»There is no other European state whose constitution consists of so many anomalies.« The Austrian Doctrine of Public Law in the Second Half of the 18th Century

Abstract

Austria’s gradual emergence as a state is not only the result of reform projects driven forward by Habsburg rulers in the second half of the 18th century, but this process of internal integration of the early modern »union of corporative states« (O. Brunner) into an Austrian Gesamtstaat was also flanked and legitimised by legal science. The discipline of Austrian public law with representatives like Christian August Beck, Franz Ferdinand von Schrötter, Anton Wilhelm Gustermann or Ignaz de Luca dealt with the basic legal order of the Austrian monarchy. With regard to the method (especially the historical approach) and to the doctrine of legal sources, but also partly with regard to the contents covered, the science of Austrian public law in particular was shaped by the Reichspublizistik, id est by the legal science dealing with the public law of the empire. The discipline flourished for decades and was – at least until the mid-1790s – promoted by Habsburg rulers, although the relevant publications and university teaching were closely monitored by central authorities. Its leitmotifs were very Habsburg-friendly: Central issues were the legitimation of the Gesamtstaat described as a historically grown »composite state« and the legitimation of absolutism. The Austrian monarchy was unanimously classified as an absolutist state, whereas the privileges and rights of the provincial estates were marginalised or completely omitted. To a great extent, the science of the ius publicum Austriacum also shaped the history-based master narrative of Austria’s gradual formation into a state and thus continues to have an impact to the present day.

Keywords

• austrian public law
• legitimation of absolutism
• composite state
• historical method in public law
• provincial estates
• austrian monarchy