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Contemporary Comparative Constitution of the fundamental problems


The concept of comparative constitutional law Comparative Constitution and the constitutional system is accompanied by the development of constitutional culture gradually mature an independent discipline. With the development of comparative law, comparative constitutional law as an independent legal subjects and to gradually recognize the unique social function of the human civilization and constitutional development. As the practice of early human activity, people did not strictly distinguish the phenomenon of constitutional and political phenomenon, both showing a mixed state. And course of development, the earlier comparative constitutional law and comparative politics in the content, methods and basic value orientation has been no substantive limits established, the Constitution is a combination of thinking and political thinking as a whole. After the 20th century, with the state and society, the relationship between state and citizens of adjustment and development, comparative constitutional law as a constitutional system of the commonality of different specificity of the law and an independent academic scholars began to receive attention. Comparative Constitutional Studies (comparative constitutional law, vergleichennde Verfassungswis-senschaft) concept in a different cultural background and the words under the Constitution the content and presentation of different ways. Even in uniform, \As the history of the constitution of cultural development and the environment different, the concept of comparative constitutional law scholars have their own understanding and expression is different. In Western countries, mainly from the Constitution and scholars of social, constitutional and cultural point of view of the concept of comparative constitutional law. In the early 20th century, German scholar C. Bona Ge that comparative constitutional law is more specific each time, space and cultural community of a particular country, to seek implementation of these countries there be a common feature of the constitution and the nature of a difference discipline. [1] leaf Ring Neck that, comparative constitutional law is a state of general or specific group of countries, especially for specific age to compare the system of specific countries, the concept of forms for various systems, and to illustrate the subjects. Haqi Ke believes that the Comparative Constitution is given by comparing the real Constitution of States, to explore the history of the concept of national legal systems and to analyze the universal value of a discipline. H.哈尔夫雷滋 that comparative constitutional law is a science to understand and compare the cultural development of countries with similar levels of the concept of law or legal system, and to seek common theory of the subject. By the 20th century, 30 years, the concept of comparative constitutional law to understand the changes occurred in the corresponding stressed Comparative Constitution Constitution in seeking the meaning of the common value. If BM Gert Weizi that comparative constitutional law is a comparative study by the same political, ethnic or economic conditions affecting the same time some of the national constitutional form of learning. Cultural exchanges with the Constitution and Development,[link widoczny dla zalogowanych], created in the West began to be transplanted Comparative Constitution to some non-Western countries, and the formation of certain cultural characteristics that reflect the constitutional concept of the Constitution. Comparison in Asia as the first study of the Japanese Constitution, comparative constitutional law scholars discussed the concept, forming a representative comparison of the Constitution defined. Comparative constitutional law scholars such as Professor West, repair, comparative constitutional law is a comparative analysis of the typology of the ways the phenomenon of national constitutions constitutional branch of science. Professor Yoichi barrels, \2, but there are also argue that the Asian Xianfa, Comparative Constitution is the Constitution in order to obtain for research (constitutional philosophy, constitutional Sociology, Constitutional Interpretation) and obtain more information on Constitution [2] subject areas. In China, before 1949, despite the comparative constitutional law scholars have done a lot of research, but there is no unified definition of comparative constitutional law. After the founding of new China, Comparative Constitutional Studies had long stopped state until 80 years after the Constitution began to learn about some of the definitions compared. Definition of representative: Professor He Huahui that the Constitution is to study the Constitutions, laws of nature and the development of science; and comparative constitutional law is better from the perspective of comparative constitutional control the production, and the development law of nature and understanding of science. [3] Professor Shen Zongling that comparative constitutional law, or Comparative Constitution, is a department of comparative law, that the Constitution as the fundamental law of national legal systems or the primary sector in the method of comparative study of bilateral or multilateral. [4] The above presentation of the concept of Comparative Constitution reflects the comparative constitutional law scholars on the nature, function and basic understanding of trends. Although the expression of different, but reflects a basic understanding of comparative constitutional law that the Constitution was to investigate the phenomenon of different generality and individuality of a knowledge system. The author believes that Comparative Constitution is a way to compare, during different time periods, the phenomenon of different national constitutions and internal rules for constitutional development of knowledge. As can be seen from the definition, the concept of Comparative Constitution has the following characteristics: First, a comparative method of constitutional issues; second study Comparative Constitution is the Constitution of the different phenomena; third objective is to seek Comparative Constitution Constitutional Development law; Fourth Comparative Constitution is a knowledge system with open, form