Verlag der Österreichischen Akademie der Wissenschaften

Abstract:
My article uses Bohemian jurisprudence between the 17th and the 20th centuries to showcase the interpretive benefits of a relational history of Habsburg Central Europe that both moves beyond artificial national divisions and sacrosanct epochal thresholds, 1918 in particular. Since the 17th century, Bohemia’s position at the interstices between the Holy Roman Empire and the Habsburg lands made its jurisprudence a centre of sprawling innovation: Prague jurist Franz X. Neumann disputed the Holy Roman Empire’s suzerainty over Bohemia and hence dismantled claims about the automatic validity of Roman law for the kingdom of St. Wenceslaus. This position at the fringes of the Holy Roman Empire turned Bohemia into a hotbed of natural law and into the chief fulcrum of Habsburg private law codification under Maria Theresia (1750s). The Bohemian ingredient also played a crucial role in Leo Thun‐Hohenstein’s reform of the Habsburg Monarchy’s educational system in the 1850s: A Bohemian noble patriot, Thun‐Hohenstein sought to extirpate natural law, which he viewed as the mainspring of Revolution and centralisation – the two menaces that subverted Bohemia’s statehood within the Monarchy. Thun’s hostility to pan‐imperial public law and to social contract theories destroyed the validity grounds of Habsburg legal culture but reinforced the primacy of private law. Thereby Thun produced a legal positivism that depended on the categories of Pandectist private law and permeated ostensibly sharply separated “national” communities of lawyers, as I show with reference to Czech and Germanspeaking jurists in Bohemia, the schools of Jiří Pražák and Joseph Ulbrich in particular. My paper moves beyond 1918 to flesh out the Monarchy’s legal and administrative legacy that cuts against the grain of programmatic De‐Austrification (Odrakouštění), and discusses the longevity of the Monarchy’s 1867 December constitution in post‐1918 Czechoslovakia. Swallowing their pride, German nationalists of different hues retracted their pre‐1918 criticisms of the constitution and rediscovered it as a weapon against the Versailles system.