Austrian Legal System and Laws

Nigel Foster

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135336578
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book provides an introduction to the Austrian state, legal system and laws. It provides a guide to a number of areas of Austrian substantive law, concentrating on the most important areas of public and private law. The book considers in depth, the historical, political, social and economic aspects of the Austrian State to give more background for those coming afresh to Austrian studies.

This book will appeal to academic comparative lawyers across a range of disciplines and academics who require fundamental information on the Austrian state and legal systems. It will make attractive supplementary reading on comparative law courses, especially for those students spending a third year in Austria. It will also prove useful for politics and economics or multidisciplinary studies students who study Austria either directly or for comparison with other countries.

PART 1
THE AUSTRIAN LEGAL SYSTEM

CHAPTER 1 POLITICAL AND LEGAL HISTORY

1.1 INTRODUCTION

This chapter provides an overview of the principal developments in Austrian political and legal history. In political affairs, it outlines the most notable events which have helped to shape the present day Austria. In legal matters, it describes the evolution of law and law application in the developing Austrian territories and, in doing so, outlines the transition from unwritten, ad hoc and localised dispute settlement to a formal, highly organised and prescribed system for the administration of justice. As a consequence, Austria has developed a very codified legal system.

To some extent, however, it is an abstraction to write about the history of Austrian law as if the lands which today comprise Austria were always a strictly defined political and territorial unit divorced from the legal developments taking place in the rest of Europe and, in particular, the Germanic world. However, it remains possible to indicate how an area of Europe, now known politically and geographically as Austria, through certain legal influences developed as a country with a legal system and laws which can now be described as Austrian. Given the common legal development of Austrian law and German law, much of the detail of the shared legal history and development has been omitted, so as to facilitate the production of a concise introduction.¹

The most outstanding feature of the legal history of Austria is the comprehensive adoption of Canon law and Roman law from the Middle Ages in preference to the indigenous customary Germanic laws. Furthermore, the status of legislation has emerged as paramount to the other sources of law and, in addition, membership of the European Union from January 1995 means that European Community law has become an extremely important and growing present day source of law.

This chapter also provides, for context, a brief political-geographic development of the area of Europe from which the Austrian State evolved; however, I have included only what I consider to be the most notable developments. Further details, if required, can be ascertained from the listed further reading. Each of the sections within this chapter is roughly divided into consideration of the political and geographic developments and then the legal developments. While this division may be considered artificial, in that the events described in each section cannot, in reality, be separated from the other developments taking place, it does have the result that an overall impression can be gained far more easily.

1.2 DEVELOPMENTS TO c 1000 AD

1.2.1 Political and geographic

In this period there is not a distinct political unit which can be identified as a State, but the end of the period is now identified as providing the foundation of the State of Austria as it now exists. Following the Celtic-illyric and Celtic-noric occupation of the lands today comprising Austria, the Romans occupied and ruled from c 15 BC to c 488 AD and organised the territory into a number of provinces.² The existing cultural and social systems were not replaced and were able to continue to develop alongside, but understandably influenced by, the Roman government and administration. Both before and after the fall of the western arm of the Roman Empire in the fifth century, the lands now comprising Austria were possessed by the established and migrating tribes. These Germanic and Slavonic tribes had started to make moves into these territories in the first century, and by the sixth to seventh century had established themselves firmly, in some cases alongside the former occupants and in other cases driving them away. At this stage then, the area today comprising Austria was roughly divided into two areas, dominated in the west and north by the Franks, Alemannen and Bavarians and in the south and east by the Bavarian, Slavonic and Avaric (Awaren) tribes. The lands comprising Austria were successfully assimilated into the early Holy Roman Empire (Reich) as the Awarischemark by Charlemagne, who had pursued a policy to expand and consolidate the Fränkisch Empire. The Slav and Avar tribes were largely defeated and pushed eastwards out of Austria. Defensive border regions (Markgrafschaften) including Kärnten and the Mark an der Donau³ were established in the south east as buffer zones, protecting the Empire from invasions and incursions from the non-Germanic tribes to the east and the south. These defensive buffer zones, however, fell to the Magyar invasions in the ninth and 10th centuries but were re-established in 955 when Kaiser Otto I defeated the Magyars and re-conquered the territories. In 976, the Babenberger lineage under Leopold (Luitbold) was granted rule over the Mark an der Donau. Kärnten was re-established as a defence zone and autonomous Duchy (Herzogtum).

