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DOI: http://dx.doi.org/10.20534/AJH-16-9.10-85-88
Gupi Marsidi, Europian University of Tirana, PhD (c) in Law, the Faculty of Law E-mail: [email protected]
Liberal Constitutionalism
Abstract: Constitutionalism is the modern philosophy of constitutive democracy and the reason for this conclusion has been analysed in this article taking in to account that it is the philosophy that protect the minority in the system of political constitutional democracy. It has been described constitutionalism and the importance of this concept in state formation. As the state is built upon a large social deal, the social contract is treated widely considering that is the main state forming thesis.
Keywords: Constitutionalism, Constitution, Political Liberalism, Economic Liberalism, Philosophy, Constitutional Justice, Social Contract, Democracy.
Generally it is accepted that there are two ba- or the other. Depending on the criteria which are
sic models of constitutional justice; the American taken in to account, classification can vary to the
and European models. In reality the classification is point that doubts the binome of these models, ac-
somehow difficult because of the different combina- cepting a third model called mix. No classification is
tion of features of the different systems in one model able to completely find the real distinctions that exist
between different models of constitutional justice in the world, the classification by its nature is reductive because of their common feature that is why the details necessary escapes from our view.
If as a criteria, is considered the organ applying constitutional justice, than we have the models mentioned above (American and European). So on, in some countries the control of constituency it has been trusted to the common courts, in others there is a special court that stands outside the ordinary juridical power.
This traditional classification, does not retain any studying values, because giving it a closer look, it represents only one of many aspects of constitutional justice, exactly that of the control of constitutionally rules of rights, generally of laws. So the model is simply and precisely the procedure ofhow constitutional justice is made. In both models the content is the same, that of modern doctrine of constitutional justice, that of Constitutionalism [1, 41-42].
Constitutionalism must be, as it has always been, a rich ground for philosophical research, as it is the doctrine that guarantees the legitimacy of the government activity. Modern government it is not only power, but even legitimacy, that is why constitutionalism is the wide reasoning that is made to the internal philosophy of a state. It is at the same time the philosophy of a political system that is built up and relies on constitution. There is no doubt that constitutionalism is the space of rights and their guarantee, the absence of which would had not allowed democracy to be an acceptable political system.
There are a lot of forces to be considered as compounding elements in retaining democracy and modern state is distinguished by the rationalization to find appropriate ways to protect freedom and basic human rights.
Modern times or modernity in this sense begins, without a doubt, with the juridical consolidation of freedom and human rights and the American constitution was the first juridical act that established the first modern Democratic Republic. The political system derived from the Convention of Philadelphia, is the first modern system to rely on a written constitution, because it was not a political system that granted social equilibrium by force, but it guaran-
teed individual freedom through constitution. These politic systems it cannot be anything else than a well-defined Constitutional Democracy [2, 16-17].
The system itself being granted by a Constitution, gives philosophical space to be argued with the thesis of Constitutionalism, because what must be granted and protected on one hand is sovereignty in the other individual rights and freedom. And that is not all, because within the constitutional moment stands the issue of rights, which contains all its philosophical and practical character of constitutional guarantee. We are in front of a political system as well as its philosophy; all this institutional political system would have no value if not taking on consideration that beforehand all that the constitution contains is the need to secure justice. At the end only the sense of social justice, conclude its goal within constitution and constitutionalism. How are granted and protected this rights? This is constitutionalism.
In modern times constitutionalism, is the philosophy that summarize authority, liberalism and democracy. It cannot be understand or stand apart from them because it has been built as their function. It is the philosophy ofprotecting ones rights and autonomy.
Liberalism is a political doctrine that considers abusing with power, in the same way as individual freedom, as focal issues in governing. For the liberals power is a has a great importance in abusive governments as well as a method to abuse by the rich, kings, aristocrat and all that perceive it as an internal authority and privilege. Abusive power can become the activity of a group of people that has the means or tendency to abusive actions. Historically liberalism has shown two faces. Later it divided in two directions, the first was a political doctrine that underlined the importance of the limitation of the power of governments, the second relayed in the philosophy oflife stressing out the importance of individual autonomy, imagination and insight.
