CZECH LAW IN HISTORICAL CONTEXTS

JAN KUKLÍK

KAROLINUM

CZECH LAW IN HISTORICAL CONTEXTS

Jan Kuklík

Reviewed by:

Doc. PhDr. et JUDr. Jakub Rákosník, Ph.D.

PhDr. Jiří Noha, Ph.D.

Published by Charles University in Prague

Karolinum Press

www.karolinum.cz

ebooks@karolinum.cz

English text editing Marta Chromá and Jim Critz

Cover by Jan Šerých

First edition

© Charles University in Prague, 2015

© Jan Kuklík, 2015

This book is written under the auspices of institutional support PRVOUK P04.

Front cover: Allegory of the Faculty of law,

Charles University in Prague.

ISBN 978-80-246-2860-8

ISBN 978-80246-2916-2 (pdf)

ISBN 978-80-246-3158-5 (ePub)

ISBN 978-80-246-3159-2 (Kindle)

CONTENTS

1. Cover Page

2. Title Page

3. Imprint

4. Contents

5. Introductory remarks

6. 1. Beginnings of the Czech state and law

7. 2. Development of law during the era of the Luxemburgs until 1419

8. 3. The Hussite period

9. 4. Law during the Estate Monarchy

10. 5. Law during the Age of Absolutism

11. 6. Enlightened Absolutism

12. 7. Codification of Austrian civil law

13. 8. Austrian constitutional development 1848–1914 and Czech national movement

14. 9. Austrian legal development 1848–1918

15. 10. The break-up of the Habsburg Empire and the establishment of Czechoslovakia

16. 11. Continuities and discontinuities in the initial period of Czechoslovak legal development

17. 12. Constitutional development of the First Czechoslovak Republic

18. 13. Legal aspects of national minorities

19. 14. Changes in Czechoslovak law 1918–1938

20. 15. The Munich Agreement and the Protectorate of Bohemia and Moravia

21. 16. Re-establishment of Czechoslovakia in pre-Munich borders

22. 17. Presidential decrees (so-called Beneš decrees)

23. 18. The Third Czechoslovak Republic 1945–1948

24. 19. May Constitution of 1948 and the political system of the People’s Democracy

25. 20. Changes in the Czechoslovak legal system 1948–1960

26. 21. Political trials and other forms of persecution

27. 22. Changes in land law – forced collectivization

28. 23. Social security and labour law

29. 24. The Socialist Constitution of 1960

30. 25. Recodification of criminal law in the 1960s

31. 26. New civil law of the 1960s

32. 27. Prague Spring

33. 28. The period of “normalization” 1969–1989

34. 29. Velvet revolution and period of “transformation”

