Conference paper
CONSTITUTION AS A CULTURAL ACHIEVEMENT: HÄBERLE’S THEORY OF THE CONSTITUTION AS A SCIENCE OF CULTURE
Zvonko Posavec
; Faculty of Political Science, University of Zagreb, Zagreb, Croatia
Abstract
The author claims that Häberle’s theory of the constitution is a science of culture, opposed to formalism, decesionism, positivism and statism. It is based on the continuity and the relationship among culture-building, law and state. Namely, the subjects of the constitution-formative authority are mutually culturally linked citizens who decide on the objectively given subject-matter and procedures. The theory of the constitution as a science of culture is based on the assumption that serious conflicts among the open societies of Western Europe are highly unlikely. This represents a significant departure from the positivist theory of the state grounded in the conflict of interests and opinions as well as the strong regulatory role of the state. The author challenges Häberle’s disregard for the crisis potential of modern societies and proposes that these two opposed theories should complement each other. The author goes on to describe Häberle’s research method which includes an analysis of both the cultural context and the normative/constitutional solutions. He applies this research method to the constitutional laws of Germany, Switserland, and Austria, and also when comparing large and small states, or developed and underdeveloped ones. Häberle espoused Tylor’s definition of culture: culture and civilization are equated so that the systems of culture are on the one hand products of activity, and on the other the conditioning element of future activity. According to Häberle, the culture of a community starts from the traditional, innovative and pluralist aspects that are the orientation points for constitutional science as a science of culture. Regarding tradition, culture is mediation of things past. The innovative aspect is based on the idea that culture is a further development of things past. Since culture is not uniform, its pluralist aspect should not be forgotten. Thus the citizens of a democratic constitutional state make up the cultural/ anthropological premise, while the state is only one aspect of the constituted res publica. The constitutional state today goes beyond the scope of the national state since the regional European constitutional state has been evolving together with the outlines of “the world community of constitutional states”.
Keywords
culture; science of the constitution as a science of culture; constitution; constitutional state
Hrčak ID:
24368
URI
Publication date:
4.4.2002.
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