First, take the Constitution and laws as the supreme authority.
Taking the Constitution and laws as the highest authority is the first principle of constitutionalism. The essence of this principle is to truly establish the supremacy of constitution and law and safeguard the rule of law. Modern constitutionalism is based on the spirit of the rule of law, so it emphasizes the authority and supremacy of the constitution and laws. Literally speaking, "rule of law" means rule of law. Broadly speaking, the rule of law means that people should abide by the law and accept the rule of the law. However, in constitutional theory, the meaning of rule of law is relatively narrow, which mainly means that the government should be ruled by law and obey it. (2) the rule of law has multiple meanings: first, "it means that all authoritative institutions, legislative, administrative, judicial and other institutions must obey certain principles. These principles are generally considered to express various characteristics of the law, such as the basic principles of justice, moral principles, the concept of fairness and reasonable litigation procedures, which include respect for the highest value and dignity of individuals. " (3) Secondly, it refers to the principle of "ruling the country according to law" in the way of governing the country, "at least it means that the law has full control over society. In this sense, the law is the' regulator' of the whole society, which means its scope; As far as its effectiveness is concerned, in a society ruled by law, only the law is the most authoritative, and all institutions and individuals are bound by the law, that is, no one or group can override the law. " (4) The government must govern in accordance with the Constitution and laws, and all state organs and political parties must carry out their activities in strict accordance with the law, and they cannot have privileges beyond the law or beyond the law. The government's management of all aspects of social life, including economy, politics, culture, education, science, technology, national defense, environment and foreign relations, should be carried out in accordance with the spirit of the rule of law and legal provisions. Violations must be investigated and dealt with according to law. Third, the principle of rule of law not only recognizes the civil and political rights of individuals, but also requires the establishment of social, economic, educational and cultural conditions for the full development of individuality; It is necessary not only to provide legal protection to stop the abuse of administrative power, but also to enable the government to effectively maintain legal order, thus ensuring people's adequate social and economic living conditions; We should not only ensure judicial independence and legal professional freedom, but also strive to achieve judicial justice, fair law enforcement and strict law enforcement.
According to the principle of rule of law, modern countries put the constitution in the highest legal position, and advocate that any other laws, state organs and individuals' actions must conform to the constitution, so as to realize the supreme authority of the constitution and laws, effectively protect human rights, freedom and dignity, and promote people's all-round development; Only by truly establishing the supreme authority of the Constitution and laws can we effectively limit the breeding of unhealthy politics, unhealthy politics, autocracy and corruption and promote the sound development of society. Only by truly establishing the supreme authority of the Constitution and laws can we establish and maintain the proper order of the market economy, safeguard citizens' property rights and continuously improve citizens' living standards and quality of life. In a society where the authority of the Constitution and laws is not respected and the power is greater than the law, even if there is a written constitution and various legal provisions, it is impossible to establish a real constitutional government, and the Constitution and legal provisions will become luxury goods in name only.
Max Weber once divided the types of social governance into three types according to the legitimacy of governance, namely: first, the traditional type. This form of rule firmly believes in the sanctity of order and power that has existed since ancient times, thus being restricted by customs and habits. The purest form of this rule is the patriarchal clan system, which requires the loyalty and obedience of subjects to their masters. Personal loyalty is the standard for arranging positions and promotion according to the hierarchical ladder. Therefore, in this form of rule, the law has no position, and the rule of man has become the basic value criterion. The exercise of power must be based on the degree of habitual obedience and the upper limit of psychological tolerance of the ruled. Second, karis horse type. Karis horses refer to the personality characteristics of some people: they are considered to have supernatural and superhuman strength and quality, so they are regarded as "extremely wise". This special strength and quality is not so much acquired as endowed by nature, God and fate. In this form of rule, the ruler does not rule according to law, but attracts followers by virtue of his superior quality and personality charm, so as to rule effectively. Third, the legal type. Such rules are based on rationality and manage social activities according to law. In this kind of society, the law has the supreme status, because the law represents a universal order that everyone follows, and people obey orders out of respect and compliance with the law. Therefore, no matter who is bound by the law, everyone is equal before the law; Personal obedience to those in power is limited to the boundaries recognized by the legal order. Therefore, a society ruled by law is a rational society ruled by law. China ancient society undoubtedly belongs to the category of traditional society, because it is a society ruled by men based on patriarchal clan system and loyalty. In such a society, the supremacy of imperial power is the highest code of conduct, and the law becomes a "vassal" of imperial power and loses its independent status. The supremacy of law has been replaced by the absolute sacredness of imperial power, so the mainstream legal values in the field of legal rights are "rule by man" or sage politics. Paine once brilliantly demonstrated: "In an autocratic government, King China is the law", while in a free representative system and a country, "the law should be the king, and there should be no other circumstances". "The government of a free country is not a person, but a law." (5)
According to the requirements of the spirit of constitutionalism, the injustice of the rule of law should be reasonable in form and value. The so-called value rationality means that the values embodied in the Constitution and laws should conform to the norms of social justice. Since the bourgeois revolution in modern times, individual rights such as freedom, equality, security and property rights have always been the value goals pursued by people. Therefore, value rationality means that the rule of law must take the above rights as the ultimate protection object. In other words, safeguarding the legitimate rights of citizens is the ultimate pursuit of law. Fuller, one of the representatives of modern neo-naturalism law school, pointed out that human freedom and basic rights are the inherent morality of the rule of law, and the rule of law is to guarantee the realization of human freedom and rights.
