1 Introduction
The coming of the codes into force in 1965 coincided with the petrification of the partyâs concept of the contents and the principles of the modernization. The above had a significant impact on the system of private law and the respective fates of its two modernization currents. For the authors created the conditions for both, albeit it remains to this day an object of dispute in modern legal scholarship whether those were the right conditions and whether the codifiersâ intention was the harmonious development of both currents.1 It is a fact, on the other hand, that the modernization processes involving the three codes took a direction that was unexpected both to political decision-makers and to a large part of the legal circles.
Until the eighties of the 20th century, no significant changes to the codes followed. Their interpretation in the adjudication of the courts and in scholarly works also was stable. An exception has to be made for a scholarly controversy as to the Civil Codeâs principle of unity of state property (national property). The generality of its language was interpreted by some commentators as the codifiersâ having left room for the use of different solutions in the provisions giving effect to the principle. That proposition was not heeded. The consequences were of significant import, locking out the opportunity to reform that element of the system of private law which had proven to be the most defect.
The modernization in social and economic affairs pursued in accordance with the assumptions of Marxist-Leninist ideology suffered from methodological flaws. As a result, it failed to achieve itâs purpose, and at the same it deformed whatever parts of the legal system it was supposed to reform. The modernization impaired the functioning of the instruments it attempted to leverage, among them the Civil Code and the Code of Civil Procedure (the processes discussed here did not affect the application of the Family and Guardianship Code. This is because the solutions introduced to the codes subjected the economic relationships governed by civil law not only to the provisions of the codes themselves but also to provisions located outside of the codes and disposing of the same matters differently.
The scale of the use of such extra-code provisions and the fact that those were provisions enacted by the bodies of the executive branch, had the result that the main effect of the codes on a considerable part of civil law was reducible to the existence of a code provision as a basis for a reference to other legislation. Accordingly, this was a not case, known to other legal systems of the 20th century, where the notion of decodification is associated with a weakening of the codeâs primacy in the hierarchy of sources of law through the enactment of detailed statutes regulating civil-law relationships, along with the development of a body of previous court decisions and the use of non-classic source of law such as in labour law.2 Poland of the 1965â1989 period underwent a real, far-gone and far-reaching fragmentation of the countryâs system of civil law. The use of the term âdecodificationâ as a descriptor of the status and position of the civil code and code of civil procedure in the legal system of the time has a solid basis and is well documented by sources after 1990.
The majority of the extra-code legislation governing civil-law relationships was in the nature of administrative rather than civil law, even though the enacting administrative bodies used the terminology of civil law, for example by referring to contracts. In the absence of a free-market economy, such provisions applied to entities of any kind, as it regulated civil-law relationships between state entities, economic relationships between state entities and natural persons, as well as a certain part of civil-law relationships with natural persons on both sides.
The above led to the deformation of the legal character of a great portion of legal relationships. The developments did not at the time become the subject of academic studies in civil law.3 Theoretical studies in civil law continued to emphasize the distinguishing characteristics of civil law, such as the equality of the parties, entitlements, and the lack of compulsion.4 The attitude taken by the members of the Codification Commission, who continued their work as active scholars or in the justice system, was a possible contributing factor to this. In their publications, they analysed the legal system primarily through the perspective of code norms, leaving the surrounding legal environment out of the discussion. Another contributing factor could be the difficulty in researching the enormous collection of administrative provisions regulating civil law dispersed throughout the entire legal systems.
The codifiersâ professed principle of uniformity of civil law was legal fiction already at the time of coming into life of the Civil Code and of the Code of Civil Procedure. Some among the codifiers did not directly address this fact, contenting themselves, as Aleksander Wolter did, with expressing their view that the economic relationships arising in a money-goods economy âand therewith based upon the principle of the equality of the parties, viz. civil-law relationships, ought in principle to be subjected to the same legal regime, irrespective of whether socialized, individual or personal property underlies them.â5
Other lawyers involved in the codification, such Jan Winiarz, argued for the soundness of the law applicable at the time; according to their explanation, the principle of uniformity of civil law was for objective reasons unable to find full reflection in reality, for there always existed additional regulation of civil-law relationships outside of the code. Our jurist omitted from his train of thought the circumstance that the activities of the administrative bodies in pursuance of the lawmaking delegation from the code had resulted in the emergence of fundamental differences between the laws and obligations of the entities whose legal transactions continued to be regulated by the code on the one hand and those whose relationships were governed by other provisions, albeit the code also contained regulation applicable to them. Winiarz reduced this fact to the observation that: âthe principle of uniformity of civil law does not imply the homogeneity of its solutions for all legal relationships.â6
Jan Wasilkowski, by contrast, asserted that the principle of uniformity of civil law was upheld, arguing that alongside classic civil-law relationships there also existed a new type of relationships combining in themselves the characteristic features of civil and administrative law.7 The source for his view was the inclusion of the unity of state property (national property) in the Civil Code, whereby socialized economic units were divested of legal autonomy in civil-law relationships and subjected to administrative law instead.
The ideology derived from Marxist-Leninist assumptions introduced two characteristic solutions to the Civil Code. One of those was used in practice to consolidate in the hands of the central administration the exercise of the property rights held by the state, the other one to impose limitations on the exercise of the rights held by individuals. Politics, on the other hand, determined the marginalization of the impact of the Civil Code on private law, so that ideological goals would be pursued on the path of legislation pertaining to administrative law. The latter de facto regulated a considerable part of the contents of civil-law economic relationships (limitations on the exercise of private rights with regard to farms, contained directly in the Civil Code, were an exception, although even there, provisions located outside of the Code were also applicable). In the case of Code of Civil Procedure, the judicial path was excluded or restricted for some categories of civil cases. As a result, a considerable body of civil-law relationships were exempted from the application of the recodified norms of procedural civil law.
The joint outcome of all of these factors taken together was the taking of a stronger position within the legal system â on the authority of the codes â by legal solutions transforming civil-law relationships along with their regulation far more extensively than the codes did. The tenor of the change contradicted equally the classic principles of civil law, as well as Polish legal tradition.
The Polish United Workersâ Party [pzpr] worked hard to build its image of a moderator of social and legal affairs. However, it failed to introduce legislation consistent with that image. The new provisions, billeted as socialist law, were oppressive (curtailment of private law) and economically irrational (regulation of civil-law relationships involving state-owned and socialized parties). The fact of their use attested to the emptiness of the constitutional promises of social justice, popular democracy and socialist rule of law. The socialist model of modernization through law entered on an idle run of sorts, demonstrating the full extent of its deficiencies.
In the Polish culture of private law, part of the broader Roman culture, the governing principles had been the equality of the parties and the ability to exercise rights accompanied by obligations and balanced in due proportion, as a consequence of the regulatory method used. Mentally associated with private law were the concepts of individual rights and freedoms, the sense of which was expressed by, among others, the principle of freedom of contract. By contrast, the law applied on the basis of the Civil Code, because of the references to provisions located outside of the Code, to which the codifiers set no limits, followed a different axiology.
That axiology was culturally foreign to Polish society. In the new law, obligations predominated over the rights, at times marginalizing them altogether, as was to be experienced both by state-owned enterprises and by subsistence farmers. The principle of equality of the parties was either completely or largely eliminated from the new pattern of regulation of civil-law relationships. The administrative bodies enacting the provisions governing this part of the legal system followed typically administrative methods, which were only partially adapted to meet the specificity of civil affairs as a new subject-matter to regulate, without substantial modifications to previous practice.
From the perspective of the citizens, such actions caused the majority of society â two thirds of it the large-industry working class â to contend on an everyday basis with the irrationally regulated functioning of state-owned enterprises; on the workersâ leaving the workplace to become consumers, the errors in the legal system would become even more apparent. The remaining one third in the 70s of the 20th century were the former peasants, i.e. small-scale farmers daily confronted with far-reaching limitations on the exercise of their private rights already envisaged by the Code but in practice much more frequent due to the special provisions enacted by the administration.
In consequence, in social reception, the socialist law lacked the qualities promised by the pzpr. Although, classic civil law remained rational and continued to provide a sense of agency, its use was confined only to a limited scope of civil-law relationships. An important circumstance here was Polish societyâs historical experience of a diversity of legal systems imposed by the partitioning powers, uniquely positioning it to compare and evaluate the effectiveness of the new legislation. In that comparison, as far as civil-law economic relationships were concerned, the socialist law placed at the bottom. During the interwar period, before the unification of substantive civil law was completed, different parts of Poland were governed by the agbg, bgb and Code of Napoleon, as well as Polish Law and Volume x of Digest of Laws of the Russian Empire, the latter of which with only a narrow scope of application.
The unification completed in the aftermath of World War ii introduced a more modern private law compared to its predecessor, which was adapted to societyâs national identity â a task facilitated by societyâs homogeneity following the border changes and population transfers â as well as reflecting the social and economic transformations of the beginning of the latter half of the 20th century. Its 1964 replacement with a codification of substantive law and recodification of procedural civil law, as well as recodification of family and guardianship law could be regarded as a progressive development only for the last-mentioned part. The modernization potential of the two first-mentioned codes was originally significant but marginalized by decodification.
The cited circumstances were significant to the social reception of the codification and to such elements of legal culture as the level of confidence the citizens would place in the state, in the law and in each other. Certain scholars reduced the critical outlook of some of the citizens on the law of time to resentment. One such scholar, Andrzej Stelmachowski, who in 1989 would become involved in the reconstruction of the legal order, in 1969 suggested to the citizens that they should leverage the potential of the codified family law and of the provisions guaranteeing the protection of their personal property:
Of course, the significant intensification of extra-economic coercion has its negative sides â it paralyses individual activity and inflicts a number of losses, triggered if only by the need for the constant overcoming of inhibitions. Hence the longing in many for the restoration of the old system (â¦). Personally, I do not think such a longing can be satisfied in the foreseeable future.8
In the seventies and eighties of the 20th century, the future ideological and axiological motivations of the new reformers were taking shape. The first, in 1980â1981, compiled partial drafts intended to restore at least some legal principles without dislodging the foundations of the socialist system. That was connected with the phenomenon of societal resistance to the government and its understanding of law at the time. Those developments were unfolding under the Aegis of the first independent mass social movement in the socialist states of this part of Europe, which was the Solidarity trade union. Attempts at reform were blocked by the establishment of martial law in 1981.
The aforementioned mixed positive-negative experience, together with the observation of continued deformation of the law in 1982â1988, would serve society in 1989 with the demanded change of the political system from socialism to liberal democracy. That led not only to amendments of the Civil Code and Code of Civil Procedure but also safeguards against the repetition of the brand of decodification remembered from the socialist system. A new system of Polish private law was thus prepared, adapted to societal expectations of the time but also to the stage of functioning of codes in the era of post-modern law in which the legal systems of states in other parts of Europe had already found themselves.
The later part of this chapter discusses more closely the various factors affecting the course taken by that process of change. Those show the influence of the legal circumstances resulting subsequently in a paradigm shift with regard to the limits of the reforms, in the eyes of the majority of society. For not only economic considerations but also the perception of the law9 prompted the prevalent societal determination to face up to the challenge of systemic change as the first among all communities confronted with a similar situation. That occurred when the state still had not only its socialist system in place but also the
It is also worth emphasizing the relationship between the consequences of the pzprâs handling of the codes and the position taken by scholars in private law, part of those the codifiers and part, gradually, the lawyers and jurists who would influence in different forms the changes enacted in the nineties of the 20th century.
