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Public Administration and the Challenge to Introduce Egalitarian Legal Order: The Jewish policy of the Duchy of Warsaw (1807–1815)

Published Online: 24 May 2021
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Abstract

The article discusses inconsistency existing in the Jewish policy of the Duchy of Warsaw, resulting from divergent normativities. Examined are the ways these normativities were handled, transformed, and conceptualised. The analysis refers to the concept of multinormativity and highlights the dynamics standing behind Jewish policy, as well as various influences on the way legal order was interpreted. Considered is the presence of legal assumptions derived from the normativities inherent in Old Polish traditions, being the main obstacle to the implementation of Napoleonic egalitarian norms. The article argues that equality claims and first attempts at their implementation existed alongside traditional ideas, social habits, and practices.

Introduction

In 1808 in a small town in the Duchy of Warsaw, a certain public notary called Wollenhaupt sent an interesting letter to a middle-level court. He wrote to express concern about guidelines received from the local administration, forcing him to reject contracts in which Jews were to acquire real estate, if the same contracts were not pre-approved by a prefecture. The notary questioned such a procedure and formulated a statement that could even sound convincing today: »There are no other rules for a lawyer than those comprised in the Code, unless there be an altering or novel provision adopted by the superior authority, this being in accordance with the public laws«.

Archiwum Główne Akt Dawnych [AGAD], Komisja Rządowa Spraw Wewnętrznych [KRSW], call no. 6583, p. 4, »Wollenhaupt to the Public Prosecutor affiliated to the Civil Tribunal in Poznań«, 17. 11. 1808.

He thus believed that the ultimate source of civil law is the newly introduced Code Napoléon and that legal differentiation cannot take the form of an administrative ruling. Wollenhaupt was arguing here for a single source of normativity and a strict obedience to the constitutional catalogue of sources of law, both being a novelty at that time. This stance may have implied his support for egalitarian proceedings.

What Wollenhaupt was also looking for was consistency in application of law. Such a quest is typically inscribed not only in juridical action, but also in historiographical activity. What legal historians usually look to achieve is a clear picture devoid of too many ambiguities. However, as recently proven by Christoph Engel, among others, inconsistency is not only a real phenomenon, characterising the legal and social spheres, but can also have a beneficial character.

Christoph Engel: Inconsistency in the Law. In Search of a Balanced Norm, Bonn 2004.

Inconsistency is one of the most intriguing aspects of the policy of the Duchy of Warsaw towards its Jewish population. Few generations of historians have focussed on the significance of non-favourable regulations concerning this group, thus creating a black-and-white (or rather consistently black) image.

The most important example are the classical works of Artur Eisenbach (i.a. Emancypacja Żydów na ziemiach polskich 1785–1870, Warszawa 1988, pp. 141–145 or Kwestia równouprawnienia Żydów w Królestwie Polskim, Warszawa 1972, pp. 148–158), as they serve as the general point of reference for all subsequent authors. For other examples of such approach see for instance: Janusz Szczepański: Społeczność żydowska Mazowsza w XIX–XX wieku, Pułtusk 2005, pp. 39–50; Raphael Mahler: A History of Modern Jewry, 1780–1815, London 1971, pp. 350f.; Yuliy Gessen: V efemernom gosudarstve: Evrei v Varshavskom Gertsogstve, in: Evreyskaya Starina (1910), pp. 3–38, at pp. 4f.

The case studies presented here intend to supplement this narrative by nuancing it, focussing on contradictory rulings of the Duchy’s administration in its Jewish policy, and their background. I will try to prove that what led to such an ambiguous and equivocal policy was the multinormativity behind administrative actions. Based and following upon Thomas Duve’s stance, in this legal-historical microanalysis, I will take into consideration not only »bodies of norms and their parallel presence, competition and collisions«, but also the way these norms were created and what were the initial assumptions behind such juridical and administrative praxis. Of interest will also be the way different actors handled these same norms and their collisions.

Thomas Duve: Was ist ›Multinormativität‹? – Einführende Bemerkungen, in: Rechtsgeschichte – Legal History 25 (2017), pp. 88–101, at p. 93.

The Duchy of Warsaw is an interesting object of research when considering multinormativity. The state, created in the midst of the Napoleonic conquests, found itself at the sharp edge of two epochs. In the legal and administrative realm, a major change was taking place: the Napoleonic rulings all over Europe had introduced a new way of perceiving both the sources of legal norms and the application of law. Uniform procedures, as well as standardised codes encompassing rules identical for all inhabitants, became the main point of reference. The enlightened absolutist rulers introduced various innovative policies that include attempts to undermine the feudal social structure and bring about equality before the law. Implementation of these changes was hindered by competing normativities, such as lingering Old Polish traditions in the Duchy of Warsaw. Numerous general studies on the Duchy of Warsaw have already discussed the conflict of values noticeable in public debate. Widely described was the social discontent arising from the sweeping scope of the novelties.

For instance see Jarosław Czubaty: The Duchy of Warsaw: A Napoleonic Outpost in Central Europe, transl. Ursula Phillips, London 2016, pp. 45–54; Jerzy Jedlicki: Klejnot i bariery społeczne, Warszawa 1968, p. 225; Christopher Blackburn: Napoleon and the Szlachta, New York 1998, p. 4; Władysław Sobociński: Historia ustroju i prawa Księstwa Warszawskiego, Toruń 1964, pp. 21f.; Juliusz Willaume: Fryderyk August jako książę warszawski (1807–1815), Poznań 1939, pp. 60–64, 253, 295–298; Juliusz Falkowski: Księstwo Warszawskie: Obrazy z życia kilku ostatnich pokoleń w Polsce, vol. 1, Warszawa 1906, pp. 123–125.

What has not yet been analysed is the administration’s role in such a conflict and the phenomenon of administrative multinormativity.

Some valuable general remarks in this context have been provided by John Stanley: The Adaptation of the Napoleonic Political Structure in the Duchy of Warsaw (1807–1813), in: Canadian Slavonic Papers / Revue Canadienne des Slavistes 31/2 (June 1989), pp. 128–145.

The present study will analyse one of many aspects of this broad issue, examining how Jewish matters were handled and what were the reasons for formulating contradictory norms, stemming from various normative settings. Such an empirical approach, focussed on local practice and conflict, responds to the shape of legal history as postulated by Duve.

Thomas Duve: European Legal History – Concepts, Methods, Challenges, in: Thomas Duve (ed.): Entanglements in Legal History, Frankfurt am Main 2014, pp. 29–66, at pp. 59–61.

The present article draws on findings gathered within a span of six-year long archival study conducted in eleven archives,

These were Polish state archives in Bydgoszcz, Cracow, Kalisz, Kielce, Lublin, Płock, Poznań, Radom, Siedlce, and Warsaw, as well as the archives of The Princes Czartoryski Library in Cracow.

focussed on the policy of the Duchy of Warsaw towards its Jewish population. The core of the primary sources consists of published and unpublished legal acts (royal decrees) and correspondence created between the public administration of central and local levels – exchanged within the administration, as well as between public officers and Jewish inhabitants.

After a brief summary of the basic facts concerning the state, its administration and the Jewish population, I examine two main sets of norms guiding administrative action.

These »socio-legal arenas«, to recall Brian Tamanaha’s concept, were surely not the only ones that existed in the Duchy, however as for administrative action they were the most important ones. For the typology of such ›arenas‹ see Gunnar Folke Schuppert: The World of Rules. A Somewhat Different Measurement of the World, Frankfurt am Main 2017, pp. 138–141.

This is followed by an analysis of cases when each of those normativities operated on Jewish matters. Subsequently, I address the question of the grounds for plurality pertaining to Jewish policy. Finally, I present the way how the conflict of normativities was settled and conceptualised by the central authorities and what were the reasons for differences between the administrative practices of central and local powers.

The Duchy of Warsaw was created by Napoleon Bonaparte in 1807. It came into existence as a result of his victory over Prussia. The state initially consisted of a portion of the Prussian Partition lands, and it was enlarged after the 1809 war with Austria following the annexation of a part of the Austrian Partition territory. The Duchy found itself in a personal union with Saxony, as King Frederick Augustus, following an 18th-century dynastic tradition, became the Polish monarch. The state’s fate would be intrinsically interconnected to Napoleon – it existed as long as he reigned. The state was dissolved formally by the Congress of Vienna (1815).

What is important, in terms of centralisation and unification policies, as well as with regard to official declarations and the »language of politics«, the Duchy resembled France.

Maciej Janowski: Marginal or Central? The Place of the Liberal Tradition in Nineteenth-Century Polish History, in: Iván Zoltán Dénes (ed.): Liberty and the Search for Identity. Liberal Nationalisms and the Legacy of Empires, Budapest 2005, pp. 239–271, at p. 246.

Napoleonic regulations served as a model also for the administration’s structure: The highest authority being granted to the Council of State, prefects operating at the departmental level, subprefects at the district level and town or rural mayors at the lowest administrative level.

See Stanley: The Adaptation of the Napoleonic Political Structure, p. 136.

