The original "Journal of Capital Normal University" in 2013 second

AbstractAbstract]As the Constitution Constitution Culture Department, is a concrete manifestation of culture in the constitution as a basic national policy, including the culture and culture as a fundamental right, the former puts forward culture national goal, and through constitutional entrusted to give lawmakers will their specific obligations, including academic freedom and artistic freedom, and has double attributes liberal rights and social rights. Culture in the framework of the Constitution Constitution requires it probe into culture, in this process, the cultural constitution has become one of the constitutional culture.

Key word.The basic national policy; national targets; cultural rights; constitutional patriotism

 

In accordance with the "Ci Hai" explanation, the generalized culture refers to the human in the social practice in the process of material, spiritual production ability and creation of the material, the spiritual wealth. The narrow sense of culture is the spiritual production ability and spirit products.^[1]1858The constitutional culture refers to the narrow sense of culture. The German constitution culture mainly refers to education, research, art and religion.^[2]16But, according to our habits will teach (Education), Science (Science and Technology), paper (Culture), health (Health) parallel tradition,[1]Our constitution culture connotation and narrower, with Article twenty-second of the constitution, mainly confined to Literature and art, the press, publishing, radio and television library Museum Cultural Center, mass cultural activities and places of historic interest and scenic beauty, valuable cultural relics and other important historical and cultural heritage.

China's constitution stipulates about culture are mainly seen in the constitution article 22-24, forty-seventh, from the point of view, the above terms are mainly located in the "master" and "the fundamental rights and duties of citizens" in the two chapter, this also indicates that the nature of the two provisions in the constitution of our country's culture: as the basic national policy of culture and culture as a fundamental right.

One, as the basic national policy of culture

(a) policy as the possibility of law

The earliest on law and policy making is a discussion of the Dworkin. He thinks, the legal norm system includes not only the rules, principles, including policy. The so-called policy, is to set a goal to achieve, such as economic, political, and social affairs development (although some target is negative, because they prohibit the present situation to the negative). The so-called principle, is a shall comply with the standards, adhere to it is not because it has a set of economic, political, and social affairs should reach the goal, but because it is a fair or justice or some other moral requirements. So, reduce the automobile accident goals is a policy, and no one can profit from their own fault is a principle.^[3]22Then, the principles and policies that have what different? Dworkin think, policy aims to improve or protect the community collective goal. As for aviation enterprises subsidies, the subsidies to the protection of national defense, this is a policy. And the principle to respect or obtain the rights of individuals or groups. For example, anti discrimination laws, few people have the right to receive equal treatment, this is a principle.^[3]82-83

After Dworkin, the Spanish scholar Atiza (Atienza) and Maneo (Manero) also distinguish strictly the principles (Principles in the strict sense) and policy. The strict sense of the principle that the highest value of the legal order principle, policy belongs to the generalized principles, but they are still different, mainly reflected in: (1) in the structure, the policy is characterized by the applicable conditions and patterns of behavior are open, such as "the Spanish Constitution" article fifty-first,[II]The article does not required to act in the state organs under what conditions. At the same time, this article also did not command or prohibit any act, it only provides an objective must be reached. What behavior is appropriate for the realization of this goal, this article does not speak.^[4]11-12(2) as the reason for behavior. Policy has produced a utilitarian reason for action. It is a means to achieve the purpose of any reason to support, but the reason is not the only, may have other reasons to have a greater presence. From the strict significance principle of reason is not the only, but it is the ultimate subject of right reason. Therefore, the utilitarian reasons from the policy should be evaluated based on the principle of right reason. The correct reason. If a person has X, so not only can X higher weight reasons based on justification, but will not be utilitarian grounds (it shows the X is not appropriate to achieve a certain purpose) justification. On the other hand, the specific action is compulsory, the strict sense of the principle to allow their audience (addressees) ignore behavior results. This means that once a principle is considered dominant in specific cases, the audience shall do it, without attention to the causal relationship of the act. On the contrary, the policy is appropriate for its audience to think his behavior according to the pursuit of the goal and the means to use will cause negative effect to the objective.^[4]14-15

