I. INTRODUCTION
Comparative constitutional lawyers of common law countries might be tempted to identify German and Austrian constitutional thinking as similar—not only because both are German-speaking countries, but also because comparative law textbooks (based mostly on private law) present them as being in the same ‘legal family’ or ‘legal circle’.Footnote 1 This assumption would, however, be wrong. The German doctrinal figures, more or less well known amongst comparative constitutional lawyers throughout the whole world, do not apply in Austria automatically, and even that which seems familiar at first sight (for those who know German public law) often appears in a foreign light. Scrutiny of such differences promises insight into the merits and drawbacks of each alternative; therefore, this article seeks to compare and contrast the two systems. The focus is not on specific tenets of Austrian or German public law but on its set of doctrinal concepts and style of argumentation, compared and contrasted. To facilitate the contrast, the statements of Austrian and German authors and the various schools of thought will be somewhat amplified.
This article does not attempt to itemize or list all the doctrinal differences; instead, it seeks to reveal the foundations of the two systems. With this in mind, the hypotheses to be proven are as follows. (1) The theoretical background of Austrian public law doctrine is the Kelsenian pure theory of law, and the bases of German public law doctrine are determined by the Schmittian decisionism, the Smendian integrationism, and natural law.Footnote 2 All these theoretical presuppositions, as we will see, have concrete consequences as to how to define basic concepts and how to reason in constitutional law. (2) Austrian legal doctrine is worked out in painstaking detail especially in the areas of sources of law and constitutional adjudication, at times even more consistently than their German counterparts. This concentration on theory of norms in public law is also part of Kelsen's heritage. (3) In certain points, the curiosity of Austrian public law doctrine has diminished, partially due to increased German influence. By no means, however, does this imply the disappearance of distinctive features; one can merely observe some degree of convergence. (4) Finally, certain startling doctrinal solutions have emerged, not for reasons of differing conceptualizations of the law, but very simply by historical and political accident.
II. BASIC CONCEPTS
A. Constitution
In both countries, formal constitution means the specific legal document which can be modified only by a higher majority in the Parliament, whereas the material constitution means the ‘most important legal provisions’ of a country.
The question is of course, what we mean by ‘most important’. Whereas the material constitution, in Germany, usually denotes the sum of fundamental decisionsFootnote 3 or the basic legal order of the community,Footnote 4 in Austria it is often understood as only the sum of the rules governing the creation of norms.Footnote 5 The Austrian legal discourse makes no use of the decisionistic term ‘fundamental decisions’, or the term ‘community’ (Gemeinschaft) borrowed from an integrationist approach, because these terms imply a blurring of factual and normative arguments: either it means an argument from the constellation of power (that is, who makes the ‘fundamental decisions’) to a constellation of law (‘constitution’), or it presupposes a highly abstract term, namely, the existence of a ‘community,’ without however clarifying to what extent it is determined either by law or by other factors. From an Austrian standpoint, the critique of the latter proceeds as follows: the presumption of a non-legal community for modern, pluralistic societies is not sociologically tenable, the community is therefore necessarily (only) legally constituted, and the definition of the constitution based on the ‘community’ becomes circular, because the constitution is defined by a term (‘community’) that, in turn, can only be defined by the law. Thus, the decisionistic and integrationist definitions of the constitution are either ‘not purely legal’ (partially sociological) or based on circular reasoning. The latter is unacceptable for German legal scholars (if they recognize the circularity) as well, while the former would probably only be unacceptable in Austria.
The fact that many Austrian jurists would comprehend the material constitution primarily, or even exclusively, as the rules governing the creation of norms is a result of the Stufenbaulehre (doctrine on the hierarchical structure of the legal order, or literally ‘step structure doctrine’). According to this theory, the validity of norms in the legal order is to be traced back to the constitution.Footnote 6 The idea can also be transferred into the German legal order and is not diametrically opposed to the German doctrine in public law. However, only a few German authors, thus far, have made use of it.Footnote 7
Both countries fill out the term ‘formal constitution’—ie the statute(s) which can be modified only in a specially difficult procedure—with the same content, but its function is differently perceived. In German doctrine, the formal constitution's main function is the legal stabilization of the material constitution. In Austrian doctrine, two different theories are frequently juxtaposed.Footnote 8 According to the previously dominant theory, the formal constitution determines the rules of the game called politics (Verfassung als Spielregel); according to the other, newer theory, it also defines an order of values. The former theory exemplifies the formalistic and technical approach taken by the traditional Austrian doctrine of public law.Footnote 9 The expansion to include the value order can be seen as a softening of the strict, classic (Kelsenian) viewpoint, associated in Austrian constitutional law with the names Günther Winkler, Peter Pernthaler, Bernd-Christian Funk, Karl Korinek, and Ludwig Adamovich,Footnote 10 which has played an increasingly large role since the end of the 1960s.Footnote 11 The two definitions, however, are not mutually exclusive but are often put forward together.Footnote 12
B. Sovereignty and the State
The term ‘State’ seldom appears in any reasoning used in Austrian public law,Footnote 13 nor do ‘statehood’ or ‘sovereignty.’Footnote 14 Even in the context of the extent of European integration, one speaks of an ‘integration-proof constitutional core’ instead of a German-type ‘preservation of statehood’. Equally seldom does one come across the notion of the Willensbildung of the State, or the State's intent. At most, discussion about ‘legislative intent’ can be found.
