3 rd Annual CEENELS Conference. Book of abstracts. Legal Traditions and Legal Identities in Central and Eastern Europe Rīga, January 2018

Transcription

1 3 rd Annual CEENELS Conference Legal Traditions and Legal Identities in Central and Eastern Europe Rīga, January 2018 a part of the the 76 th Scientific Conference of the University of Latvia Book of abstracts photo by Toms Grīnbergs, University of Latvia

2 Contents Doc. Anna Alexandrova & Doc. Andriej Sjerjegin... 4 Doc. Dr. Mihail Antonov... 4 Mgr. Wojciech Bańczyk... 5 Doc. Dr. Kamil Baraník & Mgr. Klaudia Bederková... 5 Doc. Dr. Tomas Berkmanas... 6 Dr. Paulina Bieś-Srokosz... 6 Dr. Lucian Bojin... 7 Mgr. Krzysztof Bokwa... 7 Mgr. Marko Bratković... 8 Doc. Dr. Arnis Buka... 8 Izr. Prof. Dr. Jernej Letnar Černič... 9 Mgr. Lu Da Dr. Sorina Doroga Doc. Dr. Inese Druviete Mgr. Paweł Dziwiński Mgr. Piotr Eckhardt Ksenija Eggert Dr. János Fazekas Dr. hab. Piotr Fiedorczyk Dr. Laura Gheorghiu Doc. Dr. Elīna Grigore-Bāra Prof. Dr. Manuel Guţan Mgr. Tomasz Guzik Dr. hab. Magdalena Habdas & Dr. hab. Anna Stawarska-Rippel Prof. Dr. Gábor Hamza Mgr. Jūlija Jerņeva Doc. Marija Kapustina Mgr. Łukasz Kołtuniak Mgr. Lauris Liepa Mgr. Ilija Manasiev Dr. Rafał Mańko

3 Doc. Dr. Vadim Mantrov Dr. Christoph-Eric Mecke Dr. Alexandra Mercescu Magdalena Michalska Prof. ord. Dr. habil. Piotr Niczyporuk Aleksandra Niczyporuk Izr. Prof. Dr. Marko Novak Prof. Dr. Sanita Osipova Dr. Berke Özenç Doc. Olga Pietrova Mgr. Jakub Płaziuk Doc. Dr. Dmitrij Poldnikov Mgr. Aleksandrs Potaičuks Mgr. Ewa Radomska Mirosław M. Sadowski Prof. Agnieszka Skóra & Dr. Agata Cebera Dr. Ginta Sniedzīte Mgr. Viktorija Soņeca Doc. Vladislav Starženieckij Prof. Dr. habil. Adam Sulikowski Dr. Jakub J. Szczerbowski Prof. Andrzej Szmyt & Dr. Anna Rytel-Warzocha Dr. habil. Piotr Szymaniec Dr. Markéta Štěpáníková & Dr. Terezie Smejkalová Mgr. Bartłomiej Ślemp Dr. Paulina Święcicka & Dr. Marek Stus Prof. Gaabriel Tavits Mgr. Marcin Wróbel

4 Doc. Anna Alexandrova & Doc. Andriej Sjerjegin Penza State University & Southern Federal University, Rostov The question of determining the legal identity of the states of Central and Eastern Europe The report purports consideration of interaction and mutual influence of legal systems of Central and Eastern European states in the course of their historical development. It implies, in particular, their common historical (Slavic) roots, uniform sources of law, items of legal culture, etc. The fact that these states were part of a socialist state system for about half a century, also had a definite impact on the development of their legal systems. At the same time, each of the states of CEE has its own legal identity, due to the peculiarities of its historical path, geographical location, traditions existing in the state and the mentality of the population living there. The report, therefore, attempts to determine the identity of the modern Russian legal system; it examines the main features of this system, peculiarities of its evolution, elements of continuity and borrowing in the Russian law. The conclusions are drawn that the majority of the states of CEE, having passed the so-called post- Soviet (post-socialist) stage of their development, joined the continental legal family, confirming the German theory of the temporary anomaly of socialist law. As for the Russian legal system, despite the fact that it is very close to the family of the continental law by a number of criteria, it still exists apart from it (in particular, due to the specificity of the legal ideology and legal culture). Moreover, the current tendencies of socio-political development (the creation of the Union State of Russia and Belarus, the Customs Union and the Unified Energy System) give grounds to assume that in the long term there might emerge the Eurasian legal family and Russia might join it. Doc. Dr. Mihail Antonov Higher School of Economics, St. Petersburg Teaching and applying the law in the ex-ussr countries: subsumation vs discretion Most attention of law schools in the ex-ussr countries is paid to teaching the legal syllogism (subsumption and deduction methods) which is suitable for deciding respectively easy cases, but is frequently becomes insufficient in hard cases. In cases of silence or ambiguity of the law, collision of legal principles and legitimate interests, good legal argumentation may help judge arrive at good decisions. Lacking the knowledge and methods of such argumentation, Russian judges quite easily falls into a pure decisionism. Even the term "discretion" is prohibited in legal parlance of judges (it is substituted by the term "internal conviction"), but in fact it reflects quite well what judges are doing in hard cases in which they find no legal rules (no good legal rules) to decide the cases reasonably and justly. This notwithstanding, the systems of the regional legal education in general, and of vocational legal training in particular, are mainly based on the mechanistic view of judge s activity as subsumption of concrete situations under general provisions of the law. This vision does not correspond to the complexity of judicial function which inevitably implies a certain discretion and freedom in legal interpretation and decision-making. This complexity also requires development of institutional and cultural regulatory mechanisms to bridle this discretion, including the use of the advanced methods of legal technique allowing to provide a higher degree of impartiality and objectivity. The distinction in these methodological aspects of legal (including judicial) education between the Western and the ex-ussr countries 4

5 explains, to some extent, why the decisions made by the regional courts sometimes are conceived by the Western European observers and experts as being below standards of justice. However, despite the commonly shared view, the main reason is not corruption or alleged political influence (these play their role only in a relatively small number of cases), but rather the way the judges are educated and trained. Mgr. Wojciech Bańczyk Jagiellonian University in Kraków Post-mortal transfer of money outside inheritance by payment on death from the bank saving account from Socialist Legal Tradition to modernisation of succession law The institution of payment on death from the bank saving account allows the party of such account contract to indicate the beneficiary of the payment from this account after his death. In Poland it is now regulated by art. 56 Banking Law and limits both the scope of subjects allowed to be beneficiaries and the sum of the payments, but those limits are not consistently used in varied regulations of the institution. This institution is, however, connected with a long-term development in the Socialist Legal Tradition. Having its predecessors in the 1922 USRR law, it has been regulated in Poland from It was one of the privileges aimed to support bank saving by people. At the same time it is unknown to the most countries within Western Legal Tradition (e.g. Germany). Thus the primary aim of the institution was to encourage people to saving money. Then they could have easily transfer those money after their death to the beneficiary directly, outside inheritance. However, even though this primary function is no longer important, the institution still exists, allowing for the transfer of money after death, but outside inheritance. It allows to avoid the difficulties and limitations of the inheritance law (liability for the inheritance debts, for the legitim, as the applicability of inheritance law rules is doubtful with regard to the institution) and long-term probate proceeding. Then it is named by J.Langbein as a fundamental will substitute characteristic to modern US succession law. However, in Polish law it still retains drawbacks derived from the socialism. E.g. the sum limit (easily calculable with a single bank) is difficult to be obeyed in a diversified banking market. Altogether, the speech will analyse the evolution of the institution from Socialist Legal Tradition to modern law. This evolution is fundamental to its proper understanding. Doc. Dr. Kamil Baraník & Mgr. Klaudia Bederková Komensky University Bratislavia Constitutional Identity of former Czechoslovakia in the EU This paper deals with process of conceptualisation of constitutional identity of former Czechoslovakia region, nowadays held by two sovereign states. Their constitutional identities had been formed by communistic regime for decades. In 1989, new democratic constitutional values were suddenly re-discovered. Then the country split up, so individual paths of its former constituent parts could be taken. In the following years both countries developed slightly differently, while constantly influencing each other. In 2004, they together acceded the EU. The 5

6 entire process of democratization and identity reshaping, thus, took only 15 years. The contribution grapples with dilemma of constitutional identity-making through the lenses of constitutional judiciary. The main question of contribution is, whether this initial period of "democratization" has last long enough to form distinct concepts of fundamental constitutional values, or whether these two countries have been simply following "compulsory European democratic model". The paper also outlines possible implications of this development for the future of this region. Doc. Dr. Tomas Berkmanas Vytautas Magnus University, Kaunas Constitutionalism and Statehood: from Theoretical to Spatial (Lithuanian) Perspective The phenomenon of constitutionalism is very voluminous. It is not confined only to the written forms, including written constitutions and written constitutional jurisprudence. The latter conception could be tied to the constitutionalism or constitution in their narrow sense. The margin of constitutionalism in a broader sense goes somewhere in the same territory where we could find the margin of statehood. In this case it could be stated that constitutionalism or constitution is the unity of institutions and practices that identifies and, we could also say, maintains certain legal-political regime. Among such practices we could find written constitutional jurisprudence, among such institutions we could find constitutional courts. But, definitely, not only. There is much more. In this case we could talk about vast and symbiotic unity of processes/phenomena where everything is very much inter-connected and depend on each other (it is not only democracy, human rights, checks and balances mechanism but also general social opinion, dissemination of information, maturity of political elites and so on). However, the most fundamental process/phenomenon I would conceive very analytically and logo-centrically, and would tie to the mentality of statehood/constitutionalism, mentality which hides itself in sometimes unexpected places and which is the core of constitutionalism. In Hartian and somewhat poetical terms, in this short presentation/expose I will try to look around in this vast territory where the rule of recognition, as the fundament of a state and its law, may hide generally/theoretically and de facto spatially, i.e. having in mind some Lithuanian peculiarities. Dr. Paulina Bieś-Srokosz Jan Długosz University The Impact of Western Legal Institutions on Polish Law: A Critical Analysis of Recent Legal Transfers Currently, one can see tendency to applicate institutions of so called legal transplants by Polish legislator. Consequently, the impact of Western legal solutions on Polish legal system is perceiveable, however not always this transplants are correctly fucctioning. 6

7 Dr. Lucian Bojin Universitatea de Vest, Timişoara Legal Debates and Trending Topics in Romanian Private Law ( ) The legal debates in Romanian Private Law in the first two decades after 1989 may be viewed as providing a fair picture of the self-perceived Romanian legal identity at that time. Legal debates in general can be good indicators when trying to unveil a certain legal identity. The post 1989 period is particularly relevant because discussions and debates were the first open ones, ie freed from the political and institutional pressure which characterized the communist era. On the other hand, the post-89 Romanian private law maintained a real continuity with its predecessor. Therefore, the debates in Romanian private law are much more relevant for the Romanian legal identity than, for example, those in public law of the same period. In public law, a clean slate approach was adopted (particularly in constitutional law). Consequently, legal debates (when they existed) rather echoed the Western European ones than expressing local concerns. Recourse to Romanian traditions in public law and political thinking needed to leap back at least half a century, which drastically diminished their contemporary relevance. In contrast, the perception of private lawyers was that private law was liberated, but needed not to be reinvented, as the public law. For these reasons, if one is to talk about a Romanian legal identity in the 90 s, it should seek it rather in the private law. Some of the trending topics were generated by the common socio-economic challenges in the 90 s, but the prevailing opinions and the solutions adopted might reflect local characteristics. Moreover, some other topics were rather idiosyncratic and, as such, they do tell a lot about the local legal animus. The authorities relied upon by the debaters also may reveal interesting elements for one who is looking for a Romanian legal identity. The paper will try to explore some of the main debates in Romanian private law in the first two decades after The year 2009 is not chosen by case. Not only it marks an end to a symbolic first 20 years period, but is also the year when a new Romanian Civil Code was adopted, which might also imply that the legal community felt ready to declare the end of the transition period. Mgr. Krzysztof Bokwa Jagiellonian University We stand with You, Your Majesty..." - Austria and Austrian law in Polish legal tradition The paper will address a topic of links between two significant Central European legal traditions Polish and Austrian. Since the first partition of Poland in 1772, its big areas (Galicia) were incorporated into the Habsburg Empire and remained its part to its very end in Ancient Old-Polish legal system was removed almost immediately and replaced with modern regulations of private (ABGB) and penal (Franziscana, Code of 1852) law, which partially remained binding until the mid-20th century. Moreover, Galicia was a testing ground for Austrian legislators (West Galician civil and penal codes). Until 1860s, Poles universally perceived Austrian government and law as foreign and imposed. That situation was changed by internal rebuilding of Habsburg Empire as a liberal, constitutional state, in which Poles gained a wide authonomy and influence also in legal matters. Since that point, thanks to the polonisation of public life, Galicia became the only part of divided Poland, where Polish jurisprudence and creation of Polish legal elites was 7

