Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution

Abstract

The Austrian Constitution discussed here is that of October 1, 1920, as valid January 1, 1930; that day the text of the Constitution was officially published by an act of the Austrian Chancellor in the Bundesgesetzblatt fiur die Republik osterreich (the official Gazette for the obligatory publications of statutes). All later amendments will not be considered because they were enacted under a semi-fascist regime and had the tendency to restrict the democratic control of the constitutionality of legislation. The Austrian Constitution of 1920-30 provided for guarantees to assure the constitutionality not only of statutes but also of ordinances. The latter were general legal rules enacted by administrative organs and not by a parliament, that is by a legislative organ. In Austria, as well as in other countries of the European continent these ordinances played a much greater role than in the United States. There were two kinds of ordinances: Ordinances based statutes, i.e. ordinances the function of which was to execute the statutes, and ordinances which, like statutes, were enacted directly on the basis of the constitution, that is ordinances issued in place of statutes. The significance of ordinances is due to the peculiar position which the administrative authorities occupy in the legal systems of the European continent. There they have, in their capacity as law-applying organs, the same rank as courts. The administrative act has in principle the same legal effect as a judicial decision. Besides, the administra-