Explaining these differences turns attention initially to Hans Kelsen. In his normative theory of the State, the State as such becomes the legal order, which is to say that, in law, it only makes sense to speak of the constitution. The German literature makes frequent use of the idea of a pre-legal state, an institutionalized authority distinct from the people and with its own decision-making capacity.Footnote 15 Such a conceptualization, however, is foreign to the Austrian literature.Footnote 16 There, the State as a personification of the legal order cannot form intent in order to make decisions; at most, State institutions (eg the legislature) might be thus personified. This disembodiment of a sociological concept of the State may be a result of the experience with the political reality of the Austro-Hungarian monarchy. As a highly multi-ethnic state, it had a constitution (and an army which held the State together in crisis situations) but obviously lacked other integrative factors, such as common culture, language, and civic solidarity.Footnote 17
This rejection of the German concept of a pre-legal State also yields a difference in the legal doctrine on state of emergency. Quite a few German legal scholars ascribe to the State a pre-legal power of self-preservation, even if this power is subsequently displaced by positive constitutional law. In contrast, the relevant Austrian scholarship is strictly bound to the text of the constitution.Footnote 18 In Austria, regulation of national emergency is considered lex specialis to constitutional law, without any mention of State powers that either pre-exist the law or derive from natural law.Footnote 19
Traditional Austrian doctrine, however, faces a difficulty: The word ‘State’ does occur in the wording of statutes with a sense that cannot be understood as ‘legal order’. To manage this difficulty, Adolf Merkl, one of Kelsen's disciples, developed the theory of a threefold definition of the State, according to which ‘State’ can mean (1) the sum of public and private institutions serving to actualize the legal order (thus comprising not only law-making, adjudication, and administrative agencies, but also private parties to a commercial or employment contract); (2) a narrower concept: that part of the first definition which is typically characterized by enforcement institutions authorized to issue mandatory instructions (that is, executive bodies or organs for the most part); or (3) an institutional complex, functionally maintained by centralized funds from legally regulated sources of revenue (that is, central administrative agencies excluding any autonomously administered institutions like local authorities).Footnote 20 The three definitions form concentric circles, with the first as the widest circle and the third as the narrowest. Obviously, none of the three definitions corresponds to the German concept of the State, which approximates most closely the Austrian term ‘republic,’ itself a positive law term.Footnote 21
The use of the term ‘sovereignty’ also displays significant differences, again traceable to Kelsen, who was decidedly critical of the traditional notion of sovereignty. The traditional understanding of sovereignty, he maintained, fails to keep legal and sociological arguments apart (that is, it mixes the normative with the descriptive).Footnote 22 If one keeps these two sorts of argumentation apart, sovereignty can be understood in two possible ways: sovereignty is either factual (sociological) sovereignty, which forces it to confront the fact that, factually, absolute independence is impossible.Footnote 23 Or, if sovereignty is a legal term, two legal definitions become possible: either it denotes a catalogue of State competences, which is ultimately arbitrary and theoretically unjustifiable,Footnote 24 or sovereignty describes a feature of the legal order. Kelsen opted for the latter. As a starting point, Kelsen viewed this feature as ‘non-derivability’.Footnote 25 According to his pure theory of law, sovereignty is a feature of a system of norms, whose validity derive directly from the hypothetical basic norm without any intervening norm of positive law.Footnote 26 If one further adds a monistic view of international law's primacy, then sovereign States cannot exist, as they derive from international law. Only international law itself would be sovereign.Footnote 27
As a result of this complicated line of reasoning, the term ‘sovereignty’ was essentially banished from Austria for reasons of constitutional law.Footnote 28 Questions relating to sovereignty are also answered without reference to the term; one tends to speak of democracy instead of the sovereignty of the people, or of the increased difficulty in amending the constitution's fundamental principles instead of the preservation of State sovereignty. For purely normative scholarship, everything can only be a norm or a complex of norms. Along these lines, Kelsen rejects the idea of a personified State capable of forming intent and making decisions, and the dominant view among Austrian constitutional scholars still follows Kelsen's lead. Kelsen instead sees the State as merely a complex of norms, whose sovereignty can only be a feature of norms, namely, their non-derivability or their directness in international law.Footnote 29
C. Democracy
