The mission of the constitution is to order the society. It must organise socio- political relations making them well-ordered, systematic, predictable, and rational. The constitution has assumed this role after the adoption of the first written constitutions. Before them, states had their political constitution as the durable de facto order of rules for socio-political behaviour. The unwritten constitution was not detachable from its ordering function because it was immediately ordering the society by the very fact of its existence. Thus, the unwritten constitution unites in a simultaneous phenomenon the legal and the socio- political ordering of the society. It is the result of a permanent interaction between content and discontent. It is materialising in itself the fragile equilibrium between political conflict and political consensus. It requires the simultaneous existence of conflict and consensus â the first allowing for evolution and the second granting a degree of stability and predictability.
This is not the case with written constitutions. They are the deliberate creation of the human mind resulting in an artificial model of human behaviour imposed on socio-political reality. The written constitution is an abstract model aimed at normative ordering of the socio-political relations conceived as both determinants of this model and as result of it but in any case, as separate from the realm of written constitutional normativity. The written constitution is the result of collective use of intellectual forces for the creation of widely or more narrowly negotiated or imposed rules of the political game. The written constitution rests on the suggestion for improvement of the social world, for its improvement in the name of big ideals and in the light of values, principles, and aims constituting the moral-political foundations of the institutional design. Thus, the written constitution contains a deliberate model of constitutional peace and discontent with its axiological, institutional, and socio-legal implications. It establishes constitutional models of desired order and permissible disorder. These models will be outlined later in the chapter.
4 For the ordering function of the constitution see Georg Jellinek, Allgemeine Staatslehre, (Springer 1921) 505 and Joachim Detjen âVerfassung und Werteâ in Die Werteordnung des Grundgesetzes. (VS Verlag fĂŒr Sozialwissenschaften 2009), 15. https://doi.org/10.1007/978-3-531-91604-0_2.
The very term constitution means to establish something, to create a foundational structure for the society, to give it a durable political form, to shape the mass of facts within a durable and legitimate legal form, to offer official institutional channels for expression of content and discontent, trust and mistrust, agreement, and disagreement. The constitution is called upon to serve as a legal map of the shapes and forms of the state and the political organisation of the society. Thus, by providing the institutional design and the parameters of social and political freedom the constitution is at the core of the processes for social acculturation and socio-political integration.5 A real, recognised, and efficient constitution must be capable of assuring its place as the central determinant of social peace and obedience and should impose legitimate, proportionate, and just limits to political freedom.
Political freedom is at the core of liberal constitutionalism. The concerns for the full protection of human rights and for establishment of the widest possible sphere for personal liberty is central to it. Thus, liberal constitutionalism is focused on the constitutional frames of liberty and more precisely on the constitutional limitations for public discontent. More radical democratic versions of constitutionalism require an extended frontier for expression of political discontent. Constitutional democracy structured around the concepts of deliberative and participatory democracy presupposes not only traditional liberal tools for expression of discontent and dissatisfaction such as the classic political rights (e.g. freedom of expression, freedom of assembly, freedom of speech etc.), but also more intense forms of disagreement like the right to protest and the right to civil disobedience. In fact, they suggest the need for scaled â proportionate and adequate â responses to illegitimate governmental action. This claim is demonstrated in detail in Chapter 2 of this book by JosĂ© Luis MartĂ.
Depending on the context and the concrete political imperatives of the day the constitution performs its ordering function differently. First, the constitution may need to establish order out of disorder. Second, the constitution may be called upon to reshape the existing order replacing it with new order. Finally, the constitution may be adopted to confirm the existing order projecting it into the future.
The constitution should establish order out of disorder in case of radical break down of the previous constitutional and political order. Usually, such disorder is the result of deep and radical ruptures of the constitutional and political system and its underlying political consensus or at least modus vivendi. They may be caused by war, civil conflict, or insurmountable tensions within the society.
5 See Dieter Grimm, âIntegration durch Verfassungâ (2004) 32, Leviathan 448â463 https://doi.org/10.1007/s11578-004-0031-7 and Gary Schaal, âIntegration durch Verfassung und Verfassungsrechtssprechung? Theoretische Anmerkungenâ (2001) 30(2) Ăsterreichische Zeitschrift fĂŒr Politikwissenschaft, 221â232 https://nbnresolving.org/urn:nbn:de:0168-ssoar-59721.
It should be noted that the first written constitutions did not always establish order out of disorder. Indeed, it seems logically reasonable to accept that it is precisely the task of the first written constitution in the history of a particular national constitutional model to establish order out of disorder. In fact, this is one of the most appealing claims of modern written constitutions â to rationalise the world, to impose a systematic power grid on the turbulent and fuzzy socio-political relations.
However, the political history shows that in many cases there has been pre-established order which predates the imposition or negotiation of the first written constitutions. Hence, the first constitutions are acts aimed more or less at radical political reform rather than instruments for creation of order out of disorder. Frequently, they destroy the old order and replace it with a new one. Thus, the ordering function of the first written constitutions has been frequently bound to their disordering and deconstructive function. Ordering and construction has been predetermined and fulfilled in conjunction with deconstruction.
That is why, the constitution is very often called upon to reshape the existing order replacing it with new order. It is a device for reestablishment of the constitutional foundations of peace and discontent, order and disorder, conflict and consensus. In fact, the constitution is always stretched between the societal forces of order and disorder. In that regard, the constitution resembles the Earth. It needs magma, earthquakes, and volcanic eruptions to be alive but it must also try to stabilise the magnetic field and prevent big disasters for life to continue. Thus, the ordering function of the constitution is predestined to maintain the delicate equilibrium between peace and discontent, conflict and consensus since all of them are necessary prerequisites for a viable constitutional order and especially for the establishment and maintenance of constitutional democracy.
Finally, as mentioned above, some constitutions are adopted with the aim to confirm the existing order and to project it into the future. Such âconsolidating constitutionsâ6 make the impression of establishing order out of order. However, they are typically used for political or ideological purposes aiming at demonstrating the persistence of peace and consensus while suppressing the discontent and hoping to prevent disorder. Thus, consolidating constitutions are instruments for maintenance and prolongation of the established order suffocating demands for radical change. They are political choice usually detrimental to democracy. Examples are the second wave of communist constitutions which were adopted in the late 1960s and the early 1970is in Central and Eastern Europe aiming to stabilise the Soviet type of constitutionalism and to simulate the advancement to a new stage of communist development while masquerading as the prolongation of the totalitarian regimes.
6 See Evgeni Tanchev, Introduction in Constitutional Law (Sibi 2003) 198 (in Bulgarian).
