Location of political constitution, and the method of 

Gao Quanxi Tian Feilong

 

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Gao Quanxi, Professor of Beihang University law school, "domestic political constitution of" one of the representative

Tian Feilong, doctoral candidate of Peking University Law School

 

Tian Feilong (hereinafter referred to as the "field"): high teacher, Hello, glad you invited over for a interview dialogue on "the problem of political constitution". In fact, today the best dialogue scenes should be between you and Mr. Chen Duanhong, one of my students, but "political constitution", since the contact and generally accept the constitutional path has been learning and reflection of continuous state, did not dare to claim to be a qualified "". Today, I still have to learn, if there is a little of his own understanding of the word, should also be regarded as a report. 

Gao Quanxi (hereinafter referred to as the "high end"): Hong because otherwise engaged is temporarily unable to participate in the discussion, but I believe that the academic consensus between us and he himself for the development of the political constitution responsibility should continue. Because I was from the political philosophy and history background of constitutional jurisprudence, identity and concern for the political constitution is mainly to my original academic background as the basis, so in the end the flood constitution, subject discourse misunderstanding or form by the rejection are more likely to be. But that it doesn't matter, my concern is not a form of "discipline" birth or is a subject of both discourse acceptance problems, explain the real competitiveness of authenticity and theory but the problem itself. If you are facing the "real problem" itself, there is a knowledge based system rather than the so-called science interested, I want to misunderstand may reduce some, and dialogue and external may also be more effective. 

Tian: This is the true feelings you had participated in "political constitution of" dialogue and speech. I am done before the research China constitutional law schools, "the political constitution" is an important manifestation of academic schools, I think it is a good phenomenon, but also a important constitutional academic starting point, although it is not possible to completely accept the academic or seriously. You mentioned the "real problem", this is especially important for positioning the political constitution. The constitution after the reform and open policy with the form of legal discourse strong expansion and jurist colony upgrading, especiallySince the beginning of the twenty-first Century, standardize a rooted in Germany and Japan's constitution (including the standard constitution and constitutional Hermeneutics) rise and occupy the leading modern constitutional theory and rooted in USA, simplified and America constitutional case history according to the "case of constitutional law" increasingly, tendency of two has super empirical "standard of value", through the value of fundamental rights justification and constitutional review "sand table" gradually build and Chinese constitutional system and political reality, opposite to the "constitution of the republic". The transformation of academic thought and method has a positive value, but also may cause disconnection and Chinese constitution system and constitution of the real decision process. Therefore, I think that the "real problem" should be the direct cause of the rise Chinese "political constitution". Specifically, you feel Chinese political constitution according to what is "real problem"? The awareness of the problem is how to generate? 

High: the political constitution as a constitutional academic concept, formally proposed in the end of HongThe article was published 2008 "Chinese and foreign law" on ", namely the constitution as the fundamental law of the state and the advanced method". At the end of flood problem consciousness may be mainly from the constitution, for example, since 2001, around the "Qi Yuling case" and the rise of "constitution" academic trend of calm reflection on the constitution, China overall structure and spirit are "standard" and "text" in the technology to dismember lament and his own in the knowledge reserve return to the "sovereignty" as the starting point for different from the mainstream of constitution, constitutional political understanding. The paper is the overall structure and spirit of China 1982 constitution explanation, full of rational political constitution, I think it is a prominent symbol world academic reflective ability and the ability to construct constitutional science. End of the flood in a groundbreaking paper tries to put forward China constitution "five basic", and carried out based on the logical order, summarizes recent academic history of British "political constitution", publicity Association ideological political constitution and republicanism, and eventually put forward based on the "sovereign support the constitution" Presupposition and multi-level generating unconstitutional review system. Have a point of view, end Hong very bold, is by the Central Committee of the Communist Party of undertake the examination duty, which in Chinese present all constitutional scholars knowledge mapping is a blind spot. End Hong anxiety is how in the postmodern "sovereignty" and "political" context under pressure to constitutional way to construct a rational Chinese sovereignty and political, he has the courage to face the era problems fundamentally, and had a very hard knowledge preparation and theoretical proof. At the end of flood in the academic thought, influenced by Schmitt's political law, but his theory is not limited to this, also extends to the "early modern" French Enlightenment thinkers, mainly Rousseau, and Sieyes. The end of Sieyes's text is the flood of the kungfu, using the words in the end Su, Hong is in the use of "West Jess" save "Rousseau", in an attempt to check people's sovereignty theory and practice even purely representative democracy. However, the main theoretical resources end flood generally belongs to continental rationalism, I am dear "Anglo American", this may be the root has certain theoretical differences between us. Although I and the end Hong in the specific "fundamental law" content and calls the theory resource differences exist, but for his basic standpoint of value and academic concern is compassion and agree. 

Tian: are you on the political constitution of initial academic status and academic understanding of teacher Chen and quite close, I basically agree with. "Harmony but not sameness, with different, this is common sense common sense. I do think there are some important academic ideological differences between you and the teacher Chen, these differences are reflected in the research practice. So your awareness of the problem how to? 