The term ‘democracy’ is found in the first article of the Austrian Constitution as a fundamental principle, abolishable or amendable only by referendum. Here, it is understood as freedom, equality, and a parliamentary system of government.Footnote 30 This definition may surprise the reader with its elements of ‘liberty’ and ‘equality’, both part of Kelsen's legacy, though this time not from his pure theory of law but from one of his political works, Vom Wesen und Wert der Demokratie (On the nature and value of democracy). He does define democracy primarily in a formal sense, that is, on the one hand, the governing are the same as the governedFootnote 31 and, on the other, democracy is necessarily indirect (ie to be run by elected leaders).Footnote 32 This formal approach, however, does not mean that democracy cannot also be organizationally and structurally in favour of certain values. And, Kelsen continues, these values are equality and liberty because democracy, with its formality and value-neutrality, secures to the individual the highest levels of liberty and (formal) equality.Footnote 33 In Germany, these elements tend to fall under the protection afforded by fundamental rights and, thus, are part of the rule of law.Footnote 34
The key element of the German understanding of democracy is, however, the so-called ‘chain theory’. According to this, the constitutional principle of democracy requires that all State power can be traced back to the people (through a few or maybe numerous links like in a chain).Footnote 35
The German formulation, ‘[a]ll state authority is derived from the people’ (Art. 20(2) Grundgesetz) does not occur in the text of Austria's constitution itself; instead, the same content is delivered without the traditional terminology: ‘[the republic's] law emanates from the people’ (Art. 1 B-VG). This formulation traces back to Kelsen's equating the State with the legal order, which necessarily implies that no authority (but only mere force) can exist outside of the law.Footnote 36
D. Federalism
In Austria, the term federalism comprises the following elements: (1) a constitutional division of State functions between the federal government and the component states (Länder); (2) the possibility for participation of the Länder in federal legislation; and (3) the autonomy of the Länder, including their ‘relative constitutional autonomy’.Footnote 37 One interesting doctrinal figure in this area is the ‘creeping total revision of the federal constitution’. This describes the notion that individually insignificant amendments to Austria's federal constitution could accumulate, eventually practically abolishing a fundamental principle, which would properly require a national referendum.Footnote 38 The figure is almost always used in reference to the issue of the States' (Länder) losing powers to the federal government, and so abolishing the principle of federalism in the constitution. The German term describing the similar political reality, ‘unitary federal state’,Footnote 39 is not widespread in Austria.
Briefly even used by Germany's Federal Constitutional CourtFootnote 40 and still prevalent in Austria is Kelsen's three circle theory of the federal State (Dreikreise-Theorie des Bundesstaates),Footnote 41 which confers equal ranking on both federal and Länder governments, thereby presuming a third legal circle: the State as a whole (Gesamtstaat). The former two circles are subordinate to the State as a whole. The ‘constitution of the state as a whole’ (Gesamtverfassung), however, is not identical to the federal constitution but forms instead only the legal core of its division of powers. Organizationally, the state as a whole comprises the review institutions (constitutional court, administrative court, auditing authority), the federal president in some of his functions (eg, as foreign representative), and the national assembly as federal legislature (that is, in the exercise of Kompetenz-Kompetenz).Footnote 42
The problem with this original idea was its lack of clarity in terms of positive law; it was unclear exactly what the ‘constitution of the state as a whole’ described. Thus, the recent revision of the theory proceeds as follows:Footnote 43 (1) the constitution of the State as a whole is actually the federal constitution itself; (2) the legal circle of the federal government includes federal statutes (but not the federal constitution!) and the legal acts based on them; and (3) the legal circle of the Länder encloses the State constitutions and the states' legal acts based on them. The second and third legal circles are equally subordinate to the first.
One consequence of this theory is that Austrian constitutional law knows no conflict of powers between federal and State law.Footnote 44 Germany's constitutional provision that federal law takes precedence over Land law is similarly foreign: the ‘constitution of the state as a whole’ divides powers between the federal and Länder legal circles. These two subordinate circles only conflict when the federal order of powers in the State as a whole is also violated. Then, the constitutional court has to guard the federal division of powers in the State as a whole.
Aside from this fundamental theoretical difference, several terminological differences are noteworthy. Germany's Bundestreue (‘federal loyalty’) is formulated as the Berücksichtigungsprinzip (‘principle of consideration’) in Austria, denoting in both countries the reciprocal obligation of federal and Länder legislatures to take the other into consideration. And different terms are used for the same issues of implied legislative powers over areas not enumerated but necessary to carrying out the express power: in Germany, Annexkompetenz (‘annex power’), and in Austria, Adhäsionstheorie (‘adhesion theory’).
E. The Rule of Law, Separation of Powers, and Republic
The principle of rule of law (Rechtsstaat) is unanimously recognized in both countries. In Germany it comprises the requirements which are basically known to common law readers as Lon Fuller's eight principles (‘rule of law in a formal sense’),Footnote 45 but it comprises also further elements, most importantly the separation of powers and protection of fundamental rights (‘rule of law in a substantive sense’).