(two) clause of the constitution, the basic national policy

Standardized by the rule, principle, policy is composed of three parts, which in the constitution which reflects the most obvious. For example, the constitution of our country the first chapter general programme part there are many policy clause. According to Chinese scholars said, that these policies and regulations of the constitution have hurt, especially caused by frequent constitutional amendment, so many scholars have suggested in the constitutional code to minimize the provisions of clauses. Due to policy terms applicable conditions and legal effect is not deterministic, easy to form the defect. But this does not constitute the complete abolition of the policy provisions of the constitution of reason. Although the policy terms easily with the social situation changes, but it can be said is the policy of the "shortcomings", also form the basis for policy establishment. The rapid development of modern society, change rapidly, a lot of affairs is very difficult to determine the rules, which can only be used to express a goal, not only guarantee the guidance direction, but also to the future changes to reserve space.

In fact, the policy is not unique to China's constitution, the constitution form originated from the Germany Weimar constitution, basic rights and duties of the constitution of Weimar chapter second people in addition to the first section of individual rights and the third section of religion and religious groups is designed to make provisions on fundamental rights provisions of section second, the rest of the common life, the fourth section education and school, the fifth section economic life into many policy terms. In addition, China's Taiwan region the thirteenth chapter devoted to policy terms stipulated (total of 33), known as the basic national policy, is a policy constitution on state instructions, and the state has a duty to realize this binding instructions.^[5]1468Taiwan scholar Chen Xinmin thinks that the basic national policy, terms are third kinds of structure of fundamental rights and national institutions in terms of different constitution of constitution "".^[6]431

1Controversy, the basic national policy

Since the basic national policy of the date of birth, about the necessity of its existence has positive and negative two versions: negative thought, basic national policy was a political Utopia, virtually unable to reach, it can appear in the constitutional code, is a political compromise trick delay.^[5]1474Negation and list of basic national policy "on several counts:" (1) which decide in advance political, seriously affecting the congressional budget authority; (2) increase the difficulty of interpretation of the constitution; (3) the constitution of instability, because of the inability to achieve multiple goals; (4) can only meet short-term long term needs, easy to become a time bomb; (5) mutual contradiction conflicts between the policy and the basic national policy, such as environmental protection and national employment often cannot coexist; (6) the legislative power by the clamp, endanger the constitution mechanism of balance of power.^[5]1479Definitely say that, not only has the basic national policy provisions to determine the role of norms, but also has the function of control state behavior.^[5]1474The basic national policy of hand stated national future tasks, on the other hand, points out that state to this point, and establishing a legal system will contribute to further, so as to control the country's future behavior. Of course, the basic national policy has positive effect but also can not "flooding", so how to make the basic national policy of necessary into constitution, German scholars put forward the principle of subsidiarity standard.^[5]1479The principle of subsidiarity refers only to the lawmakers are unable or unwilling to implement a national goal, the framers would basic national policy provisions in the constitution. This can not or no intention may be unable to form consensus Congress matters or National People's not consensus. Such as the equal treatment of the fifth paragraph of the German Basic Law sixth legitimate children and children born out of wedlock provisions, because legislators cannot solve the problem, so that the framers stated it as a basic national policy.

2,Effect of basic national policy terms

1The policy terms and provisions of national goals)

The validity of the basic national policy, the German academic point of view after a relatively large change. The constitution of Weimar era, tend to be regarded as policy clause. The so-called policy refers to the terms of the constitution is just to give the state power (especially legislators) a subsequent behavior policy indicator. These guidelines indicate the political and moral significance than the legal significance.^[7]696However, because the policy specification clause does not have binding force, even contrary to the legislative cannot play the correction action. But to the basic law era, most scholars tend to be recognized as a national goal. The provisions of this national objectives have effect of law in nature, but it is not equal to the basic rights of citizens in general, subjective law, claim that, can take the initiative to require the state to certain acts or omissions, but a kind of it as the law, the same with other stipulation in the Constitution, has the property of the objective law, constitutional norms can be bound to binding objects, all the organs, namely national power, must act in accordance with the content of instruction.^[8]Characteristics of national targets for: (1) the nature of national targets is the constitution, binding, binding on all the state public power; (2) the national goal of content is the public interest, that all countries should follow the direction of the act; (3) the provisions of national legislation mainly depends on the target the lawmakers on, enjoy the discretion height; (4) national objectives specified effect does not give people's subjective public rights.^[9]50-51

