Günther Winkler

Günther Winkler

Günther Winkler (born January 15, 1929 in Unterhaus, Baldramsdorf , Carinthia ) is an Austrian lawyer . Until his retirement in 1997, Winkler was a full professor of all legal and political sciences at the University of Vienna , from 2001 to 2007 he was a judge at the OSCE Court of Arbitration and Arbitration and from 2007 to 2013 he was again appointed judge and member of the Presidium. Winkler is Honorary Senator of the University of Vienna and Princely Judicial Councilor of Liechtenstein .

Life

Winkler grew up in Baldramsdorf near Spittal an der Drau . From 1947 to 1951 he studied at the University of Innsbruck law and political science and graduated with the promotion to Doctor of Law from.

From 1949 to 1956 he worked first as an assistant, then as an assistant at the University of Innsbruck, where he acquired the license to teach (Venia Legendi) as a lecturer in administrative law in 1955 . From 1956 to 1959 he was assistant and lecturer for administrative law at the University of Vienna, from 1959 Associate Professor for Constitutional Law, Administrative Law and General Political Science and Law, from 1961 until his retirement in 1997 he was Full Professor for Constitutional Law, Administrative Law and General Constitutional Law. and legal studies at the University of Vienna. From 1972 to 1973 he was Rector of the University of Vienna and Chairman of the Austrian Rectors' Conference . From 1974 to 1983 he was chairman of the scholarship commission of the Austrian Rectors 'Conference for political refugees as well as the committees of the Austrian Rectors' Conference for questions related to the admission of foreign students, for assessing the equivalence of secondary school leaving certificates and for developing guidelines for the admission of foreign students to Austrian universities. From 1973 to 2015 he was the Austrian Government's Special Emissary for Austria’s unofficial relations with Taiwan .

Academic career

Günther Winkler worked in the university's academic administration department in various administrative functions and honorary positions. He was librarian , head of the Institute for Constitutional and Administrative Law, Dean of the Faculty of Law and Political Science (1965) and Rector of the University of Vienna (1972). He worked as a room advisor for the faculty, as a member of the building commission of the Academic Senate, as the University of Vienna's building officer for the Juridicum and as legal advisor to the rectors and the Academic Senate.

In order to create a forum for scientific dialogue in the fields of public law, political science and legal theory, as well as to promote the next generation of academics, Winkler founded Research on State and Law, which has been published by Springer Verlag since 1967, in 1963 . He was its editor until volume 140 . Numerous lecturers and professors emerged from the scientific disputes in his more than four decades of seminars on legal theory and methodology . Many of her post-doctoral theses were published in the research on state and law . Winkler himself appears there as the author of numerous studies, initially in the areas of administrative law, later constitutional law, comparative constitutional law, European law and an empirical state and constitutional theory, but above all a legal theory based on a critically questioned epistemological and logical pre-understanding and methodology for lawyers.

In the 1970s and 1980s, Winkler held leading positions in the Austrian Exchange Service (ÖAD, former names: Austrian Student Abroad Service, Austrian Academic Exchange Service). As its president, he reorganized the indebted ÖAD at the beginning of the 1980s and, as the person responsible for the school inspection, brought about a fundamental reform of the preparatory course for foreign students, which was paralyzed by student unrest in the 1970s. During times of political crisis in Greece , Chile , Iran and Kurdistan ( Turkey ) he was chairman of the academic scholarship commission for politically persecuted students.

Acting as a legal advisor

Winkler advised as a specialist in administrative and constitutional law in business and politics . In 1962 he initiated a uniform catalog of fundamental rights from a comparative law perspective, which led to the establishment of an Austrian fundamental rights reform commission.

In “Aktion 20” organized by the federal government in the 1960s, Winkler was one of the six founding members, the others were Karl Fellinger for health, Franz Karasek for foreign policy , Stephan Koren for economy and finance, Leopold Rosenmayer for society and Hans Tuppy for education and science. Later Emil Spannocchi joined in for national defense. Their aim was to analyze and guide the future of the state and society in Austria. Winkler's reform efforts were aimed in particular at improving legal protection, simplifying the legal language and reducing the number of laws.

