Study on several problems of the unwritten constitution

 

[Note: there is a "unwritten constitution" the constitution research in the current formulation, which is good, but if the indiscriminate will "power behavior habit" identity as the constitution, will have the Fenshukengru, will the Jews "habit" agree for the constitution of risk, the result is a the elimination of "constitution" concept.]

 

[Abstract]Unwritten constitution is the concept of a "constitutional culture type", not the concept of constitutional origins. Only the specification and to regulate power operation may be unwritten constitution. Any constitutional spirit as "freedom and liberation of people", a violation of human dignity of the specification may not be the unwritten constitution. Judging the unwritten constitution when comply with the three major criteria: in accordance with the spirit of the constitution, does not violate the constitution, has constitutional rank. The unwritten constitution that depend on the presence of the unwritten constitution, and there is no "in violation of the constitution text" "constitutional world". The unwritten constitution theory basis not only from the empirical fact, it must also stems from the preset value. China whether there are unwritten constitution is a problem, but any power expansion behavior and specification when excluded, "power ≠ constitution" when is the golden laws and precious rules of constitutional jurisprudence.

[Key word]The unwritten constitution concept of spiritual standard

 

Do not know from when to rise, "a traditional new concept --" unwritten constitution -- frequently appeared in the academic circles of Chinese constitution, gradually influencing, follow up the day.[1]It is a traditional, because "unwritten constitution" is a traditional topic in constitutional law; it is the "new concept", because of the "unwritten constitution" this concept is applied to the written constitution type in our constitution, is novel. From a legal point of view, to the unwritten constitution is a good thing. As a law concept, it helps overcome Chinese method in the concept of "nationalism". The concept of nationalism law covered not exist grammar -- including the unwritten constitution facts, it is a result of the idea of law in the country -- is actually the state organs -- supreme theory, the law (including the Constitution) as existing from tool belonging to the state organs, which hinder the construction of rule of law. Moreover, research on China's unwritten constitution, broaden the research on constitutional law field in China, when is a meaningful thing. However, China is written constitution and the present state, "the Constitution without constitutionalism" is the consensus of scholars. It has the following problem: how will rely on "habitual constitutionalism" exist "unwritten constitution" to introduce constitutional deletions China, how will be one of the constitutional culture type concept for "unwritten constitution" the origin of study, how to establish the unwritten constitution standard and so on, these issues are worthy of study. Let us start from the concept of speaking.

A concept, a "unwritten constitution"

The unwritten constitution was the constitution norm, a written constitution is not only born too late, and was just the family in "minority". Both ancient Greece and ancient Rome's constitution is the unwritten, Sabine said, "the city of the constitution is a 'lifestyle' rather than a legal structure."[2]The British constitution is still considered "unwritten". Rousseau in a written constitution ancestor -- America1787Before the Constitution -- the birth year25Years (1762) said: "in addition to the three kinds of legal, plus the last fourth, and is one of the most important of all; this law is not inscribed in marble, is not engraved on copper surface, but is embedded in the citizens of heart; it formed a truly constitutional state; it every day in the new force...... It can keep the initiative spirit of a nation, but also imperceptibly to the force of habit to replace the force of authority. I said that fashion, custom, and especially the public opinion......" Individual regulations "lawmakers were only the dome on top of the arch, and only slowly born fashion finally formed the keystone that dome on top of an unshakable."[3]"In Rome, fashion and public opinion than the system more powerful, but also correct the defects of this system......"[4]Obviously, Rousseau is telling the unwritten constitution. This shows that the concept of "unwritten constitution" is full of practical support, it is the father of a written constitution, as the unwritten law is statutory ancestor.