35. References

Introductory remarks

1. Beginnings of the Czech state and law

2. Development of law during the era of the Luxemburgs until 1419

3. The Hussite period

4. Law during the Estate Monarchy

5. Law during the Age of Absolutism

6. Enlightened Absolutism

7. Codification of Austrian civil law

8. Austrian constitutional development 1848–1914 and Czech national movement

9. Austrian legal development 1848–1918

10. The break-up of the Habsburg Empire and the establishment of Czechoslovakia

11. Continuities and discontinuities in the initial period of Czechoslovak legal development

12. Constitutional development of the First Czechoslovak Republic

13. Legal aspects of national minorities

14. Changes in Czechoslovak law 1918–1938

15. The Munich Agreement and the Protectorate of Bohemia & Moravia

16. Re-establishment of Czechoslovakia in pre-Munich borders

17. Presidential decrees (so-called Beneš decrees)

18. The Third Czechoslovak Republic 1945–1948

19. May Constitution of 1948 and the political system of the People’s Democracy

20. Changes in the Czechoslovak legal system 1948–1960

21. Political trials and other forms of persecution

22. Changes in land law – forced collectivization

23. Social security and labour law

24. The Socialist Constitution of 1960

25. Recodification of criminal law in the 1960s

26. New civil law of the 1960s

27. Prague Spring

28. The period of “normalization” 1969–1989

29. Velvet revolution and period of “transformation”

References

1. 5

2. 6

3. 7

4. 8

5. 9

6. 10

7. 11

8. 12

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10. 14

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1. Cover Page

2. Begin Reading

3. Copyright Page

4. Contents

5. Introductory remarks

6. References

Introductory remarks

The legal system of the present-day Czech Republic would not be understood properly without sufficient awareness and knowledge of its historical roots and evolution. The trend of “harmonization” of European legal systems closely interconnected with the phenomenon of the European Union, of which the Czech Republic is a member, and with the profound changes after the so-called 1989 Velvet Revolution, form just a recent part of its complex interpretive framework. The 20th century in particular is very important for today’s Czech state and law: this is connected with the establishment of an independent Czechoslovakia in 1918, which split in 1992 to give rise to the independent identities of the Czech Republic and the Slovak Republic. The 20th century encompassed periods of a democratic regime (in particular that between WWI and WWII) as well as of totalitarian regimes – both Nazi and Communist. The political, ideological, economic and social changes connected with such development were projected into, and reflected in, the system of Czechoslovak law; and it can therefore serve as a “case study” to those researchers interested in the transition of democratic legal systems into totalitarian regimes, and vice versa.

The historical development of Czech law is a good example of an application of the contradictory principles of continuity and discontinuity. It is interesting to observe how the original forms of Slavic law were influenced by the legal systems of neighbouring countries, primarily German and Austrian provinces, as well as by Canon and Roman law. It is equally interesting to see how a legal system originally based on customary law was changed into written and codified law. Czech law has been part of a broader Central European legal culture for centuries. It was so closely connected with developments within the Luxemburg, Jagiellonian and, primarily, Habsburg monarchies that many aspects of the development of Czech law can be observed in neighbouring states, although with some features remaining autonomous.

It is exciting to see the contradictions in the legal development of a changing society of the 18th and 19th centuries, when the Czech national revival and the creation of a modern Czech political nation collided with German ambitions both within the Czech lands and throughout the entire Austrian monarchy. Mutual relations between the Czechoslovak state and its nationalities and the concept of protection of national minorities under the auspices of the League of Nations are yet other aspects deserving the attention of foreign experts.

I believe that this outline of Czech and Czechoslovak legal history will stir the interest of its readers not only in law itself but also in the evolution of Czech and Czechoslovak statehood and culture.

1

Beginnings of the Czech state and law

The Czech Republic of today was historically made up of three main territorial elements: Bohemia, Moravia and part of Silesia, which together created the identity of the so-called Czech lands.[1] The first permanent settlement on this territory is connected with the Celtic tribes.[2] Some of their influence is still visible: for example, the original name of the country, Bohemia, was derived from the Celtic tribe of Boii and is still applied to the largest part of the Czech Republic.[3] In the first century of the first millennium, the Celts were replaced by the German tribe of Marcomanni. The territory of the Czech lands remained (with the exception of a Roman military camp in Southern Moravia near Mikulov) free of the influence of the Roman Empire.[4] This fact was important for the legal development in the Czech lands, as Roman law was not reflected at that stage.

From the 4th century AD, Slavic tribes, in the course of the worldwide Great Migration of Peoples, gradually settled down in Bohemia and Moravia.[5] After clashes between the Slavic population and invaders from the East, called Avars, the first attempt to create a loose state structure in the form of a tribal alliance was successfully accomplished by the Frankish merchant Samo. He was able to resist pressure from Dagobert, the King of the Franks. However, the empire disintegrated after Samo’s death, around 658 AD. Some of the invaders from the East settled in Bohemia, later abandoned their nomadic lifestyles and became “Slavicized”. [6] There are only a few written sources available for acquiring some knowledge about this period, the most important of them being a chronicle written by the monk Fredegar from Burgundy.

Another important Slavic state structure on the territory of the Czech lands was connected with the so-called Great Moravian Empire in the 8th century.[7] The establishment of the Empire gave a powerful impetus for the unification of Slavic tribes; it developed its own legal system and introduced Byzantine Christianity.