The changes were profound – positions were created from scratch, thousands of new officials were appointed, since most Prussian clerks were no longer in office. The number of civil servants was higher than at any time hitherto; and these expanded numbers also epitomised the change. The strictly hierarchized and centralised executive dominated over other branches of power, increasing the role of state-sponsored administration. The new shape of the administration and its inflated numbers gave rise to a considerable public critique.

Czubaty: The Duchy of Warsaw, pp. 49f.; Falkowski: Księstwo Warszawskie, pp. 123f.

As far as the Jewish population is concerned, as with the Old Polish–Lithuanian Commonwealth, it was one of the most numerous groups of inhabitants (approximately 10 per cent out of 2 million of the total population and after the enlargement of the state – approximately 7 per cent out of 4 million), living mostly in urban areas and forming on average about 30 per cent of the inhabitants of cities.

Henryk Grossman: Struktura społeczna i gospodarcza Księstwa Warszawskiego, in: Kwartalnik Statystyczny, 2/1 (1925), pp. 1–224, at pp. 10–26, 41–45, 49.

The main Jewish occupations had not changed significantly since medieval times and were related to the activities of craftsmanship, commerce, and money lending.

One of the exceptions was the new category of army suppliers, analysed thoroughly by Cornelia Aust: The Jewish Economic Elite. Making Modern Europe, Bloomington 2018, pp. 80–175.

Also the relations between Jewish and Christian populations followed the earlier pattern – they were usually marked by mutual distrust (or even hostility) and a feeling of superiority over the other group. Intergroup interactions were limited mostly to professional spheres.

For similar observations on the relations between Jews and Gentiles in the Alsatian context, see Paula Hyman: The Emancipation of the Jews of Alsace. Acculturation and Tradition in the Nineteenth Century, New Haven–London 1991, pp. 11–18.

The Jew, differing in terms of religion, ethnicity, culture, and visual appearance, was traditionally perceived as a clear representation of the Other. Still in the last decades of the Polish–Lithuanian Commonwealth, the cultural and visual distinctiveness of Jews, coupled with their large autonomy, started to be fiercely criticised in public discourse.

On the conceptualisation of a Jew as ›the Other‹ in the Polish context see for instance: Ireneusz Jeziorski: Od obcości do symulakrum. Obraz Żyda w Polsce w XX wieku, Kraków 2009, pp. 16, 95–134; Joanna Michlic: Poland’s Threatening Other, Lincoln 2006, pp. 24–68; Alina Cała: Wizerunek Żyda w polskiej kulturze ludowej, Warszawa 2005, pp. 13–18; Agnieszka Jagodzińska: Overcoming the Signs of the ‘Other’. Visual Aspects of the Acculturation of Jews in the Kingdom of Poland in the Nineteenth Century, in: Israel Bartal / Antony Polonsky / Scott Ury (eds.): Polin. Studies in Polish Jewry, vol. 24, Oxford 2012, pp. 71–94. Broader phenomenological remarks: Bernhard Waldenfels: The Question of the Other, Albany–Hong Kong 2007.

Following Enlightenment ideas, a profound social reform was postulated. Public debate in Poland drew on claims famously espoused by the Prussian official Christian Dohm, who argued that Jews had to become useful members of society and no longer constitute a separate group.

Richard Butterwick-Pawlikowski: Jews in the Discourses of the Polish Enlightenment, in: Glenn Dynner / Antony Polonsky / Marcin Wodziński (eds.): Polin. Studies in Polish Jewry, vol. 27, Oxford 2015, pp. 45–62. See also Robert Liberles: From ›Toleration‹ to ›Verbesserung‹. German and English Debates on the Jews in the Eighteenth Century, in: Central European History 22/1 (1989), pp. 3–32.

Nevertheless, the social readiness to change everyday relations had a limited character.

Normativities Guiding Administrative Action
The Napoleonic Legal Order

Taking into consideration the written law introduced in the Duchy of Warsaw, the normative assumptions were clear, unequivocal, and uniform, with the French model serving as their basis.

An excellent synthesis of the topic is provided by Stanley: The Adaptation of the Napoleonic Political Structure, pp. 128–145.

They were shaped by the Napoleonic Constitution and Civil Code. The former, promulgated on 22 July 1807, resembled the constitutions adopted within the Empire. The most noticeable change promised by the Constitution was the notion of legal equality irrespective of social background or religious denomination (»All citizens are equal before the law; the personal status is under protection of courts«); the traditional estates (peasants, burghers, nobility) or quasi-estates (Jews) were no longer to determine individual’s legal position. Serfdom was abolished – a provision of profound importance for peasants, who constituted about 70 per cent of the total population – until then practically in bondage, and with no right to move from one place to the other. A uniform category of citizenship was soon introduced by royal decree: All men born within the Duchy’s territory, as well as those residing permanently at least for the last ten years were to be granted citizen status.

For the content of this decree of 19. 12. 1807 see: Dziennik Praw Księstwa Warszawskiego, vol. I, no. 2, pp. 3–6.

Hence, most Jews (and peasants) should have received such a status and participated in political life. Active and passive voting rights for the lower house of the parliament were conferred on a wide category of citizens.

Besides nobility, the lower house of parliament was to be open to all wealthy citizens (possessing land or owning valuable businesses), priests, artisans, scholars, merchants, and soldiers retired from service.

The Civil Code specified in the Constitution as the source of the Duchy’s civil law was a legal transplant,

On this concept see: George Rodrigo Bandeira Galindo: Legal Transplants between Time and Space, in: Thomas Duve (ed.): Entanglements in Legal History, Frankfurt am Main 2014, pp. 129–148, at pp. 129–133.

being the same act that had already been in force in France (1804) and other parts of the Empire. The regulation was of particular importance for Bonaparte who perceived it as a tool for the achievement of far-reaching social change – particularly the equality (of all men) before the law and free engagement in trades and commerce without the intermediary role of guilds. Although the Code referred also to older legal institutions in order to provide stability, it did petrify numerous revolutionary changes. From the day of implementation, everyday contracts were to be standardised and their parties were considered to be equal. In principle, the circulation of movables and real property should not be hindered – the sole reason for limiting the individual rights of an owner should be based on the public need.

An issue of key importance was the very shape of administration and its rules of operation. It was to be based on a set of new principles: The professionalisation of posts instead of a hereditary appointments; written procedures uniform for all inhabitants across the state instead of a variety of local customs attached to different social estates; hierarchical rules of obedience and the right to appeal to a higher official instead of a wide discretionary power of a local official. A violation of rules – and to a limited degree, an infraction against the interests of a petitioner – could lead to a disciplinary, compensational, or even criminal liability. The control of civil servants’ work was provided by administrative courts.

More on the topic: Marek Krzymkowski: Status prawny urzędników Księstwa Warszawskiego, Poznań 2004, pp. 113–129; Wojciech Witkowski / Andrzej Wrzyszcz: Die Verwaltungsgerichtsbarkeit im Herzogtum Warschau und im Königreich Polen. System und Rechtsprechung, in: Zoran Pokrovac (ed.): Rechtskulturen des modernen Osteuropa. Traditionen und Transfers, Rechtsprechung in Osteuropa. Studien zum 19. und frühen 20. Jahrhundert, vol. 6.2, Frankfurt am Main 2012, pp. 675–747, at pp. 680–686, 690–705, 712–747; Wojciech Witkowski / Andrzej Wrzyszcz: Modernisierung des Rechts auf polnischen Boden vom 19. bis Anfang des 20. Jahrhunderts, in: Tomasz Giaro (ed.): Modernisierung durch Transfer im 19. und frühen 20. Jahrhundert. Studien zur europäischen Rechtsgeschichte, Frankfurt am Main 2006, pp. 249–274, at pp. 252–255, 257f., 266–270; Curtis Murphy: From Citizens to Subjects. City, State and the Enlightenment in Poland, Ukraine and Belarus, Pittsburgh 2018, pp. 20, 153–160.

Thus, the ideal that had to be followed synchronised with the vision of bureaucracy later formulated by Max Weber.

Max Weber: Economy and Society. An Outline of Interpretive Sociology, vol. 2, ed. by Guenther Roth / Claus Wittich, Berkeley, CA 1978, pp. 956–1005.

In Napoleon’s plan, the above-mentioned general legal and administrative policies were to be implemented equally throughout all parts of his Empire, with no place for any considerable particularities. However, while choosing Polish traditional elites – members of the nobility – as the best tool for governing the Duchy, he did make some concessions towards Old Polish political values in order to guarantee the loyalty of this group and ensure effective control over the state, serving the utmost goal – contribution of men and material for his war campaigns.

Stanley: The Adaptation of the Napoleonic Political Structure, p. 142.

The Emperor was aware of nobility’s attachment towards Polish tradition and nevertheless in accordance with the Enlightenment optimism, he believed that his laws and institutions were well-designed and rational enough to produce the desired social change. High quality of legislations supported by a centralized bureaucratic machine was supposed to enable its successful implementation.

The Old Polish Tradition(s)

An adaptation of the new political structure concerned mostly the legislative body – it was stronger than any other legislature of the Empire and safeguarded the nobility’s dominant role.

