LIBERAL CONSTITUTIONALISM: ORIGIN AND CHARACTERISTICS - HISTORY - 2024

The liberal constitutionalism was born as a philosophical, legal and political response to the absolutist monarchies that prevailed in Europe during the seventeenth century. Although it is considered that England was where the concept of the rule of law was born, it was the American and French Constitutions that were pioneers in this area.

Faced with the monarch with absolute powers and who used religion as a legitimizer, the rationalist philosophers (Rousseau, Locke or Montesquieu, among others) put reason, equality and freedom as the basis of the State.

Courts of Cádiz. Source: José Casado del Alisal, via Wikimedia Commons

The constitutional State, according to liberal constitutionalism, should be subject to what is established in its Magna Carta. There should be separation of powers, so that no body or person could monopolize too much.

Another of the main characteristics of this type of constitutionalism is that it proclaims the existence of a series of rights that the individual would have for the simple fact of being human beings. In addition, it declared that all people were born equal, ending the freedom of each individual where that of the others began.

Origin

Liberal constitutionalism has been defined as the legal order with which a society is endowed through a written Constitution.

This text, called by some Law of Laws, becomes the supreme norm of the country's legislation. All other laws have a lower rank and cannot contradict what is stated in said constitution.

In the case of liberal constitutionalism, its characteristics include the recognition of individual freedom, as well as property, without the State being able to limit those rights except in cases where they clash with those of other individuals.

Background

The Europe of the seventeenth century had absolutism as its most common political regime. In this, the monarch enjoyed almost unlimited powers and social classes existed with hardly any rights.

It was in England where they began to take the first steps that would lead to the Constitutional State. During the seventeenth century, clashes between kings and Parliament were frequent, leading to two civil wars.

The reason for these confrontations was the intention of Parliament to limit the power of the monarch, while the latter sought to safeguard his position. Eventually, a series of rights proclamations were drawn up that effectively began to set limits on what the king could do.

In continental Europe, the reaction against absolutism occurred in the 18th century. Thinkers, such as Locke and Rousseau, published works in which they placed Reason above the divine mandate under which the absolutist kings were legitimized. In the same way, they began to spread the ideas of equality and freedom as rights of man.

French Revolution

The French Revolution and the subsequent Declaration of the Rights of Man and of the Citizen picked up these ideas. Shortly before, the Revolution in the United States had also incorporated them into some legal texts and the country's own Constitution.

Although in France the consequences in practice did not approach liberal constitutionalism, historians consider that the most important idea was to consider the need for a written Constitution.

For the legislators of the time, it was essential that this Magna Carta be embodied in a document that made clear the rights of citizens.

Another of the bases left by the Revolution was the recognition of the existence of individual rights, inviolable by the State.

Bases of liberal Constitutionalism

Liberal constitutionalism and the State that arises from it have as their main basis the limitation of the power of the State and the increase of individual freedoms. It is, according to experts, to turn subjects into citizens.

The rights of each individual are included in the Constitution itself, although they are later developed in ordinary laws. This concept was reinforced with the division of powers, preventing any body or position from accumulating too many functions and remaining uncontrolled.

The sovereignty, previously in the hands of the monarch, the nobles or the clergy, became the property of the people. The rights of each individual were called iura in nata, since they corresponded to them by the simple fact of being born.

characteristics

One of the most important contributions of liberal constitutionalism was declaring freedom and equality as consubstantial rights of the human being. For the thinkers, these rights would have a character superior and previous to the State.

Freedom

The main characteristic of liberal constitutionalism is the exaltation of individual freedom in the face of state power. In practice, this means that each person has the right to express themselves, think or act as they wish. The limit would be not to harm the freedom of others.

The State cannot, therefore, impose deprivations or sacrifices against the will of each individual nor interfere with their private life. This is not an obstacle, as indicated, for the State to establish laws to prohibit harmful actions for other citizens.

Equality

For this type of constitutionalism, all human beings are born equal. This concept implies that the status of each individual should not be established for reasons of blood and family.

However, this equality does not mean that all men should be equal in, for example, their standard of living or their economic situation. It is limited to equality before the law and before the State as an institution.

This concept of equality was slow to put into practice. In the United States, for example, it was not introduced into legal texts until the 19th century. During the following century, so-called “civil liberties” were introduced, such as freedom of speech, the right to universal suffrage or freedom of religion.

Separation of powers

The state power was separated into three parts: the judiciary, the legislative power, and the executive power. Each one is exercised by different organs. One of the main functions of this separation, in addition to not concentrating powers in a single organism, is to exercise mutual control so that excesses do not occur.

State and individual

The State has the obligation to guarantee the life, liberty and property of every citizen. With this constitutionalism came the separation between the State and society, understood as a set of individuals endowed with rights.

The State reserved the legitimate use of force, but only to maintain the rights of its citizens. At the economic level, liberal constitutionalism advocated minimal state regulation of the economy, betting on the freedom of the market.

Crisis of liberal constitutionalism

Some of the characteristics mentioned ended up causing a crisis in the states that followed the principles of liberal constitutionalism. Individual freedom, especially on the economic plane, led to the growth of individualism enormously.

The equality of all human beings did not cease to be a wish that was rarely fulfilled and social classes were formed that were reminiscent of those existing during absolutism.

Social inequalities began to be questioned. The Industrial Revolution meant the emergence of a working class, with hardly any rights in practice, which soon began to organize and demand improvements.

These claims could not be addressed by the State, since the principles of liberal constitutionalism prevented this type of intervention in the economy. In the short term, this led to revolutionary movements and the emergence of a new paradigm: social constitutionalism.

References

1. Legal Notes. What is Liberal Constitutionalism ?. Obtained from jorgemachicado.blogspot.com
2. Martínez Estay, Jorge Ignacio. Brief history of social rights. From liberal constitutionalism to social constitutionalism. Recovered from Libros-revistas-derecho.vlex.es
3. Apuntes.com. Liberal or Classic Constitutionalism. Obtained from apuntes.com
4. Reinsch, Richard M. Liberal Constitutionalism and Us. Retrieved from lawliberty.org
5. Political science. Liberalism: Introduction, Origin, Growth and Elements. Retrieved from politicalsciencenotes.com
6. Agnieszka Bień-Kacała, Lóránt Csink, Tomasz Milej, Maciej Serowaniec. Liberal constitutionalism- between individual and collective interests. Recovered from repozytorium.umk.pl
7. Wikipedia. Constitutional liberalism. Retrieved from en.wikipedia.org