Sobieski, Wacław 80n3, 83n10, 86n18 Sobolewski, Zbigniew 219n6, 221n14, 228n33, 229n45, 229n46, 230n51 Sobornoe Ulozhenie 274 social contract 287 “socialist legal sense” 184 socialitas 302 societas perfecta, church as 317–18 sociological determinism, Makarewicz’s Christian background against 175–77 sociology 234 Sohn, Louis B. 189 Sójka-Zielin´ska, Katarzyna 308n50 Solidarism, Its Principles, History, and Applications (Caro) 141, 146 solidarist/solidarity/solidarism 141, 148, 150, 257–58, 262; of democracy 258–59; ecological 258; of economic model 259; systemic postulates of Leopold Caro 145–51 Sollicitudo rei socialis (John Paul II) 257 Sondel, Janusz 17n5, 21n24, 59n33, 129n16, 275n26 Sonderaktion Krakau, operation 264 Sorokin, Pitirim A. 161 Soto, Domingo de 316 Soviet and German Occupation in Lwów, Poland 198 spirituality of Jadwiga of Anjou 56–59 Splett, Carl Maria 203n3 Stabin´ska, Jadwiga 50, 50n7, 54n19, 62n42 Stalin, Josef 11 Staniewicz, Ewa 237n21 Stanislas de Scarbimiria see Stanisław of Skarbimierz Stanisław Augustus Code 116 Stanisław II August see Poniatowski, Stanisław August Stanisław of Skarbimierz x, 4, 34, 35–47, 61; conflict between Kingdom of Poland

with Teutonic Order 36–38; legacy of 38–42; role in Renewal of Kraków University 36–38 Starodawne prawa polskiego pomniki see Ancient Sources of Old Polish Law Starowolski, Szymon 120 Starzyn´ski, Stanisław 188, 189 state capitalism 151 statism 149 Statute of Lithuania 112, 118, 119, 121 statutory law 152–53 St. Bartholomew’s Day Massacre in France (1572) see Huguenots Stefko, Kamil 194 Stein, Edith 11, 248 Stelmachowska, Hanna 279 Stelmachowska, Wisława 279 Stelmachowski, Andrzej x, 12–13, 279–93, 306; constitutional law 290–91; contributions to social function of Catholic Church 281–82; death of 284; family history and education of 279–80; family law 291–92; foundations of legal thought 284–86; founder of Polish school of agricultural law 289–90; importance of civil law 286–87; ownership and possession 287–89; participation in religious practices 280; political activities 282–83; scientific and teaching achievements 283–84; work at University of Wrocław 280–81 Stelmachowski, Bronisław 279 Sternstein, Antoni Zygmunt Helcel von see Helcel, Antoni Zygmunt Stoczewska, Barbara 135n29 Stroba, Jerzy 237 Stone, Daniel 80n4, 85n17, 87n22, 91n34 Stone, Elaine Murray 217n2 Stopka, Krzysztof 57n27 Story, Joseph ix, 188 Strzelec, Paweł 180n14 Strzelecka, Anna 57n29 Studies on the Essence of a Legal Person (Longchamps de Bérier) 191, 196 Studium Generale in Kraków 48, 62 see Kraków Academy Suárez, Francisco 316 “sublime Christian ethics” 169 subsidiarity principle 258 S´widzin´ski, Konstanty 128 S´wieboda, Wojciech 53n15 S´wirydowicz, Kazimierz 231n1, 237, 237n20 . S´wizek, Klemens 19n15, 19n18