High: yes. Constitutional law from the perspective of internal relative to the end Hong, I am more from the intellectual history and the history of the dual dimensions "birth" of the so-called political constitution of problem consciousness. An empirical observation and judgement of my individual is the basic historical goal: China since the Opium War in the modern process of "nation" (nation building) and "Xinmin" (rational citizens), but the historical target has not been completed, Chinese in the history of thought are still similar to creating period modern western countries status. Therefore, I extracted the "early modern" (The concept of the critical Early Modern). I called the political constitution is from the similar to western "early modern" problem consciousness and theoretical structure of precipitation, so it is a time of constitutional. By the end of 08, according to the article I wrote "end Hong special political constitutionalism and judicial constitutionalism" one article, and had the theme "report in Beihang University Law Salon", the young scholar Zhou Lingang in the comments point to my political constitution care "logic", is in place. The background and meaning of "early modern" the thought history concept, I have a special article in "reading" the magazine. Naturally, I come to care "of political constitution from the history of thought". Corresponding to the "early modern", I put forward the concept of "learning" as the political constitution of the "constitutional", means the occurrence of political constitution "". In this "constitutional Genesis" of concrete structure, I think there are three clues are crucial, namely "war - Revolution", "wealth and property rights" and "the religious mind", the first two clue I have long paper and made speeches, the last clue at thinking.

Some people may think that these problems are not the constitution, or even a constitutional question, also need to be first translated into specific rights, then discusses how to guarantee the judicial system. Critics have daily constitutional law is mainly a constitutional mature after the "mediocre" eyes, my so-called "Genesis" corresponding to the stage of constitutional enactment, belong to "politics" to "transition stage Everyday Politics". I hope Chinese constitution can widen the field thought in the "technical preparation" at the same time, really understand a "constitutional" instead of "constitutional law judge" and its complexity. I am on the three clues of thought on the history of discrimination, roughly the route, France and Britain empiricism rationalism route and Russian radicalism route. The radicalism of the line in the wholeBy twentieth Century, the Kuomintang and the Communist Party Political and cultural elite development, enormous influence on the culture and politics of China produced "three thousand no change". Although this ancient upheaval is based on "national salvation" reason for existence of strong historical rationality, but the normal regression after the revolution has become China constitutionalism "knot". Therefore, I based on the theory of reflection on the relationship between "revolution" and "constitution", "constitutional proposition put forward counter revolutionary" revolution and "counter revolutionary nomology". Of course, this "counter revolutionary" is definitely not the revolutionary camp "restoration" or "subversion", but the revolutionaries themselves through the "rational" restraint of revolutionary enthusiasm, through the "tolerance" repair cultural rift, and build the rule of law countries through the "constitution", consolidate the fruits of the revolution, so as to achieve the institutionalization and benign transformation.

I personally prefer the Anglo American experience, this point and end the flood has the very big difference, continental rationalism approach he seems to prefer the method at. Corresponding to such a thought on the history, I compiled six volumes of "modern country law political literature", covering the world modern history major powers (Anglo Franco German Russo Japanese), with three million words, will be formally published data, literature and thought system has the connotation of long time, extremely rich, that is a good reference for the political constitution, I care about the history of thought into the road. In a word, I think China modernization is the key of "nation", and how to "nation" is difficult to be reduced to "modern constitutional power to limit" and "rights" that science and technology essentials of password, but how to construct the "power" of the problem. The political constitution is not concerned about rights, but that the "country" more critical in politics, but also the effective premise of rights protection.

Specific observation and experience my problem consciousness is also directly from the concrete experience of Chinese modern history. I thinkSince 1840 the political and cultural elite Chinese for "country road" of a lasting and tragic exploration, overall was not very successful, we need to inherit the historical responsibility. The phenomenon of constitutional law, Chinese modern process appeared in the "first Republic" and the "second republic". The so-called "first Republic" refers to the "Republic of China" in 1911, even as it is Asia's first modern republic. This year is the 100 anniversary of the revolution of Xin Hai, my memory is quite special, "the emperor" around his edict rather than "provisional constitution" launched a political constitution interpretation, that force two is real historical basis first republic. This and the KMT revolutionary conception of history and historical view of liberalism have difference. However, "Xin Hai revolution bleeds" least ultimately just a failure of the "Glorious Revolution", not a glorious achievements and success smoothly Guardian conservative constitutionalism from the above two main constitutional document of the Republican constitutional government -- "". First Republic led Sun Zhongshan to open the "party state". The same period the Communist Party despite political competition with the Kuomintang, but also by the Soviet Union together even more profound influence on the party building principle. "Party state" is adapted to the special historical period of revolutionary radicalism of the product, how to transition to become biggest constitutional question to the victory of the revolution of modern democratic peace. The so-called "Second Republic" refers to the new Chinese ultimate dilemma, the Constitution also stems from the "party state". From the current situation, on both sides of the "one table" only in the abstract sense of political contract determines the basic ethics of national unity, but did not become a specific constitutional fact. "Anti Secession Law" is to strengthen the "one China" principle of law, but did not reach the height. Unification of cross-strait called, are at the root of the uniform, or "system of comprehensive problem first Republic" and the "Second Republic". For such a unified Chinese nation without stop the constitutional process, I think according to the single text (specification) of constitutional Hermeneutics and normative constitution study cannot load. If we stick to the purely technical preparation, it may ignore the reunification of the Chinese nation, can not be clearly judged "time attribute and the political connotation of nation building". 

