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Sartori

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ELEMENTOS DE TEORIA POLITICA – SARTORI

CONSTITUCION

La palabra constitución proviene del latín constitutio, que a su vez proviene del verbo consituere: instituir, fundar.
El de hoy la palabra constitución tiene dos significados totalmente diferentes:
· Un significado especifico y sustantivo
· Un significado universal y formal
En el primer significado, constitución es el ordenamiento protector de las libertades del ciudadano.
En el segundo, constitución es cualquier forma que se da a si mismo un Estado.
Constitución: Estructura de la sociedad política, organizada a través y mediante la ley, con el objeto de limitar la arbitrariedad del poder y someterlo al derecho.
Históricamente hablando, el vocablo “vacante” del que se apropio el constitucionalismo del siglo XVIII para dar la idea de un gobierno de las leyes y limitado por las leyes.
Después de la experiencia del absolutismo y a medida que se afirmaron los grandes estados centralizados y centralizadores se comenzó a buscar una palabra que indicase las técnicas capaces de controlar el ejercicio estatal del poder; este termino acabó siendo el de constitución.

El termino constitución fue concebido como algo nuevo, adoptado y amado, no porque significara simplemente “orden político”, sino porque denotaba aquel orden político particular que no solo daba forma, si no también limitaba la acción del gobierno.
La idea de que este significado especifico de garantía deriva de un significado preexistente, es una afirmación y una ilusión óptica creada por los traductores modernos de Aristóteles.

Esto es, porque Aristóteles utilizó la palabra politeia que es fundamentalmente la configuración y la estructura de la sociedad; pero los modernos traductores lo entendieron como “constitución”, es aquí donde se comete la idea equivoca de que los Romanos crearon este termino de constitución, ellos solo crearon el derecho.

CLASIFICACION DE LA CONSTITUCION SEGÚN LOEWENSTEIN
a) Constitución Garantista
b) Constitución Nominal
c) Pseudoconstitución

Sartori, llama nominales a las constituciones que Loewenstein llama garantistas.

Estas constituciones nominales, son nominales en el sentido de que se apropian del nombre constitución.

Las constituciones nominales, son meramente constituciones organizativas, es decir, el conjunto de las reglas que organizan, pero que no limitan el ejercicio del poder política en un determinado Estado.
Estas constituciones describen un sistema de poder que no posee límites ni controles.

Las constituciones-fachada, son diferentes de las nominales en cuanto toman la apariencia de verdaderas constituciones.. Lo que las hace pseudo-constituciones, es que estas no son observadoras.
En realidad son soluciones trampa, porque en lo que concierne a la libertad y a los derechos son letra muerta.

Las constituciones a las que nos estamos refiriendo no tienen un objeto educativo, ya que ese no es el objetivo de una comunidad.
Las constituciones nominales describen realmente las reglas del funcionamiento del sistema, mientras que las constituciones de fachada no proporcionan ninguna información creíble.
En el caso de las constituciones nominales, el estado es legitimado por la constitución.
Si una constitución esta escrita es casi inevitable que con el paso del tiempo el documento formal y las constitución viva se alejen de toda relación del pasado y del presente.

La mayo parte de los países actualmente tienen una constitución, ya sea reciente o que conforme hayan pasado los años se haya estado reescribiendo.
Las constituciones recientes son malas porque algunas de estas son tan democráticas que ya ni son constituciones, o hacen el funcionamiento del gobierno tan complicado que impiden su buen funcionamiento o ambas.

RESUMEN DE TODO LO ANTERIOR

1. La palabra constitución ha sido re conceptualizada para denotar una técnica de libertad.

2. Que este objetivo ha sido frecuentemente oscurecido con frecuencia por la complejidad del modelo original y por el aislamiento por parte de los ingleses.

3. Que la tesis que mantiene el significado de garantista de la constitución, ha sido presidido por un termino mas vago y meramente forma, esto se debe a que hemos caído en la errónea traducción de la palabra politeias.

4. Que la equivalencia “constitución” igual a cualquier forma NO es la connotación mas antigua, sino una reciente disolución del concepto que refleja la ilusión jurídica por alcanzar un derecho purificado o bien el objetivo de utilizar la palabra constitución como una palabra trampa.