However, should pay attention to, the unwritten constitution is a "constitutional culture" concept, not the concept about "the origin of the constitution". On the surface, "the constitution culture type" and "the origin of the constitution" is one thing: the unwritten constitution places, unwritten constitution origin, but both of them are different subdivision. As the cultural type "unwritten constitution", refers to the Constitution without a written constitution, which rejected the "constitutional law" as the source of law; also, as a "constitutional culture" of the concept of the "constitution" of the word, it refers to the origin of the constitution the constitution, but also inherently excluded "unwritten law" as the origin of the constitution may. Unless you prove the existence of third kinds of constitutional culture type "mixed constitution", it has "unwritten constitution" and "constitution" double feature ", otherwise, the written constitution (Culture)" in "the unwritten constitution origin" idea is a kind of logical confusion. From the academic point of view, "unwritten constitution" in the "constitution" and is symmetrical, and the use of the "constitutional culture type" meaning, which is based on the "constitution" and "unwritten constitution" constitutional culture traditional dichotomy. Advocacy of "unwritten constitution" the concept of wearing snow is in answer to the "no British constitution" questioned "unwritten constitution" this concept,[5]He does not mean to be in "the written constitution of traditional culture" in an "unwritten constitution origin".

If you want to use the term "unwritten constitution" in the new sense, use it in the "unwritten constitution origin" countries with written constitutions in sense, to justify. "Unwritten constitution origin" written in the constitution exist? The first is a practice problem, the constitution exist in practice, have summarized the theoretical possibility and rationality. Of course, can also be a "forward-looking" concept, however, it also needs to prove.

Two, the unwritten constitution and state

The general relationship between the Constitution and state, because the constitution only exist in some countries, it is only natural that some parts of the country and the association, this is the community of nations and to the community of nations.[6]The "patrimonial state" and there are no related with the constitution, they only with violence and actual control. In the discussion, we also when distinguishing two different "national" concept: as a "political country" and the "as state organs".

The Constitution (including the unwritten constitution) in two ways to as a political body: country existence. "national production" and the constitution relations can be divided into three types: a constituent is established through the state, the constitution is its members national declaration, is also a national authority's contract with the people of these countries, is typical of. The constitution is usually written constitution. Two is the citizen "the natural behavior" countries, the behavior is the reason of the country's citizens. In a sense, can be called "habit of constitutionalism", here, constitutionalism and the country produces confused. The typical countries such as ancient Greek city-state, the constitution is the unwritten constitution. Three is through the Constitution and constitutional, contributed to the transformation of traditional country, thus promoting community nature of the state. This is the most traditional state to modern road. This Constitution can be written, also can be the unwritten. Usually the birth of modern democracy and Republic is a written constitution, the typical French; and the birth of modern monarchy constitutional government constitution is the unwritten constitution, its typical british. As a political body "the existence of the state" and the Constitution Constitution is closely related to national survival, survival, death is the state constitution. Because if there is no constitution, or do not abide by the constitution, the state does not exist or lead to the disintegration of the country. From this point to analyze the process of modernization of the country and the relationship between "constitution" state, can see the modernization of the country is "the existence of the state" and the constitution related, the countries into the constitution, it is the constitutional movement. From a legal point of view, the process to achieve the legitimacy of the state of (generalized) based transformations: from the fact (violence and authoritarianism) to standard (Law).

As to the relationship between national authorities as "national" and the constitution is much more simple. In this context, the state and the constitution cannot be separated, and functions and powers of state organs set up by the Constitution and state organs exercise their functions and powers when, by the Constitution (including formulation in under the authorization of the Constitution Law) constraints, no constitutional basis, the behavior of state organs and ordinary people, not having the force of law, that is the behavior of state organs must abide by the constitutional principle, adhere to the principle of rule of law. In this system, the absolute obligation of state organs is to abide by the constitution. The relationship between state and a transition form and the constitution. This type of state organs that exists in non constitutional state, its existence and the constitution but no constitutional movement, in the country driven, it gradually and the hook, even by "no constitutional basis" of the state organs to the constitution, the state organs gradually by his constitution. This is the most traditional state to modern constitutional state road. For example, before the Meiji Restoration in Japan national authorities and the constitution will be free from, the Meiji Constitution, gradually established the relationship between state and constitution,1947After years of constitution, between the state and the further formation of related substantive. The traditional state "constitutional government" is a gradual Road, is also a thorny path, whether it succeeds or not much need for politicians and self-discipline, self-discipline is usually very difficult. To complete this transition requires a rational progress even need to sacrifice oneself spirit rulers, to give up the privilege. Self success requires civil society pressure, and in such a society, often is the lack of civil society. However, in the globalization of modern, global society and plays a significant role in global civil society to constitutional government to the state.