Tian: on your awareness of the problem, I also want to do some supplement. Now the constitutional scholars pay more attention to the common values and the judge's interpretation, the lack of the Framers' deep consciousness and holistic care, in the face of the times changes Chinese rich connotation and unsettled political constitution and structural problems of founding, even by relatively close to the academic horizon and the many "non China" "Chinese", but "the real Chinese" problem "non issue". More precisely, it is a "political" politics, but a modern nation without effective political maturation process of temper, logically step jump to the "ideal country" the rule of law, the spirit will certainly distorted. Many developing countries lack of reflection and Prudential consciousness is so. So, I personally think that the political constitution is to mining process Chinese real constitutional decision of experience, procedures and rules, separating the guiding principles and the rational rules, the national modern political practice theory and institution. In fact, Chinese constitutional text itself is not completely "rights", the so-called "the national modern political practice achievement" more embodied in the preamble of the Constitution and the general program. Therefore, the political constitution also has a strong normative sense, absolutely not some constitutional scholars believe, thought political constitution is "constitutional politics" or "sociology of law". Internal political consciousness of constitution is produced in regret and reflection of reality China constitutional, institutional links political norms also produced in the text of the Constitution and the constitution within the real decision process. 

High: you mentioned that the academic misunderstanding of "political constitution", such as to be regarded as "constitutional politics" or "sociology of law". How it happened? 

Tian: it involves internal ecological problems China constitutional law, I might be able to do some line of simply introduces for you. This year's "law" articleArticle 2 periodical hair Li Zhongxia associate professor of Shandong University law school, entitled "Reflection on the methodology of Chinese constitutional law" (hereinafter referred to as "Li Wen"), the political science of constitution as a "sociology of law" and the most concentrated academic criticism, and to "Fan Xian law." only that its super empirical specific value based, multi surface, for its own constitutional Hermeneutics (Hermeneutics) position is love, even will be part of the "political constitution content into the" hermeneutic open structure, such as the paper on the interpretation of the constitution principle is so. This paper represents the people's University Law School professor Han Dayuan dominated constitutional hermeneutics, despite extensive trace many theoretical misunderstandings and discourse, but provides a academic irrefutable framework is for domestic constitutional jurisprudence methodology comparison or review. "Constitutional politics" misunderstanding comes from my recent in a debate about the methods of constitutional jurisprudence on Academic Salon, many of the hermeneutic standpoint constitutional scholars believe that political constitution of no specific research object clear and research method, legal attribute is weak, and therefore more properly called a "constitutional politics". This "political constitution" marginalized or simply dismissed "school" approach is open to question. 

High: the constitutional politics? This isn't right. Although the end times prophecy Hong political constitution needs the help of political science and sociology, but does not stop in the social sciences in general sense of the phenomenon/ fact description, not simply from the fact out of specification. Our ultimate goal is the normative theory. 

Tian: critics is such criticism. Li Wen in the method mainly with the "factsPhilosophy value "two points, and were criticized political constitution focus too much on the" facts ", and" the standard constitution "is too much attention to" standard "or" empirical "specification. We advocate "political constitution" and Zhu Suli, the representative of "constitution sociology" one pot, are tagging is only concerned about the interpretation of facts and causality "sociology of law", are trying to "facts" into "a direct proof theory assuming specification". Li Wen advocated constitutional interpretation (explain) fusion science through between rules and facts "eye circulation" to achieve the "case of the two". 

High: here seems to be related to differences in social science and law. Methods of social science is mainly used for "fact finding", in this sense is "science". The political constitution theory holds that the first step of scientific China constitutional law should be completed on the is complete and true "China constitution" description, end Hong in Peking University School of government's speech also clear on this point. However, the political constitution and "constitutional politics" or "constitution sociology" is certainly different, the latter is only the first step of political constitution efforts. What is the second step in the political constitution? Is the specification of "real constitution" into. The second step may involve the use of legal methods, but may the judicial nature different from the case of legal method, but a "constitutional". 