2National targets and Constitutional Commission)

Scholar Chen Xinmin also had effect of basic national policy as a Constitutional Commission, this concept originated in Germany and scholars to discuss whether the people's basic rights. The constitution of Weimar of second basic rights and obligations of binding directly, famous scholars at that time an order ci (Ansch ü TZ) think, not all of the provisions of the constitution are binding directly, he put the constitution divided according to different binding into two categories: (1) the strict sense of the regulations, these regulations have the instant, the applicable effect. (2) the legal principles of pure. No direct applicability, must wait for the legislative law makers, which may have. So, this is tantamount to the Constitution for lawmakers to future legislation an indication, the so-called policy clause.^[10]141The terms of the policy theory of fundamental rights in constitution provisions into a non binding on the legislature suggestions, only has declared that the nature, people can not be sued legislation as a request. This view in the basic law was established, by the comprehensive review. Firstly, the basic law of the first paragraph third, the following basic rights as directly applicable law, legislative, administrative and judicial restraint. Secondly, the basic law article twentieth of third pre sentence clear: legislative power by constitutional order constraint. Thus, the constitution of Weimar era lawmakers without any restraint -- as a prerequisite for the establishment of the policy terms -- was completely give up. In order to policy terms corresponding to the concept, constitution entrusted emerge as the times require. The so-called constitutional entrust, refers to the Constitution in its provisions, only the provisions of principle, and entrust other state organs (especially legislators) to implement the specific details, sexual behavior.^[10]148The Commission is different from the policy terms, is not a purely by lawmakers a political or ethical appeal, but a law of force, obligations.^[10]157

Three.Culture as the basic national policy

From our constitution article 22-24, most of the "how" of the sentence, it may be considered the basic national policy of culture bound object clause including all state power: (1) for the legislators, the characteristics of the basic national policy of usually is of generality, ambiguity, so the legislators obligations, the a clause to be specific and realistic, the legislator should as soon as possible to formulate relevant law enforcement reached constitution instructions to the basic national policy, complete with law is binding nature of the constitutional commission.^[5]1476(2) to the executive power and judicial power, they are in the application of the law, the exercise of authority, must make constitutional judgment, in order to implement the constitutional protection of the interests of the law in the case of the basic national policy.^[5]1475-1477

Since the culture as a basic national policy, its normative force one is giving lawmakers obligations. If lawmakers violation of such obligations, will constitute the legislative inaction.^[11]From China's current legislation situation, is not optimistic. The cultural activities of the legislation, the legal level only "cultural relics protection law", "non material cultural heritage protection law" two, other such as news broadcasting, publishing, library and Museum cultural centers, places of historic interest and scenic beauty, only administrative regulations, departmental rules, the intellectual, spiritual civilization of the legislation is vif. So, clearly put forward in 2011, "the CPC Central Committee on deepening the reform of the cultural system promote socialist cultural development and prosperity in certain major issue decision", speeding up the cultural legislation, establish and perfect the public cultural services, cultural industry, cultural market management, laws and regulations, improve the legal level of cultural construction. On the other hand is endowed with administrative organs and judicial organs to protect the cultural spirit of the Constitution in law enforcement, the applicable law in the process of. Especially in the face of conflict between economic development and cultural protection, can not blindly sacrifice culture interest and care of economic interests.

Two, as the basic rights of culture

    From the forty-seventh first half sentence, as a fundamental right, culture includes two kinds of Rights: the freedom to engage in scientific research (academic freedom) and free citizens engaged in literary and artistic creation and other cultural activities (art free).

