The cultural right through the social acquis

 
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2015 (EN)
The cultural right through the social acquis

Ioannidou, Vasiliki

The history of civilizations of Europe highlights three milestones of evolution that tally to antiquity, to Middle Ages and to Modern Times. The ancient city does not have the cognizance of the term freedom, “since the distinction between political and private society, namely between the public and the private interest and, accordingly, between the one who rules and the other who is ruled is nonexistent. Additionally, with regard to the notion of man, to wit the subject of rights, it coincides with that of citizen excluding in that manner the slaves and the metics from the sphere of rights.”1 In Middle Ages till the late Renaissance the ignorance of freedom is the outgrowth of the fact that the state is not an abstract and perpetual object of political power.2 Furthermore, as it is aptly underscored,3 from Middle Ages to the late Renaissance it doesn’t come about freedom (libertas), but about freedoms (libertates), inasmuch as the latter is nothing more than privileges whose bearer is some group of people or interests. It is noteworthy that the term of individual freedom “in its contemporary connotation: the freedom of every man as a man accrued solely from the fact that he is a man”4 emerges in the space time of Quattrocento and subsequently to the intellectual movement of the Renaissance Humanism, without a normative provision or foundation, but merely as self- 1 D.T. Tsatsos, Constitutional Law, vol. 3, Fundamental Rights, Athens-Komotini 1988, p.53 2 Ibid, p.56 3 Fernand Braudel, A History of Civilizations, MIET, Athens 2010, p.450 4 Ibid, p.447 5 worth. Actually, Renaissance and Humanism attach great importance to the respect and the greatness of man as an individual. “In terms of intellect, the ideal is uomo universale of Alberti, the universal man. In the 17th century, pursuant to Descartes, Cogito referring to the contemplating man is the starting point of the whole philosophical system.”5 Within the following years, the state is gradually transformed to a totalitarian state and - in the middle of the 17th century – in the continental Europe and especially in France “the monarch, legibus solutus, amasses power, free of the dependencies related to the privileges of the medieval introvert classes or the ecclesiastical functionaries and in no circumstances controlled by any restrictive law.”6 In the totalitarian state a central power is gradually built up and it is exerted upon populative aggregations and no longer on territorial fiefs. Hence, the public sphere begins to distinguish itself from the private one whereas “public interest, security and salvation of state are by definition superior to every private interest.”7 As a matter of course, this regime, along with the parallel development of the upcoming social class of bourgeois, brought about the turn of the political philosophers towards the elaboration of the so-called social contract, an abstract mental structure, whose starting point is the assumption that the isolated man, who leads a life of absolute self-determination and freedom, decides to relinquish his natural status and live within a society on condition of a reciprocal resolution of a common living. On a nearly shared admission of the said conception, in the 17th century, Hobbes and Locke, mould theories of social contract; the former to advocate the absolute monarchy whilst the latter to propagate the idea of the restriction of power and respect of human freedoms. These were the primary philosophical insertions that political philosophy exploited in the 18th century shifting to the ideological spirit of Enlightenment. In this regard, the work of Montesquieu, Voltaire και Rousseau was of paramount import on the grounds that the first one underpinned on a rich 5 Ibid, p.448 6 S. Orfanoudakis, The supremacy of the Constitution to the Law as a brilliance of the Constitutionalism, Athens-Komotini 2008, p.5 7 D.T. Tsatsos, Constitutional Law, vol. 3, Fundamental Rights, Athens-Komotini 1988, p.62 6 argumentation-basis the separation of powers as element of interception of the power that verged to abuse, the second one the tolerance of the religion alterity and the third one the doctrinal view that man was born to be free.8 In the light of these philosophical approaches, in the end of the 18th century, two revolutions of akin objectives take place in both continents sharing the Atlantic Ocean; the American (1775-1783) and the French (1789-1799). Both impart and fulfil the subversion of the absolute monarchy. In America the settlers vindicate the economic and political sinlessness of them against the trusteeship of the English Crown and in France the bourgeoisie asserts from Lewis XVI primarily a constitution that would found the participation to the share of the state power. Both revolutions proceed with the issuance of Declarations: the American Declaration of Independence of USA on July 4, 1776 and the French Declaration of the Rights of Man and Citizen on August 26, 1789. These documents punctuated the principle of equality, the rights of personal freedom and security, of ownership, the right against all forms of oppression, the freedom of expression and religious conscience proclaiming the principle of separation of powers along with the supremacy of law as an expression of the general will. Both texts are governed by the protuberant principles of liberalism, namely a movement that implies at the same time: a) a political theory in terms of reinforcing the legislative and judiciary power, and, thus restricting the executive one; b) an economic theory that promotes the free market on condition that the latter is self-regulated without state interventions or protections and c) a philosophical theory that considers the protection of human value - followed by the freedom of thought and conscience as well as the respect and tolerance of the other - as being a prevalent doctrine.9 Liberalism, in this threefold character, constituted indisputably an immense asset in the global history. Yet, its economic mainly facet, along with the rapid industrialization of the states of Europe and America, highlighted a series of 8 The work of Hobbes, Locke, Montesquieu και Rousseau as insertions of the liberal constitutionalism refer to S. Orfanoudakis, p.10-47 9 Fernand Braudel, A History of Civilizations, MIET, Athens 2010, p.452 7 weaknesses and undoubtedly the conviction that it is not everything amenable to self-regulation. Being a bearer of the individual right to education does not suffice in case of dearth of infrastructures’ allowances by the state or in other words if the social right to education is missing. Additionally, the fact that liberalism addressed the problems of a suppressed social class, of bourgeoisie, wouldn’t imply - in terms of historical determinism – that new suppressed, new outcast would not show up. In fact, the liberal pronouncement created fresh suzerains, bourgeoisie, but new ruled as well. The working class, the one who participates to the economic process solely on its workmanship, comprises a new social class that points out socialism as the respond to the problem. In this regard, “liberalism appeared to be amid an impending revolution – socialism – which is going to meet several transformations – and an anti-revolution that does not yet knows neither its name nor the point it may reach.”10 On this account, no one can foresee what follows. However, what indisputably may be pursued is the institutional arsenal that will warrant, as far as possible, the peaceful developments. And this arsenal cannot but be laid on legal orders of state structures and on the International Legal Order.

masterThesis

International law
Dissertations, Academic
Human rights
Cultural policy
Cultural property--Protection (International law)


English

2015-07-02
2015-09-27T05:57:58Z
2015-07-02T09:17:11Z


ihu
School of Economics, Business Administration and Legal Studies,MA in Art, Law and Economy




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