The relationship between the Constitution and state tells us, in the constitutional state, or is the constitution "before" and "higher than the" constitution "to create" national, state, and the constitution is not national; or the constitution led to the modern transition countries, is the constitutional "reengineering" country. Therefore, the constitution, especially the unwritten constitution is "social law", "people", rather than "national law", is the community members to form a national and state law. The constitution is the "national law", only in the "constitution of object sense", namely "the constitution is the significance of regulating state behavior and composition method" is correct. The constitution is the "national rule of law" and "the constitution is the law" in the sense of "the constitution is the law" is not only misunderstood the function of constitution, misinterpreted the constitution "attribute", and also illogical. The unwritten constitution, in the city-state, is it a country; modern state in the traditional transformation, is it "reengineering" countries. An understanding of this point to the unwritten constitution of the Enlightenment: only the specification and to regulate power operation may be unwritten constitution, behavior of self expansion and standardization of the power is not the unwritten constitution.

Three, the spirit of the Constitution -- the unwritten constitution soul

Since the constitutional stage to discuss the question of constitutional value occurs in the written constitution, constitutionalism and constitution from the world history of science history point of view, the constitution value dispute occurred mainly in the period of enlightenment. In fact in the western constitutional state, when19Constitutional movement century be accomplished, especially after the two World War, the major problems of constitutional value has achieved very high consensus, worldwide standard vector it is known as the "International Human Rights Charter (International Bill of Human Rights"A group of files).[7]Discuss with the constitutional issues has gradually from the constitutional field to field our constitution, it gradually from a value selection problem into a demonstration problem. However, it is so not all countries. In the constitutional rapidly developing country, there are often "constitutional" absent constitutional. In this case, in fact the framers of the constitution will be their own interests "constitution", resulting from the constitutional spirit of constitution. The Chinese most typical than1908Years of "constitution", it is in fact the "imperial order", not "people", its purpose is to extend Zhang Junquan rather than the protection of civil rights. The former Soviet Union and Eastern countries of the constitution has a similar problem, this problem cannot be solved ultimately lead to the disintegration and reconstruction where state organs. Therefore, the constitutional issues to constitutional government country faces is twofold: value selection and demonstration. Chinese in fact also in the value selection stage, because we have no constitutional review, so not in the strict sense of the norm of constitution practice. This determines the research and respect for the constitution value is still one of the important tasks Chinese constitutional scholars.

Constitutional movement gradually lead to successful constitutional research paradigm change: turn the standard constitution from the value of constitutional law, the research paradigm transformation is the constitutional research, it promoted the in-depth study of the constitution. But it is the extreme form of -- perhaps can be called "the formalism of the standard constitution" -- is very harmful, especially to Schmidt's "political constitution". This academic tendency in the mature constitutional state are unlikely to have a serious problem, because there, the value of the Constitution by constitutional practice constantly beating, it carries the spirit of the constitution. But in the absence of constitutional traditions of the country, because of the constitutional process of "people's absence" phenomenon caused by the constitution of the confusion of values, if the constitution of indiscriminate will be called the constitution, constitutional research will undoubtedly become the political authority of speech "retelling", thus far away from the academic. As a result, light is the constitution research lose it promote the function of constitutional government, constitution of heavy academic appearance to the opposite of constitutionalism.

If the spirit of a written constitution has been addressed by the framers of constitution, researchers can be ignored, so, mental problems of unwritten constitution is absolutely can not be ignored. There are two reasons: one is the written constitution by constitutional procedure, this procedure itself will not the constitution elements of a large number of blocked at the door, and not the Constitution without constitutionalism procedures, some pending specification didn't even enter the "state action" program, but the ruler "family law"; the two is the written constitution a standard form of constraints, the constitution code itself has been laid a non constitutional law, and an unwritten constitutional law does not have this constraint. Since two the defect of unwritten constitution, the unwritten constitution research if you ignore "the spirit of the constitution", will produce the "constitution" and "non constitution" or even "unconstitutional" confusion, make the constitution into a heap of contradictory. Once a scholar and power collusion, are likely to have a "bad money drives out good academic constitution" in the money ". In practice, it could lead to "unconstitutional" overhead constitution, the constitutional government always miles away.