(a) Academic freedom

According to the German Federal Constitutional Court's opinion, the academic is a kind of informal forms of content, but there are plans to explore the truth of the rigorous activities.[3]But scholars think that the explanation is not accurate enough, if all plans, to discover the truth for academic activities covered, that every thief case officers are not the "experts"? Therefore, it is necessary to make a further explanation: the plan is a systems thinking approach, rigorous refers to some academic knowledge and enrich the knowledge, to explore the truth refers to the constant criticism has established the theory of knowledge.^[12]114Therefore, the academic is in a knowledge base, in a systematic way of critical thinking seriously in pursuit of truth.^[13]706Therefore, the non rational deliberately falsified, exaggerated or metaphysics is not academic, in addition, see themselves as absolute being, allowing the other opinion critical astrology, political salvation that does not belong to the academic scope.^[12]113At the same time, the difference between academic and politics is, academic research achievements is transformed into activities, once a political activities, namely, non academic research.^[14]156

Traditionally, academic freedom, including freedom of freedom and lectures.[4]The research is a method to clear, verifiable knowledge acquisition activities, lectures is to obtain the method of imparting knowledge activities. The scope of protection of freedom and self responsible for all research activities, such as research questions and method selection, data collection and preparation, the purpose of the study, literature study, research results were achieved with the use of the evaluation and dissemination of all.^[14]157As to freedom, freedom of research is to defend the country in the process of exploring knowledge and intervention, self rule so as to maintain the academic.^[14]277-278Freedom of teaching is the extension of freedom, that is, the obtained through the study of knowledge to academic cognition based ways to teach activities. The scope of protection of free lectures is not limited to all teaching activities within the University, regardless of the activity in the inside and outside the University, whether is the way in which the name, such as lectures, seminars, experiment, examination etc.. Expression of teaching in the teaching process theory and method, selection, and auxiliary materials and activities belong to the category of free lectures. As the free right to defense national freedom of teaching on the teaching content, form, method, time, location of the autonomy of the intervention, in addition to prevent the students entered the classroom, also think the violation to the teacher's lecture free.[⑤]

Two. Artistic freedom

    Concept of art, there are two kinds of views of formal concept and essence of the concept to the German constitution. The former thinks, cannot be defined as the substantial content of art in the law, can only be defined in the form and types, such as technology, poetry, painting, dance form or type, define any legal beyond this form are not and will not be allowed. The definition of formal concept is not in favor of the constitution to art direct substance, is to prevent excessive intervention in national art field, resulting in a free state of the art^[2]83The latter thinks, involved in the artistic freedom in court judgment, can not avoid the division of art and non art. The constitution of art to standardize evaluation is inevitable. In the first (Mephisto) decision, the federal constitutional court is the concept of art made the following definition: the essence of art activities is to free creation form, through a specific symbol of the language as a medium, the artist's impression, experience, experience in direct views. All the art activity is the process of conscious and unconscious staggered, should not be to distinguish between rational. Art is the common intuition, imagination and artistic understanding, is the direct expression of the artist's personality.[6]Thus, the federal constitution court does not give art a closed mode, but points out fairly open constitution factors. In the 1987 ruling, the federal constitutional court is pointed out, making the distinction between art and non art only allows the constitution. As a standard of inspection, which is to make the distinction between high and low, good and bad art, will lead to a not allowed content inspection.[7]The scope of protection of artistic freedom includes the fields of security and effectiveness of creation of the guarantee, the former refers to the creators have free choice of theme and form of creation, the latter refers to the creators of free will spread their creative achievements to the outside world, such as the exhibition works, or works in print or recording the publication.^[15]

(three) the double attribute of cultural rights

From our constitution culture right position, it should belong to a kind of social right.[8]Because the free right in our constitution mainly concentrated in article 35-40,[9]The forty-first is the procedural right,[⑩]Article forty-first the next labour rights, the right to rest (forty-second) (forty-third), retirement security right (forty-fourth), right to material assistance (forty-fifth), the right to education (article forty-sixth) belongs to the social right, equality right back and forty-seventh women (forty-eighth), marriage and family the system (forty-ninth), protect the rights and interests of overseas Chinese returned overseas Chinese's (fiftieth) is generally considered to belong to the specific human rights, the fifty-first is the basic right limit, after the article 52-56 is the fundamental duties of citizens. So, from the continuity of the constitutional structure point of view, cultural rights should belong to social rights. But, undeniable is, academic freedom and artistic freedom of article forty-seventh of the constitution before half provisions with obvious attribute of liberty, as the social rights of cultural rights is mainly reflected in the forty-seventh half sentence "countries engaged in education, science, technology, literature, art and other cultural citizen the benefit of the people of creative work, give encouragement and help". This is not a special constitutional culture power in our country, which also has the dual attributes of freedom right and social right.

