The Judiciary and the Legacy of Schmitt, Kelsen, and Heller for Contemporary Democracies

Abstract

This article examines the enduring relevance of Carl Schmitt, Hans Kelsen, and Hermann Heller’s contributions on political power, constitutional adjudication, and democratic legitimacy during institutional crises. Using the Weimar Republic as a historical laboratory, it explores how these three theoretical perspectives, despite being rivals, continue to inform contemporary dilemmas faced by democracies under threat from authoritarian populisms, intense polarization, and institutional weakening. It argues that Kelsen's normativist model, even with its formal insufficiencies, constitutes a more solid barrier against the regression of democracy than Schmitt's decisionist conception, whose rhetorical allure continues to influence authoritarian models disguised as legality. Empirical analysis of experiences in the United States, Brazil, Hungary, and El Salvador reveals that the exception, when converted into ordinary government practice, compromises the foundations of constitutionalism. Heller’s alternative, based on a social theory of the Constitution, although conceptually promising, encounters concrete obstacles in contexts with reduced civic culture and low institutional density. The methodology combines hermeneutic interpretation of primary theoretical sources with a comparative study of relevant jurisprudence, aiming to identify parameters capable of guiding institutional responses compatible with the protection of the constitutional pact.