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New Constitutional Challenges and Principles for a
Globalization Period
Susana N. Vittadini Andrés*
At present Constitutions are regarded as fundamental basis for the
social, political and juridical organization of a country. Classic and
Social Constitutional patterns have been vital for centuries but at present
societies evolved in such a way that they present different realities and
facts that must be considered whenever the question of the best legal and
juridical conditions is considered. No doubt each country and society has
particular traditions, customs and history that have given them a new
dimension, as a consequence of immigration waves or new adopted
responses to present needs and conflicts. The presence of diverse ethnic
groups, races, or religions which up to now have been set aside, and now
turned out to be legally included within societies, is an important
challenge for constitutional in text and in action to be analyzed. So basic
constitutional principles should be adapted to this new, or even already,
existing conditions, that considered as challenges for a globalization
*
Susana N. Vittadini is Associate Professor in the Institute for Latin American Studies
and the Spanish Department, at the Tamkang University, and member of international
and Argentine associations such as LASA, Latin Amrican Studies Associations, AADC,
Asociacion Argentina de Derecho Constitional. As a lawyer, she has also already been
teaching Constitutional Law at the University of Buenos Aires and at the Belgrano
University, both of them in Argentina. Her Ph.D. Dissertation was connected with her
area of specialization that is Constitutional Law. Her subsequent publications, in national
and international journals, were also related to that subject. She has published many
books as co-author such as “Derechos Constitutionales Fundamentales,” 2003, “ Temas
de Derecho Constitutional,1999 and “ Dogmatica Constitutional,” 1999. She has also
written many articles and presented papers in international conferences. Her present
research-in-progress is connected with the Constitutions of Argentina and the Republic
of China.
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period. That is the case of international conventions or treats that more
than once alter political, juridical, social and economic situations. Not all
countries accepted international rules within their constitutions and that
turn out to be a serious problem whenever international agreements are
put into effect. So the object of the present paper is to determine and
define possible limits and principles to each country Constitutional
Cultural dimension as a new pattern of the World.
Key words: Classic Constitutionalism, Social Constitutionalism,
Culture issues- Human Rights principles, Welfare
States, Globalization-right to communicate
Introduction
The history of mankind has also been closely connected with the
question of power, and more than once all those who succeeded in their
struggle for power turned out to be dictators or authoritarian rulers.
Consequently people were obliged to fight undesired battles just because
the leaders have ordered it. During medieval periods, Feudal Lords, in
Europe turned out to be masters of death and life for peasants and human
beings had almost no right or possibility to express what they needed and
wanted. Moreover, governmental authorities used to forget what they have
previously promised, so whenever they were elected they suddenly did
not remember anymore past announced ideals and projects. Those were
some of the reasons why people to decide to put a limit to rulers. But such
limits had to be accepted by the people as a whole, through general
consensus. So constitutions appeared to be the most adequate element to
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determine rights and duties of the people and the government. As time
passed by constitutions were, and still are considered, the best instrument
to establish the fundamental rules and norms of a country. A constitution
lays down a set of fundamental principles and leading concepts to control
governments and authorities as well as specific concepts regarding such
principles, including rights and duties of all inhabitants. It also establishes
the main institutions of a government and the framework of their
functional boundaries. All governmental organs derive their authority
from, and discharge their responsibilities within the framework of the
Constitution. It, therefore, develops as foundational paradigm for the
polity of the State and functions as its fundamental law. Nonetheless, the
constitutional paradigm is determined by political and social values,
ideologies and compulsions, prevailing at the time of the framing
constitution. These values and ideologies, obviously, cannot be similar for
all times to come. They are bound to change. In fact they have changed
every time that certain conflicts or situation without previous precedent
occurred. A constitution therefore, has to re-mould itself to adapt to these
changes and political and social compulsions, natural disasters, or
economic crises, if any. It has also to resolve the prevailing constitutional,
political, economic and social principles over crises. A constitution during
such process, might lead to some tensions, crises and conflicts between
the constituent units of the State, but it must be oriented towards the needs
and necessities of each society.
In such a way it is considered that the written constitution is the most
suitable not to forget what has been promised or settled as a social
contract between the people and the government. But not all the
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constitutions are written, considering their specific types of codification,
constitutions can be written or unwritten. Among the written ones there
are all those whose principles and norms are contained in just one book,
while the unwritten constitutions recognize different types of norms and
principles, as well as constitutional conventions, in certain countries. The
only unwritten ones are the U.K. Constitution, the New Zealand
Constitution and the Israeli Constitution. In the case of the Israeli
Constitution there is a question of religion that refrain them from having a
written one. But in the case of the others, traditions and constitutional
conventions are deemed as highly important, and they include a large
number of non-legal conventional rules. Most of these rules apportion the
responsibility of the major organs and officers of the government and the
legal and political relations among them.
According to Geoffrey
Marshall not all the conventions are alike; therefore it is “useful to
separate duty-imposing conventions from entitlement-conferring
conventions” (Geoffrey Marshall, 1986:7-8).
At present, in Great Britain things slightly changed because of
European Union agreements, though each society still maintained its
distinctive characteristics. Regarding the question of which is the best
type of constitution: written or unwritten there are different points of view.
Some commentators said that a written constitution “offers the advantages
of clarity, stability and enforceability” (Beale, Andrew 1997:2).
Regarding unwritten constitution, Sir Stephen Sedley, a High Court judge,
states that ‘the more detail you try to prescribe, the less you find you have
actually catered for” (Andrew Beale, 1997:2). Beale also considers the
importance of flexibility to survive and continue being in practice.
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Constitutions evolved from previous and past patterns to present needs,
so it could be possible to establish certain constitutional periods. The most
traditional constitutional periods are Classic Constitutionalism and Social
Constitutionalism. But at present, because of globalization, new patterns
and principles should be considered and analyzed. Globalisation is
defined by Roland Robertson as “a spatial set of connections among
societies, individuals, the international system and the human condition”
(Laïdi, 1998:109). Robertson, who is deemed as the founder of the idea of
Globalisation, considers the world as totality going beyond distinctions
between what is global and local, and between universal and particular.
Other scholars consider that there is no accurate definition of
globalisation (Held, McGrew, Goldblatt, and Perraton, 1999:1). But Held,
McGrew, Goldblatt, and Perraton (p.1) sustain that in everyday use it
reflects increased inter-connectedness in political, economic and cultural
issues across the world in such a way that it creates a “shared social
space” (p. 1). Held and McGrew (2001:15) define “political globalisation”
as the “shifting reach of political power, authority and forms of rule”
based on new organizational interests that are “trans-national” and
“multi-layered.” Though their theory can be regarded as incomplete as
there is no reference to different types of interest or accurate definitions it
is worthwhile to define the “constitutional globalisation” as the changing
and reform of previous constitutional principles considering people and
societies’ present social and political interest that are the result of
increased interconnection in social, cultural, political, and economic
issues. For example, environmental issues did not exist in constitutions
for centuries but at present are considered one of the most important
topics that concerns all societies around the world, thus many
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constitutions have been reformed or amended including it, something
similar happens with the right to a name or aborigines rights. More
recently the question of corruption is regarded as another important
principle to be considered.