So, how to culture the effect of right as a social right? Traditionally, free rights of citizens by illegal infringement country, citizens can through the judicial litigation to request countries to fulfill the obligation of omission, to eliminate this kind of infringement, which is a kind of subjective rights, namely the right of claim of subjective. The nature of social rights is the subjective rights, citizens can through legal channels to request the state actively fulfill their obligations? This controversial theory in the constitution. The author thinks that the nature of social rights, still have a subjective right, the problem is how to implement this kind of subjective content of right of claim? Because of the social right is mainly the requested state were positive as, so the difficulty is much greater freedom.[11]But this is not like the social right some scholars said, will not have a subjective request or judicial relief. In fact, according to the German constitution theory, social rights still has the right to request payment of two kinds of functions: (1) the right to request the original payment (Originare Leistungsanspruche), refers to the state property to pay or taking care of the right of claim rights derived directly from the basic.^[16]Of course, the original payment claim only recognized at a minimum or basic extent. For example, countries should provide at least the cultural facilities for the people. (2) share rights (Teilhaberechte), is refers to the country has been a leading behavior, but refused to a particular benefit others, then others can require the same payment. For example, the state provided economic subsidies to schools, but refused to a particular applicant, due to a state of advance payment, therefore under the same conditions, the rejected applicant can request the same payment according to the principle of equality.^[17]Therefore, the share right is indirectly derived from the principle of equality, the basic right is not directly from the constitution, and therefore it is also called the right to claim the benefits derived.

The construction of three, culture constitution

(a) culture country and culture constitution

The concept of cultural country first appeared in 1946 in Germany "Bavarian constitution" article third, the provisions, Bavaria is a country under the rule of law, culture and society in China, which is dedicated to the public welfare. The State shall protect the life of the natural foundation and the cultural tradition. The constitution of the concept of culture, one kind is defined as the constitutional law as a cultural science, namely from the angle of culture, the law and the state; another mode is from the legal point of view, to explore the relationship between the state and culture.^[2]151-152Historically, affected American revolution and the French Revolution against tyranny, culture from the national ideology gradually formed. The culture into private affairs, concept, cultural freedom in this regard, the state should not interfere in cultural affairs, cultural affairs of state regulations with force, that is not in conformity with the cultural conception of freedom. Therefore, countries in cultural affairs, the only thing you can do is to control each kind of cultural activities, so that countries, established by the National Opera House, museums, libraries, or by the state to provide art subsidies, quite difficult to imagine. However, at the beginning of twentieth Century, the cultural ideas of freedom began to be questioned: first, because the culture into private affairs, cultural heritage can be a private sale and free disposal, thus, resulting in the loss and destruction of cultural heritage, the state in order to save the cultural heritage, only through the national public power to protect. Secondly, in order to culture from private or social power abuse, and carry out the cultural free maintenance, the country is also necessary intervention of cultural affairs, this can be through the national assistance, for cultural freedom to ensure, which appeared in the social nature of the right to cultural rights. Once again, after twentieth Century free law gradually developed into a social rule of law state, the rule of law in social thought, the national in addition to maintain social order and task, also have to take care of the lives of people here to take care of obligations, the state of people's life, in addition to the material life, also includes the spiritual life. While the state for the people's spiritual life care, this is the basic connotation of culture of china.

The concept about the culture of China, the German scholar Hooper (Huber) have a brilliant exposition: (1) culture should be independent of the state. (2) countries should provide cultural services. Culture should be independent of the state, but in order to make the cultural autonomy and freedom to the development, not the country simply cannot intervene in cultural affairs, because culture may also suffer from the private and social forces of the infringement, and need the protection of the state. (3) the national culture power. Based on the inherent law of the culture and the scope, the state still has its cultural policy, and when the national culture, which is to determine what non culture, and decide whether to give subsidies and incentives, the state has actually been in the formation and induction of culture. (4) culture has shaped the power of the state. The formation of culture in the country, culture in shaping national. Therefore, constitutionalism, rule of law, social state is a product of culture under the influence of the thought, and the thought of culture is in the social community self shaping. (5) the state is the product of culture. Culture to culture in the country, this should be positioning themselves to national cultural product, its political existence is in the form of plastic state characterized by community culture.^[19]603-604

