Several distinct social and political sectors were represented in the constituent process leading to the Portuguese Constitution, resulting in a negotiated text that tried to balance conflicting interests, establishing a specific and coherent equilibrium between majority and minorities in the different areas of collective life. From that balance, a few original constitutional features emerged; they constitute the backbone of national constitutional identity: a ‘mixed’ form of government with a dominant parliament, a very strong fundamental rights catalogue, including many social and economic rights, a central place given to work and worker’s rights.The European integration process and the last decades’ political and social changes pose some challenges to national constitutions and the Portuguese is not an exception. My paper will reflect upon the path to balance between past and present, openness and the safeguarding of national fundamental consensus.
The first part of this paper will analyze the social Rechtsstaat strategy, which was propounded during Weimar by Heller and Neumann. I will present their argument that a concept of social freedom could be reached through the Weimar parliamentary state and the Weimar constitution. The second part will demonstrate Neumann’s critique to his former strategy and to the overall stance of the Weimar SPD. Neumann’s critique could be seen in his works between 1933 and 1945. Moreover, I will delve into Kirchheimer’s critique to the Social Rechtsstaat strategy in his works during Weimar, in view also of the Weimar historical context. Through this juxtaposition, I will examine whether the Social Rechtsstaat strategy could provide with an efficient defence of the Weimar Constitution and of the Weimar Republic in view of the contradiction that was played out in Weimar between political democracy and capitalist economy.
For Otto Kirchheimer (1905-1965), Carl Schmitt’s favorite socialist doctoral student, the catastrophic failure of Weimar parliamentarianism was not only a moment of profound disillusionment, but also a moment of democratic realignment and recalibration. His early writings provide an astute observation and analysis of the Weimar Constitution’s rise and decline. In my paper, I shall revisit Kirchheimer’s long neglected Weimar writings and discuss the relevance of his work for present and future “Weimar moments“. I shall also take a closer look on 1968’s Kirchheimer-Renaissance in Germany, prompted by the 1965 German edition of his “Political Justice: The Use of Legal Procedures for Political Ends” (Princeton 1961), a book which inspired intense interest in Kirchheimer’s Weimar years in the ranks of the critical left, but also among more mainstream protagonists of legal academia and within political science.
The presentation will address first, briefly, how Italian legal culture approached the Weimar Model over the 20s and 30s, focusing then on what substantive influence it has had on the Italian Constitution. The Ministry for the constituent, as a matter of fact, published in 1946 a series of documents called “Text and Constitutional Documents” and one of them was the Weimar Constitution. The debates of the constituent assembly therefore reveal the circulation of ideas and shed light on current constitutional developments.