What made this legislative body different from all others in the Empire was its direct elections and the presence of the largest percentage of voters in Continental Europe. In turn, the strength of its legislative branch stemmed not only from its constitutional provisions but from its general political traditions, as for instance the practice of informal, lively debates which took place after the parliamentary session had been adjourned for the day. These informal sessions, »contravening the spirit of the constitution«, were »fully in the spirit of the old Polish parliaments«, Stanley: The Adaptation of the Napoleonic Political Structure, pp. 132–135, 140.

It seems, however, that Napoleon underestimated the significance of social mores and the political elites’ attachment to the legal tradition of the old Polish–Lithuanian state. A diversity of legal sources and modes of operation belonging to various social and ethnic groups was typical for the old Commonwealth. This offered countless examples of multinormativity, as this tradition was undoubtedly neither a uniform nor a homogenic reservoir of norms.

More on the legal diversity typical for the Polish–Lithuanian Commonwealth, see Aleksandra Oniszczuk / Rafał Wojciechowski: Polen-Litauen, in: Peter Collin et al. (eds.): Manual on the History of Conflict Resolution in Europe, Berlin 2020 (forthcoming). Heterogeneity of norms was inscribed also in the way particular social groups were governed – in the Jewish case the sources of norms were mainly royal and local privileges, agreements with Christian population, regulations issued by the institutions of the broad Jewish self-government, and the religious law. On these interwoven norms see for instance: Anat Vaturi: Security, Accommodation and Integration: The ›Law of the Land‹ and Jewish Privileges in Old Poland, in: Studia Judaica 19 (2016), pp. 199–214.

Thus, many competing ways of understanding the »Old Polish tradition« were at stake. Nevertheless, this tradition proved to be a strong and still valid point of reference for the political elites active in the Duchy of Warsaw.

Epitomising this attitude was the activity of the provisional Polish government (Governing Commission), ruling between January and July 1807. It made use of some operational freedom, and issued numerous decrees reintroducing previous Polish arrangements. Members of this body, as well as other public figures participating in the public discussions, hoped for much more – for recalling the Constitution of 3 May (1791), being the first European constitution, although a short-lived one. As far as its social programmes were concerned, it did not promise radical, revolutionary changes. It was an act issued by and mainly for nobility, as the latter was to retain its leading position, except for the poorest (landless) members of this estate, who were to lose political rights. Certain limited concessions were to be given to the bourgeoisie; peasants received a laconic promise of legal protection; and Jews were simply left out of the Constitution’s scope of interest.

On the nobility’s political ideas and Constitution of the 3 May, see: Jerzy Lukowski: Political Ideas among the Polish Nobility in the Eighteenth Century, in: The Slavonic and East European Review 82/1 (2004), pp. 1–26; Józef Gierowski: The Polish-Lithuanian Commonwealth in the XVIIIth century: From anarchy to well-organised state, Kraków 1996.

The importance of the Constitution of 3 May in the Duchy stemmed from symbolic reasons. It was well remembered that parliamentary discussions over the project of this act had led to an unprecedented public debate. Of importance was also the widespread enthusiasm and hopes raised by this constitution, perceived as the last chance to rebuild the state after the first partition (1772). Moreover, it was the last crucial act passed by the parliament prior to the two final partitions and the dissolution of Poland–Lithuania (1795).

The Constitution of 3 May remained a precious symbol of independence among the Polish nobility in the Duchy of Warsaw, who were still dominant in public life. The modernisation promise, attached to the Napoleonic legal order, could not shift people away from their attachment to tradition; Napoleonic laws were not in keeping with the Polish reality and this conviction was widely accepted among nobility. Although the Duchy of Warsaw did not even recall the old state in its name, the nobility hoped that it was only a first step towards the full restoration of Poland. Also of importance was that radical equality was opposed by this group, who were unwilling to share their power and privileged status with other social strata. Evident was the nobility’s anxiety about the abolishment of serfdom, promised by the Constitution, and other ways of improving peasants’ status. Members of the Duchy’s central government – representing the higher strata themselves – were aware of this mood. Thus, they issued a decree (1807) in practice depriving the peasants of substantial equality.

Blackburn: Napoleon and the Szlachta, pp. 51–66, 87. On social reactions towards the new political order, see Czubaty: The Duchy of Warsaw, pp. 18–22, 25–31, 37–54.

Not surprisingly, a vision of emancipation of Jewry was equally unattractive to nobility.

Such were the largely shared social beliefs of the group serving as a reservoir for the administrative staff. Public officials were not alienated from the social realm – we may assume that even after joining the administration ranks, nobility members did not undergo a thorough change and they still shared traditional Polish social and political views, as well as assumptions concerning the legitimate normativities. Many of them gained some of their professional experience still in the Polish–Lithuanian administration, legislature or judiciary, specific for that state (in spite of modernising efforts taken between the 1760s and 1790s, the way these bodies operated was far from a highly bureaucratic model, lacking formal qualification or remuneration schemes). The Duchy of Warsaw with its modern theory of state and administration had just come into being and a well-defined ethos of a civil servant was only under construction; it was still only the beginning of administration’s development towards a »regulatory collective«.

For more on this interesting concept, see Schuppert: The World of Rules, pp. 59–136. What was intended to strengthen this ethos was professional training at the university level, in the so-called School of Law (1808) and School of Administration (1811) in Warsaw. See Aleksandra Oniszczuk: Doświadczenia Księstwa Warszawskiego w zakresie edukacji prawniczej, in: Krytyka Prawa 3 (2016), pp. 67–90.

Apart from nobility, a minor portion of public officers was recruited from Christian bourgeoisie. This class, far weaker than its Western counterpart, did not have a consistent group identity or a wider tradition of political activity or public service (other than in the urban self-government). However, ever since the Commonwealth, this group had been in economic competition with the Jewish urban population. The bourgeoisie, although interested in some egalitarian political and legal solutions, was not a proponent of a radical and wide social equality. It stood only in favour of its own rights, opposing the improvement of legal status of their Jewish rivals.

Cf. Hyman: The Emancipation, pp. 14–16.

Thus, the nobility was not alone in its discontent about the new egalitarian rulings.

Taking a broader perspective, it is worth remembering that, at the turn of the 19th century, the concept of wider social equality was still emerging.

For a brilliant study on the redefinitions of the concept and limits of equality, see Tomasz Kizwalter: W stronę równości, Kraków 2014, pp. 14–88. See also important remarks of Siep Stuurmann: The Invention of Humanity: Equality and Cultural Difference in World History, Cambridge 2017, passim and Darrin M. McMahon: To Write the History of Equality, in: History and Theory 58/1 (March 2019), pp. 112–125.

Enlightenment ideas and the experience of the French Revolution led to the questioning of fixed social stratification – for the first time, along with increased recognition of the human nature of people outside the elite, many social groups (and Jews among them) were noticed for deserving some equality.

Epitomizing the new approach was e.g. a 1790 statement of Condorcet, predicting »an end to inequality among nations« and »progress toward equality within each people« or the assurance of Tocqueville that »the gradual progress of equality is something fated« (quoted after McMahon: To Write the History of Equality, pp. 112f.). Noteworthy, as for the relations »within each people«, Condorcet mentioned only a progress towards equality and not an end to inequality.

However, calls for universal equality were rare; even liberal thinkers usually opposed equal rights for all categories of society. For example, classical liberalism – preoccupied with individualism – often considered education or wealth as conditions for equality

Besides education and wealth, »Elegance of dress and behavior« formed part of the liberal ideal (Janowski: Marginal or Central?, pp. 249–258). Thus, a Jew, not meeting these basic qualities, was not perceived as deserving egalitarian rights. Such a stance was nothing of a particularity of the Duchy of Warsaw – as Stefan Kirmse summed up the undertakings of colonial powers, the latter »simultaneously pursued policies of legal integration and discrimination, even segregation justifying this contradiction with the alleged civilizational differences between culturally superior Europeans and inferior Others«. Stefan B. Kirmse: ›Law and Society‹ in Imperial Russia, in: InterDisciplines 2 (2012), pp. 103–134, at p. 109 (and the quoted works of Jörg Fisch, Andrew Fitzmaurice, and Matthew Fitzpatrick).

and this ideology itself could be complicit in the maintenance of legal inequalities.

Kirmse: ›Law and society‹, p. 109.

The belief that societies consist of people of different value was still widespread. The long-established conviction that people were divided into categories of better and worse, fit and unfit to rule, elite and mob, only started to be questioned.

As Kizwalter: W stronę równości, pp. 17–88 aptly recalled, even the architects of improvement projects for certain groups who wished to reform e.g. the situation of peasants, or socialists who sympathized with the working class – were not free from the belief that the groups they were supporting were somehow worse and backward in terms of civilization. Such paternalistic attitudes were replacing the former open contempt held towards unprivileged groups. Thus, the egalitarian projects formulated throughout century were ambivalent: demands for the emancipation of unprivileged groups (Jews, women, workers, peasants) were in many cases accompanied by an idea to bring pressure on those groups and eradicate their bad habits by force. It was believed that – for their own good and to achieve social harmony – it was necessary to apply obligatory measures to discipline, civilize, and mould them into an intended form.