So, what is the spirit of the Constitution? The value orientation from the constitutional and special function to observe.

The most clear, the fundamental value of the constitution is to protect human rights, it can be seen from the constitutional purpose are derived directly. Foundation of constitutional behavior is everyone (proposed by community members) are free, they in their own right to take a common action, the establishment of community, created (or change) of state rules, norms results of this behavior is that the constitution. Know the common sense knows, UK1215The Great Charter is actually a "right to contract", another important constitutional document in the British bill of rights (simply called "1689) "," Declaration of human rights "is the French1791The constitution of the year. USA1787Although there is no rights in constitution, but only after four years (1791Years), the Americans in the form of constitutional amendment established a bill of rights, these Provisions are still the most active content USA constitution, has become a major driving force for the development of constitution America.

The fundamental value of the constitution determines two functions: one is the constitutional protection of civil rights function. This is directly reflected in the constitutional function of constitution value. The two is to control the state power function. This can then derived from the constitution value intermediate: because power is the guarantee of the rights of persons, at the same time the power is a potential infringement subject most strong, in order to guarantee the rights to control power. Function of constitution tells us, the constitution is used to control the power of the national law, is the social control of state law, not state organ control national laws, or say, "by the people" the constitution is not law, "governs the people" of the law. Therefore, for the state organs, the constitution is the law of obligations, for citizens, the constitution is the law of rights.

From the value and function of the Constitution can clearly see that the spirit of the constitution is human dignity, is the respect to human dignity and guardian, or to borrow Marx Engels's words: "the spirit of the constitution is freedom and liberation of human beings". The spirit of the constitution is the constitution of all the soul, and the soul of the unwritten constitution. The spirit of the constitution of the unwritten constitution research significance is: violations of human dignity or violate the "freedom and liberation" the specification may not be the unwritten constitution.

Criterion four, unwritten constitution

Research what norms are "unwritten constitution" is one of the existing norms according to certain standards of the selection process, the standard solution of unwritten constitution. The establishment of appropriate standards must first solve a jurisprudence problems: how to deal with the relationship between law and experience? Law is "final" from the person's experience, but cannot get any experience natural attributes -- called "the law of". Because the law is the standard of human behavior, it belongs to the practical reason, therefore, test the empirical behavior must accept the reflective thinking can be made law. Although the law of different times have different standards, for example, in the ancient oriental patriarchal country, ruled out by violence or habit is the standard method. However, it has become a sad chapter in history. In modern society, "method" based on human nature, the empirical behavior of the protection of human dignity can rise to the law. The constitution of course must have a "method", then to have the "constitutional". The "constitution" from the "method", is the "highest embodiment of law".

So, even if the constitution provisions, it "Is it right? Constitution" are also discussed. For example, in the late Qing Dynasty1908Years of "constitution" in form, can be called a written constitution, but does not mean all the provisions are enough "constitution". "Qing emperor the Qing Empire, a series of eternal, permanent permanent statue wearing" was listed as the first one, but it is unconstitutional; on the contrary, "subjects within the law, all speech, books, publishing and assembly, association, are quasi free" and "non - will be in accordance with the law subjects, not to arrest, imprisonment, punishment" these two provisions although listed in the "report", but in reality the constitution. This tells us, the text of the constitution must accept the baptism of the spirit, the "priest" role when undertaken by constitutional scholars, namely, constitutional scholars have criticized the Constitution (written) moral obligations. The written constitution "constitutionality" problem is a beyond the standard, we can assume that the framers had been solved here, leave the question open, such as the "constitution" and the problems in the foreign constitution in the so-called "main idea, first army constitution" problem can be seen as a case. But, for what "unwritten constitution" the spirit of discrimination is absolutely can not regard as unimportant, it should be the core content of unwritten constitution.