Tian: on how to prove, is a big problem, which is also the key political constitution of the final and general social sciences are distinguished, or political constitution still belongs to the "constitution" theory according to the. This process may require the political norms Chinese in constitution especially political principle to connect and import. We are not the "reasonable" and "social scientific imperialism", but a fundamental law of social concern "scientific method" of the borrowers. Li Wen in order to constitutional interpretation of his own (explain) standpoint, seems to be constitutional Hermeneutics itself a generalization. Li Wen defined the constitutional interpretation into the interpretation of rules and principles of interpretation, the interpretation of rules using the traditional interpretation rules, this seems to be no doubt. The key is the Li Wen definition of "principle", "the essence of its claim to decide constitutional principle is the principle of the conflict situation, only in case of a conflict, a principle of survival significance to appear before. Given the complexity of conflict situations, this interpretation must be comprehensive consideration of various situations in practice, the hidden value, represent the various principles of purpose, to analyze the benefits, is still difficult to make the measure value, must introduce the corresponding theory as the premise." Although the author tried to maintain the integrity of constitutional interpretation standpoint, but here the principle of "interpretation" of the methodology is described and its practical possible theoretical work process but with we advocate "political constitution" quite similar. "A principle of survival" is not consciously reflect the "political constitution" for. It's easy to let us think of teacher Chen08 years in the article on the "five law" principle of refining and ranking, Li Wen's "principles of interpretation of" the viewpoint proves the legitimacy of the theory of political constitution. Associate professor Zhang Xiang's law school to open constitutional interpretation on multiple occasions, this openness has been confirmed in Li Wen's "principles of interpretation of" point of view. What is the constitutional interpretation of "transgression" or political constitution "transgression"? The former "expansion" of the reason or the latter "existence" reason?

I think here is the specification of the political constitution of understanding the key. The political constitution rules of real importance constitution and its relationship with the political constitution principle. Through the methods of social science found constitutional rule is equivalent to the "raw material", the text of the constitution of "principles" is equivalent to "switch", the political constitution, work is in the search, confirmation and production of "constitution", which is the political principle of constitutional scholars responsibility and avoiding the obtained specific, so the constitution of a country the implementation and change always maintain an organic process with true political connotation, pay attention to fact finding and standard filter (Constituting). But here the discovery and explanation is not made by the bear, not only for or too high "rights norms". I think that if the constitutional interpretation must maintain the purity of its own, it must generally confined to the constitutional rules of interpretation, the interpretation of open structure method once into the principles of political constitution and standard situation, as the interpretation of law position of the constitutional interpretation may lose its theoretical justification, as the judicial field from the perspective of presupposition and application situation may also be because of excessive politicization and the loss of legitimacy of constitution. 

High: so, it seems that the so-called "political constitution", "the standard constitution" and "constitutional interpretation" in the meet the practical challenges in the process of "positive correction" of their original theory of pure, such as "political constitution" has normative appeal, "the standard constitution" is not value neutral and the pure positivism, and "constitutional hermeneutics" and even the "interpretation" of the over expansion of some lost its "pure jurisprudence attributes" and "text formalism". Everyone is trying to care and contain rich connotation China Constitution itself, only a specific perspective, method of prototype discourse, maturity and ability of explanation are different. Since different ways in the face of the situation, problems and trend of self adjustment, and even the emergence of the cross and "raid" phenomenon, the number of logically have the possibility of cooperation and dialogue, and seek common property division. About you on the constitutional interpretation that some anatomy, it seemed to have different constitutional hermeneutics. Constitutional interpretation is the interpretation of rules in a narrow sense, is the traditional, but much less controversial, is also very mature. Lin laifan version of "the standard constitution" is contrasted with "ideal" upgrade "text specification" of the "ideal" and "ethical intentions". The political constitution obviously also bear a unique interpretation task. There appears to exist perspective and division of tasks for legislators and judges. 

Tian: Yes, strictly speaking, all the humanities and social science is to understand and explain as the center, just different objects and specific interpretation method. The Constitution itself as "the unique attributes and the law", not only the judge to hermeneutics, lawmakers need to hermeneutics. I this several days thinking about a problem, namely the political constitution and what the relationship of hermeneutics. I think that there are three kinds of constitution now the hermeneutic standpoint: the first kind is explained as the center of the special constitutional interpretation rules, which should be on the meaning of classical hermeneutics to explain a method, this approach in the case of Chinese due to the lack of support and technology of fine temper, is not mature; second to the right standard as the default core specifications on the value of constitutional interpretation, namely "the standard constitution", by Professor Lin laifan represented, which is known as the "personality", at first I misunderstood as "social democracy", now it seems "liberalism"; third is to explain the theory of legislation as center. Constitutional interpretation to the real constitutional rules and principles, namely "political constitution". Li Wen's shortcoming is that failed to further distinguish political constitution "specification" intention and focus. 

High: Refactoring you such an academic prospect might somewhat before cleaning and subdued conversation misunderstanding and tension. When the constitution of mainstream prophesy "explanation is everything", it may be that a text method based on infinite openness "in Philosophy/ specification imperialism ", but this risk also exists a self digestion, is in the process of opening extended gradually lost their lawyers or judges initially self position or deterministic, as in other areas of the intentional / unintentional" intruders". However, it is also expanding the law "hermeneutics" led brought with "political constitution" confrontation or running, to touch a non pure, the coexistence of diverse, moderate into political perspective so as to restore constitutional law. Constitutional world complete. I think this unexpectedly "encounter" helps to determine the limits of validity of each other, and even some conspiracy division to China constitutional thought of ascension and explanation of release in general. 

