Rechtswissenschaft#

Legal Sciences: The development of the Austrian system of law and consequently of the legal sciences in Austria has not been confined to present Austrian territory, and should therefore be seen in a European context. It has always been characterised by an exchange of ideas and personalities in both directions. These relations were particularly strong until the end of the 18th century as jurists all over Europe used Latein as their common language. Also, Roman common law was generally applied, even though it was only subsidiary law. In the period of enlightened despotism ( Absolutism )legal studies in the countries of the Habsburg monarchy developed a specifically Austrian character. This development was promoted by an increasing sense of national identity and the desire for more independence from the Holy Roman Empire. The mid-18th century saw the first efforts of codification which, after some problems, led to the creation of "national" codes of law (Austria, Bavaria, Prussia etc.). Even though this development meant that the former common legal basis, the "ius commune Europaeum", was becoming obsolete, Austrian legal studies did not actually become completely isolated from the rest of Europe. Relations and influences in the field of legal sciences remained intact, particularly with the countries of the Empire (which had existed until 1806), that were dominated by the German Confederation 1815-1866. National and international politics also played an important part in this development. A particularly drastic example was provided by the changes in methods and personnel caused by the university reforms of the k. k. Minister for Culture and Education, Count L. Thun-Hohenstein from 1855 on. An additional dimension of Austrian legal studies was added by the organisational structure of the Monarchy in that studies of Austrian law in various parts of the realm were influenced by the use of the Italian language in Italy, Czech in Bohemia, and Polish in Galicia. They did, however, remain under the influence of German-language law teaching, judicature and legislation. Scholarly exchanges and interrelations with Hungarian legal studies remained scarce, at least on the surface, since Hungary jealously guarded its independence in legal thought.

Austria´s transition to a republic had little qualitative effect on legal sciences. Relations with Germany, Switzerland and Liechtenstein, countries which shared with Austria the use of the German language in codification (ABGB Austrian civil code (1812), BGB German civil code (1900), ZGB Swiss civil code (1912)), remained close. Today this connection has lost almost all significance. It remains to be seen if and to what extent these former similarities will influence future (European) legislation and what part Austria´s legislation and legal sciences will play in the context.

While the Middle Ages were dominated by so-called "clerical jurists", e.g. Nikolaus von Cues and T. Ebendorfer, early modern times saw an increasing number of secular law scholars. They served in imperial, sovereign, corporate and municipal bodies and authorities and applied both Roman common law and national law. Amongst them can be found the "Father of Austrian jurisprudence", B. Walther, and J. B. Suttinger, N. Beckmann, W. Puedler and A. Schwarz. The rise of natural law in the 18th century brought about a marked turning point in Austrian legal sciences, initially represented by F. Schmier, J. A. Riegger and J. von Azzoni, later also by C. A. von Martini and F. von Zeiller etc. J. von Sonnenfels popularized cameralistics and can be regarded as the first "administrative lawyer".

The efforts at codification, culminating in the late stages of natural law, provided new impulses for Austrian legal sciences, dominated by the formulation of new codes of law. Law scholars such as J. L. Banniza, G. von Scheidlein, M. Schuster, C. J. Pratobevera and O. Taglioni, the most prominent representative of the so-called Milanese school of codes of civil law, were engaged in this development.

The university reform introduced by Count Thun in 1855 once more brought about a change in the direction of Austrian legal sciences. While Zeiller (1810) had introduced studies based on natural law, Thun favoured a historic basis for political reasons. The new school was spearheaded by J. Unger and soon attracted other experts such as A. Exner and A. von Randa, followed by L. Pfaff and F. Hofmann. Along with civil law studies other branches also started to develop, e.g. the history of law (e.g. E. v. Schwind, L. Mitteis), criminal law (e.g. W. E. Walberg, M. Lammasch) and, above all, public law (e.g. Edmund Bernatzik, R. Herrmann-Herrnritt). The development of constitutional principles from 1867, the changing relations with Hungary and the activities of courts of public law drew more and more attention to the increasing problems in the Habsburg multinational state. New directions in legal sciences emerged; most important among them was the "Reine Rechtslehre" (Pure Jurisprudence) of H. Kelsen. Under the name of Vienna school of the theory of law (J. Merkl) it has remained popular until today, not only in Austria but also abroad. At the same time (at the turn of the century at the latest) social issues became an important factor in legal sciences. Not only outspoken critics of positive law, such as A. Menger, figured in this development but above all F. Klein, who saw civil action as a social phenomenon and put it under appropriate legislation.

The sociology of law, represented by E. Ehrlich, attacked some of the biases of positive law. Other renowned law teachers in modern times were A. Verdross, H. Demelius, H. Schima, T. Rittler, H. Nowakowsky, A. Ehrenzweig and W. Wilburg.

Literature#