No doubt each country and society has particular traditions, customs
and history that have given them a new dimension, as a consequence of
immigration waves or new adopted responses to present needs and
conflicts. The presence of diverse ethnic groups, races, or religions which
up to now have been set aside, and now turned out to be legally included
within societies, is an important challenge for constitutional in text and in
action to be analyzed. So basic constitutional principles should be adapted
to this new, or even already, existing conditions, considered as challenges
for a globalization period. That is the case of international conventions or
treats that more than once alter political, juridical, social and economic
situations. Not all countries accepted international rules within their
constitutions and that turn out to be a serious problem whenever
international agreements are put into effect. So the object of the present
paper is to determine and define possible limits and principles to each
country Constitutional Cultural dimension as a new pattern of the World.
It will be divided in several sections. The First section will include a
historical overview and legal analysis of constitutions considering certain
main characteristics. Second, facts and realities deem the most important
to be taken into account whenever the question of the best legal and
juridical conditions is considered. Third, it will analyzed, Constitutional
Cultural dimension as a new pattern for the world; and finally, the
conclusions.
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Among the most important limits and principles that must be
reconsidered1 in each country Constitution’s are universal human rights.
Considering the European experience, which no doubt can be applied
worldwide, Peter Häberle enumerates some “global and Humanity
reforms themes,” such as (2000:86),
1.- Economic globalization via a cultural regionalization.
2..- “protection of cultural possessions.”
3.--Environmental issues mainly all those linked to water and air.
4.-The problems of poverty, development, illiteracy and “modern
manifestation of ‘human slavery’”
5.-Cultural awareness including, i.e. academic exchanges.
6.-An International Court of Justice.
7.-To put into effect universal human rights.
All these elements can be present in different ways depending on the
country and its particular history and present days’ issues. But not all the
societies will suffer such problems alike so it will be necessary to adapt
them to their particular situation.
1
To reconsider constitutional principles a constitutional reform or amend is needed,
because as it was states by the Council of Grand Justices in the Holding of its
Interpretation N° 499, “1. The Constitution is the fundamental basis for and supreme law
of the country. Its amendment greatly affects the stability of constitutional order and the
well-being of all people as a whole and, therefore, must be made by the authorized
[governmental] body in accordance with constitutional due process. Furthermore,
because the process of amending the Constitution is the most direct action that reflects
and realizes sovereignty, it must be conducted openly and transparently in order to
satisfy the condition of rational communication and, hence, lay the proper foundation for
a constitutional state.”
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Regarding the different theories and methods to analyze constitutions two
main periods of time should be set, mainly before and after 1948. Prior to
this year only to scrutinize of the constitutional text was indicated,
according to Gierke, who by the end of XIX Century considered that the
State Doctrines consisted of both political and juridical aspects
(Jellinek,1914:25).
After the Second World War, Georges Burdeau
separated Constitutional Law from Juridical Science and linked the
Constitution to Political Science, which was considered by the United
Nations, back in 1948, in order to establish the so-called Type List
regarding Political Science divisions(Marcel Prelot, 1988:59-60). Those
divisions were Political Theory, Political Institutions, Political Parties,
Groups and Public Opinion, and lastly International Relations, while
Constitution was included within political institutions (Marcel Prelot,
1988:59-60). Thus, the present method for this paper is to consider
present facts and conflicts according to the aforementioned United
Nations so-called Type List and Karl Loewenstein Normative
Constitutions principle included in his ontological classification of
constitutions.2
Normative Constitutions are all those in which norms and
reality are closely connected. The people adopt, accept, and implement it,
because social, economic and political conditions are adequate to do so. In
otther words it can be explained by Peter Häberle’s expression “law in
2
Such classification divided constitutions into three groups: normative, nominal and
semantic. Nominal Constitutions are all those whose norms, though valid from a legal
point of view, cannot be put into effect, not only because of the political process, but
also because of the existence of social and economic conditions, such as a low
educational level of the people which could prevent making it effective at a certain
period or momeno it t. In Semantic Constitutions its ontological reality is to formalize
the political power just to benefit certain groups of people, limiting human rights
limitations, so everything would have evolved as if there was no constitution at all.
(Karl Loewenstein, 1970: 218-222).
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public action” (2003:80).Because it is important to know the theory and
its practice, otherwise only the image will be known. Both in theory and
practice principles of equality, fundamental rights' connotations and
guarantees, social transformation and constitutional order, must be taken
into account along
with an specific cultural background, otherwise it
would be rejected by all those one who are supposed to be protected by.
As he pointed out,
Constitution is not merely a text or a normative set of
rules, but also an expression of its cultural state of
development, a means of cultural expression by the people, a
mirror of cultural heritage and the foundation of its
expectations (Peter Häberle, 2000:79)
Similarly, Rawls (1993:291) modified his own theory3 and enunciates
its two main principles as follow: First, each person is entitled a similar
right to that of complete and appropriate basic freedoms compatible with
a similar outline of freedoms for all (the members of the community).
Second, social and economic inequalities should satisfy two conditions: 1.
they should be stuck to positions and open positions for all under
conditions of impartiality and equality of opportunities; and 2. they should
be for the biggest benefit in the less developed members of the society.
3
The modifications are mentioned in John Rawls’ Political Liberalism, Columbia
University Press, New York, 1993. Norberto Bobbio follows similar idea when he
determines that at present human rights are more connected with their protection that
with their justification, and it is indispnesable to achieve human rights’ global
development, Norberto Bobbio, The Age of Rights 10-11, Polity Press, 1996.
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Gardner (1992:815-816) completes that principles asserting that
“The
content of a constitution can thus reflect some of the most essential and
intimate aspects of the character of the people who adopted it, a feature
that courts occasionally can exploit in order to assist them in construing
the constitution in difficult cases.”
Historical overview and main legal characteristic:
In the beginning, the word “constitution” was connected with
“organization,” and it evolved into a juridical conceptualization of society.
Finally, it was clearly defined in the 1789 Human Rights Declaration,
article 16, stating that “Any societies in which rights are not guaranteed,
or in which the separation of powers is not defined, has no constitution.”4
That definition of constitution only included formal aspects and general
principles, but no specific and more detailed elements are mentioned.
It was during that time that the main characteristics of a Constitution have
been established, and that period was known as Classic Constitutionalism
one. Therefore, constitutions evolved since sixteenth century within two
broad main types from Classic Constitutions to Social Constitutions
or Social Constitutionalism. Classic Constitutions or Classic
Constitutionalism can be explained as the one that included elements that
emphasized and recognized certain rights which are inherent to
individuals. It was developed the belief that the “natural, inalienable and
sacred” 5 rights of human beings were exemplary and universal, asserting
4
For all transcriptions of 1789 Human Rights Declarations see Equipo Niztkor,
The 1789 Human Rights Declarations, article 1, established that “Men are born and
remain free and equal in their rights; social distinctions can only be based on the
common interest.”
