The insane offender in Austrian penal legislation and legal science around 1900

Resumen

The contribution deals with the discussion about the insane offender in the Habsburg Monarchy from the 1860s – when work on a new codification of criminal law began – to the end of the First World War, when the reform plans finally failed. Different questions are addressed: After analyzing the legislative solutions for coping with insane offenders which were envisaged in the drafts, the paper will examine in more detail whether and how Austrian legal scholars commented on and discussed these plans. It will be shown to what extent international discussions and above all developments in the neighbouring German Empire were taken into account. In general, controversial points in the so-called "clash of schools" (Schulenstreit) between the "classical" and the "positivist" schools played a significant role in the scientific debate of insanity, for example the question of free human will or the purpose of punishment. The remarkable, philanthropic theses of Julius Vargha, which, however, met with rejection among his contemporaries, are dealt with separately.