Jews living in the Austrian lands were subjected to two main non-Jewish systems of law. The Canon law, issued by different bodies of the Church regulated their relationships with Christians. Secular regulations and privileges were issued by non-ecclesiastic sovereigns.
One of the main aims of the Christian Church was to spread Christian belief and to protect it from influences which could damage its teachings. It included in its jurisdiction also Jews, Saracens, pagans or heretics in their relationship to Christendom.
With the decisions of ecclesiastical assemblies (Councils), Papals bulls and different regulations, there gradually emerged a Canon Law concerning the Jews valid in the entire Christian world, which was adopted from the 13th century in most of Western Europe and influenced the jurisdiction in other European states.
The main orientation of these laws was the protection of Christianity from Jewish influences and therefore trying to keep Jews and Christians apart, but also the protection of Jews against violence.
Main features of medieval Canon law concerning the relationship between Jews and Christians:
Christians must not eat with Jews.
Christians are not allowed to consult a Jewish physician, take medicine from Jews, eat their unleavend bread (Matzot) or bath with them.
Christians shall not share a house with Jews.
Christians must not participate in Jewish holidays, weddings and funerals.
Marriage between Christians and Jews is forbidden.
Jews must not employ Christian serfs, servants, and maids or wet-nurses.
Jews must pay the tithe to the local Church.
Jews are excluded from public office.
Jews must not appear in public in the three days before Easter.
Jews must not work in public on Sundays or Holidays.
Jews must not lend money on exorbitant interest.
Jews of both sexes must wear different clothes from Christians or a special sign distinguishing them from Christians.
Protection of Jews:
Jews must not be forced to baptism.
Jews must not be killed or hurt without verdict.
Jewish customs shall not be altered.
Jewish holidays must not be disturbed.
Jewish cemeteries must not be entered or damaged.
Jews must not be accused of using human blood for their religious rites.
Canon Law regarding the Jews entered the Austrian lands rather slowly. The ability of the councils to enforce their regulations was limited. In some instances they could declare social contacts with Jews sinful, such as, for example, consultation of Jewish physicians. When the forbidden activity depended on the Jews, like money lending for high interest, and the Church could not prohibit it directly, many councils would threaten the imposition on Christians of a boycott of economic relations with Jews. There are many examples that these laws were not very powerful. Many members of the clergy, though, were regular customers of Jewish moneylenders, such as the monastery of Klosterneuburg or the Bishops of Bamberg. Even the Emperor Friedrich III employed a Jewish physician. Some regulations - like the prohibition of the appointment of Jews to public office or the acceptance of their testimony in a civil lawsuit - could be enforced only with the aid of the civil authorities. In such cases, a threat of excommunication was made against the offending body.
Before the jurisdiction of the Babenberg Duke Friedrich II of Austria and Styria (1210-1246), there existed no general, secular regulation of the rights of Jews living in these territories. Towards the end of the 12th and the first half of the 13th centuries, Jewish individuals could reach high positions in the Austrian lands. They could employ Christian servants, although this was forbidden by Canon Law. They could found communities, especially in Vienna, Krems and Wiener Neustadt, where they had full autonomy in administration and jurisdiction.
The privilege of 1238
The privilege granted to the Jews of Vienna is an adaptation of the privilege Emperor Friedrich II granted to the Jews of the whole empire in 1236. The legal status of the Jews of Vienna was approximated to that of the Jews living in the German empire and the Jews were taken under the protection of the emperor and the empire. The privilege begins with the statement that the Jews are “servi camerae” (“serfs of the chamber”) belonging to the (fiscal) chamber of the emperor and standing in direct relationship with the emperor.
The political background of issuing this privilege was a conflict between Emperor Friedrich II and the Babenberg Duke of Austria and Styria, Friedrich II. The Duke was put under Imperial ban in 1237 and the emperor conquered parts of the Austrian lands and Vienna. After the coalition of the emperor weakened, he tried to gain the favor of the Jews of Vienna, whose rights had been restricted by privileges given to the burghers of Vienna, by granting this privilege to them.
After the fall of Vienna in 1240 and the re-establishment of the duke in his lands, the Imperial law was abolished and Duke Friedrich II issued a privilege for the Jews of Vienna which became extremely influential for privileges concerning the Jews in the neighboring regions and remained in force until 1420.
Privilege of Duke Friedrich II
This privilege included mostly regulations concerning economic questions dealt with at court. This shows that the Jews who were mostly traders and merchants until then were considered as money brokers now.
