Buratti's Book Summary - 3 Chapters PDF

CHAPTER 1- THE FORGE OF CONSTITUTIONALISM 1.1- Constitutionalism: a definition Constitutionalism refers to the legal and political doctrine that was born in Great Britain in 17th century. It then wide spread towards north America and western Europe, becoming the leading ideology during the three m...

CHAPTER 1- THE FORGE OF CONSTITUTIONALISM 1.1- Constitutionalism: a definition Constitutionalism refers to the legal and political doctrine that was born in Great Britain in 17th century. It then wide spread towards north America and western Europe, becoming the leading ideology during the three modern revolutions: the glorious revolution (England, 1689), the American revolution (America 1776), French Revolution (France 1789, but it had huge consequences over all Europe). Constitutionalism is the legal and political aspect of the economical theory of liberalism. In fact, constitutionalism is opposite to absolutism and it was born with the goal of limiting political power in the context of the Ancient Regime where a new social class was gaining more and more importance: the bourgeoisie. In orde to limit political power, constitutionalism aimed at: a written constitution (which had to act as a superior paramount law) Separation of power Protecting individual rights Furthermore, in line with liberalism, constitutionalism believed in the etat de droit (a French heritage), but it also believed in the concept of the rule of law. In conclusion, political power shouldn’t depend on the arbitrary will of the sovereign, but rather must follow established rules. The hunt of constitutionalism contained in itself the germs of democracy. On the base that power derives from the consent of people and it is delegated to institutions representatives of those people (concept of popular sovereignty), constitutionalism also proposed demands for political empowerment, social justice and legal equality for the new emerging class of the bourgeoisie. 1.2- The contribution of Ancient Constitutionalism Constitutionalism places its roots in the so-called ancient constitutionalism. In order to find the first appearance of this doctrine, we must go back to ancient Greece, where philosophers, in the difficult context of polis, reflected on the best form of government. They found their answers in the theory of separation of powers. However, in order to find the germs of the idea of a superior paramount law it is necessary to wait for the Hellenistic age, but most of all this concept was developed thanks to roman and Christian philosophy. This idea of a superior law is called jusnaturalism, which refers to the existence of a natural, rational limit to the law of men. In Cicero’s De Republica, we find a precise explanation of the bounds to the law of men represented by the law of nature. In fact, he states the existence of a law valid in all parts of the world at all times, and the master of the idea of this law is God, who is at the same time its executor. In the Christin philosophy, which developed when they were a persecuted minority, this idea of a natural law , based on the will of God, represented the main constraint to the doctrine of unbounded sovereignty. Christians believed in the cohexistence of a natural law and a human law, but in the case in which they disagreed, people needed to obey to the will of the creator. They were the so called martyrs. In the specific area of England, the doctrine of the natural law merged with the quest for a rule of law. This doctrine aimed at establishing limits and boundaries to the power of kings. According to Bracton, the rule of law limits the political authority of the king to shape law as he wants. In fact, the monarch had absolute authority over political decisions of the country (gubernaculum), his power was bound to the rule of law as to the administration of justice and enforcement of the law (iurisdictio). Another contribution to constitutionalism was the purely pragmatical theory of mixed government. Going back, one more time, to the Greek polis of Athens in which Pericles had established its strong government, Aristotele in its Politika reflected on the best form of government. He refused monarchy, government of one, because it could easily lead to a tyranny. He refused democracy, because being the government of the majority, it answered the will of just a small part of the population. Finally, he refused aristocracy, government of a few, because that could lead to an oligarchy. In conclusion, he found the solution to the problem of the best form of government in the mixed government, which he called politeia. His theory of the mixed government was many times brought back to attention by others philosophers. In particular, Cicero, an aristocrat of the roman age, proposed the same idea in his work De Republica, where he called a mixed and balanced form of government Republica. Its only theoretical proposition found the most significant historical expression in the framework of the Roman Republic of 2nd century BC. Here, the features of the three main historical forms government were maintained. In fact, they were represented by the consuls (monarchy), the senate (aristocracy) and different kinds of legislative assemblies (democracy). Most importantly, the plebeian council was the main popular assembly of ancient Roman Republic. Actually, both Aristotele and Cicero’s doctrines were laid in a specific historical framework in which the goal was the need to achieve political peace and social stability. Plus, in ancient times, there was the conception of community as a unique body in which all parts perform together, regardless of their single importance. This is a vision that can’t be applied to modern complex societies but we can find in the theory of mixed government the stems for the importance of the separation of powers. The third contribution to constitutionalism comes from contractarianism. The idea that the state and its political institutions were born on the basis of a social compact among free men is a fundamental pillar of modern constitutionalism. This is a doctrine which dates back to the Ancient but most of all Middle Ages. However, also in this case,