8 possible. The paper will therefore discuss the role played by Austrian legislation and 'ex-austrian' lawyers in developing of Polish state and law after 1918, but also influence of Polish lawyers (professors and judges) on law in Habsburg monarchy; Polish influences on Austrian law (e.g. pactum advitalitum) will be mentioned too. The author would also discuss an adoption of trial by jury in Austrian penal procedure this common law institution was also (impermanently) introduced in southern Poland. That analysis will lead to essential issues: can we speak about the continuity between Austrian and Polish legal traditions? How strong and real were (are?) links between them? Do they create a common, specific Central European legal space? The author aims to answer those questions. Mgr. Marko Bratković University of Zagreb Legal Tradition and the (Mis)conception of the Supreme Court's Role Following the latest civil procedure reforms in many jurisdictions in Central and Eastern Europe, appeals to the Supreme Courts are limited to cases that raise issues of general significance, issues that go beyond the immediate interest of the parties. At least that has been the legislator s intention in the jurisdictions that have carried out such reforms under pressure from overcrowded dockets of their Supreme Courts. Hence, the private purpose of just and correct resolution of every individual case has yielded to a public purpose consisting in safeguarding and promoting the uniformity of case law, the development of law, and offering guidance to lower courts, as has traditionally been the case with supreme courts in common law jurisdictions. However, such a paradigm shift has been met with considerable criticism by a large part of the legal community, in particular attorneys-at-law, but some academics as well. In the legal tradition of Central and Eastern Europe, the function of the Supreme Court is not only to assure uniformity of case law throughout the country, but also to fix mistakes of the courts of appeal in the interest of the individual parties. This discrepancy has been met with resistance to the change in the Supreme Court's role. Resistance was particularly hard in respect to the introduction of filtering mechanisms, which enable the Supreme Court to grant permission to second appeal only if the case raises a question of law of fundamental significance. It has been argued that litigants will hence become exposed to judicial arbitrariness. The roots of this resistance to the change in the Supreme Court s role in Central and Eastern Europe may partly attributed to the Socialist legal tradition, in particular to the misconception of the right to appeal, the misunderstanding of the principle iura novit curia and distrust in the judiciary. Doc. Dr. Arnis Buka University of Latvia Specifics of the EU law application and Latvian courts: friendly alien or foe? The paper will focus on some specific elements of the EU law that are developed by the case-law of Court of Justice of the EU and on the application of those elements by Latvian courts. In particular, EU law principles of direct effect and indirect effect of directives and the principle of 8

9 state liability will be addressed. Without the ambition to give exhaustive statistical data, the paper will use some of the most illustrative and topical samples from Latvian case-law and compare them with other studies in the field. Thus the paper aims to evaluate the efficiency of the application of the EU law principles that are derived from the case-law of the Court of Justice of the EU. Even more, the paper hopes to give broader perspective on the challenges in the process of application of the case-law of the Court of Justice of the EU and on the changes that might be needed at the EU level. Dr. Cosmin Sebastian Cercel Beyond Constitutional Identity: Law, History and Traditions of Struggle in Central and Eastern Europe In this paper I aim to address a number of salient theoretical issues pertaining to the concept of constitutional identity by reflecting on their relevance to the specific context of contemporary Central and Eastern Europe. I thus intend to examine both questions of constitutional and legal continuity and the status of constitutional normative orders in modernity. By insisting on the relevance of history for a better understanding of our politico-legal landscape, I shall propose a reconstruction of the concept. My endeavour is twofold: first, as a matter of constitutional theory and jurisprudence I shall try to unravel the deadlocks inherent in the uses of the concept at this particular historical juncture. Second, in order to address the particular problems raised by constitutional identity within the recent context of the rise of authoritarianism that are equally theoretical and political I shall move towards a philosophical and historical excursus which aims to bring history back within the realm of constitutional theory. In addition to this, my analysis shall be doubled by a reflection of on the ways of overcoming the relativist-universalist standstill that is blocking our understanding of legal and constitutional categories. In this way my contribution seeks to link my previous work on authoritarian ideologies and law to a future project of rereading and presumably redeeming legal history. Izr. Prof. Dr. Jernej Letnar Černič Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia Impact of the European Court of Human Rights on the rule of law in the former Yugoslavia The countries of the former Yugoslavia have in past decades failed to meet both, the challenges of the socio-economic environment, and of the full-fledged functioning of the rule of law and the protection of human rights. Their development was in the first decade halted by the inter-ethnic wars, while in the second decade, their institutions have been hijacked by various organised criminal groups and populist interest groups. All the countries of the former Yugoslavia have been so far facing constant crisis of institutions of a liberal democratic of the modern state based on the rule of law. Only a small number of them have decided to accept effective measures to break away from such crises. The ideological division of former Yugoslav European societies often prevents them from considering only the relevant laws in their decision-making. In order to present the problems of the newly established democracies in the Former Yugoslavia, this article presents and analyses the contributions and impact of the European Court of Human Rights to upholding human rights protections and rule of law in Bosnia and Herzegovina, Croatia, 9

10 Macedonia, Montenegro, Serbia and Slovenia. In the closing part of the article, conclusions are drawn on how those countries should proceed to internalize the values of liberal democratise and fully internalize the rule of law in their democratic institutions. Mgr. Lu Da University of Szeged How to Protect Constitution between China and Hungary: An Comparative Perspective In a modern country, Constitution or in some countries so called Fundamental Law is considered as the most important regulation in the state. Since it regulated the ultimate principles on political and economic field. A Constitutional organ usually will be designed in order to protect the Constitutionality. In most western scholars opinion, socialist states usually didn t pay their attention on the protection of Constitution, since Constitutions in socialist states are more like a political declaration. China and Hungary both experienced the socialist system in 20 th Century. However, Hungary as a state in Central Europe already joined the EU family and practiced the EU legal system in theory. China, after the collapse of Soviet Union, considered as the biggest socialist state in the world. In this article, the author will examine the protection of Constitution provisions in the Constitution between China and Hungary from socialist period until now. By employing a comparative approach, the author will analyze the path of protecting Constitution in both states, the author would like to detect how the socialist legal tradition effects the operation Constitutional Court in Hungary and the possibilities of protection of Constitution in China will be in future. Dr. Sorina Doroga Universitatea de Vest The Dynamics of Judicial Formalism: Looking out the Window or Walking a Two-Way Street? That the judicial style of Central and Eastern European courts is based on a formalistic approach is hardly a debated sentence. There is relatively broad consensus in literature with regards to formalism as a distinctive feature characterizing the judiciary in Central and Eastern Europe (CEE), which may be explained by a variety of underlying historical, ideological and political causes. While a definition of the concept is not widely agreed upon, the core feature of judicial formalism seems to be an approach to adjudication based strictly on positive law and relying heavily on literal interpretation, with the role of the judge confined to mechanically applying the law, rather than embracing more creative techniques and modes of reasoning. Literature thus generally focuses on discussing either the sources of judicial formalism or the effects that it produces the latter qualified as negative for the most part. While acknowledging the causes and specific features of judicial formalism in CEE, the present paper aims to add some reflections on the dynamics of the relation between national and international courts from the perspective of a potential evolution in style. It seeks to analyze whether the formalist approach has become more diluted by the growing and continuous interaction of national courts in CEE with supranational bodies such as the CJEU or the ECtHR or whether, on the contrary, the (relatively) new communication and cooperation mechanisms have been regarded with an equally formalistic eye. A further point discusses the dynamics of the 10

11 relationship between international courts and the judicial bodies in CEE countries by looking at the possible bidirectional influences generated by their interaction. Doc. Dr. Inese Druviete Riga Graduate School of Law Discretion in opting out from data protection leading to discrimination. The information revolution has created a number of tech-development related challenges for lawmakers and the legal community, including the possibility for individuals by express agreement to opt-out from non-mandatory data privacy requirements. Use of one's data in situations where the existence of consent is not disputed creates many challenges starting from where individuals inadvertently subject themselves to potential discriminating against by users of algorithmic data operations to questions in regard to ownership and even succession of this data. 11

12 Mgr. Paweł Dziwiński Jagiellonian University Confoederatio Generalis Varsoviae A.D. 1573: an Introduction to the Legal Grounds of Tolerance Phenomenon in Polish-Lithuanian Commonwealth The Warsaw Confederation Act (January 28, 1573) is one of the most important legal act for Polish and Lithuanian national identities. As a first formal European guarantee of reli-gious freedom is truly like a feather in their national caps. It also symbolizes the greatest virtues of the Polish Lithuanian Commonwealth which is sometimes named as a state without stakes. By this means the Warsaw Confederation still resonates with the present. Doubtless the importance of the act should not be undervalued though it should not be considered as a beginning of Polish and Lithuanian tradition of religious tolerance. It was not possible that exceptional rules could be made from scratch. Especially that they were made without central authorities and as the rank and file initiative. Furthermore every rule of law has its own roots which are mostly caused by economic, social and cultural conditions. According to F. C. Savigny and other lawyers from German Historical School of Jurisprudence every rulemaking is a historical phenomenon who should not be interpreted without historical determinants. On the whole it should be considered that act of the Warsaw Confederation is merely a product of a wider legal tradition in Poland and Lithuania. Their elements should be particularly found in the beginning of the multi religious society and state at the break of XVth century. When the confederation of the Kingdom of Poland and the Grand Duchy of Lithuania formally started and delivered mixed society with numerous minorities. Certainly we can track first elements of the religious freedom in the high medieval priv-ileges for Jews, Armenians and Ruthenians like the Statute of Kalisz presented by Bolesław Pobożny in Nevertheless they were usually restricted to the small particular communities of infidels but not to the minority in general. Even though that privileges were the basis for the further freedoms. As it was mentioned the breakthrough is strongly connected with the Polish and Lithu-anian union during the reign of Władysław II Jagiełło. At this time polish canonists Stanisław ze Skarbimierza and Paweł Włodkowic changed a theological perspective on infidels and de-livered philosophical basis for further peaceful cohabitation. It is also a time when royal privi-leges strengthened political and social position of nobles creating their quasi national identity as a naród szlachecki Which is considered as a beginning of Polish national identity and initially born apart from the religious differences. In my paper I will present this issue interpreting the text of the Warsaw Confederation Act in the context of their sources. 12

13 Mgr. Piotr Eckhardt Jagiellonian University The political concept of Central Europe before and after the Autumn of Nations The political concept of Central Europe has significantly evolved in recent decades, with the Autumn of Nations (1989) as a turning point Three different approaches to Central Europe can be distinguished from 1980s until now. I. Europe Kidnapped by Moscow. Before 1989, when Poland, Hungary and Czechoslovakia were on the east side of the Iron Curtain, Central Europe was defined as kidnapped west as Milan Kundera wrote in his famous essay. Central Europe was considered as a region with strong historical and cultural connections with Western Europe, but forced to stay in political relationships with Eastern Bloc led by Soviet Russia. Therefore, before 1989 Central Europe was considered as a region which should belong to the West, but belongs, forcibly, to the East. II. The Peripheral Apprentice. After 1989, the region was no longer separated by force from the west. Therefore, some intellectuals claimed, that the concept of Central Europe is obsolete. No country is kidnapped by the East any longer. Others used Central Europe as a tool for cooperation of post-socialist countries which aim at integration with western structures (EU, NATO). Between 1989 and 2004, Central Europe was considered as the region already belonging to the political and cultural West of Europe, which still has to catch up with more developed countries in many aspects. In Wallersteinian terms, therefore, Central Europe was a periphery, struggling to modernise itself and to reach the level of economic life and legal culture of Western Europe (the centre). Central Europe was, at that time, a docile peripheral apprentice of Western Europe, who turned his back towards the East and was fascinated by the West. III. Sick Man of European Union. Not long after that long-awaited integration with Western structures had been fully accomplished (between 1996 and 2007), something started to change. The once faithful and docile peripheral apprentice started to play truant, perhaps somewhat disheatened by its Western teachers, who proved not only too strict, but also at times disparaging and arrogant. Central Europe, from a docile apprentice from the peripheries, started to transform itself into the sick man of the EU. Western European politicians and publicists started to use the term Central Europe in a negative context. Central Europe became the European heart of darkness : backwardness, populism, bigotry, xenophobia, violations of the Rule of Law etc. This lead many Westerners to perceive Central Europe as an Eastern Troian horse, destabilizing it from the inside and contesting its values. Ksenija Eggert student, Higher School of Economics, Moscow Lost in transition: Russia in search for new legal identity. In the course of XXth century Russian society endured two fundamental transformations in every domain of its life: political, social, economic, cultural and legal. Transition from old Soviet system to a new one brought a significant increase in the living standards of Russian society. However, nearly 26 years after the dissolution of USSR, Russian people remain uncertain about many aspects of their past, present and future, legal identity being one of the issues. 13