Second, based on human rights and human freedom.
If we want to sum up the essence of constitutionalism in one sentence, I think we can express it this way: constitutionalism is an institutional arrangement based on human rights and human freedom. Numerous historical documents and facts prove that constitutionalism has grown up step by step in the struggle for and protection of human rights and human freedom. The Bill of Rights passed by the British Parliament in 1689 begins with a clear statement: "The two houses of Parliament meet in Westminster Palace according to law to enact this law to ensure the traditional rights and freedoms of the British people." (6) 1776 The American Declaration of Independence further wrote: "We hold these truths to be self-evident: all men are created equal, and they are endowed with certain inalienable rights from their creator, including the right to life, liberty and the right to pursue happiness. In order to protect these rights, people set up governments. The legitimate power of the government comes from the consent of the rulers. If any form of government becomes harmful to these purposes, then the people have the right to change it or abolish it in order to establish a new government. This new government must be based on these principles and organize its organs of power in a way that can best promote their safety and happiness in the eyes of the people. " (7) 1789' s French Declaration on Human Rights and Civil Rights clearly points out: "The representatives of the French people who make up the National Assembly believe that ignorance, neglect or contempt of human rights are the only reasons for public misfortune and government corruption", and "the purpose of any political combination is to preserve the natural and unshakable rights of mankind. These rights are freedom, property, security and resistance to oppression. " (8)
Some people may say that the above-mentioned documents are the product of the early bourgeois revolution. Now the times are different and they are not sufficient. In fact, it is since the end of the Second World War in the middle of this century that striving for and safeguarding human rights has become the mainstream of world civilization. 1946 65438+ The Declaration on the Rights and Duties of States adopted by the United Nations General Assembly on February 6 stipulates: "All countries have the obligation to respect the basic freedoms of all people under their jurisdiction, regardless of race, sex, language and religion." (9) 1948 The Universal Declaration of Human Rights adopted by the United Nations General Assembly in February clearly pointed out: "The arrival of a world in which everyone enjoys freedom of speech and belief and is free from fear and want has been declared as the highest aspiration of ordinary people." "Everyone has the right to life, freedom and personal security." (10) 1977 The resolution on the new concept of human rights adopted by the United Nations General Assembly once again pointed out: "It is recognized that the United Nations and all its Member States have the responsibility to carry out international cooperation to solve international problems of an economic, social, cultural or humanitarian nature, and to promote and encourage respect for human rights and fundamental freedoms of all mankind, regardless of race, sex or humanitarian nature. (1 1) From the above quotations, we can clearly see that respecting and defending human rights and human freedom is the highest value of all mankind and the most basic and core connotation of constitutionalism. As Albert J. Rosenthal pointed out: "From the perspective of any constitutional value, individual rights are particularly important, and this book also emphasizes the protection of human rights that are considered necessary for civilized society. These rights include: autonomy; Freedom of speech and belief; Fair procedures in civil cases, especially criminal cases. " (12) According to the theory of constitutional democracy, (public * * *) power comes from the social contract concluded by citizens to safeguard and promote their rights; Therefore, the basic function of public power (in modern society, mainly the power of the state and the government) can also be said to be the only function, that is, to safeguard and promote citizens' rights by providing public services and public products. "Respecting people's subjectivity and individuality and taking people's rights as the starting point and destination are the essence of modern constitution." ( 13)
Since the 20th century, the concept and theory of human rights have been greatly developed, and the content of human rights is broader, including not only the right to life, freedom (including freedom of thought, speech, religion, association, personal freedom and migration), but also democratic rights, rights related to the rule of law and judicial administration, and social, economic and cultural rights. This article particularly emphasizes the importance of property (also known as "property rights"). Because property right is the foundation of modern market economy and civil society, and it is also the foundation of human freedom and public order; Therefore, it can be said that property right is the cornerstone of building a modern civilized building. "Property is the basic element of freedom, and it is also essential for the self-expression of people who exist as morality. In this sense, it is an inalienable' natural' right, and it is sacred in political philosophy from Locke to Nozick. " (14) If people are deprived of property rights, people's freedom actually loses its support and they have to rely on others or some kind of power relationship; If people are deprived of the property accumulated through labor and creation, then people's labor enthusiasm and creativity will cease to exist. Therefore, "the importance of protecting property rights is self-evident. The clearer the definition of property rights, the clearer the responsibilities and rights of all actors in the market, the more they can be protected by law, the more stable people's expectations of the behaviors of all actors in the economy, the more orderly the market operation, the less cheating and irresponsible things, the lower the transaction cost and the higher the economic efficiency. " Therefore, protecting property rights should be the primary function of the government. (15) The deprivation or infringement of property rights is the deprivation or infringement of human freedom, and it is the most immoral, inhuman and harmful social harm.