an independent body of knowledge. Comparative Constitution in order to further understand the characteristics, needs analysis and comparison with other nearby Constitution differences and similarities between the disciplines. Comparative Constitution and comparative politics both in the basic value orientation and research methods, there are some similarities, but are different knowledge systems. Comparative Politics is mainly to study the political systems of knowledge, focusing on the comparison operation of political power; and Comparative Constitution focused on the constitutional norms and comparative constitutional theory, in addition to the comparison of political power, but also comparative economic systems, cultural systems , the relationship between state and citizen. Of course, this difference does not affect the knowledge and methods between the two disciplines on the concept of mutual communication and the need for borrowing. Comparative Constitutional Studies and Comparative Comparative Constitution of Government, including government functions in the comparative study, but it mainly functions as the government part of the Constitution to study the phenomenon, is a comparison of the constitutional system; comparative government study is mainly the comparison of national form of government, greater use of administrative law and administrative science research methods. Comparative Constitutional Studies and Comparative Law Comparative Constitution as a complete system of knowledge is different from the Comparative Law system. From the general sense, comparative constitutional law is the scope of comparative law, following the principle of comparative law and principles. Some scholars believe that, comparative constitutional law is a department of comparative law, but some scholars believe, comparative constitutional law is the Constitution of a discipline, does not belong to the scope of Comparative Law. The reasons are: A Comparative Study of Constitution should have their own specific objects and specific methods, not simply using the general method of comparative law. Comparative Constitutional Studies and Comparative Study of Administrative Law from the content and methods of view, the difference between the two is obvious. The main comparison administrative law administrative power in the operation of different countries, and to seek development of the internal law of the executive power. The comparative study of the Constitution, including all executive power, including the nature of state power, the operation of the process and results. Comparative Constitution and the Constitutional system As mentioned earlier, constitutional law is a huge body of knowledge, it is with the Constitutional System between different disciplines within the existing links between theory, such as the sociology of comparative constitutional law and the Constitution, the Constitutional Policy, Constitutional Interpretation and Constitutional history exists between disciplines, such as the common field of study, research results can be absorbed with each other . However, in specific research ideas and methods on the business performance of the opposite sex. The mutual knowledge and research methods are borrowed under certain conditions, the need for different areas and research methods. The relationship between the two first issues to be considered is the establishment of Constitution Constitution to compare research results, based on the theory and application of constitutional law Constitutional Theory of basic categories and are the establishment and development of knowledge and Comparative Constitution approach as a necessary condition. Nature of Comparative Constitution from the general sense, the comparative constitutional law is different in different cultural contexts Constitution Constitution of the phenomenon are analyzed to find similarities and differences and to value and evaluate the facts and methods of a discipline . In order to establish the system of comparative constitutional theory, we need to establish a reasonable system of Comparative Constitution nature, and nature of the subject based on further analysis of the subject areas of study with the object. Comparative Study of the Constitution by the extensive and dynamic content, it is the scope of comparative constitutional law, constitutional law itself is not recognized or defined and consistent view and understanding. [5] in understanding the nature of Comparative Constitution Constitution first of all need to analyze the normative and the empirical relationship, and value determined based on the fact that the nature of comparative constitutional law. Constitution is a normative value of the expression, that constitution should explore what is described by the Constitution and the interpretation of the phenomenon of activity, reveals an ideal world and the value of the constitutional structure. Constitution is the Constitution of the existence of empirical evaluation and description of the facts, to analyze the real-life problems that exist in the real state of the Constitution. Constitution should be between the normative and empirical balance to a comprehensive theory of value and the fact that the constitutional interpretation of the phenomenon in different countries. Constitution in maintaining a reasonable empirical and normative premise of tension, Constitution within the system in different forms in different disciplines to function. Such as constitutional philosophy, constitutional theory and other disciplines focused on the original Constitution normative research and analysis, sociology of the constitution, the Constitutional Policy, Constitutional Interpretation Constitutional and other disciplines focused on the interpretation and analysis of empirical values. Of course, different disciplines have different research questions even though the focus, but were to some extent reflects the empirical and normative value of the basic requirements. Comparative Constitution Constitution system as a branch of empirical and normative in the expression has its own characteristics. When people analyze the phenomenon of the Constitution, the first depends on the method of comparison and comparative analysis of various constitutional Constitution provides comparison of the phenomenon of research