In Austria, however, separation of powers and protection of fundamental rights are not perceived as part of the concept of rule of law. This of course is not meant to suggest that they do not exist in Austria. But separation of powers is usually understood as a discrete fundamental principle, while protection of fundamental rights is considered a principle of ‘liberalism’.Footnote 46 The latter can be explained historically: in the immediate aftermath of the First World War, when the constitutional law now in force was birthed, protection of fundamental rights was still seen as a liberal value and not as a self-evident value.
Both countries define separation of powers as the limitation and division of legal empowerments. Austria, however, does not emphasize the classic (and also in Germany accepted) triad of governmental branches. This rejection of the traditional concept of separation of powers, too, is part of the inheritance of Kelsen's doctrine on the hierarchical structure of the legal order (Stufenbaulehre). Instead of three equally ranking branches, the hierarchical theory posits a legislature superior to the executive and judiciary, because the executive and judicial branches base the validity of their legal actions on statutes. Ultimately, this means there are only two basic functions (or powers), namely, legislation and implementation (Vollziehung). Within the latter, then, distinct executive (Verwaltung) and judicial (Judikative) components carry out respective duties.Footnote 47 Thus, the Stufenbaulehre incidentally also provides a specialized terminology and legal legitimization of parliamentary democracy (ie, supremacy of the legislature over the executive).Footnote 48 Austrian legal scholars refer to this novel constellation of the three branches as the ‘hierarchy of branches of state powers’.Footnote 49
As in Germany, ‘republic’ in Austria also describes primarily a rejection of monarchy;Footnote 50 however, the respective second elements of the term are different. In Austria, republicanism further demands a separation of church and State (a secularized State) as well as religious neutrality.Footnote 51 This division is lacking in Germany as a result of the persisting ecclesiastical compromise of the Weimar Republic (refusing the total separation of State and church in article 140 of the German Basic Law referring to articles 136–139 and 141 of the Weimar Constitution as its ‘integral parts’).Footnote 52 In response to the National Socialist regime, though, the German understanding of the term ‘republic’ also implies a liberal, non-totalitarian state of affairs.
Having removed protection of fundamental rights and separation of powers from the concept of ‘rule of law,’ the Austrian term is left with only legal certainty, access to justice, the supremacy of statutes over law made by the executive (Gesetzesvorrang), and reserved domain of statutes (Gesetzesvorbehalt) (article 18 of the Austrian Constitution).Footnote 53 The domain reserved to statutes also describes—as it does in GermanyFootnote 54—the obligation of the legislature sufficiently to determine permissible executive action. The legislature's failure to meet this obligation through the bianco empowerment of agencies to pass necessary ordinances is a constitutional violation known as ‘formal statutory delegation’ (formalgesetzliche Delegation).Footnote 55
F. Basic German Terms Missing from Austrian Legal Doctrine
From the German side of the doctrinal border, Austria's public law landscape looks different not only in that some of the terminology has different content, but also lacks certain basic terms typical of German public law. These have already been hinted at, but here explicitly are the most important ones: integration (as defined by Smend), the separation of State and society (very rare in Austria),Footnote 56 division of public law and private law (not a single Austrian constitutional law textbook analyzes this terminological pair),Footnote 57 State interest (in its place: public interest, which sounds less etatistic), sovereignty (usually not even mentioned in constitutional law textbooks), the peoples' sovereignty (although it is of course used, as a term of natural law, in the sections on constitutional history in textbooks),Footnote 58 legitimacy vs legality,Footnote 59 and State functions (more likely in the Austrian legal literature: powers or branches [Gewalt], but only two of them, as detailed above). As Austrian constitutional law—as opposed to article 20 of the German Grundgesetz Footnote 60—makes no positive reference to a principle of the social welfare state, this term is absent from legal scholarship, as well.Footnote 61
The absent terminology can be traced back partly to the positive constitutional law, and partly to Kelsenian methodological objections. The fact that sometimes even the Austrian ‘non-Kelsenians’ argue using these Kelsenian objections, can be explained by the situation that, even today, there are a great many Kelsenians in Austrian constitutional discourse: for purposes of disseminating scholarly views, it is advisable to use ‘non-Kelsenian’ arguments only when absolutely necessary to the presentation of one's own standpoint.Footnote 62 Such a case is the issue of constitutional interpretation.
III. CONSTITUTIONAL INTERPRETATION
Two main schools stand in opposition in Austrian constitutional interpretation: (1) the older, formalistic-reductionist style; and (2) the value-oriented (substantive or German) style.
