RICERCA ITALIANA     

Constitutional cosmopolitism and juridical-political dimension of the fundamental liberties in the Euro-mediterranean area

Università degli Studi di Teramo

Abstract

The present research program intends to evaluate the theory of constitutional cosmopolitism in consideration of the recent democratisation processes as well as of the development of fundamental rights in the Euro-mediterranean Countries. The project – divided in two steps – takes origins from a necessary preamble, examined by scholars of political history (unit of the University of Camerino), regarding the constitutionalism tradition, its propagation in the Western Countries, and those ideological roots merged into the Declarations of Rights realized during the bourgeois revolutions which still represent the ideal basis of the constitutionalism and of the fundamental rights.
The research will therefore analyse the actual trends of the Constitutional State Model, especially regarding its extension to Countries previously alien to the constitutionalism tradition, in order to evaluate the functionality of this model as well as of the basic fundamental rights structures in the Euro-mediterranean Countries recently affected by democratisation processes. It will also analyse the aspects of the democratisation processes in the Euro-mediterranean area, in order to put under evidence the various aspects of the different local forms of constitutionalism in this region. In this analysis the unit of University of Teramo will also stress the different forms of relationships among individual subjects, intermediate groups and public powers into these juridical systems; the research unit at University of Macerata will consider the juridical dimension of the relationships between individuals and private powers.
The main goal at the end of the research activities is to obtain a final verification of the reliability of the theory of constitutional cosmopolitism, which means to evaluate if it is possible to recognize homogeneous propagation processes of rights and warranties into the Euro-mediterranean area. <<<

Principal Investigator

Francesco RIMOLI Università degli Studi di TERAMO

Research Objectives

The aim of the present research project is to verify the reliability of the constitutional cosmopolitism in the Euro-mediterranean Countries.

It is possible to identify six different middle-term goals:
1. The cosmopolitan approach is a typical aspect of the constitutionalism, at least from the beginning of the big bourgeois Revolutions, that fixed its basic principles from a juridical perspective; the universality of human rights is in fact affirmed from 1789 on, and since always represented a stable principle of the western juridical heritage, although hardly maintained in certain periods.
A first goal of the research project is to analyse the philosophical and political roots that concurred to define this form of internationalism of human rights. This goal represents a premise for the development of the research: it will in fact put under evidence how juridical cultures based on ideas of laicism and distinction between political and moral areas different from the ones produced by the western culture during the modern age could assimilate the fundamental rights tradition and its theoretical premises, like the individualism.

2. The Constitutional State until its actual structures had very different and often hard developments. Nevertheless, its conceptual model seems to be very homogeneous and compulsoriness, also because of the homogeneous cultural environments where this model took place. The continuing differentiation of the western societies, already started at the beginning of the 20th century, but increased through the multiculturalism approach, put the constitutionalism theory under pressures very hard to eliminate through the mere integration.
Aim of the project is to redefine the main characters of the Constitutional State, in order to produce a compulsory model of constitutionalism which has to be verified under the different experiences made by both the recently democratised Countries and the Western Countries affected by multicultural phenomena.

3. The analysed area has recently been affected by democratisation processes that deeply redefined the characters of the institutional structure. We remember the sudden and contradictory process followed to the fall of the Soviet Union and the Eastern European Countries, as well as the hard and difficult democratisation of some Arabian Countries of the Euro-mediterranean area, first of all Turkey, candidate to become a member State of the European Union. There are obviously different religious, cultural, juridical contexts affected by such democratisation processes; nevertheless, all of them seem to agree with some fundamental premises typical of the political-juridical Western tradition, as the protection of fundamental rights, also through a difficult attempt to define the border lines between political experience and religious faith. Goal of the project is the define through a comparative approach similar and different aspects between these constitutional traditions.

4. In order to evaluate the compulsory functionality of a Constitutionalism of human rights in recently democratised Countries, as well as in Countries affected by expansion of the multicultural society, it will not be enough to examine the historical and theoretical bases of the different juridical traditions; it will be instead necessary to evaluate the functionality of the protection of human rights in front of the public powers, with a traditional approach of study of the institutional organization. A further goal of the project is therefore to define the relationships among individuals, intermediate groups and public powers on the ground of the human rights and the juridical warranties, of the political participation, of the use of financial resources, and of the local private autonomies.

