1. Il successo di una formula . – La fortunata espressione “patriottismo costituzionale”, diffusa e sostenuta da Jürgen Habermas, è recentemente spesso ripetuta – al di la della cerchia degli specialisti – da personaggi (in ispecie politici, ma non solo), among which assumes significance as
As the expression above, as extrapolated from all the speeches are more extensive, could not exactly make the thought of our President, is - to compare with other actions and statements - clearly "representative" of the essential characteristics of "constitutional patriotism.""What unites us and encourages us in this effort, the great, vital resource of the republican Constitution. There is no common ground better than a real, deep, working constitutional patriotism. This is, in the new, modern form of patriotism in which to live the covenant that binds us: our pact of national unity in freedom and democracy "[1 ] .
In fact, while patriotism is referred to a community of people linked by historical, religious, ethnic, in the Constitution is "the patriotism of a people united not by the constraints it is considered traditional and typical of the nation, but from those principles and values \u200b\u200b(for example, the value of the person and the democratic method, mentioned by the President Napolitano) that are set in a constitutional pact "[2 ] .
The fact remains that today in the usual sense, the Constitution is a covenant, or more accurately a written agreement, and then the loyalty and the loyalty of citizens should be given to an act (provided), or a document. That is a piece of paper "on which satirized Lassalle [3 ] .
The constitutional patriotism, despite the critical preventive (and realistic) to Lassalle, looks like (the only) form of integration possible in a contemporary society. The 'inclusion of the other "(title of a work of Habermas) is neither assimilation nor closed to the outside, but consists of a steadfast commitment to the universalistic principles of the Constitution, with the result to allow the coexistence, within society, a plurality of world views, and "tables of values." It would, in other words (the only) way to exorcise possible conflicts arising from cultural differences, ethnic (and economic), probably growing in a globalized world characterized the exponential migration. And so the resolution in relation to all conflicts (intra) possible, of that "fight to the death with no possibility of reconciliation, such as between 'God' and the 'devil', which Max Weber attributed to contrasts between "values". The dissolution of the unsolved riddle of history that Marx saw as communism, so it becomes, in the current historical moment and in relation to it, the character (and value) of "constitutional patriotism."
2. corollaries of "constitutional patriotism" . - This view leaves unanswered, why not clarified, are key issues, both related to the adjective "constitutional" and hence the term, namely the constitution. If this is a meaning or another, completely changes the concept, legislation, constitutional patriotism. If
constitution means, according to Kelsen's concept note, which is characterized from being modified only by a special review procedure established previously, it follows that constitutional patriotism is that which summarizes the fairness and compliance against a set of coordinated rules. That "constitutional patriot" and what is more worrying, "non-constitutional patriot" (as far as I can achieve in the positive law, by shooting down) and those who consider both the constitutional Art. 1 or 2 of the Constitution in force (on the form of state and government) that Article. 16 (cd on the right of locomotion) or Article. 44 (on the right to housing) and so on.
If conversely the concept of constitution is free from the procedural requirement-formalist Kelsen, for access to a substantive vision of the Constitution, so the document (the formal constitution) is actually made up of constitutional provisions (the key decisions on the shape of 'Policy Unit) and on the other, that is the constitutional law, it shrinks from the consequences a bit' weird, because it is just the key decisions and not the set of rules characterized by rigidity.
The other problem is whether the constitution should be identified with the act so named or rather this (and even full) at his side, and before that if a community exists because it has a constitution or a constitution because it exists. As is well known that if the problem was in place (among others), Santi Romano and the solution of the great jurist was that
"Whatever the government and whatever the opinion that if they can give in terms of political it can not have a constitution and this can not be legal because the constitution means nothing more than constitutional. A state 'is not' in one way or another, for better or worse, may not have even a principle of existence, as there is no individual without at least the major parts of his body "[4 ] .that "existing" and "legal order" are (unless a distinction) contemporaries: stabunt simul et simul cadent.
The distinction to be made in this regard is one in which the institution is created with its constitution (or disappears with that) or when the constitution is created (or eliminated) with no starts or terminates the existence of ' institution. This is most often the case. Only in Italy, from 1861 onwards, it happened (at least) three times [5 ] .
Neither escapes the "constant" that precedes the existing regulatory environment, the case - not very often - the Constitution as a "treaty" between several countries (institutions), as is the prior existence (and agreement) to form the basis of these the new state. Even in this case, the relationship between existence and validity of the constitution of the institution appears asymmetric: while the birth or the end of the first implies the second one, the events of this are not decisive for that [6 ] .