5
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that those natural rights existed before the creation of society. The Classic
Constitutional period was marked by three great revolutions: the English,
1688, the American, 1776, and the French, 1778.
The origin of each
revolution was connected with the question of power, though each one
recognized a specific situation. In the American case was the
independence, in the English case governmental accountability and
restrictions of King’s powers, and in the case of France lower classes
appeared in the political arena. The organization of the government and
the control of their acts were their main concern.
The French revolution can be considered an example for other nations,
although the American and the 1688 English Revolutions preceded it,
introducing important concepts and principles that even today are
followed by most nations of the world.
The aforementioned three Revolutions provided the Constitutional
theory with its main important basic concepts. The 1688 Glorious
Revolution gave way to Liberalism, the written constitution, and Habeas
Corpus as an important human warrant. Liberalism as a theory was
created by John Locke, the most influential writer during the English
revolution. He emphasized the importance of human rights, mainly
religion, speech and property, and his ideas aimed to organized society to
preserve people’s well-being. During that period and for only a few years
England had a written constitution.
The 1776 American Revolution and its 1787 American Constitution
created the presidential system, shaped Federalism, and created an
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independent judicial power. It was in those colonies that the written
constitution was finally established. The presidential system was mainly
based in some characteristics of certain colonial authorities, and turned
out to be a model for Latin American countries. The last revolution of the
Classic constitutionalism period was the 1789 French Revolution. Some
of its main principles were settled by Montesquieu; it was the principle of
division of powers. But there were also other important doctrinaires such
as Rousseau who enunciated the concept of people’s sovereignty. Other
important legacy of the French Revolution was the Declaration of Human
Rights.
All the ideas, principles and concepts settled during those three
Revolutions are part of what is known as Classic Constitutionalism, which
evolved into Social Constitutionalism after the Second Industrial
Revolution. Later on, the notion of Welfare State was introduced to
develop Social Constitutionalism according to present times. It happened
by the end of the Eighteen Century when the Industrial Revolution created
serious social challenges for working classes who were unable to improve
their living conditions.
Higher powerful classes did not considered
much workers social and labor conditions. Present Germany was an
exception because there, the Kaiser William III enacted several
dispositions which benefited labours. He considered that the State had to
take care of workers otherwise they could be seduced by anarchist and
socialist ideals. The two first constitutions within Social Constitutionalism
tendency were the 1919 Weimar Constitution and the 1917 Constitution of
Mexico.
So-called “social question” was connected with the unjust
social and economic treatment received by the hard-working classes as
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consequence of the industrialization processes, and of the existent
individualism in that time.
At the end of the XIX century, The Catholic
Church was also interested in social and labors’ issues. The Encyclical
Rerum Novaron, of Pope León XIII, in 1893, began analyzing the social
question and it was continued by Quadragesimo Anno of Pope Pio XI, in
1931 that spoke on “common utility”, to be continued until the present.
Later on, Pope Pio XII makes reference to the “very common”, and
determined that “The characteristic of the social justice is to demand the
individuals all that is necessary for the very common one;
as well as in
an alive organism it is not assisted sufficiently to their entirety if one
doesn’t give to each part and each member what
needs to exercise their
own functions, in the same way one cannot assist sufficiently to the
balanced constitution and the good of the whole society if one doesn’t
give to each part and each member, that is to say, to the men, endowed
with the dignity of people, all the necessary one to complete their
function” (Pio XII, 1937:92).
Closely connected with the aforementioned issues appeared the notion
of “Welfare State.” “Welfare State” is usually connected to an ideal model
where the state accepts responsibility for the provision of comprehensive
and universal welfare for its citizens, which can be provided by the State
or be a combination of private, independent or even voluntary services on
one hand, and
government services on the other hand, the latter known
as “welfare states.” According to Gosta
Esping-Andersen, there are
three main types of such regimes: 1. Corporatist regimes that are
work-oriented and based on individual contribution; 2. social democratic
regimes which tend to favour universalist values; and 3. liberal regimes
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that tend to be residualist (Gosta Esping-Anderse, 1993).
More recently, other issues oblige to take into account new principles
and also modified past ones. It was the question of nature that appeared as
very important and urgent, but very difficult to define. A.G. Tansley
(1935:16) defined ecology closely connected with ecosystem or
ecological system, which he considers as a total system, that is to say,
organic elements and the whole environment. It can be defined as “any
unit that includes all of the organisms (i.e., the community) in a given
area interacting with the physical environment so that a flow of energy
leads to clearly defined tropic structures, biotic diversity and materials
between living and non living parts.” (Roberto P. Guimarães, 1991:8) But,
even now a days, “features of the natural habitat become significant only
when and as they are introduced into cultural systems, and become
incorporated on them as cultural elements” (Leslie A. White, 1959:5).
At present societies turned to be more complex, and overcrowded, nature
turned to be more fragile and it even suffered important changes that more
than once convert a lovely forest into a desert, turning real the assessment
that resources are not practically inexhaustible. Environmental issues are
closely linked to human rights, for example, the right to life and to
health, are critically affected by problems of environmental
degradation, 6 the right to equality before the law is affected by the
disproportionate way in which certain sectors of the population bear
6
It has been estimated that roughly 60 per cent of the global burden of disease from
acute respiratory infections, 90 per cent from diarrhea disease, 50 per cent from
chronic respiratory conditions and 90 per cent from malaria could be avoided by
simple environmental interventions. World Health Organization. 1997. Health and
Environment in Sustainable Development: Five Years after the Earth Summit. Geneva:
World Health Organization
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environmental burden -environmental discrimination-, the right to
property is affected by environmental degradation, etc.
That is why
many constitutions include principles connected with the protection of the
environment.7 But one things is to include such concepts and other much
different to put all of them into effect. No doubt, that environment is
among human beings’ fundamental rights, not only at an international
level but also their hierarchical constitutional incorporation into the
domestic judicial systems of States.
In a broad sense constitutionalism has its counterpart in autocracy.
Autocracy can be described as a political system in which there is a sole
or single holder of the power that is in charge of reaching fundamental
political decisions and also of implementing them without restriction or
control. On the other hand, a constitutional political system implies the
existence of different political parties, and human rights; in other words,
as Karl Loewenstein pointed it out, a constitutional democracy (Karl
Loewenstein, 1970: 75), which in turn includes a triangular power
configuration with checks and balances. According to the author and
depending on which is the strongest power certain fundamental types
can be found, such as: direct democracy, assembly government,
parlamentarism which includes the cabinet form, presindentalism, and
directorial government.
7
For example other Latin American countries, besides Argentine Constitution,
Constitution of Cuba of 1992 (articles 11 and 27), Constitution of El Salvador of 1983
(article 69), Constitution of Ecuador of 1983 (article 19), Constitution of Guatemala of
1985 (article 97), Constitution of Honduras of 1982 (article 145), Constitution of Mexico
of 19177 (article 25), Constitution of Nicaragua of 1987 (articles 60 and 102),
Constitution of Panama of 1980 (article 110), Constitution of Paraguay of 1967 (article
132), Constitution of Uruguay of 1997 (article 47), Constitution of Costa Rica (articles
467 and 507).
