Between the Idea and the Systemic Practice. On the Way of Austria to the Constitutional Court

The aim of the article is to show that the concentrated system of constitutional protection in the republic of Austria – commonly referred to as the Kelsen system – was a legacy of the systemic practice and legal thought from the times of the Habsburg monarchy. The model of constitutional protection adopted in 1920 was based principally on the legal structures of old Austria, adapted to the new federal state system. The analysis of legal grounds of the jurisdiction of the Constitutional Tribunal suggests that there occurred a transfer of legal solutions to the republican constitutional order rather than the emergence of a new type of constitutional judiciary that would protect the objective constitutional order by means of abstract control of the constitutionality of law. The control of the constitutionality of law in Austria at the time was, in principle, concrete. The article also provides justification for the idea that it is Georg Jellinek to whom we owe the idea of abstract control of the constitutionality of law. Even though it was revitalized by H. Kelsen, it did not become part of the constitutional protection model in the First Austrian Republic.

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