Remarks on Johan van der Walt’s Concept of Liberal Democratic Law

Abstract

This article engages with Van der Walt’s concept of liberal democratic law. Firstly, it shows that his concept is significantly influenced by Hans Kelsen’s theory, mainly by Kelsen’s democratic political theory but also by Kelsen’s legal theory (insofar as the latter is considered to be related to the former). Secondly, it demonstrates that he goes also beyond Kelsen’s theory by considering necessary for the sustainability of liberal democratic law an adequate social state. Given this, I argue that there is, to an extent, a proximity to Hermann Heller’s social Rechtsstaat theory. Thirdly, it shows that – although the socio-economic level is, to an extent, considered – he leaves unexplored the rise of independent technocratic institutions in the economic governance framework of contemporary liberal democracies (the independent central banks, like the European Central Bank, being the main example). I argue that this issue needs to be explored in order to reach a realistic understanding of liberal democratic law (an understanding that Van der Walt aims at).