The “Two” Approaches of Constitutionalism to the Principle of Self-determination

Abstract

ABSTRACT

The two main patterns of contemporary constitutionalism are: a) self-centred individualism, based on the principle of individual “self-determination” (extreme belief in private happiness) and b) solidaristic altruism, grounded on the principle of individual “self-restraint” (dangerous belief in public happiness). The former bears the risk of constitutional “libertarianism” (polarizing the rights), the latter could lead to constitutional “paternalism” (polarizing the duties). On the contrary, multicultural societies need reasonable balancing between these extremes: an imperfect mix, varying from State to State, inspired by the necessary utopia of “happiness with others”. To this end, constitutional theory is asked to attempt a refined “graduated” and “progressive” scheme of individual legal statuses: from extenuating and/or non-punishable status to universal fundamental right.