TEORIA DE LA CONSTITUCION KARL LOEWENSTEIN PDF

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The topos was not only used as a search item, but also as tertium comparationis. All references to national sovereignty mark the process of juridification of sovereignty by means of the constitution, i. This is coincident with the normativity as goal of the modern constitutional concept arising out of the revolutions at the end of the eighteenth century.

In the debates around the Great Sejm the old aristocratic understanding of the Polish Nation as one of the noblemen is found to be powerful. The procedural openness of the May Constitution is explained as a reflex onto juridification of national sovereignty.

The constituent sovereignty in the Norwegian Grunnloven May is in various aspects comparable with the Spanish case: the constitutional process was received as guarantee of national independence. The French Charte Constitutionelle , mixing constitutional binding and divine reign, avoids the term sovereignty. The monarch by the Grace of God Louis XVIII appears as constituent sovereign, the label as charter charte tries to create the impression of a royal privilege.

Due to his absolute power, the monarch is the sole bearer of executive power Art. Its revolutionary overcoming in the French July Revolution led to a European-wide constitutional movement, whose connection with national struggles for freedom, invigorated the people and its representation as constitutional factors. Contrary to the French model, the Belgian Constitution is not negotiated with the monarch, but freely proclaimed by a national congress in its own right.

In the octroi of the Piedmontese Statuto Albertino , the constituent act of granting the fundamental law statuto fondamentale was communicated to maintain the plenitudo potestatis of the absolute monarchy, to rationalize the old royal sacredness.

Therefore, according to the preamble of the Statuto Albertino , the participation of the Council Consiglio di conferenza was simply advisory. The oath of the Senators and Representatives contained first the loyalty towards the King and then towards the constitution and the laws art.

Pauls church-assembly. This avowal to the singular and unlimited pouvoir constituant of a not existant German nation did not make sense as a programmatic claim to self-government, but reflected the indecisiveness of the post-kantian liberalism between monarchical and popular sovereignty.

It avoided the open commitment to popular sovereignty and thus the conflict with the monarchy, enabling a consensual framework between imperial government and parliamentary majority.

The traditional approach in legal history focuses on constitutional documents, believing in a nominalistic autonomy of constitutional semantics. Looking onto the European Constitutionalism of the late eighteenth and nineteenth century, even a written constitution cannot statically fix the administrative-legal relations of power, as they depend on the legal interpretation and the conflict mentality of the political decision-makers.

In the context of ReConFort, 1 constitution is understood as an evolutionary achievement of the interplay of the constitutional text with its contemporary societal context, with the political practice and with the respective constitutional interpretation. Such a functional approach keeps historic constitutions from being simply log books for political experts. It makes apparent how sovereignty 2 as constituted power translates ways of thinking and opinions in the Burckhardtean sense 3 : sovereignty can only be exercised with the consent of the ruled.

Even the constitutional cycle anticipated by Polybius has presupposed that the politeiai of monarchy, aristocracy and democracy degenerate, where sovereignty is not accepted or gambled away. The litmus test of the communication dependency of constitutions is their indecisiveness in crucial points. Therefore, constituent sovereignty is the perfect starting point for the research project on communication dependency of constitutions, as it is the legitimizing explanation of the constitutional process.

Any comparative legal historical approach is burdened with a double hermeneutical circle. This is obvious for everybody consulting the following linguistic expressions: In the introduction and in Art. III, Art. If one searches for benchmarks abstracted from the constitutional wording, the contexts of the claims for national sovereignty are useful tertia comparationis. So my paper does not deal with national sovereignty as an abstract perception of the political history of ideas, but as the political polemics in concrete situations of conflict.

All references to national sovereignty mark a process of juridification of sovereignty, i. A constitution is a legal codification to fix the political order as a legal order.

This solves the paradox of the Bodinian sovereignty, which could not explain the legal bindingness at the moment of concluding the social contract.

According to Bodin binding obligation was only thought of in relation to already existent law. National sovereignty is the synonym for the juridification of sovereignty by means of the constitution. Due to the general atmosphere of upheaval, the reports of constitutional affairs are at the core of a fundamental politicisation of the broader population.

The outburst of political periodicals from onwards Il nazionale, Gazetta del populo, La concordia prove the Italian national liberation movement to be a product of the reciprocal communicative dimensions of constitutional processes. In the pre-revolutionary feudal society, people were born into certain estates of the realms, without the chance for change. Newspapers and journals as mass means of dissemination and communication motivated a broad politicisation and served as transmittors of the new ideas of the modern constitutional concept.

With the French revolution and the Napoleonic wars the demand for news increased, and especially for news from abroad. Yet the presentation of the constitutional draft 36 to the representative chamber on May 3, was connected to the Anglo-American republican discourse.

Not only the patriotic reform powers, but also the old-Republican constitutional opponents make use of the American role model. It was no longer a victory of the French King: on September 21, , one day after the cannonade, the King was declared to have abdicated and the Republic was proclaimed. The Victory at Valmy was historic since the Revolutionary Army consisting of unexperienced volunteers was unlikely to win against the higher ranked Prussian army.

And the news of the victory at Valmy was decisive for the consolidation of the rule of the convent in Paris. To make this turning point clear we have to go back to the pre-revolutionary French Enlightenment. This text is pivotal for the coinage of the modern term of nation; for Rousseau, the nation is the point of reference of participation, the laws and the political decision-makers.