Maintaining international relationships

In his work as an academic administrator, teacher and researcher , Winkler cultivated scientific relationships beyond national borders from Vienna . He was an advisor on constitutional issues in Japan , Korea , Finland , Taiwan, Poland , Afghanistan and Liechtenstein. He gave numerous lectures at foreign universities and scientific institutions. He was involved in scientific discourse especially with German colleagues . From 1980 to 1982 he was chairman of the Association of German Constitutional Law Teachers.

After the Republic of China (Taiwan) lost its seat in the UN and thus international recognition in favor of the People's Republic of China because of its one-China policy , the Austrian federal government entrusted Winkler with the political representation of Austria towards the Republic of China. Winkler took care of this task of unofficial diplomatic mediation between the two countries in his capacity as president of the Institute for Chinese Culture he founded for this purpose.

For more than three decades he was involved in the maintenance and promotion of bilateral administrative and cultural issues between the two countries. In particular, he was responsible for maintaining Taiwan's relations with the International Atomic Energy Agency (IAEA) in Vienna and was instrumental in setting up unofficial representations for both countries to deal with economic, cultural and administrative matters.

Winkler's cultivation of international relations between Austria and Taiwan increased his interest in Chinese culture, especially in Chinese handicrafts. This interest found its visible expression in a collection of exemplary evidence of several thousand years old Chinese handicrafts, first in the Benedictine monastery of St. Paul in Lavanttal, later in the Ortenburg in Baldramsdorf near Spittal an der Drau in Carinthia.

At the same time as the Institute for Chinese Culture, Winkler founded the Austro-Korean Friendship Society in 1973. From 1974 to 1976 he was constitutional advisor to the President of South Korea, Park Chung-hee, who later fell victim to a political murder, and supported him on his way to opening up autocratic military rule to democracy . He translated two of his works from English into German.

From 2000 onwards, Winkler's international interest was on the one hand the European Union and its sanctions against Austria and on the other hand the attempts by parliamentarians of the Council of Europe to restrict the sovereignty and constitutional autonomy of Liechtenstein. His research on these topics from a legal dogmatic, constitutional, state-theoretical, European and international law perspective was reflected in specialist publications.

Academic teaching

As a young scientist, Winkler was chairman of the Austrian college community in Innsbruck for several years and participated in the university weeks of the European Forum Alpbach (1950–1956). The Austrian College was dedicated to the interdisciplinary encounters between academic teachers and students in academic discussions. Under the motto of "Studium Generale", Winkler organized interdisciplinary seminars, lectures, literary and speaking competitions at the University of Innsbruck when he was young.

His encounters with famous scholars (including Theodor W. Adorno , Arnold Bergstraesser , Otto Brunner , Hans Fehr , Paul Feyerabend , Hans-Georg Gadamer , Franz Gschnitzer , Carl Gustav Jung , Hans Kelsen , Victor Kraft , Heinrich Mitteis , Hans Nawiasky , Karl Popper , Alf Ross , Erwin Schrödinger , Wolfgang Stegmüller ) and prominent writers (such as Robert Jungk and Arthur Koestler ) in the Tyrolean mountain village of Alpbach were groundbreaking for his work as an academic teacher and researcher in the sense of the Studium Generale.

But the interdisciplinary legal working group he organized at the University of Innsbruck also gave him lasting impetus for his later legal, methodological and scientific-theoretical efforts to find an empirical-rational method for legal research, teaching and practice.

Winkler's focus on the educational goal of the Studium Generale also had an impact on his practical university activities. These found their practical expression in the organization and administration of academic teaching and research at the university; outstanding in the functional planning for the new Juridicum and in the publication of the scientific publication series Research on State and Law (Springer Verlag, Vienna-Heidelberg-New York).

Winkler's academic activities and his efforts to achieve relevant university autonomy found their written expression in treatises on cultural autonomy and self-administration and in his historical study on "The Legal Personality of Universities" (1983).

The future governor of Carinthia, Jörg Haider FPÖ , was Winkler's assistant from 1973 to 1976. Also assistant to Winkler was Peter Kostelka , later club chairman of the Social Democrats in the National Council , State Secretary in the Federal Chancellery and Ombudsman until 2013.

