Austrian legal history and the development
of a national legal system is inextricably intertwined with the growth of
Germanic law�at least up to the mid-18th century. Whatever primitive law existed
in the region in the centuries before Christ was Celtic and Greek inspired at
its most developed. In the 1st century B.C., when Roman conquerors organized the
province of Pannonia, they brought with them the Pax romana and their
own Roman law which was eventually applied to the entire population. Roman
jurisprudence reached its zenith around the year 200, and even as it commenced
its slow decline thereafter, its influence on Austrian legal development was
lasting. As the empire sank into decay, classical Roman law was maintained in
the ecclesiastical administration that succeeded in western Austria during the
6th and 7th centuries. The Bavarian expansion to the east effectively replaced
the Lombardic tribal law that had evolved in Austria with more sophisticated
evolutions of Frankish customary law. As Charlemagne�s power spread to the
eastern lands, so did the innovative imperial legislation replace the
inefficient and fragmented customs and collections that had been in use in the
Danube Valley. The predominant Germanic codifications, tribal codes and
collections�Visigothic and Burgundian�had existed side by side with the
surviving Roman law for two centuries; the ones applied in the eastern Germanic
areas were the Alamannic code of the early 7th century and the closely related
Bavarian code of a hundred years later.
The Frankish law imposed by the Carolingians applied throughout the empire
and was the first Ius commune to succeed the
long dormant Roman law. It was refined and developed into the feudal legal
system that controlled central Europe throughout the Middle Ages, and in
Austria, when combined with local custom, it maintained the social order into
the early modern period. From the end of the Roman domination, the Church
remained the single continuing force in Austria, and its contribution to legal
development was the preservation of Roman legal principles within its own
canonical evolution.
The sources of Austrian law were many and varied: collections of local and
regional customs and privileges, from Eike von Repgow�s Sachsenspiegel
of about 1225 and the Augsburger Schwabenspiegel of 1275 that were
carried into the region, to local versions such as the �sterreichische
Landrecht of 1290 and the Landsordnung von Tirol of 1282 and the
Steirm�rkische Landrecht of 1425. These collections were in use in x-large
regions or many specific localities, but were supplemented by Stadtrechte of
specific cities as well as by customs developed in feudal relations between
noble and vassal. The B�uerliche Recht applied to the peasantry.
The myriad of governing legal sources eventually gave way to the �received�
Roman law�rediscovered and refined in northern Italy during the 12th and 13th
centuries and accepted and applied as the new jus commune in Austria in
the 15th century. Beginning in 1506, a wave of legislation swept through Austria
aimed at unifying�at least on a regional basis�the dozens of legal compilations
in use, with private law eventually being codified into Landrechtsordnungen
and public law codified into Polizeiordnungen. From the reception of
the Roman law in the 1400s, the thrust of Austrian legal development was towards
the creation of a series of unifying codes. During the 16th and 17th centuries
Austrian law, like that of the German states to the north, was subject to a
series of privately inspired drafts and improvements on the regional and local
codes aimed at improving the administration of justice. All through the 18th
century, well before the French codification movement, the Austrian state set in
motion the codification procedure, although against continuous opposition from
nobles who feared imperial encroachment on their own powers and privileges.
Criminal law was the object of the earliest successful codification. The
Constitutio criminalis Theresiana was approved in 1769, at the same time
that a civil code, the Codex Theresianus, was refused enactment. A
general code of judicature followed in 1781, and a code of civil procedure in
1788. The criminal code was revised and enlarged in 1787; however, private law
continued uncodified, except for a section dealing with family relationships
(Josephinisches Gesetzbuch) which was enacted in 1787. Finally, as the end
product of a codification process begun by Maria Theresa in 1760, the General
Civil Code (Allgemeines B�rgerliches Gesetzbuch or ABGB) entered into
force on 1 January 1812. This document, a much more detailed and extensive
codification than the Code Napol�on, is the single controlling instrument in
modern Austrian legal development. Like the French work, it is a collection of
principles to be applied rather than precise provisions for every possible
situation, as was the Prussian approach being employed in northern Europe at the
same time. It is more heavily influenced by Roman law than the French, both
codes being products of the natural law movement of the 18th century
enlightenment. As much as possible, for its time the ABGB was a
successful molding of the local Germanic-inspired jus commune of Roman
law and the liberal approach of the natural lawyers.
The ABGB had considerable influence on legal development elsewhere
in the Empire during the years up to 1914, although ultimately this influence
has proved transitory. Just as the First World War commenced, Austria further
revised the ABGB with three Teilnovellen of 1914, 1915 and
1916 which somewhat remodeled the code along the lines of the newer German Civil
Code (B�rgerliches Gesetzbuch or BGB) of 1900.
The inter-war years were marked by serious economic dislocation and
political strife; however, during this time the foundations of social and labor
legislation laid by the Hapsburgs in the 1880s were enlarged upon and, in
several radical spurts, a considerable body of modern social legislation was
developed and enacted into law. This period, one of intermittently liberal
constitutional advances, was surprisingly successful, considering the hazards
and pitfalls such movements faced in the declining political and economic
climate of the 1920s and 1930s.3
Austrian law underwent major changes as a result of the 1938 unification
with Germany. The ABGB remained in force, although marriage law was
altered; however, most importantly, commercial law underwent a total revision
when the general commercial code in use since 1862 was abrogated and the German
commercial code of 1897 was �received� by the Austrian state in 1938. In the
post-war period private law, while retaining the structure developed under the
Hapsburgs and the First Republic, has been changed to reflect the normal
advances in corporate governances and business associations introduced in Europe
in the last decades, even though the German commercial code has been retained.
Criminal and public law has been greatly modernized and liberalized since 1970.
Modern Austrian civil and commercial legislation generally takes its direction
from German examples and thus, as well, frequently follows European Union models
incidental to this tradition of close alliance with German lawmaking and
legislative drafting.
The present republic exists under the 1920 constitution that had been
drafted by a group of scholars directed by the political scientist, Hans Kelsen.
The basic document was revised in 1925 and again in 1929. Constitutional changes
imposed by the Germans from 1938 to 1945 have been treated as if they never
existed. Austrian constitutional law has evolved into a rather more pragmatic
system; the basic document can�and has been frequently�amended by ordinary
statutes resulting in ax-large , if not unmanageable, body of constitutional
legislation.