(two) the cultural rights and cultural constitution

The protection of the cultural rights of citizens is the ultimate goal of the cultural constitution, however, the cultural rights of citizens is likely to conflict with the national culture power, so, how to solve the conflict will become the key to the construction of the cultural constitution. Author Yin Jianting Zhuzhou City Board of education for explanation.^[20]

Zhuzhou City second middle school Chinese teachers Yin Jianting for advocating "in school education the paper read to yourself" and in the personal collection of literary works "gun" "special world advocate egoism, no harm" has been Zhuzhou Municipal Education Bureau as a "wrong views and comments", thus the school agreed to dismiss and the provisions of all schools in Zhuzhou city shall employ the teachers. In this case, Yin Jianting although only a middle school teacher, but carrying the viewpoint of the paper and personal writings as its research achievement, at the same time, he is in the process of teaching students have to sell "gun" world book, also taught in the book point of view. So, in the scope of protection of freedom and the freedom of teaching and academic freedom in. (1) for the study of freedom. First must comply with the academic research rules, this is called the internal restriction of freedom. Whether it is carried out according to the method approved by the appropriate license or new method established; whether logically to examine research findings; whether the strict, sincerely show others the results. In this regard, the German Federal Administrative Court pointed out, the individual mistakes, one-sided or vulnerabilities are not enough to question its academic nature, only in its content and form cannot say is the truth to serious when, can deny the academic a works.[12]Therefore, the Zhuzhou City Bureau of education not only because of Yin Jianting's conclusion "error" will deny the "academic", also should draw the conclusion that the existence of academic misconduct. Secondly, the Federal Constitutional Court of Germany in the referee pointed out, if the guarantee of freedom guaranteed by the Constitution and other law safeguard conflict, must depend on the value order basic standard, considering one of this value system, to solve through the interpretation of the constitution. In such tensions and conflicts, but also protected by the constitution of the value of freedom, do not necessarily have priority.[13]This is called the outer limits of freedom. Is generally believed that can be used to restrict the freedom of law including: personality right, environmental protection, health and protection of life, human dignity.^[21]So, from the study of Yin Jianting, and no infringement of the right of personality, human dignity, body and life protection and environment pollution situation. (2) for the freedom of teaching, the German "basic law" fifth article third second provisions, freedom of teaching may not be exempted from loyalty to the constitution, is an academic research worker's obligation, he must reject the obtained by academic research, but will "threat" to the life of the academic results.^[22]316-317It is learned the lessons of Nazi era, on the other hand is the inevitable requirement of modern state "constitutional supremacy". Our "Teachers Law" eighth article third also has similar provisions: teachers shall perform the following obligations:...... The basic principles of the constitution of the students' education and patriotism, national unity education, legal education and moral education, culture, science and technology, organization, leading them to the development of beneficial social activities. Thus, China's restrictions on the freedom of teaching includes not the violation of the principles of education. According to Article twenty-fourth of the constitution, the civil education in China is "patriotism, collectivism, internationalism, communism, dialectical materialism, historical materialism", rather than "capitalist, feudal and other decadent ideas". The court found that "the Education Bureau has the right to education of Yin Jianting does not meet the national mainstream words and deeds of the norms and constraints", but for the teaching behavior that doesn't accord with the educational principles of the constitution of whether to dismiss or even all the provisions of the school shall employ, said the court, "Yin Jianting is already obtain the certificate of qualification of teacher teacher before, the teacher qualification certificate has not been revoked, shall enjoy the right to employment. The employment of teachers of the school autonomy, the defendant Zhuzhou City Bureau of education by means of administrative orders, restrictions on the right of the plaintiff by Yin Jianting, is beyond the administrative functions, the specific administrative act as illegal". The Bureau of education stipulated that any school shall employ Yin Jianting in violation of the "legal reservation" and "the principle of proportion",[14]The court ultimately undoes the revocation of Zhuzhou City Bureau of education related "Zhuzhou city (including five counties) handling all schools not hire Yin Jianting when teachers".