The law as a real cultural phenomenon

The focus of Winkler's early scientific interests was initially in administrative law. In addition, constitutional law , comparative constitutional doctrine , the relationship between constitutional law and international law , political science and political science soon became important to him. In the spirit of the Studium Generale, his special preference was early on for legal methodology and legal theory on an epistemological basis. From the point of view of his practical experience as an administrative lawyer and as a constitutional lawyer who is open to state politics , Winkler understands law in its linguistic (grammatical) and conceptual (logical) constitution in theory and practice, from the variety of its standardized manifestations, as meaningful and purposeful Order structure for human behavior in a legally organized community.

For him, the law, which appears in a variety of forms in generally abstract regulations and individually specific legal acts as well as in the actual behavior of its addressees, is a valuable order in accordance with its meaningfulness and purposefulness, which can be empirically-rationally experienced, understood and interpreted. The meaningful and expedient, general-abstract legal provisions are aimed at realization through human behavior as state acts and legal acts. Positive law is generated through actual human behavior in its linguistic (grammatical) and conceptual (logical) form as a constitution , law , ordinance and state act through human action (ius positum - positive law) and is applied and followed by the addressees of the law .

In its synthesis of meaningful and purposeful creation, application and compliance, supported by actual human behavior, law is a multifaceted phenomenon in cultural and social reality. The general-abstract arrangements, the individual-specific legal acts based on actual human behavior, together with their implementation, embody the legal order of an organized community of people in the state. For Winkler, the law manifests itself in an empirically measurable variety of its published manifestations in validity, binding force and effectiveness ( effectiveness ) as a historical phenomenon. For Winkler, law in its multilayered and differentiated ought-like way of being, in its necessary unity of meaningful abstract possibility and meaningful concrete realization of human behavior, is a differentiated, empirically-rationally experienceable, understandable and interpretable, cultural-social phenomenon of a special kind. In its collective value , in its multifarious generation, in its meaningfulness and purposefulness of validity, binding force and effectiveness, the right for Winkler is in form and content an expression of a diverse being-like ought and ought-like being of human behavior.

Theory and method of the lawyer

The subject determines the method . For Winkler, the law is a tangible, meaningful and purposeful creation of man. It is created by humans, is directed towards human behavior and finds its experiential and empirically-rationally comprehensible expression in special forms of expression of human behavior. It is a special kind of cultural and social phenomenon. Law is perceptible in written and spoken words, in symbols and pictorial signs as well as in the variety of concrete human behavior.

Typical manifestations and forms of production as well as concrete actual human behavior are carriers of the meaning of the law in the state and society. Through them, the right can be experienced and grasped empirically and rationally in terms of form and content. Because of the nature of its subject matter, law is an understanding and explanatory cultural and social science for Winkler. The linguistic forms of expression, the symbols and the pictorial signs, in which the law appears in a generally tangible way, are shaped by the rules for human thinking in the forms of grammar and logic. This also applies to the subject-related metalanguage of jurisprudence and to legal thought.

Legal thinking follows the peculiarities of the object in its method. The law can only be empirically and rationally grasped, appropriately understood and interpreted through the perceptible peculiarities attached to it. Law appears linguistically and conceptually. Legal thinking, also called interpretation in dogmatic terms , is therefore carried out primarily according to the rules of grammar and logic. However, these only contain functional directions for an empirical-rational understanding and explanation of the linguistic and conceptual structures, the pictorial signs and symbols of law, as well as the actual, meaningful and purposeful human behavior according to it.

The rules of grammar and logic are not sufficient to determine the meaning of the various forms of generation and appearance of law. Legal knowledge also requires a sound knowledge of the legally relevant reality of the state and society. Legal thinking therefore takes place on two levels: on the one hand, on the level of the meaning of the legal provisions and legal acts and, on the other hand, on the level of the legally significant, cultural-social relationships in the state and society. Anyone who wants to understand the law must also take into account the diversity of the cultural and social reality to which the law relates.