2 The Modernizer in Need of Modernization
The leadership of the pzpr would often address society with progress updates on the building of the socialist foundations of the state and law.10 The method of presentation implied the omnipotence of the party, as well as bilocation. The party had the ability to discern properly the laws of history and the determinants of socio-economic processes, it was claimed. That special type of knowledge, inaccessible to anyone else, justified the monopartyâs position in the political and the economic system,11 guaranteed the optimal protection of the interests of the proletariat and prevented the partyâs alienation. There was to exist a direct link between the â(party â A.M.) apparatus and the working people exercising the oversight of the apparatus.â12
In reality, those in power persisted in imagining a metaphysical connection between the economy and politics,13 understanding neither of the two spheres and ignoring the laws of sociology.14 By multiplying economically defective reproduction patterns, they compounded the negative consequences of their actions15 and failed to take lessons from similar problems occurring in other socialist states.16 They kept returning to the same âsocializationâ projects and using methods that failed to achieve the expected results. Amid the socio-economic crises, claims such as the following were still made even in 1981: âthe application of Marxist analysis to social processes is one of the main prerequisites for the partyâs correct political course.â17
The doctrinarian interpretations of the ideology were not changed by the introduction of new technologies to industry and the expansion of the âsocial baseâ. It consisted in the creation of the image of the party leadership as an amalgamation of ideology with managerism, along with the frequent shifting of accents from catchwords of the dictatorship of the proletariat to symbols and gestures invoking the values of the national identity and the latterâs harmonious symbiotic relationship with the socialist political system. That was still accompanied, however, by reminders of the monopartyâs role of initiation and interpretation: âThe pzpr, being a class party, is simultaneously a whole-national force (â¦) cultivating the most precious threads of our history.â18
In the new narration, the previous co-existence of socialism only with the progressive elements of plebeian tradition, avoided a similar kind of selection in the official message of the seventies, amid assurances that the development of the socialist state was benefiting from traditions originating from a diversity of social origins:
The cultural policy of Peopleâs Poland proceeds from the Leninist concept of the existence of two cultural currents in the national society. From the recognition of and respect for the progressive traditions of both the culture of the former ruling classes and the plebeian circles, as well as the need to put to advantage both of these currents of cultural heritage in the shaping of a new type of socialist society.19
The verbalized politico-social unity of the nation and the state implied an equally strong involvement of the party in the development of the economy, as well as the protection of the ânational imponderablesâ.20
The actions were neutral towards such elements of legal tradition as customary law21 and customs. The former had next to no significance for Polish society, while the ability to invoke custom22 was incorporated into the Civil Code, as well as the preceding legislation, but in practice the citizens availed themselves of the opportunity only sporadically. The conclusion drawn from studies conduct at the time into the interpretation of the law by society and by the courts was that dynamic interpretation prevailed and historical interpretation was absent from general practice.23
The economy was still managed through a model developed near the end of the fifties.24 The associated paradigm incorporated not only historical materialism but also the assumption, adhered to by the pzpr leadership even in the seventies and the eighties, that the
A doctrinal foundation for the continued functioning of private law was supplied by a handful of provisions of the Constitution of the Polish Peopleâs Republic of 1952,27 unofficially redacted by Joseph Stalin before their enactment by Polish legislature.28 Some of the provisions were repressive in their tenor, and others, capable of objective interpretation, were not followed in practice.29 Although the party exerted less coercion in the everyday lives of the citizens than in the fifties, it still controlled numerous developments through the law. The constitutional basis for this type of activity was also added to the Constitution of the Polish Peopleâs Republic in 1976,30 through reference to the pzpr as the âguiding force in societyâ.31 The rationale justifying this type of power drew upon â simultaneously proclaimed in the same instrument â civilizational progress taking the Polish state from the âpeopleâs democracyâ stage to the âsocialismâ stage.
While the discrepancies between theory and practice were mounting, society would be advised of the transitional nature of such cases,32 one caused by the significant economic dynamic of socialist Poland. The accompanying caveat was that the inconsistencies would âcontinue to appear for a longer time ahead.â33 According to this narration, socialism presented greater challenges than capitalism. Although both of these systems derived from Roman law, the latter had to confront the outgoing feudal system; socialism was building a new legal tradition. An additional guarantee of the pzrpâs sustained control of the âlogic of historyâ would be the flexible adaptation of the assumptions of Marxism to the Polish state and law â albeit always in keeping with ideological principles. Such activities were referred to as âpractical doctrineâ.34
The realistic evaluation of the ideological foundation of the stateâs political system does not paint a healthy picture. Selective quotations from the works of the authors of historical materialism were used, and their very abundance was meant to imply that socialism continued to developed economic, legal and other theories. Meanwhile, the pzpr was in a state of intellectual stagnation. The philosopher, Leszek KoÅakowski, dubbed the partyâs ideological contents a fossil. For the historian, Andrzej Friszke, who studied this aspect at a later time, it was a âdead ritualâ.35
Since the sixties, scholars in the social sciences36 had been sounding the alarm that doctrinairism was thwarting any chance of realistic modernization, for which there was a place in a socialist state. In 1979, a number of academics, social activists and representatives of culture compiled proposals for a reform, which preserved the constitutional principles of the system and which were ignored â Report on the state of the Republic and the paths leading to its emendation.37 In 1980, following a wave of mass protests from the citizens on a scale greater than before, the government entered into an understanding with representatives of society, agreeing to initiate some reforms.38 In 1981, the leadership of the pzpr, withdrew from the previous declarations. Martial law was imposed,39 certain civil rights were suspended, intervention in economic affairs escalated,40 and some of the subsequent âordinaryâ legislation sustained the restrictions.41
The rationales for the decisions claimed that the reforms were thus being protected from the deformation that could ensue in circumstances of social âlooseningâ.42 Continued modernization along Marxist-Leninist lines was the proper course, since the cause of the existing and prior crises was found not in the principles but in the fact of their violation.43 Accordingly, the party remained âactive and creativeâ, and the citizens should desist from protesting.44 The partyâs motivation was consistent with that of the majority of society:45
We desire a great Poland â great in its heritage, culture, forms of social life, and position in Europe. The only path to this goal is socialism accepted by society and continually enriched with the experience of life. Such is the Poland we will build. Such is the Poland we will defend,
announced the leader of the pzpr.
The doctrinal paradigm was confirmed by the Sejm: âit is a matter of prime import to strengthen the state and its structures and for the socialist democracy to continue to grow.â46 The Soviet interpretation of one of the theories of Friedrich Engels was thus being invoked. He expected the dying down of the state during the last stage of development of socialism.47 The Soviet interpretation joined to it the necessity of reinforcing the state before its end comes. Hence, there was no contradiction between declarations of intensifying the dynamic of the socialization process on the one hand and the acquisition of new powers by the authorities of the state and its bureaucracy.
3 The Codes in the Shadow of Decodification
The codification completed in 1964 transformed the system of civil law. The change took on a smaller scope and partially different nature compared to the assumptions adopted by the Codification Commission or those inferred from the language of the norms contained in the code. Part of the norms of the Civil Code were not used because the events regulated by the relevant provisions of the Code ceased to occur.48 For the norms that were applied, some of the disputes were removed from the purview of the courts.
Apart from norms derived from native legal legacy, the Civil Code contained norms modelled on Soviet institutions. Those had been criticized by some legal thinkers already prior to codification, when discussed in the context of the draft Civil Code in 1954. During the life of the 1964 Code, a small number of norms49 won more influence on the legal system. Their popularization relied on the norms of the Civil Code determining the scope of application. The submission of some of the relationships governed by the Code to other provisions, enjoying the status of lex specialis was also considered.
The authority to take legislative action exceeding the executive provisions that merely narrow down the implementation of a code norm was delegated to administrative bodies, either by express mention or by reference to âapplicable provisionsâ. The decision as to the use of the delegation, as well as the scope of the Code regulation to be deviated from, also was left up to the administrative bodies. They could omit to use the delegation or use it selectively, or leverage it fully. The third possibility was chosen.
Combining multiple elements in their structure, the exclusions were not always readily visible from the level of the Code and statutes dealing with civil-law relationships.50 They extended to obligation relationships, as well as real relationships (i.e. relating to real law), involving state-owned and socialized entities,51 as well as, to a lesser extent, legal relationships among individuals. The margin of discretion left to administrative bodies was large enough to put them in a position to change the law without amending the Civil Code. For any content of a mandatory contract, or the introduction of another limitation or restriction, it sufficed to invoke the principle of central planning. The activities unfolded in the absence of an administrative judiciary, and the judicial review provided by the common courts, even though civil-law relationships were at issue, was infrequent and often futile, because the Supreme Court did not have a homogeneous position as to the binding effect of a decision of the administrative court.52
Some members of the Codification Commission ignored this fact, noting, as Aleksander Wolter did, that the Civil Code âcorrespond[ed] to the assumptions of socialist lawâ, with the âbest proof of thatâ being the small number of amendments of the Code.53 Taking into account legislative initiatives contrary to the rule of law, such a claim could even, Ã rebours, be confirmed. The Civil Code corresponded to the principles of the functioning of a socialist state, for it set no limits to its own non-applicability.
Some scholars not involved in the codification works downplayed the scale of the decodification and its results. The applicability of the principle of uniformity of civil law was emphasized. When discussing, in succession, each of the provisions enabling matters to be regulated outside of the code, phrasing suggesting a small scope of such a solution was used. For example, adverbs such as âonlyâ, âsolelyâ, âexclusivelyâ, as well as blurring the lines between the terms âhomogeneityâ and âdifferenceâ.
This is how the principal characteristic features of the regulation of civil-law relationships was presented by Jan Winiarz, secretary of the Codification Commission. At a time of the administrationâs making of the maximum possible use of the Codeâs delegations, the most important ones, covering practically all of the economy outside of farming, was described as being applicable âexclusivelyâ to the âoperative sphereâ. That sphere covered all types of contracts and in rem rights, while in the ânon-operativeâ sphere civil law was not used.54 Wolter, in turn, explained that a socialist system of law constituted a single whole that âcould not possibly be divided with sharp lines into specific branches.â55
According to the authors of the Civil Code, the heterogeneity of regulatory principles under the rule of one and the same code was also justified by two objective circumstances of material nature. The first one was the stateâs constitutional foundation in the form of a heterogeneous structure of property, requiring separate regulation of socialized, as opposed to non-socialized property. Such national circumstances were said to include the specificity of Polish economic affairs. Those were the anachronicity of the contents of a certain part of legal relationships involving individuals, the level of social consciousness in some of the individuals being party to such relationships, as well as the high development dynamics of legal relationships involving socialized entities.
Legal relationships characterized by such unequal modernization levels required the use of a suitable regulatory model. Regulating all of them comprehensively in a single legal instrument would have required its redaction to take a complicated form. For that reason, a different structure was employed. The rationale alleged that the structure used served to preserve the autonomy of the regulation of civil-law relationships involving entities belonging to the socialized economy. In reality, however, the provisions located outside of the Code resulted in a separation between the legal relationships governed by them on the one hand and the Code on the other hand.
The argument of anachronicity of the contents of part of legal relationships was not applied to the assessment of the Codification Commissionâs regulatory method itself. To explain the retention of such type of norms in the new code, it was argued that they marked the legislatureâs response to such social needs as would soon expire on their own, precisely due to their anachronicity. That referred primarily to peasant farms. Their existence was described as a product of the social consciousness of the farmers, developing more slowly than that of labourers. In the sixties, the partyâs leader spoke of an immaturity hampering the farmersâ acceptance of the modern organization models offered by the socialist system56 (collectivization). In the seventies, the assessment was mitigated by noting that part of society remained susceptible to imperialist propaganda.57
The point of the rationale referencing a âtransitional periodâ was also to justify the non-codification of economic law. In that case, the obstacle was not too slow but rather too fast modernization. Such a high speed of change in the civil-law relationships in the state-owned economy58 required different and oftentimes flexible methods of regulation that the Civil Code could not provide.
4 The Consequences of Decodification
4.1 The Rights of the Entities Belonging to the State-Owned/National Economy could always be Replaced with Obligations
The theory of ownership, and with it also other economic rights, presented as an autonomous one from the perspective of legal history, became the symbol of socialist modernization. The constituent parts of that theory were the principle of unity of state property (national property), the administrative management of material goods through a system of central planning, and the marginalization of private ownership simultaneously with the preservation of personal property.
The Civil Code regulated the status of state-owned property only with a few norms. Besides the universal duty to provide a higher level of protection for state-owned property,59 identified as an interpretative directive extending to all provisions of the Civil Code,60 the principle was introduced for state-owned enterprises to have only limited legal capacity within the limits of which they could exercise the right of management of their own affairs.61 Neither the Code nor any other legal instrument defined the terms. At the same time, the Code authorized administrative bodies to lay down the rules for the exercise of the stateâs ownership.
According to some lawyers and jurists, the legislature introduced an innovative and effective institution to Polish legal order, whether in economic or in social terms. The terms identifying such types of property were to be the evidence of the fact.62 A modernizing function was also attributed to the limitation of the autonomy of state-owned enterprises.63 Consolidating the rights in a single entity â the state â provided the optimum protection of the sovereignâs rights. Jan Wasilkowski thus argued in favour of the concept: âThere can be no doubt that the legal holder of national property can only be the socialist state, as an organization encompassing the whole nation.â64 His simultaneous presence in the Codification Commission and in the Supreme Court contributed to the copying of this position by court decisions, resulting in further difficulties for scholarly debate on the subject as referred to the functioning of civil-law relationships.
