Development process
The emergence of the concept
The term "constitution" comes from the Latin constitution, which means organization and establishment.
The ancient Roman Empire used it to express the emperor’s "decree" and "decree" to distinguish it from the legal documents passed by the citizens' meeting.
It is used in the European "feudal" era to express the confirmation of the basic principles of the national system in daily legislation, and contains the meaning of organic law.
Britain established a representative system in the Middle Ages (of course, this situation did not exist in the pre-Qin period of China), which established that the king was not allowed to levy taxes and make other legislation without the consent of the parliament (representative agency) in principle. Later, the representative system was popularized in European and American countries, and people called the law that stipulates the representative system the constitution, which refers to the law that confirms the constitutional government.
The terms "constitution", "constitutional decrees", and "constitution" are synonymous with "law" in ancient Chinese classics. Ancient Japanese "constitution" also refers to laws and regulations, and they are all synonymous with modern "constitutions." The term has different meanings.
During the Meiji Restoration in the 1860s, with the introduction of the Western concept of constitutional politics, Japan had a concept equivalent to that of Europe and the United States.
Early Forms
In 1898, during the Reform Movement of 1898, the Reformers led by Kang You asked the Qing court to formulate a constitution and implement a Japanese-style constitutional monarchy.
In 1908, the Qing government of China promulgated the "Outline of the King's Constitution" based on the 1889 "Imperial Constitution of Japan". Since then, the term "constitution" has become a special term for the country's fundamental law in China.
The earliest constitution in the world is the unwritten constitution of the United Kingdom.
It was the product of mutual compromise in the mid-17th century when the bourgeoisie and the feudal aristocracy competed for power. Pass a series of constitutional laws that gradually restrict royal power and expand the political power of the bourgeoisie, such as the Bill of Rights, Habeas corpus, the Law on Succession to the Throne, and the Congress Law. These constitutional laws are combined with political conventions and judicial precedents. The British Constitution was established, and the British constitutional monarchy and parliamentary cabinet system were established.
After the United States won the war of independence against British colonial rule, in 1776, the Constitutional Convention attended by the representatives of the states drafted the "Confederation Regulations", which became effective in March 1781 after being approved by the states. The United States was also the world's first written constitution, which ushered in an era of written constitutions. The "U.S. Constitution" adopted in September 1787 came into effect in April 1789. This constitution established the federal system of the United States of America and the presidential system with the separation of powers as the core. In 1791, France formulated the first constitution of the European continent, taking the "Declaration of Human Rights and Citizenship" born in the French Revolution in 1789 as the preamble of the constitution, and established the First French Republic on the basis of this constitution.
The United Kingdom is the world’s earliest constitutional country, but the British Constitution did not formulate a unified and complete statutory code. composition.
The U.S. Constitution is the first written constitution of a capitalist country. It is based on the Declaration of Independence and Federal Regulations passed after the victory of the American War of Independence in 1776. It was presented at the Philadelphia Constitutional Convention in 1787. It has had a great influence in the constitution of capitalist countries.
China’s first constitutional document was the "Outline of the King’s Constitution" promulgated by the Qing government in 1908. It was formulated by the Constitutional Editors in reference to the 1889 "Imperial Constitution of Japan." "" and "Subjects' rights and obligations" are composed of two parts.
Three stages
From the perspective of traditional state studies, the development of the constitution can be divided into three stages:
Police state period
< p>There is no real distinction between the state and society. The relationship between the ruler as the representative of the state and the society that represents the people’s living environment is like a parent. The ruler has the supreme power and the state can be the people. The constitution that regulates the above matters is It is the "inherent constitution".The period of a free country ruled by law
Due to the enlightenment of ideas and the rise of the middle class, the state and society are gradually separated. The thinking in this period believes that society exists before the state. And it is formed spontaneously based on the autonomy of private law (that is, the principle of freedom of contract). The state is created to perfect the operation of society. Therefore, the government's intervention in society is as small as possible. Through the establishment of natural human rights, parliamentary system, and judicial system, The state indirectly makes society operate smoothly, and the rights of the people are protected by the constitution through indirect means, so it is also called the "formal rule of law." During this period, administrative law began to appear, and concepts such as administration by law, legal reservation, and special power relations gradually emerged.
The period of social rule of law
In view of the narrow scope of national tasks in the previous period, under the premise of private law autonomy and freedom of contract, economically powerful associations or consortia caused market monopoly. People’s rights have been violated too much, so I believe that the relationship between the state and society is not completely overlapped, nor is it a completely separate duality, but should be moderately mixed. The state forms a social order while at the same time providing the lowest protection for the people’s rights, emphasizing The basic rights of the people can be directly protected by the constitution, and the constitution should be added to the basic national policy to guarantee the people's welfare with the principle of complementarity. During this period, not only the country, but also the general people in society must also abide by the constitution's guarantees for fundamental rights, but with the passage of time, the possibility of the country's amendment to the constitution has increased.
