Some observations regarding the territorial scope of the Josephinist criminal code of 1787

Abstract

The criminal code of Joseph II, the so-called Josephina seems to be a mere ‘intermezzo’ in the history of Hungarian criminal law. Since the Josephina was in force for less than three years (1787–1790) in the Hungarian and Transylvanian territories of the Habsburg Monarchy, perhaps just this ‘episodic’ feature can make the analysis of the criminal code remarkable and relevant. The study focuses
on the territorial scope of the Josephina applying the classical methods of legal interpretation, and it is confined to examining the topic from only two aspects. Based on the grammatically and teleologically interpreted Kundmachungspatent before the text of the code and according to the literature, it seems clear that the fundamental intention of the emperor was ‘eine bestimmte Richtung zu geben’ for all his states. His conception was to restrict the considerable latitude that judges had in sizing up the perpetrated act and imposing punishment. In addition, he aimed at making his Gesamtstaatsidee implemented in the criminal justice as well. But it is worth scrutinizing the process of introducing the criminal code and the single phases of putting it into force or at least reconstructing the efforts to come the code into effect, always with peculiar regard to each state and land of the Habsburg Monarchy. The emperor’s legislative will explored in the text of Kundmachungspatent could not fully come to fruition, since the Josephina did not enter into force in all states and lands of the Monarchy, for instance, not in Austrian Lombardy. The research also revealed another problem concerning the territorial scope, viz., a latent contradiction is observable in the German literature. A few prominent, principally Austrian and German legal scholars took the view in the second half of the 19th century that the code never entered into force in the Kingdom of Hungary and the Principality of Transylvania. However, these authors did not provide information on the Hungarian and Transylvanian criminal law in the period of 1787–1790. Nevertheless, their opinions have not proved exclusive, since numerous studies published in foreign languages, principally in German, have pointed out that the Josephina carried into effect in both Hungarian and Transylvanian territories.