First chapterConcept, theory and methods of Constitutional Jurisprudence

Induction of important knowledge points:

1     Characteristics of constitution

2     Classification of constitution

3     The origin of constitution

4     The structure of the Constitution

5     The Constitution and Constitutionalism

6     The basic values and principles of Constitutionalism

 

A,     The constitution characteristics

The 1 constitution is "public law"

The constitution is the main task of the provisions of the state organization, its power and duty division, state and citizens of the relationship between the basic problem. This problem belongs to the field of "public law". Subject to take the constitutional obligation of the state and the government agencies, not personal or private institutions.

The 2 constitution is authorized

The constitution is granted civil rights, the constitutional definition of state institutions to power, but also restrict the power of country, the protection of human rights. Most important, the most core value lies in the protection of human rights. Lenin also pointed out: the constitution is a piece of paper with the rights of the people.

The 3 constitution is a guarantee for each individual rights "social contract"

The Constitution not only protect the most human rights violations, but also to protect the fundamental interests of minority is not affected by the social power. Therefore, the formulation and revision of the constitution of the program than the general law more strict.

The 4 constitution is the basic law

In the content, the provisions of the constitution of the most fundamental, the country's most important problems. The constitution is not an ordinary citizen rights, basic rights but have an important impact on the lives of citizens are the essence of human nature "". So it is in the political system and national setting.

The 5 constitution is relatively stable

Constitutional democracy basic content and the main constituent highest determines the stability of constitution. In countries with written constitutions, constitutional making and modifying the program than other laws more strictly.

The 6 constitution is "omnipresent"

When it comes to the basic rights of citizens, as long as related to national power, it has the Constitution's shadow.

7 in the written law countries, the constitution has the highest legal effect

"All the laws, administrative regulations and local regulations may contravene the constitution."

"The Chinese people of all ethnic groups, all state organs, armed forces, political parties, social organizations, enterprises and institutions, the country must take the constitution as the basic standard of conduct, and for the maintenance of the dignity of the constitution, to ensure the implementation of the constitution duties."

The 8 constitution is a basic form of democratic legal fact

"The world has always been the constitutionalism, whether Britain, France, America, or the Soviet Union, are in after a successful revolution democratic fact, promulgated a fundamental law, to admit it, this is the constitution."

 

Two,     Classification of constitution

On the basis of the form of the constitution is a unified code	The written constitution	Refers to a unified code form of the constitution. The vast majority of countries in the world today, the constitution is a written constitution. 1787 years of "the constitution of the United States" is the world's first written constitution in history, in 1791 the French Constitutional Law is the continent's first written constitution
The unwritten constitution	Various constitutional legal document did not preceded by the constitution, but plays the function of constitution. Britain is a typical unwritten constitution state. Constitutional documents subject of the British constitution by the different historical period promulgated the constitution, including 1 628 years "the petition of right," 1679 "habeas corpus", in 1689 the "bill of rights", 1701 "law of succession to the throne", 1 911 years of "act of Congress", 1918 "national political law" 1928, "election", men and women equal 1 969 years of "people's law" and so on.
The constitution has no strict formulation, modification of authority and procedures for the standards	Rigid constitution	Refers to the formulation, authority and the procedures to amend the constitution is different from the general law. The written constitution countries are often rigid constitution state
Flexible constitution	The Constitution and the law modified by the same authorities according to the same procedure or, so their legal effect and authority no difference. The unwritten constitutional countries are often flexible constitution country, Britain is a typical
The constitution of the authority for the standard	Imperial constitution	In 1814 the French king Louis the eighteen constitution in 1848, Italy Sardinia King Albert promulgated the constitution, 1 889 years of emperor Meiji of Japan issued the 1908 constitution and Chinese Qing government promulgated "the outline of imperial constitution" belong to the imperial constitution
The people decide the Constitution	By means of public opinion or formulated by the referendum constitution, constitution made by the people to pursue the principle of people's sovereignty, at least in the form of stress responsive to public opinion, to democracy as the pursuit of value
Agreement on the Constitution	Formulated by the consultative monarch and national or a national representative body constitution. The agreement is often the product of class compromise constitution. The signing of John such as 1215 years Britain's "Great Charter of liberty" is the king in the nobility, clergy, knight and city citizens under strong pressure; the French constitution of 1830 is in 1830 year revolution, Congress with king Louis Philip jointly promulgated