14 Today Russian people cannot retain Soviet identity due to the absence of the same conditions which determined it, however the search for new identity is still obstructed by many factors, making it a somewhat painful process for the society. In my presentation I plan to examine two problems concerning Russian legal identity: that of the concept of «legal identity» itself, and the issue with the main component of legal identity, namely the perception of history. The structure of my presentation will be as follows: Firstly, I shall speak about the scientific development of the «legal identity» notion in Russian legal science and the possible application of this concept to collective entities (such as Russian society). Secondly, I will focus on the issues, concerning the perception of history (including legal history) by Russian society in general, and legal community in particular. I shall conclude by speaking about Russia s search for new legal identity as a part of a bigger ongoing process in the CEE, and the possible mutual influence between Russia and other CEE countries in the context of legal identity. Dr. János Fazekas Eötvös Loránd University Centralization of government and legal traditions in Hungary In the era of globalization and illiberal tendencies national governmental systems (including in Hungary and other CEE countries) have been facing new challenges, e. g. global economic crisis in 2008 and international migration. After the Second World War in Western Europe and in the 1990 s in CEE countries main tendencies of public administration reforms were decentralization and privatization (due to New Pubic Management theorists). Public tasks and competences have been transferred to local governments and private sector organizations. Moreover, autonomous central agencies have been established within the organization of central government. On the contrary, a serious centralization wave has been detected in Hungary and other CEE countries, e. g. Poland in the 2010 s. Local governments have lost a great bunch of their competences and their fiscal autonomy. The role of the Prime Minister and its apparatus increased and the organization of central government have become much more concentrated than earlier, e. g. the number of ministries and other central bodies have decreased. The main aim of my research is to make clear that what kind of legal traditions stand behind these changes: socialist, post-socialist, Weberian, neo-weberian or other? Can the so called illiberal state be described within the framework of some kind of legal thinking in Hungary and in other CEE countries? The main method of the research is the analysis of the relevant theoretic literature and legal norms. Dr. hab. Piotr Fiedorczyk University of Białystok Matrimonial property regimes in Central and Eastern Europe: tradition and identity The proposed presentation will focus on historical aspects of matrimonial property regimes, both statutory and contractual. The main thesis is that history had very big influence on legal 14

15 regulations which were adopted in the 19 th century civil codes. The text will focus on changes in the first half of 20 th century, when crucial changes were adopted in the Nordic countries and in the Soviet Union. Polish evolution of legal regulation in this field will also be presented. The text will finally focus on the proposal of the Commission on European Family Law about statutory and contractual matrimonial property regimes. Some remarks on the convergence of law in this field will be proposed. Also French-German agreement on matrimonial property will also be discussed. Dr. Laura Gheorghiu Graz University Transylvania vs Romania on self-determination The long tradition of a free or largely autonomous Principality of Transylvania, even under the Ottoman rule has left a strong legacy in the culture of self-determination and statute of the individual. On the opposite, the former Kingdom of Romania had never experienced, less yet, ever discussed about it. Under the Ottomans, the Romanian principalities enjoyed a continuous dependence from the Sublime Gate, thus getting used to being ruled, and managed. As a consequence the later socialist legal culture with its strong paternalism and call to obedience was welcome to Bucharest. Hierarchy, centralization, bureaucracy had been co-genetic to the legal culture of the area, whilst in Transylvania the picture looked exactly the other way around. Not even the Austro-Hungarian Dualism, moreover, not even the Hungarian short rule ( ) could remove the principles and values of a Protestant, free and confident population. The communist era only tried to freeze the differences, but only managed to cover them with a tiny ideological stratum. This sharp distinction not only rooted debates across the Carpathians, but continued to shape the divergence in tackling hot topics like self-determination, reform, human rights or transitional justice. At first, I am going to describe both legal cultures with respect to their approaches to the individual, to the group topics or regional specificities. After drawing a more or less comprehensive picture, I indent to pick up the issue of self-determination and identify the roots and the answers to such up-to-date questions of our time. The importance of such a research rests in my attempt to argue for the calls to decentralization and regionalization, calls to which half of the country gives support and solutions, while the other is still reluctant and afraid of. The underlying idea is that the cleavage between Central European legal culture (Habsburg?) and the Balkan one is somehow in nuce to be found in the domestic Romanian regional identities Doc. Dr. Elīna Grigore-Bāra University of Latvia Latvian Socialist Soviet Republic (December 1918 January 1920) as a rejected Latvian statehood alternative The hypothesis of the paper is that one cannot implement any constitutional order upon a nation. A constitution is not just a voluntary act it has to reflect legal consciousness of the people, otherwise a viable state cannot be established. The author argues that it is not a coincidence that Latvian Socialist Soviet Republic (LSSR, Peter Stuchka s government) failed to continue its existence. In order to find out reasons for this failure 15

16 the author makes a comparative analysis of two constitutional orders of two statehood alternatives that fought for the existence at that time the Republic of Latvia and LSSR. Comparison of constitutional acts can reveal the most significant differences between the two statehood alternatives and illuminate the legal values and principles unacceptable to the Latvian people. Accordingly the author claims that the alternative statehood a soviet state that aspired to communism, did not just accidentally fail, but was rejected because it wasn t corresponding to legal consciousness of Latvian people. In order to understand reasons for this rejection it is also necessary to take the peculiarities of Latvian legal history into consideration, especially features such as the Reformation and its influence on the legal consciousness and the abolition of serfdom in Baltic provinces in 1816, 1817 and 1819 and its legal consequences. Prof. Dr. Manuel Guţan Lucian Blaga University, Sibiu Defining the Post-communist Romanian Legal System: A Legal Identity without a Legal Tradition Or A Legal Tradition without a Legal Identity (?!) After the fall of the communist regime (December 1989) Romania abruptly and dramatically get rid of its communist legal heritage. Equated with the extremely oppressive dictatorial regime of Nicolae Ceaușescu, the communist legal architecture has been almost entirely replaced, starting with the Constitution (1991), with a new one enshrining the values of democracy, rule of law and market economy. This endeavour somehow retrieved the old pre-communist tension between the pioneers of legal modernization through complete Europeanization and the conservative defenders of the Romanian legal tradition. This kind of balance inevitably put at stake, directly or indirectly, the problem of legal identity. On the one side, the stringent necessity of the Romanian society and the post-communist Romanian state to be a part of the free and democratic world has underpinned the identity by appurtenance. For some Romanian legal scholars, to get distance from the socialist legal family meant to naturally re-join the Roman-Germanic legal family. The fact that Romania never fully abrogated its bourgeois Civil Code of 1864 (until 2011) was a strong argument to follow this direction. On the other side, the necessity to build a legal self, at the beginning of 1990s, encouraged the proponents of identity by difference. The Romanian precommunist legal tradition played a central role in this process, regardless the fact that the then Romanian legal system was transplanted from foreign legal models. Surprisingly, after the process of European integration has started, the interest in Romanian legal identity has disappeared. Apparently, the Romanian legal actors gave up the Romanian legal identity, accepting the huge pressures to legal change exerted by the European institutions and considering the process of socio-legal engineering the best way to acquire legal modernity. A (new) legal identity without a Romanian legal tradition is expected to be born. In the case a Romanian pre-communist or communist legal tradition is still existing, there is a very poor interest to collect, refine and critically sustain (or reject) it. Thus, the contemporary Romanian legal system is stuck somewhere between a (new) legal identity without a Romanian legal tradition and a diffuse Romanian legal tradition with no real interest in its real legal identity. 16

17 Mgr. Tomasz Guzik (Jagiellonian University): A distinct features of Polish, Central and Eastern Europe legal identity The author would like to present his scientific researchers on the subject of characteristic features of Polish legal identity and legal identity of countries from Central and Eastern Europe (CEE). The paper will be divided into three parts. The first one will regard to the distincive features of legal identity of CEE countries. The second one will be about genesis of these features and examples (from legal practice and jurisprudence) of these specific features. The last part will deal with the future of polish and CEE legal system. The first section will be the result of analysis and observations of jurisprudence and case law of Polish and CEE legal systems. The author will present, describe and categorize specific elements of these systems that he discovered. The first group of these special components will be consequence of history of Polish legal system, history of Polish country and history of sociopolitical and economic system. It is worth to remind that after the first World War in the Polish territory there were three legal systems. All of them was legal systems of the occupying countries. This means that Polish law was under German, Austrian and Russian influence. For this reason, currently most of Polish lawyers are proponents of legal positivism. But the author notices that Polish legal system at this moment starts to be different system than German, French, Russian, common law and etc.. The second group of characteristic elements of Polish law relates to a system of teaching lawyers. The another category is connected with the influence of European Union Law and relations between individual and the state. The author will describe these features in detail. Thanks to this it will be known how he understand these factors. As it was said, the second part of this paper will contain examples of abovementioned featuers from jurisprudence and case law. The third part will refer to the future of Polish legal system. In this section the author will also regard to the practice of Polish parliament and government throughout last 2 years. In the end the referent will put a few main thesis that then can be discussed. Dr. hab. Magdalena Habdas & Dr. hab. Anna Stawarska-Rippel University of Silesia When love says goodbye from multiple legal solutions to legal (r)evolution and challenges concerning divorces in Poland The aim of this paper is to consider the legal traditions, (r)evolution of legal provisons and the current challenges of divorce law, both in substantive and procedural aspects in order to understand the legal identity of Polish spouses and in order to begin searching for the most advantegous, from a legal and social point of view, changes in divorce law. When Poland regained its independence in 1918, after being partitioned and disappearing from European maps for more than a century, it was left with five different legal orders in force: the German system in western Poland, the Austrian in the south, the Russian in eastern Poland, a mixture of Russian, Polish and French law in central Poland (where Napoleon Bonaparte created the Duchy of Warsaw in 1807, subsequently replaced by the Kingdom of Poland reinstituted by 17

