—Anna Gamper, Professor of Public Law, University of Innsbruck
2018 is a very special year for Austrian constitutional lawyers since it was exactly 100 years ago today that the Republic of (German-)Austria (since 1919: Republic of Austria) was founded.
After the end of the First World War, the representatives of the remaining, predominantly German-speaking parts of the Austro-Hungarian monarchy (the so-called “Kronländer” or Cisleithanian Länder) assembled as the “Provisional National Assembly for German-Austria” in Vienna.
On 30 October 1918, the Assembly passed the “Resolution on the Fundamental Institutions of the State Power”[1] which vested the Provisional National Assembly with legislative powers and provided for an Executive Committee (“State Council”) that, elected by the Provisional National Assembly, acted as the Provisional Government.
The “Resolution on the Fundamental Institutions of the State Power” marked the constitutional beginning of the new Republic and was complemented by a number of laws, enacted particularly in November 1918, that together formed part and parcel of the interim constitution of the early republican period. Among these, the “Law of 12 November 1918 on the Form of State and Government of German-Austria”[2], transferring the former Emperor’s powers provisionally to the State Council, established Austria as a democratic republic, but programmatically also as a part of the German Republic (which was ultimately prohibited by the Treaty of Saint-Germain-en-Laye in 1919). It moreover provided for the election of the Constituent National Assembly that finally took place in February 1919.
On the same day, the Provisional National Assembly also published its “Resolution regarding the Solemn Declarations of Accession of the Länder, Counties and Districts of the State Territory”[3], which recognized these declarations and put the acceding entities under the protection of the “whole nation”. The legal value of this resolution was denied by scholars such as Hans Kelsen[4] and Adolf J. Merkl[5], according to whom it was a “mere political document” that simply took notice of the accession declarations. Moreover, also the declarations themselves – that were passed by a majority of the Länder in the aftermath of the “Resolution on the Fundamental Institutions of the State Power” – were considered by them to be without legal meaning. This has led to an ongoing scholarly debate between legal positivists and scholars belonging to the “Innsbruck School of Federalism”,[6] who consider the declarations of accession as truly constituent acts that co-founded the Austrian federal system. It is indeed remarkable that these declarations contained contractual, almost Hobbesian elements inasmuch as most of them not only declared accession to the new Republic, but also addressed the other Länder as partners within a mutual system of solidarity and co-existence. Even though the Länder cannot be considered to have been independent entities at that time – they had, despite their historical identities, just been parts of a decentralized unitary state during the monarchy – it seems at least appropriate to speak of a “hybrid” federation[7] that was co-founded by both the central power in Vienna and the acceding Länder. While this early process certainly triggered the emergence of the federal system, it required more constitutional engineering to develop full-fledged federalism.
Two days after the acknowledgement of the accession declarations, the Provisional National Assembly passed the “Law on the Takeover of State Power in the Länder”[8] which institutionally recognized provisional parliaments and governments of the Länder. Other elements of a federal system, such as a federal second chamber or financial equalisation, were missing at that early stage, though. It was not even clear where the territorial borders of the Republic as a whole (and those of the Länder) were drawn. After the enactment of several legal acts[9] pertaining to the republican territory, which were to a considerable extent amended by the Treaty of Saint-Germain-en-Laye, it still took some years to define the exact borders and, thus, also the number and territories of the present nine Länder.
2018 is, however, not the centenary of the present Austrian Federal Constitution. From the beginning of the Republic, it took two years to design the Federal Constitutional Act (“Bundes-Verfassungsgesetz”) under the scholarly guidance of Hans Kelsen. In political terms, the new federal constitution was a compromise between the political parties as well as between the central government and the Länder. Passed on 1 October 1920, it was considered a transitory constitution by many. The endurance of this constitution, however, proved better as foreseen, despite its illegal interruption between 1934 and 1945, its 124 amendments (since its formal re-announcement in 1930) and many other fragments of constitutional law enacted outside this main constitutional document. Today, it is still in force, and we may expect the next great constitutional jubilee in two years – when 100 years of the Federal Constitutional Act are going to be celebrated.
Suggested Citation: Anna Gamper, 100 Years of Austrian Republicanism – 100 Years of Austrian Federalism?, Int’l J. Const. L. Blog, Oct. 30, 2018, at: http://www.iconnectblog.com/2018/10/100-years-of-austrian-republicanism-100-years-of-austrian-federalism
[1] Beschluß der Provisorischen Nationalversammlung für Deutschösterreich vom 30. Oktober 1918 über die grundlegenden Einrichtungen der Staatsgewalt, StGBl 1918/1.
[2] Gesetz über die Staats- und Regierungsform von Deutschösterreich, StGBl 1918/5.
[3] Beschluß der Provisorischen Nationalversammlung für Deutschösterreich betreffend die feierliche Beitrittserklärung der Länder, Kreise und Gaue des Staatsgebietes, StGBl 1918/23.
[4] See Kelsen/Froehlich/Merkl, Die Bundesverfassung vom 1. Oktober 1920 (1922) 67; Kelsen, Die Verfassungsgesetze der Republik Deutschösterreich. Vol 1 (1919) 72; Kelsen, Österreichisches Staatsrecht (1923) 97 et seq.
[5] See Merkl, Die Verfassung der Republik Deutschösterreich (1919) 20.
[6] See Ermacora, Österreichischer Föderalismus (1976) 40 et seq.; Pernthaler, Die Staatsgründungsakte der österreichischen Bundesländer (1979) 19 et seq.; Pernthaler, Die Konstituierung des Bundesstaates „Republik Österreich“ aus der Sicht der selbständigen Länder Tirol und Vorarlberg, in FS Nikolaus Grass (1974) 725 et seq.; Pernthaler/Esterbauer, Die Entstehung des österreichischen Bundesstaates als geschichtlicher Vorgang und staatstheoretisches Problem, Montfort 1973, 128 et seq.; Öhlinger, Der Bundesstaat zwischen Reiner Rechtslehre und Verfassungsrealität (1976) 8 et seq.; Bußjäger, Föderale Systeme (2017) 34 et seq.
[7] See Palermo/Kössler, Comparative Federalism (2017) 43.
[8] Gesetz betreffend die Übernahme der Staatsgewalt in den Ländern, StGBl 1918/24.
[9] StGBl 1918/40, StGBl 1918/41, StGBl 1919/175.
Comments