Individual Rights and the Evolution of Constitutional Models
**Chapter 1: Models of Constitutionalism**
**The Historicist Model (John Locke)**
England is an emblematic and central place in the historicist perspective, particularly in optics. English constitutional history demonstrates how to smooth the transition from the medieval order to modern freedoms painlessly, regardless of a high, sovereign political power with concentrated authority capable of defining the areas of individual liberties. This is a significant model for the great European tradition of a moderate and limited government. There are serious questions about whether stable guarantees and civil liberties can exist once political power has taken hold of the ability to define and delimit them. The best form of protection, in this view, is *jurisprudence*. It is by nature more prudent, more connected, without sudden jumps, following the natural course of time and spontaneous evolution, and not directly addressing society.
**The Individual Model (Thomas Hobbes)**
This model tends to confront the past to determine the relationship between modern and medieval in terms of a *fracture in time*. The modern age, from the 17th-century natural law to the revolutionary declarations of rights, is the age of individual rights and the gradual improvement of their care. This kind of thinking is developed through two lines:
- Such opposition is substantial to the strong antithesis between a class order and individual rights.
- The struggle for modern rights is presented as a progressive organization of rights in an anti-estate, individualistic sense.
One of the fundamental duties of modern constitutions is that of ensuring accurate rights and liberties against the arbitrary exercise of state political power. What looks like a credit in the historicist vision, the ability of political power with authority to codify subjective legal positions of individuals, appears as a difficult defect, unforgivable in the individualistic conception.
**Necessary Aspects of Individual Culture**
***Presumption of Freedom***
Whatever is not forbidden by law cannot be prevented, and no one can be compelled to do what it does not order. Only the ultimate source of law can limit the rights and liberties of citizens.
The limits imposed by law on the exercise of the freedoms and rights of each may have *only* one supporting reason: to ensure the enjoyment of the same freedoms and rights by the other members of society.
Rights and liberties are recognized (guaranteed) by the state, but not created by it. (You cannot create what already exists.)
***Constituent Power***
This is understood as a fundamental and original power of individuals to decide on the form and direction of the political association of the state. Only from the individualistic and contractual vision of political liberties can one arrive to admit the existence of an *autonomous constituent power*. It is argued that before the *pactum subiectionis* (with which individuals are subject to the joint) there is a *pactum societatis* born with *civil society individuals*, which is also the *society of politically active individuals* able to decide autonomously and create some kind of state, of political association. *Imperium* is delegated the powers that may be limited as a warranty on behalf of the constitution.
The best way to ensure civil liberties is entrusted to the authority of law from the state, within strict limits set by the presumption of freedom and provided that the state is the result of the constituent will of citizens. Besides the need for protection and guarantee of the sphere of autonomy of individuals (negative liberties), there is placed, with equal urgency and dignity, the need for the constant exercise of political liberties (positive liberties) requiring public authorities to follow the path consisting of the beloved sovereign constituent body of politically active individuals.