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Other types and classifications of constitutions consider different sets
of issues and characteristics. For example, García Pelayo took into
account the “great spiritual, political and social currents of the XIX
century” and stated three types: (Manuel García Pelayo, 1950:28-29).
1. - Rational Normative: a constitution is considered as a system of norms,
made once and forever.
2. - Traditional Historical: a constitution is the result of each society
historical evolution.
3. - Sociological Concept:
it could be understood as a sociological
projection within the constitutional field. Two of its main characteristics
are: a constitution is something for the present time and needs, and not for
the future; and thus it considers the present state of things as mainly
related to economic trends.
Concerning its origin, a constitution can be original or derived. On the
word of Karl Loewenstein, an original constitution can be understood as a
document including new functional principles for political processes and
to establish state will, whereas a derived constitution follows models or
principles established by the original one (Karl Loewenstein, 1970:209).
In the case of the United Kingdom, the Magna Charta, 1215, is often
mentioned, the 1628 Declaration of Rights, and the 1701 Act of
Establishment. Constitutional revisions recognize two broad types of text
-rigid and flexible, - depending on their special reform proceedings. The
Constitution of the Republic of China in its original 1947 text also
included two systems of amendment in its article 174, which determined:
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“The Constitution shall be amended in accordance with
either one of the following procedures: 1. The Constitution
may be amended upon the proposal of one fifth of the total
number of Delegates to the National Assembly and by a
resolution of three fourths of the Delegates present at a
meeting with a quorum of two thirds of all Delegates to
the National Assembly. 2. An amendment to the
Constitution may be drawn up by the Legislative Yuan and
submitted by it to the National Assembly for concurrence
through referendum upon the proposal of one fourth of the
Members of the Legislative Yuan and by a resolution of
three fourths of the Members present at a meeting with a
quorum of three fourths of all Members of the Yuan. Such
a proposed amendment to the Constitution shall be
publicly announced half a year before the National
Assembly meets.”
As it was aforementioned Constitutions include rights and duties of
the people and the institutions. Rights and duties of the people are
closely linked to human rights issues. At present, the enumeration of
human rights has been enlarged due to necessity of dealing with certain
conflicts and problems as the ones connected with the environment.
Summarizing the historical overview of constitutions it can be
concluded that the question of power and the needs of the people,
including the protection of their lives and improvement of their living
conditions, have been regarded as determinant to delineate the
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characteristics and main principles of each fundamental law during Classic
and Social Constitutionalism periods. But later on things evolved in such a
way that other elements have been regarded as determinant in connection
with the environment, though not all governments and communities are
totally aware of its importance. Let’s just consider the recent situation of
New Orleans because of a tremendous hurricane that hit the city. If
American authorities would have considered advises of many people most
of its terrible consequence could have been overcome. Regarding the
question of power there are many important implications because
ideologies and political systems more than once has been adjusted to
personal, partisan or sectarian interest or points of view. Thus constitutions
have been adapted to those particular situations. For example, it is the case
of democracy whose definition varied in Western and Socialist countries.
For Western societies pluralism and many political parties is one of the
main features of democracy, whereas in Socialist societies exist one sole
main political party that monopolized power. Something similar occurs
with all those societies and countries whose religion is considered as base
of legitimate political power. All these countries adapt the constitutions to
their needs, thus though the base and all over accepted concepts are
present there some differences which turned everything out in a different
way whenever constitutions are put into effect. For example, Latin
American societies with “caudillos” patterns, transforming Presidential
leadership in something more important that Congress or political parties
influence. As all these examples are still present on many societies and
countries such issue will be analyzed in the next section about “Facts and
realities.”
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Facts and realities
As it has already being pointed out present accepted concept of
“constitution” has been settled in 1789 Human Rights Declaration, article
16, which determines that “Any society in which rights are not guaranteed,
or in which the separation of powers is not defined, has no constitution.”
Not all constitutions are alike, on the contrary all of them include certain
principles and concepts which, at first sight, though may seem similar to
others turned out to be different when are intended to be put into effect.
Moreover each group of people have certain special way to perceive the
world which can be labeled as religion, tradition, and ideology
Therefore each constitution has something that makes it different from
any other, though there are many classifications and typologies that aimed
to establish universal patterns depending on certain special features such
as the distribution of power.
Another important criterion to analyze constitutions, according to Karl
Loewenstein, is connected with ideology. In this way, he considers
constitutions that have a perfectly defined ideological programme, such as
the Federal Constitution of Bismarck (1871) from other ones which are
neutral from the ideological point of view or merely utilitarian, like the
Constitution of the IV French Republic (Karl Loewenstein, 1970:211).
The same author developed an ontological classification of constitutions
(Karl Loewenstein, 1970:218-222), which is connected with the science
of being, to investigate the nature, essencial properties and relations of
being,
because of the sociopolitical importance of that fundamental
norm. Such classification divided constitutions into three groups:
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normative, nominal and semantic. Normative Constitutions are all those in
which norms and reality are closely connected. The people adopt, accept,
and implement it, because social, economic and political conditions are
adequate to do so. Nominal Constitutions can be considered all those
whose norms, though valid from a legal point of view, cannot be put into
effect, not only because of the political process, but also because of the
existence of social and economic conditions, such as a low educational
level of the people which could prevent making it effective at a certain
period or moment. Semantic Constitutions differ from the former types,
although a formal constitution exists, its ontological reality is to formalize
the political power just to benefit certain groups of people. Consequently,
there would be important human rights limitations, and everything would
have evolved as if there was no constitution at all. With or without it,
things would be the same, except for the benefit of elites or dictators.
Again this typology just considers the final result, that is to say the
already written constitution. But, it is also important to know which has
been the determinant factor to do it, i.e., nationalism or national ideas
during Centuries modeled societies and settled behavioral patterns that
even nowadays are present. More than once, national ideals and
ideologies led to blooddy suprression of other groups and cultures, as it
was the case of the Armenian’s who lived in Turkey, or so-called Cultural
Revolution in Mainland China. No doubt that many and different
explanations has been given for such actions, but the most important thing
is that they wanted to impose a rule or modify previous conditions or
situations according to their own way of thinking. In most of those cases
the political decision has been undertook by only a small group of people
and put into effect by just a part of the society without much considering
New Constitutional Challenges and Principles for a
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the rest of the people’s desires and opinions.
All countries organized with different types of institutions usually
differentiate the three main functions: to legislate, to administrate and to
impose justice. Not all societies rely on Judicial interpretation, and there
are certain situations like the presence of illegal or de facto governments
whose rule is not legitimate, but accepted and obeyed, as in the case of
Latin American countries during de facto periods.8
Not all Central and South American countries can be considered as
Latin American ones. Latin American countries are situated in three
regions: Middle America, Caribbean and South America, and these
territories included other countries with different characteristics and do
not recognize a long Spanish or Portuguese domination, like Belize in
Central America. Only few Caribbean countries can still be considered
Latin Americans’ like Cuba, Dominican Republic and Haiti,9 the rest of
them have been, and many of them still are, closely connected to the
United Kingdom, 10 France, 11 United States of America 12 or the
Netherlands.13 Things are a little bit different in South America as there
are only three countries14 that recognized French or Holland connections.
