* Originally Appeared in Idei in dialog, December 2007, reproduced with permission of the author
Seul le degre de puissance politique, dans quelles ' import mains il rend une love Hillary constitution a gouvernement libre ou oppressif. (Benjamin Constant, Principes de politique, 1815)
The meaning of the word Constitution is today, even in academic circles, circumscribed almost entirely legal language. The Constitution, they say, is a fundamental law or the Supreme law in the State. She is famous, Austrian jurist and resuming the perspective of Keyboardist Hans, a hypothesis is valid based on the alleged creation procedures and that, in virtue of its quality standard, stood atop the pyramid of rules which make up the legal syste[1]m. Although necessary, and may even be effective, constitutional text reading in key legal positivism fails, unfortunately, to capture the meaning of the primordial constitutionalismului.
Constitutionalismul is an expression of liberal political philosophy
The constitutional thinking is, before any political philosophy, modern expression upon which sits the inrush current of ideas known as classical liberalism. As a result, the nature and the function of a Constitution cannot be fully understood-nay, the very meaning of a Constitution is lost-in the absence of understanding the philosophical framework that gave birth.  Liberal policy thinking is, in terms of which matter aristotelici, concept of Constitution take birth. The very modern sense of vocabulei Constitution, as it showed Giovanni Sartori, [2]cannot be specified within a classical-liberal tradition.
Liberalism, beyond its many schools, insist on a strict distinctions between State and society, clearly defining the nature and functions of these two elements composing fundamental political philosophy of the binomial theorem. They are two distinct and autonomous spheres of social reality that cannot and should not be reduced to a common denominator.
Liberal vision is anchored in a singular understanding of society as a complex sequence and auto-regulatory voluntary interactions generated by the multitude of individuals endowed with inalienable rights, and support for life-inextricably, liberty and property. As a result, drastic limitation advertisement and liberalism of the role and the action of the State as defined in realistically as a specific group of individuals who are giving them in a given historical exercise monopoly legal restraint. The State has no other legitimate purpose or reason to exist than the recognition and protection of fundamental individual rights and social order to well-off and their respect for armoniose on generate[3]. Any transgression of these limits, being in fact a violation of the rights of the inalienabilor of a group of individuals, or another place infara its legitimate sphere of action.
A Constitution, or, there is nothing more than a concise expression of liberal philosophy, a roundup or an aide-mémoire of politics within a given historical context adapted or culturally. As a political document, the Constitution, was trying to provide a philosophical thinking liberal legal expression. It starts from the recognition of the fundamental rights of the individual inviolabilitatii-consacrand so the autonomy society-and then trying to specify the-based limitation principles, Division and political powers control-state institutional architecture so that individual to have credible guarantees that the State will not transgresa its sphere of legitimate action. It has as its purpose, in other words, to draw up the ideal shape and substance that you designate indeobste with the phrase rule of law.
Constitution of improvised
Under criticism for several reasons and directions along the time, the current Constitution, adopted in 1991 and revised in 2003, continues to leave an impression (especially in terms of the meaning of liberal constitutionalismului) a ansamblaj diffuse ideas far too nebulous a tribute to historical circumstances in which it was conceived.
As they observe the Babas into a book with a title events talk[4] for themselves, constitutional order established immediately after the fall of communism has not made subject to a prior level of authentic reflections of society, being rather a prelungere of public law from the Communist era, complete with a few references to common constitutional principles in contemporary practice.
As current and necessary today as nearly two decades now, reflection on the constitutional principles underlying the political community should be-if you want to be fructoasa-to return to the fundamental categories of modern political philosophy and to recover the structure and philosophy of classical-liberal issues from which the very idea of the Constitution was born.
The Bill constitutional
If the word Constitution once could serve, in political philosophy, the antonym for arbitrary, today such a discretion is not only suspect but downright impossible.
The most regrettable evolution in contemporary constitutional law is ignoring the political philosophy base constitutionalismului which remains, however, in the absence of a genuine alternative, the Basic Law on which they are grafted, without any concern for the overall coherence of discourse, concepts and ideas borrowed from philosophical visions antinomice.
