Unconstitutional constitutional law

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In jurisprudence, unconstitutional constitutional law refers to rules and norms that have become part of written or unwritten constitutional law , but nevertheless violate the constitution and are therefore ineffective or can be repealed due to unconstitutionality . This plays a role especially in constitutional changes.

Dogmatically, it is an instrument for resolving conflicting norms. It is stated in advance that, although each constitutional norm shapes and changes the constitution in a certain way, there are nonetheless rules that take precedence over the other rules because they are higher or more important.

Both the findings (under what conditions) and the legal consequences (what effect) of unconstitutional constitutional law are controversial.

Exclusion of the application of the institute of unconstitutional constitutional law

Cases of unconstitutional constitutional law are to be distinguished from the following cases:

On the other hand, it does not matter whether and how a rule was created, i.e. whether it is written or unwritten or whether it came about through particularly high or particularly narrow approval. The same applies to the designation of constitutional norms as high-ranking, it is not all that matters.

Example: In Germany, the rule of law is not fully incorporated into the constitutional text. In constitutional practice, however, it is applied beyond the wording of Art. 20 GG as a higher-ranking constitutional law and takes precedence over simple constitutional norms. For example with regard to the reservation of the law and non-retroactivity .


Violation of higher-ranking law

According to general dogmatic rules , illegality presupposes a violation of higher-ranking law. This is only conceivable in constitutional law if individual norms of constitutional law take precedence over other norms of constitutional law. In modern constitutions, the premise has often been found since early on that there is a core standard that cannot be changed and is beyond the legislature's scope of action:

"[...] a legislative act contrary to the Constitution is not law."

"[...] a legislative act contrary to the constitution has no legal force."

Its scope includes principles such as

However, there is no norm hierarchy or norm pyramid within constitutional law.

Collision of equal right

In contrast, the figure of unconstitutional constitutional law is not recognized for the relationship of equal-ranking norms of constitutional law to one another, especially if these were not added later but were part of the constitution from the beginning. Only a few, for example, the regulation of religious education with regard to the standardized separation of state and church is considered unconstitutional. When such peer-to-peer norms collide, there is no test standard for determining which of the two norms should be measured against which. As a result, in such constellations, the instrument of unconstitutional constitutional law fails as a solution to conflict of laws and other methods of interpretation must therefore be used. Another approach is the instrument of practical concordance .

In Germany, for example, unconstitutional constitutional law of the same rank also plays a role in solving the following questions:

  • whether the Federal President may choose a national anthem;
  • whether and to what extent the Federal President is entitled to a substantive right to review federal legislation .


The eternity clause of Article 79, Paragraph 3 of the German Basic Law makes certain substantive constitutional changes inadmissible. If such a change in the wording of the Basic Law (Article 79, Paragraph 1 of the Basic Law) occurs - even in compliance with the legislative procedure requirements - the amending law and the effect of the change are unconstitutional and void.

Example: Deletion of Art. 102 GG and introduction of the death penalty for cases that are determined by federal law. According to the prevailing opinion , this was controversial, but today it is generally viewed as a right to protection - derived from the human dignity guaranteed in Art. 1 GG .

A change would be inadmissible because the constitution-amending legislature would violate Article 1, Paragraphs 1 and 3 of the Basic Law and the claim to respect for human dignity. The current application of Art. 102 GG would, strictly speaking, be superfluous and serve only for clarification.

“These concerns suggest that, under German constitutional law, any reintroduction of the death penalty - also apart from Article 102 of the Basic Law - before Article 1, Paragraph 1 of the Basic Law and the essential guarantee of the fundamental right to life (Article 2, Paragraph 2, Clause 1 in conjunction with Art. 19 (2) GG) could not last ... "

In the past, this view was considered controversial among constitutional lawyers, as the constitutional body had waived expressly to allow Article 102 to participate in the guarantee of eternity, so that this article was not mentioned among the fundamental rights that are unchangeable under Article 79 (3). In addition to Article 79 of the Basic Law, there are cases of constitutional law that takes precedence, such as reservation of the law and prohibition of retroactive effects ( see above ).

An explicit regulation of unconstitutional constitutional law can be found in Art. 117 GG.


In Austria , constitutional law is codified in the Federal Constitutional Law (B-VG) and also in other so-called federal constitutional laws. The jurisdiction of the Constitutional Court extends not only to simple federal law, but also to federal constitutional law. However, since a new federal constitutional law changes the content of the constitution and thus becomes part of it itself ( lex posterior derogat legi priori or lex specialis derogat legi generali ), its content cannot be unconstitutional. It is therefore common practice that simple statutory regulations declared to be unconstitutional are then passed by parliament as federal constitutional laws in order to withdraw them from content control by means of a qualified parliamentary vote.

