L’emergenza giuridica e la pandemia dinanzi alla Costituzione e al giudice costituzionale in Austria

Abstract

: Statutory and regulatory norms taken in order to master the challenges set forth by the outbreak of the Covid-pandemic set legal systems under stress as advanced constitutional democracies have developed a rigorously organized structures of legal sources and respective instruments of review. This is particularly relevant in the case of Austria with an analytic-positivist tradition of legal scholarship and a strong formal conception of the rule of law. The outbreak of the pandemic has challenged many traditional assumptions both in structure and substance: fundamental rights, especially of freedom of movement, were drastically limited and often on a regulatory rather than statutory basis. The constitutional Court developed an increasingly flexible case-law, drawing mainly on the principle of proportionality in order to conciliate requirements of public health with constitutionally guarantied freedoms. This general tendency in pandemic case law softens the sterner principles of rigorous jurisprudence.