Special Workshop Abstract

The economical intermediation, prevailing to the legal-institutional intermediation in the creation of a new development model of the world-system – that is the fittest framework of new models of socialization that ensure the best conditions of life and work, on the basis of automatic systems of regulation and production – steps over the age-old tools of the democratic constitutionalism of the second part of the last century.

In other terms, this process de-structures the set based on the concept of legal norm (fact + norm) – i.e. the idea that both the institutional system and the civil society organization can be oriented by law, first by constitution, in the sense of political democracy.

The newest interpretations mark the change of legal categories that can make them correspond to the context of relationships in the globalization. This is an ideology able to determine deep changes both in the international law and in the constitutional law.

Furthermore, the splitting and the moving of the basic elements of member states sovereignty to the European Union (and the following assignment of wider competences to that), determines the fading of state’s authority.

The state’s functions and powers are substituted by the competences (both ministerial and lawgiving) of European bodies such as the European Commission and the Council of ministers, with lack of representative democracy. All that gives life to new models of state systems, defined so post-national constellations as post-democratic states by the most radical critics (Habermas and Dahrendorf).

What’s more, the new framework of principles and rules that ought to have constitutional content and fall upon those of states (i.e. the rules set by WTO, IMF, Mondial Bank, Economy monetary Union, European Union) risks putting the national constitutions in perspective, by disqualifying the rules upon which both political and economic democracy based itself and, consequently, weakening the guarantees for civil liberties and social rights.

In this context, the constitution guaranteed the cohesion among principles and values as expression of equality and promotion of labour and welfare, both individual and collective, followed up by the creation of a mix-economy that, beside private enterprise, planned nationalizations and a wide government intervention for labour and redistribution.

New principles, rules and strategies in the world field of market and concurrence determines radical changes in the tax law and in the sectors of welfare-state services, environment, health care, in the name of global economy integration. The scholars and the practitioners, once interested in constitutions, principles, statutes, get interested in bureaucracies and courts.

Reconstructing the post-modern law content is particularly hard, like the definition of the law enforcement, due to the plurality of sources and rules generating this new kind of law, especially in the fields of finance, economy and labour.

Moving to the web-system, i.e. a polycentric system of law sources, confirms the moving from hard-law to soft-law as dangerous firstly for fundamental rights and welfare rights.

The plurality of supranational and international courts (see the International Court of Justice, the European Court of Human Rights, the European Court of Justice, and their complex links with the constitutional courts and the justices of member states) enriches (and at the same time it makes difficult!) the individuation of the natural justice where one can protect his rights.

In fact, the distance from the source of law inhibits the citizens to invoke their rights (firstly collective rights: employment, strike, environment, public services, health care, etc.). At the same time the supranational courts play the role of referees who settle the disputes in the violation of rights and who have the duty/power of fixing the damage to states, and not the power of enforce the same right.