Constitutionalism: A New Legal Paradigm
The second revolution, represented by constitutionalism, stems from the positivization of fundamental rights as limits and meaningful connections to positive legislation. This results in an internal derangement of the classical positivist paradigm. The principle of formal legality is complemented by the principle of strict legality (or substantial law), which produced the separation of validity and force and the cessation a priori of the validity of existing law. This highlights the co-role of the lawyer and the judge, along with this new paradigm legislator. Under Constitutionalism, the realm of the undecidable (of the undecidable that is expressed in the rights of freedom, and not the undecidable, which makes social rights), the conditions of essential validity of the laws, which in the premodern paradigm were identified with the principles of natural law and that the paleopositivist paradigm were displaced by the purely formal principle of validity and positivity, penetrate further into the legal systems in the form of positive principles of justice superordinate to rules stipulated in the law.
Ferrajoli relies on historical experience (the twentieth-century totalitarian regimes) and the legal product – its cultural context (UN Charter of 1945, the Universal Declaration of Human Rights of 1948) – to mark the rediscovery of the meaning of the ‘Constitution’ as a limit and a bond of powers established two centuries ago in Article 16 of the Declaration of Rights of 1789: It is rediscovered, in short – not only at the state level but also internationally – the value of the Constitution as a set of substantive rules designed to ensure the separation of powers and fundamental rights of all, that is, exactly the two principles that had been denied by fascism and are still being denied.
Consequences of Constitutionalism
The consequences of this second revolution, or new paradigm called Constitutionalism, is the design of strict legality, or in other words, the recalibration of the principle of legality. This is done by introducing a substantial scale in both legal theory (as to validity) and the theory of democracy, building and stressing the virtual dissociation and divergence between validity and application of the law, between ‘ought’ and ‘being’ right, including substantial legitimacy and formal legitimacy of political systems.
Ferrajoli says: This difference – that (though it would be pathological beyond certain limits) is a physiological feature of constitutional democracy, its greatest merit and its trademark, as well as its major flaw – also has changed the nature of jurisdiction and legal science. Jurisdiction is no longer the simple subject of the judge to the law, but also a critical analysis of its significance as a means of controlling its constitutional legitimacy.
Under the new paradigm of constitutionalism, a legal science is competent – as Ferrajoli puts it – working on the critical analysis and projection of its own object: critique of current law but invalid when separated from the Constitution; reinterpretation of the regulatory system in its entirety in light of the principles set out therein; analysis of the contradictions and gaps; development and projection of the missing or inadequate guarantees still to come, however required by constitutional standards.