5. It is been many years that the juridical theory has begun to pay attention to the interpersonal aspect of the constitutional liberties, in a de-instititutionalised society more and more threatened by private powers able to influence the juridical situations of weak subjects, while the juridical structure cannot comprehend its strategies and, therefore, cannot use its protection mechanisms. Goal of the project is therefore to analyse this aspect, under expansion in the societies affected by globalization processes, that realize a "space" of juridical relationships impossible to insert in a national or international order: for the Eastern European Countries it is necessary to analyse how the join of the free market by most of these Countries can go together with the principle of equality and the fundaments of the welfare state; for the Arabian Countries it is instead necessary to evaluate the laicism principle as regards the effectiveness of the constitutional rights in religious traditions and institutions radically different from the fundamental values of the culture of rights and liberties.

6. The constitutionalism showed from its first times a compulsory nature, typical of a tradition aimed to influence the political and juridical structures through certain basic principles realized in a millenary human experience. Regarding the expansion of the constitutional model in European areas traditionally considered alien to its cultural heritage, the constitutionalism could nowadays loose most of its compulsory nature and become a mere descriptive instrument of juridical experiences with a basic normative common ground. The theoretical approach of the project must therefore be proofed taking account of the normative holding of the protection of fundamental rights in the considered geographical areas, affected by a growing join to values and structures of the European constitutionalism. <<<

Timescale

24 months

National and international background

Since years there is a debate about the new universalism of fundamental rights, that mainly regarded the expansion capability of the Constitutional State, connected to the generalization of a common heritage of fundamental rights. This scientific debate showed a strong multidisciplinary approach. From a philosophical view, we must remember the contribution of Jurgen Habermas, who revived the cosmopolitician right tradition of Kant and stressed the transformations of the universalism of rights in the "post-national constellation". Following this point of view, the more recent studies on human rights and citizenship faced the cosmopolitism as an attempt to offer a constitutional solution to the often deregulated phenomenon of globalization. The growth of a global market and the bigger circulation of goods and ideas posed questions about the traditional form of the national State, and therefore about the citizenship rights and liberties. Regarding this last aspect, Italian authors like Zolo and Costa analysed the diffusion and articulation of the citizenship.
Under the point of view of Constitutional Rights studies, we remember the works by Peter Haeberle, that focused on concepts like "cooperative constitutional State", "open society of the interprets of the Constitution", "global image of the constitutional State" and, in a specifically European perspective, "common European constitutional law". The most recent study about the dimension of rights in the scenario of the multicultural societies has been deeply influenced by the contrast among positions based on the classical liberalism, communitarism and multiculturalism: positions present in the works by Brugger, Huster and Kymlycka.
Even in Italy in the last years the debate on the new universalism of human rights caused a very lively confrontation, which involved scholars of constitutional law, philosophy of law and of politics like Ferrajoli and Facchi.
Regarding the constitutional cosmopolitism – which is the core of the present research project – these studies put under evidence that this is a phenomenon with a continuity, able to be critically analysed. After a initial enthusiasm about the chance to export typically west-oriented systems, the doctrine is now careful about the chance of generalized success of these approaches. We therefore see the opportunity and need to study the fundaments of this model and of its difficult to be adopted in the praxis.
The constitutional cosmopolitism is analysed also by the international law, either through a new meaning of the self-determination idea, which would assume an "internal" dimension under this point of view, or through a difficult universal affirmation although the formal acceptation of the basic international law instruments of first or second generation. Less certain is the debate about the reconstruction of individual juridical situations internationally protected with regard to intermediate groups.
In the economy law, in the end, the study of the material dimension of liberties as fundament of a possible – and in fact real – observation of the phenomenon following the opposite dimension of power, already accepted by the constitutional law studies, is under analyse and stressed the attitude of "private powers" to reduce the spheres of individual liberties like the public powers do. Under a different perspective this phenomenon is studied by the German doctrine as a "horizontal dimension" of the protection of fundamental rights, cleared by the categories of Drittwirkung. The Italian doctrine admitted the need of a horizontal declination – in the private relationships – of the discipline of individual rights as their limitation in order to protect the liberties of the others, especially regarding the economic rights and the political communication. This perspective aims to affirm the warranties of rights and values of constitutionalism also in the new relationships among private powers present in the juridical systems. This view stresses different theoretical approaches that will be object of the present research. An interesting methodological perspective comes also from the study of the relationships between big international companies and juridical production, in front of the reduction of the fundamental rights to mere interests in the normative process of the global dimension.
We can generally affirm that the juridical and philosophical-political science paid a basically occasional attention to the topic of this research, as there is a lack of general studies on it. This subject has instead always been analysed by interesting but nevertheless partial approaches by now. This puts under evidence the need of a research aimed to a sever study of the constitutional cosmopolitism also taking account of the foreign studies – American, English and French - already started. <<<