Thus, the socialist ideology under the impact, meaning the basis principles of fundamental liberal (as well as inviolable rights, rule of law, or Government representative) that the constitutional text ought to proclaim and defend, was embezzled up to irecognescibil or, in some cases, these principles have been completely replaced with new concepts whose skeleton constitutionalismului trasplantare's modern resulted in undermining the ideal of rule of law and the establishment of a true constitutional arbitrariness.
The Constitution in force, for example, defines in article 1 Romania at the same time, in paragraph 3, as a "democratic State of law, and social" suggesting implicitly that all three attributes would be mutually compatible. The phrase social State is, however, in light of the above the back part of the fundamental distinction regarding State-society on the basis of constitutional thinking, an oxymoron in the best case. The idea of social State is supported in turn on a concept as meaningless and harmful content, so-called positive rights or social rights. Moreover, the Romanian Constitution (article reproduces in toto. 32, 33, 34, 41 and 48) the constellation of rights stipulated in the positive formal Universal Declaration of human rights 1948 (art. 22, 23, 24, 25, 26 and 27) at the initiative of the former Soviet Union, and also add a new category of very positive rights-rights (art. 35).
However, one cannot insist enough on the fact that positive rights are not and can not be copyrighted and that freedom to do something may not be people, at least not in order, with the ability to do something[5]. All these so called positive rights, be it of the right to social protection, to health, public education or culture, are nothing more than some bonds of anonymous services by way of collectivity. They are incompatible with individual rights themselves that are very fundamental nature, negative and irreducible to other categories.
The State cannot provide social services reported these so themselves positive rights without prejudice to the rights themselves to a certain part of the society's members; He may not function indepli to negative of the protector of life, freedom and property of all and in the meantime to intervene positively in favor of a portion of the company without forgetting a fundamental principle of the rule of law: equality in rights. Reported positive requirements cannot be substantially reconciled with the requirements of the principle of universalitatii of rights.
As a result of these improvements, the current conceptual meaning of constitutionalismului is changing radically. The Constitution is no longer, at least on the normative level, the means by which individual rights are enshrined and protected and the sphere of State action is limited as accurate; She no longer aspire to the establishment of peace and the well-being of the social harmony between various individuals and social groups. The Constitution itself has become the land of struggle between groups and individuals armed with "rights" irreconcilable, it establishes, after he removed the company from hypothetical State of conflict, a social conflict of all against all legalized …
Towards a Constitution on religious freedom
Limitation of State intervention and protection of the fundamental rights of the individual cannot waive recovery of substantial philosophical dimesiunii, to constitutionalismului. Prior to being a legal document, the Constitution is a document of politics. Only clarifying its normative premises we can make a formal Constitution effective defense of individual freedom.
Liberalism is in essence a philosophy politics based on the idea of inalienable individual rights or natural. The Constitution represents the preferred mechanism by which these rights, understood as metanormative[6] principles of political community, are institutionalized liberal vision, refined manner upon State and society alike. But without a genuine recovery of philosophical vision behind lapidarelor, the entire edifice of the constitutional principles and legal, especially at institutional, will serve far too little freedom equal to all.
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[1] Hans Keyboardist, pure Doctrine of law, Humanits, Bucharest, 2000, trad. Carlos pp. 17-23 and 234-249;
[2] Giovanni Sartori, "Constitutionalism: A Preliminary Discussion", The American Political Science Review, vol. 56, no. 4 (Dec., 1962), pp. 853-864;
[3]Frederic Bastiat, "Law", trad. Cristian Preda, in A.P., Ashok Kumar Sachan, modern political thought Fundamentals, Polirom, Iasi, 1999, pp. 193-222;
[4] Daniel Barbu, absence of Republic, Nemira Publishing House, Bucharest, 2004, pp. 145-147;
[5] Friedrich a. Hayek, the Constitution of liberty, trad. Lakshmi-Dang, European Institute, London, 1998, pp. 39-45;
[6] Douglas b. Rasmussen and Douglas Den Uyl, j. Norms of Liberty: A Perfectionist Basis for Non-perfectionist Politics, The Pennslvania State University, University Park, Pennsylvania, 2005, pp. 79-96.