There are again very limited sources on legal development in that period. However, using archeological research,[8] comparative methods and even the methods of legal anthropology,[9] we can assume that the legal system was based on traditional Slavic customary law, comparable with that of other Slavic tribes. There is a notable exemption from customary law: one important written source of law was preserved from the Great Moravian Empire. It is called “Zákon sudnyj ljudem” – judge-made law for laymen, inspired by the Byzantine Ekloga. [10] It consists of 33 articles and deals primarily with criminal and property law and the law of marriage. The written law was intended as a subsidiary source, used in cases where original customs were to be changed or were completely missing.

During the reign of the Great Moravian Prince Rostislav, a Christian mission was sent by the Byzantine Emperor. The mission arrived at Moravia in 863 under the leadership of the brothers Cyril and Methodius. They instituted a Slavonic liturgy comprehensible to ordinary people and developed a special script for the so-called Old Church Slavonic language. Cyril and Methodius translated the Bible from Greek into the Old Church Slavonic language. However, Rostislav’s successor, the Moravian Prince Svatopluk (died 894), repudiated the supporters of Slavonic liturgy and switched to the Latin rite. As a result of church reforms new rules for the law of marriage were introduced and Christianity had an impact on changes to the original Old Slavonic family law.

The Great Moravian Empire gradually disintegrated during the reign of Svatopluk’s son, Mojmír II (died 906), particularly due to the attacks of Hun (Magyar) nomadic raiders at the beginning of the 10th century.

The beginning of the Czech state (named after the Slavic expression for the Czech people – Bohemia) and its law is connected with clashes between the ruling Slavic families in the 8th and 9th centuries after Great Moravia was destroyed by Magyar tribes. In the end, the so-called Přemyslid dynasty (Přemyslovci in Czech) prevailed against its opponents in this struggle and, by the end of the 10th century, formed a nucleus of the Czech state, with its centre in Prague.[11] The first historically documented Přemyslid prince, Bořivoj, accepted (around 883) baptism from the hands of Methodius. In the beginning, the Přemyslid prince was loyal to the Great Moravian Empire, but Bořivoj’s son, Spytihněv (died 915), took an oath of vassalage to Arnulf, the King of the Eastern Franks. The orientation of the society towards the West prevailed, including the Latin rite in the Church.

Among first Přemyslid princes the most important was Václav, or Wenceslas in English. He tried to pursue a policy of friendly relations, primarily with the mighty neighbour Saxony. Václav was murdered in a dispute with his brother Boleslav in the town of Stará Boleslav, most probably in 935. Václav was canonized and, as a patron of the Czech state, became a symbol of Czech statehood.[12]

In 973 the Prague Bishopric was instituted; a number of monasteries were built, with the first one founded in 993 for the Benedictine order in the quarter of Břevnov in Prague.[13] The second bishop of Prague, Vojtěch (Adalbert in English) promoted the basic principles of Christian life, affecting also the domain of law.[14] It should be noted in this context that the Přemyslid prince Boleslav II (died 999) enacted a set of privileges for the Church. In the document certified by Boleslav in 992 the Church was given jurisdiction over matters of marriage and was assigned the right to levy a bishop’s tithe. This is the oldest known piece of legislation adopted by a ruler from the Přemyslid dynasty. The ill-fated policy pursued by Bishop Vojtěch led to open disputes with the prince and his followers; as a result, Vojtěch was forced to leave Bohemia and died during his attempt to Christianize Baltic Prussia. He was later canonized and became the second patron of the Czech state, after the first patron, sv. Václav (St. Wenceslas).[15]

The Czech Kingdom gradually became an autonomous part of the Holy Roman Empire (the “Roman Empire” revived by Emperor Otto II). Individual rulers of those territories comprising the Roman Empire as an artificial universal unit remained sovereigns within their own territory but formally received their titles from the emperor.[16] The first Přemyslid prince to be awarded the title of King was Vratislav II in 1085, although this title was entrusted to him just for life. Vratislav II (died 1092) was awarded the title in return for his support of Emperor Henry IV in his political struggle with the Pope. In 1158 Vladislav II (died 1174) was appointed the second Czech king; his nomination for life resulted from his support of the Roman Emperor Friedrich I Barbarossa in his military campaign in Italy. In 1198 Přemysl Otakar I (died 1230) was the first Czech king awarded the hereditary title. This fact was confirmed in 1212, when the so-called Golden Bull of Sicily was enacted by the Holy Roman Emperor Friedrich II, acting also as the King of Sicily.[17] Later Czech kings, as one of seven imperial electors, acquired the right to elect the Holy Roman Emperor.

