Symposium: Spain and the 1920 Austrian Constitution

Xabier Arzoz

National University of Distance Education

Nobody would deny the general influence of the 1920 Austrian Constitution on the 1931 Spanish Constitution (and, indirectly, on the 1978 Spanish Constitution). The reading of its text immediately suggests – and contemporaries have confirmed – that the 1931 Spanish Constitution broke with nineteenth century Spanish constitutionalism and adopted the path and main patterns of modern constitutionalism, as developed after WWI, and that it took inspiration from the 1917 Mexican Constitution, the 1919 German Constitution, and the 1920 Austrian and Czechoslovakian Constitutions.

These Constitutions were prestigious examples of state modernisation, power rationalisation, and emancipation from traditional, dynastic relationships. The German and Austrian Constitutions were, respectively, attributed to two distinguished, internationally-recognised law professors – Hugo Preuss and Hans Kelsen – while knowledge of the Mexican Constitution was disseminated throughout Spain by means of several publications, including those by Rodolfo Reyes, a Mexican constitutional scholar active in Spain.

However, no work has attempted to explore the impact of the 1920 Austrian Constitution on Spanish constitutionalism beyond the creation, in 1931, of a special constitutional jurisdiction. It is well-known that Spain was the third state in the world to establish a special constitutional court, following Austria and Czechoslovakia. That this court was inspired by the Austrian model is widely accepted in comparative constitutionalism although the exact nature of that influence has not been fully mapped out. It is mainly Kelsen’s influence on Spanish legal scholarship, and not that of the 1920 Austrian Constitution on the 1931 (or 1978) Spanish Constitution, that has attracted the attention of Spanish legal scholars. The legal and political sources of the 1931 Spanish Constitution remain relatively under-researched for several reasons, namely: its short duration and tragic end; the even shorter though eventful existence of the Spanish Constitutional Court from 1934 to 1936; the long, harsh dictatorship which followed; and the political imperatives of the transition to democracy from 1975 to 1978 and the passing of a new constitution, all of which also demanded academic attention.

The 1931 Spanish constitution-makers (as those of 1978) were rather eclectic and drew inspiration from several experiences. For Luis Jiménez de Asua, a leading member of the constitution-making assembly and distinguished criminal law professor who was later exiled to Argentina, the new Constitutional Court was partially inspired by its Austrian counterpart, but above all, took from the US Supreme Court, the Mexican individual application review, and the French conflict jurisdiction. Nevertheless, this explication is too broad.

The two main influences on the shaping of the Spanish constitutional jurisdiction were the Austrian and Mexican models. They can be seen in Article 100 of the preliminary project prepared by the Legal Consultative Commission, a group of external experts commissioned to draft a first text for discussion in Parliament. The future Court’s mission, definition, and provisional name clearly evoke its Austrian origins: “a high constitutional jurisdiction,” the “Court of Constitutional Justice.” These were expressions that had previously been made popular, among others, by Kelsen’s French student Charles Eisenmann in his book La justice constitutionnelle et la Haute Cour constitutionnelle d’Autriche (1928).

At the same time, the scope of competences of the new Court was simplified and rounded off to include judicial review of laws, protection of fundamental rights, determination of criminal responsibility of the highest positions of the executive branch and the judiciary, adjudication in conflicts and the division of competence between the state and autonomous regions and among them. Hence, the Court was to hear individual complaints for the protection of fundamental rights against any exercise of public power – even from ordinary judges and courts – when action before other authorities had proved ineffective. The notion and the terminology used to describe this function – juicio de amparo – were taken from Mexico. The Spanish Constitution imported the need for a universal guarantee system of fundamental rights; it was not established as a judicial competence, as in Mexico, but as a subsidiary legal procedure against violations by all authorities.