Four, from the cultural constitution to the constitutional culture -- Taking the constitution article24The patriotism as an example

In our culture constitution, article twenty-fourth of the constitution is the key. This article not only puts forward should have our citizens "Virtue" -- love motherland, love people, love of labor, love science, love socialism, but also the provisions of the state ideology is "patriotism, collectivism, internationalism, communism, dialectical materialism, historical materialism",[15]Instead of "capitalist, feudal and other decadent ideas". And in this among them, patriotism is the priority among priorities, which not only see from which appear in the same clause of the two times, and the "decision" of the CPC Central Committee on deepening the reform of the cultural system promote socialist cultural development and prosperity of some major issues also pointed out, carry forward the patriotism as the core the national spirit. But, what is patriotism? How to realize the patriotism in the framework of the Constitution?

(a) what is patriotism?

Patriotism (patriotism) refers to the love and loyalty to the historically formed and behavior of their motherland thoughts, feelings.^[1]1810But, why to be patriotic? This relates to a national identity issues. About national identity, ethnic identity, cultural identity, institutional identity three theories. National identity refers to a person because of objective blood joint or subjective ethnic identity and on specific groups of oneness. However, the basic national identity is sometimes very weak, because a single nation state is almost non-existent, but more is a multi nationality country or the same nationality in different countries, so some scholars called for national "imagined community".^[23]24Cultural identity refers to a group of people due to share common historical traditions, customs and a myriad of collective memory, thus forming the community sense of belonging. Generally have a strong cultural identity in the long history of the country. However, the collective historical memory is important, but the complete memory may cause the collapse of identity. As Renan (Renan) said, forgetting historical error is the creation of a national key, which is why the history of academic progress often threaten national awareness of integrity.^[24]17System identification is a person based on the specific political, economic, social system has certainly caused political identity. This in a multi nationality country especially important. For example America, America citizens generally due to ethnic background is complex, so it is not easy to form the common cultural tradition, therefore American government must be based on the good political and economic system and reasonable social life to sustain civic patriotism.

Our government from the paper, it advocated patriotism is mainly based on ethnic identity and cultural identity (Chinese) (a Chinese).[16]But sometimes also reflect a system identification, such as the tenth paragraph of the preamble discusses the composition of the patriotic united front, pointing out that it includes all socialist laborers, the builders of the socialist cause, patriots supporting socialism in China and support the reunification of the motherland's love, there is an obvious "differential structure". That is to say, support the reunification of the motherland is a Patriot "minimum threshold", but the support of socialism is a higher standard of Patriot (and even become the socialist workers, builders). Socialism is basic system of our country exists. But between these different identities contradictory place, but we can't be. For example, ethnic identity and "the people's Republic of China is a multi-ethnic country" reality, even different nationalities have the conflict between different cultures. Conflict between system identification and one of the. As Habermas said, in the national self understanding, always there is a conflict: one is the highlight of the equal legal community universalism, another side is a special cultural community formed the common origin, the fate of the.^[23]131Habermas put forward to solve this situation countermeasure is constitutional identification, the basic human rights, democracy and constitutionalism as the national focus of condensed centripetal force, and such national identity does not need specific national history culture, but all enough to cultivate civic virtue and political culture, such as rational, compromise, tolerance, communication etc..^[25]131Miller (Jan-Werner M ü ller) will be called the constitution culture (constitutional culture). The constitution culture does not require citizens to agree with or accept the constitution of a specific time and space, but loyal to the constitution, the basic elements of this idea stated in the constitution, namely the universalism of norms and values.^[26]52-58