The most fundamental principle of constitutionalism is to take human rights and human freedom as the standard, human rights as the starting point and destination, and people as the purpose. Therefore, it is incompatible with any form of absolutism, authoritarianism and fascism. It can't talk about ignoring and trampling on human rights and depriving people of their property and freedom in any form. Whether it is based on human rights and human freedom is the touchstone to distinguish between true and false constitutionalism.
Third, paying attention to power is restricted by the Constitution and the legal system.
Constitutionalism, based on the basic position of protecting human rights and human freedom, is highly vigilant about the direction of political power, especially the direction of the government in which the central government holds political power. In order to prevent and stop the abuse of power to damage rights, another basic principle of constitutionalism is to pay attention to the restriction of power by the constitution and legal system. "The main restriction of the Constitution on today's government is that the government must respect individual rights. At present, constitutionalism has actually become synonymous with protecting individual rights, and protecting individual rights has become the most important part of our constitutional science. " (16) Sun Yat-sen put it more succinctly: "The Constitution is the constitutional law of the country, that is, the protection of people's rights". The history of world constitutionalism tells people that constitutionalism is a power-controlling regime and a free regime; The constitution is not only a right, but also a law that controls the government. Classical "constitutionalism is a limited government" is a liberal constitutional view. (17) During the reign of Henry III in England, Justice Blackton famously said that "law is a constraint on rights". (18) Why should power be restricted or restricted? Because power can achieve good deeds and bring welfare and gospel to people; It can also create bad politics and bring harm and disaster to people. Uncontrolled power will inevitably lead to corruption, and absolute power will inevitably lead to absolute corruption. Such examples abound in human history. For centuries, the inquisition in medieval Europe persecuted some thinkers, scientists and religious reformers (such as Bruno and Galileo) in the name of suppressing "heresy" or "heresy suspects". According to statistics, during the period of 1483- 1820, the inquisition in Spain persecuted more than 300,000 people, among whom as many as 654.38+10,000 people were burned at the stake. During the fascist dictatorship of Germany, Italy and Japan, the most devastating war in human history, World War II, was flagrantly launched, causing tens of millions of lives to suffer. China's "Cultural Revolution" lasted for more than ten years, and the national economy was on the verge of collapse from the president to the common people. The harsh facts have taught people: when dealing with power, there should be no naive fantasy and laissez-faire arrogance; We must make great efforts to establish an institutional arrangement that can effectively restrict power and establish a solid barrier to prevent power abuse, power corruption and power infringement on citizens' rights. This kind of institutional arrangement and barrier is the proposition of constitutionalism, which restricts power by constitution and legal system and politics by constitutionalism.
Without the rule of law, are there other ways to prevent bad government and tyranny? For example, Plato in ancient Greece suggested that wise philosophers should take power, lead the country and realize the ideal regime; For example, in the 1920s, Hu Shi and others proposed to establish a "good government" to supervise corruption and abuse power for personal gain (Hu Shi actually advocated constitutionalism). We don't deny the good motives and feelings for helping the world. However, countless historical facts tell us that it is impossible to guarantee political clarity and social justice only by relying on the wisdom and moral self-discipline of rulers. The non-constitutional method is either "people exist in politics and people die in politics"; Either "the good start is numerous, and the weak end is few"; Either "benevolent government is in its name, tyranny is in reality"; In short, it is unreliable and a utopian dream. The experience of civilized society shows that only under the institutional framework of constitutional democracy, the authority of the constitution and legal system is established in the whole society, the rule of law is implemented, the use of power is clearly regulated, and those who hold power are supervised and restricted in an institutionalized and legal way, so as to effectively prevent the alienation of power and effectively protect human rights and human freedom.