By contrast, Article 144 of the Austrian Constitution conferred on the Verfassungsgerichtshof only the task of protecting fundamental rights against administrative decisions. (Little has changed in this regard after the constitutional reform of 2012.) The reason for this limitation was Kelsen’s concern regarding the preservation of the independence of the judiciary. Even that limited competence was rather hidden in Article 144 at the end of a longer list, following the competences enumerated in Articles 137 (a special jurisdiction for financial claims), 138 (conflict jurisdiction), 139 and 140 (judicial review of regulations and laws), 141 (electoral jurisdiction), 142 (impeachment of the federal president and members of federal and regional governments) and 143 (criminal responsibility against aforementioned persons), and only appearing before one other competence mentioned in Art 145 (violation of international law).

Significantly, in the parliamentary draft of the Constitution, the name of the future Spanish Court was changed to its present version – the “Court of Constitutional Guarantees” – perhaps to stress its overall mission, to guarantee the supremacy of the Constitution and individuals’ fundamental rights, the Court’s second competence mentioned in Article 121 of the Constitution. In fact, the Mexican legal expression, juicio de amparo, was reformulated into the more descriptive wording, recurso de amparo de garantías individuales (legal remedy for protecting individual guarantees). This terminology was maintained in the 1978 Constitution and conveys the idea of a special legal remedy.

We may wonder why Spanish constitution-makers adopted the described modality of constitutional review, which, at that time, had only been implemented in one other state apart from Austria. Spain could have instead embraced American judicial review, which had been adopted years before in such European states as Ireland (1921, Art 16), Romania (1922, Art 103), and Greece (1927, Art 5), or simply left aside the notion of a constitutional jurisdiction as had France, Italy, the United Kingdom, etc.

Both during the constitution-making process and in the period that followed, when passing legislation on the Court – which brought further deviation from the Austrian model – or assessing its performance, there was strong opposition to the idea of a constitutional court and its operation. Even its main proponents, such as the Socialists, displayed doubts in this regard. This was due to numerous design flaws. In its short life, provisions on the Court’s functioning, composition, and selection proved to be inadequate. Based only on its own experience, and without the prestigious post-WWII examples of the German and Italian Constitutional Courts, Spain would probably have rejected the idea of a constitutional court in 1978.

The most reasonable explanation is that, in 1931, a vision similar to that of Kelsen’s prevailed in Spain though no documentation or literary references exist to this end. In Spain, as Kelsen conceived for Austria, the new Constitutional Court was considered a specific, strong, rationalised, non-political, jurisdiction-like mechanism to guarantee the unity of the state against the (unprecedented) fragmentation of legislative power. As in Austria in 1920 – and more clearly than in Czechoslovakia, with its promised but never endorsed Subcarpathian regional autonomy – in 1931, Spain transformed from a unitary to a decentralized state, becoming not a federal, but rather an (euphemistically-named) “integral state”. What matters regarding the decision to establish a constitutional court is that autonomy – including legislative power – was granted, on certain conditions, to historical regions such as Catalonia, the Basque Country, and Galicia. In fact, Catalonia, the only region to achieve autonomy before the Civil War, is the one that has caused the most serious problems for the new constitutional jurisdiction during its short life.  

This development is, perhaps, paradoxical. Kelsen was relatively well-known in Spain in 1931 though he did not have many followers among constitutional law professors. They generally adopted historically and sociologically oriented views, opposing Kelsen’s normative understanding of the legal order from a methodological perspective. Nevertheless, this did not affect the institutional legacy of this great Austrian lawyer, which can be seen in the creation of a specific body for adjudicating conflicts and defining legislative competence between the central and regional governments to preserve the unity of the state.

Xabier Arzoz is Professor of Administrative Law at the National University of Distance Education (Madrid, Spain).

Suggested citation: Xabier Arzoz, ‘Spain and the 1920 Austrian Constitution’ IACL-AIDC Blog (27 October 2020) https://blog-iacl-aidc.org/100th-anniversary-of-the-austrian-constitutional-court/2020/10/27/spain-and-the-1920-austrian-constitution