 

Three,     The origin of the Constitution

The constitution code	Constitution is the vast majority of countries in the form of legal documents, is refers to a country the most fundamental, the most important problem from a logical, systematic to be clearly defined and the formation of the constitution.
Constitutional law	It refers to the basic content of one country's constitution is not uniform provisions in a legal document, but by many legal documents show the constitution. There are mainly two kinds of situation: one refers to the unwritten constitution in the country, the fundamental, the most important problem is not the constitution form, and a single legal documents stipulated by law. Constitutional law formulation and revision of the organ. Agency procedures usually and common law formulation and revision of the same program; two refers to the written constitution in the country, by the state legislature for the enforcement of the Constitution and the relevant provisions of the constitution of laws. In the written law countries, both the fundamental law meaning of the constitution, the constitution, and the existence of department law on the meaning of the constitution, namely, the relevant provisions of common law constitution law, such as the organization law, electoral law, law, legislation law on behalf of the rules of procedure, the representative organs etc..
The Constitutional Convention	Conventions of constitution is the Constitution without clearly defined, but in the actual political life, and is generally followed by state organs, political parties and the public, and has the same effect with constitutional habit or custom. The constitutional convention in the unwritten constitutional state, but the written law countries is not uncommon.
Constitutional case	Constitutional case refers to the provisions of the Constitution does not expressly provided, but by the judicial organs in the trial practice gradually formed and has the constitutional authority
International treaties and international customs	International treaties and international customs can become the domestic sources of law and the origin of constitution, depends on a country's participation and approval.
Interpretation of the Constitution
Authoritative constitutional works
The origin of the constitution Chinese: constitutional law, constitutional law, constitutional interpretation, constitutional convention, international treaty

 

Four,     The structure of the Constitution

The structure of the constitution is written constitution, generally including the preface, text, annex three parts

Sequence	Also known as the preface, introduction, most countries in the world have a constitution, only the provisions of the existence difference. In some countries, the preamble to the constitution is very short, some countries are relatively long preamble to the constitution.
The text	The text is the main content of the constitution, also the center of the constitution, basic content basically has the following several aspects: first, the basic principles of the state and society Second, the fundamental rights and duties of citizens and national institutions Third, the national emblem, flag, anthem and capital
Supplementary articles	The constitution of the annex refers to the additional clause of the Constitution for the specific issues need special provisions and make the. The annex is a part of the constitution, the legal effect of course should be the same as general provisions. Its legal effect is of two characteristics: one is specific, the annex to specific provisions or apply to the matters, have a certain range, beyond the range is invalid; two is temporary, namely annex only on time or situation specific application, for a limited time, when time expires or the situation changes, the law the effect of natural should terminate.

 

"People's Republic of China Constitution" directory

Preface

First chapter  General programme

The second chapter  Basic civil rights and obligations

The third chapter  National Institutions

The first section  The National People's Congress

The second section  President of the people's Republic of China

The third section  The State Council

The fourth section  The Central Military Commission

The fifth section  Local people's congresses and local people's governments at various levels

The sixth section  The organs of self-government of the national autonomous areas

The seventh section  The people's courts and the people's Procuratorate

The fourth chapter  The national flag, national anthem, the national emblem, the capital

 

Five,     The Constitution and Constitutionalism

1The constitutional definition

The constitutional government, is to use the constitution of the form has achieved the Democratic fact established, with the spirit of the rule of law development and improve the Democratic fact, guarantee the rights of citizens to. Therefore, constitutionalism should contain three basic elements, namely, democracy, rule of law and human rights. Among them, democracy and the rule of law serves the same value -- the guarantee of human rights, just play the function of different angle. (week Yezhong version)

The constitutional government, is a kind of idea or ideal state of the legalization of political operation, which requires the government to exercise of power is incorporated in the constitution of the orbit and restricted by constitution. (Zhang Qianfan.)