One of the theoretical sources of constitutionalism is the presupposition of human nature: human nature is imperfect and tends to be selfish and abuse power. The founders of the American Constitution wrote in their famous book "Federalist Collection": "If everyone is an angel, there is no need for any government. If angels rule the people, there is no need to have any external or internal control over the government. ..... There is no doubt that relying on the people is the main control over the government; But experience tells people that there must be auxiliary preventive measures. " (19) Therefore, constitutionalism warns people not to blindly trust politicians, but to make them obey the Constitution and citizens' constitutional rights, so as to reduce political risks. Constitutionalism is a public rule and system based on the understanding of human weakness and limiting and containing political power through legal political procedures. Therefore, all citizens must understand that the power of the government (including the legislature, the executive and the judiciary) is limited (that is, "limited government"), and the power of the government is limited to the scope clearly given by the Constitution and laws. Without the power clearly stipulated by the Constitution and laws, the government can never exercise it. Otherwise, it is ultra vires, illegal and unconstitutional.
A set of power control methods closely related to restricting the government and limited government according to law is decentralization and checks and balances (some people call it "the two major operating principles of constitutionalism" (20). The idea of separation of powers and checks and balances can be traced back to ancient Greece and Rome. Aristotle first proposed in his book [Politics] that the functions of national government should be divided into deliberative functions, administrative functions and judicial functions. (2 1) 17,18th century, as a theoretical weapon of bourgeois revolution, the thought of separation of powers and checks and balances was developed by Locke, Montesquieu and others into the theory of separation of powers and checks and balances. Montesquieu affirmed the independent position of judicial power in the state power system for the first time while affirming the legislative power and administrative power in order to provide the French bourgeois revolution with a political program and a regime structure design scheme. (23) With the victory of the bourgeois revolution, the constitutions of various capitalist countries have established the principle of separation of powers and restriction of powers in different forms. Although since the 1930s, in the presidential system represented by the United States and China, the administrative power has been expanding, which has challenged the theory of separation of powers and checks and balances. However, the principle of separation of powers and checks and balances is still widely believed and followed in modern constitutional democratic countries and plays an irreplaceable and effective function. In short, in order to prevent excessive concentration and abuse of power, it is necessary to use the constitution and legal system to dominate and restrain power and maintain a dynamic balance of legal rights conducive to the benign development of social ecology.
Fourth, judicial review is the guarantee.
Although this principle is closely related to the third principle mentioned above, it is of special significance because of its particularly important role and position in safeguarding the Constitution. Louis Henkin, a contemporary American constitutionalist, pointed out: "With the passage of time, judicial review has become an established feature of the constitutional system." (24) Soli J. Sorabjee, a senior lawyer of the Supreme Court of India, said: "If there is no independent judiciary with judicial review power, which can approach and enforce these rights, then the protection of basic rights, including the right to equality, is just a bunch of empty rhetoric." (25) Judicial review, also known as unconstitutional review, refers to the authoritative review of the constitutionality of all legal documents and actions of the government, mass organizations and individual citizens by specialized judicial organs (such as the Constitutional Court, the Supreme Court and the Constitutional Council). Its basic content has two aspects: one is to examine the constitutionality of laws and legal documents. Because the constitution is the fundamental law of the country, one of the characteristics of constitutional norms is its principle. It often needs to be concretized through common law. If the common law deviates from the principle spirit of the constitution and makes it legally effective, it will damage the authority of the constitution and hinder its implementation. Therefore, examining whether laws and legal documents conform to the Constitution has become an important part of judicial review. Second, examine whether the actions of all citizens, all state organs, social organizations, enterprises, institutions and political parties are constitutional. Another feature of the constitutional norm is that it has the highest legal effect and is the basic code of conduct for all citizens and all social organizations. In a constitutional country, any deviation from this principle, whether from individuals, governments or social organizations, will damage the authority of the Constitution and hinder its implementation. Therefore, it is also an important content of judicial review to review the constitutionality of all citizens, all state organs and social organizations.
