Constitutional Law in the social Rechtsstaat

On a fundamental concept of Heller's state theory

Abstract

The article analyzes the notion of constitutional law in the social Rechtsstaat based on a conference by Hermann Heller titled “The Concept of Law in the Constitution of the Reich”, which was delivered in 1927 at the congress of the Association of German Professors of Legal State Theory. In that conference, Heller presents a sharp critique of the political implications of the doctrine that distinguishes a formal from a material concept of law. Therefore, the article aims to describe the foundations of this doctrine and reconstruct its theoretical and historical background. Additionally, it examines Heller's critique of that doctrine and his advocacy for a unified concept of law, which corresponds to the constitutional concept of parliamentary law. Additionally, attention is paid to the debate sparked by the conference between Heller and Kelsen. Lastly, the potentials of this conception are analyzed to consider the connection between democracy and social theory in the social Rechtsstaat.