In this sense, the existence of a constituent power (the actor) while in order to ensure variation of the acts (decisions) constitutional.
A side of this is the aspiration, which is typical of the modern age, because that is such a constitution should be able to put in your pocket (Thomas Paine). In other words it is written, in fact, the modern written constitutions have their antecedent, writes Jellinek, pacts and cards written in the English colonies in America, is remembered in particular those entered into between the settlers of Connecticut, those drawn up by William Penn, or the Covenant of the Pilgrim Fathers agreed on the Mayflower [ 7] .
This identity (= written constitution and "held") is not not unknown to modern conceptions, and, in part, to those following the French Revolution. Suffice it for this purpose, for the first, recall the view of Cicero on the Roman constitution "Our re publica non autem unius they ingenio, sed multorum, nec a life hominis, sed rates constituta saeculis et aetatibus [ 8] .
For the latter, among the first to formulate the French Revolution, that of de Bonald that "the constitution of a people is the way of its existence" in order to write it is not necessary because there is a constitution. Which was shared by much of the doctrine of the law later (by Hauriou to Saints Romano and Carl Schmitt), but current opinion, fed them regularly, a fact so obvious that the political units that were and are set up, and often very well established before they were invented in the written constitutions (and will later), is (perhaps intentionally) overlooked. So that, if he had done a survey on the question whether the Constitution should be written, bring back an overwhelming majority in the affirmative, and the opinion to the contrary would probably be a shrewd manipulator of some devilry. That this view, so contrary to historical reality, has the consistency (and not the reasonableness) of a tribe idola s (and holes ).
3. Since constitutions are (mostly) written, has advanced the theory that, to make a constitution do not need to have something in common: the language, religion, culture, and so on. But it is enough to be animated by good will, and preferably from (some) shared interest, to reach a satisfactory agreement and durable.
Writing and the ruling of the constitutional documents would not result in other terms, but substitute the identity of the elements above (partially) remembered. In support of this can take two circumstances: the first written constitutions - that is (only) the United States of America - been in place for over two centuries. Which can replicate the success of the U.S. is rara avis, because usually the European written and the longest, exceeding the maximum sixty. And more than anything else that this proves the wisdom of the choices of American constituents (the "Content"), rather than the written and enacted the constitution. The second
that prevail in the contemporary world model "society" than "community," write the constitution would be a sign - and a consequence of this "ethos" modern.
Although this argument has much truth, but is weak at the moment "genetic" and causes. In fact, if not solve the problem, continuing with the example of the U.S. Constitution, the Constitution (and the consequent duration), was due to the fact that the founding fathers (and the vast majority of the population then) were the Wasp, that whites (the blacks not voted) and Anglo-Saxon Protestant (mostly followers of a particular form of Protestantism) to be able to reach an agreement among people united by language, race, religion, theory and practice was legal, so to say, extremely easy by this common identity. But if, conversely, were three or four different ethnic groups (and budget) of many religions, speaking different languages, no one grado di affermare che si sarebbe raggiunto un accordo e più ancora che la durata di quello sarebbe stato di oltre due secoli. Piuttosto l’esperienza storica dimostra che – gli ultimi casi sono stati quelli della Iugoslavia, dell’Unione sovietica e della Cecoslovacchia – il tutto sarebbe andato presto in frantumi [ 9 ] .
E, peraltro, finché quegli Stati non si sono dissolti ciò che li ha tenuti insieme non è stato un consenso a un accordo tra volontà arbitrarie (e razionali) - cui può ricondursi un patto stilato in un documento - ma la dittatura sovrana del partito comunista. È stato il potere illimitato di questo a sopperire all’inesistenza – o alla debolezza – dei legami comunitari tra etnie e popoli diversi per lingua, religione, storia, costumi: se all’espressione della volontà popolare fosse stato riservato uno spazio se non uguale non troppo lontano da quello riconosciuto in Stati non totalitari, probabilmente si sarebbero dissolti molto prima.
Per cui appare chiaro che l’unità delle volontà – o del consenso – nel costituire e conservare un’esistenza comunitaria è il presupposto necessario perché possa essere tradotto in una costituzione scritta, statuita e durevole.
In altri termini è il contesto (cioè la comunità) dove si decide di darsi una costituzione scritta, a determinare se questa have the character of the constitution "Weber", that "the real possibility of disposition to obey ... against the force of imposition of government authorities subsisting." If it is true, as Weber states that "the concept of" constitution "used here is the same as used by Lassalle. It does not coincide with the concept of a constitution "written" and kind of constitution in the legal sense "[10 ] ,
is also true that a constitution with high difficulties to be accepted into the social group - that is, not which procure consent and obedience to the rulers, it is quite useless as costituzione anche “giuridica”, giacché il diritto non prescinde dal problema della efficacia dell’ordinamento, che anzi ne è una caratteristica intrinseca e peculiare.