methods. Comparative Constitutional Discipline is not only independent of the particularity of specific rules of discipline, but also provide system and specific comparison method to help people on the understanding and analysis of constitutional issues. The normative and the empirical relationship,[link widoczny dla zalogowanych], the comparative constitutional law is more focused on the provision of experiential knowledge, the concept of the Constitution for people to experience the life of the Constitution to provide useful ideas and analysis. An open and empirical comparison of knowledge-based Constitution is the Constitution and the sound system, the main source of updates and inner power. In addition, comparative constitutional law is the Constitution and the exchange with other disciplines and forms the main way of communication. The nature of comparative constitutional law by the decision of Comparative Constitution research methods advocated by the exchange between different disciplines and approaches to provide possibilities, but the problem for people to study the Constitution and establish a workable system. Based on the above analysis and comparison of constitutional law is different in different cultural contexts to compare the phenomenon of constitutional analysis to identify similarities and differences and make value and the fact that a discipline and methods of evaluation. From the nature of discipline, comparative constitutional law is the first branch of constitutional law. In international academic circles around the nature of Comparative Constitution, there are two basic attitudes, one that Comparative Law Comparative Constitution is a branch; another view Comparative Constitution Constitutional system is, as the Constitution exists a branch . Hold the first opinion of the scholars, the comparative method as a large body of knowledge, including basic theory of comparative law, comparative administrative law, comparative civil law, comparative criminal law, such as different disciplines. Comparison of specific subjects within the system compares the development of rich content and form of law itself. The independence of Comparative Constitution is a comparative analysis of the various constitutional phenomenon. Comparative Constitution of the special features is to compare the various constitutional phenomenon, but it has its own object of study and research, not simply by the method of comparison. From the general sense, constitutes a comparative constitutional status of the main factors subjects: basic constitutional development of the theory that diversification of age must face a wide range of constitutional law constitutional system; has been formed in the objective field of study specific to the Constitution; Objectively, the phenomenon has been the emergence of new constitution, which reveals the need to compare their different reasons for the Existence of the Constitution and the specific forms; of economic globalization, the legal integration process in the constitutional system of the performance. Therefore, from the nature of the subject see, comparative constitutional law is the Constitution should be discipline. Second, the Constitution is the study of comparative constitutional law of the structure and development of a research method. Subjects from the general law of the development perspective, the early development of the subject is mainly the introduction of foreign constitutional system and the constitution of its own. When the accumulation of research results to a certain extent, the need to adopt a comparative approach to the system, system knowledge and system for the relationship between different elements and different forms. In this sense, the research of national constitutional system and constitutional system of foreign countries for Comparative Constitutional Studies is an important foundation for the Comparative Constitution is the platform on the comparison of different countries to study the phenomenon of the Constitution of the subjects, Study a foreign constitution as a basic condition. If there are no rich and comprehensive knowledge of foreign constitution, it is impossible at the macro and micro system, the constitutional system of different categories to be reasonable, and were compared. By comparing the way for people to rise to the knowledge of the Constitution, highly rational and refined into a variety of theoretical rules and principles. Comparative Constitution as a method of discipline and unity of the objective existence of its own special field of study. Comparative Constitution of the task is more than two national constitutional system and constitutional norms, awareness of the Constitution and the Constitution to run the social process. System, norms, and the process is more awareness of the overall scope of the study Constitution can be said is the study of comparative constitutional law and constitutional system of knowledge to run the process, provided that two or more countries. As mentioned earlier, the constitutional system of foreign study does not belong to the scope of comparative constitutional studies, comparative constitutional law because the knowledge provided by the Constitution not only knowledge of specific countries, and compare the similarities and differences to provide and improve means of Xianfa environment. The Constitution more than two countries, both countries may be the same type of constitutional system, it could be different types of national constitutional system. Of course, the comparison process in specific constitutional system of different countries in a dynamic process, not simply describe the structure of the system, but through the operation of the system between different systems and principles of law, to reveal the development of constitutional law. And scope of the specific areas of research include: 1. Countries in the world past and present constitutional system. Comparative Constitution of the scope of the study is the constitutional system of all countries, both compared to Europe, Asia, Africa and the Americas existed in the history of the Constitution and the existing constitution. Although the comparative study have a certain focus, but the researchers understanding of the basic goals and attitudes should reflect the value of cultural diversity constitutional system. 