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1
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Czy ten, kto zwyciężył B, zwycięża tego, kogo B zwyciężył? Jedno z pytań o algorytmizację prawa w świetle europejskiej tradycji prawnej

100%
Dajczak W.
Forum Prawnicze
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2017
|
issue 5 (43)
3–19
EN
The title refers to the Latin maxim si vinco vincentem te, vinco te ipsum which was introduced into legal reasoning by late medieval jurists and applied widely in legal debate till the 18th century. Calling competitors mentioned in the maxim by the letters A, B, C, we do obtain the following series: A > B, B > C, hence A > C. However, in legal debate the application of the maxim has been detected in a perplexed case which represents the series A > B > C but C > A. The discussion of ius commune jurists concerning the application of the maxime has some features similar to the debate in natural science. A leader in such a style of legal reason- ing was Leibniz. Consequently, this debate is perceived and presented as a test of the possibility of the algorithmization of legal reasoning in specific issues of the conflict of rights. The paper concludes with a recommendation of how this legal experience can inspire the designing of expert programs that can support legal documents in electronic format.
2
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If One Who Overcomes B Overcomes Those Who Were by B Overcome? One of the Questions About Algorithmization of Law in Light of the European Legal Tradition

100%
Dajczak W.
Forum Prawnicze
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2018
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issue 4 (48)
6–22
3
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Błędy poznawcze a tęsknota za użytecznością nauki prawa rzymskiego

100%
Dajczak W.
Forum Prawnicze
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2013
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issue 3 (17)
9-20
EN
The vitality of the Roman law is a consequence of its utility for the development of the legal science since the Middle Ages. The 19 th century brought about two significant distinctions. First of all, the application of the Roman legal texts building a new private law system (the German Pandectist school) became the opposition to the science of the applied Roman law (ius commune). Second of all, the opposition between the ahistorical, although practical, application of the Roman law and the historical charm embedded in the ancient legal texts was clearly noticed. As a consequence of replacing the received Roman law with the civil law codes, the question whether, and how, to study Roman law usefully and how to teach it remains topical. Psychology suggests that, as a result of cognitive biases, the 19 th century understanding of the utility of the Roman law exists even today. The author believes these errors are worth overcoming. The combination of studies of the ancient Roman law and the European legal science based thereon shows why one should recognise the rationality of existence of a certain uncertainty in the private law. It teaches us what is of fundamental importance for coping when faced with such an uncertainty.
4
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Poprzez prawo rzymskie ponad komparatystykę

100%
Dajczak W.
Forum Prawnicze
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2014
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issue 2 (22)
7-16
EN
The title of the paper is a paraphrase of Jhering’s sentence “Through the Roman law but above the Roman law”. Putting this statement into the context of Savigny’s and Windscheid’s opinions on the future role of the Roman law the author has explained the Jhering’s dictum as an expression of the realistic approach to the workability of the Roman law for the jurisprudence. Essential for bringing about the aforementioned workability is – according to the author – the link between Roman law and legal methods. In this perspective the author discussed waning authority of Roman law at the faculties of law and little success of recent proposals to bring Roman law and comparative law closer. The main message of the paper is that Roman law can be useful for modern jurisprudence if we revive the tie between Roman law and legal methods, a connection which, as it is submitted it may be reasonably argued, may be revived due to significant potential of comparative reasoning for judicial practice in the time of globalization. The crux of any formative steps to that end shall be forging changes in legal education, which predominant focus should be rested upon legal problems. Inasmuch as systematic digitalization of these problems, subject to initial detection and centuries-long discussion within the civil law tradition, and assimilation of modern judgments from different jurisdictions can be put together in a uniform database, these developments are capable of bringing this legal experience closer to the practical legal debates.
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Kodeks zobowiązań jako lekcja metody prawnoporównawczej