The Czech lands became known as the “Czech Kingdom” and, later, as the so-called “Kingdom of the Crown of Bohemia”. The Czech Kingdom under the Přemyslid dynasty was composed of several regions: Bohemia, Moravia (from 1182 called the Margraviate of Moravia), Upper and Lower Silesia. The Přemyslid dynasty ruled until 1306.

The emerging Czech state took over many cultural and legal aspects developed during the Great Moravia period. The legal system was based on customs, and much of its content was based on the Old Slavonic law of the pre-state period. For example, ownership was based on traditional forms of “common ownership” by extended families; family law was influenced by pagan traditions; criminal law was based mainly on private initiative, including the so called “blood revenge”. Primitive court proceedings used ordeals (called after Christianization iudicium dei (the judgment of God)) – primarily ordeal by cold water, ordeal by hot iron and various forms of oaths.[18] Only later was the wager of battle (the duel) introduced into Czech law.

Ordeals as an integral part of court proceedings were known to other European legal systems, including the German law of neighbouring lands. However, some Czech “specials” existed, such as using only cold water, whereas the German, French and Anglo-Saxon legal systems knew ordeal by hot water. The accused person was forced to follow strict rules on ordeal corresponding to the nature of the case. 12th and 13th century sources suggest that an ordeal by hot iron was preferred, either in the form of walking on hot ploughshares barefoot or in the form of an oath with fingers on a red hot iron bar. Ordeal was considered a form of evidence, which is not rational from today’s perspective. Courts observed detailed procedures prescribed for each type of ordeal and issued their judgment according to the result of the ordeal at issue. The outcome of an ordeal was certified by a priest who was present during the performance of the ordeal.

During the 10th and 11th centuries, the first attempts at kings legislation based on Christian principles emerged. The country was gradually Christianized in the Western “Latin” rite from the 9th century[19], and the last Czech monastery built near the Sázava river maintaining the above mentioned Slavonic liturgy ceased to practise it in 1096/97.[20]

The most important example of legislation based on Christian principles is the so-called Decrees of Prince Břetislav (died 1055) from 1039.[21] The Decrees introduced marriage based on the principles of Canon law, in addition to many other Christian principles, such as the necessity of burying in Christian graveyards or keeping Sundays and Church holidays.

The exact wording of the text of Břetislavs Decrees remains unknown. The Decrees were recorded later by the monk Kosmas in his famous Chronicle of Bohemians (Chronica Boemorum)[22] in the form retrieved from the original text of the Statutes of Hniezdno. Břetislav proclaimed his decrees on Polish territory (Hniezdno, or Gniezdno, is a city in central-western Poland), when he launched a military campaign to return the remains of St. Vojtěch back to Prague. Břetislav assigned great importance to Christian principles, as his aim was to spiritually reconcile the memory of St. Vojtěch with “pagan” Czechs.

It is clear from the Chronicle of Kosmas that family law in particular was heavily influenced by principles conceived by Canon law. From the beginning of the 11th century Czechs living in the territory of Bohemia used an ecclesiastical form of marriage, followed the principles of monogamy (bigamy was prosecuted) and Canon law restrictions on marriage, such as the prohibition of adultery (sexual intercourse between a married person and someone other than his or her spouse), repudiation of one’s spouse or desertion (leaving one’s spouse with no intention of returning) and divorce. Basic principles of law of marriage were partly based on Roman law, including requirements and obstacles regarding the capacity to constitute a valid marriage. The Church acquired jurisdiction over all matters related to marriage law. The Břetislav Decrees included the application of ordeals in courts and a system of administration based on castles as regional centres. Restrictions on pubs were introduced as a possible source of revenue for the treasury and prohibition of trade on Sundays; however, it seems to be quite doubtful that these restrictions were followed in practice.

