[figure] British "Great Charter of liberty" (1215) copy

Chinese needed a new constitution

-- in commemoration of the 31 anniversary of the people's Republic of China promulgated 1978 "constitution"

Today is a memorable day. 1978 today (March 5th), the first session of the Fifth National People's Congress adopted a new constitution, which laid the Chinese, reform and opening up "legitimacy". However, today's today and yesterday's today, after all, has undergone tremendous changes, once the historical conditions and social foundation is also changed, once the "legitimacy" of the need for a new interpretation of the theory and legislation practice response. Therefore, in this historical moment, careful reflection "connotation and extension of Chinese constitution", very is necessary.

I although unknown, but on the mainland "jurist" to fix for the constitution of superficial deep dissatisfaction, so here, the Bo not understand meanness, make the following proposals, get professional advice:

(1) the new "China constitution", its form should be unwritten, and its formulation are participating in the formation of the form of state structure of the new;

(2) the new "China constitution" in the "China", is an end "two Chinese" (that is, "the people's Republic of China" and the "Republic of China") of dividing and after the reunification of the "new China";

(3) the new "Chinese constitution" pay more attention to the regime construction, so as to change the "state system decides the regime" constitutional system, implementation of "conversion regime decided to state";

(4) the future "Chinese constitution", its contents will be "to the core" has become a rich and diverse pattern, she will be compatible with international law and domestic law under different system;

(5) because of these changes, "Chinese" future legal system will end "repression", and to "autonomous law" and "the combination of responsive law".

The Bo prophecy is an optimistic, facing the future predictions, however, it is also based on history and reality; similarly, it also has a solid philosophical foundation. The Bo that, in accordance with the constitutional ideas like this, "China" will be the minimum social cost to achieve the maximum social benefit, and can resolve the current Chinese society with many social contradictions and problems.

The new China since the founding of new China, has produced an interim constitution and the four constitution, namely, the common programme, 1949 1954 Constitution, the constitution of 1975, the 1978 constitution, the constitution of 1982 (four major amendment of existing). Its frequent changes, rare in the world. Why is this so? One is because the conflict between reality and law; two is between the different parts and different parts of the Constitution itself, emerging tensions and contradictions inherent.

For the "people's Republic of China Constitution" the inherent tension and conflict, should be how to understand? The introduction of Ehrlich's "living law" concept and the present Chinese popular "unspoken rule" of the term, we see not hard, law on paper and the reality of the rule, is often not the same. The reality often break the legal barriers of impulse, unless the law to adapt to the reality. The legal system is needed, and there, according to institutional economics, but because the realistic benefits for the community to reduce (communication, transaction cost) demand. Therefore, Marx once said, "the real constitution of a country is the unwritten constitution, and the real constitution depends on contrast 'power of reality'". Future "China constitution", is one of the most fundamental task, is to end the "two pieces of skins" phenomenon. The weapon is equality and democracy.

Equality, democracy, is not only a kind of epistemology and values. Man as a political animal and economic animal, for equality, democracy is not only the demand, the development of human society, the result of the evolution of civilization, but also the inevitable demand of people to obtain realistic interests. Equality is first to economic interests, because commodities are born equal "". While democracy is the distribution of economic benefits. The constitution is the product of equality and democracy. Mao Zedong once had such a right to discuss: "the history of the world's constitutionalism, whether Britain, France, USA, or the Soviet Union, are in after a successful revolution democratic fact, promulgated a fundamental law, to admit it, this is the constitution." Similarly, "the government is just the product of the constitution" (Thomas Paine).

For the equality and democracy, is greatly recombinant Chinese society. Such demands itself is forming a right China political power, a rich and strong vitality of the "living law". Countless via the Internet and decided the case has jurisdiction and emerging. This is the characteristics of the Internet era. Information of instantaneous communication, and very low cost. They are using a new way of reading, "Deconstruction" paper law text Chinese, formed a kind of "procedural justice", to resist the "substantive justice", changing the China legal "heavy entity, light program defects".

Therefore, the new "Chinese constitution" in the legislation and the legislative cost risk has already reached a minimum value, however, no legislation to form a "new" risk, has reached a tolerable limit. Legislative risk is very small, but because of the formation of "a new arrangement of" social forces and the informal institution, has completely emerged. The formation of "constitution", only need to make a confirmation of their. (Note: this "informal system arrangement" refers to people's values, ethics and ideology in areas such as spirit, ideas, is a kind of active and break through the existing legal text, the desire for change, rather than the so-called "unspoken rule", the latter often is bad for society.) The reason that the formation of "minimum cost constitution and legislation", but because these costs are not paid social distribution at. Here, we want to the majority of the "people"!

However, the "new" needs more reflected in the globalization, the international division of labor and the "two China" unity and so on external factors. Equality was not in China formation, but because Chinese economic structure because of (domestic, foreign) imbalance and lead to monopoly, so China still is not a strict sense of market economy countries. Another inequality is the political factors, such as the central and local relations, the relations between the mainland and Taiwan, Hong Kong and macao. Political, economic inequality, also leads to the possibility of informal institutional arrangement, also caused the cultural decline, thereby social (communication, transaction cost) and enlarged, appeared not a people unbearable and no interest.

In addition to the only way disadvantages is to size up the situation, conform to the history, we should re-examine the existing constitutional resources. The need to solve the core problem is: 1, the future China form of state structure (now is the "unitary") problem; 2, the future China system (now is "the people's democratic dictatorship" is "the system of people's Congress"); 3, the future Chinese regime (now "people's representative congress system"); 4, the future China party system (it is "the system of multi-party cooperation and political consultation under the leadership of the Communist Party" Chinese) problem.

These problems above, can continue to narrow the scope of a core problem: the future of the "China" regime should? It is such a problem, in a test of the wisdom of all the Chinese. If in accordance with the heavy entity Chinese inherent ", light program", "national heavy, light social" autocratic tradition, the metaphysical dogmatism, bookishness legal text, to solve this problem will be extremely difficult, even may cause political crisis and social unrest. However, to describe the world and China society, we can find that the inexhaustible resources of thoughts, as well as a very safe way. That is, first of all to abandon the bookishness and dogmatism, and then try to take an unwritten constitution legislation road. This is an arrangement with the formal institutions and the informal system, a metaphysical also pays attention to is the concern of road, a "unification" and local autonomy with the road, a linked up and down after the modern road.

This unwritten constitution legislation Road, not completely abandon the legal text, but let the formal institutional arrangements revert to its original meaning, through social negotiation and reach different political reconciliation based on negotiation, and the formation of new legal text. In the "new China" in history, in addition to the colonization of Hongkong is a common law, other regions are the socialist legal system and the continental law tradition. Therefore, in order to resolve the contradictions and conflicts between different legal systems, evolution to the future Chinese social, legal, should be through the "social piecemeal Engineering" (Popper) to complete the. So, the unwritten constitution legislation road is practical and reliable.

America judge Holmes in the "legal road" said: "the life of law is not logic, but rather experience." His real intention is that, the law should not be bookishness and dogmatism, the law should as far as possible to the social reality; died of abstract and principles of law, and was born in a specific and realistic. The "law of the road" and the change course of human society on the road and the road of thought is consistent. Fortunately, the Chinese continent continues 30 years of reform and opening up, the democratic experiment in Taiwan, as well as the background of the Internet era, the vast majority of Chinese has accumulated many experiences. We of this generation Chinese mission is applying these lessons into legal resources and intellectual resources.

(originally wanted to explain my five propositions, in the above and stop due to reasons of space. In fact, the contents of the above has been basically proved my claim.)