Jewish Policy and Normative Conflicts

The general struggle between both main sets of normativities (the Old Polish tradition itself consisting of heterogenic and often conflicting norms) was reflected on all administrative levels in the state’s Jewish policy. In line with the egalitarian model, Jews were not even mentioned in the Constitution nor in the Civil Code as these acts were to become a point of reference common to all inhabitants. Thus, Jews were to receive equal treatment before the law and by the public administration – there was no specific office responsible for Jewish matters. The same applied to the judiciary; contrary to a practice typical in the Polish–Lithuanian Commonwealth, there was also no specific body designed for resolving disputes between Jews and Christians.

For more on the particularities of Jewish conflicts resolution before the Partitions, see Oniszczuk / Wojciechowski: Polen-Litauen (forthcoming).

Public courts were to deal with Jewish matters following the common substantive and procedural law. Nevertheless, these principles served only as a framework. The secondary legislation, supplementing general rules, reflected a struggle between assumptions stemming from various normative orders.

Legislation

Apart from the above-mentioned general legislation, which was silent on Jewish matters, a set of secondary legislation (decrees) was created. Although their official issuer was the monarch, they were conceived, discussed, and shaped by the highest administrative officials – ministers, counsels, and referendaries, forming the Council of State. This legislation rendered the Jewish legal status far less favourable than it had been suggested by the Napoleonic legal order. These changes concerned mainly: (1) civic and political rights, (2) habitational rights, and (3) some professional rights.

As for the first one, as already mentioned, the Article 4 of the Constitution promised an unprecedented and radical (for those days) social change, namely equality before the law without regard to religious denomination. In the Jewish case the effectiveness of this provision was limited by Frederick Augustus’ decree (1808), which had been modelled on the French décret infâme.

Scholarly literature on this act and Napoleon’s Jewish policy is vast, see inter alia Anne Perchenet: Histoire des Juifs de France, Paris 1988, pp. 142–146; Patrick Girard: Les Juifs de France de 1789 à 1860. De l’émancipation à l’égalité, Paris 1976, pp. 84, 257.

Thus, their civic and political rights were suspended for ten years:

Article 1. We suspend the political rights of the inhabitants of the Mosaic faith, residing in our Duchy of Warsaw, for ten years, hoping that within this timeframe they will destroy in themselves the particularities differing them so deeply from other inhabitants.

Article 2. However, the above-mentioned rule will not forbid us to issue permissions for individuals of this faith, enabling them, before the elapse of abovementioned time, to make use of political rights, as soon as they deserve our mercy in this regard and satisfy the conditions that we will define in a separate regulation issued for the believers of the religion of Moses.

Wojciech M. Bartel / Jan Kosim / Władysław Rostocki (eds.): Ustawodawstwo Księstwa Warszawskiego. Starodawne prawa polskiego pomniki, Series II, Section IV, vols. 1–4, Warszawa 1964–1969, vol. 1, p. 148.

The official rationale behind this decision was the Jewish external appearance, in other public discussions of the epoch called »insufficient standards of civilisation«; the decree formulated a hope that within the given timeframe these features will disappear.

See e.g. AGAD, RM KW II 166, pp. 49f., »Lublin municipality and the burghers to the Council of State«, 24. 05. 1811. On the concept of ›civilisation‹: Marcin Wodziński: Władze Królestwa Polskiego wobec chasydyzmu. Z dziejów stosunków politycznych, Wrocław 2008, pp. 22f.

The very act only superficially may seem consistent. In fact, as is clear from the many ministerial discussions, the decree was rather based on anti-Jewish sentiments and a long-established conviction that members of this group do not belong to the Polish body politic and as such should not be granted power over Poles.

Cf. John Stanley: The Politics of the Jewish Question in the Duchy of Warsaw, in: Jewish Social Studies 44/1 (1982), pp. 47–62, at 49–53.

By issuing the decree, the highest authorities hoped at least to postpone the looming spectre of equality and save current social and political relations. The act reflects a struggle between these old assumptions and the new one, according to which various members of society should be treated equally and may be changed through a well-designed legislation. The act is not only a hybrid of old and new assumptions; it ›transforms‹ the old normativity by ›legitimising‹ old assumptions. The latter were presented in the new form of a royal decree, referred to the classical 19th-century idea, or ideology, of progress (that the Jewish population may improve) and praised the concept of social homogeneity, being then a novelty.

On the progress as an ideology see: Galindo: Legal Transplants, pp. 140–142. Interesting remarks on the homogeneity concept were provided by Shulamit Volkov: Das jüdische Projekt der Moderne: Zehn Essays, Munich 2001, pp. 13–31 and Samuel Hirszhorn: Historja Żydów w Polsce od Sejmu Czteroletniego do wojny europejskiej (1788–1914), Warszawa 1921, p. 20.

What is more, the act re-engaged with the old practice of granting individual privileges on a discretionary basis by the monarch, but again in a new way – it promised uniform secondary legislation specifying the conditions to be fulfilled (it was, however, never issued, what also may prove the intention to obstruct any changes).

More on this topic: Eisenbach: Emancypacja Żydów, pp. 150–163; Stanley, The Politics, pp. 49–51.

Special legislation concerning only Jews also affected their right to choose a place for habitation. Restrictions on this scope were initiated with an 1809 decree that forbade them to reside in more than thirty streets in the central part of Warsaw, which were perceived as the best addresses in town.

For the contents of the decree, see Bartel / Kosim / Rostocki: Ustawodawstwo Księstwa Warszawskiego, vol. 2, pp. 26–29, 88–90.

What merits attention is the preamble providing reason for the issuing of this act:

Taking into consideration that an excessive concentration of the Old Testament believers leads to various dangers for the inhabitants of the capital city, namely fire and loss of health; Taking into consideration that the lack of cleanliness, mess, and lawlessness are a natural result of an excessive concentration [of people] in a small area, what may be prevented by the police only with an effort; Following a proposition of our Ministers of Internal Affairs and Police, having consulted our Council of State, we order [the following]:

Article 1. On streets of Warsaw, named in the following article, starting from the 4 October 1809 individuals of the Mosaic faith may not reside.

The official justification, namely an attempt to maintain cleanliness in the city, reflects the tendencies of the time; a programme of beautification of urban centres was a trend common for many European authorities. But since the Jews were the only group to be addressed by such an act, the official justification was only one aspect of the general motive. The other aspects were (un)conscious religious and cultural biases and economic concerns, namely anti-Jewish attitudes, perception of Jewish otherness, desire to limit professional competition. Valuable interpretative tool was recently offered by Konrad Matyjaszek claiming that anti-Jewish residential restrictions in Poland throughout the ages resulted from the idea of »subtenancy«; according to this concept, Jews – treated as provisional inhabitants, »subtenants« – did not deserve access to all places.

Konrad Matyjaszek: Produkcja przestrzeni żydowskiej w dawnej i współczesnej Polsce, Kraków 2019; see also Protokoły Rady Stanu Księstwa Warszawskiego, ed. by Bronisław Pawłowski, vol. 1, part 2, Toruń 1962, pp. 231–233.

Being considered as backward in terms of their civilisational status, they were also perceived as an obstacle to the project of modernising the cities. That is why a Jewish presence, particularly, in the heart of the capital city was deemed undesirable; as this area had a symbolic dimension as a centre of power and prestige.

Cf. Jarosław Czubaty: Warszawa 1806–1815. Miasto i ludzie, Warszawa 1997, pp. 17–19.

Thus, although the Old Polish prohibition of Jewish people residing in Warsaw could not be revived (mostly due to the large numbers of Jews already living in the city), the 1809 decree was an attempt to keep the »subtenants« away from the most important places. The introduction of new assumptions (care for the good order of cities) produced an impression of formulating purely modern legal solutions.

Importantly, the act formulated exceptions to the ban. Unlike the above-mentioned 1808 decree, the act on Warsaw directly provided conditions for those Jews who wished to receive a favourable treatment. Notably, exemption from the ban was offered to the most acculturated and wealthiest of Jews – as they were expected to: 1) read and write in Polish, French, »or at least in German«, 2) send their children to public schools, and 3) not display »any external marks«, distinguishing them from the Christian majority. Some further professional conditions were formulated, implying which groups were perceived by the authorities as the most useful. Although the number of privileged families was to be limited to two for each of the most prestigious streets, the acculturation offer was clear. It echoed the above-mentioned classical liberal view of equality.

This act was of particular importance as it served as a point of reference for further decrees restricting Jewish presence in other towns, this time in the form of districts (rewiry) being the only space available for Jews. Attempts were made from 1810 onwards to create such districts in Wschowa, Cracow, Płock, Maków Mazowiecki, and Przasnysz. They referred to the same motivations as the Warsaw decree.

More on the topic: Aleksandra Oniszczuk: Władze Księstwa Warszawskiego wobec Żydów: debata, prawo, praktyka, Wrocław 2021 (forthcoming).

The concept of districts was not synonymous of the old, medieval restrictions called the privileges de non tolerandis Judaeis. And they were not simply a formula dressing up the old convictions in a new costume; they transformed them and offered modern rationalities and assumptions.

In relation to these residential restrictions, there was also a ban on the purchase of real estate – according to an 1808 law, Jews were not allowed to buy landed property.

For the content of this decree dated 19. 11. 1808 see Ustawodawstwo Księstwa Warszawskiego, vol. 1, p. 159.

