Old and Modern Conception of Liberty and Constitutionalism

Moataz El Fegiery

The struggle for liberty across history and within the Western context associated with the development of constitutionalism. The history of constitutionalism clarifies the different perception of liberty adopted by ancient and modern European societies. As Benjamin constant illustrated in his seminal article”the Liberty of Ancients Compared with that of Moderns” the ancient liberty was more connected to the citizen direct participation in the public and political affairs. However, the modern liberty was more attached to the individual liberty and choice. Consequently, the ancient and modern conception of constitutionalism reflected this understanding of liberty.

The intellectual analysis of constitutionalism in the ancient time can be traced to Aristotle who introduced through his book the politics a comparative political analysis of a group of 158 types of city state “polis” and other states where he classified them according to the nature of the political authority. Aristotle found that the polity was out of the best governments at his time beside the monarchy and aristocracy. This government is “the proper rule by the many and improper rule by them is democracy.” The polity was the ancient version of the constitutional state where the political power was not absolute and state organs were complied with the law. During the Roman age, Cicero was affected by the political thought of Aristotle. He dedicated his life to defend the constitutional state. He inspired the model of roman republic which was considered by the constitutional historian the golden era of the ancient constitutionalism. The roman republic was established after the overthrow of the roman monarchy and continued for 484 years until the roman imperial period. During this era and according to McIlwain, “the people and the people alone are the source of all law.” Actually, the legal tradition of the roman period shaped the juristic thought of the modern age. For instance, the Romans distinction between jus publicum and jus privatum led to the protection of individual rights from the arbitrary intervention of governments . Moreover, the concept of lex was another important legal concept that has contributed to the development of modern constitutionalism. The Romans understood lex as what “the people orders and has established.” Lex can be private when it is concluded between certain individuals and it is accordingly obligatory for those individuals only and can be public when it is adopted by the people as a whole and then becomes obligatory for every one. During the middle Ages, conflict emerged between the king powers and the law. This conflict was resulted in the distinction between gubernaculum and jurisdiction. The former means the king powers to rule on public matters in pursuant to the higher law of his own conscience and god. Whereas the latter refers to the system of courts and law which the king is bound to observe. Revolution was the only way to sanction the king in case he went beyond his legal limitations. The story of constitutionalism in the English common law tradition is highly connected to this conflict between the powers of the king and the powers of people. In the modern age, this conflict gradually ended with the modern conception of constitutionalism and political liberty where all authorities stem from people and governments must comply with the constitution and law to maintain its legitimacy.
The Greek and Roman heritage had obvious impact on the development of the modern conception of political and individual liberties and constitutionalism. The political liberty which characterized the ancient time based on the direct democracy which was in fact an aristocratic rule practiced by a narrow circle of people who enjoyed the status of citizenship. However, Rome experienced “feeble traces of a representative system”. The enslavement system enabled citizens to free themselves from the daily economic work to engage actively in debating public and political issues, but slaves were deprived of their political rights. According to Constant, “without the slaves, population of Athens, 20,000 Athenians could never have spent every day at the public square in discussions.” There was a correlation between the nature of the economic system in Atens which based on commerce and the level of democracy which existed at that time. Constant asserted that “commerce inspires in men a vivid love of individual independence. Commerce supplies their needs, satisfies their desires, without the intervention of authorities.” This is unlike Sparta where agriculture was the main economic activity of its people. The system which was endorsed there was the aristocratic military rule. It is worthy to note that the modern conception of individual liberty and representative democracy was affected by the radical change in the economic system of Europe which followed the industrial revolution.
The path to the new conception of constitutionalism and political liberty was featured by radical intellectual, economic, social and political developments in western societies. Two political revolutions in America and France came up with new political vocabularies which were not common in the predecessor political systems. The legacy of the modern political thought and practices emphasized on the issues of natural rights, political legitimacy, individual liberties, separation of powers, representative democracy and the state as a product of social compact or contract. These vocabularies originated from the writing of Montesquieu, John lock, Rousseau, John Stewart Mill, Thomas Paine and Jeremy Bentham. Constitutionalism was the proper mean to reflect the characteristics of this modern liberal state as it was clearly shown in the US and France Within the spirit of modern age, Thomas Paine, one of the pioneers of the American Revolution, stated that “a constitution is not the act of a government, but of people constituting a government and a government without constitution is power without right.” This definition of constitution contrasted with the older traditional view which instructed the constitutional development in the UK “in which the word was applied only to the substantive principles to be deduced from a nation’s actual institutions and their development.” Regardless of the different intellectual and political experience of the English and American-French models, constitutional democracy became the main trend of the modern age. The western influence in the development of constitutionalism is obvious. However, the basic values which constituted the modern concept of constitutionalism are universal. These basics values spilled over the world and later on these values shaped the universal declaration of human rights.
Scholars assumed that constitutions in the modern liberal states have been considered an effective tool to maintain stable democracy and peacefully mange plurality in the society by ensuring that a set of political and institutional guarantees and individual rights are disconnected to the daily politics of the state institutions. The constitutional traditions in consolidated democracies have demonstrated that the constitutional provisions are immutable from the intervention of state authorities unless this intervention is complied with the constitution itself. Even majority can not infringe constitutional individual liberties or the foundations of the democratic system. The constitution making in the liberal democratic states is a product of a political and social consensus among individuals on the basic values which constitute their political life.
However, constitutions are not holy books. They can be changed or modified to accommodate the societal developments. Some constitutions require rigid procedures to be modified such as the American constitution and other constitutions are flexible in a way that they can be modified by the parliaments such as the British constitution. Additionally, many constitutions include unamendable clauses which usually define the basin nature of the state. For instance, “Article 79 (3) of West Germany basic law forbids amendments that would destroy the federal, democratic, or social nature of the nation.” Some constitutional courts gave higher status for certain constitutional articles to outlaw modifications that may undermine articles related to political participation. The constitutional case law all over the world can tell us about how constitutions have been interpreted over time. Usually, constitutional courts develop their methods of interpretation to give life for the constitutional text. For instance, the German constitutional court suggested the structural interpretation which means that each article in the constitution should be read within the general objectives of the document and the meaning of other constitutional articles.

