1. GENERAL INFORMATION ON THE LEGAL STANDARD

From a legal positivist point of view (cf. 3. Wissens-Schnitzerl), a „legal norm“ is a norm of positive law (cf. 2. Wissens-Schnitzerl). It stipulates that someone should do or refrain from doing something. It is therefore referred to as an „order to do“ („Thou shalt ...“; „Thou shalt not ...“). This part of a legal norm is also called the „facts“ or „commandment“. As a rule, a „legal consequence“ or a „sanction“ is linked to the offence - e.g. a fine or imprisonment (exception: „lex imperfecta“; cf. point 4.4.). This legal consequence may be enforced by means of state force („state monopoly on the use of force“).

The following types of legal norms exist:

a. Mandatory norm: This legal norm regulates a specific action or omission;

b. Prohibition norm: This legal norm stipulates that certain behaviour is prohibited;

c. Permission norm: This legal norm stipulates that certain behaviour is permitted;

d. Authorising norm: This legal norm authorises certain behaviour.

Legal norms determine how a society - as the sum of those subject to the law - should ideally behave.

Now it can happen that those subject to the law behave inappropriately or unacceptably, but this behaviour does not violate any legal norm. If the state recognises that such behaviour („being“) is not desirable for society, it can define an „ought“ in response - a legal norm therefore often also has the character of a „response“: a legislator reacts to a given situation. This does not necessarily have to be about undesirable behaviour; sometimes there is simply no regulation, although social or technical developments show that such a regulation would be necessary.

2. WHO IS AUTHORISED („COMPETENT“) TO ENACT LEGAL NORMS?

In Austria, the Federal Constitutional Law („B-VG“) regulates who is authorised to enact legal norms. The B-VG specifies the sources of law (in particular laws, ordinances, decisions, judgements) and who may issue them. Legislation is divided between the federal legislature (National Council + Federal Council) and the provincial legislatures (provincial parliaments), e.g. through the „distribution of competences“ of Art. 10 to 15 B-VG.

3. CUSTOMER

In order for legal norms to be complied with, those subject to the law must have the opportunity to become aware of them. In Austria, this is done by means of promulgation. Art. 49 para. 1 B-VG regulates the following:

„Federal laws shall be promulgated by the Federal Chancellor in the Federal Law Gazette.“

There is also a corresponding regulation for provincial laws (Art 97 para 1 B-VG):

„A provincial law must be passed by the provincial parliament, notarised and countersigned in accordance with the provisions of the provincial constitution and promulgated by the provincial governor in the provincial gazette.“

A federal law must therefore be published in the Federal Law Gazette, a provincial law in the provincial law gazette of the respective province. Publication of laws, e.g. in the most widely read newspaper in Austria, is therefore not sufficient. A legal norm is only „valid“ if it has been promulgated accordingly - it should be observed by those subject to the law.

4. EXAMPLES

4.1 Facts and legal consequences

The following example shows how a standard can be divided into an offence and a legal consequence.

Section 127 StGB (BGBl 60/1974 as amended by BGBl I 50/2025) regulates the following under the title „Theft“:

„Anyone who takes another person's movable property with the intention of unlawfully enriching themselves or a third party through its appropriation shall be liable to a custodial sentence of up to six months or a monetary penalty of up to 360 daily rates.“

Facts of the case: „Anyone who takes another person's movable property with the intention of unlawfully enriching himself or a third party through its appropriation ...“.

Legal consequence: „… shall be punished with imprisonment of up to six months or a fine of up to 360 daily rates.“

4.2 Types of legal norms

The following examples illustrate the different types of legal norms:

a. Commandment standard

§ Section 38 (5) StVO (Federal Law Gazette 159/1960 as amended by Federal Law Gazette I 52/2024): „A red light is a sign for ‚stop‘. At this sign, the drivers of vehicles must stop at the points specified in paragraph 1, notwithstanding the provisions of paragraph 7 and § 53 no. 10a.“

b. Prohibition standard

§ Section 102 (3) fifth sentence of the Motor Vehicle Act (Federal Law Gazette 267/1967 as amended by Federal Law Gazette I 50/2025): „While driving, the driver is prohibited from making calls without using a hands-free device and from using the mobile phone in any other way, except as a navigation system, provided it is mounted inside the vehicle.“

c. Authorisation standard

§ Section 4 (1) Opening Hours Act 2003 (Federal Law Gazette I 48/2003 as amended by Federal Law Gazette I 62/2007): „The sales outlets (§ 1) may be kept open from 6 a.m. to 9 p.m. on Mondays to Fridays and from 6 a.m. to 6 p.m. on Saturdays, unless otherwise stipulated in the following provisions.“

d. Authorisation standard

Art 18 B-VG: „Each administrative authority may issue ordinances on the basis of the laws within its sphere of activity“.

4.3 Current example of a legal norm with an answering character

The previous home office regulation was extended on 1 January 2025. Section 2 of the „Labour Contract Law Adjustment Act - AVRAG“ (BGB 459/1993 as amended by BGBl I 47/2025) stipulates that employees may also work at locations of their own choosing outside of their home (e.g. coworking spaces) be able to work. Such „teleworking“ is only permitted by written agreement between employer and employee - there is no entitlement or obligation.

4.4 Lex imperfecta

§ 68 para 6 StVO: „Children under the age of 12 must use a crash helmet as intended when cycling, when being transported in a bicycle trailer and when being carried on a bicycle. ... Anyone who supervises a child while cycling, carries them on a bicycle or transports them in a bicycle trailer must ensure that the child uses the helmet as intended. In the event of a traffic accident, failure to wear a helmet does not constitute contributory negligence within the meaning of Section 1304 of the General Civil Code, JGS No. 946/1811, for the consequences of the accident.“

Disregarding the obligation to wear a helmet for children up to the age of 12 does not, exceptionally, result in a penalty. There is no corresponding „sanction section“ in the StVO.

5. TO PUT IT INTO A NUTSHELL

A legal norm basically consists of a mandatory part/offence („Thou shalt ...“) and a sanction part/legal consequence (e.g. fine, imprisonment). A distinction is made between mandatory norms, prohibitive norms, permissive norms and authorising norms. The sum of the legal norms forms the legal system of a state.

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