The hidden reason behind this law was unequivocal – according to a centuries-old conviction, only the nobility was entitled to possess real estate outside of cities. Traditionally it was their exclusive prerogative, which was justified by their military obligations.

See the 1635 law: Volumina Legum, vol. III, p. 405. First exception to the rule came late, just before the dissolution of the state – with the 1791 Law on towns, opening the right to buy landed property to Christian bourgeoisie, Volumina Legum, vol. IX, p. 217.

Although in the Duchy there were no more provisions formulating such a principle – and the Civil Code implied the opposite, in the form of a free circulation of property – the belief was deeply rooted in the nobility’s outlook. The latter was afraid that breaking the tradition would undermine its social prestige.

Eisenbach: Kwestia, p. 125.

Moreover, of importance was the anxiety that Jews will not be interested in maintaining estates, but only in reselling them, which will result in speculation of prices and the destabilisation of the social equilibrium of rural areas.

AGAD, KRSW 6584, p. 34, »The Minister of Internal Affairs to the Council of Ministers«, 25. 04. 1812. See also PRS, vol. 3, part 1, p. 31; Mark Vishnitser: Proekty reformy evreyskogo byta w Gertsogstve Varshavskom i Tsarstve Pol’skom, in: Perezhitoe 1 (1908), pp. 164–221, at p. 169.

Strikingly, the scope of the regulation was unclear even for the ministers – they wondered whether the ban included urban estates.

PRS, vol. 1, part 2, pp. 231–233.

What triggered the discussion was the very letter of Wollenhaupt, anxious about an undermining of not the social, but the legal order.

The third category of acts depriving Jews of the rights promised by the Napoleonic order were those related to the professional sphere, namely the production and sale of alcoholic beverages. A ban for Jewish presence in this sphere was introduced (1812) based on the postulates reiterated in public debates from the final years of the existence of Poland–Lithuania.

Dziennik Praw Księstwa Warszawskiego, vol. IV, no. 47, pp. 393–397.

What stood behind this act was the openly expressed social belief that Jews were responsible for peasants’ drunkenness (leading to physical and moral degeneration, as well as impoverishment) and as such they should be excluded from all such activity. Moreover, the production and sale of alcohol was perceived as an economically and socially non-useful occupation, and as such should be abandoned. Such a postulate of physiocratic background had earlier been voiced in Prussia, Austria, and Russia.

Antony Polonsky: The Jews in Poland and Russia, vol. 1, Oxford 2010, pp. 253–255; Albert A. Bruer: Geschichte der Juden in Preußen (1750–1820), Frankfurt-New York 1991, pp. 158f.; Artur Eisenbach: Z dziejów ludności żydowskiej w Polsce w XVIII i XIX wieku, Warszawa 1983, p. 38; Dawid Kandel: Żydzi w roku 1812, Warszawa, [1910], p. 12. It is worth recalling that generally in Europe and America alcohol (particularly liquor) was perceived at the time as a source of moral depravation and economic misery, Rod Phillips: Alcohol: A History, Chapel Hill 2014, pp. 153f., 161–163, 173–175, 192–194; David J. Hanson: Historical evolution of alcohol consumption in society, in: Peter Boyle et al. (eds.): Alcohol: Science, Policy and Public Health, Oxford 2013, pp. 8f.

Due to the fact that it was a regulation not based on any earlier tradition, it was the most straightforward – the officially presented motives were sincere and the preamble did not have to cover any assumptions stemming from older normative orders.

The process of shaping the Jewish decrees and the policy reflected a paternalistic attitude – the central powers, typically of the time, usually did not consider any Jewish demands, treating this population merely as an object and not allowing any agency from its part.

There were minor exceptions to this rule. For instance, one of the taxes paid by the Jewish community (the recruit tax) originated from the negotiations between the representatives of the Jewry and the state officials. Another example of an impact of ›Jewish voices‹ on current policies were the petitions regarding the postponing of implementation of some decrees on habitation. See Artur Eisenbach: Di tsentrale reprezentants-organen fun di Yidn in Varshever Firshntum (1807–1815), in: Bleter far geshikhte 2 (1938), pp. 33–88, at pp. 54, 58, 60, 65–76; Dziennik Praw Księstwa Warszawskiego, vol. IV, no. 40, pp. 159–162; Archiwum Żydowskiego Instytutu Historycznego, collection: Gmina Wyznaniowa Żydowska w Krakowie, call no. 57/1, case no. 999; Archiwum Państwowe w Radomiu, collection: Akta miasta Radomia, call no. 467, pp. 4f.; Archiwum Państwowe w Zielonej Górze, collection: Akta miasta Wschowa, call no. 1219, pp. 29, 37–39, 99f.

Thus, there was no place for equality or dialogue.

Administrative Action

In the realm of everyday administrative practice, the new normativity, however, did bring a visible change. If a matter was not related to one of the areas regulated specifically by the above-mentioned legislation, Jewish cases indeed were resolved according to general procedures.

This issue has already been addressed in Aleksandra Oniszczuk: The Jews in the Duchy of Warsaw: The Question of Equal Rights in Administrative Theory and Practice, in: Glenn Dynner / Antony Polonsky / Marcin Wodziński (eds.): Polin. Studies in Polish Jewry, vol. 27, Oxford 2015, pp. 63–87, at pp. 71–76.

These were followed regarding the submission of petitions, their resolution, and informing the petitioner about the outcome of proceedings. Jewish requests were approached according to general procedures at every stage of the administrative process. Contrary to an Old Polish practice, on a daily basis the Duchy’s administration corresponded with Jewish petitioners directly without the intermediary role of Jewish communities (kehillot). Like other individuals, when unsatisfied with a decision, Jews too appealed to higher officials and their cases were reviewed with a measure of diligence. Official norms were also followed in many cases where Jews appeared before public courts, both as plaintiffs and defendants. Noteworthy, the source material confirms also the practice of bringing by Jews to state courts their legal claims regarding infringement of law by public authorities; these documents do not however enable us to formulate general conclusions on universality of such practice.

For examples of general judicial procedures in Jewish cases, see AGAD, Rada Ministrów Księstwa Warszawskiego [RM KW], call no. II 16, pp. 1–95; AGAD, RM KW, call no. II 24a, pp. 66–102 and AGAD, RM KW, call numbers: II 19, II 20, II 378b; Gazeta Warszawska, addition to the no. 33, 24. 04. 1813, p. 16; addition to no. 39, 14. 05. 1809, p. 14; Dziennik Departamentowy Łomżyński, no. 23, 30. 05. 1812, p. 4; Moses Wasserzug: Die Memoiren des Moses Wasserzug, ed. by Jacob Goldberg, Leipzig 2001, pp. 67–71, 75; Tomasz Opaliński: Stan chłopski w Księstwie Warszawskim w świetle akt sądowych, Warszawa 2020, pp. 139–144. A practice of referring to old, intra-communal judicial procedures: Archiwum Żydowskiego Instytutu Historycznego, call. no. 114 (Pinkas płocki), pp. 213f.

Noteworthy is the applicability, in Jewish cases, of general procedures regarding compensation for the infringement of procedural provisions on the part of state officials or for any damage caused by military requisitioning. As for the former, sometimes the administration itself reminded Jewish individuals – as injured parties – of the possibility of taking legal action in order to assert civil claims. As happened in the case of Jewish breweries in Radom – shut down by the town mayor due to an infringement of a number of town agreements – the local prefect not only ordered the mayor to reopen the breweries, but also ruled that »if the owners of the breweries should suffer any damage as a consequence of this closure, they shall have the right to seek compensation in court«.

Archiwum Państwowe w Radomiu [APR], Akta miasta Radomia [AmR], call no. 182, pp. 8r, 11v, »Correspondence between the Prefect of the Radom department and the Radom Mayor«, 30. 08. 1814, 21. 12. 1814.

Similar was the case of an army supplier named Frenkl – not only did the customs office decide in favour of his petition, but also the members of the Council of State reminded that he may search for liability in a civil court.

Protokoły Rady Stanu, vol. 1, part 2, p. 137.

As far as requisitions are concerned, archival sources indicate the involvement of state officers who verified whether requisitions were legal or not. Such a case concerned a certain Samuel Szaj, an inhabitant of the city of Płock, whose goods were taken in 1808 by the army. When he requested compensation, his petition was examined by the prefect. The latter, writing to his subordinate revealed engagement in the issue and ordered that the former mayor himself be officially summoned to give an account:

[With regard to] the request of Samuel Szaj in respect of recompense for the merchandise taken from him by the Municipality as requisition for the benefit of the French army [...] the police authorities of the town of Płock are instructed to summon the former mayor Jędrzejewicz and obtain from him a detailed elucidation of this complaint by requiring that he present supporting evidence. Once they are assured that the complaint is genuine, a satisfactory recompense to the supplicant should be calculated and the amount made good [...] and furthermore a detailed report on this circumstance must be made out to the Prefect within fourteen days.

Archiwum Państwowe w Płocku [APP], Akta miasta Płocka [AmP], call no. 415, pp. 2r–2v, »Correspondence between the Prefect of the Płock Department and the Municipality«, 11. 08. 1808, 13. 09. 1808.