100%
Dajczak W.
Kwartalnik Prawa Prywatnego
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2014
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vol. 23
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issue 4
829-854
EN
Polish Code of Obligations which became binding law in 1934 has been called by Rannieri in 2009 the “first truly European codification of civil law”. This Code introduced to the Polish territories – in place of German, Austrian, French, Russian and Hungarian laws that were in force in different parts of the country – unified law of obligations. The method of comparative law was essential for the drafters of Polish Code of Obligations. Taking these facts into consideration two questions will be answered in the paper: - What does the experience of preparatory works of Polish Code of Obligations teach us about the method of comparative law; - How can this legal experience make Polish legal culture more attractive for the current European debate about the law of obligations. What is essential for this analysis is the rationale of the Code prepared by its main reporter in the Codifications Commission Roman Longchamps de Berier and foreign jurists opinions provoked by the promulgation of the Code ( e.g. Capitant, Mazeaud, Josserand). This paper focuses on three issues relevant for the method of comparative law on the basis of the rationale of the Code: relation between the method of comparative law and national identity of private law; the role of historical arguments for the method of comparative law and the impact of values on the method of comparative law. The successful unification of law of obligations in the interwar Poland and involving this experience in 20th century thirties into discussion about unification of private law in Slavonic countries can inspire modern legal debate in all these points. Firstly, the national identity of private law call for the distinguishing between national and international unification or modernization of the law of obligations. In the first case the identity of law is an argument supported the protection of interests of national economy. The best way for the international unification of law of obligations leads however through evolutionary growth of harmonization capability of national nation orders. Secondly, the role and style of historical arguments in the rationale of Polish Code of Obligations shows the weakness of the faith into the linear progress of law, argues for of the widening of historical reflection in the comparative debate beyond the codified law. Thirdly, the intuitive valuation is a natural feature of method of the comparative law. Reasonable choice of deeply analyzed local judicial practices supported by other historical arguments can make this method more transparent. The experience of Polish unification of the law of obligations, forgotten for decades, offers many specific solutions that clarify the three principles expressed above. By this reason the learning of this experience should be recommended as a good lecture for the participants of modern European debate about law of obligations.
6
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JUSTYNIAŃSKIE DIGESTA JAKO INSPIRACJA ARGUMENTACJI PRAWNICZEJ. OD KÓRNICKIEGO RĘKOPISU DIGESTÓW PO WSPÓŁCZESNE SPORY O GRANICE INTERPRETACJI

100%
Dajczak W.
Pamiętnik Biblioteki Kórnickiej
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2017
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issue 34
11-32
EN
Justinian’s Digesta as an inspiration for legal argumentation. From the Kórnik manuscript of the Digest to the contemporary disputes on the borders of interpretation The manuscript of Justinian’s Digest from the late decades of the 2th century belongs to the most precious items kept by the Kórnik Library. This paper presents an analysis of the relationship between the European legal tradition and the still important issue of the boundaries of legal interpretation, based on the manuscript. The author’s starting point was the contradiction between the prohibition of the interpretation of the Digest as imposed by Justinian and the opinions of classical Roman jurists confirming the significant role of interpretation in law which are collected in the Digest. The first part of the paper contains an analysis of glosses to Justinian’s prohibition in his constitution Omnem and glosses to the concept of interpretation at the beginning of the second title of Justinian’s Digest in the manuscript and in the later collection of the glossators’ output (Glossa Magna). Opinions of leading European jurists from between the 14th and the 19th centuries associated with Justinian’s Digest and related to the boundaries and methods of legal interpretation are discussed in the second part of the paper. Both fields of legal experience show a similar trend of strengthening the role and flexibility of legal interpretation. The relationship between the 12thcentury manuscript and the specific position of jurists in modern European societies is perceptible.
7
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Venire contra factum proprium nemini licet – Changing Fortunes of the Maxim Demanding Constancy in Conduct

100%
Dajczak W.
Forum Prawnicze
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2019
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issue 3 (53)
33–47
8
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Wątpliwości co do oceny czasopisma prawniczego a spór o istotę prawa

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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”.
9
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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.
10
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Dyskretny urok dawnej Europy. Wspomnienie o profesorze Bertholdzie Kupischu

44%
Dajczak W.
Forum Prawnicze
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2015
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issue 6 (32)
111–112
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