5. Existen por lo general dos casos: un termino garantista o un termino que es sinónimo de lo inútil.

6. La variedad de las denominadas constituciones, por lo tanto en nuestro tiempo pueden clasificarse en tres teorías:
a)Constitución Garantista
b) Constitución Nominal
c) Pseudoconstitución

7. La existencia de constituciones nominales implica que si no aceptamos la acepción garantista del termino ya no se podrá distinguir entre constitución y gobierno constitucionalizado.

ARGOMENTAZIONE * Il termine “costituzione” è stato nel corso del tempo (dopo vaghezze ed errori) RI concettualizzato (per garantire l’idea di costituzione come vincolo all’esercizio del potere * L’equivalenza “costituzione uguale qualsiasi forma di stato” riflette solo un’illusione: depoliticizzare il diritto * Solo l’interpretazione in senso costituzionalista/garantista del concetto di costituzione ha significato (altrimenti è solo un doppione di struttura) * Perciò la varietà delle costituzioni può essere classificata come costituzioni reali, di facciata, nominali * Solo l’accezione garantista del termine costituzione permette di distinguere fra costituzione e governo

ETIMOLOGIA DEL TERMINE * Dal latino constitutio (dal verbo constituere: istituire, fondare) * Nello jus publicum romano: gli editti e i decreti promulgati dall’Imperatore * All’epoca di Cromwell (1649-1660): covenant, agreement, fundamental law tentativi non riusciti per una cost. scritta

EVOLUZIONE * Rivoluzione americana (1776): Carta di Filadelfia; constitution * Rivoluzione francese (1789): “una società nella quale la garanzia dei diritti non è assicurata e la separazione dei poteri non è determinata non ha Costituzione” (art. 16 Dichiarazione dei diritti) * Paine (1791): power without right * Paine vs. costituzionalisti inglesi: Parlamento legibus solutus * Parlamento: Corona, Lord, Commons come corpo unitario * King in Parliament: il Re fuori dal Parlamento non ha poteri * Benjamin Constant (Cours de Politique Costitutionelle, 1818-20): Costituzione come garanzia del popolo; ciò che pertiene la libertà è costituzionale * Accezione costituzionalista del termine costituzionale come sistema di garanzie (diritti) per il cittadino * Limitare l’esercizio del potere sovrano con il diritto

LA VOCAZIONE FORMALE E PROCEDUALE DEL DIRITTO * XX secolo: positivismo giuridico (effettività del diritto e norma fondamentale): la forza del diritto puro (in sé) * separazione del concetto generale di diritto/diritto costituzionale (schema di governo) dalle garanzie costituzionali * approccio comportamentista allo studio della politica: attenzione ai processi distoglie dalle norme (rapporto costituzione/sistema politico)

DUE SIGNIFICATI DI COSTITUZIONE * ordinamento protettivo delle libertà dei cittadini (limitazione del potere): visione sostanziale della Costituzione * la forma di governo che ogni stato si dà: visione procedurale formale della Costituzione

LA CLASSIFICAZIONE DI LOEWENSTEIN * Costituzione in senso proprio (garantista) * Costituzione nominale: costituzioni semantiche, che organizzano il potere non lo limitano (diritto costituzionale formale degli stati autoritari: grundnorm e fuhrerprinzip) * Costituzione “di facciata”: assumono le sembianze formali/lessicali di costituzioni garantiste ma non sono (Costituzione di Stalin del 1936: “il governo delle masse popolari”)

LA VALENZA DELLA COSTITUZIONE GARANTISTA * Se rifiutiamo l’accezione garantista della Costituzione allora non è più possibile tracciare una separazione fra costituzione (diritti/libertà dei cittadini/certezza del diritto) e governo costituzionale (organizzazione istituzionale del potere e delle sue forme di esercizio)

NATURA DEL COSTITUZIONALISMO MODERNO * Ricerca di un equilibrio fra l’esercizio del potere (gubernaculum) e controllo del potere (jurisdictio) * La tradizione liberale da Locke in poi * Costituzione è tale se stabilisce un sistema decisionale intransitivo (dove non esiste soluzione di continuità all’esercizio del potere - cioè il potere è transitivo di struttura in struttura - si è in presenza di un potere il cui esercizio è formalmente indefinito o illimitato) * Il rapporto fondamentale fra Costituzione e democrazia

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