Contemporary liberalism represents different things for the American and European. In the U. S.A, liberalism is followed by a state policy of wellbeing specified in the New Deal of the democrat president Franklin Roosevelt [3, 57-59], but in Europe the liberals generally are more conservators in their political and economic views.
Liberalism derives from two features of western culture, the first is the concern for individuality the second is political and economic life, a process in which has been institutionalized the competition in the political spheres, the electoral concept, as well in the economy of free trade [3, 57-59].
From the historical point of view there is politic and economic liberalism. This big schism created political liberalism, and as a consequence the liberal political system.
In contrast with political liberalism, the economic liberalism, developed somehow in a different way. It has been analyzed and understood in a retrospective way. One specific is that it rose outside the agenda of any political party or intellectual movement.
In function of the two aspect described above the political and economic liberalism, it can be concluded that there is an individual and collective aspect to this matter. The individual autonomy is secured in a collective way, and the collective wellbeing it comes as a result of intense individual activities.
It can be concluded by this that the issue of individual autonomy can be resolved only collectively, and the issue of collective wellbeing can be resolved gradually by the collective efforts of the individual.
The focal point of this issue consists of a question: what force should balance these two aspects of liberalism? In the modern state it is the constitution and constitutionalism that equilibrates them. It is by the authority of the constitution and the function that it has as a guarantee of rights that it is possible to achieve liberal democracy [4, 56-58].
Conclusions:
It is constitutional control, that by monitoring and limiting the governments, made possible political freedom and human rights, and by excluding the state in directing the economy it made possible the wellbeing derived from free trade. Free trade first of all is law based on constitutional values. Economical rights of free trade, supported by constitutionalism as a protector, secured the equal opportunities for all. Constitutionalism protect from a juridical point against any violation that can come from a majority that try to undermine rights or political freedom.
So it is necessary that liberalism and liberal democracy to be translated in a constitutional form, exactly so to protect this, the concept of constitutionalism was created. Democracy alone would not been able to protect these values without constitutionalism. Because democracy is an aspect of the majority, while constitutionalism on the contrary belongs to the minority, so it is a balancing power.
One belongs to the majority by vote, the other to the minority as the constitutional rights protected by constitution and sanctioned by the Supreme Court in the U. S.A. (by the constitutional courts in Europe).
One of the oldest and honorific traditions in political philosophy sees the constitution as a metaphor for a contract. So there are two forces that sustain the constitution. The first is represented as a descriptive idea that account for the creation of constitution as a social contract. The second is a normative force that uses the theory of contracts analyzing social institutions, giving them a justification within normality.
So it can be said that if some society has accepted a deal to build a constitution, everyone in that society is obliged to respect this contract. Is the same as two individuals that are obliged to respect a private contract that have previously agreed [5, 17-25].
Based on this logic it can be supposed that there is even a political obligation to respect this deals.
The next question that rises is what the difference between a civil contract and a constitution is? Facing this contract, it is clear that constitution plays a key role in becoming the pillar low that rationally protect the freedom of society and the individual rights. It gives the institutional space for the political life to be organized.
Giving the fact that political life is institutionalized by the constitution to work with a new deal every four years; this organization essentially is a contractual. So the new government chosen by the people is obliged to act according to this four year deal. But always within the constitutional norms, which limits it's arbitrary.
References:
1. Kristaq Traja. Drejtesia Kushtetuese, Tirane: Shtepia Botuese Luarasi, - 2000.
2. Spartak Ngjela. Pese Leksione mbi Konstitucionalizmin, Tirane: UET Press, - 2015.
3. Russell Hardin. Liberalism, Constitutionalism and Democracy, Oxford: Oxford University Press, - 1999.
4. Michelman I. Frank. "Constitutional Authorship" in Constitutionalism: Philosophical Foundations, Larry Alexander ed., Cambridge University Press, - 1998.
5. Richard S. Kay. "American Constitutionalism" in Constitutionalism: Philosophical Foundations, Larry Alexander ed., Cambridge University Press, - 1998.