(two) constitutional patriotism

Constitutional patriotism (constitutional patriotism) concept comes from the German political scholar Steinberg (Von Dolf Sternberger) in 1979 published article of the same title, which was originally used to describe the process of Germany's post-war reconstruction, Steinberg think, although the German Basic Law enacted, the Germans grudgingly accept this is imposed constitution, but since then, clear consciousness for this basic law of Shi Enhui gradually over the national feelings. After 30 years of constitutional practice (German Basic Law promulgated in 1949 -- the author note), a unique new sense of patriotism, has been imperceptibly nurtured, the patriotism is established on the basis of the constitution itself. National feelings still hurt, because where we live is not complete in germany. Yet we live in a complete constitution, living in a complete constitutional state. And this is even the motherland a way (performance).^[27]493Subsequently, the constitutional patriotism to carry forward the famous German philosopher Habermas, Habermas from his procedural standpoint thinks, complex modern society cannot rely on substantial consensus of value only depends on a kind of law is when the formulation procedure and the proper exercise of power process of consensus can be maintained.^[28]107Therefore, Habermas's constitutional patriotism is a rational recognition, it is formed in the public domain, in the public domain, mutual recognition of citizens are free and equal, the learning process is committed to democracy, everyone obeys the general principles. This is different with the traditional emphasis on political body defend patriotism. This identity is usually produced in traditional ethnic problems, and the continuity of history has a fractured country, such as the Federal Republic of germany. According to Habermas's view, the Federal Republic of Germany's patriotism is not on the historical identity, but rather to rights and the democratic process identification. In short, Habermas added the stronger factors universalism in patriotism, developed a kind of patriotism more abstract, a more inclusive political sense of belonging. Source of social integration is no longer from ethnic or cultural homogeneity, but from the constitutional principle of universalism.

The main criticism of Habermas's constitutional patriotism is, on the formation of Habermas about the constitutional patriotism that bias in the cognition oriented. This focus only on cognitive oriented constitutional love, really can replace the nationalism? After all, nationalism is based on strong national sentiment, stimulate very passion. This is why some theorists would argue that when necessary (especially the national security threats of), still must be pragmatic to appeal to nationalism.^[29]Love is the cognitive components, emotional, emotional side. Therefore, Habermas's constitutional patriotism if you want to replace the nationalism, must inspire love after a face. Therefore, must be more strongly appeal to the constitutional history memory and constitutional achievements have in common sense of honor, the constitutional practice and through shared to shape the destiny of the consciousness of constitutionalism.

Can say, constitutional patriotism is a "constitutional culture" into "the constitution culture". Perhaps this is the cultural constitution a transcendence, a sublimation. The conflict between national identity, cultural identity, institutional identity constitutional patriotism can contain good digestion and national identity in the, and replaced by a more inclusive constitutional identification. Of course, constitutional patriotism construction in China is not only a review of the history of the preamble to the constitution, is not only to December 4th of each year as "Legal Daily", more important is, through the constitution, the national constitution community sense of belonging. As Habermas says, the citizen's constitutional loyalty is rooted in citizen's motivation and sure, this motivation and sure form only when citizens according to the construction of constitutional government for their own historical achievement is possible. This achievement should be level, must make the citizen on the constitutional system operation, including the guarantee of individual right of freedom, political participation rights, and enjoy in the social and cultural rights, have good experience.^[30]118-119

The difference between the five, the conclusion -- the political constitution and constitutional culture

Traditionally, the constitution was considered the political law. The reason for this may be two: on the one hand, that the constitution is a political tendency, or said that the constitution is not politically neutral. For example, the constitution often begins with a prescribed state system and regime. On the other hand also shows that the constitution is mainly used to standardize and restrict the political activities, political power can be said to be the main object of adjustment of constitution.[17]But since 1919 the German constitution of Weimar began to write economic system and cultural system, status of the political constitution was shaken. Not only the economic and cultural rights has become the basic rights of citizens, but also the concept of economic constitution and constitutional culture began to appear. Compared with the political constitution culture constitution, has four major characteristics: (1) rule and power in secular life adjustment of the political constitution, constitutional law of spiritual life and cultural adjustment. (2) the political constitution has closed orientation or position, but the cultural constitution is open. This can be seen from the political constitution with rules, principles and constitution with cultural adjustment policies. This policy is that, although the target fixed (such as constitutional provisions of article twenty-fourth of the national ideology), but a means of achieving these goals is open. (3) the political constitution mainly include civil and political rights, constitutional law culture is mainly composed of the cultural rights of the citizen. Political rights are liberty, the country's citizen's obligation of omission; and cultural rights, as mentioned, not only emphasized that the country's obligation of omission, more emphasis on the obligation of state, which has dual attributes of liberal rights and social rights. (4) against the political constitution of heavier, and the cultural constitution is a kind of "soft power" embodied in the cultural field, the state is more flexible measures, guided by guide. Can say, the cultural constitution (including economic constitution) appear to be an important feature of modern constitution.

 

Reference

 

 

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