The Austrian path to the constitution of 1 May 1934 – An application of the paradigm of ‘Militant Democracy’ just avant la lettre!?

This paper seeks to compare the academic model of ‘militant democracy’ advocated in 1937 by Karl Loewenstein with the real political developments that had taken place only a few years before in Austria, under the responsibility of Engelbert Dollfuß. It further aims to to reveal the ‘missing link' between the actions (mere plans included) of - in particular - Catholic political leaders in Germany 1931/1933 (Heinrich Brüning, Franz v. Papen, Heinrich Held), directed at least from 1932 onwards in particular against the rise of the National Socialist movement, well-known both to Loewenstein and Dollfuß. It is argued that Loewenstein's model contains serious theoretical flaws and paves, at least when taken literally, the way to dangerous exaggerations, while the approach of the Dollfuß government was far more balanced. Any assessment of Dollfuß’ measures that – as is still the case in Austria – only focuses on the breach of the constitution then in force (the main document being the Bundes-Verfassungsgesetz, B-VG) as such, without offering a better alternative to prevent the National Socialist danger is unconvincing, not only from a moral, but also, and in particular, from a legal perspective.