A. Civil Law
The next six articles deal with pledges. Jews were protected from the accusation that they would not submit a pledge in their possession. When a debtor claimed that the pledge had to be returned for a smaller payment than the Jewish pawnbroker said, the Jews could take an oath. A Christian could also take an oath, when accused by a Jew to have given him a pawn and not having got it back. A Jew could accept everything as a pawn apart from bloodstained and wet clothes (which could be related to a murder and used as a pretext for blood libel accusations). When pawns were destroyed by fire, theft or armed robbery, the Jewish pawnbroker did not have to replace them when he could prove that his own assets had been damaged as well. When a pawn was redeemed without paying the interest, the Jewish broker could add compound interest after a month. When a pawn was not redeemed for a year and its value was under the sum of capital and interest, the broker could sell it after showing it to the Jew's Judge. If it was not redeemed by a year and one day, he could do with it as he wished.
A regulation that drew a lot of criticism later on was the so-called “Hehlerrecht”. A Jewish pawnbroker could receive a pawn without having to ensure that the pawn was not stolen. When it turned out later that the pawn was stolen, the Jews could swear an oath that he did not know about it without losing the matrix or the interest on the loan.
B. Criminal Law
The legal situation of the Jews living in a non-Jewish environment also had to be regulated. The Privilege states that Jews could be taken to court only in a synagogue. Only the Duke himself could issue a summons. The competent judge was not the Judge of the town, but the Jews' Judge, a Christian with the title “Iudex Iudeorum”. Only in special cases such as severe crimes, could the Duke intervene in the jurisdiction. Christians doing any physical harm to Jews or who desecrated Jewish ritual sites and objects or profaned Jewish holidays would expect severe punishment. Contemptuous utterances about the synagogue were punished by a fine, but defilement of a Jewish cemetery by death penalty.
The Duke promised the hearing of mixed witnesses (Christian and Jews to ensure fair proceedings). With civil actions witnesses, oaths and documents were accepted as proof. The complaining side has to provide the witnesses, Christians and Jews. A Jew could prove the legitimacy of his claim by providing documents and a seal. Christians and Jews could take an oath to testify their innocence in the absence of any other proof.
The Privileges of Otokar II Premysl, King of Bohemia (1251-1282)
Since his royal household needed enormous sums of money, he tried to favor his bankers, the Jews. In 1254 he confirmed in a privilege granted to the Jews of Bohemia, Moravia, Austria and Styria essentially the Privilege of Friedrich II of 1244, but added the prohibition of the accusation of ritual murder. In 1255 this privilege was renewed in Krems and confirmed again in 1262, with the important change of release of the rate of interest.
The 14th and 15th centuries
In the 14th century the Jewish population grew and expanded its places of settlement. More legal documents are encountered referring to the legal status of Jews in Styria, Tyrol and Carinthia. All in all, these jurisdictions from different towns and cities, the regulations of toll and mint and a variety of special privileges, do not show improvements to the common law for the Jews, even if there were generous privileges granted to influential Jews, mainly in Carinthia, Styria and Salzburg - such as the financially strong Haeslein of Friesach who changed his protector several times within a couple of years - being able to negotiate the conditions, but they did not apply to the larger population.
In the jurisdiction of towns a certain deterioration in comparison to royal and princely law can be discerned, which may have been the result of competition with the citizens who tried to strengthen their position towards the Duke.
The example of St. Veit in Carinthia shows that the regulations confirmed by the Duke Friedrich in 1308 related to the business activities of the Jews living there who earned their living, apart from banking, as cattle breeders, beer brewers and meat traders. The Christian citizens wished to restrict the latter professions. In 1316 it was forbidden for the Jews of Wiener Neustadt to work as tailors. This restriction was initiated by the local guild of tailors who, like the beer brewers and meat traders from St. Veit, wanted to get rid of unwanted competition.
For the period of 1240 to 1420 the jurisdiction relating to Jews can be described as relatively stable. Jews were not entirely protected from suppression and persecutions, but could maintain their position within the medieval society. The Privilege of 1244 proved to be extremely influential on jurisdiction concerning the Jews.
An important aspect of this jurisdiction was the place of the Jews in the struggle for power of the Duke and the nobility. Despite attempts of the noble families to gain authority over Jews, which meant access to loans, the Duke succeeded in keeping his authority and protection over the Jews. This right enabled him to influence regions which did not clearly belong to Habsburgian territory and could be used as a measure against noble families struggling for independence, but in debt with Jewish money lenders. The change from free possession to a feudal tenure added to the power of the authority of the Duke. So the special status of the Jews contributed between 1300 and 1400 to a transfer from private ownership to Habsburg control.