Other lawyers and jurists, such as Stefan Grzybowski, noted that in their opinion, the Commission had foregone the complete analysis of the consequences of the transplantation of the categories of constitutional law to civil law. Thus, it bypassed a problem âmanifesting itself so sharply that one could not possibly fail to see it.â65
The right of management, which was to replace multiple other rights, was so avant-garde that scholars and the judicature never succeeded at the narrowing down of its contents.66 According to scholars, it did not pose a significant problem, because the new, limited legal capacity67 set the framework for the civil-law relationships undertaken by the enterprises. Their task was to execute, together with the others, nationwide central economic plans taking advantage of suitable legal solutions such as mandatory contracts. The attribution of a lower number of rights and a greater number of obligations was explained by the lack of antagonisms and particular interests in a socialist economy. By contrast, new needs in the area of co-ordination and co-operation surfaced in such an economy and called for new legal solutions also in respect of civil-law relationships.68
Combined with decodification, doctrinarian interpretations of the principle of unity of state property69 deprived state-owned enterprises of rights in their civil-law relationships70 and opened those relationships to administrative law. In the latter area of law, the enterprises held no rights whatsoever, only performing duties imposed by administrative bodies on the basis of provisions located outside of the Civil Code, to which the Code made reference. The result of such status of state-owned enterprises in civil-law relationships was that the workers, too, became the object of new administrative commands and prohibitions. According to the above-cited theory of property, the working class ought to be the owner of state property, whereas in reality, through the above-described mechanism, it itself became owned.
To provide an explanation for the various doubts relating to the links between civil-law relationships involving state property on the one hand and administrative law on the other hand, the principle of legal continuity was set aside. In line with the concept, the avant-garde nature of socialist property called for a research methodology as innovative as the law being analysed. Responding to the new economic circumstances, legal science ought to work out a different demarcation between private and public law, as well as civil law versus all other branches.
The traditional taxonomy of branches of law and legal sciences, dating back to a different socio-economic formation, was not fit to constitute an element of the legal superstructure of the socialist state. âFor socialism follows its own, separate way,â according to Jan Wasilkowski.71 That particular characteristic also enabled a focus on the methodology, for which the co-author of the Civil Code and principle author of the provisions governing ownership himself argued. In a likewise manner he responded also in the seventies to theoreticiansâ and practitionersâ complaints of protracted difficulties with achieving a cohesive regulation of the rights and obligations of the entities put in charge of the socialist stateâs property.72 The creation and further development of new types of synergies among civil, administrative, financial and criminal law was his example of the expansion of the research perspective that was to lead to the elimination of such type of problems.
The projects pursued by the socialist state were creative and self-contained, for which reason they used the law as an instrument but not in its existing models. Resorting to traditional terminology and concept and causation networks resulted in a developmental slowdown or even, as some lawyers and jurists argued, entrenched the errors of capitalist legal science, now also in socialist jurisprudence.73 The effect of substantial difference or even contrast between the socialist legal system and the systems of the preceding formations, according to Wasilkowski, could only have the effect that âthere [was] no continuity in legal sciences.â Accordingly âthere [was] no need for the socialist lawyer, in their research work, to reach into the past in order to achieve the understanding and scientific cognition of their contemporary law.â74
The consequence of this path of reasoning was the adaptation of the theory of the modernization of the legal system to the pattern applied to the economic system. The essence of that pattern was summarized by the sociologist, Jadwiga Staniszkis, who noted that real socialism had borrowed the methodology of economic activity from capitalism while excluding the âeconomic sense of the various actions and concepts composing that methodology.â75
This matter was viewed differently by some of the authors of the Civil Code. According to them, the foundations of a new methodology for the theory of state property that is at once national property were defined by the Constitution of Polish Peopleâs Republic of 1952.76 Without contradicting the reference, some lawyers and jurists contended that stopping there without going any further would be of no assistance to solving the problems faced by the theory of civil law. Without, for political reasons, being able to state explicitly that invoking the propaganda contents of a constitution dating from the Stalinist period did not serve to develop the theory of ownership of property but to petrify it,77 lawyers and jurists made attempts to shift the discussion onto the level of the instruments of administrative law and the Civil Code.
According to them, the first thing to be determined was whether the object of the analysis should be only the contents of the legal norms or also their ordering and association with corresponding concepts.78 Taking the latter position, they pointed out that conceptual definition and systematization could help break the impasse confronting research studies into the theory of state ownership.79 One of the examples of the emerging situation was the analysis revealing that the interpretation of the principle came down to creating a special type of abstraction, in which the state owed any obligations only to itself alone, as well as with regard to the everyday transactions of civil law.
They adduced examples to show that those authors who claimed that all matters had already been explained were failing to back such claims with evidence or frame proper conclusions, or even that in lieu of analysis of the relevant institution they contented themselves with platitudes such as âadaptation of old form to new contentâ.
The following is the summarization offered by Stefan Grzybowski, who, together with some other legal minds, made some efforts to discuss the crucial problem arising for all of the economic law of the time from the lack of clarity and consistency in the Civil Code: âOne cannot restrict the discussion of national property to the scarcely illuminating constatation that legal personality is nowadays no more than a relic of juridical conservatism. It is fitting for the problem of personality to be explained.â80
Some of the participants called for the verification of the bases for the concept of restricting the legal autonomy of state-owned enterprises. In their opinion, backed by the argument of the economic situation prevailing at the time, the modernization potential of a model relying solely on procedural centralization of legal transactions involving state-owned enterprises had already exhausted itself.81 The rationale for according ownership also to the stateâs legal person came from the desire to strengthen the effectiveness of state-owned enterprises. The proponents argued that there was a space in the Civil Code for such a solution. They argued that the Codification Commission had deliberately redacted the general provisions on state property in such a way as to leave the path open to the modernization of the details.82
Critics included Jan Wasilkowski and Stefan Rozmaryn. Citing the Constitution of the Polish Peopleâs Republic and its supremacy over the Civil Code, they regarded the proposal as an attempt to modify the underlying principles of the political system. With that in mind, they cited not only the direct constitutional regulation of property but also the thesis identifying the principle of unity of state property (national property) with democratic centralism.
All important matters relating to the exercise of the ownerâs rights with regard to state property were resolved by the Civil Code, they argued. If the Code did not directly tie the new principle to the traditional institution of private law, one should not create such a link. Doing so would contradict the ideal of progress guiding the Codification Commission in its drafting of the Civil Code.
It was not the task of jurisprudence, according to Wasilkowski and Rozmaryn, to transform the existing law in a way turning back its development. The Civil Code did not tie the principle of unity of state property (national property) to the classic civilist theory of ownership featuring such categories as legal personality, capacity for legal transactions or the triad of the ownerâs rights, which the owner can transfer to a possessor. Polish legal science, therefore, ought to develop the new theory of civilist unity of state property, with the state alone as the owner and the other entities only as holders of a right of operative management (administration).
The cited type of argument was characteristic of the criticism of the principle of legal continuity in private law in situations in which the defective functioning of the new institutions and principles became increasingly common knowledge. The invocation by some of the co-authors of the Civil Code of the necessity to reject the dogmata of bourgeois legal science, served their purpose well when they were arguing for the limits on change to be lifted and advancing the cause of legislative reform. However, when after the removal of whatever had been outdated the time came to create new institutions, they restricted themselves to merely setting the direction for change. They left that task of allegedly secondary importance to other lawyers and jurists. When other representatives of legal science took up the challenge and the results of their studies confirmed the existence of gaps and contradictions within the theory of unity of state property, Wasilkowski contented himself with citing passages from the Constitution of Polish Peopleâs Republic.
This is one of the examples of the treatment of the socialist property theory resting on historical materialism as a category of âtruth revealedâ. Its ideological basis capable of providing an explanation for âeverythingâ,83 including rules governing changes to legal relationships, became the origin myth not only for the new quality of law but also its scientific foundations. The first study on ownership under the Constitution of 1952 was written in 1953 and, until the eighties, its theses had been successively reiterated not only by its author, Jan Wasilkowski,84 but also by other scholars in civil law. The contents of the works on the subject, taken together with the socio-economic situation known to the authors, warrant the assertion that the socialist theory of ownership led some research currents into a politico-legal trap. In the meanwhile, the same scholars produced valuable analytic and synthetic studies in substantive and procedural civil law concerning priniples and institutions other than state property. When researching this particular category of ownership, by contrast, they avoided embarking on the verification of its components relating to the economy because: âeconomic criticism (of the socialist state â A.M.) is followed by criticism of all other possible fields of life.â85
Another element of the same trap was the simultaneous search for a solution to the existing problem without deviation from doctrinarian interpretations of the ideology. The result of these attempts led this part of the legacy of Polish jurisprudence to the same state in which Soviet legal science had already been. It was described as follows: ârightly opposed to barren normativism, the theory spawned its own dilemmas not so easy to unravel.â86
The ideologically motivated elimination of all elements of classic legal tradition from the state-ownership theory, in a situation in which socialist legal science did not have alternative to offer, could not last as long as the political decision-makers assumed. The stagnation led to a succession of socio-economic crises.
Responding to both of the circumstances, some jurists, including Walerian PaÅko and CzesÅawa Å»uÅawska, involved themselves in 1980â1981 in works on citizensâ drafts of statutes to regulate the ownership of property. To their predecessors, those legal minds posed two questions: (i) Which criteria identify the characteristic features of national property if this cannot be determined on the basis of the Constitution of Polish Peopleâs Republic and Civil Code or learned from the jurisprudence? (ii) Is what is presented as national property in a socialist state a right of ownership at all?
CzesÅawa Å»uÅawska. Born in 1930, linked to the Kraków University of Economics; in 1981â1992, member and vice-president of the Social Economic Council; active participant of the Solidarity Centre for Citizensâ Legislative Action in 1981; member of the Civil Law Reform Commission (from 1986) and Civil Law Codification Commission (from 1996); Justice of the Supreme Court (1991â1999).
source: archive of the Academy of Economics in Cracow
4.2 Limitless Changes to Provide Law
The decodification also had an impact on civil-law relationships between individuals. The basis for this area of legislative activity came from the intention to adapt private rights to two purposes not articulated with sufficient strength by the norms of the Civil Code. The first, ideological and long-term purpose, was the elimination of the existing private rights. The second, the need for the fragmentary elimination of private rights with the preservation of some of their economic or social functionalities. The aforementioned activities intermittently curtailed and short-term-reinforced a certain part of private rights depending on the authoritiesâ needs of the moment and social responses.
The regulation of private rights on the level of the Civil Code was presented as the modernization current introducing solutions enabling some of the rights to be exercised with the protection of the public good also in mind. The above applied to small-scale commodity ownership and related in rem rights and obligational rights, as well as inheritance rights. The rights had already been divested of their capitalist nature on the basis of other legislation blocking their access to certain means of production. One of the members of the Codification Commission, Aleksander Wolter, when giving a presentation of the contents of the new norms, even went as far as distinguishing as one of the Codeâs principles the âprinciple of consideration for the needs of individual propertyâ and emphasized the importance of the interpretation of the applicable provisions including the âprotection extended by the stateâ to the individual farms owned by the working farmers. Albeit using the word âstillâ, he emphasized that this particular type of ownership âplay[ed] an important roleâ in Polish countryside.87
A different concept of modernization was pursued on the level of the provisions located outside of the Code. It was founded on limiting the rights and increasing the obligations of private owners so as for the fructus of a thing to be mostly seized by the state. Political decision-makers interpreted the definition of ownership as the strongest of rights à rebours, arriving at the conclusion that it was capable of retaining specific functionalities selected by the authorities irrespective of whatever modifications it may have undergone. In this case, the innovation came down to disputing the rules of economics and expanding onto rights relating to farms, trades and crafts and small-scale services, as well as rights applicable to buildings and apartments. The language of the provisions of inheritance law became so complicated that not only farmers but even scholarly jurists specialized in inheritance law experienced difficulties with the interpretations.88
The adopted assumptions were to be pregnant with consequences for society, the economy and law. This was attested by a brief overview of the condition in which legal relationships of key importance to private law had found themselves. The peasant farmers â beneficiaries of the socialist political system according to the propaganda â fought a daily struggle to retain the right to their land89 and achieve a production volume sufficient to cover their minimal existential needs. The additional burdens and limitations imposed in the name of modernization of the countryside were an economic anachronism. The contents of the new private law on farming were always presented as an issue of âparticularly complex nature.â90 The purpose of the provisions was to achieve the socialization of the agriculture â unanimously regarded as one of âthe most difficult tasks when building socialismâ.91
The agricultural reform popularized the independent possession of land but, contrary to the provisions applicable at the time, did not entail the title.92 In parallel, limitations were imposed on the size of real property (between 7 and 15 h depending on the region.),93 already previously restricted by the provisions governing the agricultural reform, and the power to divest ownership or possession was expanded, now on the basis of an individual administrative decision interfering with every form of commerce (sale, inheritance and division). The abandonment of the principle of freedom of contract affected agricultural products and means used in agricultural production. The institution of mandatory supplies and standard-form contracts were used alternatingly. Official prices were lower than the costs of production,94 while fiscal burdens95 and financial penalties for non-compliance with any of the numerous obligations imposed on farmers were high.
