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Section 4. Constitutional Law Section 4. Constitutional law Section 4. Constitutional law Ednan Galvão Santos, lawyer, professor and Independent Researcher Master’s Degree – University of Coimbra, Portugal E-mail: [email protected] BACK TO BASICS: THE MULTIDIMENSIONAL CONCEPT OF CONSTITUTION Abstract: This article systematizes ideas of theoreticians from different countries and who advo- cate divergent conceptions about Constitution, a circumstance that reinforces the usefulness of this research in the current context of an increasingly global and cosmopolitan Constitutional Law. The inherent complexity of a Constitution can not admit that its meaning is reduced to a single point of view. It is time to reflect ad build a multidimensional concept of Constitution. Keywords: Constitution, Multidimensional Concept, Constitution Law. Introduction The Science of Constitutional Law has been built the State and becomes increasingly global, it is im- in a complex, careful and refined way over the years. portant that scholars and all society of interpreters New theories are born every day in the most diverse of the Constitution be able to continue the reflection parts of the world, engaged with problems and con- related to the essence of Constitutional Law. From stitutional questions of different kinds. The advance this premise, I undertake to revisit the theme of the towards the proliferation of theories and approach- Constitution concept. In this study, I explain the es, however, is not irreconcilable with the medita- ideas of theoreticians from different countries and tions on traditional concepts of Constitutional Law. who advocate divergent conceptions about Consti- It is often necessary to make a return to the basics. tution, a circumstance that reinforces the usefulness Through the consolidation of elementary notions, of this research in the current context of an increas- the way to research about new institutes becomes ingly global and cosmopolitan Constitutional Law. more secure and structured. The different meanings of Constitution and If we make a cosmopolitan analysis of the con- the construction of a multidimensional concept stitutional and inter-normative problems that char- There are three most well-known meanings at- acterize the worldwide network of legal systems, we tributed to the Constitution: juridical, political and will identify a plurality of conceptual divergences in sociological. The first belongs to Hans Kelsen [1], the all spheres of juridical phenomenology (in the prac- prestigious theoretician from Prague, and is bifurcat- tice of judges and courts, in legislative work, in uni- ed into legal-logical Constitution and legal-positive versity debates, in political discourses) on elementa- Constitution. The positive Constitution refers to the ry institutes of the constitutional system. In a context Constitution created by the State from the exercise where Constitutional Law transcends the sphere of of the constituent power. The logical Constitution is 16 BACK TO BASICS: THE MULTIDIMENSIONAL CONCEPT OF CONSTITUTION the Grundnorm, which is a fundamental hypotheti- Constitution, because the Constitution does not cal rule, prior to the original constituent power and, have its essence in purely formal but instrumental therefore, prior to the state legal order. elements. Mortati argues that the Constitution de- Carl Schmitt’s political concept of the Constitu- rives from two instrumental elements: the political tion [2] expresses the set of fundamental political party and the purpose of conceiving as a single whole decisions of a people. From this point of view, only the set of interests gathered around the State. those norms that regulate fundamental matters for Georg Jellinek [7], a german scholar who is con- the structure of the State will be considered stan- sidered to be the systematizer and creator of autono- dards with constitutional status. For example, the mous science known as the General Theory of State, rules on the three powers (Judiciary, Legislative and adopts a concept that links the Constitution and Executive) are norms with constitutional value. State in relation to symbiosis: a factual power suf- The spanish jurist and scholar Sanchez Agesta [3] fices to maintain a the unity of the State. The essence identifies another definition, divergent in relation to of the state would be the Constitution and vice versa. the ideas of Kelsen and Schmitt: the institutionalist The Constitution is the main normative expression conception that the essence of the Constitution is of the State. not in the hypothetical fundamental norm and in the Karl Olivecrona, swedish author, deals with the fundamental decision, but in the social equilibrium idea of the Labor Constitution, that is, the existing in which this decision and standards are supported. and operative Constitution, composed of rules ef- The realist sociological conception, whose au- fectively operative and characterizing a political re- thor is the polish jurist and philosopher Ferdinand gime. Olivecrona explains: “a functioning constitu- Lassalle [4], sees in the real factors of power that gov- tion implies that some men have power over others, ern a society the true constitutional phenomenon. that there are rules that define their powers, and that That is, the real and effective constitution would there is some established way of succession to posi- not be the sheet of paper created by the constituent tions of power” [8]. power, but the set of sources or agents from which There are also deliberative theories, for which emanate the effective power of directing the course the essence of the Constitution is the dimension of of a community. Financial agents, religious entities, consensus around procedural norms that enable le- newspaper companies and representatives of politi- gitimate decisions. These theories are less concerned cal powers are examples of real power factors. with the material values ​​to be pursued and more with Other theories on the idea of Constitution​​ were the consensus in a democratic context. Examples are developed among the scholars of Constitutional Law the theories of John Rawls, Bruce Ackerman, John and deserve to be remembered in this article. I ex- Hart Ely and Jürgen Habermas. plain each one of them. John Rawls [9] conceives of the Constitution There are other realistic theories about the con- as a process of public reason. For him, the constitu- cept of Constitution. They assume an orientation tional consensus is neither deep nor broad: its scope comparable to the realism of Ferdinand Lassalle. is restricted and does not cover the basic structure, Italian professor Sergio Bartole [5], for example, but only the political procedures of democratic gov- defines the Constitution as the plexus of valuesand ​​ ernment. Rawls says that there are three requisites repeated practices of hegemonic political forces in a necessary to the quest for constitutional consensus: given community. His compatriot Costantino Mor- the existence of a reasonable pluralism capable of tati [6], adopting a point of view very similar to that extracting democratic principles from calculations of Lassalle, states that written norms are not the true of social interests; the application of these principles 17 Section 4. Constitutional law in accordance with the guidelines of a correct and point of view. The Constitution is not just a sociologi- reasonably reliable public argument; the encour- cal phenomenon. It is not a mere political entity. It is agement of the cooperative virtues of political life not just a strictly legal institute. The understanding of a (such as reasonableness, a sense of justice, a spirit of multidimensional Constitution, which is able to cover conciliation, and a willingness to compromise) by all those conceptions in a single concept, is the most political institutions. viable of all the theoretical proposals. J. H. Meirelles Bruce Ackerman [10], american scholar, elabo- Teixeira [13] adopts a truly comprehensive concep- rates a dualistic concept of Constitution. He says that tualization of the Constitution that may be related the Constitution is more democratic and political to the perspective I defend here. He argues that the than both legal and substantive or material. Democ- Constitution is an objective formation of culture that racy prevails over rights. The people are the ultimate includes, at the same time, historical, social, and ra- authority. Thus, it will always be possible to restrict tional elements. Meirelles Teixeira proposes the con- rights if this is the will of the people. cept of Total Constitution, which covers economic, “Contrary to the characterization of the Constitu- sociological, juridical and philosophical aspects. José tion as an enduring but envolving statement of general Adércio Leite Sampaio [14] proposes a multidimen- values, John Hart Ely conceives the Constitution as a sional concept of the Constitution as a result of the di- guarantee of due political process, in a clearly delib- alectical conjugation of normative-textual dimensions erative attitude. Subject to certain political rights and (normative statements), phatic-limiting-interactive related freedoms (for example, freedom of expression (the complexity of the real) and volitional-pragmatic and freedom of the press), all other rights must be de- (of will and action). fined by those democratically legitimated through due Conclusion process of law. These are Ely’s words: “my claim is only The conclusion of this study is that the term “Con- that the original Constitution
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