Until the end of the 1960s, the first school was predominant, and proponents of the contemporary version of the pure theory of law still advocate it today.Footnote 63 This approach's first premise is a view of the constitution as rules of procedure for the political process (constitution as playing rules). In consequence, this formalistic concept of the constitution excludes the interpretative use of substantive (value-based) arguments (that is, arguments from principles).Footnote 64 The other premise of this theory is a bifurcation of interpretation into an objective (heteronomous) and a subjective (autonomous) component.Footnote 65 The subjective element implies arbitrariness,Footnote 66 meaning this element should be minimized and precedence should be given to the objective element. This leads to a strict interpretation of the wording of the text with an historical accent because these two types of argumentation (plain meaning and legislative history) are the most objective (which is to say, most concretely verifiable). Even these two arguments are ranked: textualist arguments are more objective, so the plain meaning is decisive, and only when the wording is ambiguous does the historical intent of the lawmaker come into play.Footnote 67 As can be expected, purposive arguments are neglected—the constitution has no ‘objective purpose’ but only that purpose given to it by the historical constitution-maker (to be discovered from the text of the constitution). The goal of interpretation is the greatest possible conformity with the original intent of the lawmaker.Footnote 68
The consequences of this theory are the following typical topoi (each still used with frequency by the Austrian Constitutional Court): (1) precedence given to the plain meaning, (2) the theory, or principle, of petrification (Versteinerung),Footnote 69 and (3) eloquent silence (the answering nature of the lack of certain provisions in the constitution).Footnote 70 The problem with this interpretive theory is its inability to make any significant use of fundamental rights or catalogues of the State's objectives.Footnote 71 In these cases, one must make purposive arguments, as the mere wording is too lapidary; furthermore, novel difficulties, unforeseen by the historical constitution-maker, inevitably arise and must be resolved. This insight led to the founding of another interpretive theory, the theory of value-oriented (material) constitutional interpretation (Theorie der wertorientierten (materialen) Verfassungsauslegung).
This second theory is associated with the names Günther Winkler, Peter Pernthaler, Bernd-Christian Funk, Karl Korinek, and Ludwig Adamovich and can be said to have been the majority view since the 1980s.Footnote 72 Its most important characteristic is the priority given to purposive interpretation. The Austrian Constitutional Court, here, follows the path taken by the German Federal Constitutional Court and the European Court of Human Rights. Yet this school (sometimes referred to as ‘critical evaluative legal science’Footnote 73) also defers to the Kelsenian tradition: it also distinguishes carefully between the subjective and objective components of interpretation.Footnote 74 However, Kelsen's traditional division limits legal scholarship to the determination of hypotheses of possible meanings of norms (that is, cognition),Footnote 75 whereas, according to critical evaluative legal science, the selection (that is, valuation) also falls to legal scholars.Footnote 76 It is also stressed, however, that one must be careful to keep the two analytical steps clearly separate and recognizably discrete. To put it another way, syncretistic mixing of the two levels must be avoided: one must be conscious of her or his own methodology, making it transparent.Footnote 77
The current prevalence of this second interpretive style does not mean that Austria's Constitutional Court has completely abandoned the previous style and the arguments typical of it; rather, it has expanded the earlier school, in particular, in the areas of fundamental rights and constitutionally prescribed general objectives (Staatsziele). Consequently, the Court's current case-law tends to exhibit some methodological divergence: now a strict interpretation according to the plain meaning, now judicial activism bordering on unrestrained law-making.Footnote 78 The reasons underlying such divergence have also to do with the varying constitutional cultures and epochs of origin, out of which the respective parts of positive constitutional law in Austria has emerged (ECHR 1950, the Austrian Federal Constitution 1920, or Austria's State Basic Law of 1867).Footnote 79
IV. SYSTEM SOURCES OF LAW
Austrian legal scholarship has at its disposal a thoroughly elaborated and sophisticated body of terminology on the system of sources of law. The surprisingly high level of interest in this topic stems from Kelsen's normativistic legacy. Because of the doctrinal supremacy of the Austrian doctrine in this field, it seems to be fruitful to structure the comparison as a catalogue of the central Austrian doctrinal figures of the system of sources of law contrasted with their German counterparts wherever it is possible to do so.
A. The Fragmented and Multi-Layered Constitution
Austrian federal constitutional law comprises many federal constitutional laws or acts, beginning with the State Basic Law on the General Rights of Nationals of 21 December 1867 (Staatsgrundgesetz vom 21.12.1867 über die allgemeinen Rechte der Staatsbürger für die im Reichsrathe vertretenen Königreiche und Länder), and including international treaties with constitutional status (eg the ECHR and the Treaty of Saint-Germaine) and individual constitutional provisions in ordinary statutes (eg article 1 of the Data Protection Act). The core text of the federal constitution is the Austrian Constitution or B-VG (Bundes-Verfassungsgesetz; literally, federal constitutional statute) of 1920.Footnote 80 In German, this document is hyphenated, in contrast to the other (equally ranking) constitutional statutes (eg the Bundesverfassungsgesetz or BVG on comprehensive environmental protection, BGBl 491/1984). The reason for this is the lack of an incorporation requirement such as is laid down in the first sentence of article 79(1) of the German Basic Law. This fragmented situation leads to a lack of clarity and has prompted the self-criticism of the constitutional law as in ‘ruins’.Footnote 81
During the periods of the grand parliamentary coalition, such federal constitutional statutes were also passed to ‘correct’ the Constitutional Court's judgments (in Austria referred to as Erkenntnisse, literally, realizations or cognitions—as opposed to the ‘German-German’ Urteile meaning judgments).Footnote 82 Thus, when a statutory provision was struck down for unconstitutionality, the grand coalition had a majority sufficient to amend the constitution and simply readopted the provision with constitutional rank.Footnote 83 When the grand coalition broke apart, this practice thankfully also ended and could not further fragment the constitutional law.
