For the Female Intercessor’s Sake?

Protection vs Protectionism in Roman and Austrian Civil Law

Abstract

This article elaborates on the construction of protective rules in different periods of time, drawing upon provisions aimed at protecting intercessors. On the one hand, the ancient Roman Senatus Consultum Velleianum, its predecessors and its interpretation in the case law of classical jurists are addressed. On the other hand, the pertinent provisions of Austrian civil law [§§ 98 EheG, 41 EPG, 25a-d KSchG] and the OGH case law that draws upon § 879 (1) ABGB are being analysed. This paper, furthermore, puts forward three criteria for distinguishing between (adequate) “protection” and (discriminatory) “protectionism”– those being jurists’ reasoning, the purpose of the rule in question and the perspective(s) of the persons concerned – and shows how they may be fruitfully applied with regard to the above-mentioned provisions.