Tian: this wish you well. Through this dialogue, I gradually feel the political constitution of seemingly sword of Zhang Nuba "The relationship between the standard constitution / / the possibility of constitutional hermeneutics "there seems to be a reconciliation and cooperation. I personally think that the Political Constitution defines the obvious theoretical justification for a theory of legislation of constitutional interpretation is different from the narrow sense of constitutional hermeneutics. First of all, constitutional interpretation system of our country's legislative interpretation, judicial situation to judge perspective and narrow constitutional hermeneutics can preset provides limited knowledge on the support, attention to the political constitution connotation and the development of a legislative perspective, and the legislation through the normative constitution political principle generated on hermeneutics seems more reasonable knowledge supply. Of course, along with the change China constitutional system and decentralization arrangements of constitutional interpretation, constitutional interpretation technique preparation of narrow sense is a play. Secondly, the political constitution connotation is rich China constitution lacks seriously and effectively structured, the standard constitution "value" bias and narrow constitutional Hermeneutics Perspective "judicial" made it difficult to undertake such research tasks, political and constitutional law can make up for this deficiency. Once again, with the high teacher you study more relevant, namely "study on political constitution of country road" and "constitutional skills", is more suitable for complex theory needs China political unity and border control, in this way, the conservative Liberal wind can also be part of our theory. 

High: yes. The research in recent years in China, with Zhang Junmai as the center of reveals many obscured the connotation of constitutionalism of Republic of China, and use the explore the connotation of the valuable and significant great comprehensive for the reunification of the motherland the first Republic and the second republic. Open up my personal in the scale of modern large nations thought history and "the rise of great powers" political experience data compilation is to support the political constitution research needs. In fact, if we apply modern China formation as the first Republic and the second republic travel history tour, is a lot of resources of the modern history of constitutionalism is not only a kind of "history", and it is a kind of "reality", is a rich, diverse and winding life line, because of not effective comprehensive and may not unilaterally completed there. 

Tian: so in the face of such not "normative" historical embarrassment or opportunity, research on the constitution of "political power into the constitutional law" study, but temporarily left with "rights", in the face of the overall constitution, attach great importance to the principle, the process, through the standard card method of social science and the final the law, as well as work and comparative study of ideological heritage, carry out a series of work seems more reasonable. 

High: yes. But many people question the "political constitution", may be based on two misunderstandings or diaphragm, one is the discourse barrier and interpretative subject limitation, two is not a sound understanding of "the political" itself.

I in "political economics we need to have a" study of "political economics" (Political economy) developed the subject of evolution: in what I call the "early modern" political economics, comparative prosperity, from the political perspective of economic trend; since nineteenth Century, with the use of liberalism and the victory of the positivist approach, a focus on the micro economic behavior to explain the "economics" became the mainstream, although at the same time the emergence of a Marx style class on "political economics", the constitutional system of the western countries during this period increased consolidation; in twentieth Century the Great Depression of the 30's and gave Keynes the state intervention type "political economics" and focus on the economic operation system to explain the "institutional economics". Today China "market economy" can not effectively explain the China thirty years of economic success, and Chinese "standard constitution" or "constitutional interpretation" can not effectively explain the Chinese political experience, the subject reasons and limitations are similar. From the evolution of political and constitutional law, subject of history can roughly sketched, such as "early modern" Political Science (political science) behavior science significance is not today's political science, and focused on the political theory (political theory) and Political Science (political jurisprudence) for. You recently recommended to me Locklin "law basis" (Foundations of Public Law), the introduction reviews to the British public law history and prove my judgment. In nineteenth Century, the political constitution with legal positivism and become the constitution a purely normative. The twentieth Century Schmitt returned to a "political science" in a sense of tradition, of course, the British "political constitution" academic clue has not broken -- end Hong in the thesis 08 years made brief academic review -- this may be with its unique unwritten constitutional tradition. 

Tian: your this kind of academic and academic history and draw valuable. The subject of constitutional law now track mainstream method in increasingly into a narrow, can only explain part of the phenomenon Chinese constitution, cannot complete perspective and explain lively political connotation and rules Chinese constitution reason. In this sense,Since the 1980's "law of naive" judgment and years of relevant China method of law theory discussion is targeted and realistic obviously. Shortly before the Academy of Social Sciences, Law School of RUC support vibration Feng in the "law on Chinese dilemma" s report on behalf of the 70 young lawyer on the same academic consciousness to inherit and develop. But recently a multidisciplinary study of law gradually rise also confirmed the localization of the real. But, how do you define "political constitution" is the so-called "political"? A key concept in this but the path. 

