This presentation will introduce the framework paper of the project. It describes the specific context which gave rise to the emergence of the Weimar constitutional paradigm characterized by the democratic, social, and open state of law; it will identify trajectories for the spread of this constitutional paradigm, both in a positive and a negative sense, and sketch out how it was “metabolized” in various legal orders up until being confronted with the neoliberal constitutional paradigm.
My contribution will start with shortly analysing continuity and change in the status of international law under the Weimar Constitution as compared to its forerunner, the ‘Bismarck Constitution’. In the main part of the paper, I will explore the tension between international law and mass democracy. Here, I will keep a focus on the special situation of a newly established order which seeks international trust and a widespread public distrust towards Versailles and international and foreign influences. International treaties of those days, in particular the Treaty of Versailles, and membership in international organisations such as the League of Nations and, in particular, the International Labor Organisation had significant implications for domestic economic and social orders. In that sense, international law, to an unknown extent, reigned into the domestic law of (democratic) states, creating unprecedented tensions between international negotiation processes and domestic audiences.
Latin American Social Constitutionalism started at the beginning of the 20th century with the 1917 Mexican Constitution, only two years before the Weimar Constitution recognized the role of social rights in a democratic state. As opposed to the Weimar Constitution, and despite the influence of German legal doctrine, most of the Latin American new or reformed constitutions understand social rights not only as purely objective, programmatic principles, but as affording direct, legally enforceable access to services. While many reformed constitutions follow the “German” concept of Social State, they assign a central role to social rights as a requirement for a life in dignity. At the same time, there are doubts as to whether social rights exist in a subjective sense. That follows from the discrepancy in many Latin American countries between the endeavour to achieve a life in dignity and the resources actually available to large parts of the population.
There are at least two potential Weimar Moments in Polish constitutional history. The constitution of 1921 faced the particular task of rebuilding a nation. For that purpose, it featured a strong parliamentary component. However, it lasted only for five years before constitutions with greater presidential powers replaced it. The 1990s brought the desire to regain independence and democracy while keeping and expanding social equality. Transformative constitution of the 1997. Sought international ascertainment in European integration. However, this desire, together with financial vulnerability, exposed it to the influence of neoliberal constitutionalism, leading to insoluble contradictions. The paper will analyse to what extent the current constitutional crisis in Poland has been framed by them.