Dal Welfare State al Caring State?

The air of freshness blown into the debate on alternative and sustainable development by the concept of buen vivir is beginning to produce discussions even in the juridical field, involving in particular constitutional comparativists. Ecuador and Bolivia have constitutionalized this concept since the constitutional reforms of 2008 and 2009, but if we try to understand this phenomenon under comparative lenses, we may find traces of institutional change even in countries with different cultural and historical backgrounds, such as Bhutan and South Africa. All these countries have been interested in processes of constitutional (re)foundation and chose similar methods (public discussions and popular participation in the reform process) and contents (inclusion of different cultural traditions and balancing between values such as personal dignity and communitarianism, interculturalism, deep ecology) for their new constitutional systems. The Nuevo Constitucionalismo of andine countries is certainly the most powerful example of this new trend because it offers a complete panorama of all the constitutional instruments applicable: positivization of buen vivir in the Constitution, that is buen vivir is a parameter in constitutional adjudication; introduction of the constitutional rights of buen vivir; Nature as a new subject of rights; universal citizenship; property as a collective right; auto-determination of indigenous people; etc. In different ways and measures, though, even in Bhutan and South Africa it can be see something alike: in Bhutan through the concept of Gross National Happiness and the explicit constitutionalization of the ethical values of Buddhism; in South Africa thorough the use in constitutional interpretation of the traditional concept of ubuntu. Comparing all the common elements in the experiences analyzed from a normative perspective, even if aware of the different contexts, I propose to read them as the germinal phase of the birth of a new form of State, overcoming the Welfare State towards the Caring State, that is a model of State where the Public cares for each member of the community, but also everyone cares for the other and both the State and each individual care for the environment as a living part of the biotic community. The air of freshness blown into the debate on alternative and sustainable development by the concept of buen vivir is beginning to produce discussions even in the juridical field, involving in particular constitutional comparativists. Ecuador and Bolivia have constitutionalized this concept since the constitutional reforms of 2008 and 2009, but if we try to understand this phenomenon under comparative lenses, we may find traces of institutional change even in countries with different cultural and historical backgrounds, such as Bhutan and South Africa. All these countries have been interested in processes of constitutional (re)foundation and chose similar methods (public discussions and popular participation in the reform process) and contents (inclusion of different cultural traditions and balancing between values such as personal dignity and communitarianism, interculturalism, deep ecology) for their new constitutional systems. The Nuevo Constitucionalismo of andine countries is certainly the most powerful example of this new trend because it offers a complete panorama of all the constitutional instruments applicable: positivization of buen vivir in the Constitution, that is buen vivir is a parameter in constitutional adjudication; introduction of the constitutional rights of buen vivir; Nature as a new subject of rights; universal citizenship; property as a collective right; auto-determination of indigenous people; etc. In different ways and measures, though, even in Bhutan and South Africa it can be see something alike: in Bhutan through the concept of Gross National Happiness and the explicit constitutionalization of the ethical values of Buddhism; in South Africa thorough the use in constitutional interpretation of the traditional concept of ubuntu. Comparing all the common elements in the experiences analyzed from a normative perspective, even if aware of the different contexts, I propose to read them as the germinal phase of the birth of a new form of State, overcoming the Welfare State towards the Caring State, that is a model of State where the Public cares for each member of the community, but also everyone cares for the other and both the State and each individual care for the environment as a living part of the biotic community.