However, another problem arose: the highly detailed, fragmented regulation of federal constitutional law makes governance very difficult without a majority sufficient to amend the constitution. This is why, at the dissolution of the grand coalition, a new constitution became required and a constitutional convention (the Austrian Convention) was called in 2003.Footnote 84
Both German and Austrian scholars are familiar with the term ‘unconstitutional constitutional law’ (verfassungswidriges Verfassungsrecht). It means that even the constitution-maker has limitations. In both countries, this has a basis in positive law. The difference is that article 79(3) of the German Basic Law is an eternity clause, whereas article 44(3) of the Austrian Constitution is simply in a section of the constitution with an added procedural hurdle for amendment (structural provisions or basic principles of Austrian federal constitutional law). The additional hurdle is a referendum: proposed abolition or the radical alteration of a fundamental principle requires a national referendum. This has only taken place once: in 1995 before the accession to the EU.
Austria's Constitutional Court has repeatedly considered and discussed the figure of unconstitutional constitutional lawFootnote 85 and has—in contrast to Germany's Federal Constitutional Court—even used it once to strike down ‘ordinary’ constitutional law.Footnote 86 This might be explained by the greater weight given in Austria to arguments from theory of norms (and from the hierarchy of sources of law), arguments that can even outweigh the argument from the constitution-making, democratic majority. Although it is theoretically possible that the German court would thus declare void ordinary constitutional law, it also seems far less likely.
B. International Law, EC Law, and the ECHR
In Austria, moderate monism is predominant, whereas the German doctrine prefers a moderate dualism. This difference has a theoretical basis, for both the text of the Austrian ConstitutionFootnote 87 and the text of the German Basic Law can be reconciled with either approach.Footnote 88 The causes can be retraced to Kelsen's and Verdross's influence in favor of monism in AustriaFootnote 89 and Triepel's influence in favor of dualism in Germany.Footnote 90 Because the differences between the two positions have already been knowledgeably dealt with elsewhere, a reference suffices here.Footnote 91
Austrian scholars attempt to maintain the monistic approach even as regards questions of the relationship between EC law and Member State law. For this purpose, the Stufenbaulehre is used as a theoretical model.Footnote 92 But even this monistic view leads to a ‘double constitution’.Footnote 93 Because if you want to perceive the whole (European) constellation as a unified legal system, the system necessarily must have a ‘double constitution,’ namely, a European and (from an Austrian perspective) an Austrian one. But the German approach views both the national and the EU legal orders as each with its own constitution, though of course they are connected at many points.Footnote 94 An expression such as ‘double constitution’ in reference to European integration would seem bewildering in the German legal doctrine. Austrian scholarship and adjudication, on the whole, are more receptive to EC law than are their German counterparts. One indication of this is the fact that Austria's Constitutional Court has already initiated several preliminary references to the ECJ.Footnote 95 As yet, Germany's Federal Constitutional Court has not engaged in such self-subjugation to the ECJ.Footnote 96
The ECHR is directly applicable to constitutional law in Austria.Footnote 97 This situation has two causes. First, no modern catalogue of fundamental rights has yet found general agreement, and the State Basic Law on the General Rights of Nationals of 21 December 1867 (StGG) is obviously outdated.Footnote 98 Second, international law enjoys a very high level of trust in Austria, as national independence and even the existence of the Austrian State, is based on international law (Austrian Independence Treaty, signed in Vienna in 1955); the influence of both Kelsen and Verdross reinforced this trust. Thus, Austria was not reluctant to apply an international treaty as a national catalogue of fundamental rights. Mention should be made here, though, of a third factor in the methodological dilution of the classical Kelsenian approach.Footnote 99 In addition to German influenceFootnote 100 and the school of ‘critical evaluative legal science’, the ECHR has played a significant role. The Austrian Constitutional Court always adjudicates in harmony with the European Court of Human Rights (which uses a purposive-substantive approach) and, with brief delays, adopts that Court's argumentation in its own interpretation of the ECHR as national constitutional law.Footnote 101
C. Specific Legal Acts as Individual Norms
The Austrian scholarship denotes individual legal acts (court judgments, administrative rulings) as ‘individual norms.’ To a German ear, this expression might seem oxymoronic. The reason for the expression is Kelsen's Stufenbaulehre, according to which the difference between statutes and ordinances (or statutory instruments), on the one hand, and rulings and judgments, on the other, is only relative: all are norms.Footnote 102 The latter (‘individual norms’) are more concrete or specific than are the former, ‘general norms.’ Yet this is more of a merely terminological difference without any practical relevance. In contrast, the recognition of the legal nature of internal administrative acts is of high relevance.
