ABSTRACT
Introduction: A Brief Description of the Problem and of my Thesis At the beginning of this contribution we would like first of all to underline that our approach is concentrated on the function of the constitution as a way to provide a democratic rationalisation of political power. With this conception we refer to the fact that a significant contribution of constitutionalism has been to organise societies characterised by inequalities, within a project to reduce the inequalities themselves, in the measure in which they are a cause of discrimination in the full exercise of rights. In our approach, then, legal norms contained in the constitution may not be seen only as a means to trade off between different legal interests. Indeed, the constitutional construction includes the concept of fundamental rights, to be related with the political expectations of individuals and groups. The fulfilment of these expectations legitimates the constitution in front of the society. Constitutional rules contain indeed, values, political and ideological principles, programmatic principles, public and individual duties, as well as different kind of sanctioned commands and permissions. For these reasons, as we can see from the history of constitutions, constitutional rules deal not only with the regulation of the present situation, but they also aim to support given patterns of social, political and economic evolution. According to our approach, in constitutional interpretation it is not only the balancing of arguments that really matters. It is important to find legal reason supporting the process of subsumption of the dynamical principles and values, included in the constitution, within the activity of the legislator. For this reason it is important, among others, that there is a public debate permitting the joining together of the different approaches to the mentioned operation of subsumption. In presenting evidence for this thesis, we aim to show how our approach may be
consistent with the challenges of multilevel constitutional systems and the efforts to found a multilevel democracy. The Production of Legal Rules must be Considered a Science: Indeed, as Many Sciences deal with the Dichotomy ‘Being-Becoming’ The object of many sciences is the study of the processes of transformation. Also, in physical sciences, we may find a ‘dichotomy’ between the static, deterministic, approach, which can be related to the physics of ‘being’ and the thermodynamic description, dealing with irreversible processes, which can be connected with the ‘becoming’ (Prigogine, 1978-1986, p. 24). What is important to point out is that in the first approach the equations are symmetrical with respect to time, whilst in the second case they are not. Still, the different approaches ought to coexist in the measure in which any of them specifically complies with different attempts to reconstruct and to describe the reality. But here it comes a first point that may be related with the relationship between physical reality and the social reality, whose complexity is the object of constitutional science. Indeed, whether we want to acquire some knowledge of the reality or we want to deal with it, making experiments or otherwise making use of physical properties of the matter, we need to have a description of the reality. This description is functional to the kind of phenomena we want to operate with. This holds true also for legal science, provided that it aims to operate within a social context. In this way we may find a first aspect of the relationship existing between physical science and the science of the constitution. A second point is related with the fact that the science of the constitution as well as jurisprudence deal with phenomena that are characterised by a high degree of irreversibility. In law, time matters and the changes that occur within time transform in an irreversible way the person and the society. When the European Court of Human Rights affords just satisfaction to the injured party (art 141 ECHR), in many cases it cannot possibly restore the original state or condition. Still, the aim of the ECHR and of the activity of the Court is to lead to a change in the legal practices in the different member states, which prove to lead to undesirable infringements of the human rights. The aim of ECHR is to produce a transformation addressed to achieve a more desirable state, in order to deal with undesired irreversible changes by means of the introduction of new changes, compatible with the Charter. As another example, we may say that, in the period of the constitutional transition, the Polish Constitutional Tribunal has been dealing with the rights legitimately acquired by the citizens, prohibiting the derogation from them. The purpose of the legal activity, including jurisprudence, cannot be said to deal uniquely with irreversibility. When dealing with contracts, its aim is to guarantee that the values of the mutual promises or obligations may balance, in a way that may be measurable or accountable. Still, when we deal with public law we are confronted with irreversible phenomena, and with the inequality of the social actors. The rule of law, if it has to deal only with the balancing measure of different obligations, may not be politically accountable within the field of the
purposes of a given society. Still, the legitimisation of the political power rests also upon some optimisation of the dissipation that may occur in achieving a given purpose. Therefore, the science of constitution and of legislation deals with irreversible processes in time, as well as with the confrontation between values and the objective reality within the different periods of time. Indeed, between the end of the 18th century and the first part of the 19th century the study of the ‘science of administration’ was denominated ‘statistics’ (Vincenzo Cuoco, 1990, reprint). The authors that have been studying the latter concept have been stressing the relationship between statistics and constitutional, legislative and administrative policies (Sofia, 1988, passim).