8
Most Latin American de facto or non-elected governments appeared during last Century,
though many of them also suffered those types of authorities the previous Century.
9
The Spanish period in Haiti: 1492-1697; later on this country turned to be a France
dominium till 1791.
10
For example: British Virgin Islands, Turks and Caicos Islands, Cayman Islands. Saint
Kitts and Nevis is free now. Jamaica was closely connected with the United Kingdon in
past times.
11
For example Guadeloupe, Martinique.
12
Puerto Rico is an U.S. associated country. Virgin Islands
13
Aruba, Netherlands Antilles.
14
Suriname, Guyana and French Guayana.
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So there are 10 Latin American countries in South America,15 7 in Middle
American and only 3 in the Caribbean region.
Latin American constitutions have also been deeply influenced by
Spanish and European traditions and norms as well as American ones.
From the beginning, the influence of foreign patterns has been very
important to understand the real constitution of these states and not only
their external constitutional appearance. There are strong similarities
between Spain and Portugal though formalities and hierarchical structures
were emphasized in the latter. Centralization can be pondered as one of
the fundamental concepts that influenced Latin American societies. Latin
American countries have a distinctive tendency to centralized power in a
group, political party, elite or “caudillos,” with its diminishing of people’s
possibilities. Paraguay, Mexico and Cuba are some examples in which a
“caudillos” turned to be appointed as President. In the case of Paraguay,
Alfredo Stroessner’s long dictatorship16 in which he exercised personal
control over the Colorado Party and the Army in order to keep himself in
power (John Peeler,
1998:108-11); in the Mexican case there has been
present a special type of “caudillism” without personalism (John Peeler,
1998:113-124). In the case of Cuba17 there is a combination of “high
levels of organizational development and popular mobilization with a
complete
personalistic,
charismatic
supreme
leader”
(JohnPeeler,
1998:137). All these characteristics made Guillermo O’Donnell to include
15
They are: Argentina, Bolivia, Colombia, Chile, Ecuador, Paraguay, Peru, Uruguay,
Venezuela, and Brazil that is the only the recognized a Portuguese background.
16
Alfredo Stroessner dictatorship: from 1954 to 1989.
17
Cuba is a Caribbean country which has been ruled by Fidel Castro since the middle of
last Century, after he defeated Batista a dictator who ruled that country.
New Constitutional Challenges and Principles for a
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Latin American countries within so-called “delegative democracies.”18
While Cuba and Paraguay are unitary states, Mexico is a federal one.
The case of Mexico is slightly different as there is one political party
which until very recently monopolized the Legislative branch, so there
was no real opposition (Pablo González Casanova, 1993:24-25). The
Executive branch, who is at the same time the leader of the political
party19, is the most powerful one up to control legislators (Pablo González
Casanova, 1993:30-33). But, the 1917 Mexican Constitution, article 108
(3), determined that “governors of the States, the deputies to the local
legislatures, the magistrates of the Superior Tribunals of Justice local and,
in their case, the members of the Council of the local Judicatures, will be
responsible for violations to this Constitution and the federal laws, as well
as for the undue handling of funds and federal resources.” For such
circumstance the President of the Republic has been empowered with the
possibility to appoint a “provisional governor,” who will have to be
accepted by the Senate during its sessions and by a Permanent
Commission during Legislative Branch recesses.20 Autonomy and states
or provinces self-government is the essence of federal regimes, therefore
central or national authorities’ power to appoint local authorities can be
understood as an important intromission in their internal affairs.
18
A “number of well-known traditional ingredients of Latin American politics – such as
caudillism, patron-client networks, parliamentary subservience to the executive,
insulation of key decisions from the public debate, lack of accountability of top
governmental officers- with electoral processes … and a delegation of power on behalf
of the president, who is thereby entitled to conduct governmental affairs ‘as he or she
sees fit,” Guillermo O’Donnell 1991, 1995, cited in Carlos Vilas, (1997).
19
The main political party in Mexico was till recently the Institutional Revolutionary
party, in Spanish Partido Revolucionario Institucional, PRI.
20
1917 Mexican Constitution, article 76(V).
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Hierarchies and the principle of legality are joined to popular and local
decisions and favor politicians.
Today, because of democratic tendencies within Latin American such
favoritisms is diminished, but being diminished does not mean it is
abolished.
Latin American countries also speak about a “democratic
republic” as something similar to a “representative republic21,” for their
original constitutions and ideal political systems tried to resemble the
United States. Considering such starting point we can conclude that the
idea of political representation and decision making is in the center of the
political debate, because, theorists of republican governments “agreed that
popular election of representatives was required if government was to
pursue the people’s interest” (Susan Stokes, 1995:60,) Similarly an
election is considered to “serve a forward-looking planning function”
(Susan Stokes, 1995:61) whenever it allows citizens to evaluate
alternative programs for the future. It is interesting to realize that such
principles are not always applied to Latin American countries, for
example the cases of Menem, 1989, in Argentina, and Fujimori, 1990, in
Peru.
Menem had the intention to put aside whatever he promised
during his campaigns after the elections, as he “conceded to a journalist
that he has hidden intentions” to pursue an important privatization policy
and to resume “diplomatic ties with Britain22.” In the case of Fujimori,
economy was the focus of the campaign due to a very difficult situation in
Peru; therefore all the candidates present different alternatives. Fujimori
21
Cf. Gordon S. Wood (1992:98-99) in John Dunn, 1992. More recently, Milton Fisk
speaks about “republican socialism”, Cf. Milton Fisk, (1989: 204).
22
Gente, January 4, 1993, cited in José Nun, Postmodern politics ? The Paradoxes of
Peronism, paper prepared for the First Vienna Dialogue on Democracy, July 7-10,
pp.22-23, in note 30, Susan Stokes, 1995:79.
New Constitutional Challenges and Principles for a
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won the second round of the election with 57% of total votes; then he put
into effect a shock policy with price adjustment close to 200 percent on
gasoline, basic foodstuffs and public services, which was opposite to his
own campaign pledges. Moreover, most Latin American constitutional
reforms included new ways of citizen participation. But once those
reforms have been fulfilled people realized that though direct democracy
systems already have constitutional status such rights could hardly be
exercised, and, just in few occasions, they have been taken into account
for decision-making. For example, between 1988 and 1996, in Latin
American countries there have only been 8 plebiscites, 4 referendum and
5 popular consults (Oscar Alvarez et all, 1998:742-743).
African countries and communities also have a long and bloody
history of colonialism and domination, mainly from European societies.