D. Internal Administrative Acts
The Stufenbaulehre also views internal administrative policies as legal norms. With the juridification (that is, the recognition of the legal nature) of internal administrative policies, this doctrine does a great service for democracy and especially for democratic administration.Footnote 103 According to the Stufenbaulehre, administrative policies and orders are void unless based on a statute, from which they derive their validity. It has the consequence that administrative activity cannot be legal unless it is grounded in (statutory) law,Footnote 104 ie, on the expression of the people's will. Footnote 105
If internal administrative acts are of a legal nature, then courts can also review the legality of these acts. The non-recognition of the legal nature of internal administrative policies originally intentionally fulfilled the function of insulating them from judicial review (the so-called ‘impermeability theory’ meaning that the State, especially the Executive, is impermeable for judicial review: it has to be conceived as one unified body which can legally be obliged as to acts directed towards outside of this body). German doctrine had to travel long and winding detours before arriving at a point where some internal administrative policies (generally in the form of administrative regulations or directives) are subject to review.Footnote 106
E. Supra-Positive Law and Customary Constitutional Law
Austrian legal scholarship does not employ the figure of supra-positive law well-known in the German natural law tradition.Footnote 107 This would conflict too obviously with the strongly positivist Kelsenian tradition.Footnote 108 As a substitute for natural law, in its function of external check on internal, national legislation, Austria has opted for an extremely strong receptivity to international (ECHR) law and EC law (see above).
As a general rule, in Germany—as opposed to Austria—‘law’ (Recht) is understood to be indivisible from ‘values’.Footnote 109 The contrast is similar as to customary constitutional law: Austrian scholarship, with a reference to the posited nature of the constitution, lacks any recognition of the existence of customary constitutional law.Footnote 110
V. CONCEPTUAL FRAME OF CONSTITUTIONAL ADJUDICATION
The judgments of the German Federal Constitutional Court, according to German legal doctrine, are only declaratory and not constitutive: an unconstitutional statute is declared void. However, if judgments were truly only declaratory (and thus not constitutive), then the possibility in article 31 LFCCFootnote 111 of an incompatibility declaration, distinct from declaring void a statute (and actually declaratory), would make no sense. Either it should be accepted that a declaration of voidness under article 78 LFCC is actually an annulment of the given statute (retroactively) from the point of enactment, or (hardly plausibly) it should be accepted that the incompatibility declaration is itself constitutive, as it raises an actually non-existent (and void) norm from the dead. For this reason, too, German scholars also have doubted whether a judgment ‘declaring’ a statute void is truly only declaratory.Footnote 112 Such problems do not confront Austrian constitutional doctrine because the constitutive nature of the Constitutional Court's judgments has always been recognized. In Austria, one speaks of annulment (Aufhebung) by the Constitutional Court. In this point, the Austrian legal doctrine seems more persuasive than the German.
As a consequence of the difference between the voidness dogma and the doctrine of constitutive annulment, the judgments of the German Court have retroactive effect from the point of original enactment (passage), and the Austrian Court's judgments have effect (unless otherwise stated) only from the time of decision.Footnote 113
VI. LEGAL DOCTRINE OF FUNDAMENTAL RIGHTS
The differences observable within the body of doctrine on fundamental rights are slighter. One example is the remarkable, complicated notion of ‘constitutionally guaranteed rights’ (verfassungsrechtlich gewährleistete Rechte; anchored in positive law in article 144 of the Austrian Constitution). This corresponds to German fundamental rights (Grundrechte).Footnote 114 The lengthy formulation is an attempt to circumscribe natural law connotations associated with the term ‘fundamental rights,’Footnote 115 although recently some Austrian authors have used the expression ‘fundamental rights’.Footnote 116 A second difference involves the resolution of constitutional cases: Austrian case-law tends to use the principle of equality in the form of the requirement of objective criteria to differentiate and in the prohibition of arbitrariness.Footnote 117 This preference results from the lack of other broad or subsidiary (catch-all) fundamental rights, such as, in Germany, human dignity or the general freedom of action (allgemeine Handlungsfreihet).Footnote 118 But, because the principle of equality gives constitutional judges greater discretion, some adherents of the older school consider its invocation to be an illegitimate, political activity by a judge.Footnote 119
Finally, one feature of the constitutional doctrine on property deserves emphasis: not all expropriations must be compensated. As a practical matter, most government seizures do trigger compensation in Austria, but this is not required in constitutional law. Article 5 of the above-mentioned Austrian State Basic Law of 1867 says absolutely nothing about compensation according to the interpretation of the Constitutional Court's interpretation,Footnote 120 and article 1(1) of the First Protocol to the ECHR does not guarantee compensation under all circumstances either.Footnote 121 Such an interpretation of article 5 of the State Basic Law made it possible that the Habsburgs after the First World War (1919) and the expropriatees after the Second World War (1946–47) received no compensation.Footnote 122 Since the ECHR (Austrian accession was in 1958) foresaw no compulsory change to this situation, the Austrian constitutional doctrine—despite critical scholarly voicesFootnote 123—remained stuck on this level. The principle of equality managed to introduce the only innovation—drawing on the German approach.Footnote 124 This is the so-called special sacrifice theory (Sonderopfertheorie), which forbids expropriation amounting to a special sacrifice in violation of equal protection. In other words, where the redistributive benefits of expropriation accrue equally to similarly situated parties, there can be no factual justification for discrepancy between the respective forfeitures of property that they must tolerate without compensation.Footnote 125 The weak interpretation of the protection of property made a ‘widening of scope’ possible. In Austria it is viewed simultaneously as protection of personal autonomy, so that property rights under Austrian constitutional law take on some of the functions of the general freedom of action, which, as mentioned above, is not a legal-doctrinal figure in Austria. With German doctrine sticking to compensation, such a wide approach would not have been possible.
