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Arkadiusz Górnisiewicz and Bogdan Szlachta (Eds.) the Concept of Constitution in the History of Political Thought

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Arkadiusz Górnisiewicz and Bogdan Szlachta (Eds.) the Concept of Constitution in the History of Political Thought Arkadiusz Górnisiewicz and Bogdan Szlachta (Eds.) The Concept of Constitution in the History of Political Thought Arkadiusz Górnisiewicz and Bogdan Szlachta (Eds.) The Concept of Constitution in the History of Political Thought Managing Editor: Katarzyna Michalak Associate Editor: Arkadiusz Górnisiewicz Language Editor: Mark C. Anderson ISBN 978-3-11-058191-1 e-ISBN 978-3-11-058192-8 This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License. For details go to http://creativecommons.org/licenses/by-nc-nd/3.0/. © 2017 Arkadiusz Górnisiewicz, Bogdan Szlachta and chapter`s contributors. Published by De Gruyter Open Ltd, Warsaw/Berlin Part of Walter de Gruyter GmbH, Berlin/Boston The book is published with open access at www.degruyter.com. Library of Congress Cataloging-in-Publication Data A CIP catalog record for this book has been applied for at the Library of Congress. Managing Editor: Katarzyna Michalak Associate Editor: Arkadiusz Górnisiewicz Language Editor: Mark C. Anderson www.degruyteropen.com Cover illustration: © 2017 4FR, gettyimages Complimentary copy, not for sale. Contents Editors’ Note and Acknowledgments IX Bogdan Szlachta 1 The Ambiguity of Constitutionalism 1 Bibliography 12 Paweł Kaczorowski 2 Epistemology of Constitution 14 2.1 Part One 14 2.2 Part Two 19 2.3 Conclusion 28 Bibliography 29 Alvydas Jokubaitis 3 Can the Constitution Do Away with Nation State? 32 3.1 The Phenomenon of Central and Eastern Europe 33 3.2 The Nature of the Nation State 36 3.3 The Conflict between Nation and Constitution 39 Bibliography 44 Waldemar A. Skrobacki 4 Remarks on the Legal and the Practical: The Rechtsstaat in Europe’s Development of the Rule of Law 45 Bibliography 60 Dorota Pietrzyk-Reeves 5 Magna Carta and the Rise of Anglo-American Constitutionalism 63 5.1 The Great Charter 63 5.2 Magna Carta as a Model in Medieval and Early-Modern Europe 66 5.3 Magna Carta in America 71 5.4 Conclusion 72 Bibliography 73 Kazimierz Michał Ujazdowski 6 The Case of France: Vitality of the Republican Legal Tradition 75 6.1 Idea of the Sovereignty of the Nation and Its Ramifications 76 6.2 Statism and Centralism 80 6.3 Opposition to the Rule of Judges 82 6.4 The Fifth Republic – Institutional Revolution within the Framework of Republican Tradition 84 6.5 Conclusions 85 Bibliography 86 Ferenc Hörcher 7 Is the Historical Constitution of Hungary Still a Living Tradition? A Proposal for Reinterpretation 89 7.1 The Historical Constitution of Hungary: A Diffuse Concept 89 7.2 Political Thought, Constitutional Culture and the “Philosophy” of the Constitution 91 7.3 Historical Layers of Constitutional Life in Hungary 93 7.4 Founding the Historical Constitution? The Golden Bull 93 7.5 Stephen Werbőczy 94 7.6 Stephen Bocskai 96 7.7 Transforming and Reflecting Upon the Historical Constitution: The Eighteenth Century 97 7.8 The Golden Age of Historical Constitutionalism: The Nineteenth Century 99 7.9 Anachronistic Afterlife, Death and Revival (?) of the Historical Constitution: The Twentieth Century 101 7.10 The Achievements and the Failures of the Historical Constitution 105 7.11 How to Reinterpret the Tradition of the Historical Constitution? 108 Bibliography 110 Arkady Rzegocki 8 Polish Constitutional Traditions 113 Bibliography 121 Igor D. Osipov and Leonid V. Smorgunov 9 Russian Constitutionalism 123 9.1 Philosophy of Law and Constitutional Ideas in the 19th and Early 20th Centuries 125 9.2 Ideas of Soviet Constitutionalism 130 9.3 Constitutional Ideas of the Human Rights Movement in the USSR 134 9.4 Constitutionalism in Today’s Russia 139 Bibliography 141 Bogdan Szlachta 10 Theoretical Problems in the Preamble to the 1997 Polish Constitution in the Perspective of History of Political Thought 144 Index 154 IX Editors’ Note and Acknowledgments The aim of the present volume is to discuss the notion of constitution from the per- spectives of history of political thought. Its scholarly intention is to go beyond the approach concentrating on the formal understanding of constitution and bring forward more complex historical and philosophic-political interpretations. Our point of departure was the need to revive the somehow neglected distinction between the idea of constitution as an act of conscious law-giving activity and the notion of consti- tution conceived as the set of fundamental political rules derived from the very nature of political regime and its historical development. We are fully aware that a multi-authored volume cannot retain the coherency and methodological unity offered by a single-authored monograph. Nevertheless, the het- erogeneous character of this volume is mitigated by the effort of the authors to engage the problems of constitutionalism in historical-political perspective. We would like to express our thanks to Dr Kálmán Pócza from Pázmány Péter Catholic University in Budapest for helpful remarks and suggestions. We also thank all the authors for their contributions. Finally, we would like to