By the end of the Nineteen Century European rulers decided to divide
African into countries without considering its society, tribes, needs and
culture. Such attitude proved to be a terrible mistake. Unlike Latin
American countries, most African communities’ original organization was
tribal, highly influenced by rivalries and particular traditions and customs
that still persist nowadays without much change. At present most African
societies and tribes find very difficult to overcome past rivalries, hates
and gender discrimination, just to mention some of their actual conflicts.
Similarly, people have little possibility to improve their lives and living
standards due to illiteracy, poverty, corruption, thus for most of them a
constitution is just a written paper with no other meaning.
But it is also
truth that there has been an important democratic tendency and movement
to improve people’s welfare within this continent. Leaders like Julius
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Kambarage Nyerere (1922-1999), was the first president of Tanzania
(1964-1985), Kwame Nkrumah (1909-1972) who was the first president
of Ghana are among all those who struggle for democracy and better
living conditions for the people.
On the other hand, Asian societies present a myriad of cultures,
traditions, religions, and different forms of governments and ideologies
whose concepts greatly differ from one another. There are many societies,
like Taiwanese society where human rights improved a lot, and freedom
of speech is regarded as one of its main achievements. But other societies
do not enjoy similar privilege. Many dictatorships of the region sustain
rigid ideologies to manipulate and dominate people according to their
needs and desires, underestimating people’s decisions and petitions. In
these cases constitutions are, as Loewenstein pointed out a suit adapted to
personal and authoritarian interests. There are also religions that impose,
according to western patterns, gender discrimination, but in the eyes of its
majorities such attitudes are inherent to their own believes, therefore very
difficult to be altered or changed in the meantime.
Similarly, ethnic conflicts are present in many parts of the world like
Eastern Europe, the former Soviet Union and Africa. The origin of
ethnicity can be politically imposed, mythical and socially constructed,
but in any case it pulls towards powerful loyalties and important
mobilizations.
But ethnicity does not always evolve into a violent
situation as most ethnic groups pursue there interest peacefully. Acute
social uncertainty and the fear of what the future could bring are the main
causes that led to violent situations.
Dominant cultures and hegemonic
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states try to assimilate minorities; therefore assimilation conflicts which
could become violent arose. If the problem of minorities is connected
with their collective fears for the future the core of the problem is the
difficult to resolve strategic dilemmas whenever their fears for physical
insecurity and cultural domination polarize society. In this sense most
constitutions of the world include equity and equality rights but they are
usually modified or altered any time that such norms are in effect.
Regarding the question of ethnicity conflicts two main levels of
institutional solutions can be identified: the State or local government and
the international. In the case of States and local governments peaceful or
violent policies can be deemed as extreme political decisions to mitigate
or try to solve such problems. Among peaceful solutions pacts and
contracts between governmental institutions and minorities considering
the rest of the society can be esteemed as the most successful ones. In this
case though certain violent situations can appear they do not led to sharp
social and brutal polarization, as it is the case of Argentina where all
different ethnic groups do not fear being bloody suppressed by dominant
culture. Argentina is a Latin American country, for centuries was
influenced and dominated by Spain. It is situated in the bottom part of
South America, and most of its population acknowledged a European
relative. In comparison with other Latin American countries there were
few aborigines in its territory. Today about eighty five percent of the
population is of European origin, but since last Century many people from
other parts of the world migrate to Argentina, so now it can be defined as
a multicultural society. In Argentina there is legal discrimination to
achieve important political or governmental appointments because
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Argentine nationality is a legal requirement for most official and
institutional appointments. The aborigines who live in Argentina since
1994 have a Constitutional recognition of their cultural identity and rights,
though most of them find it difficult to improve their lives.
Not only in Argentina but in most countries of the world the question
of aboriginal minorities has been connected with dominant cultures, i.e. in
the case of Japan, which is recognized as an extreme traditional Far
Eastern society that combines past values and myths, an important part of
its legacy, with modern technology. In this case restrictions to human
rights are founded on rational basis and public welfare needs’ (Masami Ito,
1963:221). Such principle has been inserted in article 12 and 13, 1947
Constitution of Japan, the last one asserts that each person will be
respected and his/her right to live, freedom and search of happiness but it
has also been incorporated within judicial branch decisions will be highly
consider unless it is not against general welfare. The question is to
determine what “general welfare” is, because this expression has no
accurate and precise definition, therefore it will all depend on its
interpretation. Usually, in most countries of the world the doctrine of
“political questions” make judges refrain from deciding over certain
political matters that are not precisely defined. Japanese Supreme Court
states, “An official act which is of a high political nature that directly
affects the government’s base it is beyond the reach of the judicial
revision (in this case it was the breakup of the Camera of Representatives
of the Diet), although their validity has been put in trial cloth in a judicial
war. Such a matter should be to be resolved, in the first place, for the
Executive or the Diet, which are politically responsible before people.
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This limitation regarding the power judicial drift of the principle of
separation of powers and it is inherent to our constitutional system.”23
But things slightly changed when the Court of Sapporo, Hokkaido, March
27, 1997, (Japanese Court, 1997) recognized certain rights to the Ainu, a
minority indigenous group. Such decision was taken a year after a law
regarding measures to promote Human Rights Protection has been
enacted in Japan, since then other legal measures and rules have been
ratified.
By the end of 1999, the Committee of the United Nations (UN,
1999) acknowledged with the presence and the support of Japanese
governmental entities, the interest of that State for the solution of the
conflicts.24 Among the positive aspects they mentioned the promulgation
of norms that promote human rights’ effectively, especially, the situation
of the Korean students in Japan, the extra-marital children and the
children of the minorities Ainu. It was also mentioned the abolition of the
restrictions to select women in the exam for the public service, as well as
the compulsive retirement because of marriage, pregnancy and upbringing
of children, even the abolition of the forced sterilization to handicapped
women.
The importance of International Human Rights Conventions,
Agreements and Pacts must not be diminished, though there is a tendency
to underestimate their importance claiming that not all the countries put
into effect what they have ratified and accepted. It is true that some
countries neglect international norms but it is also true than in many cases
23
Supreme Court judgment, October 8, 1952, 6 Minshü 783, translated by J. Maki,
Court and Constitution in Japan, 362, (1964).
24
Fourth Report over Japan: CCPR/C/115/Add.3 and Corr.1, meetings 1714 a
1717,CCPR/SR.1714-1717, October 1998, several conclusions have been adopted in
those meetings 1726 y 1727, CCPR/C/SR.1726-1727, November 5, 1998.
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they have allow people to claim successfully for their right. Francisco
Pérez Espósito (2002:3) emphasized the complex situation in international
relations issues, as there are many different interest and organizations
involved in them. He also emphasized the importance cultural and
historical issues and also the influence of multinational enterprises and
other agents.