The determination of the meaning included in the language, in the terms, in the signs and symbols of the law in form and content is carried out with the help of the methods of interpretation corresponding to the forms of appearance and generation of the law. In doctrine, a distinction is made between the logical, the grammatical, the historical, the systematic and the teleological interpretation. But there is no hierarchy between these forms of interpretation. This distinction is school-like enumerating. In addition, grammatical and logical interpretation is hardly of current importance in legal practice . Law clad in linguistic and logical forms of expression hardly ever requires a conscious application of the rules of grammar and logic. This also applies to the historical interpretation. In everyday life, the meaning and purpose of the law are mostly immediately apparent not only to the legal expert, but also to the addressee of the law. Interpretation therefore means determining the meaning of empirically comprehensible law. The law is the work of man. It follows changes in the economy and society. The changing cultural and social circumstances can only be insufficiently recorded by the legislature in word and writing. It is not uncommon for them to be inadequately communicated by the legal provisions. The language in the legislation may differ from the rules of grammar and logic; however, they can also be factually imprecise.

The interpretation is about the determination of meaning and purpose in word, writing and characters in a knowledgeable way: lege artis - that is, according to the rules of the art of legal thought. In this sense, the question of the binding sense and purpose of law in words and sentences, in legal terms, in signs and symbols is also a methodological challenge for the jurist. Jurists have developed rules to interpret the meaning of the regulations and acts of law. They usually use the teleological method to determine the sense of language and the word as well as the conceptual content of the provisions of law and legal acts lege artis; namely taking into account historical aspects and the often time and space-bound, abstract and concrete references to reality of law.

This aim is also served by a systematic understanding and explanation of the meaning of the law, which is word-bound and conceptually defined in all layers and manifestations and based on human behavior in cultural and social reality, according to the circumstances. The abstract and concrete meanings of the law are empirically-rationally recorded, viewed, explained and understood, defined and systematically organized by legal dogmatics in a way of thinking appropriate to the object in its expedient relationship to the relevant cultural-social reality. The determination of the meaningfulness and expediency of the manifestations of the law and their relevance for actual human behavior in cultural and social reality takes precedence over grammatical and logical interpretation. Law is not created because of logic. Logic and grammar also rarely enter the critical consciousness of a lawyer who thinks professionally in practice or theory. They are usually just as unreflective for concrete legal thinking as they are for the creation of law. In this sense, the interpretation of law can be understood as applied hermeneutics , semantics and semiotics .

Philosophical orientations

For legal theory, however, logic, as the doctrine of coherent (correct) thinking and grammar, as the doctrine of the correct structure of language, are of essential importance. For training in professional legal thinking (lege artis), legal theory and methodology offer the instruments of teleological interpretation, which also includes historical and systematic interpretation and equally estimates the impact of law in the reality of human behavior. Such an interpretation means an object-appropriate determination of the meaning and purpose of the linguistic and conceptual, pictorial and figurative content of the law in concept and implementation.

In the first half of the 19th century, the science of public law was without a separate doctrine of interpretation . Explanations of discretion and indefinite legal terms in the law took their place. It was about an appropriate application of the law. This may have been due to the purpose of administrative law, to help shape public life. In Austria, however, there is also a legal-theoretical explanation for a narrowed, formalized definition of legal science on the form and on a formalized ought, primarily through the pure legal theory , whereby the contents of the law with their meaningfulness and purposefulness and with their valuable reference to reality from legal science were excluded.

To counteract this was from the beginning Winkler's concern, who saw an epistemologically sound, historically based teleological way of thinking (Der Bescheid 1956) as an essential requirement for jurisprudence. His studies on content-based institutional legal thinking as well as his legal theoretical investigations testify to this. Legal consideration means content consideration and thus also value consideration. In contrast, for the pure legal theory, the right is only an ought, explained by the logified form of thought of a supposed hypothetical judgment without content. The content of the law is meaningful and appropriate. They are therefore beyond the reach of pure legal theory.

The law is, however, inherently content, meaningful and expedient; it is an ought to be. It is valuable and as a possibility and reality of the diverse, is and ought-based human behavior. The content of the law refers to the value of cultural-social reality, which in its duality as possibility and reality can only be understood and explained empirically-rationally according to its meaning and purpose, i.e. only teleologically-historically and systematically (holistically).