Břetislav is known for another piece of legislation, which is connected with his attempt to consolidate the Czech state. Before his death he proposed the so-called Act on “Seniority Rule”, in 1054–1055.[23] The Rule provided that the ruler of Bohemia should always be the eldest member of the Přemyslid dynasty. This principle lead to a series of disputes among members of the Přemyslid dynasty; younger members of the dynasty were often given small portions of the territory as their dominions, especially in Moravia (úděly in Czech, or deals in English, with centres in Brno, Olomouc, Břeclav and Znojmo).[24]

The year 1189 is closely connected with yet another important legal achievement. The Přemyslid Prince Conrad II Otto (died 1191) called a congress of leading representatives of nobility (gentry) to the township of Sadská near Prague. During the meeting he proclaimed a set of rules known as the Statutes of Prince Conrad. The texts became known from the beginning of the 13th century, when the rules were certified for Moravian dominions of the younger Přemyslid princes.[25] According to those Statutes members of the emerging nobility were proclaimed to be free and hereditary landowners (close to the English term of freehold) of the gifts of land made to them earlier by Přemyslid princes. It was therefore possible to create a system of nobility domains, which became legal areas of their own, with their own jurisdiction and a special relationship between the lord and his subjects.

The Statutes confirmed the validity of several important customs; on the other hand, they introduced some changes to customary law and especially to its interpretation. For example, the law of succession was changed in favour of daughters should there be no male heirs. Changes were made in administrative matters, criminal law and court proceedings. However, the Statutes should not be regarded as a codification of law, because they covered only small parts of customary law; all other customs, not mentioned in the Statutes, remained fully in force.

During the 13th and 14th centuries, new settlers were invited by Czech kings, Church and nobility to Bohemia and Moravia to colonize areas with a low population density, in particular the border areas. The first German settlers had come to Bohemia much earlier; for example, in 1176–1178 Prince Soběslav II (died 1180) gave privileges (confirmed several times later) to German traders in Prague and exempted them from the law of the land.[26] However, the mode of colonization, both in its form and numbers, changed in the 13th century. This is why the Czech lands ceased to be inhabited solely by Slavs; German and Jewish populations settled on the territory of the Czech lands and lived there until the tragic events of WWII and immediately after the war in the middle of the 20th century.[27] In those early times, the population of Germans and Jews was regulated, as well as protected, by king’s legislation, including the famous Jewish Privileges awarded by King Přemysl Otakar II. (died 1278) in 1254 (so called Statuta Judaeorum).[28] The Statutes granted Jews special permission to carry on financial business and exemption from local courts. They were subordinated directly to the king. In 1268 similar privileges were granted also to the Jews settled in Moravia.

German speaking settlers from Saxony, Bavaria, Swabia, Austria or even Rhineland brought with them not only advanced agricultural techniques and trade skills but also their own law. Initially, they could use it as a privilege certified by the king. Legal development in the Czech lands was therefore substantially influenced by legal patterns derived from neighbouring countries. This was visible mainly in the development of municipal law and in new ways of landlords’ renting of land (real estate) during the internal colonization – this was known as emphyteusis or purkrecht. Its main effect was the impetus for the establishment of new villages and towns.[29] The newcomers from German lands were granted significant reliefs. The feudal lords contracted with their representatives (so-called locator) for the division of a designated area (for example a future village) into fields, and arranged for dwellings to be built for the use of the colonists. The rights and obligations of the new settlers were set down by the land lord in writing. It was customary to exempt the new settlers from taxes for a period of several years. After that period the relationship to the land was based on fixed monetary sums paid regularly, usually twice a year. The colonists were also given hereditary rights to their property, subject to their continued cultivation of the land. This “German law” (ius teutonicum) was different from and in most aspects more favourable to the original “Slavonic law” (ius slavicum). Under original Slavonic law the land of a peasant was subject to escheat and therefore reversed to the feudal lord upon the death of the original tenant.

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Table of Contents

Cover Page

Title Page

Imprint

Contents

Introductory remarks

1. Beginnings of the Czech state and law