The practical application of this set of provisions, only some of which were placed in the Civil Code, resulted in a gap between the legal and the factual states of affairs. Due to the restrictions, many of the farmers were unable to formalize their rights to their farms. The situation was regularized in part only in 1971 and 1982,96 at each time following societal protests in the preceding year. The scale of the problem is illustrated by the number of more than 2 million farmers who obtained title to their land only after many years. The gap also occurred between ownership and independent possession, because farmers in physical control of real property were divested of the freedom to make disposals and collect the fructus, and sometimes even the use of the components of a farm.
As a result, extensive farming had to be used and farms consistently decreased their size, preventing the achievement of a rational production volume. That thwarted the political assumption of the cost-free achievement of large fructus by the state from the rights exercised by the farmers. This was noted by some legal scholars, including Jerzy Ignatowicz, who stated that some of the provisions governing transfers of farming land were having the opposite consequences to what had been intended, due to their âdrastic natureâ, some being âtoo extremeâ.97
A gap was also experienced by the theory of social progress. Farms were operated under the ideological and political pressure of constitutional assumptions making the existence of independent farms conditional. In categorical terms, Jan Wasilkowski proclaimed such farms to have no future, because even within the environment of the social economic system, they were not going to become a new economic and legal âqualityâ.98 Simultaneously, announcement were made of the modernization of the countryside through new legal provisions applied to them, some of which were subsequently withdrawn upon meeting the farmersâ opposition.99 The farms, meanwhile, retained the possession of anywhere from three fourths to four fifths of the farming acreage.100
A symbol of the modernization, now combining private law with the ideal of social solidarism, was to be the regulation of the legal affairs involving buildings and apartments in the cities. Introduced in the postwar realities of the late forties,101 the relevant provisions remained the law on the books until the end of the 80s of the 20th century. They imposed restrictions on the disposal of the property, as well as its use and the drawing of the fructus; they also abolished the principle of freedom of contract. At the time of their enactment, the rationale pointed toward the need for
the rational utilization of the apartment resource, diminished as a result of the war, as well as methodical regulation of public housing needs until such time as the reconstruction of damaged cities and settlements may ensure sufficient space for public institutions and satisfy the needs of the citizens.102
Several decades later, the Civil Code regulated the ownership of housing properties and the lease contract, but the latter institution was not used at all. Its place was taken by the public administration of apartments,103 still in use in 564 towns in 1970. In accordance with detailed provisions, the right of third parties to inhabit multi-apartment private houses and the value of payments to be made on this account were administratively regulated. The result was the lack of sufficient income to finance repairs. In the eighties, this type of property underwent economic decapitalization. Deprived of the use or benefit of their properties, in practice the owners could not even sell them, although there was no official prohibition.104 According to one of the scholars of private law at the time, Andrzej Stelmachowski, the regulation of the rights of the owners of the houses subjected to the public administration of apartments provided the basis for de facto ânationalization of income from propertyâ.105
The legal provisions governing apartments106 became one of the most complicated areas of legislation.107 Numerous difficulties were encountered by their practical implementation,108 as well as the scholarship analysing them in the light of the Civil Code. In this case, too, the jurisprudence made attempts to decode the essence of the legal relationship created by the provisions located outside of the Code. The search for innovation prompted observations such as that a new legal relationship occurred from the combination of the features of a civil-law relationship with those of an administrative-law one. The content of such a new relationship was to be emergence of a new form of economic organization, proximate to a partnership, characterized by a community of interest between the owner and the mandatory tenants, together interested in maintaining the property in good order.109
The trades and crafts, as well as small-scale commerce and services, were also subjected to restrictions on the exercise of economic rights. Their total share in this sector of the economy stabilized at 1.3% to 1.5%.110 The execution of the related civil-law transactions was regulated by administrative law,111 as well as criminal law112 used under the banner of combating speculation. Within that small field, the certainty of the law and stability of legal transactions stopped to exist. In consequence, the application of Code norms regulating the basic contracts in economic transactions was deformed, mutual trust was lost, as well as confidence in the state, the law and the honesty of small, private entrepreneurs.
5 In Search of a National Identity â Citizens on the Reform of Private Law
5.1 Introduction
The many years of confrontation of social, economic, legal and political needs with the ideology and axiology invoked by the pzpr and its practice of administration of the state led to multiple protests from the citizens, of growing intensity and frequency: 1956, 1968, 1970, 1976, 1980â1981, 1988 and 1989. The assumptions adopted by the party in the practice of decodification and the societal consequences, surprising to the party, played their own part in this.
The narrowing of the scope of applicability of the Civil Code was explained with the insufficient saturation of the Codeâs norms with contents taken from the new ideology. Simultaneously, in an area highly sensitive to that ideology, the state economy, use was made of provisions bringing fewer economic and social benefits compared to the application of the norms of the Civil Code. The several decades of continuation of such a state of affairs produced one of the sources of the permanent crisis leading to the downfall of the socialist system in Poland.
What is paradoxical is also that the limitation of the applicability of the codes was intended to provide the party leadership and the administrative authorities with more control of the law, while in reality that control proved to be very limited. Yes, both gained undue discretion and room for arbitrary action in the regulation of a great number of legal relationships. By the same decision, the political decision-makers blocked their own access to part of the necessary information about the operation of the law. In consequence, they became unable to defend their own interests at a time when the state of the law created by them triggered problems threatening the very existence of the socialist order in Poland.
The limitations of the pzprâs knowledge of legal affairs was one of the consequences of the linked scope of exclusion of codified substantive and procedural law. The practice was initiated in 1944 and continued until 1964. In those civil-law relationships of importance to the economy and society that were not regulated in detail by the Civil Code and disputes concerning them were not resolved on the path of the Code of Civil Procedure, substantive evaluation (by courts and academia) was replaced with bureaucratic directives and equally bureaucratic monitoring of compliance (e.g. state arbitration for the various entities of the socialized economy).113 A âclosed circulationâ resulted for the creation, application, enforcement and evaluation of the law. The modernization in such circumstances consisted in the end of the modernizing entityâs existence occurring sooner than that of the intended object of the modernization, being the new law.
5.2 Civil Disobedience and the Constitutional Scope of Private Law
After 1964, a characteristic element of the status of private law was its presentation through the lens of the principle of socialist rule of law. It was argued that there was no contradiction between limitations on the exercise of certain private rights and the claim that the legal system provided the citizens with realistic and broad access to rights and to the protection of rights they could not receive from a capitalist system. Social rights were to become the new rights, more valuable than the rest. The concept fit into the propaganda picture of socialist modernization characterized by, among others, the use of a modern and highly ethical method of regulation of social relations through law.114 In reality, numerous social rights were not realistically available, and the principle of socialist rule of law was subjected to interpretations typical of certain forms of totalitarianism.115 It was associated with the term âdictatorship of the proletariatâ, relativizing the principle of equality before law.116
In the Civil Code, many of its norms regulated the classic institutions of private law, preserving the equality of the position of the parties. Simultaneously, others provisions with in the Code and without imposed a variety of limitations on the exercise of private rights. The justification was drawn from the assumptions of historical materialism. Those downplayed the value of the economic rights exercised by the citizens, asserting that some of such rights had no social function. With regard to private ownership of property (except for personal property), that thesis was reiterated by Jan Wasilkowski, who claimed that the contribution made by such a right to the development of the social system was an âillusion (if not demagogy)â.117 Hence, in the jurist and codifierâs opinion, the legislature ought to consider the differences in the effectiveness of the rights exercised by public and by private entities. Adequately to that premise, the legal system could stipulate additional protection for socialized property and impose limitations, even of lasting nature, on private property, so as to prevent its improper functioning. Less attention was paid in this rationale to the legal safeguards required by such a model of application of the law.
The subject itself, on the other hand, attracted the interest of other scholars, all the more so in the light of the studies, commencing in the mid-fifties, into the theories of rule of law and Rechtsstaat and their doctrinal underpinnings.118 The focus of attention fell not only on Marxism119 but also normativism, analytical jurisprudence and legal positivism.120 Favourable to the critical analysis of legal theory were the works of, among others, StanisÅaw Ossowski and Oskar Lange, discussing the social structure in the light of its multiple layers and interconnections121 not having antagonistic characteristics.
Among studies into the theory of the rule of law, works written by two legal theoreticians, Kazimierz OpaÅek and Józef Nowacki, distinguished themselves with originality of thought.122 Drawing a distinction between law in the descriptive and in the normative sense, OpaÅek analysed the former, i.e. the ability to give effect to certain demands through legal norms.123 That required the introduction into the applicable law also of guarantees of its enforcement, especially when the discussion came to the rights of the citizens.124 During the year in which the codification of civil law took place, OpaÅek expounded thoughts on the formal as contrasted with the substantive concept of rule of law, providing arguments in support of the former.125
That position was met with accusations of propagating a concept followed in capitalist126 or even fascist systems. It was argued that the formal concept of rule of law ignored the social injustice of the contents of the norms, such as was the case of the norms in capitalist systems. Thus, a different, substantive formulation of the rule of law was more appropriate, one being developed by the legal science of socialist systems. The lawyers and jurists criticizing OpaÅek were conscious of the fact that the problems of the Polish legal system came not only from the authoritiesâ failure to comply with the applicable law but also the enactment of discriminatory and rights-depriving legislation. In 1971, directly following another wave of social protests, Andrzej Burda acknowledged: âchanges toward the better in this regard had continued for a certain time; later, practices incompatible with the principle of the rule of law followed.â127 A different message, however, was addressed to the legal community: âthe shortcomings of the legal system are by necessity greater than in a static society (and require â A.M.) the cross-positioning of the letter and spirit of the law with the needs of social life, without deviating from the path of socialist rule of law.â128 At the same time, it was emphasized that the principle of rule of law extended not only to compliance with the law by the authorities but also by the citizens.
Referring that particular definition of the rule of law, a different legal theoretician, Józef Nowacki, pointed out its structural defect resulting in the establishment of legal fiction. For there did not exist a state in which one could create the conditions for the achievement of such an ambitious purpose as the constant compliance with the law by the citizens and the authorities alike. Hence, the terms âcompliance with the lawâ (or: respecting the law, abiding by the law) and ârule of lawâ had to be distinguished. The latter applied only to the conduct of the authorities â acting in accordance with and on the basis of the law.129
The influence of Polish legal theory on the ideological and axiological foundations of the development of private law in Poland manifested itself during the first attempts at citizen-sponsored reform of private law, initiated in 1980. The latter undertaking bore references to Nowackiâs emphatic calls: âthe sine qua non condition for the commencement of discourse on the rule of law is the existence of a legal order (law).â130 The values invoked at the time by part of society, including the reformers speaking out on its behalf, their methods used during the 1980â1988 period,131 and the circumstances, including legal affairs, amid which they acted, all taken collectively warrant the application of the term âcivil disobedienceâ. The purpose of societyâs taking of that stance was to achieve the restoration of the principles of a state ruled by law, with one of its elements being equality before the law, guaranteed e.g. by the language of the provisions regulating private rights.