338 Index Swoszowski, Jan 118 Symocatta, Theophylact 73 System Prawa Prywatnego (system of private law) 287 Szafran´ski, Wojciech 116n11, 116n12, 121n23 Szczekna, Jan 61 Szczerbicz, Paweł 118 Szeptycka, Anna 234n15 Szroeder, Paweł 75n33 Szujski, Józef 80n3 Taubenschlag, Rafał 296, 297, 297n14, 297n15, 300n21 Tazbir, Janusz 88n24, 93n38 Teilhard de Chardin, Pierre 293, 293n39 Teodorowicz, Józef 153 Teutonic Knights see Teutonic Order Teutonic Order 58, 68; 1521 complaint of Copernicus against 68–69; conflict with Kingdom of Poland 37–38; Włodkowic’s role in arbitration with 42–43 Theory of Church Law (Soban´ski) 313 Thieme, Hans 71, 71n19 Thomson, Samuel Harrison 48, 48n2 Till, Ernest 188, 190, 191, 194–95 Timasheff, Nicholas S. 158, 159, 160n11, 161 “time immemorial” (praescriptio immemorabilis) 102 tumultus 106 tutor-pupil model 29–30 Ubaldis, Baldus de see Baldus de Ubaldis Uchan´ski, Jakub 84 Ulanowski, Bolesław 131, 132 Ulpian 72, 77, 101 unintentional guilt 105 Union Act (1569) 80, 89–91 Union of Brest see Union Act (1569) Union of Krewo (1385) see Act of Krewo (1385) Ubryk, Barbara (Affair) 138 United Nations General Assembly 248 Universal Declaration of Human Rights 255–56 Uppsala Notebook 73 Urrutia, Francesco J. 312 Uruszczak, Wacław 90n31, 96n4, 104n26, 131, 131n20, 131n21, 132n23, 265n4 usucapio 101, 102 Valois, Henry de 5, 83, 84, 91 Vanney, Alejandra 6n6 Varela, Antonio María Rouco 317n26

Vasa, Sigismund see Sigismund III Vasa Vatican Council, Second: church law in conjunction with 320–21; church law theory in 318–19; see also Catholic Church velvet revolution 257 Veritatis splendor (John Paul II) 250 Vetulani, Adam 121n22, 264–65, 272, 272n20 Vilnius Cathedral 53–54 virtue, expressions of 31 visuality 145 Vitoria, Francisco de 42, 45–46, 316 Vladimiri, Paulus see Włodkowic, Paweł Voltaire 115 Volumina Constitutionum 112n6 Volumina Legum 110–11, 118, 121, 133 Von Ickstatt, Jan A. 318 Vytautas the Great 52 Wachowiak, Mirosław 75n33 Waga, Simon Teodor 111 Wałe˛ sa, Lech 269 Walicki, Andrzej 160, 160n12, 163n21, 164, 164n25, 165n29, 170, 170n39, 170n40, 171, 171n42 Waligórski, Marian 190 Wallenrod, Konrad von 58 war, eradication of 255–57 Warsaw Confederation 6, 97, 88–9 Warsaw Uprising 233, 280 Was´kiewicz, Hanna 202n2, 212n25 Wa˛ sowicz, Marek 176n6, 182n18 Watzenrode, Lukas 65 Wdowiszewski, Zygmunt 80n3 Weigel, George 247n1, 254n26, 255n27, 259n42, 260n46 Weinfeld, Ignacy 190 Wells, Leon Weliczker 200n33 Wereszycki, Henryk 263n2 Western Schism 54–56 Weyssenhoff, Józef 121 Wieacker, Franz 298 Wielki, Kazimierz see Kazimierz II the Great Wielopolski, Aleksander 128, 135, 136 William of Habsburg 50, 51 Windscheid, Bernhard 190 wisdom and beauty 302–3 Wisłocki, Juliusz 267 Wiszniewski, Michał 33, 33n41 Witte, John, Jr. xii, 1 Władysław IV, King 110 Władysław Laskonogi, Duke 22 Włocławek, Diocese of 220