In such matters, investigation included the collection of documents and the hearing of individuals in order to reach the material truth. When another Jewish inhabitant of Płock, Józef Moszkowicz, complained about a requisition, the procedure started with a questioning of the petitioner himself. What followed was a written petition to the former mayor, urging him to inform the municipality »as promptly as possible« about »who authorised, during the passage of the French army, the requisition from the Jew Józef Moszkowicz of [...] [planks and timber] and what [...] were [they] used for, as no information in this respect can be obtained from the files left behind by the previous office of the municipality«. When the former mayor provided a written explanation, the whole matter was submitted again to the prefect.

APP, AmP, call no. 415, pp. 3r–3v, »Testimony of Józef Moszkowicz«, »Municipality to Jędrzejewicz«, 29. 12. 1808; p. 5r, »Jędrzejewicz to the Municipality«, 19. 01. 1809, pp. 5v–6r, »Municipality to Prefect of the Płock Department«, 21. 04. 1809.

There were numerous cases when an administration decided in favour of Jewish supplicants. What is worth mentioning here is that in some cases the administration even granted an exemption from the general rules applying to everyone, including Christian citizens, due to the special difficulties experienced by a Jewish applicant. It concerned, for example, the query of Jewish inhabitants of the towns Radom and Przytyk, requesting a temporary exemption from the obligation to quarter military personnel due to the Passover.

APR, AmR, call no. 779, pp. 1r–1v, »Jewish Representatives to the Radom Mayor«, 28. 03. 1814.

The same may be said of a certain Jew by the name of Mosiek Kierzbaum, an importer of liquor to Radom. Obliged to collect the liquor from the local customs warehouse, he asked for more time, as he could not find a means of transport due to the passage of troops. Albeit the responses issued by the public officials had been sharp in tone, he was granted a favourable decision. When he applied a few days later for another authorisation, he once again received a positive decision.

APR, AmR, call no. 182, p. 17r, 20r–20v, »Correspondence between the Radom Mayor and Mosiek Kierzbaum«, 8. 12. 1814, 22. 02. 1815.

Grounds for Plurality of Approaches in the Jewish Policy

Faced with examples of the administration’s equal treatment of Jewish inhabitants, it is worth revisiting the Duchy’s anti-Jewish legislation. How could the two opposing approaches have coexisted? Why, despite the strong prejudices, did the administration turn out to be an agent of egalitarian change? Of course, as in many other bureaucratic systems, some role might have played the fact that a breach of procedures might have led to disciplinary, compensational, or even criminal liability of a state officer. Moreover, referring to Uwe Schimank’s observation, the very fact that the administrative body had its own rules meant that it could »exert pressure on its members to conform«.

Quoted by Schuppert: The World of Rules, p. 60.

However, such reasoning would not be sufficient, as the very existence of a sanction is often not enough to guarantee obedience to norms. Of importance might have been another pragmatic reason – following general procedures and standard solutions was the simplest; and this obeisance facilitated the decision-making process. Burdened by hundreds of matters awaiting resolution, some dating even from the times of Prussian governance, public officers in the Duchy operated under time pressure. In such circumstances, it was better to avoid situations where the applicants came back with a complaint or directed an appeal to a higher authority, questioning the correctness of the lower official’s resolution. But were there any other reasons as to why, in spite of clear anti-Jewish sentiments and legislation undermining equality, so many cases were decided in favour of Jewish applicants? Did such instances have any common basis? Can we say the same of the ›unfavourable‹ cases?

Here the lens of multinormativity, focused on extra-legal influence on administrative action, becomes a valuable interpretative tool. Taking into consideration the norms behind different kinds of rulings concerning Jews, this tool enables us to conclude that the positive outcomes concerned the ›normatively neutral‹ cases that did not infringe upon earlier tradition. Hence, it was admissible that Jewish applicants followed general administrative procedures, neutral from the point of view of norms important for the ruling class. And the converse obtains – as soon as a matter entered a domain perceived by authorities as ›normatively vulnerable‹, there was no place for equality. That is why political and civic rights and the purchase of landed property could not have been granted to Jews. Such rights were regulated by a traditional conviction that their possession was the exclusive right of the nobility.

In the case of the production and sale of liquors, the initially firm policy was moderated by the social reality. Two decades of passionate discussions formed the idea that Jewish people were responsible for the degeneration of the Duchy’s largest social class and thus, as for this particular area of Jewish economic activity, equality was declared as unaccepted. However, social inertia urged the members of government to limit their broad plans. After the period of a year and a half that was given to Jews to shift to other activities, and just a few weeks before the ban was to become effective, the unchanged Jewish omnipresence in the alcoholic branch proved that it was virtually impossible to radically implement a complete ban. Thus, the ministers had no choice other than to accept the reality and limit such reforms. In 1814 the implementation of the law was postponed for a year, marking a series of further postponements.

Dziennik Praw Księstwa Warszawskiego, vol. IV, no. 47, pp. 393–397; Gazeta Warszawska no. 24, 25. 03. 1815, p. 9; Dziennik Departamentowy Warszawski, no. 16, 20. 03. 1815, p. 133; no. 24, 15. 05. 1815, pp. 215–218; no. 32, 10. 07. 1815, pp. 293–298; see also Eisenbach: Kwestia, pp. 155–164.

That is why the above-mentioned liquor importer from Radom could have continued his trading.

How to Conceptualise the Conflict of Normativities? A 19th-Century Answer

What merits particular attention is the fact that the inconsistency of normativities guiding Jewish policy was noted already by the Duchy’s highest officials. It is clear from the discussions addressing the question whether the old privileges de non tolerandis Judaeis forbidding the settlement of Jews in some cities were still valid. Historians have unanimously claimed for a long time that such town privileges – binding before the Partitions, albeit revoked by the Prussian authorities (1802) – were reintroduced in the Duchy.

See e.g. Murphy: From Citizens to Subjects, pp. 159f.; François Guesnet: Polnische Juden im 19. Jahrhundert. Lebensbedingungen, Rechtsnormen und Organisation im Wandel, Köln–Weimar–Wien 1998, p. 36; Eisenbach: Emancypacja Żydów, p. 154.

But the issue appears more complex.

For a broad discussion on the issue, see Aleksandra Oniszczuk: The Old Privileges and the New Spirit of Law: Jewish Residential Areas in the Duchy of Warsaw, in: Studia Judaica 45 (2020), pp. 43–73.

A petition from a Jewish inhabitant of Lublin by the name of Wolf Drezner opened deep discussions on the matter. He hoped to move into the central part of the city, called Catholic Town – until then, for centuries closed to Jewish residence due to the de non tolerandis privilege. The hurdle came from the municipal council and some citizens of the city, recalling the city’s royal founding charter dating to the fourteenth century and the later privileges. They attached copies of the old documents and requested that the ministers help to preserve the privileges of this city, »as they remain unaffected in their power«.

AGAD, RM KW, call no. II 166, pp. 47–53, »The Lublin Municipality, together with the burghers, to the Council of State«, 24. 05. 1811; pp. 59–70, »Agreement«, 27. 04. 1780; pp. 71f., »Decision«, 13. 01. 1804.

The Council of Ministers did not adhere to this interpretation. The minister of police declared that

the previous town privileges, in so far as they were not confirmed by His Royal Highness, may not be deemed binding. This is evidenced supremely by the decree of 1809, wherein H.R.H. orders the Old Testament believers to leave the main streets of the capital city of Warsaw, not mentioning the privileges of this city. He merely deigned to say that this is because of the excessive concentration of Old Testament people, who expose the residents of the capital to multiple perils.

AGAD, RM KW, call no. II 166, pp. 73f., »The Minister of Police to the Council of Ministers«, 7. 06. 1811.

Thus, the proof for the privileges’ nonexistence was the 1809 decree regarding Warsaw, which was silent on the privilege of the city. The minister of justice reacted in a similar vein:

It may not be denied that Wolf Drezner, the Old Testament believer, may have his dwelling in the city of Lublin, in spite of the fact that the city of Lublin opposes it. [The reason is that] the privileges that the city of Lublin has submitted in its defence, not approved by the present government, do oppose the Constitution of the Duchy of Warsaw whereby everybody is equal in the face of the law; and, therefore, there is no exception that would be accepted with regard to religions, and by no means may it be worthy of any notice, whatsoever.

AGAD, RM KW, call no. II 166, pp. 85f., »The Minister of Justice to the Council of Ministers«, 12. 07. 1811.

Also the minister of internal affairs – the one formally responsible for the Jewish policy – agreed with his colleagues:

Whatever the particular privileges of the city of Lublin might be, to the end that Jews be removed from enjoying certain rights there within, they may not be quoted presently. Whereas, namely, the Constitution of the Duchy of Warsaw admits no difference amongst the residents as to religion; therefore, all the foregone regulations and privileges grounded in this principle shall be vacated of their own accord.

Interestingly, his further reasoning proved to be multi-faceted or even paradoxical. After acknowledging, as we have seen, that the former privileges had expired and the local authorities cannot refer to them, the minister, Jan Paweł Łuszczewski, formulated the following restriction:

Nevertheless, this would not apply to the regulations that the former government has made, or the present government may make, this owing to the difference in the customs and in the standards of civilisation between the diverse classes of residents.