18 the Congress of Vienna in 1815), and Hungarian Law in small parts of Szepes and Orava in southern Poland. Consequently, developing a uniform Polish law was perhaps a task more difficult than in any other country of post-wwi Europe. Unifying family law was particularly difficult because the legal mosaic included three models of matrimonial law, namely: secular (Bürgerliches Gesetzbuch of 1896 and Hungarian Act No. XXXI of 1894 On the Law of Marriage évi XXXI. Törvénycikk a házassági jogról), religious (Ukase on Marriage of 16 March 1836 imposed in Congress Poland by the Emperor of Russia Nicholas I) and a mixed model (Allgemeine Bürgerliches Gesetzbuch of 1811). An innovatory Polish draft (1929) of Matrimonial Law was perceived as too novel for Catholic circles. As a result, Catholics for whom divorce was unavailable in one region resorted to moving to those parts of Poland, where the law allowed them to divorce (which created the problem of legal bigamy). The situation was different in civil procedural law, where codification works were concluded with the first Polish Code of Civil Procedure (1930). The lack of any strictly Polish tradition in civil procedure and the need to take into account the most important achievements of procedural law in Europe, motivated the codifiers to carry out their own, unique on a European scale, independent comparative research. As a result of conservative tendencies and pressure from lawyers of the former Congress Kingdom of Poland, the first Polish Code of Civil Procedure was modelled on the Austrian civil procedure, balancing the role of the judge (court) and the parties, with some deviations towards the Russian civil procedure solutions. The unquestionable phenomenon of the socialist block was the great, although forced, unification of law. In the area of family law, unification brought about a completely secular system of marriage and divorce. Simultaneously, there was an escalation of the inquisitorial principle in civil procedure and the introduction of the prosecutor as the supervisory authority in the field of personal legal relations. In particular, the prosecutor was entitled to bring an action for divorce (from ). The current divorce law, both in its substantive and procedural aspects is still strongly connected with the tradition developed during the communist era. Premises of applying for divorce have not changed since 1964 and the court is required to ascertain the complete and permanent disintegration of family life. However divorce cannot be adjudicated if it is contrary to the best interest of the spouses minor child, rules of socio-economic coexistence or if the spouse exclusively at fault brings the action for divorce without the other spouse s consent. This raises the question of whether such strict grounds for divorce should be maintained or whether priority should be given to dissolving a marriage which no longer fulfils its social role. This choice must then be reflected in procedural provisions, which currently allow parties to divorce only in court. It may be argued that the court s intervention is unnecessary and that other authorities or legal professionals should play a more prominent role in divorces. The implementation of the postulate to improve and accelerate civil proceedings in order to improve reliability, justice, and procedural economy has been a basic issue for all civil procedure reformers. However currently, this postulate demands a direct application to divorce cases, if the court s monopoly in divorces is to be maintained. Thus, the paper seeks to show how past and present legal traditions or choices influence the future of divorce regulations in the light of a changing society, which is arguably becoming more secular and international. This attempt is made with consideration of principles (expediency vs. protection of family, no-fault divorce vs. protection of the innocent spouse, etc.) that must be balanced when it comes to both substantive and procedural provisions. 18

19 Prof. Dr. Gábor Hamza Eötvös Loránd University Codification (Recodification) of Civil Law and Roman Law Tradition in Central and Easterm Europe In the countries of Central and Eastern Europe, the legal traditions that in substance are based on Roman law, are not to be neglected. It should be underlined that in the legal literature this important aspect nonetheless has been to a considerable extent neglected. Suffice it to think of Paul Koschaker s work Europa und das römische Recht and of that of Franz Wieacker s Privatrechtsgeschichte der Neuzeit. The prestigious authors of these works omit completely the development of law in Central and Eastern Europe as though such regions of Europe did not exist. This negative approach is that much more troubling in that the Roman law traditions of these countries are present at the legislative level, and not only at the theoretical or the jurisprudential one. One should think of the 1922 Russian Civil code /effective January 1, 1923/ that from the legal dogmatist viewpoint is similar in various regards to the Russian Draft Civil Code of tsarist Russia. Here note that this Draft Code strongly resembles the German BGB of The Fifth Book of the Draft Civil Code of tsarist Russia resembles the Swiss Law on Obligations of 1881/1883. The Civil Code of 1922 influenced the 1961 Fundamentals of Civil Law Legislation of the Soviet Union and in consequence also influenced various codes of the constituent Soviet republics one thinks first of all of the Russian Civil Code of The new Civil Code of the Federal Republic of Russia ( ) can also be viewed as a return, at least to some extent, to both western European i.e. Roman law and Russian legal traditions. Romanist i.e. Roman law influences can naturally be observed also in relation to civil codes of other Central and Eastern European countries. Various types of civil law codification can be observed in this geographical region of the European continent. The countries of this region can be divided basically into four major groups according to their own legal traditions. Group A comprises countries like the former USSR, the former Czechoslovakia, Poland and Hungary which are characterized by adoption of civil codes in the socialist sense of the term. Group B is characterized /like Bulgaria and Albania (until the promulgation of the Civil Code in 1981)/ by having adopted special laws relating e.g. to the sphere of the law of succession, that of the law of obligations etc. Group C is characterized by conserving its former Civil Code /like Romania/. Group D consists i.e. consisted entirely of the former Yugoslavia in which for historical reasons each of the constituent republics was characterized by having maintained sizable parts its own particular legal system (order). Mgr. Jūlija Jerņeva Vilgerts Law Firm Market Economy vs Market Integration, Quo Vadis, Competition Law? The proposed article will aim at identifying the reason behind materially differing competition laws in US, EU and EU Member States (where Latvia will be taken as an example). Competition law is universal. While the earliest records traces back to the efforts of Roman legislators to control price fluctuations and unfair trade practices, modern competition law begins with the United States legislation of the Sherman Act of 1890 and the Clayton Act of Based on US 19

20 experience, most of countries worldwide have adopted own competition laws. These are based in economic theory and formally have identical aims around the globe. The texts being mostly similar, the results of competition law application are strikingly divergent. The proposed article will therefore explain how the strong focus of US courts on market economy principles results in greater elasticity of the rules and gives more freedom of action to the market participants. The analyses will then explain that the more restrictive approach, adopted by the Court of Justice of European Union is due to greater emphasis on the EU markets integration, rather than the laws of the market economy. In many instances European leading businesses are loosing their competitive advantage, because protection of smaller traders from other EU Member States is of greater importance to the judges than the need to successfully establish on global markets. Against this background the national competition law application in EU Member States is seen. Indeed, the Member States competition laws are not aimed at ensuring that there is no disruption of intra-eu trade. Rather, the authorities should be interested in motivating the creation and development of national champions. Yet this is not seen from the practice of authorities and caselaw of the courts. The possible reasons for the willingness to chose restrictive, as opposed to liberal approach will be analysed. Specifically the post-soviet thinking, possible unacceptance of true market economy principles will be analysed. Doc. Marija Kapustina St. Petersburg State University Russian legal system: the role of the legislator in legal regulation. The role of the legislator in legal regulation as well as the principles, procedures, and forms of state law making are largely determined by the legal traditions, the peculiarities of legal culture. They derive from the historical and cultural characteristics of a particular nation. The role of the legislator in legal regulation is influenced by: the processes of federalization, globalization and regionalism; as well as the formation of new forms of unions for instance the CIS (Commonwealth of Independent States). Nowadays, speaking about national states one should understand that the term national when it comes to a certain state is conventional. The history of humanity is the history of wars, migrations, relocations. States (national states) often appeared with the view of organizing a common economic and political area for people inhabiting a particular territory (geographical area That is why legislative drafting should go with the social, political and law creating processes that take place in a society-state (government-organized society). There are the continental European law family and Anglo-American law family. And the continental European law family comprises the French branch and the German branch. Russian legal culture followed the lead of Germany, foremost. The central place in the Russian legal system is occupied by normative legal of public agencies which contain legally binding general rules of behavior in different areas of social relations. The state bodies and officials must act according to legal principles, and must protect, guard and guarantee human rights. The role and contribution of the state in the regulation of social relations is similarly interpreted in the liberal tradition. Legislative regulation of private law relations should not interfere with the freedom of law making activity of the parties to private law relations. 20

21 Mgr. Łukasz Kołtuniak Jagiellonian University Illiberal democracy and future of the democratic state of law. End of check and balance. End of democracy? Illiberal democracy is the notion which is use to describe the contemporary crisis of liberal model in democracy. Hungarian prime minister Viktor Orban is the author of specifically definition of illiberal democracy. We must remember that illiberal democracy is discussed at Western universities since 90-th. In the mid of 90-th Fareed Zakaria wrote about successfully collapse of optimistic Fukyama paradigm. According to Zakaria democracy in liberal sense has chance to preserve only in old Western system. Into this stable, liberal democracy he included also new democracy in Middle Europe. However in the other part of world we observe- according Zakaria- domination of something like hybrid system. Zakaria called this system by notion illiberal democracy. Illiberal democracy means that although government respected principle of free election, between election, liberal restriction of power doesn't work and it dominated the principle winner can do everything. In my paper I would like to pose the question what illiberal democracy mean for legal system? Lack of respect for liberal separation of power and independence of judiciary is one of the most important element of illiberal democracy. For example Polish ruling party PIS perceive judiciary as the element of state policy. It pose the question what is the future of states like Poland or Hungary? Officially governments of these states declared that they respected human rights and free election's mechanism. However liberals have believed that democracy can be stable only with the mechanism of check and balance and separation of power. It was one of the element of criticism towards liberals. According these critics liberal believe that procedure can keep democracy. However we should ask how illiberal perceive democracy? Can will of sovereign be the only quarantine of human rights?. To sum up in my paper I will be analyse the future of not only legal system but also democracy in illiberalism. To be more precise I want to pose the question does democracy has chance for survive without these mechanism of control and balance typical to liberal model. I think that attempt of analyse the philosophical source of illiberal democracy can be very interesting. It seem to be probably that when Polish deputy Kornel Morawiecki told during the night session of parliament law is the very important thing. But law can't be in opposition to the will of nation many observers thought about Gustaw Radbruch and his considerations against such harmful philosophy. But what is strictly illiberal democracy back to the totalitarian school of law or something else? Maybe radical positivism? Mgr. Lauris Liepa COBALT Law Firm Role of Judge in Soviet legal Society and in contemporary judicial system. The shift of paradigm The paper will deal with role of judge in court under the ruling doctrine of legal formalism and legal positivism, being at the cornerstone of Socialist Legal Tradition. The strictly positivistic approach to application of law is reducing role of judge in court to merely an automated rule- 21

22 machine. Consequently, this restricting role of judge in authoritarian and quasi authoritarian society reflect judges social and public capacities and forms public perception towards judiciary. Judiciary and judges have been regarded as an integral element of oppressive state machinery, applying restrictive rules without value-based judgement, without reference to any legal principles, inherent in the social perception of justice. This assessment has full logical justification in authoritarian and quasi-authoritarian societies (such as Soviet Union and other countries of a Soviet Block). The paper will then examine current state of affairs in relation to role of judiciary in the courtroom and in society, both, in applying law, as well as in relation to forming public view about the binding law in a relevant legal system. Major legal reforms, taking place upon restauration of independence had commenced the shift of Central and Eastern European countries to return to framework of Western Legal Systems. After adoption of the European Convention on Human Rights by Central and Eastern European countries judicial role in applying law has gained a particular features, such as direct application of legal principles. Upon joining the European Union, judges from well-established continental European legal tradition have adopted elements of Stare Decisis doctrine. These recent phenomena have had a major impact on a role of judge and legal culture. The formalistic doctrine has been boldly replaced by the theory of Natural Law not only in particular judgments. The paper will explore how these new demands influenced change of role of a judge in society. The hypothesis of the paper will be to demonstrate that changes in judicial role in the courtroom have brought an entirely different judicial decision-making culture. These new paradigms have had major implications towards assessment of general public about the role of judge in the society and more importantly the changing perception of public towards judges, courts and legal system. Mgr. Ilija Manasiev Iustinianus Primus Faculty of Law, Skopje The influence of the socialist ideology and values in Macedonian legal theory Often political ideology and its vales influence the way, that a legal science has been developing in a certain state. It was more than visible in the socialist republics after the second World War in Socialist Federative Republic of Yugoslavia. The aim of this paper is to show the influence of the socialist ideology and values in the Macedonian legal theory, being one of the socialist republic in Socialist Federative Republic of Yugoslavia. In order to make the significant difference in the first part of the paper there is a retrospective of various influence at the period when Republic of Macedonia was a Socialist Republic, and the second part of the paper deals with the changes of the concepts after Macedonia has gained its independence in This paper focuses on several issues that have been the key concepts of this system as the concept of state property, the importance of the planned economy and the place of the communist political party and its values in the socialist system. The influences stretches to the syllabuses of the faculties and its subjects. The second part of the paper considers the change in the theory after the independence of Republic of Macedonia and the change of the concepts from planned economy to market economy, from one political party system to multiple political parties and other issues that were not actual 22