5.3 Solidarity in the Interest of a Good Law
In 1980, Poland became the arena of developments exceptional not only in the countryâs own scale. From the historical perspective, Stefan Bratkowski aptly summarizes one of the characteristics of the period: âsociety took socialism more seriously than did the government presiding under its catchwords.â132
In 1980, amid nationwide strikes, the demands of the protesters were met with enormous social support. Their foundation was a comprehensive list of reforms, including the restoration of the principle of equality before the law in civil-law relationships involving farms.133 In order to strengthen its bargaining power, society created the first organization independent from the state â the Solidarity trade union.
Several months later, works commenced on issues recognized as demanding the most urgent attention, led by the Solidarity Centre for Citizensâ Legislative Action,134 spearheaded and co-ordinated by Judge Kazimierz Barczyk, in co-operation with the Social Legislative Council under the leadership of Stefan Grzybowski. Those were, among others: ownership,135 including legislation on state-owned enterprises and farms,136 popularization of the institution of land-and-mortgage register books and mortgages, consumer rights, rights of authorship (copyrights, moral rights), and civil-law protection of the environment.137 The list was proof of universal social engagement with the reform of civil law, in which the voices of different communities were heard,138 in line with the principle of pluralism. All such initiatives remained outside the government structure, as the government did not exhibit serious commitment to the cause of the reform. The lawyers and jurists analysing the presented materials and evaluating their contents, concluded as follows: âthe governmentâs proposals proceed towards the creation of a façade instrument containing provisions with the status of declarations, hence an instrument of dubious practical utility.â139
Stefan Grzybowski, 1902â2003. During the interwar period, a judge and academic linked to Jagiellonian University. After the war, long-term Head of Department of Civil Law and Rector of Jagiellonian University. President of the Social Legislative Council (1981â1992) and of the Civil Law Commission within the Council; active participant in the works of the Solidarity Centre for Citizensâ Legislative Action in 1981.
source: Jagiellonian University archive
Scholars, members of the judiciary and of the bar involved themselves in the conceptual and redaction works. Such participants included Stefan Grzybowski, Kazimierz Barczyk, StanisÅaw WÅodyka, Józef SkÄ pski, Ewa ÅÄtowska, CzesÅawa Å»uÅawska, Andrzej MÄ czyÅski, Alfred Klein, Walerian PaÅko, Józef StanisÅaw PiÄ towski, and Tadeusz ZieliÅski.140 Some of them followed the directions of development of the culture of civil law shaped by the eminent jurists of the Second Republic, including Ernest Till and Fryderyk Zoll, Jr. Each topic was preliminarily processed by a rapporteur and then became the subject of a debate bringing together the different experiences of theoretical jurists and legal practitioners, looking for a compromise where the views diverged. That was conducive to the integration of the legal circles, previously having functioned in circumstances of censorship and omnipresent surveillance. A change pregnant with multiple positive consequences was also experienced by those in the legal circles who had taken it on themselves to design assumptions for a future legal reform. The method of operation of the Social Legislative Council was described as follows:
the unconventional collaborative formula of a melting pot of ideas and remedial workshop, with the confrontation of views and ideas of people having something to say and propose, irrespective of any academic title or formal position at a university (â¦)[;] with the sole verification being the utility, effectiveness and consonance with our imaginations of what the standards of a democratic state ruled by law ought to look like.141
Attention was focused on the quality of both the substantive content and the structural form of the future law, as evidenced by the establishment of an additional team for legislation, under the leadership of Tomasz Studnicki.
The measurable effects of that social action, though lasting only several months are worth emphasizing. Some of the results took the form of draft bills, including amendments of the Civil Code and Code of Civil Procedure. For other subject matters, basic assumptions were designed.
The lower scope of the initial works of the Social Legislative Council and of the Solidarity Centre for Citizenâs Legislative Action in the area of civil law, as compared to other legal fields such as criminal law, was the consequence of the view of the Civil Code as an instrument not in need of an immediate and complete overhaul. This is what Kazimierz Barczyk had to say on the matter:
the Civil Code, on which we have undertaken the preliminary works, had not been highly deformed ideologically under the Polish Peopleâs Republic, having retained the basic solutions of Roman law, as it had been neither instrumentally threatening nor of utility to the powers of the time, except for (â¦) limitation of the role of ownership.142
The most important value brought by the activities of the social reforms of civil law in 1981 was, on the other hand, the long-term axiological and normative perspective adopted by them at the time: âthey saw a need the majority of Solidarityâs enthusiasts did not see; they could answer the question of not only current affairs but also of, âwhat the new Poland should be like.ââ143 For in calling for legislative changes, the citizens of the time had not yet been fully prepared for the legal consequences of the fruition of their social and economic demands.
With that in mind, the reformers emphasized the need for the popularization of details of their work, including specific, concrete proposals prepared and advanced by them, each with a rationale addressing the merits and discussing the impact of the incorporation of a given solution into the legal system. The purpose of such an approach was to reinforce the citizensâ sense of subjecthood and agency, draw the attention and interest of some of them to the reform, source their opinions, but also assuage the societal tension. One of the inspirations came from the imagination of the new principles of functioning of enterprises, connected with improving their effectiveness: âOne cannot lose sight of the employeesâ concerns (â¦) transfers to other positions or even the possibility of unemployment. Awareness of this danger can put a serious obstacle on the path of the reforms.â Hence, it was emphatically stated: âOne must define the methods of implementation of the reform. On that its success depends.â The fundamental importance of this type of social communication is something the future reformers acting at the turn of the eighties and nineties experienced first-hand. At the time, they regarded the issue as a low priority; the consequences are felt to this day.
The ideological and axiological premises considered by the social reformers are of significant importance. From the statements of legal scholars one could deduce their attempts to strike a balancing act among competing values wherever that was expedient. Such was, for example, the manner of the selection of whatever issues required immediate response in the field of civil law on the one hand and issues that should not be approached hastily on the other hand, especially where the motivation would be solely to respond to the circumstances of the economic crisis prevailing at the time. Discussing this problem, scholars such as Alfred Klein encouraged the authors of the drafts of amendments to the Civil Code to maintain the internal redaction of the new provisions. They drew attention to cases in which the sole focus on the improvement of the merits of the regulation led to further compounding the complexity of its structure (e.g. changes to inheritance law).
A determination was also made with regard to the sequence of actions where an issue belonging to substantive civil law was regulated by separate legislation (e.g. intangible goods). The call to begin the amendment process, in such cases, from that legislation was advanced by Józef SkÄ pski.144 Less co-ordination of the works was required by the amendment of the Code of Civil Procedure. Problems relating to its application related not to its contents â except for the system of appellate remedies with its restrictive impact on citizensâ rights â but the fact of its applicability only to a subset of civil cases. Hence, the central demand was for the restoration, to the furthest extent possible, of the judicial path and strengthening of procedural safeguards with regard to the appellate remedies.145
Józef SkÄ pski, 1921â1998, lawyer (advocate), professor, linked to Jagiellonian University, Head of Department of Civil and Private International Law. In 1981â1992, member of the Social Legislative Council. Active participant in the works of the Solidarity Centre for Citizensâ Legislative Action in 1981, and later Civil Law Reform Commission of 1986; secretary general of the Polish Academy of Learning (pau) (1989â1994).
source: archive of POlish Academy of Arts and Sciences
However, in order to dispose of several other matters relating to the rules of procedure for the works on the reform of civil law, a dilemma had to be resolved. On the one hand, should one â for the sake of legal certainty and stability but also on account of the negative experience of the administrationâs lawmaking invention â define the principles in detail in the new provisions? Or perhaps, on the other hand, for the sake of the functionality of the legal text and faith in the new axiology of the exercise of power, should one also make use of references to executive legislation, subject to compliance with statutory form and openness to subsequent review, also on the merits of such executive provisions?146
With regard to this matter, on the occasion of the draft bill on state-owned enterprises, emphasis was put that: âthe statute must feature a higher degree of detail (â¦) it must contain safeguards for the enterprisesâ autonomy. The point, however, is not so much casuistic regulation as the predetermination of the shape to be taken by some of the solutions.â147 While discussing the amendment of the Civil Code, the attention was focused on the provision dealing with the general terms of contracts and standard forms, delegating the details to executive legislation, which was of key importance to the socialist economy. The negative past experience with the use of such delegated authority by the administration motivated the reformers to design new mechanisms of control.
Of all works, those on consumer law reached the most advanced stage of progress. Against their background, the question surfaced of the relevant scope of the Civil Code. The drafters noted the increasingly common trend of âescape from codesâ in Europe in the regulation of the principles of the modern exchange of goods and services. âHence, one should rather accept the thought that the code is to remain a set of general structures of principles, with the bulk of the weight of immediate regulation to be carried by instruments of inferior rank.â148
The selection of this particular regulatory model called for the design of a solution to ensure the consistency of the Civil Code with other statutes, or at least the lack of a contradiction. Apart from ensuring suitable legislative quality of acts inferior to the Civil Code, one also had to make sure the new legislation was to pursue a âconscious and socially approved legislative policyâ, as emphasized by Ewa ÅÄtowska.149 That, in turn, required a drafting and redaction intelligible to recipients other than lawyers and jurists, because legislation did not operate âin a normative void.â
In addition to the matter of legislative quality standards, the reformers also appreciated ideological dilemmas. As recalled in his memoirs by StanisÅaw WÅodyka, who had been in charge of the economic-law committee:
All of its participants remember (â¦) the zeal with which the Committee commenced and continued its work, but also the limitations constraining its freedom (â¦) that was especially palpable, as the economic system of the time was strictly determined by the political system.150
One of such constraints was the principle of unity of state property. The suggested amendment extended both to the statute governing state-owned enterprise and the Civil Code, in which it was suggested to stipulate a clear guarantee of the individual exercise of proprietary rights by the enterprise. Time after time, the government firmly refused to acknowledge an enterprise as a âfullâ legal person in civil-law relationships. The principle of unity of state property was to remain the binding concept, with the new Act on State-Owned Enterprises partially increasing their legal autonomy. Thus the potential of a social project anticipating the legal amendment that would follow ten years later, after the change of the political system, came to waste. What was regarded as important in the given situation by the reformers, including the Supreme Court justice, CzesÅawa Å»uÅawska,151 was to empower ânot only on the juridical but also the psychological planeâ the enterprise crews by vesting a set of powers in employee self-governments, which made it possible to sustain the subsequent social activity.
Much attention was paid also to the provisions of the Civil Code dealing with farms. Serious deliberation was necessitated in order to resolve the problems amassed in the preceding decades. The amendment of the Civil Code was enacted already during martial law.152 Its contents followed part of the solutions designed for the purposes of Solidarity Citizensâ Legislative Actionâs draft. The most important change was the elimination of certain limitations on transactions relating to the inheritance of farms. The farmersâ motivation to step up their production was to come from the constitutional amendment redacted so as for the still-existing distinctions among the types of ownership according to the type of holder to be interpreted in a manner acknowledging the âfull protectionâ of the ownership of individual farms. A different approach was taken by the authorities to the draft amendment of consumer law; the printed materials were seized by the administration and disposed of.
See Grzybowski: Zagadnienia kodyfikacji, 103ff; SkÄ pski: Kodeks cywilny, 57â76.
Izdebski: Kodyfikacje cywilne, 160â161.
Józef Litwin: Z problematyki styku prawa cywilnego z administracyjnym [From the topics of the intersection of civil and administrative law], pip 2 (1965), 540.
Andrzej Stelmachowski: WstÄp do teorii prawa cywilnego [Introduction to the theory of civil law], pwn, Warsaw, 1969, 17, 30, 54 and 317.
Aleksander Wolter: Prawo cywilne: zarys czÄÅci ogólnej [Civil law: an outline of the general part], pwn, Warsaw, 1967, 20.
Winiarz: Kodeks cywilny, 9.
Wasilkowski: PojÄcie wÅasnoÅci, 62.
Stelmachowski: WstÄp do teorii, 318.
The question of the law is worth emphasizing because in the course of recent debate on the political culture of the 1965â1989 period, some representatives of social sciences focus on economic matters, copying the self-presentation of the Peopleâs Republic along with the assumptions of historical materialism proclaiming the law as secondary to relations of production.
An example can be found in the resolution passed at the 7th Congress of the pzpr on 8â12 December 1975, see vii Zjazd pzpr. Podstawowe materiaÅy i dokumenty [The 7th Conference of the Polish United Workersâ Party. Basic materials and documents], KsiÄ Å¼ka i Wiedza, Warsaw, 1975, 222.
