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Two of the central terms of Austrian Monument Protection Law (DMSG) are the terms 'archaeological monument' (Bodendenkmal) and 'monument' (Denkmal). Both are what is called 'undefined' legal terms, which means that their actual meaning is not immediately apparent but must be found by those applying the law by interpreting criteria determined in their definition on a case by case basis. The term Bodendenkmal is defined as any object found beneath the surface of the earth or water which could be a Denkmal. The term Denkmal in turn is defined as any man-made object of such historic, artistic or other cultural significance that its preservation is in the public interest. Whether an object is a Denkmal must be determined by means of expert witness statements as to whether its significance according to predominant academic opinion is of such a nature. Such a determination can, obviously, only be made once an object has been discovered. It is, however, entirely impossible while the object is still hidden in earth or water.
Yet, the provisions for the protection of Bodendenkmale in the law need to be applied independently by ordinary citizens, not just after they have discovered a find, but also before they intend to search for objects, since according to the Austrian National Heritage Agency (BDA), any such search requires a permit according to § 11 (1) DMSG if the object searched for is a Bodendenkmal. Yet, neither has it ever published any criteria that would allow the ordinary citizen to know in advance of whether any object he might wish to search for is a Bodendenkmal, nor can such criteria be determined from previous decisions by the BDA as to what kinds of finds could be Denkmale and thus are Bodendenkmale. This is not only because its decisions are not published, but also because - in the 95 years it now has been applying the DMSG, which was first passed in 1923 - it has never actually scheduled any portable object found anywhere in Austria under the surface of the earth or water.
This, however, means that the term Bodendenkmale is insufficiently defined to be compatible with the Austrian constitutional principle of the sufficient determination of the law, which is necessary for citizens to have legal certainty. As a result, all legal provisions in the DMSG specifically concerned with the protection of the archaeological heritage are necessarily inapplicable, leaving archaeology with virtually no legal protection whatsoever.


  • ARCHAEOLOGY, Heritage, Heritage law, LAW
Original languageGerman
Media of outputScience blog
Publication statusPublished - 24 Feb 2018

Publication series

NameArchäologische Denkmalpflege
ISSN (Print)2516-4309

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