23 after the change of the society. It also affected the change of the syllabuses to the Faculty of Law, enabling for the first time establishing the Philosophy of law as a new subject at the faculty. In the third part of the paper, there is a conclusion stating that there is a close connection to political ideology and legal theory, evident through changed view the theoretical basics of the legal theory. Dr. Rafał Mańko University of Amsterdam & University of Wrocław Comparative Legal Taxonomy and the Political: A View from Central Europe Legal taxonomy the operation of grouping legal systems or legal culture within larger groups, known as legal families is purportedly a neutral exercise based on objective features of the legal cultures or systems in question. The paper questions this assumption, arguing that legal taxonomy is political: it involves symbolic violence vis-à-vis the legal cultures in question, imposing upon them a given interpretation based on arbitrary criteria. As a result, the discourse of legal taxonomy promotes hegemony of certain legal cultures over other ones, and has the effect of discursively disciplining the subaltern members of legal families. However, despite this critique the paper argues that the discourse of legal taxonomy should not be abandonend altogether, but rather strategically reshaped to further the interests of the peripheral subaltern. Specifically, with regard to the legal cultures of Central Europe, the paper argues that the existence of a Central European Legal Family should be firmy asserted, as opposed to the mainstream narrative of Central Europe s alleged return to the Romanic or Germanic Legal Families, respectively. Doc. Dr. Vadim Mantrov University of Latvia Influence of EU law on harmonisation of consumer protection regulation: the case of Latvia European Union (EU) law has significantly affected development of private law of EU Member States yet in the different extent depending on a particular private law area. Consumer protection law is one of such areas where EU law has considerably influenced national law of EU Member States. At the same time, EU law impact on consumer protection regulation of EU Member States is not homogenous considering that it is exhaustive in certain fields (where the so-called exhaustive harmonisation directives are adopted) but in some fields - minimum harmonisation is provided (through the so-called minimum harmonisation directives). Such European legislator approach leaves considerable discretion at the hands of EU Member States to adopt more stringent position or to concretise rules within boundaries of their competence for consumer protection where no harmonisation or minimum harmonisation was introduced. The aim of the paper is to discuss how EU law has influenced the landscape of consumer protection in Latvian private law. Special attention is paid for two aspects. The first aspect relates to national approaches for consumer protection law by analysing whether the Latvian legislator took the option to provide more stringent rules in areas where minimum harmonisation or nonharmonisation took place. The second aspect relates to extension of consumer protection rules 23

24 for non-consumers, especially for small and medium sized enterprises being in similar circumstances as consumers when they are facing the bargaining power of the opposite party. The paper argues that EU law has largely influenced or even determined the boundaries of Latvian consumer protection law. However, this influence is not exhaustive as there are examples, yet few, when the Latvian legislator acted in its own initiative by ensuring higher consumer protection in both the minimum harmonisation and non-harmonisation fields. Dr. Christoph-Eric Mecke Leibniz University Hannover "'Western legal tradition' as a part of legal identity in the 'East' of Europe": The transnational impact of the Historical School of Law on the example of Poland The enthusiasm with which people in the countries of the former Eastern Bloc celebrated the reconnection to the so-called free Western world after 1989 is today increasingly replaced by a skepticism about the value system represented by the European Union. These changes take place at least in those states of Central and Eastern Europe which have already become part of the European Union. Not only in Poland and Hungary we can notify a sort of roll-back in political life and public media, in which the West from an imaginary place of a material and immaterial promise is becoming a cipher for the threat of own national identity and even for a fundamental malfunction of the civilization development in the Western World during the last decades. This has not only material reasons, which result from the frustration of many people in the former Eastern Bloc countries that the prosperity level, even after almost thirty years of free market economy is still not nearly at the level of the Northwestern countries of Europe. Rather, the population in the Central and Eastern European countries seems to be also disappointed by the model of the Western state of law, which in the former states of the Eastern Bloc is often still not functioning properly. This can be seen, for example, in non-transparent, sometimes even criminal, decisions taken by state and municipal authorities, for example, in the re-privatization of property that was nationalized before 1989 and, above all, in the ineffectiveness of the state judiciary, which many people often feel. Therefore, a lot of citizens in the former Eastern Bloc countries are unwilling today to defend the young constitutional state and its major institutions of checks and balances, namely independent constitutional courts and independent jurisdiction, as well as pluralistic public media, against the political will of the government and the majority in Parliament in order to restraint the separation of powers. The state of law appears to many to be only a fiction on the paper to conceal the material interests of Western elites and their allied new elites in the East at the expense of the common good and interests of the little man. As once in the propaganda of the National Socialists and their allied national-conservative intellectual circles in Germany in the years before and shortly after 1933, the word liberalism also in today s public discourse in the Eastern transformation states is increasingly becoming an insult again, as are the words compromise as well as pluralism and tolerance towards social minorities and particularly non-european cultures and religions within one s own society. In place of the Western narrative of the establishment of the state of law, in the public discussions in Poland for example, the narrative of the alleged restoration of the effective state appears again today. This narrative stands in the authoritarian-illiberal tradition of the late interwar years, which had then gripped not only Germany, but almost all the sovereign states of Central and Eastern Europe before

25 Today, the political-social rollback with the new old enemy image of the liberal West captures more and more states of the former Eastern Bloc, including the eastern part of Germany. Thus, the results of the last elections to the German parliament in October 2017 almost exactly reflect the old system boundary within the territory of Germany, which until 1989 was known as the boundary between the so called free part of Europe and the states of the former Eastern Bloc under the control of the Soviet Union. From a social point of view, the European East today thus still begins within Germany and not just beyond its borders in the East. The thesis of my contribution is that however we cannot by no means conclude from this in the Western European capitals, including just in Brussels, long-ignored ongoing social-political border between West and East as a result of decades of totalitarianism in the former Eastern Bloc, on the existence of a special Eastern legal culture, which fundamentally differs from the legal culture in the Western European countries. The narrative of the Eastern legal families is not only politically dangerous, but also historically incorrect. It is dangerous because it suggests a natural and thus unchangeable otherness vis-a-vis Western European states and their societies, through which Central European states would isolate and maneuver themselves into a political and cultural peripheral sphere of Europe. From a shared experience of injustice in the period before 1989 cannot be derived a legal tradition connecting history, present and future. Above all, however, the narrative of an Eastern legal family or in plural of particular Eastern legal identities is also historically incorrect. This will be shown using the example of Germany and Poland, whose current private law culture is based on common roots well before 1989 in Roman law and as such was already an integral part of the Western Legal Tradition at a time long before this phrase was used in the scientific discourse. In this context I would like to highlight the role of the Historical Law School founded in Germany at the beginning of the 19th century, whose theses were already intensively discussed by Polish jurists in Warsaw in the 1820s. By the early 19 th century, Polish legal science so developed soon into an European networked science whose effects in the 20 th and 21 th century range from the projects of private law legislation of the interwar period even to the socialist Polish Civil Code from 1964 and further to the private law in present day. Dr. Alexandra Mercescu Universitatea de Vest, Timişoara Back to Basics: Culture as Seen by Comparatists of Laws Comparative law operates with concepts such as legal identity, legal culture, legal families or legal traditions. Authors sometimes use these notions interchangeably, at other times in contradistinction with each other. Heterodox thought in comparative law, which opposes the dominant paradigm of functionalism, is usually branded under the name culturalism as its epistemological foundations are built around the concept of culture. Economists have also resorted to legal families and culture in putting forth the highly influential Legal Origins theory purporting to objectively hierarchize different national laws in respect of various legal subjects ranging from corporate governance to labour law. Thus, by all measures, culture remains an important concept for comparative legal theory. Therefore, any discussion on the existence of a Central and Eastern European legal identity, or, for that matter, of any other legal identity, could benefit from the theoretical insights into the notion of culture provided by comparative legal theoreticians. Therefore, my aim here is, first of all, to make an inventory, although not an exhaustive one, of the different meanings comparative scholars assign to these notoriously vague notions. Secondly, I shall argue that the vision of culture promoted by the French philosopher François Jullien is particularly appealing and can aptly account for how law operates in society and how one s national law relates to other legal systems. Thirdly, I shall offer my own vision of 25

26 culture that amounts, first and foremost, to an epistemological understanding whose purpose is to make legal scholars aware of the benefits of interdisciplinary work. While my statements draw mostly on theoretical works, this endeavour is also informed by my personal experience since I have been trained in the law of a former communist country, namely Romania, and was subsequently socialized in a Western European culture, that of the French legal academia. Magdalena Michalska student, Jagiellonian University, Kraków Constitutional Identity in European Countries comparative perspective The general discussion on legal traditions and legal identities naturally must begin in consideration on the constitutional identity. National constitutions in Europe vary in content, assumptions and history, but can they contribute to shaping the legal identity of the CEE Region? First, the author will try to define the notion of the term constitutional identity and the scope of its application. The deliberations will mainly focus on the different approaches to this identity and to its understandings in both CEE (ex. Poland, Ukraine, Romania) and Western Europe (ex. Germany, France, England). Then, the author will analyze the normative sources and methods of identification of the concept of constitutional identity. The main emphasis will be on issue of how those sources and methods vary in different CEE jurisdictions. Constitutional identity evolves in ongoing political and interpretive activities occurring in courts, legislatures, and other public and private domains. Therefore, the author will also analyse the processes referring to those activities. Again, it will be illustrated by examples from different European countries in comparative perspective. Comparative exploration of the concept of constitutional identity should provide valuable contribution to the general discussion on Central and Eastern Europe legal identity and the basis of its legal tradition. The comparative considerations will refer to constitutional identity both in different CEE jurisdictions and in broader context which will include Western Europe legal regimes. Prof. ord. Dr. habil. Piotr Niczyporuk University of Białystok Roman Law as the Foundation of Legal Culture in Central and Eastern Europe: Example of the Academia Vilnensis The Vilnius University was established on 7 July 1578, pursuant to the Royal Decree of King Stefan Batory. The royal act of establishment was confirmed by the papal bull of Pope Gregory XIII on 29 October 1579 and by resolution of the Seym adopted in Before the rise of the Academy in Vilnius several schools had operated, one of them founded by Peter Roizjusz. Thanks to the activity of this famous scholar and lawyer, elements of Roman law were taught in Vilnius even before the creation of a university in Lithuania. At the beginning of the Academy there were no faculties of law or medicine. Presumably, this was connected with a lack of qualified staff in Lithuania. Only under the privilege granted by King Władysław IV on 11 October 1644 was a law faculty opened (composed of a chair of canon law and two chairs of civil law). It is very hard to present a list of professors of Roman (civil) law at the University of Vilnius. Perhaps this is due to the fact that apart from Roizjusz, other scientists interested in Roman Law did not teach in Vilnius. Presumably there was only one chair of civil (Roman) law. 26

27 There is no doubt that Roman law played an important role in the training of lawyers and was taught intermittently throughout the remaining period of the operation of the Academy. In addition, preserved sources reflect the scientific work of professors, who were employed there. Following the example of other universities, the Academy of Vilnius awarded in this field a combined doctoral degree embracing "both laws" - civil and canon, which applied primarily to future law professors and high-ranking prelates who performed public functions. Probably there were no promoted doctors of civil law. The basis of the lectures were institutions of the Roman law of Justinian, and their content was not different from the standards adopted in other universities Aleksandra Niczyporuk student, University of Białystok Latin maxims on the judicial buildings in Białystok Latin maxims located on the buildings of the courts in Białystok, located at Mickiewicza street, have timeless meaning in the European legal tradition. Their presence is a sign that the modern Polish jurisdiction implements the idea of Roman law. However, only two of them originate in ius romanum sources. The third one has a timeless nature and is connected with a Christian foundation of European civilisation. The location of maxims, not exactly intended by their inventors, shows a type of a road which must be taken in the court body. Everything starts with the statement of claim and, then, justice must be done in all its dimensions, until the fair sentence. It is a great pity that there are only three Latin maxims in Białystok. However, they have an exceptional nature since they are located on the columns of the building of the Supreme Court in Warsaw. During the many centuries of change and historical development, they did not lose their validity and significance for modern Polish and European legal practice. Izr. Prof. Dr. Marko Novak Evropska Pravna Fakulteta Central European with a post-socialist limp: on the Slovene legal identity According to David and Grasmann, the recognized comparative-law scholars, there are basically three main criteria for differentiating between legal families and their subgroups: (1) meta-legal considerations; (2) legal sources; and (3) dogmatic legal structures. Concerning the last two criteria, which could also be designated as formal elements of a country s legal identity, Slovenia has been deeply immersed in the civil law of a Central European, more specifically Austrian, type. Even after the decline of the Habsburg Empire, what remained to apply on the territory of nowadays Slovenia as part of the then Kingdom of Yugoslavia, was to an important extent the Austrian law. Moreover, even the decadent capitalist code such as the Allgemeines bürgerliches Gesetzbuch (ABGB) more or less survived in fact the communist withering away of the state and law, and can today still be applicable to some older cases. After one thousand years of Germanic dominance the Slovenes turned to the East in trying to build their national identity one hundred years ago when the Empire collapsed. Although that seemed to be a necessary move towards stronger national identity, it was their first step away from the rule of law with the second step in the same direction being the period of communisim that endured almost half a century. Nevertheless, the formal part of the Central European legal identity somehow survived, with certain injuries of course, but it is mainly the meta-legal considerations, of them sociological 27