This assumption formed the basis of some analyses of legal affairs; Zygmunt Rybicki: Administracja gospodarcza w prl [The economic administration in Polish Peopleâs Republic], wn pwn, Warsaw, 1978, 49.
In the 13th Plenum of the Central Committee of the pzpr in 1964, among other things WÅadysÅaw GomuÅka proclaimed: âthe socialist consciousness must be characterized by a socialist attitude to specific economic and political needs (â¦) and to the party as the avant-garde of the working class, and to the principal assumptions of its policy.â
Leszek Nowak: U podstaw teorii socjalizmu [At the foundation of the theory of socialism], Nankom, PoznaÅ, 1991, 149.
Andrzej Walicki: Marksizm i skok do królestwa wolnoÅci: dzieje komunistycznej utopii [Marxism and the jump to the realm of freedom: the history of the communist Utopia], wn pwn, Warsaw, 1996, 476â479; StanisÅaw Kozyr-Kowalski: Socjologia, spoÅeczeÅstwo obywatelskie i paÅstwo [Sociology, civil society and the state], wn uam, PoznaÅ, 2004, 35, 127.
For more see concerning the errors and absurdities of the economic reality of the Polish Peopleâs Republic see Janusz KaliÅski: Gospodarka Polski w latach 1944â1989: przemiany strukturalne [The economy of Poland in 1944â1989: structural transformations], PaÅstwowe Wydawnictwo Ekonomiczne, Warsaw, 1995; Zbigniew Landau, Wojciech Roszkowski: Polityka gospodarcza ii rp i prl [The economic policies of the Second Polish Republic and of the Polish Peopleâs Republic], wn pwn, Warsaw, 1995; Andrzej Jezierski, Cecylia LeszczyÅska: Historia gospodarcza Polski [An economic history of Poland], Key Text, Warsaw, 1998.
The leadership of the pzpr had access to information about the economic and political situation in other socialist states enabling it to determine the sources of their problems. Among examples of unused analyses is the documentation sourced at the onset of the seventies, concerning the
ix Nadzwyczajny Zjazd Polskiej Zjednoczonej Partii Robotniczej. 14â20 lipca 1981 r.: stenogram z obrad plenarnych [The 9th Conference of the Polish United Workersâ Party. 14â20 July 1981. Stenogram of plenary deliberations], KsiÄ Å¼ka i Wiedza, Warsaw, 1983, 691.
aan, Komitet Centralny Polskiej Zjednoczonej Partii Robotniczej, v/341, document prepared by the Ideological Section of the Central Committee of the pzpr: Zasady obchodów ÅwiÄ t i ważniejszych rocznic historycznych [Principles for the celebration of holidays and major historical anniversaries], 63â64.
Józef Burszta: WartoÅci kultury ludowej w spoÅeczeÅstwie socjalistycznym [The values of popular culture in a socialist state], Nowe Drogi 10 (1976), 137â146.
Janusz Rolicki: Edward Gierek: przerwana dekada: wywiad rzeka [Edward Gierek: a broken decade: extended interview], Fakt, Warsaw, 1990, 83.
The ideological interpretation of customary law changed (according to the assumptions of Marxist doctrine, any law, in order to be applicable, required the sanction of the state either in statutory form or expressed by court decisions); because of its lack of widespread presence in Poland, this type of modernization failed to exert an influence on Polish legal culture.
The ability to invoke custom was envisaged by the general provisions and by real law (i.e. the law of âthingsâ), law of obligations and inheritance law â Articles 56, 65, 69, 287, 298, 354, 385, 394, 994 and 1039 of the Civil Code.
Wróblewski: Zagadnienia teorii, 167â175.
âIt was eager to present itself as an environment of efficiently organized and open-minded socialist managersâ; Dudek, Zblewski, Utopia nad WisÅÄ , 228.
Article 6 of the Constitution of Polish Peopleâs Republic.
Edward Gierek: Smak życia: pamiÄtniki [Taste of life: memoirs], bgw, Warsaw, 1993, 191.
The provision regulating the stateâs protection for peasant farms did not envisage property ownership (Article 10 of the Constitution of Polish Peopleâs Republic), and the provision enumerating the rights to own and inherit property stipulated that the scope of protection of said rights was to be determined by ordinary statutes (Article 12 of the Constitution of Polish Peopleâs Republic). According to Article 10, the state âextend[ed] its protection to the individual farms of the working peasants and assist[ed] them with a view to protection from capitalist exploitation, agricultural-technological development, and increased prosperityâ; Article 12: âPolish Peopleâs Republic recognizes and protects through the applicable legislation the individual ownership and inheritance of land, buildings and other means of production belonging to peasant farmers, craftspeople and cottage workers.â
Krzysztof Persak: âTroskliwy opiekun i ÅwiatÅy doradca Polski Ludowejâ: poprawki Józefa Stalina do Konstytucji prl z 22 lipca 1952 r. [âThe attentive protector and enlightened advisor of the Peopleâs Polandâ: Joseph Stalinâs corrections to the Constitution of the Peopleâs Republic of Poland of 22 July 1952], in Dariusz Stola, Marcin Zaremba (eds): prl: trwanie i zmiana [The Peopleâs Republic of Poland: persistence and change], wspiz im. KoźmiÅskiego, Warsaw, 2003, 187â209.
Among others, Article 48 of the Constitution of Polish Peopleâs Republic, whereby the courts were to: âguard the political system of Polish Peopleâs Republic, protect the achievements of Polandâs working population, safeguard socialist rule of law, socialized property and rights of the citizens and punish criminals.â This aspect is noted by Andrzej Ajnenkiel: âOf these phrases, only the latter two (â¦) were of objectivized nature. All of the preceding ones concerned themselves with the (â¦) politico-repressive function of the judiciary as one of the organs tasked with the maintenance of the regime existing in Polandâ; Andrzej Ajnenkiel: Konstytucje polskie w rozwoju dziejowym 1791â1997 [Polish constitutions in historical development 1791â1997], Rytm, Warsaw, 2001, 307.
Act of 10 February 1976 amending the Constitution of Polish Peopleâs Republic, Dz.U.5.39.
Studies into the functioning of administrative bodies in the sphere of the relationships between the citizens and the state supplied the basis for the conclusion that a ânew totalitarianismâ making the administrative practices following 1956 â no longer physically coercive but still oppressive; see Jerzy W. OchmaÅski: Administracja ÅwiadczÄ ca: ksztaÅtowanie siÄ idei organizatorskiej funkcji paÅstwa w Polsce Ludowej (1944â1989) [A providing administration: the formation of the ideal of the organizing function of the state in Peopleâs Poland (1944â1989)], wuam, PoznaÅ, 2006, 20â22.
Detailed analysis of the factors determining the views taken by the pzpr leadership, including the increasing role of the âbaggage of experienceâ of successive socio-economic crises, as interlinked with the Marxist-Leninist theory of historical process and hostility to the values represented by the Catholic Church, with the following reservation: âIn particular, it appears to be impossible to determine the extent to which the officially proclaimed motives and the decisions and propaganda activities resulting from them corresponded to the true consciousness of the holders of key positions in the party and the stateâ; Dudek: Wybrane czynniki, 35â36.
Referat WÅadysÅawa GomuÅki na ix Plenum: wÄzÅowe problemy polityki partii [WÅadysÅaw GomuÅkaâs paper for the 9th Plenary Session: seminal problems of the partyâs policy], Nowe Drogi 6 (1957), 4.
This is the term used by, among others, StanisÅaw Kozyr-Kowalski: Struktura gospodarcza i formacja spoÅeczeÅstwa [Economic structure and the formation of society], KsiÄ Å¼ka i Wiedza, Warsaw, 1988, 272â277; to Leszek KoÅakowski, that was primarily a social philosophy containing no methods of practical regulation of the principles and functioning of institutions; KoÅakowski: GÅówne nurty, vol. 1, 427.
Leszek KoÅakowski: GÅówne nurty, 923, Friszke: Polska: losy paÅstwa, 338.
Leszek KoÅakowskiâs speech delivered on 21 October 1966: Kultura polska w ostatnim dziesiÄcioleciu [Polish culture in the last decade], in Zbigniew Romek: Droga Leszka KoÅakowskiego ku antykomunistycznej opozycji. Od ortodoksyjnej ideologii do wolnoÅci myÅlenia [Leszek KoÅakowskiâs road to anti-communist oppposition: from orthodox ideology to freedom of thought], Dzieje Najnowsze 4 (1999), 147; Leszek KoÅakowski: Tezy o nadziei i beznadziejnoÅci, in Czy diabeÅ może byÄ zbawiony, Aneks, London 1984, 293 [in English: Theses on Hope and Despair, Kevin Devlin (transl.), in Leszek KoÅakowski: Can the Devil Be Saved? Encounter, 1974, 7â12].
Raport o stanie Rzeczypospolitej i drogach wiodÄ cych do jej naprawy [Report on the state of the Republic and the paths leading to its emendation], Nowa, Warsaw, 1979; compiled by a group of persons operating under the collective name of Konserwatorium DoÅwiadczenie i PrzyszÅoÅÄ [Experience and Future Seminar] sent to the Sejm on 19 May 1979. One of the authors of the Report was Jerzy Stembrowicz, a jurist specializing in constitutional law.
Szczecin Agreement, 30 August 1980; GdaÅsk Agreement, 31 August 1980; JastrzÄbie Agreement, 3 September 1980.
Decree of 13 December 1981, Dz.U.29.154. The use of provisions regulating martial law was the result of not having provisions regulating emergency powers. The assumptions of the socialist system did not foresee a conflict between the proletariat and the authorities of the socialist state.
Anna Machnikowska: WpÅyw ustawodawstwa stanu wojennego na prawo cywilne [The influence of Martial Law legislation on civil law], Studia nad Autorytaryzmem i Totalitaryzmem 39 (2017)/3, 23â47.
Act of 21 July 1983 on Detailed Legislative Regulation in a Period of Overcoming a Crisis.
Wojciech Jaruzelskiâs address in the Sejm on 6 May 1982, Sprawozdanie stenograficzne z posiedzenia Sejmu [Stenographic Sejm Report], 14.
Sprawozdanie z prac Komisji kc pzpr powoÅanej do wyjaÅnienia przyczyn i przebiegu konfliktów spoÅecznych w dziejach Polski Ludowej [Report on the works of the puwp Central Committeeâs Commission appointed to investigate the causes and development of social conflicts in the history of Peopleâs Poland], Nowe Drogi, Special Issue (1983).
âDespite errors made and bitter defeats, the party in the process of historical transformations is still an active and creative force; I address you, Polish workers: for the sake of the homeland, renounce your inalienable right to strike for such a time as may be necessary for overcoming the most acute difficultiesâ; speech delivered on 13 December 1981 by General Wojciech Jaruzelski, First Secretary of the pzpr.
The martial law was imposed not by the Sejm but by an organ of the executive branch â the Council of State.
Resolution of the Sejm of Polish Peopleâs Republic of 25 January 1982, Monitor Polski 5.20.
Friedrich Engels: Pochodzenie rodziny, wÅasnoÅci prywatnej i paÅstwa [The Origin of the Family, Private Property and the State], KsiÄ Å¼ka i Wiedza, Warsaw, 1949.
This includes, among other examples, provisions incorporated from the Commercial Code and Code of Obligations.
In addition to provisions diversifying the rights and obligations in respect of the various types of property, those included a chapter dealing with mandatory contract formation among socialized economic units; Articles 397â404 of the Civil Code.
For examples of such dispersed regulation see Stelmachowski: WstÄp do teorii, 28.
Production, services, trade, commerce and use of property suitable for commerce.
Litwin, Z problematyki styku, 546.
See Wolter: Prawo cywilne, 56.
Among other things, this sphere included the use of real property.
See ibidem 22.
According to the pzpr leader, WÅadysÅaw GomuÅka, the reason behind the failure of collectivization in Poland was the âimposition on them of too many benefits that by no measure could be reconciled to the peasant intellectâ; see Andrzej Burda: Polskie prawo paÅstwowe [Polish state law], pwn, Warsaw, 1962, 164.
Such was the analysis of the social situation presented, among others, by Adam Åopatka: Rozwój spoÅeczeÅstwa socjalistycznego w Polsce [The development of socialist society in Poland], Ruch Prawniczy i Ekonomiczny 4 (1964), 1â16.
