China constitutional challenges and opportunities

Http://const123.fyfz.cn/b/796497 

    1982Years since the enactment of the constitution, China is not easy, because has not been well implemented, a bit like a thirty year old haven't married "3S lady" or not to marry a wife "leftover men". This parable may not be appropriate, but we do not have to deny the fact, especially the constitution scholars can not deny, otherwise the law will have views on our peer occupation. If want to say our constitution is good, I can be demonstrated, the constitution of Ethiopia also implemented well, perhaps better than we. Some people say that our implementation of the constitution, because for thirty years according to the constitution enacted numerous laws, but if this is the measure of the constitution "the implementation of" standards, then the Ethiopia constitution must also implement very well, because it must also have a large number of law is the basis of constitutional law. Those who do not have the constitutional review of national "implementation" is especially good, because all the laws are considered according to the constitution of constitutional law enacted, the number is probably much more than we are. So according to this standard, no country in the world of the constitution "implementation" is not good, but this "implementation" meaningful? Even from the "horse project" constitutional law textbook writing experience, "this two word constitutional" or not to mention. What is the constitutional government? Is not the implementation of the Constitution? Even if the constitutional government are not to mention, this Constitution can be implemented?

      If Chinese constitution is not easy, so China constitution is more is not easy, because the Constitution does not implement, especially without the judicial application of constitution, will lose the realistic material. "One can't make bricks without straw", China constitution also is a "cook a meal without rice". Many people believe that USA constitution, great, but Bo, Ackerman, sun Stan, famous for having heard it many times, their writings both beautiful and thick, but don't forget, their results are based on practice constitution on rich, a thesis, which books don't a lot of constitutional case? If in the Chinese environment, they also cast not open, do not. Does not exist completely, in the application of constitution constitutional case is not a case,21Century Chinese constitution still do well, to break away from the political slogans and ideological discourse system. In this sense, constitutional scholars are not easy, may wish to self celebration. But whether the present constitutional research to meet the social needs, the times? I think there is still a big gap.

There is no doubt about the constitution of contemporary Chinese social role. No matter how the big eighteen, the main task of the future China reform is to implement the constitution, system reform. The implementation of the constitution is to measure how well the primary standard, China future reform success or failure. If the last thirty years is the keynote of economic reform, the reform in the next thirty years, the first is the political and legal reform, the ruling party must be completed from the revolution to the constitutionalism, from the rule of man to the rule of transformation. In this process, we need to study a lot of practical constitutional issues China society appears, and learn from other countries experience of constitutional government, especially to the developing countries in the process of transition to constitutional government experience and lessons, thus the constitution scholars have a lot of work to do. But the contrast, we have a significant bias in research direction. Here, I mainly talk about three aspects of the problem.

      First of all, the proportion of theoretical research is still too large. In addition to jurisprudence, constitutional law is the most attention in the theory of law school, I haven't seen any disciplines such as constitutional theory and method on this show special preference to. Of course, I'm not saying don't do theoretical research, the basic concepts, basic principles, interpretation method research is clearly needed, but the research for so many years, these problems today is common sense, there is no need so many people especially young people "research" in this area. In particular, theoretical research can not be avoid practical problems excuse -- anyway, constitution can not solve what practical problems, research methods as well to solve the problem of "". This is not. I often put constitutional metaphor for cooking, the basic dilemma Chinese constitution is no food can be fried, so there are so many people to study "menu". But if you want to, a group of people around an empty pan, can create what recipe? This and not swim, swim to study "method" what two? This "method" is again beautiful flower shelf, not water.

      Scholars once behind closed doors, concocted by the "method" has become separated from the social and realistic need fantasy, easy deviation. The political constitution is an example. I have on other occasions for it to severe criticism, will claim it as "qualitative constitution nihilism". Of course, academic freedom, we obviously have no right to flaunt their own right, and I want to acknowledge the political constitution scholars thought is very active, unlike many of the traditional constitutional scholars dull, but I still want to say it the wrong way. I particularly want to advise the young scholars, do not be confused by rumors, do not join in the fun, too strong utilitarian heart do academic cannot. Home is often a "theory" looks very prosperous, many people put time and effort "onlookers", a few minutes, only to find that is only a trap.

I also want to remind young people, the theory and method of the "menu" is for those of us who "retiring play", your main task now is to pick, you don't have to keep "Chinese constitution" the empty pot. You take advantage of young, more action, more practice, more research on specific issues, don't enter road, will act as an elder geography theory, method of long short. I often said to the students, the methodology is common people ponder things, master was the original. Einstein wrote what the theory of relativity "methodology"? No, he created the theory to solve practical problems. Others, others come to learn his "method". In fact, the solution of a problem of "method" can have infinitely many, but people value only actually solved the problem.

