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1
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Co zostaje po uczonym prawniku?

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Longchamps de Bérier F.
Forum Prawnicze
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2020
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issue 4 (60)
7-16
EN
Questions and answers of the paper concern academic achievements of law professors seen at least two decades after their death. What remains of a law professor: good character, disciples and students, specificity of university genealogy, important research topics, work and writings, institutions created, international research friendships? Who can be considered a great lawyer? What are the criteria to asses it?
2
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Finansowa analiza prawa a znaczenie prawa rzymskiego

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Longchamps de Bérier F.
Forum Prawnicze
|
2013
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issue 5 (19)
6-16
EN
The Law and Finance analytical approach, also known as the Legal Origins Theory, blames Roman law for creating worse conditions for economic growth than common law systems. Civil law is described, contrary to common law, as a legal system in which the country’s corporate law or commercial code originates in Roman law. To understand the differences amongst the emanations, i.e. the plurality of legal solutions and regulations within the civil law tradition, one has to be aware of their origins. It is necessary to perceive and understand the spirit of Roman law, which is a ‘Roman law in action’ – the Roman legal experience. Critics of the Legal Origins Theory stress the need for more experts in Roman law across society. There is a continuous need for in-depth knowledge of Roman law. As a subject, basic Roman law should be accessible to all and not only to lawyers, including economists, sociologists, historians, social philosophers, specialists in cultural studies, etc... It is not sufficient to have a limited group of experts, but rather to have independent centers for Roman legal studies. Roman law is not only a part of legal history, but is present in our legal systems due to their legal tradition. Further, its presence is also due to the reasonableness and economic utility of Roman law.
3
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Polityczny podział wzdłuż linii podziału religijnego? Dwa nowe orzeczenia Sądu Najwyższego Stanów Zjednoczonych

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Longchamps de Bérier F.
Forum Prawnicze
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2014
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issue 3 (23)
3-15
EN
In two recent decisions the Supreme Court of the United States interpreted two religious clauses of the First Amendment. The legitimacy of legislative prayer was not questioned, because of the decision in, Marsh v. Chambers, but Town of Greece, N.Y. v. Galloway proved in 2014 that the prayer does not need to be neutral in its content. Mentioning Jesus Christ and not a “generic” God is not unconstitutional. For Europeans, the discussions resemble controversies around the presence of the cross in public places like parliaments, classrooms etc. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court agreed that even for-profit corporations could have objection of conscience against generally applicable law, if a challenged regulation is not the least restrictive mean of furthering compelling state interest. The objection was to health insurance coverage for abortion-inducing drugs and devices, as well as related education and counseling. The corporations in the case were closely held, therefore there was no doubt whose objection of conscience was discussed. In Poland, objection of conscience of individuals was questioned in the public debate during last months.
4
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Sądowa instytucjonalizacja małżeństwa osób tej samej płci w Stanach Zjednoczonych

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Longchamps de Bérier F.
Forum Prawnicze
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2016
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issue 6 (38)
3–15
EN
The paper reviews the cohesion of argumentation of the majority in Obergefell v. Hodges and the accepting critique from outside the bench. It tends to address democracy and federal issues in deciding by the Supreme Court in a matter of public legislative debate all over the states, as under common law jurisdictions ‘judges have power to say what the law is, not what it should be.’ Indeed, the true questions are what constitutes marriage, and who is to decide what constitutes marriage? Who then is entitled to confer the constellation of benefits that the states have linked to marriage?
5
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Prawo a moralność i polityka na przykładzie zagadnień bioetycznych

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Longchamps de Bérier F.
Forum Prawnicze
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2015
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issue 6 (32)
14–21
EN
Law is not autonomous in respect to morality or politics. It is evident when considering the experience of last seven years of bioethical debates in Poland, and legal discussions concerning regulating IVF in particular. The debates prove almost all the weaknesses of legal positivism. Therefore, three interconnected levels of analysis – moral, political and legal – are to be consulted thoroughly before undertaking any legislative efforts. All of them need to have objective foundations. Nonetheless, compromises on the two latter contentious issues are to be legitimately expected in a pluralistic society. Law is only an instrument of interests and values in the hands of experienced politicians. They are to be respected as professionals but found responsible for regulations in force, as politicians are not immune from being subjected to moral evaluation.
6
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Prawo rzymskie jako wskaźnik otwartości środowiska prawniczego? Panorama głębokiej europejskiej prowincji intelektualnej

