Beiträge zur Rechtsgeschichte Österreichs, 8. Jahrgang, Heft 1/2018

Although many and diverse kinds of medieval sources tell about pedophilia and pedosexuality, this topic has until now only been studied with regard to a few local cases. Therefore, a first overview is presented here, taking into account non‐juridical texts, ecclesiastical and public law, and court practice. In contrast to the very high esteem and protection with which childhood is generally associated in modern Western society, neither the legislation nor the juridical practice of the Middle Ages did pay much attention to the age of female victims of sexual violence: virgins, wives and widows were considered – independently of the phase of life – the relevant groups. In some laws the punishment for rape or violation was not different in terms of this classification, in other laws it was, but it never depended on the victim’s age. Given that canonical law allowed men to marry a girl of twelve or even seven years, sexuality with female children could be practised without breaking any laws. Sexual relations of men with boys, however, counted as sodomy and used to be penalised as cruelly as sex acts between male adults.

Schlagworte: Children, Medieval Law, Middle Ages, Pedophilia, rape, Sexual Violence

The Basic Law on the General Rights of Citizens, proclaimed on December 21, 1867, guaranteed every citizen the freedom of expression. However, the laws proclaimed before the December Constitution had introduced legal measures that allowed government control over the press, associations, and assemblies. The underlying assumptions of the bills proclaimed between 1862 and 1867 were only partially aligned with the vision of a liberal legal state. The new Constitution did not repeal the legislation of the previous political system. It incorporated the catalogue of fundamental rights and freedoms into existing legislation, some of which had been created during the police state period. The Galician bureaucracy, much like its counterparts in the other parts of Austria‐Hungary, used this legislation to regulate the public activity of its citizens and suppress open criticism of the government. It took advantage of the criminal law from the time of the absolute monarchy, which put severe constraints on the right to criticize the government. The intensification of repression against the opposition by the end of 19th century, including the confiscation of newspaper issues and the dissolution of associations and assemblies, was politically motivated, both in Galicia and in the entire monarchy. The conservative elites in power came under pressure of radical anti‐state social movements. This political change had to be reflected in the functioning of the organs of the state. Socialism, nationalism, secularism, and other ideologies posed a threat to the very foundations of the monarchy. Using the legislation from the times of absolute monarchy for their original purpose, i.e. the protection of government, the Church, and the owning class, was a natural defence mechanism. The liberal character of the December Constitution of 1867 had to give way to the repressive power of criminal law. The administrative practices of the Galician authorities were a classic example of this process.

Schlagworte: freedom of assembly, freedom of association, December Constitution, Galician vice‐regency, press censorship

Lembergʹs city statute was adopted in October 1870 after about one decade of intensive debates over peculiarities in the city’s politics (the limitation imposed on Jews within the city council, the existence of only one election body). It was never changed because the local political elites wanted to secure their influence and the cityʹs ʺPolish character ʺ. Hence, the regulations of the statute influenced heavily the relations between different nationalities – Poles, Ruthenians (Ukrainians) and Jews – and were the central reason for the deepening of the conflict between nationalities within the city, which became clear during the debates on a revision of the local election regulations in the 1900s. The local elites prevented a ʺlocal compromiseʺ. But as Lembergʹs statute was set within the frame of imperial municipal law, it could be seen as a primary example of how the imperial municipal law regulations influenced the relationship between the nationalities in general. Imperial municipal law was intended to delegate administrative tasks which could not be put into effect by the central government, but only by the local administration, in such a way that it would advance the imperial administration. In contrast to this intention, it simultaneously enforced the local dynamics and (national) centrifugal tendencies, thus helping the politically and socially dominant ethnic group to strengthen its position within the context of contesting nationalities.

Schlagworte: city statutes, Galician municipial law, imperial law, Lemberg [Ľviv], local election regulation, provisional municipal law

There are three significant breakpoints concerning the development of the institution of common acquisitions in Hungary. In the drafts of the first Private Law Code (1900–1928) the so called community of acquisitions appeared as a statutory matrimonial property regime, but with a new dogmatic concept in contradiction to traditional customary law: this new concept corresponded with participation in acquisitions. The Family Law Code of 1952 returned to the traditional concept but with a new name, and finally the Civil Code of 2013 retained the (only and indispensable) property system of the Family Law Code but allowed choosing participation of acquisitions as a contractual regime. The changes in the definition of common acquisitions resulted in a special terminology in Hungarian matrimonial property law up to the present.