In general, if a habit with method of argument. Argument must have certain standards, for example, it indeed exists, it does not violate existing laws, it is consistent with the spirit of the law, it is reasonable, and so on; there is no doubt, whether one has "constitutional" requires more strict demonstration. Identification of a specification is the unwritten constitution must satisfy the following condition:

First, with the spirit of the constitution. Because of the lack of clear standards in form (constitution), but there is no standard upper class, the unwritten constitution's argument is the first constitution spirit. This two reason is based on the. (1) from the constitution "the essence of things" -- "constitutional" -- to see, only the constitutional standard called "unwritten constitution". (2) the effectiveness of unwritten constitution perspective, the unwritten constitution is to accept the inspection must accept the constitutional spirit. This is because: the external form a "pending the unwritten constitution" does not have the constitutional authority, to form by not its validity; the Constitution itself to constrain the state organs, a "constitutional" pending unwritten norms force from the coercive power of the state organs cannot be achieved, it the only source of authority is only the social identity. How to get the social identity? It is the spirit of the constitution.

Second, do not violate the constitution text. Don't break the law is used as the source of the condition, does not violate the Constitution (in Chinese is constitutional code) is any specification become unwritten constitution condition, the reason is very simple. One, is the people's constitutional text represent, if wrong, also when the people to modify, anyone has no right to violate the constitution text "constitution"; secondly, that violate the constitution text specification for "unwritten constitution", will lead to internal disorder of constitutional norm; third, if a violation of the Constitution the text of the specification is the "unwritten constitution", not only "unwritten constitution" effect in the "constitution", and is the subject of authority in the constitutional authority, which fundamentally subverted the constitutionalism, subversion of the rule of law, and even subvert the modernity.

Third, has a "constitutional order". Because logically speaking, constitutional norms, does not violate the constitution text of the specification is not all the Constitution: on the basis of other norms of the constitution are assumed to be consistent with the spirit of the Constitution and constitutional text. So, to prove beyond a constitution norms are "unwritten constitution", we must prove that it is higher than the general laws, with the highest legal effect.

Five, the unwritten constitution and unwritten constitution

The above mentioned, the unwritten constitution lies in the power of social identity, namely the unwritten constitution is "no constitution (written) constitution practice" -- may be called "unwritten constitution of product --". So, what kind of society can produce the unwritten constitution? It is the main community.[8]Community is a political body with United for the characteristics, it is civil society in essence, state organs is just a product of civil society, and subject to civil society. The joint itself is the starting point of the constitutional practice, so the composition and operation of the political community of practice itself is a kind of constitutional government -- the unwritten constitution, rather is a way of life. Under this way of life habits and customs, public opinion, restrict political power and other important documents constitute the unwritten constitution. The representative is British, successor as "Macfarlane school"J.Campbell said, the Anglo-Free peasant origin in the Saxon, retain original military democracy time free, democratic tradition, the "one village one village" of the social life and related concepts, which later13-15The historical basis of the constitutional system.[9]

If the only standard of civil society exists or not as the evaluation whether there are unwritten constitution -- if this view called "constitutional naturalism", may omit important unwritten constitution phenomenon. This kind of "constitutional naturalism" ignored "the power of reason" progress of unwritten constitution. Like the law, constitution is a natural process, the constitution is a construction process. Master the power elite are likely in the absence of civil society, for various considerations and the choice of the unwritten constitution.[10]This is the case in the east of the country to constitutional government in. For example, in the late Qing Dynasty about constitutional decree, on the abolition of slavery laws, the more the king of Bhutan issued government preparations for the drafting of the constitution, recommended the establishment of two party system, form a bicameral parliament orders and so on, these are the typical unwritten constitution. This seems to be called "self limiting government power".

Process to constitutional government society in the eastern autocratic society, because civil society growth lag, as a global phenomenon and political rationality, rational growth of political power may precede the growth of civil society, "the power of self limiting constitutional" have greater room for development. In fact, civil society and civil society is a non Weber's sense of "ideal type", we can say that the ancient Greek polis is the typical combination of public society and political state, the Oriental society is a typical patriarchal society. But even in the east of the patriarchal society also exists in order to meet the needs and interests and patriarchal country relatively independent "civil society" -- more exact title as "civil society", however, it is dependent on the parent state. The constitutional process including civil society dependence weakened and independent status and strengthen. At this point we constitutional movement in the late Qing Dynasty to see clearly. In the era of globalization, the civil society completely missing state if not absolutely not, is also very rare, because civil society is a worldwide phenomenon, it will penetrate into the country from the international.