From the point of view of state coercion, it is easy to understand that the constitution can and must be applied by an appropriate institution. Just as laws must be implemented by state organs-courts, the Constitution, as a law, must also be implemented by appropriate organs. Appropriate state organs use the Constitution to review legislative and administrative activities, and judge the constitutionality according to certain procedures. This is the application process of the Constitution, and its purpose is to supervise the effective implementation of the Constitution. Therefore, the constitutional application system is essentially a judicial review system. The so-called "appropriate state organs" here means that the organs applying the Constitution must be relatively independent in legal status, and the rulings made must be fair and effective, that is, they should be of a judicial nature. Whether the constitution is applied by a relatively independent and impartial state organ is the main criterion to measure whether the constitution is legal (whether it is the highest law). From the practice of various constitutional countries, typical countries, such as the United States, adopt the mode of ordinary courts to adjudicate constitutional disputes. According to incomplete statistics, more than 60 countries in 140 adopted this model. The model of the constitutional court, represented by Germany and Austria, which specializes in supervising the implementation of the constitution, has been paid more and more attention and promoted. More than 40 countries in the world have set up constitutional courts to supervise the implementation of the constitution and perform the function of unconstitutional review. The model of Constitutional Council founded in France is also quite distinctive, and it also effectively performs the function of unconstitutional review. No matter how different these models are, they all have one thing in common, that is, the constitution, as a law, is applied by judicial organs in countries that really implement constitutionalism. Why is it that an independent state organ with judicial nature supervises the implementation of the Constitution and performs the function of unconstitutional review, instead of the legislature or administrative law enforcement organs performing the same function? On the surface, this is the result of a historical choice. In essence, it has profound internal rationality and legitimacy. If the legislature or its subordinate institutions undertake the function of unconstitutional review, it will become their own supervision, which has no effect in fact and will inevitably make the supreme authority of the Constitution disappear. It can be seen that the unconstitutional review can only be undertaken by the judicial organs; In other words, the unconstitutional review can only take judicial review. By the same token, only by establishing the principle of judicial review as a guarantee, and according to the requirements of this principle, establishing an unconstitutional review institution and procedure suitable for the actual situation of the country, and carrying out active and fruitful work to protect the constitution, can we truly realize constitutionalism, ensure the supreme authority of the constitution, and effectively protect human rights and human freedoms.
After discussing the basic principles of constitutionalism, the author would like to supplement the complementary relationship between constitutionalism and democracy and between * * * *. Constitutionalism and democracy, and * * * and peace, have many overlapping points. For example, the three generally recognize that sovereignty belongs to the people and is people-oriented; It is generally believed that natural human rights should be respected and protected; Generally speaking, it is in favor of establishing and maintaining social justice order and procedural politics. However, there are still significant differences. Constitutionalism mainly emphasizes the rule of law and political constraints; The basic meaning of democracy is people rule or majority rule; * * * and means "peaceful participation in public affairs is the highest form of human activities", (26) "and respect for representative system and responsible government". (27) Therefore, a complementary relationship should be established among constitutionalism, democracy, harmony and harmony. The ideal regime should be equal to constitutionalism+democracy+* *, that is, "the sum of constitutionalism and democracy * * *". (Liu Junning's monograph "Harmony, Democracy and Constitutionalism" gives a detailed explanation of their respective meanings and interrelationships. I won't go into details about this article. Under the constitutional democratic political system, all people enjoy the equality and freedom guaranteed by law, and all have the same right to pursue their own survival interests. Constitutionalism, democracy, * * * and the new regime formed by the integration of the three allow all citizens to grasp the possibility of improving their living conditions to the maximum extent through the institutional arrangement of equal opportunities, realize the social ideal of "making the best use of people, making the best use of land, making the best use of things, and making things flow smoothly" put forward by Dr. Sun Yat-sen in his early years, and (29) bring prosperity to the whole society.
Finally, the author also wants to respond to the narrow criticism of learning, drawing lessons from and absorbing foreign civilizations, especially western civilizations. Because as we all know, constitutionalism, democracy, * * and harmony are all products of western civilization; If we think that China has not existed since ancient times, we will judge that it is not suitable for China's national conditions and reject it, then China's modernization, especially political democratization and market economy, will be out of the question. In fact, human rights, freedom, equality, fraternity, for the people, by the people, for the people, computers, the information society, the Internet and so on are all products of western civilization. Can't they be enjoyed by all mankind? Or an Indian jurist said, "Noble thoughts come from all directions!" It is with this spirit of Vedic prayer that the framers of the Indian Constitution seek the guidance of the constitutions of all countries in the world. (30) China is striving to become a modern and civilized country, especially needing the pragmatic spirit of "takenism" advocated by Lu Xun. If there is no broad mind and tolerance, it is doomed to fail to achieve any brilliant career.