"Comparative constitution" reading notes

First, author brief introduction and background

Professor He Huahui was born in twentieth Century 20 time, in 1946 at the Peking University School of law school, because of excellent results in 1951 was sent to the Graduate School of Renmin University of China in constitutional law, after graduation to teach at Wuhan University. However, educating people to catch up during the cultural revolution, was put on the anti rightist hat, sent to Hubei labor reform. The end of the 76 years of the Cultural Revolution ended transformation life Professor, had been placed in the Philosophy Department of Wuhan University library as data manager. 79 years after the Third Plenary Session of the eleven, professor he was rehabilitated, and he also put the law department of Wuhan University reconstruction, his law career to a stable. According to the research, plays an important role in the international academic exchange Professor Ho, often visited, learning, communication in the world famous university, not only to promote academic exchange and cooperation between Chinese and foreign law, more expanded the western academic understanding of China constitution and constitutional law. Professor he published more than 50 academic papers, authored and co authored more than 10, and in 84 years China law constitution society established was elected vice president, show that Professor in law's accomplishments and achievements.

"Comparative constitution," this work is compared to the lecture on constitutional hours into teaching in Wuhan University in 1985. The legal research work at the Third Plenary Session of the eleven initiative has just started, the Constitution and regulations of our country 84 years although modifying shortly but to explore the problem still has a lot of, we see the problem, and the introduction of western constitution and its related theory as a way to promote the improvement of China's constitutional law, and gives inspiration to all scholars. Of course, every era has its reality which adapt to the features of the times, "comparative constitution" exists in a particular era can not be an exception. Today, in our era as the background, we can clear from the look and feel of the constitutional development. Although time is different, this is not said previous works did not play to our. After all, everything is a collection of time and space, no history there would not have been the reform, there will be no more future development. In the taste, at least I from this book benefit not shallow.

At first glance, ask to read this book what I learned, if really can not talk about, the basic elements of the collection of original works is a thought, idea, content, structure, method and so on. Based on their will in the process of reading and the author, the reaction associated with the theme of the works, or collision and thinking, or combination of absorption. This running in still is an indivisible whole, not by the classification factors objectively and independently, it continuously wound together like a scene of chaos, but careful combing open and will find that they are an organic combination of system and the law of the whole, this also is the function of reading notes.

Two, the writing content

"Comparative constitution" the content as its name suggest, is the study of the constitution theory, is a 80's on the constitution theory of comprehensive introductory works. The argument is the subject of the constitutional law, but not purely Chinese constitutional theories, but also from a comparative perspective on foreign constitutional law theory to refer to. The theory of constitutional law is divided into two parts, one part is the principle of constitutional law, the other part is the standard constitution. In the first part, the author introduces the basic theory about the constitution, such as the constitution of the emergence and development of the constitution, classification, structure of the constitution, constitutional principles, the implementation of the Constitution and amendment. The second part the author introduces the general rules about the constitution, such as the state system, regime, political power organization form and structure of such state system, economic system, the citizen in political, social, life's basic rights, as well as the representative organs, administrative, judicial and heads of state and other state organs, and it also introduces and constitutional close the political party system. The two part includes the basic theory complement each other almost all constitutional law.

The subjects range from a field spread throughout the world, the main countries of the world constitutional theories are introduced systematically. Author introduced to each other and not the state constitution theory is independent, but were compared in the main legal category of constitutional jurisprudence, as readers the constitution theory in foreign countries, the perspective is wide, but the starting point is not the macro, and easier to understand. The main categories of law theory of the constitution as the foothold expansion is introduced, and was compared with each of the legal category of plate, the Constitution provides the major countries on the specific category, compared to show the reader. The sovereignty of the people as a basic constitutional principles, the author compared the relevant provisions of the law, the Soviet Union and other countries, the principle of separation of three rights;, the authors compared the typical USA decentralization mode, the legislation as the focus of the British decentralization mode and the administrative center of the French decentralization; this category in China, the author contrast the British monarchy, America presidential system, the Swiss committee system, France's parliamentary characteristics of the presidential electoral system; the author compares the majority voting and proportional election, one majority alliance with two round majority alliance. This is the comparison of. Vertically, the author introduces the concept about national ancient, modern, Aristotle, Hagel, Marx et al. The virial view; classification of author on the constitution is introduced in the 1884 British jurist Bryce written and unwritten constitution classification in 1901, rigid and flexible constitution classification, and the classification of later people, James and the protocol constitution the author also cites; about the regime such as Aristotle, Thomas, Rock, Montesquieu, Krishna to relevant government explanation since ancient times; the comparison is logical and comprehensive, is smooth and wide. It is the horizontal and vertical interleaved introduction to constitutional norms in all fields of integrated and comprehensive picture in the reader before.