Index 339 Włodkowic, Paweł x, 4, 28, 34–36, 47, 62; activities in service of Polish Crown 42–43; argumentation on fundamental idea of preserving peace 45; conflict between Kingdom of Poland with Teutonic Order 36, 37–38; legal legacy 44; papal authorization 42; role in Renewal of Kraków University 36–37; scholarly work at Kraków Academy 43–44; views on equality of Christians and non-Christians 45–46 Włostowic, Piotr 19–20 Wojciech of Jastrze˛ biec 56 Wojciechowski, Paweł 12 Wojtkowski, Julian 76n36 Wojtyła, Karol Józef see John Paul II (Pope) Wołodkiewicz, Witold 301n24, 302n25, 303n29 Wolter, Władysław 176, 176n4, 178n11, 180, 180n15 Wrede, Marek 80n3 Wright, Georg Henrik von 238 Wróblewski, Stanisław 222, 297 Wrocen´ski, Józef 310n1 Wronkowska-Jas´kiewicz, Sławomira 231n1, 237, 245n47 Wste˛ p do nauki prawa cywilnego (Longchamps de Bérier) 193 Wste˛ p do teorii prawa cywilnego (Stelmachowski) 280, 281, 285, 286, 293 Würzburg School 207, 318 Wyrwin´ska, Karolina 4 Wysz, Piotr 54, 60 Wyszyn´ski, Stefan x, 11, 16n3, 53n14, 202–16, 218, 309, 311; academic work 202–3, 206–9, 215–16; as archbishop of Archdiocese of Gniezno and Warsaw 204–5; biographical information 203–4; editorial work for Ateneum Kapłan´skie 203, 204; establishment of modus vivendi 203, 214; journalistic work 204; primate teaching 209–15; role in establishing working commission 205–6 Zabarella, Francesco 42, 43 Zabarellis, Franciscus de see Zabarella, Francesco Zabłocka, Maria 299n20 Zabłocki, Jan 295n10 Zakrzewski, Andrzej 123n33, 123n34 Zalaszowski, Mikołaj x, 7, 94–109, 272; of Ius Regni Poloniae characteristics 95, 97–108; Oeuvre of 95–97

Zalewska, Janina 218 Zamiatała, Dominik 203n4, 204n6, 215n36 Zamoyski, Andrzej 114 Zamoyski, Jan 6, 84, 85 Zarys teorii prawa cywilnego (Stelmachowski) 281, 286 Zavala, José María 260n46 Zawadzki, Hubert 3n4 Zawadzki, Roman Maria 38n7, 40, 40n12 Zawadzki, Stanisław 115n10 Zdanek, Maciej 19n17 Zdrójkowski, Zbigniew 110n1, 115n8, 118n16, 121n21 Zdziennicki, Bohdan 289n30 . Zeglicki, Kazimierz Arnolf 110–11 Zeiger, Ivo 219 Zeissberg, Henryk 21n24 . Zełaniec, Wojciech 238n24 Zepa, Joanna 247n1 Zielin´ski, Maciej 237, 241 Ziembin´ski, Sr., Zygmunt 231, 231n2, 233n9, 238n28 Ziembin´ski, Zygmunt x, 11–12, 231–46, 313; academic and teaching career 235–37; account of law in normative conception of sources of law 240–41; Christianity in Ziembin´ski’s writings 241–42; ethical views 241–42; experiencing organized persecution of church in Poland 235n17; legal norm 240; legal theory and philosophy 241; life during Second World War 232– 33; life in early years 231–32; metaethical views 242–43; methodological foundations for legal scholarship 239; moral views concerning particular legal issues 244; personal ethical views 243–44; personal moral stand 242; public activities 237; student years in Poznan´ 233–35; themes and contributions in legal theory 238–39; theory of law as theory of legal phenomena 239; views concerning moral content of law in general 244–45 Zienkiewicz, Krystyna 279n1 Zinkl, Gabriele 321 Znamierowski, Czesław 234, 238, 238n24, 240, 245 Znaniecki, Florian 234 Zobowia˛ zania (Longchamps de Bérier) . 187, 196, 201 Zukowski, Przemysław M. 126n3 . Zurowski, Marian 321n35