From a constitutional approach since lasts decade international
principles, values, and agreements or pacts have been introduced in within
constitutions and more than once they are regarded as more important
than local or national constitutional principles. That is the case of 1994
Argentine Constitutional Reform and other Latin American and American
countries that signed the Pact of San José de Costa Rica concerning
human rights, therefore they accepted Inter-American Human Courts
jurisdiction for conflicts connected with such topic. Russian Constitution
specified that in the Russian Federation human rights are recognized and
guaranteed pursuant to the generally recognized principle and norms of
international law (Article 17). Something similar happened in the 1992
Slovak Constitution that stipulates that: international instruments on
human rights and freedoms ratified by the Slovak Republic and
promulgated under statutory requirements shall take precedence over
national law provided that the international treaties and agreements
guarantee greater constitutional rights and freedoms. Comparable
provisions are contained in the 1992 Czech Constitution (Article 10) and
in the 1994 Moldova Constitution (Article 4, 2). Concern over the
importance of international Treaties and agreements, mainly in connection
with human rights and economy conforms nowadays an important topic
New Constitutional Challenges and Principles for a
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of discussion in many countries and societies, since they acknowledge
their importance to develop the country. Mainly in all countries that for
long periods suffered because of dictatorial or non-democratic
governments that restricted or abolished people’s rights.
Constitutional Cultural concepts and principles
The word culture can be defined from different points of view;
therefore it is not easy to set a unique and accurate definition, For present
analysis it will be accepted
what A.L. Kroeber and Clyde Kluckhohn
(1952) in their well-known research CULTURE, A
CONCEPTS AND DEFINITIONS,
CRITICAL REVIEW OF
classified six principal types of definitions
and concluded that “Culture consists of patterns explicit and implicit, of
and for behavior acquired and transmitted by symbols, constituting the
distinctive achievements of human groups, including their embodiments
in artifacts; the essential core of culture consists of traditional (i.e.,
historically derived and selected) ideas and specially their attached values;
culture systems may, on the one hand, be considered as products of action,
on the other as conditioning elements of further action” (A.L. Kroeber and
Clyde Kluckhohn, 1952:181).
More recently, Bronosilaw Malinowski (2003: 52) includes other
elements such as basic needs, a standard of living,
educational methods
and different types of mechanisms to transmit tradition from generation to
generation, the efficiency of the group, partially, through law and order as
cooperation could be considered an essence of any cultural achievement.
Whenever an adjustment is necessary, all these elements combined must
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be present in to maintain or renew “the material substratum of culture”
(Bronosilaw Malinowski, 2003:52). So Malinowski introduced the
concepts of “organization” and “institution.” He defined “organization” as
a “very definitive scheme or structure” (Bronosilaw Malinowski,
2003:53), which has universal main factors no matter what kind of group
it may be. “Institution implies an agreement on a set of traditional values
for which human beings came together;” as a constitutional law
(Bronosilaw Malinowski, 2003:52 and 57). Malinowski demonstrates the
importance of “time” and “concrete reality,” to analyze culture
(Bronosilaw Malinowski, 2003:59). The importance of “time” closely
linked to space is considered by Peter Häberle’s key idea (2003:21) when
he assertes that “culture” is an important element to consider whenever
the question of State elements’ or Constitutions is analyzed. According to
Peter Häberle (2003:21) the Constitution is part of each society or group’s
culture, and his concept of Constitutional Cultural Dimension, closely
connected with time and space, involve real and ideal elements, i.e., it can
be mentioned human dignity, popular sovereignty, constitution as a
contract, and division of powers. But there are also other characteristics of
human rights like tolerance closely connected with human dignity, which
makes it possible to set differences through agreements and pacts.
Peter Häberle’s constitutional ideals are far from accepting hegemonic
powers because he gives importance to cultural characteristics and
patterns of societies and countries. Therefore, it is interesting to note that
there is no English translation of his books. But it does not mean that
Häberle’s points of view did not include essential human rights. Universal
human rights are elements of “universal culture,” without a global State
New Constitutional Challenges and Principles for a
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but as global society, closely connected with national or regional identity
as culture created by human beings (Peter Häberle, 2003:185). Thus, Peter
Häberle (2003:186) states it is not rare that Constitutional States emboid
citizen or inhabitants with few fundamental rights, but he is persuaded
that status mundialis homnis, that is to say universal ones, irradiate
towards status civilis and culturalis. Many constitutions human rights
treat within constitutional principles, like 1992 Checa Constitution, Art.
19, and present Spanish Constitution, Art. 10 (2) that states that
fundamental rights and liberties will be interpreted according to Human
Rights Universal Declaration and similar treats and agreements ratified by
Spain.
At present societies, communities, and states are being influenced by
globalization patterns as it is the case of “democracy,” a Western born
concept that has already been accepted all over the world. No doubt the
expression “democracy” has different meanings and definitions but its
classic significance of people’s power or political decision has been
worldwide accepted. Even social or communist societies used that
significance to impose their rules over the people. It can be considered the
first step towards human rights evolution within close and authoritarian
societies because once the people are aware of their rights they will
struggle for them, as it was the case of abovementioned minorities’ issues
and ethnic conflicts. Another clear example is the Constitutional reforms
undertook by Mainland China to try to avoid international critics,
penalties, and restrictions to improve its economy. At present Mainland
China Constitution does not mentioned the Communist Party monopoly of
power and even accepts certain individual rights. It can be argued that it is
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not enough, but considering that that society had been ruled in a
dictatorial and authoritarian way for millenniums it cannot be expected
that its could changed or evolved already impose cultural patterns in a few
years.
That reasoning led us to the next question, what makes people be
aware of their rights, or in other words what makes governments to accept
reform. Hegemonic tendencies or impositions can be one reason, but even
in this case there is something more important: communication and
information. If one does not know that something exists it would be
difficult to imagine it, therefore if someone knows that something works
very well in other societies one will try to adopt it under his/her own
cultural patterns. But people needs time to adapt or adjust their way of
thinking and behavior to new habits or conducts.
Let consider the case
of Taiwan, its well-educated society could evolved to human rights
acceptance after having rigid governments because they know what
individual rights are, though they cannot totally get rid of certain past
cultural patterns like importance of hierarchies and flattering.
The right to communicate evolved from freedom of expression, and
from monologue to dialogue. It is considered a process that is performed
“in double sense, in which individual participants and community sustain
a democratic balanced dialogue” (Vittadini Andrés, 1996, 2).
“The right to be communicated reveals of a complexity that exceeds
the habitual mark of analysis, because it alludes not only to the will of the
parts directly involved in the dialogue, but also third ones and the
New Constitutional Challenges and Principles for a
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necessary presence of government’s entities or other organizations as
indispensable authors to allow the necessary conditions to put it into
effect” (Vittadini Andrés, 1996:2).
Institutions should assume the
obligation of facilitating more and best education to the population,
because through education one will understand and, at the same, ones
expression or ideas will also be understood. Real dimension and
significance of what is transmitted without misrepresentations, veiled
ideas, deviations or thematic alterations will be achieved.
Slavko Splichal (1993:11) includes four basic rights and freedoms as
cornerstones for the right to communicate:
1. The right to publish opinions in the mass media, as an
extension of the traditional freedom of thought and
expression, and as a right complementary to the right to
receive information;
2. The right to participate in the management of the mass
media and communication organizations.