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Longchamps de Bérier F.
Forum Prawnicze
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2019
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issue 6 (56)
98–103
EN
What is the purpose of a study to present comprehensively the condition and social impact of civil law lawyers in 18th century England? The study provides a broad panorama of a far European province, particularly in relation to its legal and intellectual character. A province is an intellectual, not a geographical term. Yet, the panorama should not be art for art’s sake. A comparative study based on it might be instructive, if a legal researcher following it becomes well acquainted with the foreign jurisdiction and its legal history. There will always be a need for learned diagnoses and for the openness of lawyers’ minds. A study of Roman law, if introduced and exercised as practical legal history, has proven to provide a very useful measure of diagnostic accuracy and to overcome provincial thinking in law.
7
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Stałość a zmienność szczegółowych regulacji prawa spadkowego Niepodległej

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Longchamps de Bérier F.
Forum Prawnicze
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2018
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issue 2 (46)
3–24
EN
The paper presents an evolution of the law of succession in Poland since 1918. Five specific areas of regulation are examined: entitlement to succession, acquisi- tion of the inheritance, intestate succession, legitim and reserved portion, and liability for inheritance debts. The constancy of succession regulations was not obvious as there were five jurisdictions in private law 100 years ago in Poland. The unification of 1946 and the codification of 1964 kept what Polish legal practice and doctrine accepted from the European tradition of private law. The tradition based on Roman law was not recognized in Poland before it was partitioned in 1795. Roman law appeared in Poland with the code of Napoleon brought by his armies to the Duchy of Warsaw in 1808, and with codes of Austria, Russia and Germany. The three empires divided Poland between themselves for the long 19th century. After gaining independence in 1918, Poland accepted the European legal tradition of private law as its own. It happened not by one act, but by the silent acceptance of private law that remained in force after the partition. Changes of notions, values, institutions or regulations in the Polish law of succession were kept limited for the last 100 years, as the stability of private law was guaranteed by the acceptance of Roman legal tradition.
8
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Chcieć i rozumieć. Amerykańskie przykłady w dyskusji o budowaniu dwustronnych relacji państwo – Kościół

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Longchamps de Bérier F.
Forum Prawnicze
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2011
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issue 2 (4)
26-35
EN
The cooperation between government and religious denominations is possible and desirable even in the so called ‘pure separation’ between Church and State in the United States of America. The cases discussed are: Zobrest v. Catalina Foothills School District (1993), Board of Education of Kiryas Joel School District v. Grumet (1994), Agostini v. Felton (1997), Mitchell v. Helms (2000); Zelman v. Simmons-Harris (2002), and Hein v. Freedom From Religion Foundation, Inc. (2007). The opinions of the justices suggest that the United States Supreme Court became open to permissible accommodation of religion which is to be distinguished from impermissible establishment. They seem to be convinced, differently than in 1980ties, that interaction between Church and State is inevitable. Not every presence of religion in the public sphere is unconstitutional. It has been established that the government cannot participate in religious indoctrination, discriminate one denomination over another or create an excessive entanglement. In Europe a lay fundamentalism is in attack. It openly struggles with the presence of religion on a public forum, trying to eliminate it from democratic states under the cloak of neutrality or tolerance. The examples taken from the American legal discussion on bilateral relationship between State and Church prove such an attitude unrealistic and disadvantageous for the enlightened society. On the contrary, as Pope Benedict XVI stressed in England last September, religion helps democracy to find the ethical foundation for political choices. And the history demonstrates that democracy without values turns easily into an open or thinly disguised totalitarianism.
9
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Antydyskryminacyjna dyskryminacja? Granice polityki rasowej zakreślane przez Sąd Najwyższy Stanów Zjednoczonych