Modern constitutions define the basic individual rights and a set of guarantees for their protection. Rights such as equality and non discrimination, religious freedom, freedom of expression and association and political participation are well entrenched in the constitutional texts in western states. The equal protection clause in the America constitution enabled African American and women to secure their citizenship rights thanks to the constitutional litigation before the Supreme Court. The first amendment in the US bill of rights prohibits the congress from making any law restricting the freedom of expression, association and peaceful assembly. In this framework, The American Supreme Court came up with a ground breaking rule in New York Times v. Sullivan when it asserted the right of the press to publish stories about public figures and officials without intimidation. Article 10 of the European Convention of Human Rights which is a key document in understanding the European conception of individual liberties provides that any restrictions on freedom of expression should be prescribed by law and in a democratic society. For example, in Sunday Times Case, the European Court of Human Rights defended the right of media to publish stories on matter of public concerns without being penalized by domestic authorities. From the beginning of the constitutional traditions, political and civil rights enjoyed a higher constitutional protection. However, gradually the constitutional protection has been extended to the economic and social rights but the level of judicial oversight has changed from a country to another according to the historical and political experience.

The relation between state and religion was another controversial issue characterized the history of constitutionalism. Modern constitutions in the West have tended to ensure state neutrality towards religions as the most proper way to ensure religious freedom and citizenship. However, this has taken several constitutional formulas. Some constitutional clauses establish a strict separation between state and religion such as US and France. In both models states are refrained from introducing any subsidies for religious establishments and should show strict neutrality. Other European constitutions recognize a dominant religions or religious establishment, but ensuring in the same time that the members of other religions and cults enjoy the same rights and duties without discrimination such as the Greek constitution. However, In Greece, the constitution imposed restrictions on the right of individuals to engage in proselytism. Several cases were examined before the Greek judiciary where citizens were accused with proselytism or belonging to unknown religion such as Jehovah Witnesses.These restrictions were denounced by the European Court of Human Rights. For instance in Kokkinakis case, the Court dismissed the proselytism in Greece and considered it unjustifiable restriction on religious belief as long as it was not practice in a coercive way . Although modern Western liberal constitutions provided for certain conditions to ensure the secularity of political authority, in other regions in the world and particularly in the Islamic world religion is still a driving force for the daily politics. Islamic constitutionalism in many countries such as Egypt, Iran, Sudan, Pakistan, Afghanistan, and Saudi Arabia has distorted the religious neutrality of state and generated serious challenges to ensure the application of universal human rights standards. However, it is not an absolute rule that Islamic constitutionalism is always at odds with democracy and human rights as there are other experiences of Muslim societies which were able to harmonize between Islamic Sharia and modern liberal democracy such as Malaysia, Turkey and Indonesia. However, the main concern in countries like Egypt or Saudi Arabia that Islamic constitutionalism has provided the political ruling elites with a tool to manipulate political power in an authoritarian way and exclude other religions and even other intellectual schools or sects within Islam. Moreover, the political structures in a country like Iran take an autocratic nature where power is dominated by a group of religious scholars who allege the truth and primacy over the will people. This is of course deviates from the basic principles of modernity and liberalism as developed in western context.
In conclusion, constitutionalism across history in the western context has mirrored the changing understating of liberty. The ancient conception of liberty was associated with direct democracy and political participation while the modern conception liberty emphasized on individual emancipation and free choice. It also provided for a new model of constitutionalism as a social compact or pre-commitment strategy to ensure the protection of individual rights, separation of powers, and the institutions of representative democracy.