His further reasoning was even more astonishing:

However, despite the invalidity of such particular privileges, it is the opinion of the Minister of Internal Affairs that, in general, it is not appropriate that they be clearly abolished so that Jews be permitted, under no conditions at all, to reside in the principal places of towns where they had not hitherto been allowed to have their dwellings.

The reason was the Duchy’s policy conducted earlier with regard to two other cities:

This would have stood in plain contradiction to the government’s actions regarding the other towns where those [Jews] dwelling had already been instructed to move away from the superior streets. Examples of this are in Warsaw and Wschowa. Under certain conditions, though, Jews could be permitted to reside in those streets where they had hitherto been supposed not to reside. A list of these conditions, serving as a model, is included in the decree [...] regarding the removal of Jews from the superior streets of the city of Warsaw. Only the quantity of wealth might be diminished relative to the size of the towns.

AGAD, RM KW, call no. II 166, pp. 76f., »The Minister of Internal Affairs to the Council of Ministers«, 21. 06. 1811.

This complex reasoning is worthy of closer attention. Its internal logic reflects the normativities’ struggle. On one hand, the minister was aware of the changed circumstances and agreed with the general opinion of his colleagues. However, on the other hand – as the minister responsible for Jewish matters – he was trying to consider the entirety of the state’s Jewish policy. That is why Łuszczewski stands for a double policy claiming that the authorities should refrain from disseminating information on the abolishment of privileges. Owing to the fact that already some residentiary limitations had been introduced in two cities (Warsaw and Wschowa) and in order to preserve an impression of consistency of the Duchy’s Jewish policy, he postulates that the Jews should not be allowed to reside unconditionally in those places that had been closed for them for centuries.

The reference is to the aforementioned 1809 decree on Warsaw and to the decree regarding the town of Wschowa where the local Jews were instructed to leave the Old Town area and move to the New Town. AGAD, RM KW, call no. II 165, pp. 33f., 46, »Decree of Frederick Augustus«, 5. 07. 1810.

It seems that the minister clearly sees the challenge of adapting theory – the official normativity – to the contemporary reality and social relations. Although the Constitution declared the irrelevancy of religion from the legal standpoint, the minister was aware of the existing, far-reaching separation in everyday social life (and we may presume that he approved this reality). That is why he searched for another legal basis for the differentiation of Christian and Jewish rights; and referred to the alleged »difference in the customs and in the standards of civilisation«. And that is why those Jews, who resembled Christians and thus met the »civilisation conditions« formulated by the 1809 decree (wealth, external outlook, fluency in European languages and education of children in state schools), were to receive administrative permission to settle in »those streets where they had hitherto been supposed not to reside«. As the minister was aware of the need to adjust the administration’s policy towards Jews to the Constitutional framework, he hastened to ensure that »[t]hese restrictions are not contrary to the Constitution, and thus, for police-related reasons and due to the need to destroy the external difference [...] between Jews and other inhabitants, the government has the right to undertake them«.

AGAD, RM KW, call no. II 166, p. 77.

The minister’s reference to police requirements echoed the common trend of that time – the quest for maintaining order and controlling population were perceived as crucial for public policies also in other European states. Moreover, like in a classical liberal political framework, equality was conditional – it depended on education and material independence of an individual. We may observe that Jewish difference was reframed from a system of religious difference into a system of difference based on cultural and personal development.

I would like to thank Peter Becker for this valuable observation.

However, what was not typical was Łuszczewski’s further legal reasoning. Coming back to the Drezner case, he once again repeated that the Christian inhabitants of the city of Lublin may not »hide behind their privileges, for the latter have expired through the annulment of their rule«. But then he formulated an astonishing idea: »the government, however, shall take them into consideration [emphasis added], in as much as they be in concord with its principles and good orderliness of things«.

AGAD, RM KW, call no. II 166, pp. 77–79.

The suggestion was a pure legal invention of the minister, unsupported by any legislation. The proposition pointed to the actual social reality and was intended to mitigate the challenge of equality.

The way the minister conceptualised the issue not only reflects his inner struggle (as if he had been evaluating all the arguments), but also proves his awareness of the difficulties in adjusting the modern legislation to the current social, political, and cultural reality. Thus, as we may sum up, he proposed to pursue a dual policy. The official one (namely refusing the acknowledgment of the Old Polish privileges) was considered the one which accorded with the spirit of the new law; it was to ›educate‹ local communities and municipalities and to initiate them into the new legal culture. The unofficial policy (refraining from a general declaration on abolishment of privileges and »taking them into consideration« instead) was to be different – it was to conform to the policy towards Jews that had been conducted beforehand (in the form of decrees banning Jewish presence in centres of two cities) and to prevent a radical social change (massive influx of Jews into the urban centres).

Subsequent opinions of ministers expressed with regard to other cases reflect the firmness in declaring that the privilegia de non tolerandis Judaeis had lost their binding force.

See e.g. AGAD, KRSW, call no. 1439, p. 42, »The Minister of Internal Affairs to the representatives of the Piotrków synagogue«, 9. 01. 1812; AGAD, KRSW, call no. 2921, pp. 221–228, »Correspondence between the Deputy Mayor of Sandomierz and the Minister of Internal Affairs«, 26.08.1811, 20. 09. 1811; AGAD, KRSW, call no. 2923, p. 12, »The Minister of Internal Affairs to the Deputy of Sandomierz«, 20. 01. 1812. A change in the central power’s outlook took place when the temporary government, imposed by the Russian tsar, took over: Dziennik Departamentowy Warszawski, no. 24, 15. 05. 1815, p. 216.

Such a belief was usually at odds with the standpoint expressed by their subordinates.

Local and Central Powers: Entangled in Different Normativities?

At the local level, the attachment to Old Polish norms was stronger. While addressing the issue of privileges de non tolerandis Judaeis, municipalities and Christian burghers (and in one case known to me – even Jewish authorities

Documents on the issue: AGAD, KRSW, call no. 1439, pp. 34–40. More on this case: Oniszczuk: The Old Privileges (forthcoming). For another example of a Jewish reference to privileges, although in a different context, see AGAD, KRSW, call no. 6627, pp. 2f., »The Jewish community of Nowe Miasto to the Minister of Internal Affairs«, 15. 01. 1808.

) claimed that these norms were still binding.

AGAD, RM KW, call no. II 166, pp. 47–53, »The Lublin Municipality, together with the burghers, to the Council of State«, 24. 05. 1811; Archiwum Narodowe w Krakowie, Magistrat Krakowa, call no. I/42, pp. 530, 992, »Minutes of the meeting of the Kraków Municipal Council«, 23. 07. 1814 and undated (July 1815); AGAD, KRSW, call no. 2921, p. 118, »Testimony of the Deputy Mayor of Sandomierz«, January 1811; pp. 221, 227, »Deputy Mayor of Sandomierz to the Minister of Internal Affairs«, 26. 08. 1811. See also Artur Eisenbach: Status prawny ludności żydowskiej w Warszawie w końcu XVIII i na początku XIX wieku, in: Biuletyn Żydowskiego Instytutu Historycznego 39 (1961), pp. 3–16, at pp. 6–11.

This was their »belief related to law«, to recall a Georges Gurvitch concept.

Georges Gurvitch: Sociology of Law, New Brunswick–London 1973, pp. 8f.

It had various grounds – the new normative order was only at the beginning of its formation and the administration had to rely on clerks without either much training or experience. Moreover, as we have seen, there was no general declaration about the abolishment of privileges (which is not surprising, as in the 19th century the practice of a thorough and strict regulation of all possible sources of law was still not common).

For a recent theoretical analysis of the issue of temporal validity of law, see Fabian Wittreck: Geltung und Anerkennung von Recht, Baden-Baden 2014.

And last but not least, social reality generally changes only slowly and – as Marc Galanter put it – the »demise of traditional law does not automatically bring the demise of traditional society«.

Brian Tamanaha: A Holistic Vision of the Socio-Legal Terrain, in: Law and Contemporary Problems 71/2 (2008), pp. 92f. Cf. also: Francisco J. Andrés Santos: Napoleon in America? Reflections on the Concept of ›Legal Reception‹ in the Light of the Civil Law Codification in Latin America, in: Thomas Duve (ed.): Entanglements in Legal History, Frankfurt am Main 2014, pp. 297–313, at p. 298.

Thus, one could not expect the lowest-level clerks, often holding some local offices since the older times, to easily adhere to the new order. What shaped the local beliefs about the legal order and played key role in their Jewish policies were not legal acts or ministerial guidance, but rather »ideas about the law in force«. Recalling the concept of a classical sociologist of law, Leon Petrażycki, we may call such ideas a sort of intuitive law, which could be identified with an inner sense of justice. As Petrażycki claimed, apart from the legal text, the law consists also of the individual’s experience, or idea, of normative facts. A complex interplay incessantly goes back and forth between the two dimensions of law; intuitive law permanently acts as an »invisible, backstage factor«, which is sometimes hidden and inappreciable even for those who oversee it.