The facts were different; Polandâs economic system was not transforming in any significant ways, as opposed to the situation in certain other socialist states, for example, in the seventies of the 20th century. In Czechoslovakia, the state increased its influence on the economic rights of farming co-operatives, and in the gdr the few private enterprises still operating there were nationalized; see more Tadeusz Szymczak: Ustrój europejskich paÅstw socjalistycznych [The political system of European socialist states], pwn, Warsaw, 1983, 324 and 421â422.
For example, Articles 4, 127 and 129 of the Civil Code.
Article 129: âThe construction and application of the provisions of this code must consider that socialized property, as the basis of the constitutional system (â¦), benefits from the special protection of the law.â
Not equivalent to the institution of management (administration) in civil law.
The fact alone of the classification of types and kinds of property was, according to some legal minds, an independent modernization factor, since it was conducive to the increased effectiveness of state ownership; Jerzy Ozdowski: Problem wÅasnoÅci w spoÅecznej gospodarce rynkowej [The problem of ownership in a social market economy], in Piotr Kaczanowski (ed.): WÅasnoÅÄ i demokracja {Property and democracy], Fundacja atk, Warsaw, 1995, 34.
In that manner, theories embroiled for decades in internal contradictions were copied over; this included the problem of defining the principles of the economic circulation within the system of state property; see more Evgeny B. Pashukanis: Ogólna teoria prawa i marksizm, pwn, Warsaw, 1985.
Jan Wasilkowski: Zarys prawa rzeczowego [An outline of real law], pwn, Warsaw, 1963, 35.
Stefan Grzybowski: Sytuacja prawna mienia ogólnonarodowego w kodeksie cywilnym [The legal situation of national property in the Civil Code], pip 2 (1965), 527.
For example, Supreme Court resolutions in i Co 20/61, of 16 October 1961, osn 1962, 41; i C 336/63, of 14 June 1963, osncp 1964, 223; i cr 80/66, of 16 April 1966, 4
See more theses 1 and 2 to Article 36 of the Civil Code; Kodeks cywilny z komentarzem, vol. 1, 52.
Societyâs collective memory has preserved the rationales for the defectively functioning mechanisms of central planning. According to the authorities, the socialist modernization had to be evaluated from a broader perspective. An thus, every single year in the summer rope was missing for farming machines, immobilizing them in a time of harvest, but at the same time a modern steel foundry was materializing into existence. Yes, prices of food were rising, but simultaneously âlocomotives ha[d] become cheaper.â
Some writers noted the inconsistency between the principle of unity of state property and the principle of legal personality of the stateâs legal persons; see Jan Gwiazdomorski: Zasada jednolitej wÅasnoÅci socjalistycznej a osobowoÅÄ prawna przedsiÄbiorstw paÅstwowych [The principle of uniform socialist property and the legal personality of state-owned enterprises], pip 4â5 (1967), 597.
The inability of the enterprises to make independent dispositions of property was introduced by the resolution of the Council of Ministers of 29 April 1950, Monitor Polski 43.197; eighteen years later, also by resolution, the enterprises were allowed a certain scope of chattel transactions; see resolution of the Council of Ministers no. 262 of 12 August 1968 concerning the disposition of movable assets by socialized economic units, Monitor Polski 35.245.
See Wasilkowski: PojÄcie wÅasnoÅci, 60â61.
Problems of this type and their negative consequences for the entire system of civil law were noted by, among others, Gwiazdomorski: Zasada jednolitej wÅasnoÅci, 591; Andrzej Stelmachowski: Czy kryzys osoby prawnej? [A crisis of the legal person?], Ruch Prawniczy Ekonomiczny i SpoÅeczny, 3 (1968); Wolter, Prawo cywilne, 168â169. The last-mentioned author, himself another co-author of the Civil Code, highlighted the complicated structure of the norms relating to the principle of unity of state property.
The charge of drawing from âbourgeois legal scienceâ was levied against Soviet researchers by Andrey Vyshinsky; see more LityÅski: Prawo Rosji, 210.
See more Juliusz Bardach: W obiektywie nauki i w lustrze pamiÄci (o uczonych, pisarzach i politykach xix i xx wieku [In the lens of science and in the mirror of memory (on scholars, writers and politicians of the 19th and the 20th centuries], C. H. Beck, Warsaw, 2004, 347.
Maciej BaÅtowski: Gospodarka socjalistyczna w Polsce [Socialist economy in Poland], pwn, Warsaw, 2009.
Constitution of Polish Peopleâs Republic of 22 July 1952, Dz.U.33.232.
Concerning the way in which constitutional language stalled the development of property law, see MaÅgorzata Bednarek: Przemiany wÅasnoÅci w Polsce. Podstawowe koncepcje i konstrukcje normatywne [Ownership changes in Poland. Basic concepts and normative constructions] wn Scholar, Warsaw, 1994, 33; Machnikowska: Prawo wÅasnoÅci, 295â312.
Stefan Ritterman: Charakter metodologiczny dyskusji nad podmiotem cywilistycznej wÅasnoÅci paÅstwowej [The methodological character of the discussion of the rights-holder of national property], Studia Cywilistyczne 13â14 (1969), 267â288.
One of the problems was the determination of the nature of economic legal relationships (whether civil-law or administrative-law) arising among state-owned legal persons or between them and the state.
Grzybowski: Sytuacja prawna mienia, 533.
The leadership of the pzpr, in their own analysis of the legal and administrative frameworks regulating state-owned enterprises, admitted that the solutions gave âno impulse to any increase in production volumes or profitability. The forecast for 1971â1975 expected losses in the range of plz 34 billion; aan, bp kc pzpr, 2914, 635.
This was the position taken by, among others, Stefan Buczkowski and Jan Gwiazdomorski. See Gwiazdomorski: Zasada jednolitej wÅasnoÅci, 571; some of their arguments were supported by Grzybowski: Sytuacja prawna mienia, 527.
âMarxism, accordingly, was a dogma pretending to be scienceâ; Pipes: Komunizm, 21 (quotation back-translated from the Polish).
The first one was Jan Wasilkowski Adam CheÅmoÅski, Kazimierz PrzybyÅowski, Seweryn Szer, Jan TopiÅski: WÅasnoÅÄ spoÅeczna w Åwietle Konstytucji Rzeczypospolitej Ludowej, in Zagadnienia prawne Konstytucji Polskiej Rzeczypospolitej Ludowej, MateriaÅy sesji naukowej pan 4â9.7.1953 r., vol. 1, pwn, Warsaw, 1954, 17â114; subsequently Wasilkowski: Zarys prawa rzeczowego; Wasilkowski, Madey, Prawo wÅasnoÅci; Wasilkowski. PojÄcie wÅasnoÅci.
Note made in 1957 for the needs of the Politburo of the Central Committee of the pzpr; aan, bp kc pzrp 2831, 251.
Evaluation of the problems of the Soviet theory of property rights with the participation of socialized economic units, Jan Baszkiewicz, Franciszek Ryszka: Historia doktryn politycznych i prawnych [History of political and legal doctrines], pwn, Warsaw, 1984, 463.
Wolter: Prawo cywilne, 54.
Ten years after the introduction of the provisions (originally in the form of a statute enacted in 1963), attention was called to the interpretative doubts arising, as well as the redaction of the norms; see Józef S. PiÄ towski: Prawo spadkowe. Zarys wykÅadu, pwn, Warsaw, 1973, 25â26.
More extensively on farmersâ attitude to agricultural policy see Krystyna Daniel: PoglÄ dy rolników na cele i skutki regulacji wÅasnoÅci gospodarstw rolnych: w Åwietle ustawy z dnia 26 października 1971 r. [Farmersâ perspectives on the goals and effects of the regulation of farm property: in the right of the Act of 26 October 1971], zn im. OssoliÅskich, WrocÅaw, 1987.
See Rybicki: Administracja gospodarcza, 208.
Wasilkowski: Prawo rzeczowe, 45.
Grants or other certifications not providing the basis for an entry into a land-and-mortgage register book. An indirect proof of the defective management of the procedure for the transfer of ownership on the basis of the decree on the agricultural reform were the several enactments (seven in total until the nineties) of legislation to put the situation in order, e.g. the Decree of 6 September 1951, Dz.U.46.340; and Decree of 18 April 1955, Dz.U.18.107.
Among others, the Ministry of Justice Circular no. 12 of 20 October 1948, without any basis in generally applicable legislation, ordering notaries to require additional documents from transaction parties. The inability to comply with this condition, as well as other limitations have caused the number of the notarial deeds necessary for a transfer of ownership to drop to a symbolic number, see Dorota Malec: Dzieje notariatu polskiego, wuj, Krakow, 2007, 215.
Differences between the price received by the farmers for their products and the price of the means of such production have caused the phenomenon of âprice shearsâ, making farming unprofitable and forcing farmers into extensive farming, translating in the longer term into a lasting decrease in agricultural performance.
The progression ratio, also reflecting other duties owed to the state, in some years became as high as 1:20 with regard to the largest farms in some years; see Antoni Hanusz: Polityka podatkowa w zakresie zróżnicowania obciÄ Å¼eÅ dochodów rolniczych w Polsce [Tax policy in the scope of differentiating the burdens on farming incomes in Poland], wumcs, Lublin, 1996, 89â90.
An opportunity for legalization come only on the basis of the Act of 26 October 1971 on Regularizing the Ownership of Farms, Dz.U.27.250. The ministry of agriculture provided an estimate of 1 million informal possessors â April 1971; aan, bp kc pzpr 2915, 560; total number of applications submitted â 2.4 million, after Daniel: PoglÄ dy rolników, 149.
See more Ignatowicz: Prawo rzeczowe, 79.
Wasilkowski: PojÄcie wÅasnoÅci, 171.
The practice is exemplified by the making of another public declaration in 1971 (the previous one hard occurred in 1959) that the material and legal situation of individual farms would be improved; see the resolution of the Politburo of the Central Committee of the pzpr and the Supreme Committee of the nsl (United Peopleâs Party), Trybuna Ludu, no 109, 19 April 1971, the proof of which was to come with the Act of 26 October 1971 on the Abolition of Mandatory Supplies, Dz.U.27.253, and, two years after these decisions, the passage of a resolution to accelerate the progress on the full socialization of agriculture; see resolution of the 1st National Party Conference of the pzpr, October 1973.
Some authors indicate 83.3% of arable acreage in 1970; see Geografia gospodarcza Polski [The economic geography of Poland], StanisÅaw Berezowski (ed.), pwn, Warsaw 1978, 369; others state a lower figure at 75.1%, which may be the result of exclusion of a certain part of land used by farmers on an informal basis; see Grażyna GradziÅska: ChÅopi wobec kryzysów spoÅeczno-politycznych w Polsce (1944â1989). Studium historyczno-politologiczne [The peasant farmers in the face of socio-political crises in Poland (1944â1989)], Abos, PoznaÅ, 1993, 70.
Decree of 21 December 1945 on the Public Administration of Apartments and Lease Control, Dz.U.1946.4.27; Decree of 7 September 1944 on Housing Commissions, Dz.U.4.18.
See Supreme Court resolution in C. Prez 331/48, of 25 September 1948, pip 1 (1949), 120â122.
Initially, it functioned in the proximity of the âpublic control of leaseâ, providing merely for the administration to approve contracts; however, as from 1950, the restrictions became more severe, leaving in place only the public administration of apartments.
While admitting the absence of a direct prohibition against the sale of buildings or land, the caveat was made: âthe economic reality follows a different courseâ; see Jerzy Ignatowicz (ed.): vol. 2: Prawo wÅasnoÅci i inne prawa rzeczowe [Ownership and other property rights], in System prawa cywilnego [The system of civil law], zn im. OssoliÅskich, WrocÅaw, 1977, 188.
Andrzej Stelmachowski, Kamil Zaradkiewicz: Modele wÅasnoÅci i ich uwarunkowania spoÅeczno-ustrojowe Ownership models and their socio-political circumstances], in Zbigniew RadwaÅski (ed.): System prawa prywatnego [The system of private law], vol. 3: Edward Gniewek (ed.): Prawo rzeczowe [Real law], C. H. Beck, Warsaw, 2013, 101.
Act of 10 April 1974 â Apartment Law, Dz.U.14.84, and Act of 19 October 1975 on Certain Land Taxes and Fees, Dz.U.45.229.