Against the background of a heliocentric and cosmic worldview, Winkler's understanding of law is anthropocentric and terrestrial. In this world man is the author and addressee of law. The thinking and acting person is a meaningful and purposeful origin and a meaningful and purposeful goal of the realization of the meaning of the law. The law is created for people who think and act in a meaningful and purposeful way. At the center of the linguistically and conceptually conceived law is the person who thinks and acts in a meaningful and purposeful way as a person, as a legal subject ; in general as a bearer of rights and obligations. In the person of the human being, law experiences its multiple fulfillment of meaning in the process of origin and realization. The law is an experiential and empirically-rationally comprehensible, cultural-social phenomenon, which only an understanding and explanatory, a jurisprudence oriented towards the tangible meaning and purpose of human behavior as a cultural and social science can do justice.

In the center of the multilayered, manifestations and meaning of the law, Winkler sees the person who thinks and acts in terms through meaningful words and signs. Jurisprudence deals with a specific type of human creation. In its published meaningfulness and expediency, the law is a cultural-social phenomenon of a special kind in theory and practice. Through its published manifestations and meaning, the law is an empirically-rationally experienced, lege artis, ie subject to be cultivated according to the rules of empirical-rational thought. The focus of much of the work and of Winkler's Kelsen seminars, which lasted more than three decades, is the question of the epistemological prerequisites of theory and method of lawyers for determining the criteria for teaching, research and practice corresponding to the subject (cf. “Studies on Constitutional Law "," Theory and Method in Jurisprudence "," Space and Law "," Time and Law "," Legal Theory and Epistemology "," Law and Jurisprudence ", with epistemologically based orientations on the categorical dualism of being and ought). For Winkler, law is an empirically rational cultural and social science. In this sense, his legal thinking embodies an epistemologically founded antithesis against the "transcendentally logically" constructed way of thinking of Hans Kelsen's "pure legal theory" with its problematic opposition of being and ought. Winkler understands being and ought as dual forms of legal thinking and in their unity as a dual characteristic of law. Winkler's theory and method are directed against the dogmatization, ideologization and tabooing of “pure legal theory”.

Honors

Honorary presidencies

• Austrian Society for National Defense and Security Policy
• Austro-Korean Society

Honorary memberships

• Catholic Academic Association Norica
• Austrian Catholic Student Union Pannonia
• Young European student initiative (JES, sub-organization of the Paneuropean Union )
• Austrian Exchange Service (ÖAD)
• European Law Students' Association (ELSA)

Academic honors

• 1975: Honorary Doctorate in Philosophy from Taipei University of Chinese Culture
• 1975: Honorary chain of the Rector of the University of Vienna
• 1984: Honorary doctorate in law from the University of Graz
• 1989: Honorary Senator of the University of Vienna
• 2000: Wilhelm Hartel Prize of the Academy of Sciences

Badges of honor and honorary titles

• 1963: Ring of Honor of the Wiener Neustadt Military Academy
• 1969: Gold Medal of Honor of the City of Krems
• 1971: Great Decoration of Honor for Services to the Republic of Austria
• 1973: Order of Diplomatic Service Merit with the star on the ribbon (Heung-In Medal) III. Rank (Republic of Korea)
• 1975: Great Order of the Brilliant Star, III. Rank (Republic of China)
• 1975: Commander's Cross of the Order of the Great Lion (Sénégal)
• 1976: Commander's Cross with the Star of the Order of the Lion of Finland
• 1976: Great Gold Medal for Services to the Republic of Austria
• 1976: Grand Cordon of the Order of the Brilliant Star, Großkomtur (Republic of China)
• 1976: Commander's Cross of the Papal Order of St. New Year's Eve with the star
• 1979: Taipei City Golden Key
• 1984: Austrian Cross of Honor for Science and Art
• 1984: Taipei City Golden Key
• 1986: Grand Cordon of the Order of the Propitious Clouds, Großkomtur (Republic of China)
• 1987: Golden Commander's Cross of Honor for Services to the Federal State of Lower Austria
• 1989: Gold Medal of Honor from the Federal Capital Vienna
• 1990: Great Silver Medal of Honor with the Star for Services to the Republic of Austria
• 1995: Taipei City Golden Key
• 1996: Golden badge of honor of the market town of St. Paul in Lavanttal
• 2003: Princely Justice Council of Liechtenstein
• 2005: Gold Medal of Honor "Schulze-Delitzsch" on the ribbon of the Austrian Cooperative Association
• 2008: Great Golden Decoration of the State of Carinthia