High: understanding and observation of the problem sometimes is really "A bystander is always clear-minded. political constitution", can be included in the "legal naive" continuous academic reflection in a sense of context, although the "naive" specific direction and meaning may change from time to time. I called the political constitution of the concept of "politics" from me about the very politicalThe dichotomy of politics / daily. Schmitt tried to political and law in the state of exception (very political politics) for the absolute nature and constitutional politics, it seems to me that this is a misunderstanding, but also "decision" the constitution became the "political Existentialism" rather than "political constitutionalism" gate of life in. Schmitt the path based on the absolute / relative to separate out the Constitution Constitution and constitutional / constitutional law, the academic distinction on the end of some flood. A lot of people misunderstanding end Hong, thought that he was a disciple of Schmitt, is the very political daily, is absolutely break normal constitutional. I have deep communication with end Hong, he does not reject constitutional daily, but he always remind us, the legitimate exercise of constitutional rights is daily the constitutionalism hub and key implementation, thus formed the boundary of constitutional jurisprudence knowledge. The constitution, adhere to the text / specification and respected daily politics, instinctively fear, refuse or avoid processing very political question or too simple to very political transformation to the everyday political constitution, such as the "judicial review" as a universal key. My "political" view clearly not Schmitt, but he offered a very political constitution theory constitution more complete understanding of our history and time and the fundamental crisis constitution still has important value. I will constitutional state as organic body, its birth has specific rules, the rules may not be completely is universal, there are ethnic composition. The concept of "politics" covers a very political time and daily political time in the political constitution of context, is a time which is the history of the political view. I think Schmitt's unique contribution is highlighted by liberal constitution from "national" theme, point out as the political will to premise constitution legitimate and constitutional law shall not forget this whole will, nor to forswear the whole will guard duty. But he did not expect very politics is political life with a specific function of a fragment, but not in normal life, is the fundamental problem he ignored the conversion is politics to the daily political constitutional issues. 

Tian: Chen in the08 years after the earliest writing, concentrate on the research of "the right". It should be said, the treatment is still very political problems. You many times in the speech also repeatedly stated that the problem of life and death of political constitution constitutional treatment. From this point of view, play the political constitution science seems to be confined to the "very political". But I always have a doubt, that this dichotomy is actually a precise description of the function? The daily politics have no political constitution of demand and space? Such as the use of this dichotomy to illustrate the "revolution" can be used to identify the basic properties, but will "reform" period of political and social difficulties. What do you think? 

High: this dichotomy is Webb's ideal type, nature is not possible and the reality of the political society completely corresponding or anastomosis. Like Rowan Sten's "constitutional" three points method, the so-called "nominal constitution", "semantic constitution" and "normative constitution" is only a relative ideal types, if forced to identify or correspondence, but will draw many deviates from the reality of inaccurate conclusion, even in simple patterns of ideological confrontation. This point of view, to the right as the center of the very political period of political science of constitution must belong to the scope of political constitution, or even a unique range of relative to other constitutional branch, but there are also political constitution needs daily politics, especially have completed the transformation of the constitutional state. The so-called "transformation of constitutional law" should not only be very political and daily politics between two pole jumping, but should be viewed as a relatively independent subject in the academic to deal with, I think at this time specific political, politics has ended for the completion of the construction, but the normal constitution and have not yet become a fact of life, and is a "transition time". This "transformation of constitutional law" to fit for the construction of academic in the "political constitution" track and frame. 

Tian: the political constitution, in fact, the traditional common generally is a normal political politics under the constitutional framework. I specifically analyze the British political constitution scholar Bellamy's "political constitutionalism", that is the daily political version. American "people constitutionalism theory" four carriages -- I had just finished the picture what Nate (Mark Tushnet) Professor "division of the court" a Book of Translation -- they although there are individual radical ideas, such as Cramer's "people constitutionalism", rational procedure but generally follows the constitutional order, only to insist that will more constitutional judgment by the court does not have the legitimacy of constitution, democracy branch, the public and political process should be revived and consciously acting as the guardian of the constitution. In the Anglo American countries, the so-called political constitutionalism and judicial constitutionalism confrontation, according to Bellamy's view, is can coexist in harmony, two were advocated democratic legitimacy and rationality of ruling by law is the fundamental value of the constitution, or even a "democratic legitimacy" has the value position of higher priority in modern political theory. So, I think the "political constitution" demand is spread over all political and historical time: in the time to provide fundamental constitutional legitimacy of motivation, with "power of democracy and institutional support for order" in the period of transition, providing a democratic process and procedural framework can compete with the judicial system and confrontation, full and rational in daily constitutional government. 

High: the dichotomy in order to facilitate the political cognition and calibration "poles", but from the continuity of time, the political constitution learn that continuity of political connotation constitution to root causes of continuous. Complete "Depoliticization" is the rule of law and rationalism and optimism and vain attempts, could not but never appeared. Even as a "model of normative constitution" the America, its constitution and constitutional prospect is not only a "occupation" (Ackerman general), and the constitutional government value maintenance and evolution need might just be a political constitution nature of the "whole" (Ackerman oriented generalization). 