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Longchamps de Bérier F.
Forum Prawnicze
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2010
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issue 1 (1)
12-23
EN
Two recent cases of the United States Supreme Court seem to diverge from the line of precedent commenced with Brown v. Board of Education (1955). The 5 to 4 decisions deplore discriminatory effects of the antidiscrimination policy. Justices are aware of the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. Affirmative action is still constitutional, but the heart of Brown is to achieve a system of determining admission to public schools on a non-racial basis. Remedial actions and regulations have to be narrowly tailored: race might be a component and only one of the factors. If not, the system threatens to defeat its own ends. Therefore, decisions of local authorities can neither use African-American children as tools of desegregation compliance, nor lead to adverse effect on white firefighters. Judicial activism or judicial restraint analysis is political and improper to evaluate the new Court’s opinions. But consciousness that every judicial nomination is essential should grow not only in the United States but in the Polish society as well.
10
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Prawo do krzyża w przestrzeni publicznej. Odpowiedź stowarzyszeniu humanistów

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Kudła W., Longchamps de Bérier F.
Forum Prawnicze
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2019
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issue 4 (54)
19–37
EN
The paper focuses on the right of citizens who are believers and nonbelievers to the Cross’s presence on public land or in prominent public buildings. The au- thors support arguments used in the 2019 case of the United States Supreme Court American Legion v. American Humanist Association by outcomes of legal analyses presented during the 2011 controversy concerning the presence of the Cross in the chamber of the Polish parliament. There seems to be no logical con- nection between the presence of the Cross in public places and the government’s impartiality in religious matters. The Cross does not threaten the impartiality as it fulfills an important social function: it calls for readiness to sacrifice in the name of the good of other people. The right to the Cross becomes an expression of sincere concern for the common good and of true humanism. The people’s expectation that their right to the Cross is respected proves to be both legitimate and constitutional in Poland and in the United States. It is true particularly when the Cross had already been present on public land for a significant period of time. An act of establishing the Cross in public space is different in its nature from demolishing the Cross by cutting its arms or removing it completely from any public space.
11
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Wątpliwości co do oceny czasopisma prawniczego a spór o istotę prawa

63%
Dajczak W., Longchamps de Bérier F.
Forum Prawnicze
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2016
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issue 3 (35)
3–22
EN
The Polish Ministry of Science and Higher Education made public a new evaluation of legal journals at the end of 2015. How much algorithmic and quantitative criteria of the evaluation are relevant to what is expected from legal journals? The answer could be tendered only by a resolution of the dispute on the essence of law. In order to start with the general criteria concerning the evaluation of legal science, the authors focus on two issues. They present how productive the tradition of Roman law is as against contemporary continental legal systems, and how autonomy and pragmatism dominated the development of the tradition of American common law. They prove how irrelevant declarations of journals founders are to the actual discussion in the journals: they are never to be an instrument of research policy as observed in longer periods of time. Bibliometric success of American journals, e.g. “Harvard Law Review” and “Yale Law Journal”, proves that the autonomy of legal science always prevails over dreams of treating legal journals in a purely instrumental way. The conclusions concentrate on how the journals make participants of disputes on the essence of law moderate and better instructed. The article is written for the fifth anniversary of “Forum Prawnicze”.
12
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Prawo rzymskie w czasach dekodyfikacji

63%
Longchamps de Bérier F., Dajczak W.
Forum Prawnicze
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2012
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issue 2 (10)
8-22
EN
The phenomenon that is known as decodification, and the related Europeanization of particular national legal systems, has triggered mechanisms for discussing the process of creating the law which resemble the way in which Roman jurisprudence and ius commune lawyers functioned. Framing the legal order within a deductive system has not been entirely successful. Roman law is the legacy of legal thought, and it allows us to illustrate how law reflects values and what those values might be. Looking at the history of law from this perspective seems important in the context of the decodification process, and we can prove this by using of two examples. One of these is the principle of family solidarity which restrains the freedom of testation. The second is the rationale for distinguishing incorporeal from corporeal things, when deciding on the possible objects of property rights. The article takes into consideration the fact that including the Roman and civil law tradition in the discussion about new order of private law in Europe provides more flexibility for legal regulations. The authors still believe that private law is a system of norms with its own internal logic and is based on fairness and justice. Legal practice proves that this way of thinking is not an anachronism. References to the tradition of Roman law clearly show that the controversy concerning the new order revolves around the sense and the extent to which private law can be treated instrumentally.
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