Works

Monographs

• The notice. A contribution to the teaching of administrative acts (1956)
• The absolute nullity of administrative acts, law and state 223 (1960)
• Values ​​in Law and its Limits, Research from State and Law 12 (1969)
• Legislation and administration in commercial law (1970)
• The pharmacist and his right to sell (1971)
• Extraordinary professors of a new type, together with Jörg Haider (1974)
• The freedom of science and its teaching, together with K. Wenger (1974)
• Pharmaceutical Practice and Social Insurance, together with W. Barfuß and Bernhard Raschauer (1983)
• The legal personality of the universities. Legal-historical, legal-dogmatic and legal-theoretical investigations into scientific self-administration, research from state and law 80 (1988)
• Splendor and misery of pure legal theory, lectures, speeches and reports from the Europa-Institut, Saarbrücken, 144 (1988)
• Compensation for legal aid, together with Ewald Wiederin , series of publications by the Austrian Bar Association 6 (1988)
• Legal theory and epistemology. Critical remarks on the dilemma of being and ought in pure legal theory from a historical and epistemological point of view, research from state and law 90 (1990)
• Law and legal experience. Methodical and epistemological thoughts on Hans Kelsen's teaching and administrative law, research from state and law 105 (1994)
• Time and right. Critical remarks on the time-boundness of law and legal thought, research from state and law 100 (1995)
• Il valore nel diritto. Metodologie del diritto pubblico, Edizioni Scientifiche Italiane, translator: Agostino Carrino (Napoli 1996)
• Prolegomena to space and law. In: Lectures, speeches and reports from the Europa-Institut vol. 373 (Saarbrücken 1999)
• Space and law. Dogmatic and theoretical perspectives of an empirical-rational legal thought, research from state and law 120 (1999)
• Law as empirical social science. Biographical and methodological notes on constitutional law, research from the state and law 130 (1999)
• Electricity Law, Legislation as an Instrument of State Economic Policy, Research from State and Law 125 (2000)
• Constitutional Law in Liechtenstein, Research on State and Law 135 (2001)
• Bilingual place-name signs and ethnic group rights. Critical comments on the decision-making practice of the Constitutional Court in ex officio legal examinations from the perspective of its place-name sign recognition, research from state and law 140 (2002)
• The Council of Europe and the constitutional autonomy of its member states. A study of European law with documents and comments, illustrated by the actions of the Council of Europe against the constitutional reform of Liechtenstein, Research from State and Law 150 (2005)
• Pardon and Countersignature, Research from State and Law 155 (2005)
• The ex officio examination of ordinances and laws by the Constitutional Court. The judicature of the Constitutional Court in the field of tension between law and politics. Documentation and commentary. Research from State and Law 160 (2006)
• Poker and poker room parlors in the gambling legislation. Documentation and analysis of gaming legislation, with critical comments from a constitutional point of view, research from state and law 170 (2011)
• Law and jurisprudence. Reflections on empirical-rational legal thinking from the perspective of space and time (Jan Sramek Verlag 2014)
• Il Diritto e la scienza del Diritto, Translator: Federico Lijoi (2015)
• Constitutional legislation and constitutional interpretation in Liechtenstein. Possibilities and limits of constitutional changes (Jan Sramek Verlag 2015)
• The Juridicum. Planning and construction of a faculty building for lawyers from the point of view of the construction officer (2016)

literature

• Herbert Haller , Christian Kopetzki, Richard Novak, Stanley L. Paulson, Bernhard Raschauer , Georg Ress , Ewald Wiederin (eds.): State and law. Festschrift for Günther Winkler. Springer, Vienna / New York 1997, ISBN 3-211-83024-3 .

• Ewald Wiederin: Günther Winkler 90 years . In: Legal journal . No. 2 , 2019, p. 85-86 ( mohrsiebeck.com [accessed February 2, 2019]).

Web links

• Literature by and about Günther Winkler in the catalog of the German National Library
• Günther Winkler on the website of the University of Vienna
• Entry on Günther Winkler in the Austria Forum  (in the AEIOU Austria Lexicon )

Individual evidence

1. ↑ List of all decorations awarded by the Federal President for services to the Republic of Austria from 1952 (PDF; 6.9 MB)