Il problema specifico che si pone è la possibilità che l’istituzione politica si fondi solo su una convenzione (chè se si fonda anche su una convenzione, la questione non si pone) sia nella forma del patto che del “rescritto”, o che occorra dell’altro (e prevalente). Dato che la politica (e il diritto) attengono alla vita “pratica”, e che, come sopra cennato è assai difficile che una “pattuizione” possa avere vigenza durevole se non poggia su una certa identità (e rate on an assumption of homogeneity), the solution can not be negative. To think otherwise you would need to cite some historical examples. But since you do not see, we have to consider it a mere wish.
To this must be added that although the character of the Constituent Assembly (treaty, written and acted) has significance in the context of a collective ethos, it is even more true that the constitution is "the solution of the following: population data, customs, religion, geographic location, political relations, wealth, good and bad qualities of a certain country, find the appropriate laws? " [ 11 ] .
E quei dati, oltre a esulare dalla costituzione statuita, tuttavia determinano in modo cogente il “contenuto” il successo della costituzione. Con la conseguenza che o questa è congrua a quelli o diventa incongrua, perché inutile a costituire un regime politico stabile e cioè inutile al (di essa) scopo tipico e peculiare.
4. Ma è proprio vero che, nell’ambito dell’ethos moderno, la “statuizione” della costituzione ne esaurisce il carattere fondamentale?
A leggere i primi documenti costituzionali e le concezioni che li hanno ispirati, risulta che accanto – e prima – della forma dell’atto (And document) a constitution, is the novelty of the legislature (the people) to form its fundamental feature, not least of writing and ruling the act.
works Sieyes and the preamble of the Constitution of the United States [12 ]
they are obvious examples. And, likewise, the concept of constituent power is the secularization of Christian political theology, especially the Thomistic providential divine right, which reserves to the community's decision to choose the form of organization of power [13 ] .
The decision was based constituent that is the constituent power of a nation conscious of its historical existence and political existence in which part (most of) those determinants that constitute its identity.
Hence the constitution is not a deliberate act for any nation and state, but peculiar to that people (and that State). How effectively de Maistre wrote, criticizing the French Constitution of 1795 (the "conductor", which lasted four years), this was made for man, but immediately added "there is no man in the world. I've seen in my life, French, Italian, Russian ... "condemning the illusion of constitutions made to table (and by the light of ideology). Il carattere storico-identitario ( come risulta – tra l’altro - dal concetto di Nazione formulato da Sieyès) non è meno presente nel pensiero borghese di quanto lo sia in quello contro-rivoluzionario.
Nel suo “stato nascente” il pensiero borghese è un pensiero forte, presupponendo una comunità consapevole della propria unità ed omogeneità come dei diritti conseguenti derivati non dal diritto positivo, ma da quello naturale [ 14 ] .
Nelle odierne condizioni di (decadenza e) travisamento del pensiero borghese, è stato espunto tutto quel che lo rendeva forte: non l’unità (e l’omogeneità) presupposta, non il diritto natural, not the legislature, not the right (natural) to shape the political form. It remained only that there was less incisive and decisive: the character written (and held) of the Constitution. Furthermore way be construed to limit and dilute the strong connotations of the concept of bourgeois revolution. One example (among others) the systematic oversight of the legislature, and (connected to it) interpretation of the Constitution as a document unchanged (in fact subject to the application and interpretation of the powers that be), and "the constitutional" as a compromise between political parties and "family" policies: stands above all the tacit (?) the giving of a few characters from the "sacred" to the agreement / document / document, almost a reflux of secularization.
However, in addition to the inability of such a concept to represent reality, there is a problem until it is able to contain that which is volatile in nature, as something organic (and real) and not mechanical (and ideal)?
As mentioned above, while the community is always on the move [15 ] the regulatory system (meaning the legal system as conceived by a normativist) is whether, as claimed Hauriou, static (and "transcendent "). At the risk of direct their patriotism to an object is obsolete and not (as appropriate) that actually exists [16 ] ; and the consequence of triggering a conflict between legitimacy and legality [17 ] .