Three, the angle of comparison

On the comparative perspective, different subjects have different angles. A comparison of civil law and common law constitution, a constitution of the countries of the continental law system, Anglo American law countries also have a comparison between the constitution. "Comparative constitution" to the constitutional category as the breakthrough point, through the legal category of the constitution of constitution, in each category will compare the two big types of Law -- the capitalist countries and socialist countries. Of course, the author selects the typical countries, such as America, Britain, Germany, law of capitalist countries, Yugoslavia constitution, the Soviet Union, Bulgaria socialist constitution. Based on constitution two types as a comparative perspective is the skeleton of the system throughout the whole book. Of course, in a certain range, in contrast to the two types of law at the same time, each referenced within the Constitution also exist mutual control.

This type of state as the angle between the constitution has the characteristics of the times and the times of distinct. In twentieth Century 80, the Marx doctrine, Mao Zedong Thought is the core value of all the theory and the practice, almost all the fields, all levels, all classes are not the will of the affected. Similarly, value concept and theory system in the legal field, Marx's influence in China was the legal scholars ideas and concepts, one of this book is its typical representative. The two type of state that is capitalist countries and socialist countries constitution is obviously on become the main line throughout the book. From the definition of "the Constitution Constitution is a concentrated expression of the will of the ruling class of the fundamental law of the state." From the basic principle of constitution of three powers position "itself, but by the era and class limitations, the Constitution adopted not socialist" constitution "; in the revision of the constitution changes and modifications must be due to the strength comparison between classes"; from the author of the capitalist countries the system specification to criticism the attitude of the nature of the state, "the capitalist countries the provisions of the Constitution and the actual gap, as the constitution standard and the national nature of the contradiction between" substance "as long as the state that it protects all private property rights, the right to the assistance and the private...... It is help to control the poor farmers and working class capitalists machine, it is the nature of the class dictatorship will not change. "; in the basic rights of citizens," equal rights under the two different historical type of Constitution with the equal right of judicial, but because they represent and reflect the class interests and class will different have the different forms and different development trend...... .. Western equality never to legislative equality "," focus on the protection of the private property of these countries is not life, but that the means of production, and its fundamental purpose is to maintain their own survival, the capitalist ownership "; from the constitutional principle to the constitutional norms to citizens basic rights, three plates of the book everywhere embodies the" as the starting point "of that era characteristics of class analysis, the comparative perspective also show this book time advanced and prospective.

Four, using the method

From the methodological point of view, in addition to compare, the enumeration method, the most important is my future attention and strengthening is the use of historical argument. Everything has its origin and according to its historical development, everything has its reason to exist, history is the most compelling reason, at the same time, it is self-evident that the law of development of things. "Any principle and system of public law on the development, must have the background for its cause, when times are changing, people are sensitive to change policy, in order to adapt to the." Author in the Constitution were compared using history proves to readers that the production and development process of a system, more intuitive theory. Such as the separation of the three powers the constitution principle is introduced, the modern theory of separation of powers "is advocated by Rock, developed and completed by Montesquieu. Rock in his book "on the government" to the state power into legislative power, executive power of the union right. Montesquieu in his "spirit of law" in the state power into legislative power, the relevant international law matters of administrative rights, civil law jurisdiction three." And further elaborated that "separation of three powers Lilai in order to establish the facts is a constitutional monarchy in britain. Is based on the theory of social contract and combination of modern natural law theory. Rock opposed the unlimited power of the group, that if the monarch to monopolize the rights of the people, by the monarch infringement is no complaints, no justice. But he does not advocate the complete overthrow of the monarchy, think English people unwilling to give up the old system,,,, "" Rock and Montesquieu are in the school of natural law theory, Rock thought before the birth of the nation, the human life in a state of nature, everyone has the right to enjoy the natural right to life, property and liberty Montesquieu also acknowledged that, natural state and natural law exists and that people living in the natural state of each other exist in search of food, love peace, let four of the doctrine of natural law of the common social life." Changes in the form of the certain system currently existing performance and introduces the development changes in practice and use of historical reasoning method. Such as the form of separation of the three powers in the American, performance in England in the form of legislation as the emphasis, in the administration as the focus of the French form is introduced, and the development and changes of the separation of the three powers in different aspects of the. "Separation of powers between the meaning of class has disappeared, increased decentralization color, party politics influence gradually strengthened, administrative and gradually expand the" are fully reflected the historical argument. As the author of the representative origin and development agencies are introduced, including the parliament is composed of a medieval European feudal country level meeting evolved, representative organ of the people by Marx from the basis of the Paris commune founded the experience. If the responsibility cabinet system in the process of formation and evolution. The author introduces the constitution law mostly history development sequence, are compared from the varieties of capitalism and socialism type point of view, the theory of rigorous and logical argument. Of course, the author not only hereat, lists the empirical and other methods are reflected, such as the theory of "the West about sovereignty sovereignty and sovereignty on the coexistence of national sovereignty, sovereignty, negative theory, national autonomous spirit, legal sovereignty, legal sovereignty and political sovereignty integration theory."

Methods the author is diverse rather than a single, is a system and organization and not be, this is a good work is an important criterion in judging the, I also need to study the direction, so as to what I said at the top with the characteristics of the times works not for modern reference and learning, not to inspire real learning of people. On the contrary, from a methodological perspective, works is that we are lacking and needs to be strengthened and learning.