Objectively, orient constitutionalism movement usually development and strengthening of citizen society with its constitutional government, usually benefit from civil society and the political power of the right to the pursuit of rational self limiting two forces. With this pretty, its constitutional government is somewhat "written", a "unwritten". But, then again, self limited political power if there is no social pressure, constitutional often remain stagnant. Knowing this, we can understand the planned economy era Chinese why long-term constitution without Constitutionalism -- because it destroyed China originally very weak civil society, the power of penetration into the unit of society and family "". The unit of society not only has a world of difference and the civil society, is compared with the traditional "civil society" is also cannot be mentioned in the same breath, it exists as an extension and tool for political countries. The understanding of this point is conducive to our understanding of the significance of the reform and open policy.

Six, the text of the constitution, constitutionalism and the unwritten constitution

In a study of unwritten constitution works, author has declared: "the following method from the departure of Chinese constitutional text and constitutional practice of unwritten constitution, put forward the view of new ideas China constitutional order."[11]This raises an important question of principle: in the written law countries (Chinese) the existence of "from the text of the constitution of" constitutional government "practice"? The first figure out what is the constitutional government. ConstitutionalismConstitutionalismA word from the ConstitutionConstitutionThe term evolved, literally translated as "constitutional", it is regarded the constitution as the "sacred" social status. In such a state, the constitution is the highest of all norms of behavior, behavior, especially behavior when the power to abide by the constitution, or unconstitutional. Violation of the Constitution not only produce legal effect expected, people must bear the corresponding legal responsibility. In the implementation of a written constitution system Chinese, here is the "constitution" (at least mostly) constitution, or the text of the constitution. That is to say, the word "constitutional" inherently contains the text of the constitution authority, inherently includes legal liability when the pursuit of constitutional rules. If you admit it, he categorically not exist "from the text of the constitution" and "constitutionalism" this statement. Because the departure from the text of the constitution of "practice" was unconstitutional, should pursue the legal liability, impossible is what "constitutional practice". If the existence of "constitutional practice" from the text of the constitution, the constitution where? No constitution, where the Constitution? Therefore, no matter where you are, "from the text of the constitution" and "constitutionalism" is with fire and water potential. From the linguistic terms, "the text of the constitution" and "constitutional practice" of the "constitution", is a "constitutional", where "violation of the Constitution (constitution) of the" constitution "(government)"? See "from the constitutional practice" the text of the constitution of the statement in itself a violation of the rules of the language. Logically speaking, is a violation of the law of non contradiction, on different also advocated the two contradictory views. What kind of habit can become the legal issues, said Marx very deep, and very sharp: "a person's behavior is not because has become his habit is not an illegal act, as the son of robbery and not because of his special style and be forgiven."[12]

Methods the declaration above on hidden behind a logical problem. The research logic is this: "from the text of the constitution from" behavior that so-called "constitutionalism", then to It is sheer fiction. "constitutional practice" as the premise, "the text of the constitution that deviate from the" behavior "unwritten constitution". Only logically speaking, this is a circular argument. The so-called "unwritten constitution" conclusion is in his unconstitutional "constitutionalism" presupposition. This is arbitrary, and also violate the law of common sense.

Seven, the unwritten constitution "jurisprudence" problem

In the same article unwritten constitution of the representative have such a word, the Chinese unwritten constitution of "jurisprudence" worry ": analysis of British and American constitutional theories and practices based on, we distinguish the classical constitutional and modern constitutional law, political constitution and constitutional court in any country, and that the operation of the constitutional actually depend on the unwritten constitution, so as to lay the theoretical basis of unwritten constitution."[13]This text reveals three important "method of" constitutional questions worth discussing.

First, the author of "unwritten constitution theory" is based on "analysis" of British and American constitutional theories and practices. The idea "to jump from the fact standard". The idea is, "analysis of the Anglo American constitutional theories and practices from ancient political system and modern constitutional law, political constitution and the constitution based on the court, then suggests that any country's constitutional operations are dependent on the unwritten constitution". Even if the judgment is correct, it is just a fact judgment. The fact judgment can not be used as "jurisprudence" unwritten constitution is very obvious, because the construction of unwritten constitution is a normative proposition, it needs the fact description, but we need a preset with the value of the. From the latter, any normative argument is incomplete.