Schlagworte: Austrian law in Hungary, codification, Hungarian legal history, matrimonial property law

This article provides a comparative overview of the influences of National Socialism on divorce law in Austria and the Netherlands between 1938 (Austria)/1940 (the Netherlands) and 1945. One of the primary goals of National Socialism was the establishment of a racially ‘pure‘ Volksgemeinschaft. To that end, marriages that, for whatever reason, were no longer productive, or which would lead to the mingling of Aryan blood and racially “inferior” blood should be dissolved. Therefore the National Socialists substantially revised German divorce law, which was introduced in Austria in 1938 as well. This 1938 Marriage Law, albeit substantially altered and denazified, still serves as the basis of Austrian marriage and divorce law. In the Netherlands, regarded as much a brother nation to Germany as Austria was, attempts were made during the occupation to revise Dutch divorce law, partly because it was generally believed that the grounds for divorce had to be widened somewhat, partly to attune Dutch divorce law to National Socialism. However, these revisions were never enacted.

Schlagworte: Austria, divorce law, Germany, National Socialism, the Netherlands

In the last decade of the 16th century some litigants tried to engage Hungarian proctors in their lawsuits at the municipal courts of the West Hungarian town of Sopron. Soprons residents were mostly German speakers at that time and German was the language of oral communication at court and in the municipal administration. Hungarian was not understood by the majority of the residents or the assessors and town council members either. Therefore, the town council prohibited the use of the Hungarian language in oral and written proceedings. In 1600 a disadvantaged litigant, Wolff Schafferin appealed the decision of the town council to Johannes Kutassy, the Hungarian vicegerent and chancellor of King Rudolf II. She returned to the town council court with a command of the vicegerent in her hand for the council to allow the use of the Hungarian language at the municipal courts even if the opposing parties speak only German. This case triggered action from the town council to protect the “laudable municipal custom” to not allow the use of Hungarian at court by proctors if the opposing parties are Germans. This article explores the details of the debate about the use of languages at court in Sopron and the language usage in court in Pressburg (Bratislava) – Sopron reached out to its town council for advice – at the turn of the 17th century.

Schlagworte: Interpreters, Municipal Law, Ödenburg [Sopron], Pressburg [Bratislava, Poszony], Procedural Law

Among the institutes of Austrian civil law, no other institute has been exposed to attempts of amendment more often than marriage law: One of the main targets of these attempts, which were made in the course of the 19th century, was the abolishment of marriage impediments based on denomination; mainly, the discussion focused on whether the dissolution of a Catholic marriage during the lifetime of the spouses should be allowed or not. Until the end of the 19th century, Austria with its denominationally discriminating marriage law was surrounded only by states in which – regardless of denomination – the divorce of a marriage was generally only permitted in the case of a re‐marriage of both spouses. Even at the end of the 19th century, this was generally applied in countries such as Hungary and Germany. To expand the scope of the application of German or Hungarian marriage law to Austrian Catholics who intended to undertake a re‐marriage, one had to resort to changing domicile and citizenship. Apart from this marriage impediment, which (in accordance to § 111) was only applicable to Catholics, the Austrian Civil Code contained another marriage impediment based on denomination: disparity of cult, i.e. cases where one spouse was of Christian confession and the other of a non‐Christian one (§ 64); de facto this provision mostly applied to cases where one spouse was a Christian and the other Jewish. In the following, we will mainly consider the problems that arose for spouses who were not able to circumvent the stringent regulations of Austrian marriage law when they attempted to get married in a foreign state. Special attention is devoted to the judicial practice of the Austrian Supreme Court and its legal assessment of such marriages.

Schlagworte: Austrian General Civil Code (ABGB), circumvention of law, disparity of cult, divorce, indissolubility of marriage, inseparability of marriage, (Jewish) marriage law, marriage impediment, migration for marriage, separation a mensa et thoro, simulated migration

Even after 1848, Hungary’s constitution remained a so‐called ‘historic constitution’, a term which emphasises the central role of customary rules developed during previous centuries. The present paper aims to examine the extent to which this particular source of law persevered in certain elements of state administration and establishment. As experience shows, customary law was preserved primarily within the scope of regal authority, although during the late Middle Ages it is clearly traceable in the process of the separation of legislative and executive powers. Consequently, the daily functioning of the Parliament equally contains many rules stemming from customary law. However, the separation of administration and judiciary was processed via statutory measures for the most part, thus in this respect customary law failed to prevail.

Schlagworte: customary law, history of Hungarian constitution, state establishment