In the concept of Leon Petrażycki, law is not »something that one may write down and put to the vote but rather, something that should be »brought to life«. On this entanglement of law »in an individual and social way of experiencing the reality«, see Paweł Jabłoński / Przemysław Kaczmarek: Granice władzy prawniczej w perspektywie polskiej tradycji socjologicznej, Kraków 2017, pp. 27–29, 68–87, 128; Roger Cotterrell: Leon Petrazycki and Contemporary Socio-Legal Studies, in: International Journal of Law in Context 11/1 (2015), pp. 1–16.

A similar approach was taken at the middle administrative level, highlighting the certainty about the existence of privileges at the local level. The prefects of the Kalisz and Cracow departments – although being directly subordinate to the central powers and on daily basis responsible for enforcement of the official legislation and ministerial guidance, and thus familiarised with the »new spirit of the law« – they both perceived Old Polish norms as a valid basis for their administrative decisions.

»There is no question about the fact that the Town of Busko holds the privileges forbidding Jews from being housed within the entire town limits, and whose power was retained by the previous [i.e. Austrian – A.O.’s note] government, and not in the least infringed by the present statutes«, Archiwum Państwowe w Kielcach, Rząd Gubernialny Radomski, call no. 4018, p. 116, »The Prefect of the Kraków Department to the Subprefect of the Stopnica County«, 30. 09. 1811. See also AGAD, KRSW, call no. 1439, pp. 34–40, »Representatives of the Piotrków synagogue to the Minister of Internal Affairs«, 26. 12. 1811; p. 84, »The Minister of Internal Affairs to the Prefect of the Kalisz Department«, 25. 05. 1812.

Interestingly, authorities at all levels proved their firmness as to their understanding of the legal order – whereas at the central level the ministers did not doubt that the privileges were no longer in force, the officials of lower levels, and most probably the population as well,

What justifies this reasoning is the »privilege-defending mentality« of townspeople, namely their firm resistance against state’s centralising policy, starting in the last years of the Polish–Lithuanian Commonwealth. Diverse methods were used by them to limit the effects of the new regulations, the latter largely interfering in the local status quo. See Murphy: From Citizens to Subjects, pp. 7–10, 16f., 53–120, 159.

believed the contrary. They seem to have been entangled in two different normativities.

For other examples of differences of approaches between the local and the central powers in their Jewish policies (and bottom-up resistance to egalitarian solutions), see Leszek Ziątkowski: Między niemożliwym a koniecznym. Reformy państwa pruskiego w końcu XVIII i na początku XIX wieku a proces równouprawnienia Żydów ze szczególnym uwzględnieniem sytuacji na Śląsku, Wrocław 2007, pp. 172f. and the general remark of Hyman: The Emancipation, pp. 20f.

On the local level, much greater was the importance of current social relations than among the officials at the highest level, who, in turn, felt responsible for enforcing the official normativities, even though in a non-uniform way.

Thus, we may argue that the privileges were still »legally meaningful«. Particularly at the local level it was not a concern that they were not backed by any positive Gesetz, or that were against the spirit of the Constitution.

Inge Kroppenberg / Nikolaus Linder: Coding the Nation. Codification History from a (Post-)Global Perspective, in: Thomas Duve (ed.): Entanglements in Legal History, Frankfurt am Main 2014, pp. 67–99, at pp. 74f.

The legal positivistic idea of one source of law overriding all other sources, implied by the notary Wollenhaupt, was only emerging. Such a modern approach was not widely accepted at lower administrative levels, as was not the idea of equating privileges with backwardness and modern law with progress.

For a valuable comment on this implied neo-Weberian paradigm and on Franz Wieacker’s influential stance, see Kroppenberg / Linder: Coding the Nation, p. 71. For an interesting, recent critique of historians’ positive evaluation of state legal projects aimed at ›progress‹, see Murphy: From Citizens to Subjects, pp. 1–24.

The modern law of foreign origin, far from being voluntarily implemented was perceived rather as a source of »interruption« to the political and social order.

Kroppenberg / Linder: Coding the Nation, p. 79.

Conclusions

The article has discussed inconsistency inscribed in the Jewish policy of the Duchy of Warsaw, resulting from divergent normativities. I have examined the ways these normativities were handled, transformed, and conceptualised. Reference to administrative multinormativity as an analytical tool – focussed on norms standing behind practice, as well as on relations between legal norms and other normative rationalities – has allowed highlighting the importance of social influences on the way in which legal order was interpreted. Multinormativity has made it possible to go beyond the descriptive outlook of prior historiography and research the dynamics behind the Duchy’s Jewish policy. It enabled us to see how the legal and administrative action originated from »a complicated mixture of political action, legal reasoning and social needs«.

Referring to Dieter Grimm’s stance, as recalled by Daniel Siemens: Towards a New Cultural History of Law, in: InterDisciplines 2 (2012), pp. 18–45, at p. 23.

Among the main obstacles for implementation of the Napoleonic legal system and among the bases for multinormativity was the general social disinclination towards profound and radical change, and a strong social attachment to the past, reinforced by the hope of a reconstitution of the dissolved Polish state. Contrary to the Westphalian case – an entity without an earlier state tradition, being a more favourable setting for declarations pertaining to the erasing of a past and the creation of a completely new order

See Helmut Berding: Das Königreich Westphalen als napoleonischer Modell- und Satellitenstaat (1807–1813), in: Gerd Dethlefs / Armin Owzar / Gisela Weiß (eds.): Modell und Wirklichkeit. Politik, Kultur und Gesellschaft im Großherzogtum Berg und im Königreich Westphalen, Paderborn–München–Wien–Zürich 2008, pp.15–29, at pp. 20–22.

– the Duchy had to contend with centuries-old traditions. In conformity with the general observations of Galanter, we may sum up that since the official law introduced by Napoleon did not »represent the attitudes and concerns of the local people«, »various patterns of social ordering, when interacting with official law«, were more efficacious »in influencing social behaviours.«

Tamanaha: A Holistic Vision, pp. 92f.

Anxiety related to radical social change was prevalent not only amongst the Duchy’s population, but also amongst the highest echelons of the administrative body (ministers, counsels, and referendaries). Their Jewish policy reflects an attempt to mitigate the threat of thorough egalitarian changes. What seems to have been the main difference between them and the local authorities (particularly of the lowest, municipal level) is that the former were much more aware of the altered legal environment and of conflictual norms. They far better understood the character of the new institutional framework. That is why, in attempt to find a politically correct compromise, one of the ministers formulated a concept encompassing both normative orders, postulating that the privileges be »taken into account in practice«, even though the idea was a pure invention, destitute of legislative background. Concluding, we may assume that for the majority of public officials in the Duchy of Warsaw (with minor exceptions, like the notary Wollenhaupt), a still valid source of norms was the heterogenic Old Polish law, although – in the ministerial case – it had an unofficial (hidden) character. These initial assumptions, knowledge, and mores unconsciously influenced the administrative process. As a result, »a translation of normative resources«

Referrence to Duve, Was ist ›Multinormativität‹?, p. 93.

took place and the earlier normativities were transformed, receiving new, modern rationalisations. Interestingly, these emerging norms did not fully belong either to the Old Polish or the Napoleonic normativities.

Noteworthy, a supporter of equality was the bureaucracy. There were countless numbers of cases, which addressed both Jewish petitions and petitioners in accordance with the general rules. The terminological uniformity – the usage of one term for all applicants (called supplikanci), irrespective of religion, was meaningful.

It had the potential of influencing »thoughts and actions«, to refer to the observation of Jean-Étienne-Marie Portalis, quoted by Kroppenberg / Linder: Codification History, p. 78.

Noteworthy was also the opening of newly constituted courts for Jews. Even though there was a parallel practice for adjudicating some Jewish matters internally, according to old, communal procedures, the broader presence of Jews – both as plaintiffs and defendants – in public courts represented a new trend. Courts and particularly the administrative offices created a relatively neutral space for Christian-Jewish relations, fostering early egalitarian change.

It seems justified to argue that the importance of legislation shaping the legal status of Jews went beyond a theoretical framework. The decrees had a wider, political-social impact – by rationalising traditional, anti-Jewish attitudes and putting them into new, modern categories, (e.g. »difference in customs and standards of civilisation« instead of difference in religion), the legislation did bring about considerable change. The rationale of discrimination changed, as a »translation of normative resources« took place. The subsequent public debates which took place in both the Duchy of Warsaw and later in the Kingdom of Poland drew on categories present in the above-examined legislation, as among the figures active in this debate numerous were current or former members of administration.

The way Jewish matters were dealt with by the Duchy’s administration may serve as a litmus test for its readiness to accept and implement egalitarian norms and procedures. Resolving most of these matters in accordance with general procedures was implied by Napoleonic legal principles. Nevertheless, administration accepted the egalitarian principle only as long as it was justified by pragmatic reasons and there was no competing normativity, namely in form of tradition. And contrarily, in normatively vulnerable spheres – like political and civic rights, or purchasing of real estate, traditionally being the exclusive prerogatives of the nobility – the egalitarian legislation could not find any place. The newly introduced Napoleonic normativity could not easily influence the well-established »inner sense(s) of justice«. Thus, egalitarian postulates and first attempts at their implementation existed alongside traditional ideas, social habits, and practices, echoing the two main normativities that were present in the public realm.

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