The Weimar Theory of Constitutional Law - Hegel in Legal Guise
This text is a preview of History of the Reception of Hegel, volume I, to be published in 2026 by Reflexivity Press.
Alongside the philosophical reception this chapter has traced so far, a second reception runs through the same years - one usually passed over in the history of philosophy, yet more important for the impact history of the Philosophy of Right than much of the academic material: the German constitutional law theory of the Weimar Republic. Here Hegel is not commented on, but used - by jurists who must interpret a constitution and need a concept of the state to do so.
The constellation is instructive here because it shows how far the same template can carry. Three positions confront one another, and all three appeal to Hegel or distance themselves from him to varying degrees.
Hans Kelsen - The Purification of Law from Spirit
Hans Kelsen (1881-1973) develops the sharpest counter-position with his Pure Theory of Law.[1] For him, law is a system of norms that is grounded exclusively in norms; the validity of a norm follows from a higher one, up to the presupposed basic norm. Everything else - ethical life, the spirit of the people, the purpose of the state - is metaphysics and unusable in legal science. The state is nothing other than the legal order itself, thought of as personified.
For the reception of Hegel, Kelsen is complete negation: what in Hegel is called the reality of the ethical idea is here a point of attribution. The position is consistent, and its strength lies in making abuse more difficult - whoever recognizes no purpose of the state can also assert none. Its weakness shows itself in 1933: a legal theory that can say nothing about the content of law can also say nothing against it.
Rudolf Smend - The State as a Process of Integration
Rudolf Smend (1882-1975) takes the opposite path.[2] His basic idea: the state is not an institution that simply exists, but a process - it consists in continually producing itself. Smend calls this integration and distinguishes three forms: personal (through representatives, in whom belonging is fixed), functional (through procedures such as elections and debates, in which community is enacted), and material (through symbols, values, and goals, in which it recognizes itself).
The reference to Hegel is direct here, and Smend does not hide it: the state is reality by enacting itself, and it lives from a substance it does not itself posit. Whoever reads basic rights merely as defensive rights therefore misses their function - they are at the same time an expression of the value system in which a community recognizes itself.
The flip side is its vulnerability. A theory that conceives the state from integration can hardly say when integration is too much; and Smend’s proximity to the anti-parliamentary currents of the late Weimar period is not merely misunderstanding. After 1945 it is the same theory that enters the jurisprudence of the Federal Constitutional Court (Germany’s highest court for constitutional matters) as the doctrine of an order of values.
Hermann Heller - The Social Question in the Theory of the State
Hermann Heller (1891-1933) is, among the three, the one whose approach is most fruitful for continuing Hegel’s line of questioning - and the one who had the least influence, because he had to emigrate in 1933 and died that same year in Madrid.[3]
Heller’s Staatslehre (Theory of the State) defines the state as a unity of effect: not as a norm (against Kelsen), not as a mere process of integration (against Smend), but as an organized unity of decision and effect that must assert itself in a social field. The decisive move is that he does not externalize the social question - on its economic origin, see Die Logik der Eroberung (in preparation) and Die Logik der Eroberung (in preparation): a state whose legal order leaves economic power untouched is not a state under the rule of law, but the façade of one. From this follows his concept of the social state under the rule of law (sozialer Rechtsstaat), which entered the Basic Law (Germany’s constitution) after 1945.
For the reception of Hegel, this is the most productive turn of the Weimar period. Heller takes up Hegel’s insight that civil society cannot generate universality out of itself and that the state must answer for it - and draws the conclusion that Hegel did not draw: that the state must then also be able to intervene in the property order, because otherwise it only asserts universality without realizing it. Heller’s dispute with Carl Schmitt over the concept of the political is to be read from this vantage point: where Schmitt reduces the political to the distinction between friend and enemy, Heller insists that it is a matter of organizing a life in common.
The Systematic Significance
This constellation matters for the history of reception for two reasons.
First, it shows that Hegel’s concept of the state does not work in only one direction. From the same template one can derive Smend’s theory of integration and Heller’s social state under the rule of law - and, in Schmitt, a position that conceives the state from the state of exception. Whoever asks whether Hegel’s theory of the state is authoritarian gets the more precise answer from this constellation: it is indeterminate enough to support several outcomes, and the decision is made not by Hegel but by those who use him.
Second, the legal reception is the one that has had practical effect. What has remained alive of Hegel’s philosophy of right in the Federal Republic of Germany stands less in philosophical commentaries than in two formulas of constitutional law: the order of values, which goes back to Smend, and the social state under the rule of law, which goes back to Heller. Both are receptions of Hegel without being called that.
Hans Kelsen: Reine Rechtslehre, Leipzig/Vienna: Deuticke, 1934; expanded 2nd ed. Vienna: Deuticke, 1960. See also his: Der soziologische und der juristische Staatsbegriff, Tübingen: Mohr, 1922. ↩︎
Rudolf Smend: Verfassung und Verfassungsrecht, Munich/Leipzig: Duncker & Humblot, 1928. On its afterlife in jurisprudence, see the value-order case law of the Federal Constitutional Court since the Lüth ruling (BVerfGE 7, 198 - 1958). ↩︎
Hermann Heller: Staatslehre, ed. Gerhart Niemeyer, Leiden: Sijthoff, 1934 (posthumous). On the dispute with Schmitt, see his “Politische Demokratie und soziale Homogenität” (1928) and “Rechtsstaat oder Diktatur?” (1930), both in: Gesammelte Schriften, 3 vols., Leiden: Sijthoff, 1971. ↩︎