Why the legitimacy concerns a relationship between man and man (the Weberian power) has been invoked for the relationship between man and the institution (the state, political regime, government), but it is (at least) unusual bother the relationship between man and act (rule) and patriotism (which appears when using the expression, something not far from the legality) the same holds true. In the sense that it is true that a Constitution helps to create shared consensus of the rulers in power, it is difficult to replace and substitute any component of legitimacy. Same for patriotism: if the Constitution, even more in the sense of formal constitution, could replace devotion to the community (country, fatherland), in its conformation (and heritage) and historic ideal, it follows that we would no longer Italian, French , English, German, but parliamentarians, semi-presidential-parliamentary monarchy, federal-court clerks and so on.
missing the constitutional patriots-the wisdom of Socrates, who in Presopopea laws (in the Crito) is accompanied by all the Cities (kai to tes koinon poleos) [18 ] ; rather than isolate the more the formal constitution, then that is also depriving the rest of the legislation [19 ] .
Instead of Renan that when listing the main factors that make a nation (race, language, religion, common interests, territory) excludes that may be taken separately and (separately) sufficient.
5. For the constitutional-patriots, it seems, it seems enough to a document (which is not even mentioned among the factors of Renan, even in the genus law or laws), to substitute all of those factors.
To read the latest contributions appeared on network printing in fact, one wonders, doubting, if there are political forces willing to "underwrite the art. 33 paragraph 3 of the Constitution (the right to establish schools) ... or art. 11 (the rejection of war), or Article .... 2 nd paragraph 32 (prohibition of medical treatment required) and you could go on with this list [20 ] .
list seen clearly from all the constitutional provisions without exception. From then to sovereignty right to housing, the choice of the democratic form of not being subject to that care, the legislative function by promoting handicrafts. All treated equally and "constitutional" (as hard).
more guarded and acceptable interventions. For example, to Barbara Spinelli on "Print" where after having argued for some institutions and constitutions have such a powerful force - the force of the Decalogue - to replace controversial identity as the nation's ethnic or identity, "reads:" Do not Habermas and the Left are to have invented the concept, not a German case, constitutional patriotism: I coined in the 70's a conservative, Dolf Sternberger Sternberger ... For the constitutional patriotism was the only identity possible for a small country Half the nation's ethnic nationalism, dictatorship and war. A condition that is spreading with globalization: all the nations in the world, sovereignty halved. Or that of Gianfranco Fini, who noted "The dramatic experience of the last century has taught us that the most solid base of national sentiment lies in the value of constitutional patriotism, then those principles of liberty, democracy, equality and respect for the person who put to protect the people ... ... the basis of national sentiment there can be no ethnicity but the political will to share a destiny and a plan, nothing is more solid and deeper than the identification the values \u200b\u200benshrined in the Constitution "[21 ] .
Where the call in the first case is not merely the securities documents and standards, but the institution, and in the second, also, the principles and values \u200b\u200b(that is - essentially - to shape key decisions on policy), community destiny and the will. All these elements are decisive and not reducible to the formal constitution.
And this is the link to something actually existing, common (EU) and not the result of many legal writings. Of which we mention two. One of Machiavelli "the country is well defended in any way to defend himself, or with ignominy or glory [...] Where he decided the whole health of the nation, there ought not to give any consideration of right or wrong, nor piatoso or to cruel, neither praiseworthy nor ignominy, indeed, than any other place, follow all that the party that saved her life, and mantenghile freedom "[22 ] .
If Machiavelli had had a conception of constitutional-patriot (in addition to forgetting to mention the Constitution), would not have cleared the right and wrong, the laudable el'ignominioso. The other of Marx where he describes the patriotism of the French revolutionary armies "patriotism was the ideal form of the feeling of ownership "[23 ] ; that patriotism linked to a concrete form of production, that is the reality.
One could go on and on.
6. So whether it is possible that there may be a constitutional patriotism as a founding moment (and only) political existence, the answer first, what is meant by the constitution.
certainly seems bizarre, given that "the defense of the Fatherland is a sacred duty for every citizen" (Article 52 of the Constitution), which asks the good citizen to die to defend the art. 45, paragraph II of our constitution (The law safeguards and promotes artisanal), because the same artisans would certainly be very reluctant to do so.
It is therefore essential to identify the Constitution with its core (the sovereignty of the democratic form of freedom).
other even in this case is constitutional patriotism as a political synecdoche, and so even if not bizarre, in part, because to be the object of that feeling, that will unify appears most suitable for the entire national existence: including history, customs, geography, religion and language.
Klitsche Teodoro de la Grange
[ 1] V. Statement of the President Hon Napolitano cited by the article " Print " Professor of 24/01/2008. Marcello Pera. Back to text.
[ 2] V. Marcello Pera article cited . Back to text.
[ 3] v. Überverfassungswesen trad. com. Clement Forte in Behemoth No 20. Back to text.