Tian: but, by the time the concept of "politics", may weaken the political constitution of the normative theory of character, which is the normative theory of constitutional law and guard things, of course, also according to the main attack. 

High: normative theory of constitutional law as constitutional human civilization achievements, its technical achievement, the positive effect on the protection of the rights and the limited historical time as "false lawmakers" reform progress, we absolutely can not be ignored. And this set of discourse and the technology is constitutional experts guard skills, is the real, the narrow definition of a "law" meaning, but this does not mean that the "two ears do not hear out of the window, and one book read-only Saints (code)". I always think, they are in the political constitution that a set of standard practice, constitutional law applied to create necessary political premise, between the academic method to eliminate to what Schmitt called "a nation of justice will" and "a closed legal system" "irreducible" opposition. 

Tian: I hope our difficulties can be understood by them. But if you don't understand, we seem to have independent reason to stick to. Some constitutional scholars advocated a "political", that is a method of interpretation of constitution, category and method and closed through independent practice to resist or obstruct "political reality", and experience a "method" in the intellectual and political reality "happy and cut off with righteousness" moral content. But the national legal positivism that Laban German is not very clever, Gierke specially made criticism, that empty, this method will view shrinks to the non political and non historical "law" the legal concept, easy to open the door for covert decision theory. Of course, China present the standard Constitution saw this lesson of the crisis or history, that even Kelsen Brabender purely positivist too rigid, so that the "rights" as the value standard the core value, this is the so-called theory of constitutional interpretation. Based on this path, system constitution has the political "safety net", any political entity value or ideology is only through the protective net inspection before entering the Constitution and get confirmation. But this "core values" setting may be arbitrary, even is intent on the positive constitutional structure and the Framers' misunderstanding. This misunderstanding will undoubtedly have a negative impact on the constitutional practice of effective. Ally as the norm of constitutional law's special constitutional interpretation also has reservations about the correction. For example, the Li Zhongxia papers explicitly criticized the "super empirical specification of constitutional law" set up the core specification. The so-called "super empirical" is "hypertext", which highlights the normative two differences. There is a vivid example, such as Lin laifan professor will dignity clause China constitution explanation for similar German basic law that "foundation clause", but the narrow sense of constitutional interpretation is more faithful to the text of the attitude of the calibration for "independent clause". Of course, the differences between the two is far less than the consensus, and the political constitution positive defensive posture. 

High: with us for political constitution, the above problems were discussed in detail, I think for the academic construction of the political constitution is a useful advance. You learn more exchanges in the youth constitution, also have in place attachment and lecture experience, can you talk about young people to the political constitution of reception problems. 

Tian: the rise of political constitution in the present Chinese is more than three years. Here is a historical time extrusion problem. Since the reform and opening up the constitution gradually get rid of the cultural revolution era class on constitutional jurisprudence paradigm, began to construct its own constitutional dogmatics, especially constitutional interpretation has a greater development. The constitution of this specification, and not just on getting specific constitutional achievements, a seemingly should not at the moment of "political constitution of" re entering the Constitution in the academic system, somewhat "spoiler" too. Especially in the constitution, the whole in order to08 years of "Qi Yuling case replied" was abolished and with deep hatred and resentment, Chen's article "anti constitutional judicature" political constitution of the emergence of creating a "one disaster after another" effect -- to borrow Teacher Lin once before and after 1996 "benign unconstitutionality" the word is "ruffled the China the Constitution of the spring". Therefore, the general constitutional scholars will instinctively "political constitution" and has micro class theory links the law, made many emotional criticism, Lenovo and the error structure. But the political constitution of academic value eventually won the jurists recognized, first is willing to dialogue itself is a kind of recognition, followed by Chen teachers that the "governance and sovereignty" was awarded the Qian Duansheng law Achievements Award in 2010, this is not easy. A lot has been able to basically clear explanation in front of our political constitutional norms and the class of law differences, not here.

When it comes to young students' acceptance, which may be related to China legal education. The undergraduate education of law, is the main civil law and criminal law, provide these relatively self-sufficient department law is the law education strictly, the training goal is to cultivate "judge" and "lawyer". Some students will choose the constitutional law specialty based on various reasons, but the domestic constitutional textbooks or a school "political textbooks" boring, or follow the normative theory of writing or the judicial precedent of foreign constitutional textbook writing the occupation doctrine, training goal unconsciously is set to the "constitutional law" rather than "constitutional thinker". So the young students of political constitution accepted naturally have difficulties. But according to my own limited communication and understanding, with some young people graduate legal education experience of having certain public law theory reading experience and self reflection ability and the value and significance of the political constitution know more in place. And some school constitution tutor started to suggest the students choose the political constitution specific topic learning as thesis.

The political constitution has just started, at present also is the basis of theory research, study on institutional paradigm is still lacking, embodied in law education is basically No. But this is a gradual process of development. With the further enhancement of the political constitution of academic influence and competitiveness, and increase public law and political theory component in education, including public reading this form of knowledge dissemination and the development of the scale, the political constitution can still has certain prospect. 