Second, the author analyzes the Anglo American constitutional theories and practices based on, "and argued that any constitutional operation actually depend on the unwritten constitution" this judgment is premature, because the modern legal tradition, at least two different cultural traditions in the world: the continental law system and Anglo American law system, and this corresponds to the existence of two different constitutional tradition. The author only on the constitutional practice one culture makes the analysis, we draw a general conclusion: "any (emphasis in cited) national constitutional operation actually depend on the unwritten constitution", a Overgeneralization too.

Third, the author will such a possibility is Overgeneralization concept is used to analyze the China "unwritten constitution", the theory of "tool" is suspect. Because Chinese not the countries of Anglo American law system, to say that the traditional, is close to the continental law system. China current constitution and relevant practice from the continental law system of the Soviet union.

The jurisprudence basis, where to find the unwritten constitution of what to look for, of course, this is an academic problem, which belongs to the range of free research. But one thing is certain: the study when follow logic rules.

Eight, Chinese has no written constitution?

Finally, when the answer to a practical problem: China has no written constitution? The answer is not a unified theory. From published limited relates to the theme of the article, there are dominant, but also some scholars hold a negative attitude, think "demonstrates China's constitution and more origin not necessary, no sense, no according to, is superfluous."[14]

I think, China have unwritten constitution is a research problem, research is concentrated in two areas: customary rights norms power specification and citizens. Has the potential to become the unwritten constitution origin habitual norms for power must have a two characteristics: "diversionary" and "self", only with the diversionary or self limiting "customary norms for power" may be only the unwritten constitution. For example, the annual National People's Congress meeting in March, will be a period of two weeks, the NPC Standing Committee meeting in two months, the program some habitual people's Congress passed a resolution, passed a constitutional amendment to amend the constitution of the customary norms. It is necessary to emphasize, any power expansion behavior and acts of abuse of power or specification may not is the unwritten constitution, because it violates the constitution, the constitution of the unwritten rules of the bottom line.

In addition, because China is Chinese Communist "characteristics", Chinese Communist Party in the present system objective of the country has play a decisive role effect, therefore, the Communist Party of China self limiting specification may have the meaning of the constitution. For example, "the constitution of the Communist Party of Chinese" general programme part: "to strengthen the state legislation and law enforcement, regulation to realize the rule of law", "the activities of the party must be in the range of constitution and laws. The party must ensure that the national legislative, judicial, administrative regulations, economic, cultural and people's organizations actively, independent responsibility, working in harmony ". Moreover, the beginning of reform and opening up1979Years9Month, the CPC Central Committee issued the "CPC Central Committee on the firm assurance of criminal law and criminal procedure law, to implement the instructions", in: "party and judicial organs responsible, cannot replace each other, should not be confused with each other", "Party leadership in judicial work, mainly is the guidelines, policies. Party committees at all levels must resolutely changed in the past, the government, in a statement on behalf of the law, do not act in accordance with the provisions of the law, all administrative affairs customs and practices." Regulations etc..[15]

As a customary right for citizens, if it is the citizens exercise and has repeatedly, the universality and importance, can also be considered as the object of study of unwritten constitution.

Conclusion

The unwritten constitution itself is relative to the written constitution is concerned, it is against the Constitution (code) a concept missing out, if the support of unwritten constitution in the conventional understanding, "a written constitution system" for "unwritten constitution origin" itself is a contradiction. If you give "unwritten constitution" with new content -- on the origin of the Constitution on the significance of using, such research is meaningful. However, there is a real difficulty in the unwritten constitution China research: China has no constitutional action, no constitutionalism, any theoretical assumptions (including the author mentioned about Chinese unwritten constitution may origin narrative) is only a theoretical appeal, whether has to comply with the power to, how many effect is still can make nothing of it objectively. A discussion of the unwritten constitution, if we do not take it seriously, it is the "constitution"? It's just a beautiful dream.

