Commentary on the Austrian constitution

This research project strives to accomplish two tasks: Firstly, the text of all legal provisions of constitutional rank in the formal sense in the Austrian legal order will be ascertained and documented. Thus, the enquiry is not limited to those laws of constitutional rank that enjoy central importance. It will also encompass federal laws that do not enjoy constitutional rank as a whole (einfache Bundesgesetze) and treaties between states - both to the extent to which they contain provisions of constitutional rank. These provisions of constitutional rank will be compiled, put into a systematic order and will be published together with references to their legal publication and their legislative history. Secondly, legal scholars will comment on all essential provisions in a comprehensive way - a task which has not been pursued in Austrian constitutional Law before. The outcome of this research project will be the first large- scale commentary on Austrian constitutional Law. This is supposed to ensure that the scholarly presentation and evaluation of this field of Law does not remain limited to certain isolated areas of constitutional Law but provides a comprehensive account of this field of Law. On one hand, this will ensure that scholarly commentary exists on all essential provisions of Austrian constitutional Law. On the other hand, legal practitioners will be able to rely on the information put together in this commentary when they are called upon to decide disputes in which legal rules of constitutional rank play a role. First and foremost, such a commentary will provide a comprehensive account of this field of Law and will thus serve as a foundation for further scholarship in the field. Lacunae and contradictions in the Law that have remained unnoticed in the past because of the lack of systematic and comprehensive commentary in this field of Law will be brought to light. This endeavour win also provide groundwork for comprehensive constitutional reform - no longer hindered by uncertainty, but based on a solid account of what has been accomplished and which lacunae in the Law will have to be tackled. Criticism of the current state of the Austrian Constitution would no longer have to be based on generalisations and merely hypothetical assertions, but would rest on sound legal scholarship (commentary on the constitution as a preparation for constitutional reform).

The Austrian Constitution is characterized by a pronounced disintegration: Besides the main constitutional text, provisions with constitutional character are also found in other constitutional laws as well as in constitutional provisions within "normal" laws and international treaties. The current state of constitutional law in Austria was thus once characterized by Klecatsky as a "ruin" and makes it extremely difficult for any constitutional lawyer to reliably ascertain the state of the law. The same difficulties exist with regard to the state of constitutional doctrine: The huge number of decisions (mainly of the Constitutional Court) and scholarly publications were never systematically structured and analyzed. The aim of the project was thus twofold: to ascertain, compile and systemize the entire constitutional law and to provide a scientifically-based, comprehensive commentary of it (this project was the first-ever attempt to provide such a commentary in Austrian constitutional law). The main project result is the Commentary of Austrian Constitutional Law (Bundesverfassungsrecht - Textsammlung und Kommentar), edited by Karl Korinek and Michael Holoubek and compiled with the participation of a large number of Austrian and foreign constitutional scholars (Publishers SpringerWienNewYork, 2002). A commentary such as the one published as a result of this project is able to offer a comprehensive view of the state of the Austrian constitution. It can bring to light lacunae and contradictions which went unnoticed in the past and provide a new systematic approach to constitutional doctrine. It can thus serve as a foundation for future scholarly work in this legal field. Furthermore, it can provide politics with a solid scientific basis on which to undertake future constitutional reform - an urgent task in Austria.