High: just now you mentioned the research paradigm of political system of constitutional jurisprudence is still lacking, I agree with you on this judgment. My major is not constitutional law, so the system of concrete is also difficult to start. However, I also try to enter this level. For example, I recently on the "emperor" of his letters, an attempt to research system is to carry out political constitutional law, but I use the method of thought history, the standard analysis and the historical analysis. In my opinion, there are many institutional issue worth as the object of study of political constitution, for example, I have just completed a first Republic Constitutional Basis of emperors of the Qing Dynasty imperial edict "shine" research, in addition to consider is the first Republic in the old people's Political Consultative Conference, resolution problems, "the common programme of the second republic" problem, even including the revolution according to the system during the problem, etc.. End Hong once from the "third of the people's Republic of constitutional rights" perspective on the "common program" is studied. I also think the "common program" is full of the spirit of the constitution of the republic constitution document at the time, but failed to produce a standard modern republic based on it. 

Tian: the political constitution there is indeed in the consolidation problem consciousness, search and integration theory resources as well as in the "dialogue" and even "challenges" in the process of preliminary academic construction, but its academic purport is institutional, to find the true gauge Chinese constitutional and political principles of the Constitution by China regulate strictly into. We present for the academic understanding of political constitution is not particularly determined and mature, also need to introduce some new theoretical resources. In this regard, the "constitutional and translations of" teacher Chen and Zhai Xiaobo presided over the already in theory monographs and translation selection of some the contemporary political constitution matters. The political constitution not only China will encounter problems. In the west, it may be a supplementary question a normative constitutional system, but for constitutional transition of developing countries are likely to constitute a cannot directly bypass the "political constitution" stage. Rome is not built in a day, the constitutional Chinese too. 

High: Yes, some problems are only developing countries likely to be shared, and the developed countries have successfully solved. For example, developing countries must in constitutional law seriously deal with the following concepts: "sovereignty", "people", "citizen", "constitution", "party", "representative" of political concept of the constitution, combined with their own political experience selection, construction and adjustment and independent decision, this is clearly the political constitution task. Simple transplant western constitutionalism mode ignores the experience and wisdom of its people, which is somewhat historical blind. 

Tian: you said these political concept of constitution, China face even more difficult. Such as the representation problem, Chen thinks the fundamental difficulty China sovereignty structure is "dual representative system" (truth orientation party representative system and program orientation of democratic representation), which is the fundamental problem solution depends on the absolute not scholars themselves "decision" or "preference", also is not simple social movements can be eliminated, the rational framework of the constitution must resort to political constitution. The ultimate concern of political constitution is the first to solve the fundamental political issues China itself. We need to provide rational, selective and competitive intelligence for the. Front this prospect also depends on you and Mrs. Chen to lead, diligent and us these young people "amazing" and input, because it is a choice of only called "in front of" Weiming Road, have to do alone psychological preparation. However, the "right way" is "not alone". 

High: today we talk a lot, this should be counted as "dialogue", I have also been a lot of inspiration or excited. Political constitution of "why" and "what is", is obviously difficult to through two or three hours of this dialogue to be complete and comprehensive clarification. But some problems is still at the stage of trial and exploration. You young people to do more, energetic, sufficient time, is irreplaceable advantages. I personally for the political constitution of intellectual interest and value identity will not change. I think these issues themselves, or Chinese there are people in the discussion of these issues, is the embodiment of a rational spirit of our nation. 

Tian: apply Liu Suli's dialogue with Chen's conclusion, what I do today is mainly a "discovery" work of thinking. On the basis of many of my explanation or comment mostly based reading and Thinking on you and not the presence of Chen are not only of theoretical works, limited ability to own political constitution is difficult to have a unique understanding, let alone a systematic thinking. However, in recent years also really is a diligent and hard. If not initially intellectual interests and the fundamental pure constitutional based on ideal, may not be so hard, but not covered a large number of political thought of the original works and absorb nutrition from law school, because students do not need to expand such knowledge. However, fun and meaning among them, a kind of theory resources and theoretical perspective, may see mountain is not the mountain, but the overall feeling is on the way, not a definite end. But the heart is not very lonely, I still believe that knowledge itself strength and happiness. Thank you very much for inviting me to start such an asymmetry in the generation and knowledge and "dialogues" with you, in this process, I try to stimulate their thinking ability, and even some areas have to limit the feeling. 

High: hope this interview for the position and method related issues, political constitution can play a better explanation, but it is just an interpretation, is not "perfect", not to expect to "persuade", but at least I hope to gain respect and treat. Finally, let the interview become more than three years since a brief summary of Political Constitution itself is also a new starting point. 

May 5, 2011 afternoon in Beijing Xishan high Quanxi Professor home 

"Carrier" Journal of Soochow University (PHILOSOPHY AND SOCIAL SCIENCES EDITION)2011