Classification
In the past two hundred years, since the establishment of the U.S. Constitution, the total number of constitutions that have existed and currently exists in the world is very considerable. The historical background and content of each constitution are different and each has its own merits. It is impossible and unnecessary to study such a large number of constitutional documents one by one. And if some commonalities are extracted from these constitutions and a certain standard is formed, a roughly accurate judgment can be made about a constitutional document that we are not familiar with, and whether the political system of the country that made this constitution belongs to it. Which type makes a roughly fair evaluation. Furthermore, we can also judge in the academic sense which type of constitution is more superior, better reflects the requirements of the times or its own national conditions, and is more conducive to implementation. This is the purpose of constitutional classification. To put it in detail, the so-called classification of constitutions is to establish a certain standard academically, to classify the objectively existing constitutions, and simplify them into a few types, so as to merge similar constitutions with certain common characteristics. Research and explore their peculiar laws.
The classification of the constitution is a typical theoretical fiction, mainly for academic convenience. It cannot really affect the implementation of a country’s constitution, that is, the classification can neither make a country’s constitutional government more effective, but also It is not possible to make an undemocratic country more democratic or a democratic country to become undemocratic. Therefore, the constitutional classification is also the formal classification of the constitution. It is precisely because the classification of the constitution has nothing to do with democracy and constitutionalism, and because the standards set by scholars are different, the classification methods are also different. It can even be said that the number of classification methods and standards is almost comparable to the number of constitutional documents.
Tradition
Traditional constitutional classification refers to the classification of constitutions made by early constitutional scholars. Some of these methods even appeared in Aristotle in ancient Greece.
(1) Written constitution and unwritten constitution. Classification based on whether the constitution has a uniform code form. This classification of laws existed as early as in ancient Rome. The former refers to the codified constitution, and the latter refers to the illegally codified constitution, which is mainly composed of separate laws and customs. Since the unwritten constitution is a "natural growth" constitution, which also contains written legal documents, some jurists believe that the difference between a written and an unwritten constitution is unscientific, and this classification is precisely classified as "codified constitution" and " Illegal codification of the constitution". The written constitution is exemplified by the American constitution, and the unwritten constitution is exemplified by the British constitution. The British Constitution is mainly composed of four parts: various historical documents, such as Magna Carta, Bill of Rights, etc.; parliamentary legislation containing constitutional content; constitutional precedents and constitutional conventions or customs. The constitutional conventions are summarized by the authoritative jurists of the past dynasties in Britain, such as W. Blackstone, W. Bagehot, A.V. Dicey and SirI. Jennings. of.
(2) Rigid Constitution and Flexible Constitution. This is a classification based on the validity of the constitution and the simplified and traditional revision procedures. The typical ones are still the American Constitution and the British Constitution. Any constitution with the highest effectiveness and stricter and more complicated amendment procedures is called a rigid constitution; any constitution that has the same effectiveness as ordinary laws, the latter law is superior to the former law, and the amendment procedures are the same as ordinary laws, is called a flexible constitution. This is the British scholar Jarnes Bryce's classification of the constitution. He believes that the British constitution is superior to the American constitution because the British constitution is "soft as water" and can adapt to changes in various times and situations. Of course, in fact, the significance of this classification is no longer significant, because the US Constitution has become softer due to precedents, and the British Constitution has become more rigid due to traditional constraints.
(3) The imperial constitution, the agreement constitution and the civil constitution. This is a classification based on the differences in the formulation agency. There were many imperial constitutions in Europe in the 19th century, such as the French Charter of 1814 promulgated by Louis XVIII, the Prussian Constitution of 1851, and the Constitution of the Empire of Japan promulgated by Emperor Meiji of Japan in 1889. They were all formulated in accordance with the will of the monarch. Or formulated by the monarch, they are all in order to maintain the tyranny or centralized rule of the monarch. The agreement constitution is a constitution produced by the compromise between the monarch and the people (parliament), reflecting the will and interests of both parties. For example, in 1830, the French "July Dynasty" Duke of Orléans (Louis Philip) ruled the charter, the purpose is to prevent The people of Paris seized power. Any constitution passed by the national representative organs, constitution-making organs, or by a "referendum" is called a civil constitution. The constitution of the People's Republic of China is the constitutional form of most countries in the modern world and reflects the will of the people. It belongs to the American constitution and the current French constitution.