28 and psychological elements in particular, that nowadays make a difference between the situations of the rule of law in the Republic of Slovenia and, for example, in the Republic of Austria, both parts of the onetime joint Empire. Prof. Dr. Sanita Osipova University of Latvia & Justice at the Constitutional Court of the Republic of Latvia Baltic States as a Legal Culture Space Within the Discourse of Legal History 1. The sense of belonging and togetherness plays an important role throughout the existence of any nation. It is not only a stable social organisation or, in other words, social structure, but also a continuity of common emotional experiences, that is necessary for a harmonious and sustainable existence of any society. Nations remember the great feats achieved by their ancestors, which they continue to take pride in, as well as the injustice and maltreatment their ancestors have endured. Over the last few centuries since individuals have become more educated, states have used history as a means of unifying citizens. 2. While discussing national identity, we also discuss common European values and an identity that unifies the European nations, which is strengthened in part by the study of European legal history. However, it is considerably easier to substantiate the existence of a regional identity as opposed to an identity that can unify one particular part of the world. Baltic States are often perceived as a unified cultural space; hence this paper assesses to what extent the Baltic states have developed a common legal tradition that could be used to form a common identity of the people of the Baltic states. 3. The paper looks at several distinct historical periods: the Middle Ages up until the collapse of Livonia, from the collapse of Livonia until the territory of the Baltic states was annexed by the Russian Empire, the rule of the Russian Empire, the time of independent nation states in between the two world wars in the twentieth century, the period of the occupation by the USSR, the restoration of the independence, and finally a common existence and future as a part of the European Union. Over the course of these historical periods the Baltic people Estonians, Latvians and Lithuanians have grown closer, living within a common statehood. Nevertheless, due to a part of their territory falling under a different statehood, alongside a similar legal culture we have accumulated a dissimilar historical experience, which can create an emotional divide between us. Dr. Berke Özenç Turkish German University The State of Emergency Rule in Turkey and the Recent Case-Law of the Turkish Constitutional Court On 15 July 2016, a coup d état was attempted in Turkey, following which a state of emergency was declared, so as to effectively tackle those responsible for the coup attempt and deal with the consequences. In the National Security Council s recommendation for the declaration of the state of emergency, it was highlighted that a state of emergency should be declared to facilitate the work to be carried out with the aim of eliminating threats to democracy, rule of law and freedom. In this study, the legal framework proposed for the state of emergency in the Constitution of

29 will first be presented and then, the implementations carried out during the state of emergency period will be evaluated, in terms of the objectives set out by the National Security Council. Moreover, the transformation in the judicial opinion of the Constitutional Court regarding the state of emergency will be examined. The decision of the Constitutional Court on the nonreviewability of the emergency decree laws that are put into force during the State of Emergency has lead to a judicial review gap. Faced with this legal situation, applications made individually to the Constitutional Court for the alleged violation of fundamental rights take on a special significance. In this context, this study will finally specify that for the individual applications to be examined by it, the Constitutional Court must adopt an approach that takes into account the importance of the protection of human rights during the state of emergency period. Doc. Olga Pietrova Belarusian State University Child's Right to Be Heard in Criminal Justice in the context of legal traditions. The Case of Belarus Right to be heard (or child participation) is a fundamental principle as defined by the UN Convention on the Rights of the Child. It ensures being child s best interests as a primary consideration, and, at the same time, it demands additional support measures for children because of their status as participants and their vulnerability in any judicial proceedings, incl. criminal proceedings. To start with, Belarus is unique and controversial in the light of child protection system implementation. Beyond the Criminal Justice system, attention should be drawn to the fact that National Child Protection system in Belarus, which is based on the Decree #18, complies with international trends in terms of discovering child abuse and neglect in family. However, traditional Orthodox Church values are not denied, in particular vision and the role of family in the society. Therefore, there were two Concepts of Establishment of Juvenile Justice in Belarus, but none of them hasn t been approved. Then, Soviet procedural safeguards combine with new child friendly justice methods in criminal proceedings. Traditionally, minors had been interviewed in presence of educator /psychologist who didn t used to be given special training. Child friendly interviewing rooms have been established throughout Belarus due to common efforts of NGOs, social services, legal enforcement agencies. Then National Child helpline was launched in The last innovation was child victim protection service with both interviewing, medical expertise and counseling in child friendly environment. While these steps are encouraging, there are some concerns with regard to their implementation. For example, the lack of judicial control capacity at the preliminary inquiry as a substantial criminal proceeding provision led to required giving evidence by child in court. To sum up, despite of numerous issues I believe that Belarusian approach is a good example how to combine child protection measures with a right to grown up in a family environment. 29

30 Mgr. Jakub Płaziuk University of Silesia, Katowice Polish legal tradition in the field of civil jurisdiction The first known statements regarding jurisdiction was made in Poland in the period of the partitions in This statements weren t Polish original but it was an adjustment of Austrian tradition in this regard. Because of the partitions Poland didn t develop its own legal tradition in jurisdiction or even whole civil procedure matter till the end of First World War. After 1918 on the Polish territory consist of 4 different legal tradition areas: Russian, German, Austrian and Hungarian. Polish civil procedure codifiers faced a serious challenge. Regarding the civil jurisdiction they have to decide whether to identify jurisdiction with local competence or to form jurisdiction as independent institution. The first approach based on Austrian legal tradition and the second one on the German. Polish codifiers decided that civil jurisdiction shall be the independent institution so in the pre-war civil procedure code there was two articles regarding jurisdiction. Art. 4 of the pre-war civil procedure code determined who and in which cases can be the party of Polish legal proceedings and the art. 5 of the pre-war civil procedure code introduced the legal immunity. This regulation wasn t extensive but for this time it fulfilled its role. After the Second World War works on the new civil procedure code was commenced. The new civil procedure code was introduced in 1964 and have more elaborate part regarding civil jurisdiction. The articles from 1098 to 1116 regulate jurisdiction in contentious and noncontentious proceedings but none of the articles determined the nature of jurisdiction norms. The legal doctrine was meant to decide whether the jurisdiction norms were conflict of law rules or substantive norm. The last major change regarding the jurisdiction in Poland was made after the EU accession. Since then not only Polish regulation regarding jurisdiction matters but also EU regulation (Brussel I and the Brussel Ibis). Doc. Dr. Dmitrij Poldnikov Higher School of Economics, Moscow Piercing the Soviet veil of Russian national identity with comparative studies in truly European legal history. National legal identities across Europe have been shaped to a large extent through legal history since the early 19th century. The academic discipline of legal history legitimized the positive law with its dogmatics and delivered evidence to build a legal ideal (within jurisprudence). Today many Western legal historians challenge this approach via comparative legal history which transcends national borders and identifies the circulation of legal ideas across the Continent and beyond. Objectively, Eastern Europe, and Russia in particular, took part in this circulation for centuries. Yet, Russia's legal identity, as a stand-alone legal system, is still determined by 'the national romance' (both in legal and general history), not least due to the old-style studies in European legal history. In this presentation I intend to examine how the Soviet legacy still blocks productive studies in comparative legal history in Russia and, thus, influences its 'sui generis' legal identity. I will elaborate the topic in three septs. First, I will examine the key features of foreign legal studies in the USSR, namely: 30

31 - the sociological interpretation of legal phenomena in past and present (due to the Marxist dogma of social sciences); - the historisation of studies in foreign legal experience (in the sense that lawyers mostly abandoned it to the benefit of general historians capable of reading the primary sources); - the isolation from international legal science. Second, I will demonstrate the persistence of the above in today's Russian academia. Finally, I will conclude by assessing perspectives of narrowing the gap between Russian and European legal culture by piercing the national veil of Russian legal identity with comparative legal history. Mgr. Aleksandrs Potaičuks University of Latvia Europeanization of national administrative procedural laws" which relates to the issue "What is the future of CEE legal identity? Are we going to merge with Western European legal culture, or maintain our distinctiveness? National administrative laws as well as national administrative procedure laws as a part of state law naturally were of solely national law nature. However, as a result of Europeanization of laws the harmonization of national laws with the European Union laws national procedural laws are affected. On the one hand, Europeanisation harmonizes Member States' procedural rules and thus helps Member States to fulfill effectively their Union's obligations. For example, the Kühne & Heitz[1] case law on review of final administrative decisions. However, this process is opposed by the principle of national procedural autonomy, [2] which implies view that the national procedural rules rest in competence of Member States and that the European Union's intervention within national procedural rules should be restricted. In this paper I will discuss the examples of how national procedure laws are affected by Europeanization, as well as what are the interactions between state law and European Union law the role of the national administrative procedure laws in the integration of the European Union, limits of the competence of the European Union with regard to the procedural regulation of the Member States and the scope and limits of the principle of national procedural autonomy. The process of Europeanization of national procedure laws shapes legal identity of the region and thus directly relates to the theme of the conference. 31

32 Mgr. Ewa Radomska Jagiellonian University Socialist features of Polish Copyright Poland, as a country that was in the past subject to direct Soviet control, has undergone a process of massive political and economic changes in the framework of which it began and continued its transition from centrally-planned economy to market economy and from the system of democratic centralism to pluralist democracy. These changes has also influenced intellectual property regime and, within it, copyright, because the transformation of the copyright legislation and institutional system became necessary in connection with political and economic developments. Nevertheless, in parallel with modernizing the copyright and its adaptation to the existing conventions and to the newly emerging international standards, there were and still are the elements of the law, which followed from the collectivist system. The most expressive examples of such elements are certain free uses, compulsory licenses and the dogma of full inalienability of copyright. Consequences of socialist relics in Polish Copyright can be captured not only within the processes of copyright harmonization carried out by the European institutions, but also can be observed in current Polish debates on copyright, that are rooted in historical frames and political context in which social perception of intellectual property is embedded. In case of Polish society, such framework is mainly connected with the strong social norms favoring unrestricted access to culture and knowledge, that could be perceived not only as phenomenon triggered by the digital revolution, but also as a cultural inclination that evolved due to the specific historical events. The most outstanding manifestation of the strong impact of this context is undoubtedly Polish social protest movement against ratification of the Anti- Counterfeiting Trade Agreement (ACTA), which treaty was associated with the very strong proprietary vision of protecting IP rights. Mirosław M. Sadowski student, University of Wrocław What s Left from the Past? Collective Memory, Identity and Law in CEE Post-1989 Albeit a cliché, it is true that when WWI started, people in Berlin, London, Paris, Vienna, Budapest and St. Petersburg actually celebrated. Only four years later, not one of the main actors in the war was in celebratory mood. The three Central and Eastern European empires, which have controlled the region for over a hundred years, lay in ruins. Out of their rubble, several countries have reborn, trying to find their independent place on the European map once again. However, geopolitics caught up with them quickly, leaving them not only in debris, but also dependent again. Another half a century passed, and they managed to resurge once more, transformed, however, for perpetuity. The aim of this paper is to examine, through the eyes of six miscellaneous thinkers, what is left of the CEE in terms of identity and collective memory, and then to apply the findings to the primordial legal text of any country the constitution, in this case the new Central and Eastern European constitutions, trying to establish the traces of past and distinctiveness in them. In the first, introductory part of the paper, M. M. Sadowski presents different theories on local identity and on collective memory, and then tries to define these terms. The second part of the article is devoted to the critical analysis of works on CEE by six thinkers: Miklós Bánffy s The Transylvanian Trilogy, Joseph Roth s Radetzky s March and Emperor s Tomb, Pavol Rankov s It Happened on September the First (or Whenever), Milton Kundera s A Kidnapped West or Culture Bows Out, Theodor Garton Ash s Revolution in Hungary and Poland and Revolution: The Springtime 32

