A Model for the World: The Austrian Constitutional Court Turns 100

Abstract

Abstract The design of constitutional courts usually shows a specific concern for independence from political actors and for pluralism on the bench. We argue that many institutional features of today’s constitutional courts can be traced back to the Austrian Constitutional Court (the first of its kind, which celebrated 100 years in 2020) and even further still to its predecessor, the Austrian Imperial Court of Justice of 1867. Strikingly, judicial independence is to be guaranteed against the existing judiciary as well, which is why constitutional courts often stand apart from the traditional judicial bureaucracy. Pluralism on the bench is to be ensured by specific criteria of eligibility, opening the constitutional court judgeship to a wider set of candidates (eg, attorneys, professors, civil servants), but also via institutional arrangements that make it easy for outsiders to join the court in the first place (eg, by allowing to continue one’s job or by not requiring residence at the court’s seat). Recounting the story of the Austrian model of constitutional adjudication in an unprecedented attempt to combine Austrian legal history with the structure and process of today’s constitutional courts around the world, this paper also highlights how relatively minor features of court organization contribute to the overarching goal of ensuring the independence of the court and pluralism within the court.