The traditional constitutional classification method explains the commonalities and differences of various constitutions formally or from a certain side. Therefore, this method still has a certain academic value, and it has been studied by historical constitutional works. accept.
Modern
After the emergence of the proletarian constitution in the 20th century, Marxist constitutional scholars classified the constitution as a socialist type according to the type of country and the class nature of the constitution. Constitutions and capitalist-type constitutions are two major categories. This classification method reveals the essential attributes of the constitution and is therefore a scientific classification method.
Other scholars admit that the constitution should be divided into a capitalist constitution and a socialist constitution, but the capitalist constitution can also be specifically divided into: a society with mature capitalism and a top-down civil revolution The resulting constitution (the constitutions of Britain, France, the United States, etc.); the constitution produced by a society where capitalism was developed late and the civil revolution was also late (the German Constitution); the constitution produced by a society where capitalism was developed but the civil revolution was not successful The constitution of Japan (Japan); the constitution (the constitution of most third world countries) produced by a society where capitalism is underdeveloped and civil revolution does not exist. They believe that socialist constitutions can also be specifically divided into: constitutions of countries where capitalism has developed in history but socialized due to external forces (the constitutions of Eastern European countries such as Poland); capitalism has developed poorly in history, but there are The constitution (Soviet Constitution) produced by the socialist revolution of the main body of the country; the constitution of the country that successfully carried out the socialist revolution from the semi-colonial and semi-feudal society (the constitution of the socialist countries in Asia), etc.
Lenin once said: "When the law is out of touch with reality, the constitution is false; when they are consistent, the constitution is not false." (The Complete Works of Lenin, Vol. 15, No. Page 309) According to Lenin's view, some Marxist constitutional scholars divide the constitution into a fictitious constitution and a non-fiction constitution. However, whether the constitutional provisions are out of touch with reality or not, the actual situation is very complicated and requires specific analysis. Therefore, this classification method has not been widely adopted by constitutional scholars.
After World War II, as a result of the national independence movement and the socialist movement in Asia, Africa and Latin America, a large number of newly established countries and new socialist countries appeared, and they formulated their own constitutions. It has opened up a broad world for constitutional taxonomy. Scholars from various countries have put forward their own propositions and standards. There are many kinds of them. The purpose is to better understand constitutional phenomena and at the same time prove that a certain classification is more reasonable. The more famous one is Carl Lowenstein. In his 1969 thesis "Constitutions and Constitutional Laws of Eastern and Western Countries", he proposed the "ontological classification" to analyze the contemporary constitutions of various countries from the perspective of political sociology. It is believed that there are three types of modern constitutions: (1) Regulating constitutions, and that the constitutions of most Western countries are formulated as effective laws for organizing states and regulating power operation mechanisms; (2) Nominal constitutions refer to the newly independent countries of Asia, Africa, Latin America There is no constitutional experience, so “constitutional products” are imported from Europe and the United States, but in fact these constitutions lack the spiritual essence of Western constitutions; (3) Semantic constitutions mainly refer to the constitutions of the former Soviet Union and Eastern European countries. On the surface, it only uses the Constitution as a propaganda tool to hold power. These views of his have certain truths, but they are obviously the product of the "Cold War", thus detrimental to their objectiveness and fairness.
In addition, Eastern and Western scholars including Lowenstein, such as Whirl, Wolf-Phillips, Kovacs, etc., have also proposed many other classification standards, mainly : (1) Created constitution and derived constitution, also known as original constitution and passed constitution, the former reflects the reality of the formation of national will and political power, and is the legalization of the political process. Only a few countries such as the United Kingdom, the United States, France, etc. This is the constitution, while the latter is a constitution based on the principles of the former, and most countries’ constitutions fall into this category; (2) Natural constitutions and foreign constitutions. Either the result of external coercion, or the result of imitating others; (3) In the constitution and potential constitution, the classification is based on the existence and degree of important political actions or organizations recorded in the constitution, such as political party issues in the West. National constitutions are usually latent provisions, but are explicitly provided in the constitutions of socialist countries; (4) Ideological programmatic constitutions and ideological neutral-pragmatic constitutions are also simply expressed as programmatic constitutions and confirmatory constitutions. The former mainly refers to the constitutions of socialist countries represented by the former Soviet Union’s 1936 constitution (a program of action for the people of capitalist countries) and the 1977 constitution (a program of development for their own country), and the latter refers to the Western “liberal democracy”. Constitution"; (5) Competitive and unified constitutions, the former is the former, and most third-world countries and socialism: the national constitution is the latter.