thank Katarzyna Michalak from De Gruyter Open for her assistance and advice. Dr. Arkadiusz Górnisiewicz and Prof. Bogdan Szlachta Faculty of International and Political Studies The Jagiellonian University in Kraków Bogdan Szlachta1 1 The Ambiguity of Constitutionalism Presently, in literature on the subject, the term “constitutionalism” (from the Latin constitutio – “polity,” “constitution”) is usually associated with the rule of law, a political system in which government actions are taken on the basis of and within the limits set by law. By such an association, the constitution is seen as a normative act of the highest order, from which the highest public authorities (forming and applying the law) draw their authoritative competences. Constitutionalism, therefore, would refer to the most important element of reflection about the “legal state” (Rechtsstaat), in which every act of authority is based on and remains (or should be based on and should remain) within the framework defined by law. Without going into divagations about the legal state, carried out since the second half of the nineteenth century and usually in connection with the popularization of legal positivism, or about the criticism of the supporters of normativism conscious that positivism, contrary to its essence, does not justify the existence of standards from which the legislature derives its right of fixing normative acts, since it is to be the authority setting the provisions of constitutional status, it should be noted that historians of political thought speak carefully about the dominant association of constitutionalism with the concept of providing for the existence of a written basic law. Even if they join in a debate led by lawyers or political scientists engaged in the study of constitutionalism, they still claim that the concepts justifying the restriction of the will of legislators by some nor- mative requirements appeared already in antiquity, not finding them in the written “basic law,” but in the standards of customary, fundamental rights, the standards of God’s or natural law as well as the law of nations, hence in the standards of a “higher law” preceding and limiting the will of the legislator.2 According to histori- ans of political thought, the term “constitutionalism” describes concepts that justify 1 The Jagiellonian University in Kraków. 2 See i.e.: Elkin and Soltan (1993); Elster (1988). However, while the rules binding the will of the authorities, and perhaps also setting the grounds for the system in which they work, need not be included in the written act, they should have a normative and not merely nominal value, since oth- erwise even the written constitution is not honoured by the authorities (although a respect for it is required from the governed). For example, until the late 1980s, in the name of achieving the objectives set by the communist ideology the authorities in the so-called “people’s democracies” frequently violated regulations of the nominal constitutions, did not honour any solid legal principles, following the rules determined arbitrarily or they were guided by the terms of the current effectiveness of the ac- tions; despite the fact that these constitutions granted the citizens of these states (here I am avoiding the problem whether or not they were states) individual rights, for example, to freedom of expression or assembly. The authorities involved in formal constitutional regulations sometimes applied other rules (of an extra-constitutional or even non-legal character), challenging the rights formally held by citizens. Open Access. © 2017 Bogdan Szlachta, published by De Gruyter. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivatives 3.0 License. https://doi.org/10.1515/9783110581928-001 2 The Ambiguity of Constitutionalism opposition to despotism/tyranny (in which the will of the ruler is not limited by a “higher law,” but is treated as the only source of law), and today also against authori- tarianism, referring sometimes to a written constitution, but to some extent allowing actions against the rights and freedoms of individuals. The dominant approach today, binding both constitutionalism and the rule of law with the context of the rights and freedoms of individuals leads, however, in a different direction than the constitution- alism which, for the purposes of this text, can be called “classical.” Such an approach exposed the existence of a “higher law” as a kind of a “normative constitution” of a community with a material value (defined by natural, fundamental or customary law); in the attitude prevailing today more attention is given to the need to ensure the rights and fundamental freedoms of individuals in the written law, and to identify a number of operational procedures of public authorities, in which they should exer- cise their competences, indicated also in the written law.3 In a contemporary sense, constitutionalism was to be born as a result of the denial of absolute monarchy in the 17th-20 th centuries, and the introduction of a constitutional monarchy in which the king, remaining the highest public authority, was to operate on the basis of and within the framework specified in a written act (even if he were to impose it by himself).
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