Women´s legal situation: positive law and its application

Research project P 14184 Women`s legal situation: positive law and its application Brigitte MAZOHL-WALLING 06.03.2000 The proposed project is an interdisciplinary study combining the research approaches of legal history, social and economic history, applying the aspect of gender studies. In the last decades legal history has mainly been a field of research for jurists, therefore historical scientific questions were hardly ever dealt with, which is a desideraturn in history. Women`s studies take the credit for posing new scientific questions on legal sources. This project analyses private law, trade and commercial law, their application and implication on everyday life. On the base of the Allgemeines Biirgerliches Gesetzbuch (ABGB) of 1811 and the Trade and Commercial Codes of 1859 and 1862 the codifications and their effects on women`s everyday life in the Tyrol and Vorarlberg from 1815 to 1916 will be dealt with. This project consists of two parts: The topic of the first part will deal with the reception of the ABGB during the I 91h century by the jurists and whether it changed over the research period. In the second, regional historical part microhistorical approaches will be used, and the participants are going to concentrate on the adjustments of women to the legal norms, and the adaptation of their behaviour to the new scopes for action. The local historical part will be split up between the two participants of this project. One is going to examine the influence of the ABGB 1811 on the role of unmarried and married women within the family. The other will deal with the legal situation of women as independent tradeswomen. Only by restricting the study to specific areas the scientific questions can be accordingly dealt with. Both the Tyrol and Vorarlberg were consolidated territories in 1815. The Habsburg family restored their government over these two countries and the ABGB was introduce d. Vorarlberg was mainly chosen for this project because one of the participants` topic concentrates on the situation of women in trade and commerce. Being economically more highly developed than the Tyrol, whose main economic branch was agriculture, these two countries were different in this aspect so that the sources and the ensuing results will differ. The research period covers the time from 1815 to the three amendments of the ABGB in 1914, 1915, and 1916. This is a reasonable and manageable period, in which the ABGB was introduced, had to prove itself, and was eventually reformed. Concerning the Trade and Commercial Codes this period enables the participant to study the situation and effects before and after the introduction of the codifications.

The project`s main goal was to compare the existing views of women`s legal situation in 19th century Austria with their social reality with the help of empirical study. For both parts of the project - one focusing on private law, the other on commercial law - the comparison between positive law and its application led to the necessitiy of changing existing results of research. The first step of the part dealing with private law was to analyse legal journals of the 19th century, legal commentaries, publications of the time and political women`s journals at the end of the 19th century. These results were compared with the women`s social reality, depicted in decisions of the surpreme court and files of the court of original jurisdiction (Innsbruck, Bozen and Bregenz) and appeal courts (the Tyrol and Vorarlberg) (appr. 310 marriage contracts, 120 divorce files, 650 last wills and 740 files on guardianship). The results of the comparison were as follows: The role models for husband and wife were theoretically defined by 91 ABGB which stated that the husband was the head of the family, but they were also closely connected with women`s attempts to get their share in decisions concerning the material resources - attempts that can be analysed with the help of divorce files. Regarding their possibilities as acting guardians, women were able to profit from existing traditions; the co-guardian that was laid down by law often played only a minor role or no role at all. Therefore, already in the first half of the 19th century the legal situation did not conform with the social reality. Women`s efforts and demands to eradicate these discrepancies and to lay down new laws that are in accordance with the social reality had not been fulfilled until the end of the 19th and the beginning of the 20th century. The second part of the project concentrated on independent tradeswomen. Starting with the changes of the positive law, arguments and statements of legal experts were examined as well as publications of the women`s movement towards the ending of the 19th century. The research on the regulations` implications on tradeswomen were based on approximately 4.300 cases of women who applied, respectively tried to apply, for a trade in Innsbruck, Bozen and Bregenz from 1816 to 1914. Up to 1859 quite a numver of women tried to apply for trades that were not considered appropriate for women (a "womanly" trade was for example dressmaking). Their efforts were usually denied to them even though there existed no compulsory trade code. The occasional trade prescriptions for the Tyrol and Vorarlberg were often interpreted more severly than necessary. The Trade Code of 1859 made all trades (theoretically) accessible for women, but this was subsequently revoked with the reforms of 1883 and 1907. The views of the trade colleagues and the town magistrates that sometimes also misinterpreted the law for the women`s disadvantage, curbed women`s attempts to apply for those trades that required an apprenticeship or a special training.