3. The right of free association and mutual interlinkage
for realizing individual and common needs.
4.
Equity of citizens in rights and duties of which the
first requirement is that the equity is not limited by or
dependent on their social status and uneven distribution
of material resources.
Splichal (1993: 11) considers that everything must be based from the
beginning in a “genuine equal possibility for all individuals’ opinions.”
No doubt his assertion is valid otherwise all the other rights connected
with the right to communicate will be unable to be put into effect in an
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adequate way. Considering abovementioned four basic rights and
freedoms, it can be clearly seen how deeply human rights work together.
To communicate with a person must have the capacity and possibility to
freely think and analyze according to his-her believes or religion. To
participate not only means to take part but also to have the possibility of
being considered in equal terms with others, to listen to ones ideas,
suggestions not just from a formal approach but analyzing them, because
more than once formalities nullified others rights and freedoms. For
example, for years in Argentina most political parties and syndicates
whenever an election has to be accomplished only one list or candidate
was accepted, therefore no real participation exist just a formality. The
line that divided right and wrong sometimes is extremely narrow. In other
words, it is what BRENDA DERVIN AND KATHLEEN D. CLARK, (1993:117)
labeled as “rigidities,” that is to say the ones have been “induced in by
their experience, cultures, structures, and so on.”
Closely related to communication is the propaganda. Regarding
propaganda Francisco Pérez Espósito (2002:3) pointed out its importance
to accomplish diplomatic decisions, mainly when it is about democratic
values, human rights, and dignity as well as each country international
prestige. No doubt that the propaganda to be effective must be understood
by the people, similarly people must be aware of situations when
propaganda altered reality to make their right decision.
The combination of culture and communication give path to another
question: the existence of different cultures within the same society or
territory. The discussion over different cultures has not been definitely
New Constitutional Challenges and Principles for a
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settled yet, because there are so many different ideas and points of view
that academic and scholars need more time to analyze it. Ayelet Shachar
distinguishes two “versions” of the multicultural citizenship model: the
“strong” and “weak.” The first one stresses individual rights and legal
order, mainly the constitution, establishing norms that recognize and
allow different groups to practice self-governments according to their
particular customs and points of view. But the “strong version” does not
solve the problem of possible oppression within the group, as it is more
interested in its external relationship with other groups or even the State.
On the contrary, the second one, is interested in “the intragroup impacts
on multicultural accommodation: it acknowledges the potential tension
between recognized different cultures and protects the rights of group
members as citizens” (Ayelet Shachar,1999). Neither of theses versions
would be useful for every situation since they only consider the issues
from a specific approach. Consequently, if a constitution states that
non-intromission principles in their internal affairs are correct, the rights
of the weak will not be totally protected; thus, the principles of human
rights would go unaccomplished, and the entire policy could become an
excellent façade for violations of individual rights. Academics also
differentiate “multi-culturalism” from “multi-communitarian,” but the
first one tends to unify and integrate, whereas the second is just the
opposite, as it tends to maintain divisions without communication
(Bauman, Zygmunt, 1999: xl-xliii). Similarly, the idea of equality is not
the same for all multiculturalists; for example, some of them rely of
Dworkin’s idea of concern and respect without deepening that analysis of
“equality”, while others rely on Rawls principle of primary things
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distribution,25 which included not only wealth but also all types of rights
as well as self-respect. On the other hand, communitarians consider that
the good of the community is more important than liberties, freedom and
individual rights (Samuel Freeman 2002:18-19).
Conclusions
The question of power and human needs has been determinant for
Constitutional Law evolution. Classic Constitutionalism and Social
Constitutionalism have been the two most important periods for
constitutional evolution in the world. At present, still existing conflicts as
well as new ones determine the necessity to look for new constitutional
patterns. During the so-called Classic Constitutionalism period26 to the
Social Constitutionalism 27 one, people’s more important conflicts
evolved from the questions of representation and distribution of power to
social and labor needs. But such evolution was primarily connected with
European and American countries, mainly its South, Central and North
regions. Far Eastern and African societies adopted constitutions lately due
to their particular history and culture.
25
Rawls’s A Theory of Justice in 1971, explains ‘justice as fairness’ means that to treat
people fairly we must regard people abstractly, mainly taking into consideration generic
human interests (such as primary goods) rather than particular identities and
commitments.
26
The Classic Constitutional period was marked by three great revolutions: the English,
1688, the American, 1776, and the French, 1778.
27
Social Constitutionalism appeared after the Second Industrial Revolution. Later on,
the notion of Welfare State was introduced to develop Social Constitutionalism
according to present times. It happened by the end of the Nineteenth Century when the
Second Industrial Revolution created serious social challenges for working classes who
were unable to improve their living conditions.
New Constitutional Challenges and Principles for a
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At present the question of power still is an important topic to be
analyzed, but there are other ones linked to the environment, minorities’
rights, gender discrimination, and ethnic conflicts which must be well
thought-out. Sometimes societies could not, or did not want to, improve
the living conditions of its inhabitants but they have arms so powerful that
can destroy other societies or even countries.
Not all constitutions accept the same principles and concepts, though
they could be considered the same at first glance, whenever they are put
into effect things turn out in a different way. It is because each society
particular behavioral patterns, way of thinking and living, traditions and
customs is present in each society political culture.
Culture can be defined in many different ways depending of each one
particular approach. But for present analysis it has been considered L.
Kroeber and Clyde Kluckhohn (1952) definition that: “Culture consists of
patterns explicit and implicit, of and for behavior acquired and transmitted
by symbols, constituting the distinctive achievements of human groups,
including their embodiments in artifacts; the essential core of culture
consists of traditional (i.e., historically derived and selected) ideas and
specially their attached values; culture systems may, on the one hand, be
considered as products of action, on the other as conditioning elements of
further action” (A.L. Kroeber and Clyde Kluckhohn, 1952:181).
The question of culture and its evolution or adjustment is connected
with the right to communicate and the principle of tolerance.
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Tamkang Journal of International Affairs
The right to communicate evolved from freedom of expression, and
from monologue to dialogue. It is considered a process that is performed
“in double sense, in which individual participants and community sustain
a democratic balanced dialogue” (Vittadini Andrés, 1996, 2). To solve
problems and overcome conflicts it is important to understand others
standpoint and judgments, in other words culture. The best way to make
better human dialogue is to understand others differences, way of thinking
and culture, and improving our own capacity to face new experiences
solving past and present conflicts. This can be considered as the most
relevant challenge for actual globalization period.
The balance between different cultures within a country or society has
not been totally accomplished yet, and there is no total agreement
between scholars about it. But the most important thing is that such issue
is being analyze and taken into consideration whenever conflicts arise.
Therefore, cultural patterns and new human rights such as the right to
communicate can be regarded as new constitutional patterns. Universal
human rights are elements of “universal culture,” without a global State
but as global society, closely connected with national or regional identity
as culture created by human beings (Peter Häberle, 2003:185).
New Constitutional Challenges and Principles for a
Globalization Period
121
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