!!!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 18%%sup th/% 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-18%%sup th/% 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
18%%sup th/% 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
W. Brauneder (ed.), Juristen in Oesterreich, 1987; H.
Lentze, Die Universitaets-Reform des Ministers Graf Leo
Thun-Hohenstein, 1962; W. Ogris, Die Historische Schule der
oesterreichischen Zivilistik, in: Festschrift H. Lentze 1969; idem,
200 Jahre Rechtswissenschaft an der Universitaet Wien, in: 200 Jahre
Rechtsleben in Wien 1986.
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