Democracy and the Rule of Law: Lessons from the Weimar Republic

Session Submission Type: Full Paper Panel

Session Description

This panel explores the relevance of Weimar-era political thought for understanding and defending democracy and the rule of law in the present. Drawing on the work of political thinkers and jurists such as Otto Kirchheimer, Hermann Heller, Carl Schmitt, and Hans Kelsen, it examines the theoretical foundations and practical implications of modern constitutional democracy. Due in part to the newness of the Weimar constitution in Germany but also to the upheavals caused by the First World War and especially the rise of fascism in Italy and Bolshevism in Russia, the Weimar period was characterized by intense and deep disagreement and debate about the nature, virtues, and limits of constitutional democracy. Despite obvious differences between the early twentieth century and the early twenty-first century, both periods have seen the rise of anti-democratic movements and parties as well as the persistence, if not deepening, of social inequalities. Indeed, many of the same features of democracy that were the subject of great debate in the Weimar Republic have become subjects of dispute in contemporary liberal democracies. As such, political scientists in the current crisis not only can but in fact would do well to learn from the most astute observers and penetrating analysts of the crisis of Weimar democracy.

Accordingly, this panel turns to the conceptual resources of Weimar legal and political theory with a view to contemporary challenges to democratic sovereignty and the rule of law. Anna Lukina's paper on Kelsen and Schmitt investigates whether the two antipodes of Weimar-era jurisprudence might not offer complementary accounts of the relationship between law and the state. To this end, she proposes a two-level conceptual scheme to synthesize the insights of the two theorists. Anthoula Malkopoulou's paper examines Hermann Heller's social theory of democratic self-defense. She places Heller's approach in dialogue with the contemporary theories of democratic defense of Mounk, Näsström, Gerbaudo, and Mouffe. Joseph Clarkson's paper explores the relationship between Hermann Heller's theoretical account of state sovereignty and his practical defense of democratic sovereignty. In so doing, he sheds new light on the relationship between theory and practice as understood by Hermann Heller. Benjamin A. Schupmann's paper turns to the Frankfurt school jurist Otto Kirchheimer's discussion of political rights restrictions to gain insight on the practical paradox of militant democracy. He shows that if a threat can be legally identified at an early stage, the rapid deployment of political rights restrictions can, as it were, head off the paradox of militant democracy.

Sub Unit

• Division 2: Foundations of Political Theory

Individual Presentations

• Beyond Political Decisionism and Legal Formalism - Anna Lukina, University of Cambridge

• Hermann Heller and the Social Approach to Democratic Defense - Anthoula Malkopoulou, Uppsala University

• Hermann Heller and the "Polemical Principle" of Democracy - Joseph Clarkson, University of Notre Dame

• Otto Kirchheimer and Militant Democracy - Benjamin A. Schupmann, Yale-NUS College

Chair

• Eduardo Schmidt Passos Arizona State University

Discussants

• Loren Reinoso Yale University

• Evelyn M. Behling University of Notre Dame