33 of Two Nations, and, ultimately, Jacob Mikanowski s Goodbye Eastern Europe. These works span almost a century and are essays, articles and novels, but they have one thing in common: they capture the evolving and the constant in the Central and Eastern European spirit. The author first gives an overview of these texts, then, on the basis of them, ventures to establish whether or not there is such a thing as a common CEE identity and shared CEE collective memories, and, if they do exist, how have they shifted since the first fall of the empires one hundred years ago up to this day. In the third part of the paper, M. M. Sadowski focuses on the constitutions of several CEE countries. Looking at the constitutions as the mirrors of nations, the author searches for Central and Eastern European peculiarities and collective memories in the fundamental laws of these states. The fourth, final part of the paper is devoted to a more general socio-legal reflection of the past one hundred years in CEE, and is also an attempt to respond to recent claims that in CEE the Empires strike back and that we should say Goodbye to Central and Easter Europe. Prof. Agnieszka Skóra & Dr. Agata Cebera University of Warmia and Mazury & Jagiellonian University The principle of equality in the administrative law in Poland 1. Introduction. The main aim of the presented thesis concerns the selected issues related to the principle of equality in polish administrative law. 2. The definition of equality. For the subject of these considerations it is necessary to discuss the definitions of term equality in theory of law and philosophy of law, especially it s vertical and horizontal meaning. In simplification, it can be indicated that sometimes real equality needs a bit of irregularity. In the further part of the study, we will present understanding of principle of equality in administrative law related to the procedural and substantial law perspective. 3. Normative sources of principle of equality.the concept of principle of equality is not only a doctrinal notion, but also a normative standard. The doctrine indicates that in international law it corresponds with: art. 3 of European Parliament resolution of 15 January 2013 with recommendations to the Commission on a Law of Administrative Procedure of the European Union, art. 5 of Code of good administrative behavior, It must be stressed that the main aim of the presented thesis concerns the selected issues related to the equality principle in polish administrative law, so that in further part of the study we will present: brief history of equality principle in Polish law, art. 32 of Constitution of Poland and art. 8 1 of Code of administrative proceedings, especially in order to indicate the mutual influence between those regulations, positive and negative actions which may be taken by public authorities in order to fulfill the principle of equality. We will try to give examples of actions which violate here above mentioned principle, perquisites for permissible differentiation of citizen s legal situation (legal full exceptions from principle of equality), legal consequences of acting not in compliance with principle of equality. 33

34 4. Conclusions. To conclude the above discussion related to equality principle in administrative law, we will try to answer a few questions: Is the principle of equality in administrative law one of the basic pillars of democratic state ruled by law? What is the prospective direction of development of principle of equality? Dr. Ginta Sniedzīte Eversheds Sutherland Bitāns Judge-made law in Western legal tradition Contemporary legal science constantly aims to create and improve procedure and methods of adjudicating taking into account that the court is acknowledged being the major applicant of the law. Subsequently, united understanding of the legal status of the result of implementation of these methods as well as placement of the respective source of the law within the system of sources of the law is expected to challenge the traditional clarity of the differences between legal systems. Concept of judge-made law could be analysed as an example of moving towards merger of Western legal tradition with Common law tradition in certain aspect. Recognition and subsequent application of the above concept raises a number of questions regarding sources of law admitted in Western legal tradition and not admitted in Western legal tradition in contradiction to Common law system. The growing role of judge-made law and long-lasting attention of legal doctrine towards this concept in Western Europe are associated with mutual connection and mutual influence of legal systems and groups of law. With gradual elimination of one of the most characteristic differences between the doctrines of sources of law in the Common law and Romanic-German legal systems, these historically separated systems of law become closer within this context. At the same time judge-made law may not be identified with precedent law due to several remarkable differences existing between these two phenomena. Mgr. Viktorija Soņeca A comparative analysis of the preliminary reference by Central European and Eastern European constitutional courts The Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU. In order to ensure that the specific characteristics and the autonomy of that legal order are preserved, the Treaties have established a judicial system intended to ensure consistency and uniformity in the interpretation of EU law (CJEU, Opinion 2/13, para ). The judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has 34

35 the object of securing uniform interpretation of EU law, thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (ibid., para. 176). However, as a rule, constitutional courts prefer to stay out of the game and watch the ordinary court apply EU law and engage with the CJEU. Mostly because constitutional courts retain their constitutional mandate to uphold the Constitution. Therefore, in this paper author will analyze: 1. The position of Central European and Eastern European constitutional courts before CJEU; 2. How Central European and Eastern European constitutional courts see CJEU is it a threat or a friend; 3. Cooperation between Central European and Eastern European constitutional courts and CJEU. Doc. Vladislav Starženieckij [Starzhenetskiy] National Research University Higher School of Economics (Moscow) European Convention on Human Rights and Russian Legal Identity 20 years ago Russia ratified European Convention on Human Rights (ECHR) and subjected itself to jurisdiction of the European Court of Human Rights (ECtHR). Western human rights norms and approaches represented something conceptually different and may be regarded as legal transplants for the Russian legal system. Compliance with the ECtHR judgements and implementation of the ECHR requirements represented a real challenge for the Russian legal identity. The distinct features of the Socialist legal tradition (ultra-formalism, domination of public (state) interest, narrow scope of the most human rights terms) made it particularly difficult and challenging to apply and enforce human rights norms. 20 years of the European influence and corresponding reforms in Russia may serve as unique and valuable example of social and cultural transformation, assimilation of human rights norms. At some point after more than 10 years of productive cooperation with the ECtHR Russian political elite started realizing that further transplantation of human rights norms and unconditional execution of ECtHR judgements may lead to dangerous and undesirable results, such as questioning of legitimacy of current social and political order in Russia, excessive Westernization of social and legal norms, serious conflicts with prevailing conservative, traditional values in Russian society. In this context creation of protective mechanism against Strasbourg court allowing Russian authorities to block or limit legal effect of its judgements does not look surprising. Such mechanism was introduced in and has already been tested several times. Russian model of such blocking mechanism prescribes central role of the Constitutional Court, which acts like guardian of the Constitution and active legislator ruling on possibility and exact manners of enforcement of ECtHR judgement on behalf of Russian Federation upon requests from courts and other state bodies. Under this model any judgement of the ECtHR can be declared by RCC non-enforceable in Russia if the following two conditions are met: 1) ECtHR judgement is in contradiction with Russian Constitution and 2) there are no other alternative ways to avoid conflict with constitutional provisions other than its non-enforcement. RCC insists that it has right to object, which may be derived from Russian Constitution and general principles of international law based on consent of states. 35

36 Prof. Dr. habil. Adam Sulikowski Postmodern constitutionalism: Between liberal gouvernement des juges and authoritarian populism The paper is divided into four parts, devoted respectively to: modern constitutionalism; liberal gouvernement des juges; critique of liberal constitutionalism; postliberal populism as a reaction to democratic liberal constitutionalism and, finally, to a crique of postliberal populism. 1. Modern constitutionalism. The constitution is an act of binding positive law of a sovereign state, and it is a priori towards acts of its application; the content of a constitution is not merely programmatic, but is also binding on public authorities. It is an act of finite (closed) content. Observance of the constitution is guaranteed by courts which have the power to annul laws and decisions which infringe constitutional standards. Constitutional review is subject to this task, and its possible different functions serve this basic task. he constitution is unflexible, it can only be amended following a special procedure (a judicial modification is usually treated as a pathology), and its amendment is more difficult than in the case of amending an ordinary act of statutory law.the consitution serves as a basis for the interpretation of other elements of the legal system in conformity with it. The constitution is applied directly, just like an act of statutory law, because usually it is treated as a special form of act. The constitution is a political and legal act at the same time. 2. Liberal gouvernment des juges. Constitutional review of legislation takes place on the basis of the acquis constitutionnel the model of an ideal political system, elaborated by an elitist circle of judges, unquestionable, binding on the legislature and ex definitione apolitical, because it is allegedly based on knowledge, dynamic, i.e. adapted to the changing needs. The content of this model is legitimated by constitutional courts which claim that this content can be "inferred" in a more or less direct way from the constitutional text. Constitutional courts apply activist techniques of adjudication. 3. Critique of liberal constitutionalism (Gramsci, Adorno, Foucault, Lefort, Mouffe, Laclau). Liberal law is the law of "hegemonic liberal structures". In liberal democracy, law serves mainly to protect the "laws of the bourgeois reason", which are a superstructure erected over the capitalist economic formation: negative freedoms, formal equality, property. The law is controlled by the establishment and a professional expert complex (as well as the ideological structures behind that complex). The lower classes are being gradually deprived of any influence upon the law. The law educates (trains) towards passivity, especially with regard to the capitalist status quo. The law supports the myth of consensus: any question can be the subject of agreeement, acceptable to rational individuals, akin to the shaping of a market price. Claude Lefort claims argue democracy requires a political and emotional struggle for the temporary occupation of the ideological "empty space". Liberalism, with its faith in the possibility of a complex of solutions acceptable to all and which can be reached through technocratic governance, has a tendency to occupying the "empty place" permanently. This, in consequence, necessarily leads to a revolt. Chantal Mouffe and Ernesto Laclau claim that the tension between the liberal and democratic elements is too strong to uphold the system in which the scales are turned too much towards the primacy of liberalism. The liberal element requires the construction of a "law without politics", a law based on an approach which is free from emotions, rational and pragmatic at the same time, typical for instrumental rationality (which is genetically closely linked to the bourgeoisie and capitalism), whose best representatives are experts balancing the reasons of participants of legal 36

37 relationships and proposing solutions in the form of a compromise acceptable to all (legal equivalent of the relative balance in the market). 4. Postliberal populism. Philippe Schmitter and Wolfgang Merkel claim that the law in a liberal democracy was constitutional, representative, individualistic, minoritarian, voluntaristic, privatistic, functionally limited.the postliberal tendency should be based on emphasising opposite features: limiting the role of the acquis constitutionnel, i.e. rules which cannot be changed or a difficult to change in the legislative process; instead of a formal (indirect) representation, the law is to be a direct embodiment of the interests of popular masses; the law should emphasise solidarity and group interests, instead of focusing on the protection of individual interests 5. A critique of postliberal populism. The mechanisms of party politics and the force of hitherto existing cultural institutions lead to a situation, in which instead of "waking up the society from the sleep of demoliberal inactivity", there is a domination of populist politics, allegedly incorporating the aspirations of the people in a political leader or movement. Instead of limiting the role of the Establishment, there is a tendency to replace it and take over its rights. The simulacrum of people's law becomes the programme of the populist leader or movement, and represents its own interests. Instead of promoting the "democratic sensitivity" of the administration and judiciary, there are tendencies towards their total subjection. Instead of promoting social inclusion, there is a domination of Schmittian politics, based on a struggle against the enemy and a promotion of the doctrine of the state of exception Dr. Jakub J. Szczerbowski SWPS University Blockchain Smart Contracts as a Challange to the Traditional Civilian Concepts Abstract: Smart contracts are technically defined as an event-driven programs, with state, that run on a distributed, decentralized, shared and replicated ledger (blockchain) and that can take custody over and transfer assets on the ledger. This new invention enables declarations of will to be expressed as self-executing computer code. The fact that smart contracts can transfer assets without the intervention on part of the judicial system creates a challange to our traditional understanding of contract law. Basic concepts such as declaration of will, and interpretation of contract require new look and even new legislation. This papers analyses the impact of smart contracts on the fundamental institutions of civil law and proposes solutions, based on legal interpretation and legislation, to some of the problems related to form, contract interpretation, revocation and delivery of the declarations of will. The invention of smart contracts is also viewed as an economic opportunity - one which can provide advantage to the countries providing best institutional environment to blockchain-based businesses. Prof. Andrzej Szmyt & Dr. Anna Rytel-Warzocha University of Gdańsk The current constitutional changes in Poland in the light of Polish political and legal traditions 37