The nation is no longer the collective term for all those who live within the borders of the territorial state or under the centralised monarchical administration, but for the first time appears as a singular self-sustaining political subject, as a state organisational legal point of reference.

Rousseau declares the content of sovereignty to be found exclusively in legislation, which is reserved for the people as a whole. The executive is a non-sovereign organ for carrying out laws. The Rousseauian sovereign as political body corps politique of the legal rules about the rights and duties of the citizens is absolute. Deriving sovereignty from the general will leads to the following pivotal question: the identity of individual and common interest.

Rather, to work out the general will, it has to be filtered from the particular wills in a dialectical process of decision. The general will aiming at this can be found in the judicial-political decision making procedure of the legislature, where the particular wills, by mutual contradiction, cancel out each other.

The absoluteness of the sovereign and the fact that it is rooted in the will of the citizens has two consequences: sovereignty is based on the political and legal equality of all people, which is acquired through the social contract, and is inalienable and indivisible. The creation of the modalities of the exercise of the sovereignty 88 was also necessary: the constitution. The nation is a homogeneous and self-sufficient entity as opposed to the estate society, which the convocation of the general estates by Louis XVI on May 5, tried to reactivate.

The nation, which was constituted by the declaration of the Third Estate as the National Assembly developed as a new political subject and embodied the revolutionary claim to representing everything of a part of the Third Estate for the entirety. Similar, but more pointedly anti-monarchical is the second meaning of nation in The nation and the theory of national sovereignty are addressed against the twelve hundred years of French monarchy. There are many voices to question any monarchical legitimation.

Despite the monarchical position as head of the executive and integral part of the legislative, the September Constitution does no longer cause illusions due to the only suspensive royal veto Tit. III, Chap. III, Sec. Its will is always legal and it is the law itself.

Thus, the nation can exist independent of the process of the representation and can be carrier of the pouvoir constituant. Thereby, for the first time, the normal legislative power can be distinguished from the constituent assembly. Constitution-creating sovereignty of the nation resolves the self-referring paradox of the sovereignty as an unfixed power of self-bindingness, which had been left in the open by social contract theories.

Therefore the constituent sovereignty is under control by means of the personal veto of every dissenting individual. Even if the constitutional decisions have to be taken for practical reasons by the majority, the guarantee of the minority resides within the act of the association and therefore within the legal text of the constitution decided upon in the constituent national assembly.

This immanent guarantee is the equivalent of the bonum commune by the political philosophers since ancient times and bars the sovereignty executed by the majority from unifying all of the political powers, from disorganising them and from reframing their constitutional organisation.

With the introduction of the nation a second point of reference besides the monarchy comes into existence. The monarch is indeed disempowered, but not abolished.

In my perception, this means a quite decisive process of juridification of sovereignty. It only belongs to the nation. No part of the people and no singular person can appropriate its exercise.

The wording of the sovereignty of the nation in the French September Constitution does not only manage to integrate two sovereigns, but also joins the constitutional idea with national integration. Thus, the French Constitution of created a right of citizenship Tit.

II, Art. I , even though three sevenths of French men due to poverty and French women altogether were excluded from the right to vote Tit. I, Sec. Therefore, the monarchical principle was held compatible with the sovereignty of the nation Tit.

II Sec. I, Art. For contemporaries, they open up the interpretation of the nation as canon of old republican freedoms, that understanding which can easily be traced in the Polish May Constitution The civil life only, purely political creates exclusively the principal themes of the Polish history. Thus, the sovereignty of the people manifested itself in all rulers: in the judiciary that is independent and representative, in the administration which executes the will of all.

In the Polish language, the word for slave did not exist, only for subject podany. Interestingly enough, around the Great Sejm — there were some inaccuracies, which mark the Polish term of the nation to be in between the sense of the old aristocratic Republic and the opening towards an understanding of a general political body. Lelewel made it very clear that the law of the free royal cities should not be seductive for the assumption of a unitarian urban area.

The inaccuracies with the usage of the term of the nation fit into this picture. In Article II of the May Constitution, the nation is the point of reference in the sense of an old aristocratic nation while in Article IV even the farmers seem to be included.

The sovereignty of the nation is claimed to be the origin of all state authority Art. With the modern concept of the constituent sovereignty, the text of the Great Sejm seems to combine the old idea of an aristocratic nation. The openness of the sovereignty of nation in the Polish May Constitution to continuities with the pre-revolutionary class-based state can be seen in different aspects, which I laid down in length at the Polish Legal History Conference in Cracow.

The procedural openness of the May Constitution reflecting the juridification of national sovereignty finds its first expression in the partnership of legal and parliamentary ministerial responsibility.

The ministers appointed by the King assume legal responsibility for the decrees issued by the king by means of countersignature. Moreover, in Art. Another aspect is the elaboration of the executive in Art.

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Karl Loewenstein November 9, in Munich — July 10, in Heidelberg was a German philosopher and political scientist , regarded as one of the prominent figures of Constitutional law in the twentieth century. His research and investigations into the deep typology of the different constitutions have had some impact on the Western constitutional thought. He studied in his native city of Munich Bavaria , where he got a doctor's degree in Public law and Political science. When Adolf Hitler 's Nazi Party took power in , he was exiled and went to the United States , the country where he would carry out most of his doctrinal work and writings.

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