Philosophical law in modern use today

Introduction

Constitutionalism is both a philosophical and legal concept as well as a practical manifestation in different political contexts. In both respects, it represents one of the main features in the development of the modern state. Constitutionalism pre supposes the existence of a constitution, which is typically, but not necessarily, contained in a legal document. The essence of constitutionalism contains three structural and substantive limitations on legislative and executive power. First, constitutions not only constitute but also limit government power, for instance, by separating the organs of state. Second, constitutions only protect individual rights against the state. Third, constitutions claim to be higher-order law in the sense that the constitutional norms enshrined in the written document take precedence over ordinary laws in the case of conflict. Alternative contemporary theories (parliamentary, republican, social-democratic constitutionalism) exist. In essence, they do not provide for the entrenchment of rights in the constitution due to a lack of consensuses of what a Bill of Rights should contain; they regard the process of judicial review as democratically unsatisfactory, and they reject the passing of responsibility for problem solving from the legislature to the judiciary.

However, most scholars understand constitutionalism as a subset of classic and modern liberalism that focuses on institutional design and fundamental rights, this is as true for the concepts of Constitutionalism that is specific to nineteenth-century German history and closer to liberal constitutionalism. This meaning of constitutionalism and the content of individual rights have evolved, from stressing “natural rights” in the seventeenth and eighteenth centuries to emphasizing “human rights” in the twentieth century. Constitutionalism is so adaptable that its meaning threatens to become indistinct, as extended, to new fields such as, public international, law, global constitutionalism, European constitutionalism, post national constitutionalism, and transnational constitutionalism. However, even when constitutionalism applied to pristine areas, the post-Hobbesian model of the constitutional state, often remains the conceptual blueprint and the normative yardstick for all comparisons.

Main Body

Early forms of constitutionalism can be identified in Greek and Roman political philosophy. Plato's central concern in “The Republic” is the proper relationship between the polis (the city-state) and nomos (customs, conventions, and beliefs, which include law). Nomos comes in various guises as social convention and constitutional enactment (even as divine law) and gives force to certain fundamental norms, like aidôs (conscience) and dike (a sense of justice), which are innate to human beings and vital to society. The conceptual form of diplomatic relations is a government of philosopher rulers who are not formally bound by prescribed rules; Plato suggests, however, that this type is only an ideal and that actual states can only approximate the ideal. In Plato's previous work, The Laws, he reasserts that large government orders (polities) are always orders according to nomos (as opposed to the arbitrary command of a tyrant) (Alexander, 122).

Like Plato, Aristotle rejects the choice between the (unattainable) ideal and the (imperfect) actual relationship. In “Politics”, he distinguishes politeia from nomoi (the latter, informed by the former, not vice ...