Also need to point out, in a society where there is no constitutional practice for the unwritten constitution itself is a risky thing -- because it lacked the experience support; if we ignore the spirit of the constitution to find the unwritten constitution, "the formulation of unwritten constitution" is not very dangerous, it may be unconstitutional arrogance; if you move a step, the "power of behavior deviates from the text of the constitution" as "unwritten constitution", it is the inevitable result of the violation of the Constitution Constitution, "unwritten constitution" will become a genuine anti constitution, constitutionalism, rule of law concept of anti anti. The theoretical effects and a few years ago "benign unconstitutionality" different approaches but equally satisfactory results, and go further than it. "Ethics benign unconstitutionality" demonstrates the legitimacy of unconstitutional behavior, "the unwritten constitution theory" is the unconstitutional constitutional, point to their theory is digestion digestion rule of law, constitutionalism.

Admittedly, "divergence" China constitutional text and constitutional practice is a fact, this point is very correct and important. The problem is, constitutional scholars when how to treat this phenomenon of "deviation". Constitutional scholars is chose to study "how to promote the practice of constitutional text", research on how to apply the "departure from the practice of" the text of the constitution of the Constitution -- called the unwritten constitution or choose? This is the fundamental standpoint of constitutional law, and constitutional scholars academic conscience. Golden laws and precious rules constitution researchers do not forget "power ≠ constitution" the constitution.

Law.2011No.3Period.

[1] Results the journal web search is, from1994Year, title contains "unwritten constitution" thesis9Article,8Article is a discussion of the British constitution, later to2009Years, and only a discussion China unwritten constitution article, that is: the published in the "open era" Mr.2009No.12Period of "China constitution unwritten constitution -- new perspective to understand China constitution".1994Since the topic words containing "unwritten constitution" article Co59Discourse, which is related to the China unwritten constitution7Article, the first discussion about China constitutional convention article appeared in the1995Years (Wang Xinsheng: "on the Constitutional Convention", "Journal of Changsha University of electric power"1995No.4Period),2008There are second articles (Cao Zhenghan: "China civil society: the informal constraint of local governments -- a law conflicts and its general meaning", "social studies"2008No.3Period), the rest five articles appeared in the2009Years later. Data sources: Chinese periodical full text databaseHttp://202.195.136.22/kns50/Navigator.aspx? ID=1,2011Years1Month8Day visit.

[2] [Beauty]Revision of George Holland Sabine, Thomas Landon Thorson: "history of political theory" (on), Sheng Kuiyang, translated by Cui Miaoyin, the Commercial Press1986Year edition, No.33Page.

[3] [Method]Rousseau: "the social contract", translated by He Zhaowu, the Commercial Press1990Year edition, No.73Page.

[4] With the note book of Rousseau chapter152Page.

[5] See Yao Yue cashmere: "understanding" of China constitutional origin, "law"2010No.9Period. Said the British constitution is "unwritten", is that it has no constitution, an important constitutional document it is written. It is because there is not a "monopoly of the Constitution Constitution, the British constitution" contains the constitutional convention unwritten content, this is the common law tradition.

[6] The following sections of the "state" refers only to the community and Community countries countries.

[7] These documents are: "the Universal Declaration of human rights", "economic, social and cultural rights and the International Covenant", "International Covenant on Civil and political rights" and the "International Covenant on Civil and political rights" the optional protocol.

[8] This is to distinguish between "the two different concepts of community" and "political". "The body politic" is "community" concept, political body can be the ancient oriental paternalistic, also is the common type.

[9] Meng Guanglin: "new trend" Studies in Medieval English constitutional history, "Chinese social science"2009Years11Month12Day.

[10] The reason is complicated: or to reform for survival, or for social democracy and freedom, or in response to the world trend of democracy and freedom, or to relieve the pressure of the international community, or the pursuit of the interests of the ruling maximization, or because of constitutional procedure complex and difficult to start.

[11] The same note1The paper.

[12] Marx: "about the act of Steal Wood", "Marx" the complete works of Engels1Roll, people's Publishing House1956Year edition, No.249Page.

[13] The same note1The paper.

[14] The same5Yao Yue Rong wen.

[15] From the side: "the judiciary to dare and good at reasoning" method to release the people's court newspaper "leader,"2010Years11Month25Day