Die dogmatik des osterreichischen offentlichen rechts aus Deutschem blickwinkel - ex contrario fiat lux

In: Der Staat: Zeitschrift für Staatslehre und Verfassungsgeschichte, deutsches und europäisches öffentliches Recht, Band 46, Heft 2, S. 268-291

Abstract

This article attempts to contrast the conceptualization & argumentation style in Austrian law to that of the German legal system based on the underlying idea that break points are fundamental, with the aim of providing insight into the public legal thought style of Austria & thereby also providing a better understanding of certain commonalities in German public law dogmatism. The different terminology & the need to involve positive concrete law present two methodological difficulties. The dogmatic differences are first explained based on the influence of pure jurisprudence. This is revealed not only in the diverse dogmatic figures, but also in the lack of or existing opposition to approaches to decision, integrated teaching, & natural law. Particularly in areas related to legal source systems & constitutional jurisdiction, Austrian dogmatic is worked out in detail, a Kelsen legacy. The differences between the two nations & legal cultures highlight the long road to a common European public law, as these are not only terminological differences, but are rather a consequence or symptom of different theoretical premises. Adapted from the source document.