Two Opposing Paradigms of Continental European Constitutional Thinking: Austria and Germany

Abstract:     
Comparative constitutional lawyers of common law countries might have a temptation to identify German and Austrian constitutional thinking - 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”. 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 what seems to be familiar for the 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 undertakes 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 each other.

Number of Pages in PDF File: 20

Keywords: comparative constitutional law, Austria, Germany, Hans Kelsen, Carl Schmitt, Rudolf Smend

JEL Classification: K10

working papers series