[ 4] Constitutional Law-General, Milan 1947, p. 3. Back to text .
[ 5] Questa constatazione va chiarita con le tesi di Santi Romano e di Hauriou. Secondo il primo anche nei periodi di transizione politica, prima di una regolamentazione compiuta, c’è sempre un diritto costituzionale, anche se rudimentale “il diritto è immanente a qualsiasi assetto politico, e l’unica negazione, logicamente e storicamente, possibile del diritto costituzionale sarebbe l’anarchia” (op. cit. p. 4). Ad avviso del secondo il governo di fatto può beneficare non della giustificazione giuridica, ma di quella “teologica” che si applica ad ogni forma (espèce) di potere… “è un modo di asserire (traduire) il natural and necessary power, the inability of human groups to exist without a government, the need to link the power to that of the welfare state ... "(see Précis de droit consitutionnel, Paris, 1929, p. 29). Back to text.
[ 6] The apparent contradiction between the affirmation of the Holy Roman Empire, but that each state has a constitution and the 'asymmetry' is resolved by the fact that the essence of the constitution is a power exercised by success (getting a certain degree of obedience) command in a community, thus giving form (and action) politica alla stessa. Per cui il potere (obbedito) è il nucleo essenziale di ogni ordine costituito. Torna al testo .
[ 7] V. G. Jellinek, Allgemeine Staatslehere (III libro) trad. it. Dottrina generale del diritto dello Stato , Milano 1949, p. 100 ss. Torna al testo .
[ 8] De re publica , II, 1. Torna al testo .
[ 9] Si noti che tutti i casi citati le costituzioni hanno in comune di essere frutto non solo di guerre – come capita per lo più all constitutions - but of a particular international and domestic political context. Back to text.
[ 10] V. Max Weber, Wirtshaft und Gesellschaft, trad it. Milan 1980, pp. 48-49. Back to text.
[ 11] J. de Maistre, Considerations sur la France , trans. com. Rome 1985, p. 47. In this it is clear that de Maistre is related to Montesquieu. Back to text.
[ 12] "We the people of the United States, in order to further refine our union, guarantee justice, insure domestic tranquility within, provide for the common defense, promote the general welfare and to preserve for ourselves and our posterity the blessings of liberty, do ordain and establish this Constitution for the United States of America. " Back to text.
[ 13] which view is shared by the Protestant doctrine contested by the other as part of the Catholic and Protestant theologians. For a more diffuse let us return to what is written in law and doctrine of the divine providential bourgeois Behemoth No 41, p. 5 ss. Back to text.
[ 14] v. For example, JE Sieyes, Qu'est-ce que le Tiers-Etat ? "The nation exists before all things, it is the source of everything. His will is always consistent with the law, it is the law itself. Before it and above it there is that natural law. If we want to be an exact idea of \u200b\u200bthe order of positive laws which can only emanate from his will, are in first place the constitutional laws, they are divided into two parts ... These laws are known as fundamental, not in the sense that they can become independent national will, but As the bodies that exist and act by virtue of them, can not change them. In every part of the Constitution is not the work of established power, but of the legislature ... A nation is formed only by virtue of a natural right. A government, by contrast, is only the result of positive law. The nation is all that can be for the sole reason to exist "trad. com. Milan 1993, pp. 256-257. Back to text.
[ 15] Haurion wrote that "the social order is presented as the slow movement of an ordered and uniform. "Précis de droit constitutionnel , Paris 1929 p. 62. v. previously the same volume, the criticism of the system "transcendent statique et du professeur Hans Kelsen. Back to text.
[ 16] As Renan wrote, "The existence of a reason (I will forgive the metaphor) a daily plebiscite, as the perpetual existence of the individual is an affirmation of life" while here the "plebiscite" should be addressed but not the existing standards and not to what exists today, but that was ruled over sixty years ago. Back to text.
[ 17] could doubt that most concern the legality is not a relationship between men but between men and Policies (Documents). Back to text.
[ 18] I will not go on the meanings of the term nomos and accuracy of its translation with the Latin lex. Back to text.
[ 19] What that Socrates did not happen, so much so that the laws include, of course freedom of the ancients, all spheres of national life, from marriage education. Back to text.
[ 20] VE carnivals. The words of the Constitution Brunetta el'assalto - Micromega-on-line. Back to text.
[ 21] V. The Future of Freedom, in Area, December 2009 p. 34. Back to text.
[ 22] Speeches, III, 41. Back to text.
[ 23] The 18th Brumaire of Louis Bonaparte , Rome 1977, p. 218. Back to text.