For more see Andrzej MÄ czyÅski: Dawne i nowe instytucje polskiego prawa mieszkaniowego, kpp 1 (2002), 65â 114.
Witold NieciuÅski: CzterdzieÅci piÄÄ i dziewiÄÄ lat polityki mieszkaniowej w Polsce [Forty-five and nine years of housing policy in Poland], in Lucyna FrÄ
ckiewicz (ed.): PrzeszÅoÅÄ i przyszÅoÅÄ polskiej polityki mieszkaniowej [The past and the future of Polish housing policy],
Zbigniew RadwaÅski: Najem lokali w Åwietle przepisów kodeksu cywilnego a prawo lokalowe [Apartment lease in the light of the provisions of civil law versus apartment law], pip 2 (1966), 216â 217; Jan Gwiazdomorski: âNajemâ lokali jako problem kodyfikacyjny [Apartment lease as a codification problem], pip 4 (1956), 652â677; Józef SkÄ pski: Zagadnienia cywilistyczne prawa lokalowego [Civil-law topics in apartment law], Nowe Prawo 7â8 (1957), 32â33.
Dudek: Utopia nad WisÅÄ , 163.
Among others, the Central Authority for Small-Scale Production Activities (cudw) â Act of 7 March 1950, Dz.U.10.104. Partial freedom was introduced in the seventies, also in response to the protests of 1970, though the activity continued to be subjected to restrictions â Act of 18 July 1972 on the Organization and Exercise of Trades and Crafts, Dz.U.23.164.
For more see Machnikowska: Prawo wÅasnoÅci, 443â468.
Many of the entities active in the public sphere were given not legal personality but only an incomplete capacity for legal transactions. Together with legal persons, those functioned under the collective umbrella of âentities of the socialized economyâ. In this book, the term is used interchangeably with âsocial entityâ.
Elena A. Lukasheva: Socjalistyczna ÅwiadomoÅÄ prawna i praworzÄ dnoÅÄ [Socialist legal consciousness and rule of law], pwn, Warsaw, 1977, 31.
To Jerzy W, OchmaÅski, analysing the functioning of the administrative bodies in the sphere of citizen-state relations, the continuation of some of the systemâs original characteristics is visible through the continued use throughout the entire era of Peopleâs Poland of methods he terms a new totalitarianism âfounded not on ideology or direct physical terrorâ but on âdirection of the individualâs lifeâ, where âthe measure of the totalitarian oppression here is going to be not the number of victims but the level of the individualâs dependence on the stateâ; OchmaÅski: Administracja ÅwiadczÄ ca, 20â22; see more Carl J. Friedrich, Zbigniew. K. Brzezinski: Totalitarian Dictatorship and Autocracy, Praeger, New York, 1965.
The Constitution of Polish Peopleâs Republic did not contain a provision on equality before law; it proclaimed the existence of multiple social rights.
Wasilkowski: PojÄcie wÅasnoÅci, 79.
Concerning, original elements of the analysis of Marxism, providing the basis for rational conclusions in the works of Polish scholars of the era; see more KoÅakowski: GÅówne nurty, vol. 3, 177ff.
Kazimierz OpaÅek, Jerzy Wróblewski: Zagadnienia teorii prawa [Topics of theory of law], pwn, Warsaw, 1969, Zygmunt ZiembiÅski, Teoria prawa [Theory of law], pwn, Warsaw-PoznaÅ 1977.
Jerzy ZajadÅo: Leksykon filozofii i teorii prawa, 100 podstawowych pojÄÄ, C. H. Beck, Warsaw, 2007.
Oskar Lange distinguished social strata and classified labour as connected with production either directly or indirectly, the latter such as conceptual work. StanisÅaw Osowski defined strata as elements of the social structure separate from social classes, taking non-production work into account as well; see Kozyr-Kowalski: Struktura gospodarcza, 99, 166 and 169.
Concerning the many years of academic discourse involving the two theoreticians, see SÅawomir Tkacz, Zygmunt Tobor: Problematyka praworzÄ
dnoÅci w teorii prawa Kazimierza OpaÅka [Topics of rule of law in Kazimierz OpaÅekâs theory of law],
See more Kazimierz OpaÅek: PraworzÄ dnoÅÄ [Rule of law], in Marian CieÅlak (ed.): Zagadnienia prawa karnego i teorii prawa: ksiÄga pamiÄ tkowa ku czci profesora WÅadysÅawa Woltera [Topics of criminal law and theory of law: a commemorative book in honour of Professor WÅadysÅaw Wolter], Wydawnictwo Prawnicze, Warsaw, 1959, 129â133.
See more Kazimierz OpaÅek: Spór o pojÄcie praworzÄ dnoÅci [The dispute about the concept of rule of law], pip 10 (1959), 519â535.
See more Kazimierz OpaÅek: Formalne i materialne pojÄcie praworzÄ dnoÅci [The formal and the substantive concept of rule of law], in WacÅaw Osuchowski, MieczysÅaw SoÅniak, BronisÅaw Walaszek (eds): Rozprawy prawnicze: ksiÄga pamiÄ tkowa dla uczczenia pracy naukowej Kazimierza PrzybyÅowskiego [Legal dissertations: a commemorative book to honour the academic work of Kazimierz PrzybyÅowski], pwn, Krakow-Warsaw, 1964, 201â208.
Such a position was voiced by Andrzej Burda: Demokracja i praworzÄ dnoÅÄ [Democracy and rule of law], zn im. OssoliÅskich, WrocÅaw-Warszawa-Kraków, 1965, 213â216; Adam Åopatka: WstÄp do prawoznawstwa [Introduction to jurisprudence], pwn, Warsaw, 1975, 172â174; Lukasheva: Socjalistyczna ÅwiadomoÅÄ (Polish translation from the Russian).
Andrzej Burda: Instytucjonalne gwarancje praworzÄ dnoÅci i ich rola w paÅstwie socjalistycznym [Institutional guarantees of rule of law and their role in a socialist state], pip 8â9 (1971), 216.
Address by Justice Jankowski, Chamber President of the Supreme Court, to presidents of voivodeship courts; bms 5 (1964), 11.
See more Józef Nowacki: PraworzÄ dnoÅÄ: wybrane problemy teoretyczne [Rule of law: selected theoretical topics], pwn, Warsaw, 1977, 78 and 87.
See ibidem, 66.
MaÅgorzata Michalewska-Pawlak: ObywatelskoÅÄ demokratyczna jako idea normatywna w koncepcjach polityczno-programowych polskiej opozycji w latach 1980â1989 [Democratic civilness as a normative ideal in the politico-programmatic concepts of the Polish opposition in 1980â1989], ecs, GdaÅsk, 2010, 239â285.
This was the conclusion advanced by Stefan Bratkowski as a commentator of the events unfolding at the time; see more Ash, Polska rewolucja, 49.
The protocol documenting the agreement reached by the government committee and the Interfactory Strike Comitee on 31 August 1980 at GdaÅsk Shipyard included calls for âequality of the farming sectors in access to all means of production, including land.â Wojciech GieÅżyÅski, Lech StefaÅski: GdaÅsk, SierpieÅ 80 [GdaÅsk, August 1980], kiw, Warsaw, 1981, 215.
The Solidarity Centre for Citizensâ Legislative Action was established on 28 February 1981, following the First Polish Forum of Employees of the Justice System (i Ogólnopolskie Forum Pracowników Wymiaru SprawiedliwoÅci), held on 17 January 1981; StanisÅaw Grodziski (ed.): WkÅad krakowskiego i ogólnopolskiego Årodowiska prawniczego w budowÄ podstaw ustrojowych iii Rzeczypospolitej (1980â1994): projekty i inicjatywy ustawodawcze, ludzie, dokumenty i oceny, [The Contribution of the Krakow and national legal environment to the construction of the political foundations of The Third Polish Republic (1980â1994): legislative projects and initiatives people: achievements and evaluations], KsiÄgarnia Akademicka, Krakow, 2018
Uwagi dotyczÄ ce projektu ustawy o gospodarce terenami nierolniczymi [Remarks on the draft bill on the administration of non-farming land, SeptemberâOctober 1981], in Kazimierz Barczyk, StanisÅaw Grodziski, Stefan Grzybowski (eds): Obywatelskie inicjatywy ustawodawcze SolidarnoÅci 1980â1990. MateriaÅy i projekty ustaw Centrum Obywatelskich Inicjatyw Ustawodawczych âSâ i SpoÅecznej Rady Legislacyjnej [The citizensâ legislative initiatives of Solidarity. Materials and legislative drafts of the Solidarity Centre for Citizensâ Legislative Action and Social Legislative Council], Wydawnictwo Sejmowe, Warsaw, 2001, 419â422.
Stefan Grzybowski: Notatka z posiedzenia ZespoÅu dla zagadnieÅ prawa rolnego Centrum Obywatelskich Inicjatyw Ustawodawczych w dniu 29 października 1981 r. [Note of the Team for the Issues of Farm Law of 29 October 1981], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 422â423, mentioning liberalization of transactions involving farming land, elimination of âcontractationâ rules.
ProtokóŠz posiedzenia Komisji ds. reformy prawa cywilnego nszz âSolidarnoÅÄâ odbytego w dniu 30. iii.1981 r. (Minutes of the meeting of the Committee for Civil Law Reform of nszz SolidarnoÅÄ held on 30 March 1981), in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 335â338.
The tasks were separated â designing the general assumptions for certain elements of the reform was entrusted to the Konwersatorium DoÅwiadczenie i PrzyszÅoÅÄ (Experience and Future Seminar), which launched initiated to reinforce civil rights during the 70s of the 20th century. On the other hand, one of the variant drafts of a bill on state-owned enterprises and crew self-government was prepared by representatives of the largest sixteen state-owned enterprises, the so-called â16ʹ.
Ewa ÅÄtowska, CzesÅawa Å»uÅawska: Uwagi dotyczÄ ce projektu ogólnych warunków gwarancji jakoÅci oraz zwiÄ zanego z nimi projektu karty gwarancyjnej [Remarks concerning the draft of general terms of the quality guarantee and the draft warranty card associated thereto], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 339.
The team on civil-law topics also included Antoni Agopsowicz, Zygmunt BidziÅski, Barbara BÅachowska, BogusÅaw Gawlik, Andrzej Kopff, Andrzej Kubas, Maria Poźniak-Niedzielska and Andrzej Wasilewski; see Andrzej MÄ czyÅski: Ustawa o Komisji Kodyfikacyjnej w pracach SpoÅecznej Rady Legislacyjnej [The Act on the Codification Commission in the works of the Social Legislative Council], in Grodziski: WkÅad krakowskiego, 155â160.
Marek Safjan: Wspomnienia o SpoÅecznej Radzie Legislacyjnej [Remiscences of the Social Legislative Council], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 550â552.
Kazimierz Barczyk, quote after Krzysztof Sobczak: Budowa demokratycznego paÅstwa prawa rozpoczÄÅa siÄ w 1981 roku [The building of a democratic state ruled by law began in 1981], in Grodziski: WkÅad krakowskiego, 583â584.
Ryszard Tadeusiewicz: Prawo nareszcie stanowione przez obywateli [A law at last made by the citizens], in Grodziski: WkÅad krakowskiego, 379.
ProtokóŠz posiedzenia, 336.
Ibidem, 338.
Ibidem, 336â338.
ii Zebranie Komisji Prawa Gospodarczego przy Centrum Obywatelskich Inicjatyw Ustawodawczych nszz âSolidarnoÅÄâ [2nd meeting of the Economic Law Committee of the Citizensâ Legislative Action Centre of nszz âSolidarnoÅÄâ], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 392â395.
Ewa ÅÄtowska: Ochrona konsumentów: propozycja wzmocnienia mechanizmów ochronnych przewidzianych w kodeksie cywilnym [Consumer protection: a proposal to strengthen the protective mechanisms provided by the Civil Code], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 344.
Ibidem, 345.
StanisÅaw WÅodyka: WÅasnoÅÄ a reformy gospodarcze [Property and economic reforms], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 575.
CzesÅawa Å»uÅawska: O poczÄ tkach przeksztaÅcania systemu gospodarczego z perspektywy dwudziestu lat [On the beginnings of the transformation of the economic system from twenty yearsâ perspective], in Barczyk, Grodziski, Grzybowski: Obywatelskie inicjatywy, 576.
Act of 23 March 1982, Dz.U.11.81.