The above definition no substantial difference, emphasize: to limit the powers of government in the constitution, in order to guarantee human rights.

2The basic characteristics of constitutional government

(1) democracy is the precondition of Constitutionalism

The constitution is the result of democracy, constitution is the law of democracy in. The implementation of the constitution constitutionalism is the result of democracy and security.

(2) the implementation of the constitution is a basic way of Constitutionalism

The constitution is the constitutional, constitutionalism is a dynamic constitution.

(3) the establishment of limited government is the basic spirit of Constitutionalism

The exercise of government power into the constitution of the orbit and restricted by constitution, the establishment of a limited government, can guarantee human rights.

Through the rule of law to restrict the power of government -- clearly define the powers of government constitution, government power can only be in the form of constitutional bounds.

The specific way to restrict the government power

-- in the capitalist countries, mainly for the principle of separation of powers. For example, the separation of the three powers American.

In 1789 the French "Declaration of human rights," said "all right without guarantee and decentralization is not established society, has no constitution".

-- in the socialist countries, mainly for the supervision principle.

The supervision principle, is the first by the first of the dictatorship of the proletariat regime of the Paris commune, was later proletarian dictatorship socialist country is regarded as an important principle of democracy, and to make specific provisions in the constitutions of many countries. As China's current constitution stipulates, "the National People's Congress and the local people's congresses at various levels are democratically elected, responsible to the people, subject to the supervision of the people", "state administrative organs, judicial organs, procuratorial organs by the people's Congress, responsible to it, subject to its supervision", "citizens of the people's Republic of in regard to any state organ or functionary, have the right to criticize and make suggestions", "people's courts, the people's procuratorates and the public security organs shall, in handling criminal cases, division of responsibilities, cooperate with each other, mutual constraints, to ensure the correct and effective enforcement of the law", etc.

(4) set up the constitutional supreme authority is the concentrated expression of Constitutionalism

   Let the rule of "law" in the rise to the constitution, the rule of law also is the natural rose to the height of constitutionalism. In this sense, constitutionalism is the highest form of law.

Establish the supreme authority of the constitution way -- the constitutional review system of ordinary law.

The origin of constitutional review -- American federal chief justice Marshall through the case of Marbury v. Madison established the General Court of review of constitutionality of laws enacted by the legislature of the system

The models of constitutional review (3) -- the legislative review (Chinese), judicial review (American), specialized organs examined (France)

(5) the protection of human rights is the ultimate goal of Constitutionalism

Democracy is the basis of legislation, however, democracy means majoritarian, there is the risk of abuse and misrule. The constitution is not only in the democratic basis and reflect the will of the majority, and the protection of human rights, not because of the will of the majority and the few at the expense of basic human rights as. For example, in Chinese, 2/3 representatives of the National People's Congress agreed to the amendment of the constitution, which means that the 1/3 representative does not agree, the majority of power will not be able to amend the constitution to deprive the rights of minorities.

Six,     The basic values and principles of Constitutionalism

Democracy	The people's sovereignty is refers to the country in the vast majority of people with the highest power of the state, sovereignty of the people. The word "democracy" refers to "the rule of the majority".
Human rights	Most important, the most core value lies in the protection of human rights. The Constitution does not only protect the majority of human rights, but the protection of all persons -- including a few or even a person -- basic rights.
Rule by law	The rule of law is relative to the rule of. The peak of the rule of law in the "law" rise to the legal system, rule of law, it will rise to constitutionalism.
Restriction of power	The ideological foundation	Methodological Individualism: the government or the state is not an abstract entity, they represent only a occupied by specific human agency
If an element behavior in public choice theory: everyone has a selfish
Pattern	Horizontal: separation of the three powers, supervision
Vertical: the relationship between central and local government Local autonomy, is a manifestation of democracy; check on parts of the central, is conducive to the protection of human rights.
Relations between the three powers, supervision, the central and local governments to be incorporated into the orbit of the rule of law