Abstract

At Austrian universities, the problem of ‘Precedence of Constitution’ is usually taught within the framework of the ‘theory of the hierarchical structure of the legal order’, an essential part of the so-called ‘Pure Theory of Law.’ Whilst the famous jurist Hans Kelsen was the founder of the Pure Theory, the ‘theory of the hierarchical structure’ has been introduced by Kelsen’s disciple Adolf J. Merkl in 1918 and is accepted also by those who do not follow Kelsen’s Pure Theory. According to the Pure Theory, the basis of the validity of a norm can only be another norm, which can be seen as the ‘higher’ norm. The legal order can be seen as a structure of ‘higher’ and ‘lower’ norms, and within the legal order of a certain state, its constitution is the highest norm of all—the ‘paramount law’, as has been said by US Supreme Court in its famous case Marbury v. Madison, in 1803. The ‘theory of the hierarchical structure’ also gives the justification for constitutional justice: the constitutional court reviews whether the legislator has remained within the framework of the constitution.