1.2.2 Legal

Under Roman rule, as a result of the principle of the personality of law, Roman law only applied to the Roman citizens and other systems of law continued to apply to the indigenous tribes. There was, however, no overall fixed legal system or body of laws equally applicable to all areas of Germanic domination. As in other parts of Europe settled by Germanic tribes, the type of law employed by the tribes occupying areas of the present day Austria was a form of unwritten customary law, instituted in a democratic manner by a general open air assembly (Volksversammlung) of the freemen of the tribe approving, as the occasion demanded, customary rules. Legal proceedings were based on the same assembly as a Gerichtsversammlung.⁴ The customary laws employed were based more on the collective of persons as the originator of rules rather than laws based on a particular area or property. Courts were established only when needed and either the leader of the tribe, by whatever title, or an elected member took the role of spokesman, who expressed the finding of the assembly. However, many variations of law or decision-making existed with varying levels of democratic participation. There are examples of written collections of the legal decisions and rules of the tribes and other summaries or extracts of laws. The Lex Baiuwariorum applied to the Bavarian population, and other Germanic law examples include the Langobardian (Leges Langobardorum) in the south and Alemannish law (Lex Alamannorum) in the west. The extent to which Slavonic law (Slawisches Stammesrecht) and Awarischen law were significant sources of law, or the extent to which they were applied, is uncertain.

The Breviarium Alaricianium (Breviary of Alaric II of 506) was applicable to the Roman population. This was a selective collation of Roman law, applied in the west and south Tirol and in parts of what are now Kärnten and Steiermark. This was also referred to as the Lex Romana Visigothorum and proved to be a major source of Roman law until the late 11th century. In addition, the church applied Canon law, based heavily on Roman law. The previously established Roman law and the Roman-Germanic customary law (referred to as vulgarrömischen Recht) waned in favour of Germanic and other tribal laws. Specifically applying to the alpine region was the codification of the lex Romana Curiensis or lex Utinensis, based on the Breviary of Alaric, local customary laws and Roman law. This was established in the eighth century and in some areas, such as parts of Vorarlberg, was valid until the 13th century.

The attempts to create a centralised State and legal system by the issue of royal edicts (Kapitularien) by the Fränkisch kings, and notably by Charlemagne, may have had less success in parts of Austria (despite belonging at that time to Bavaria) because of the degree of autonomy these regions had in legal matters. Much of the present day Austria was, in any case, subject to central control for a much shorter period than other more central areas of the Empire. Legal development continued, therefore, to be localised and fragmented. There was more emphasis on the tribal and regional distinctions and on the importance and power of individual noblemen (Grafen), especially the Markgrafen, who enjoyed a special status given their duty to defend the borders of the Empire. This was also reflected in the importance of the locally established courts.

1.3 THE HIGH TO LATE MIDDLE AGES

1.3.1 Political and geographic

During this period there was no single recognisable, independent and stable Austrian State. The lands which today comprise Austria were divided in ownership and subject to frequent changes in rule, merger or union with other areas, or sub-division as a result of the policy of splitting inheritances amongst successors. However, the Austrian lands were slowly developing into recognisable or distinct regions (Länder or Territorien). Ostarrîchi, the precursor of the name Österreich (Austria), originates from this period, and was used to describe a small area of land (whose borders were unclear) of what is now lower Austria (Niederösterreich) when part of the land in question passed in ownership in 996 from Kaiser Otto III to the Bishop of Freising (in Bavaria).⁵ This area of land was a fiefdom (Lehen) of the Duchy (Herzogtum) of Bavaria within the German Reich (regnum Teutonicum). Although, in the wider scope of things, this event was relatively minor, it is nevertheless a significant political milestone in the historical establishment of the Austrian State. Kärnten, which was much larger than in present day Austria and included present day Steiermark and the area then known as Krain, was also an important and recognisable Herzogtum. The Tirol also became recognisable and gained independence from Bavaria during the course of the 13th century.⁶

Successive Carolingian Emperors found themselves unable to exercise effective political authority over the vast Empire and increasingly, in order to preserve any semblance of unity, had to abdicate real power and control over the regions to the dukes and counts and other noblemen who defended their own territories, in particular, those subject to the invading incursions of the Normans in the north and the Magyars in the east. Added to this, the customary law of split inheritance meant that the kingdoms and other parts of the Empire were often subject to division into smaller units, despite the attempts to change the system of inheritance. For example, Kärnten lost the territories of Steiermark and Krain. In this turbulent period, a land area emerged which is recognisable as present day Austria. In 1138–39, the Staufian German King (Konrad III) seized the Duchy of Bavaria from his Welfian rival and gave it to his Babenberger stepbrother as payment for previous support. However, in 1156, as a result of considerable protest following the transfer, the political powers in the Empire required that it be returned to the Welfian lineage. But, in order to create a better balance of power and to compensate the Babenbergers, the Markgraf of the Mark an der Donau (Ostmark) was granted to the Babenbergers. At the same time, the Mark was raised in status to the Duchy of Austria (Herzogtum Österreich). Taking Vienna as its capital, it became formally independent from Bavaria. The instrument setting out the rights accorded to the new Herzogtum was the Privilegium minus. It further granted the important right that succession could be secured also through the female line. The year 11...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT
• PREFACE
• INTRODUCTION
• ABBREVIATIONS
• TIMELINE: DEVELOPMENT OF THE AUSTRIAN STATE
• PART 1: THE AUSTRIAN LEGAL SYSTEM
• PART 2: SUBSTANTIVE LAW