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The Consolidation of Hungarian Legal Practice with the Austrian Norms in 1861

100%

Képessy I.

Studia Iuridica

2019

vol. 80

155-168

A few months before the suppression of the Hungarian Revolution in August 1849, Emperor Franz Joseph issued the Constitution of Olmütz, which suspended the Hungarian constitutional order. After 1850, the Viennese Government aimed to unify the legal system in the whole empire, and as part of the process, many Austrian legal norms were imposed by royal decrees upon the Hungarian territories. This led to fundamental changes in the country’s legal system (the customary law as “law in action” took precedence up until 1848), even though it happened unconstitutionally. The worsening state of affairs and the defeat in the Austro-Sardinian War led the Emperor to promulgate a new constitution which became known as the October Diploma in 1860. Accordingly, Hungary regained its former constitutional status, but Franz Joseph ordered the newly reinstated chief justice to assemble a council that should debate over the most pressing issues regarding the administration of justice. There, the most influential lawyers proposed that the Hungarian laws shall be restored – albeit with several compromises. Most members agreed that an absolute and immediate repeal of every Austrian legal norm would certainly violate the rights of the citizens. Therefore, even though this committee did not accept the validity of these laws, the majority of its members argued that some of them must remain in effect until the Parliament will reconvene. Consequently, the Austrian legal norms as “law in books” deeply influenced the “law in action” in Hungary for the years to come.

Edition of the Provisional Judicial Rules of the Judex-Curial Conference from 1861 and the Methodology of Editions of Historical Legal Sources

80%

Gábriš T.

Krakowskie Studia z Historii Państwa i Prawa

2014

vol. 7

issue 3

463–483

The paper explains the methodology applied in the edition of historical legal sources of major importance for the 19th and 20th centuries Slovakia – the edition of the Provisional Judicial Rules (“PJR”) of the Judex-Curial Conference of 1861. At the Conference, legal scholars and politicians adopted a decision to abandon the previous twelve years of neoabsolutism and centralism introduced by the Austrian law, and opted for a renewal of the traditional Hungarian legal system with some changes introduced by the laws of March 1848 (the March Constitution of 1848). At the same time they retained some rules of Austrian origin and created some rules that were entirely new, particularly in the field of civil procedural law and inheritance law. While evaluating the legal nature of the PJR, the literature used to claim that they never became law because Parliament of 1861 was not created legally (representatives were not elected under the electoral law enacted as part of the March Constitution of 1848) and because the monarch, Francis Joseph I, had not yet been crowned (his coronation took place in 1867). Therefore the legislative process could not be successfully completed. The only solution that was reported to was the recognition of the exceptional situation which dominated in Hungary between 1861–1867 – it was the period between neoabsolutism and another provisorium, a period of “limited constitutionalism”. Under such conditions it was not possible to meet the formalities of official legislation process. Thus PJR could become binding only de facto – through the power of persuasion. However, after a corpus of case law began to consolidate during several years, it could be argued that the PJR was transformed from the actual source of judicial decision-making into customary law.

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1 Krakowskie Studia z Historii Państwa i Prawa

1 Studia Iuridica

1 Gábriš T.

1 Képessy I.

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1 2014

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The Consolidation of Hungarian Legal Practice with the Austrian Norms in 1861

Edition of the Provisional Judicial Rules of the Judex-Curial Conference from 1861 and the Methodology of Editions of Historical Legal Sources