Five, the logical structure

"By using the methods of comparative constitutional law" of the content system of argumentation, the author's argument more convincing, and the structure of the system, logic and orderly make the argument more levels and context, which is easier to understand the author's ideas to. From the "constitution" of the structure, on the whole is described to demonstrate the traditional structure, from the basic principles of the Constitution by constitutional norms, the basic rights from the basic theory, the state system, economic system, citizens of specific. From the general to the specific, from the general to the points, reflected in the content arrangement system, logical and orderly, which can clearly grasp the thread of thought. In fact it is the basic principle and the basic norms of constitution is not the primary and secondary points, they are an organic part of constitutional law, is not to say that the first principle and other norms, the basic principles to generate the constitution, and develop the fundamental rights of citizens. The general and specific, the sum of points is only the relative existence, not the time sequence arrangement on the structure of the before and after, is also a major occasion, key and non key other. Accordingly, the author of this system arrangement is in fact and the text of the constitution arrangement system roughly the same, especially the text of the constitution of our country. Starting from the basic principles of the constitution, such as the constitution of our country second on the regulations of people's Republic of China all power belongs to the people. Constitution of the Fifth Republic of France monarched sovereignty of each chapter announced the principle of people's sovereignty "sovereignty belongs to the people..." USA although not specifically announced that the principle of the sovereignty of the people, but in the foreword of declaration of the "we USA people..... The constitution of the United States is formulated". In the fundamental rights and duties of citizens and the state regulation of the system arrangement, the order both in the states by the constitution, which has its reason to exist. But the arrangements for both China's constitutional text is to provide citizens with basic rights and obligations, the provisions of national system, the provisions of national institutions. Run in the same groove structure system structure of the book and our constitution text, this also reflects the contemporary constitutional system arrangements of traditional scholars.

Six, a point of view

The authors of the constitution from the perspective of the rich characteristics of the times, is diverse and unified, using the historical method, based on the categories of constitution, evolution, development is introduced, and compared in the process, system and structured, a whole branch. While in the position and point of view, we today appears to be very prospective. If the citizen's right of migration is introduced, the freedom of movement is generated in order to adapt to the development of capitalist production and employment needs, it is necessary for economic development. The German constitution, the Japanese Constitution, the constitution of Italy also have clearly defined, America although the Constitution does not provide citizens the freedom of migration, but the Federal Supreme Court case that American through the personal freedom of citizens. Since our country 75 years the constitution to delete this civil rights to freedom of movement, scholars debate has never stopped, the basic rights of the citizens a chapter of the freedom of migration will be our future in this topic of academic confrontation provides valuable material. If the environmental right of citizens should have access to appropriate, that the living environment of the right, the author of a few state provisions on environmental right, environmental right at the time but has not yet become a fundamental civil rights cases, prediction of the citizen's environmental right development, signifying its eye on long-term and thinking depth.

Summary

"Comparative constitutional law" is a book, in addition to the expansion of knowledge available, but also gives me a little degeneration of inspiration, the book describes the constitution theory are its feature of era, the constitutional development today shows that the philosophy theory with time and influence character by environment. Changing the constitution, while the Constitution theory is different in each country, development level, even if the state constitution theory in the development of the reality of similar degree of content and form are significantly different, however, in today's global development of the world, the development of eastern and Western constitutional either in form or in its essence is based on their development and progress showing a be a trend which cannot be halted fusion, this may also be the mankind pursue people's rights to achieve the ultimate value goal decision.

The forms of the constitution value also changes along with the ultimate aim of value on demand, from the class will emphasize to emphasize on human rights, the protection of human rights negative to protect the human rights of all positive perspective, with close to human and freedom. The constitution is not only in the limit state power angle passive protection of human rights, while adjusting for the norms of state power and make the good side to play its due effect, the constitution is not passive extension of the basic rights of citizens, and actively to give citizens "rights tool" to realize the right. The constitution is the first method, is the mother of law, is the basic law. Not only because it is a concentrated expression of the ruling class, is the embodiment of national public will, but because it is the guarantee of human rights spirit foundation and source of all, is to adjust the relationship between citizens and the state law. And the other is the product of constitutional fairly recent excitation, as tree crooked, not positive, if between the constitutional rights of citizens and the state power can not find the equilibrium point or the so-called equilibrium is actually represent only one interest class rather than the whole of the will of the people, and the deviation of the words, a series of laws relationship between the basic relationship adjustment by the Constitution and the constitution of the evolution, according to a series of specific behavior the spirit of the constitution, the guiding principles and abstract behavior will be based on parent law this equilibrium is determined by the departure route direction and true goal value more walk more far. In contrast, the game between the constitutional rights of citizens and the state power of the base, the ultimate value goal is clear boundaries of the exercise of power and the impassable, regardless of whether the gap between ideal and reality will have much, at least we directed toward determining the direction can avoid detours. This requires us to break the closed door policy and the complacent and should all rivers run into sea, brainstorming in the process of learning is found in the most suitable for their own constitutional road.

 Author Jiang Nan, Law School of Jilin University students, the article reproduced please indicate the source