38 In 1989 in Poland the process of departing from the socialist principles of the socialist state and the process of political transformation was initiated. The 1997 Constitution was the culmination of the transformation, based on the principles of political pluralism, the democratic rule of law, the division of power. Several years of systemic practice gave rise to a conviction about the stability of the assumptions and the agreement of political forces about the axiology of the Constitution. In 2015, right-wing parties came to power first winning the presidential election and then the parliamentary election after populist election campaigns. They did not get the majority needed to change the Constitution, but they obtained an absolute majority of seats in the parliament that allowed to create their own government and to adopt laws. By means of legislation and practice, the process of the destruction of the constitutional system began that was accompanied by the strong emphasis of the fact that the parliamentary majority represents the Sovereign (people). Such approach leads them to the conclusion that the instruments to control the parliament should be eliminated. Using law to paralyze the Constitutional Tribunal has become symbolic as well as the refusal to publish some of the judgments of the Constitutional Tribunal. By law, the foundations of the rule of law, division of powers and judicial independence were violated. Through legislative changes the Public Prosecutor's Office was subordinated to executive power and the Minister of Justice obtained a significant influence on the functioning of the common judiciary. The process of legal changes has been accompanied by the political practice of making fundamental decisions outside state organs, with disregard for democratic standards as well as populist social and political rhetoric and historical politics. The present changes bring forth a question, in the light of which Polish constitutional traditions, if any, they can be perceived. There are several threads. The practice of referring to "supraposition" of the parliament fits into the long-term tradition of the "priority" role of the representative bodies - still from the First Republic, then the March Constitution of 1921, and finally the times of the People's Republic of Poland with the constitutional principle of unity (instead of division) of power and the superior position of the unicameral Sejm. In the First Republic there was a weak position of the judiciary, and in the period of the Partitions (loss of independence) the general lack of authorities imposed by neighboring states. During the Second Republic (interwar period) the democratic restrictions - after the May 1926 coup were caused by the appeal of the ruling camp to charismatic legitimization of the independence father Józef Piłsudski. A reference to this part of interwar history is an important motive for the ideology of the leader of the current ruling majority. It s supplemented by the concept of the "political decision-making center" of the state, located outside the state apparatus, anchored in the facade of constitutional solutions from the period of the socialist system. This facilitates political control, without the support of democratic procedures. In the name of the effectiveness of propagandist "good" governments, it is easy to carry out measures to strengthen the executive, which was also carried out under the rule of the 1935 Constitution and in the times of the socialist system. Dr. habil. Piotr Szymaniec Angelus Silesius University, Wałbrzych The reception of Leon Petrażycki s work in pre-war and post-war Poland The aim of the conference paper is to analyze the reception of Leon Petrażycki s work in Polish legal thought both before the World War II and after It should be emphasized that despite the originality of Petrażycki s legacy and the considerable fame of this legal philosopher, the impact of Petrażycki on Polish legal thought was not as big as one might expect. Petrażycki left few faithful disciples, among whom Jerzy Lande was the most outstanding and respected figure. 38

39 However, in the interwar period legal philosophy as an academic discipline was dominated by syncretic concepts of such scholars as Eugeniusz Jarra. After the end of the Stalinist period several works of Petrażycki were published anew but there was no true renaissance of his ideas. The paper will discuss reasons for this state of affairs. Dr. Markéta Štěpáníková & Dr. Terezie Smejkalová Masaryk University Brno Writing Commas in Legislative Texts, Textual Interpretation and Socialist Legal Tradition Textual interpretation is according to both the Czech legal doctrine and the case law of the Czech Constitutional Court the first and necessary but not the sole sufficient step in interpretation of legal texts. Nevertheless, the importance of textual interpretation cannot be underestimated. In this paper, we will discuss an issue of writing commas in legislative texts as one of many examples of the importance and complexity of the problem of Textual interpretation. We will analyse how writing commas in legislative texts can influence their later interpretation by courts and how is this possibility understood and foreseen by the legislators. For example, using or not using a comma may mean that there is a change in the ratio between the enumerated items of the list of conditions required for e.g. the creation of a particular permission, and suddenly all the conditions need not be met and meeting only one is sufficient. Therefore, it is necessary for the interpretation of commas in legal texts to be consistent. From situations that are problematic in terms of punctuation, we chose to use a comma before "or". We will present it on the example of the new Civil Code in which the comma before or is used 368 times. In this particular case, we will demonstrate which ambiguities can arise here and how they can be solved according to the general spelling rules and in the legal context. We will also examine whether, how and under which circumstances the language standard (general and legal) can be violated. We will also discuss how the Socialist Legal Tradition influences this understanding of textual interpretation in the Czech legal system. The aim of our paper is to stress the inconsistencies in the textual interpretation of legislative texts and propose possible solutions of this situation. 39

40 Mgr. Bartłomiej Ślemp University of Warsaw Legal identities of organization s forms of deputies and senators in the Polish parliament the effect of Soviet times or own tradition? A comparative overview According to Article 104 para. 1 of the Constitution of the Republic of Poland (1997) the free mandate principle allows to create parliamentarians associations which is one of the most important democratic institution. History shows that gathering of parliamentarians has a long tradition in Poland (also before 1997). The main aim of the paper is to identify the legal and historical source of the process of establishing parliamentarians associations in Poland. Before that author presents certain organization s forms of Deputies and Senators (existing now) in the Polish Parliament which gather: legal basis of their establishment and functioning and statutory types of these forms. Moreover, he describes an important role of these associations which are related to statutory and rules of procedure provisions. After that author tries to answer on the question from the title. These explanation consists a short historical overview of polish parliamentarians associations based on legal acts and practice from the past. What is more, to identify the source of that idea, which is similar to the nowadays shape (clubs, groups, groupings), author presents legal regulations in a comparative way from other European countries (e.g. Germany, Slovakia, Lithuania). These legal, historical and comparative explanation allows to estimate the impact of Soviet times on current parliamentary law in Poland. It can be the cause to discuss on other law matters which are still connected with communists times (because was adopted then and still wasn t amended). Such issues are the subject of the current political debate in Poland and try to be changed often without respecting fully the Constitution s rules. Dr. Paulina Święcicka & Dr. Marek Stus Jagiellonian University Craft and Art in Law. Can judicial formalism be treated as differentia specifica of post-socialist countries? The Case of Poland. It is impossible to disagree with the Anglo-Saxon scholar Alan Watson, an eminent romanist and comparatist, who stated that the crucial point (...) is that one needs to know how the lawyers of a legal system think in order to understand the essence of such a particular legal order (A. Watson, Comparative Law: Law, Reality and Society, 2007, Vandeplas publishing, p. 145). The daily jurisprudential life and routine are unquestionably based on the legal craft. Craft, however, should always be an artistic craftsmanship, built on the one hand on solid fundaments of knowledge and experience, and on the other on the normative imagination (i.e. the awareness of the possibilities given by legal interpretation). The critical view at the Polish modern judicial practice (and generally the legal practice) leads one to ealise that unfortunately quite often formalism in interpretation (understood as the preferential application of literal and linguistic understanding of a legal rule and, in the same time, the rejection of functional interpretation) prevails. This type of jurisprudential activity impacts usually the quality of the process of applying law itself, as well as it is affecting its results (i.e. partial and final interpretative decisions) within the legal machinery. This kind of attitude of a judge (a blunt literalist), a prosecutor (an opportunist), a policeman (a conformist), a court executive officer (clinging only to the letter of law) is perceived in the contemporary Polish system of justice, which, for more than 20 years, has been given a chance to strive for something greater e.g. justice. 40

41 The purpose of the paper is to answer the following questions: 1. Can legal formalism noticeable as predominant in Poland and as one of the characteristic features of the Polish judiciary (which, on the one hand, tries to link its legal tradition with the Western European one, but, in fact, is genetically and functionally related to the socialist tradition of the past age) be treated as differentia specifica of the post-socialist past of this country? In other words, the question is: What are the possible determinants of such an (formalist) attitude, and not the other approach of the judicial authorities (especially the judges) to the normative text? What and to what extent is it the effect of the specific process of the shaping of the Polish judicial procedures during the last century the procedure which has passed through three major transformations related to the rebirth of the state and changes to its constitutional order? Does it still apply to certain procedural features of the socialist origin? Or, perhaps, is it the result of the specificity of legal education in Poland, which generally speaking is aimed at equipping the future judges (etc.) primarily with the ability to use arguments based on formal rules and standards? Or, perhaps, is it the result of a simple judicial opportunism? 2. What makes the formalistic approach so attractive that the judiciary does not recognise the possibility and legitimacy of the escape from formalism, but prefers the escape to formalism? In other words what judicial formalism provides to a contemporary lawyer acting in the reality of at least still declared in Poland liberal democracy? Prof. Gaabriel Tavits University of Tartu Impact of socialist legal tradition in Estonian social security law does it exist? There is no question about the fact, that the impact of socialist legal understanding does still exists. Although many of Central and Eastern European countries have modified their legal system, still it is possible to find aspects or fields of legislation where there still exist socialist tradition. One of those fields of law can be social security law. In majority of Central and Eastern European countries it has been intensively reformed different parts of social security. Still some aspects of social security are influenced by the socialist legal traditions.this is the situation in Estonian social security, especially in pension insurance and in cases of work accidents and occupation diseases. Estonia has reformed its pension system already in 2002 and made it more comparable with other western European countries. Still there are two kind of pensions that have not been reformed and are influenced by the socialist legal tradition: old-age pension on favourable conditions and superannuated pension. These systems were created in 1992 in order to continue the temporary validity of socialist system. They have not been reformed since then. The same systems exists e.g. in Russia, Belorussia and Ukraine. The second field where the socialist tradition exist is legal regulation of employers responsibility in case of work accidents and occupational diseases. In this case, the rules again were readopted in 1992, but they were influenced by the socialist legal traditions. Although those legal rules do not exists as black-letters law anymore, the case law has stated, that still those principles are possible and necessary to apply. As one can see the Estonian social security, law has been divided into two parts: on one side, it belongs to western (central) Europe) on the other side there is still impact of socialist legal thinking. 41

42 Mgr. Marcin Wróbel Jagiellonian University (Il)legal Tradition informality as a legal identity of Central and Eastern Europe a hypothesis Seeking legal tradition and legal identity of this region usually focus on political and legal transitions and historical context concerning mostly institutions and law in textual meaning. In this paper I would like present different approach looking for legal traditions that are sustained by the citizens. Usually institutions (especially public administration) in post-socialist countries is described as highly formalized whether it is true or not I would like to confront it with how citizens approach the law. Formalism of institutions is usually criticized as an obstacle (red tape) in achieving ones goals. What is more, when possible legally relevant relations are conducted in informal manner based on oral agreements in case of conflict with referring to formal methods of problem-solving (like courts) or to alternative dispute resolutions (mostly negotiations, sometimes sort of mediation or conciliation that invokes third parties). Such situations is typical especially for relations in rural environment but may happen in other contexts as well (for ex. when customer instead of filing formal complaint is trying to settle the dispute without paperwork). Those hypothesis was confirmed during my fieldwork in shepherding community of polish Carpathians. As empirical findings are not sufficient it is still too early to formulate definitive conclusions. Main aim of this paper is to overturn domination of looking on tradition as it is perceived in current academic discourse and to propose another view as a dynamic phenomenon on one hand: set of practices shaped every day and on the other hand an idea that drives everyday interactions. I argue that traditions that is perceived in such manner is more authorized to be perceived as a part of identity and that lack of legality does not prevents us from shaping legal traditions. 42

43 About CEEELS The Central and Eastern European Network of Legal Scholars (CEENELS) was established in April 2015 in Brno at its inaugural 1 st annual conference devoted to 25 Years after the Transformation: Law and Legal Culture in Central Europe between Continuity and Discontinuity. The aim of CEENELS is to provide for a platform of multilateral cooperation between scholars from Central and Eastern Europe, by organizing conferences, workshops, running a website and mailing list, as well as helping scholars from the region find partners for international research projects. The 2 nd annual conference was held at the Jagiellonian University in Kraków in January 2017 and was devoted to An Uneasy Legacy: Remnants of Socialist Legal and Political Thinking in Central and Eastern Europe. Acknowledgment of support The Central and Eastern European Network of Legal Scholars (CEENELS) would like to express its gratitude to all sponsors of its 3 rd Annual Conference, and in particular the University of Latvia Faculty of Law, the law firm Eversheds Sutherland Bitāns, the law firm COBALT Latvia, the law firm COBALT Latvia, law firm "Atlācis un Partneri" and the Profesora Kārla Dišľera Fonds. Organizing committee Doc. Dr. JĀNIS PLEPS (head of the organising committee), Prof. Dr. DAIGA REZEVSKA, Doc. Dr. sc.pol. IVARS IJABS, Dr. RAFAŁ MAŃKO, Mgr. PIOTR ECKHARDT 43