      Therefore, research on constitutional law to return to the real problem Chinese constitution. Chinese constitution does not the case, but there was no real problem can be studied, worthy of study, need to study? Youth constitutional scholars have picked the fruit of the Constitution? As we all know, the problem and the material is large, we have more than we take. A major social event every year, every month, every week, and almost every such events and the constitution relationship. Although the official path China constitutionalism has not, but civil constitutional increasingly active, provided a lot of material and the need to address the constitutional study. But in most cases, our constitutional scholars is collective aphasia on these issues. I carefully read three this year the annual meeting proceedings, found that most problems in theory and method still talk with eloquence. Little practical issues dozens of papers, only a discussion in Wukan election, which is obviously the most important election events Chinese. Of course, China current publishing environment is not ideal, some "sensitive" topic not officially published, but many other problems is to talk about. If we evade the crucial point, avoid the real problem China constitution needs to solve, so our research would not be concerned by society. Not that the constitution research must have social impact, but we can't deny, the constitution research must have the social value, of no value will soon be forgotten in the society.

      Finally, comparative constitutional studies have to be further. Get into21Century, researches on the mechanism, horizontal and vertical decentralization mechanism, the relationship between constitutional government and democracy, constitutionalism in developed countries, the constitution has made considerable progress, but the constitutional transition mechanism of the developing countries is almost know nothing at all. India's neighbours, is also the constitutional powers, but the eyes of our India only poverty and bad habits. Thailand's neighbours, but we Thailand "knowledge" is a military coup and the red shirts. In Eastern Europe, Latin America, the country of Africa knows less, and even the "shock" Chinese asserted constitutional democracy transition almost all failed, no constitutional scholars to refute, because we are just like the author with tourist identity glance over things hurriedly in some countries. Professor Han Dayuan is organizing the translation "constitution" of all countries in the world of text, very valuable, but the text translation is just the starting point, far from the end, study instead of specific system cannot. Many developing countries in particular and China, "unspoken rule" prevailed, text may not be able to read too many things. Constitutional practice, which requires us to further in these countries, the actual operation of the constitutional system and meet in the transformation process of the constitutional problem. But in the academic year three this paper focus, only an article about developing the constitution, but is still relatively thin, does not refer to any original documents.

      The constitution is the emergence of a large number of new forces went to study "theory", "method", rather than foreign constitutional problems, and Chinese public opinion environment, evaluation system and national psychology are inseparable. Not only practical problems Chinese constitutional nobody dare to touch, and the system of foreign constitutional also became a thankless task, not only need to spend a lot of time on basis of language, but also hard mining materials from scattered case, and study it often will be "oranges change with their environment", "not Chinese conditions" etc. "knowledge is useless" accusations, and easily flickers a "China" title "theory" can become famous overnight, 1:00, a headline plus a bunch of new nouns can dominate a large group of people. This kind of blind "theory" very safe in politics, generally do not worry about publishing channel, even very high economic benefit. Now when the young doctor doing this is looking for a job after graduation to find work after the worry, and papers, comments the title, buy a house, get married son, survival and competitive pressure rather than the older generation of scholars is much greater, not easy to calm down to study some real questions, short-term fame and wealth are also in the reason. But in any case, it is irresponsible for their. Et al found themselves without a single success into the twilight years again, the external factors that can no longer blame the "Cultural Revolution", waste their time, but we can blame the lazy and do things by irregular ways for their development.

      Because we study was not the key research question, should study the problem but no one study, resulting in a large waste of limited constitution research resources. Countries such as China was facing opposition between the government and the people, now the academic and social are fragmented. We often found, folk concerned about social problems, but often do not have the necessary knowledge base, many people claim in our view of radical, childish even outrageous, true and we are the academic background but not to care about China society. If this state continues, Chinese future constitutional reform cannot have the necessary knowledge accumulation.

      Transformation Chinese faces enormous risks and challenges, but also provides us with a great opportunity. For China future reforms, the constitution should not is the most useful method, and should be the most useful method; the constitution should not be the most useless discipline, and should be the most useful subjects; constitutional experts should not is the most useless jurist, and should be the most useful, the most learned, the greatest jurist. No matter how the scholars of age, level, as long as the right direction and make appropriate efforts, this goal can be achieved. I particularly want to remind young constitutional scholars, don't miss this great opportunity of our times.