Matthias Goldmann (Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt; EBS Universität für Wirtschaft und Recht; Leibniz Institute for Financial Research SAFE) & Agustín José Menéndez (Universidad de León) have posted Weimar Moments: Transformations of the Democratic, Social, and Open State of Law on SSRN. Here is the abstract:
This paper argues that one should understand the adoption of the Weimar Constitution not only as a decisive constitutional moment on its own, but as the emergence of a particular constitutional paradigm that reappears in constitutional moments in other countries and at other times, mostly in the postwar period. The reason for the paradigmatic character of the Weimar constitution lies not merely in the worldwide reception of German interwar scholarship, but at least as much in the fact that the Weimar constitution provided answers to the specific epistemic, social, democratic, and security challenges faced by industrial society at the time. On this basis we reconstruct the Weimar constitutional paradigm, which one might summarize as the regulatory ideal of the Democratic, Social and Open State of Law. It assigned to constitutional law a decisive role for societal transformation and should therefore be considered as the historically first version of transformative constitutionalism. The paper sketches out with a necessarily broad brush how the Weimar constitutional paradigm created fault lines in subsequent constitutional practice that prompted its metabolization. Our analysis suggests that the societal forces triggering and deepening the crises afflicting Weimar-type constitutions are undermining the specific idea of constitutional law emerging during Weimar Moments by using public law as an instrument against itself. The current constitutional crisis in Europe and many other parts of the supposedly democratic world therefore requires not only strategies for political communication and institution building, but a rethinking of the very idea of public law.