However, federal constitutional laws can be formally unconstitutional if they came into being unconstitutional, i.e. if the production rules laid down in the constitution were (partially) not complied with. The vast majority of these generation rules are clear and therefore hardly cause any problems (see legislative procedure (Austria) for an overview). Problematic in terms of unconstitutional law is the question of whether a specific federal constitutional law or a constitutional provision represents an overall amendment to the federal constitution, since in this case a referendum would be absolutely necessary ( Art. 44 para. 3 B-VG). In such a case, the terminology of the fundamental principle violation is often used to make it clear that the unconstitutionality of a constitutional provision is not based on its contradiction to other (simple) constitutional law, but on the contact with a basic principle of the federal constitution.

On this occasion, the Constitutional Court already repealed a constitutional provision ( Section 126a of the Federal Procurement Act) as unconstitutional in 2001 , since this norm represented a serious interference with the rule of law without being legitimized by a referendum.

The original version of the Federal Constitutional Law of 1920 and all laws that are listed there as part of the constitution (e.g. the constitutional state law on the general rights of citizens ) are, however, completely withdrawn from the control of norms in the version valid at that time, since all in The constitutional generation rules only apply to constitutional amendments.

United States

In the United States of America , constitutional jurisdiction developed early on in relation to simple federal laws. A certain starting point is the Supreme Court's decision in the Marbury v Madison case . However, constitutional changes are traditionally not carried out there as a consolidating change in a concise constitutional wording, but are added as additional articles (additional articles). Some of them have effectively overridden earlier constitutional norms, such as the abolition of slavery with the XIII. , XIV. And XV. Additional articles. This may be due in part to decisions by the Supreme Court. However, the court did not intervene directly using the instrument of unconstitutional constitutional law.

Legal consequences

The legal consequences of finding unconstitutional law are dogmatically controversial.

The starting point is the rule that every unconstitutional norm is fundamentally ineffective and null and void. Exceptions to this principle, however, are cases in which the unconstitutionality of norms has been established, but they have not been declared null and void, since an unacceptable loophole would arise until the new regulation by the legislator, which is more harmful than the unconstitutionality itself.

Basically, however, it is disputed whether, in the case of unconstitutionality, the legal consequence eliminates its own cause, i.e. whether the ineffectiveness of the unconstitutional constitutional law means that it did not exist from the start ( ex tunc ) - i.e. whether there can be something like unconstitutional constitutional law or rather, it has to be eliminated through the legal technique of subsequent fiction ( ex nunc “as if from the beginning”).

Ultimately, this dogmatic problem arises with every legal consequence with effect for the past (cf. contesting legal transactions ).

In Austria, this problem is clearly answered by positive law: (Constitutional) laws are repealed as unconstitutional by the Constitutional Court, the repeal comes into force on the day of publication (if the Constitutional Court does not specify a different deadline) and is therefore binding. However, the law shall continue to apply to the facts realized before the annulment, with the exception of the specific case, unless the Constitutional Court pronounces otherwise in its annulment decision. In Austria, unconstitutional (constitutional) law is therefore fundamentally effective (and not void) and only leaves the legal framework once it has been repealed by the Constitutional Court.

See also

Web links


  1. See decision of the Federal Constitutional Court, amendments to Art. 13 Basic Law (GG) ( large eavesdropping ) with regard to human dignity , BVerfGE 109, 279 .
  2. Note: At present, the Wikipedia article Rule of Law does not correspond to this differentiation.
  3. ^ Justification in the Marbury v Madison case
  4. Cf. for example Art. 7 GG, 140 GG in conjunction with Art. 137 para. 1 WRV.
  5. BGH , NJW 1996, p. 858; Jarass / Pieroth, Basic Law for the Federal Republic of Germany: GG, Commentary , Art. 102 Rn. 1.
  6. BGH, judgment of November 16, 1995 - 5 StR 747/94, item 30 ; see. Gabriele Kett-Straub: The life imprisonment: legitimation, practice, remaining suspension and particular severity of guilt. Mohr Siebeck, Tübingen 2011, p. 17 .
  7. Roman Herzog : Death Penalty I. Legal B. Constitutional , in: Evangelisches Staatslexikon , Volume 2, 3rd Edition, Stuttgart 1987, Sp. 3615.
  8. ^ A b Georg Wilhelm : Unconstitutional constitutional law . In: ecolex . Issue 11/2001. Manz , 2001, p. 801 .
  9. ^ Richard Novak: Lebendiges Verfassungsrecht (2001) . In: Legal papers . Issue 12/2003. Verlag Österreich , 2003, p. 894 .
  10. knowledge G12 / 00, among other things by the Constitutional Court on 11 October 2001, available on the Legal Information System of the Republic of Austria (RIS).
  11. Peter Pernthaler : VfGH repeals constitutional provision for the first time . In: Legal papers . Issue 2/2002. Verlag Österreich , 2002, p. 98 .
  12. See the finding of the VfGH in the Habsburg question, VfSlg. 11.888 / 1988 .
  13. Art. 140 B-VG