VII. STYLES OF ARGUMENTATION
The final section of this article summarizes the most important characteristics of the style of Austrian argumentation in comparison with the German style. In Austrian legal doctrine, legal terminology is more often traced back to the underlying issues in theory of norms. Argumentation tends to be simpler and more readily comprehensible than in Germany. Austrians consider their own argumentative style to be more elegant and more modest than the German style. Austrian argumentation seldom includes the reinforcing, secondary or ‘backup’ arguments typical in Germany. Kelsen's theoretical legacy is used frequently (Stufenbaulehre, three circle theory of the federal State). All in all, his influence is enormous, as arguments based on natural law and sociology are generally not highly regarded.
German legal doctrine still employs many basic terms from the period of constitutional monarchy.Footnote 126 In Kelsen's stead, the key figures are Smend (and Hesse) and Schmitt, whose lines of argumentation often appear in the Federal Constitutional Court's jurisprudence.Footnote 127 These arguments often make use of terms that do admittedly have an intuitive, descriptive value but cannot be strictly legally defined (for example, community, integration, or Gesamtheiten).Footnote 128 This tendency brings with it an inclination toward compound nouns and somewhat mysterious (or, one could say, pretentious) rhetorical figures: ‘the law as an ordering factor’Footnote 129 or ‘the federal order is a form of federative structure.’Footnote 130 One often comes across reasoning based on political science and also occasionally on natural law.Footnote 131 This style of thinking has the advantage of facilitating argumentation (‘fruitful lack of clarity’); in exchange, the disadvantage lies in the unpredictability of the results of such argumentation. In general, one argues from a greater number of premises and attempts to find more (alternative) arguments for the desired result. Thus, argumentation follows more than one line, and these lines are more complicated and less pointed. Germans argue more often from broad, general principles (democracy, human dignity, etc) to concrete problems; in Austria, such activist tendencies are more unusual (albeit not unheard of).
As a final remark, one can say that both German and Austrian legal scholars depict each other as proponents of an outdated methodology. As described above, from a (traditionally) Austrian vantage point, German constitutional scholarship appears to be a scholarship stuck at a (pre-)Jellinekian methodological level (that is, the mixing of legal and sociological arguments; the presentation of personal views on legal policy as theoretically compulsory legal conclusions). From the other side of the border, in contrast, the Kelsenian style in Austria is viewed as an absurd and unproductive caricature of an outmoded formalistic Begriffsjurisprudenz.Footnote 132
In the light of these differences between two countries and two legal cultures, which stand in such close interaction and exchange, one can imagine how long the road may be to a common European scholarship of public law (that is, a common discourse space in Europe for national public law scholars), considering that other countries and legal orders will be far less familiar with each other. And the German-Austrian differences are by no means of a merely terminological nature that might simply be resolved by ‘translating’ into the counterpart term: the terminological differences are only incidental or symptomatic of the actual divergence of (sometimes only implicit) theoretical premises. So it is not the case that, with the aid of in-depth analysis of underlying foundations, these differences can be transformed into compromises. Quite the contrary: the deeper one digs and the more theoretical one proceeds, the greater the differences become. The prospects for a public law scholarship common to all of Europe, therefore, seem to me rather bleak at the moment.
However, a scholarship on the public law of the European Union has already emerged, although its fundamental argumentative mode has not yet taken shape (if it can ever become definite at all). The answer to the question, whether the Austrian or the German way of arguing will eventually find greater reception in this context, will depend on how scholars understand the European Union. Factoring out Germany's institutionally stronger position, if the EU is regarded as a purely legal community (Rechtsgemeinschaft)—similar to the multinational state of the Austro-Hungarian Empire, which provided the context of origin for the pure theory of law—, then Austrian scholarship might well play a more prominent role; if it is viewed instead as a community of values, then German scholarship will be more prevalent. In the former case, we will be able to communicate with each other better in Austrian, but in the latter case we will be well advised to speak German.