2. Constitutional documents of international or regional comparative studies. With the constitut-oriented development in the field of comparative constitutional studies there have been international or regional constitutional document, such as the European draft constitution, the draft constitution and Islamic countries some countries, constitutional scholars have been promoting the drafting of the world such as the Constitutional Code. 3. Constitutional norms and the constitutional operation of the empirical analysis. Comparative Constitution study both the structure of the constitutional system itself, but also include the specific process of the constitutional system is running. Constitutional norms is a static study, and operation of the system is a dynamic research to illustrate the process of constitutional norms and effect of specific implementation. 4. Constitutional Culture. Comparative Constitution and the specific purpose of understanding the content of Constitutional Culture plays an important role, understand and explain the various constitutional become an important part of the phenomenon. Constitution on the subject of comparative study of the nature and understanding of the area, scholars have put forward different comparative constitutional law research model. Representative of the model are: the constitutional system of constitutional norms --- --- --- awareness of the Constitution the constitutional order mode; principle and system operating mode; by country comparison of the mode of constitutional law; Constitutional positivism and non-positivist Comparative Constitution mode. In fact, comparative constitutional law in the development of common people are constantly looking for the academic paradigm, and to his own paradigm of understanding the basis of Comparative Constitution to establish a relatively Constitutional system, there is no uniform system of comparative constitutional law. Comparison of used book system is basically in accordance with the Constitutional principle of comparative constitutional system of comparative constitutional law ---- ---- ---- running Comparative Constitutional order of comparative constitutional order, emphasizing the use of the constitutional system and constitutional process The internal relations and effects. Comparative Constitution and change the historical development of 1. Comparative Constitution in the development of foreign constitutional theory in the study of comparative approach is human exploration of the process of constitutional development of the common law methods. In fact from the Constitutional Theory of Comparative Constitutional Studies. Back in constitutional law and political science as a theoretical system exists during mixing, scholars have begun to compare the method to study the Constitution of the attempt. Aristotle's \In the \The basic approach is to compare that time: first, based on certain knowledge base to determine a theoretical value of the proposition, and associated data collection and classification of relations based on the facts and then make the necessary evaluation. Of course, such understanding and evaluation methods are basically static, the function itself, there are methodological flaws. From a global perspective, comparative constitutional law is the first in the developed Western countries. In the West, as a professional Comparative Constitutional Studies began in the 19th century. 1890 Bu Geer (Burgess) wrote the \In this book he tried to use \III of the book compares the United Kingdom, United States, Germany and France during the constitutional system and the specific application. At that time political science and constitutional law system is still not independent, so-called method of comparative constitutional studies in political science, in fact, including within the system. He believes that the development of constitutional law does not depend on the form of reality, history, revolutionary force is more important and more obvious factors. [6] to compare the history of the 20th century Constitution Milne published 20 years, \In the book he considers the more public and legal research methods and historical methods are combined as one, from both structural and functional analysis of the social system, revealed comparative constitutional law and comparative constitutional history of the relationship. He also that, for constitutional scholars, history is not simply the benefits of science, it has been observed in a variety of legal research as an integral part of the object. Studies in the Constitution between China and France showing the various individual trend, law and political system need to explain emergence and development of specific rules. He advocated the \Comparative constitutional law made important contributions to the development of constitutional scholars is another Lowenstein. In his \In the \In his view, promote the development of human society, the internal driving force comes from love, faith and power, political power in the process of institutional change is to reveal the basic method of the Constitution. Especially in the constitution he proposed the taxonomy specification Constitution names the Constitution,[link widoczny dla zalogowanych], various forms of semantic Xianfa, revised the traditional classification of the Constitution. In addition, comparative constitutional law in the early development of the academic impact of the works produced there: Virgin essay on \Common feature of these works is to emphasize the dynamic nature of the constitutional system, from a different point of view of the Constitution's system of comparative and development process. Since the development of constitutional practice in Western society is relatively mature, comparative constitutional law started to become a specialized discipline and knowledge. In Asia, comparative constitutional law first by Japan to other countries, is in the process of transplantation of Western constitutionalism mature and develop. Back in the late 19th century, some scholars translated the \Before the war, written by Japanese scholars as the first Comparative Constitution Fujii new book is \Suzuki possession of the \Comparison of post-war Constitution of Japan has been great development. Professor Tian Shang's \Studies in Comparative Constitutional scholars in Japan attaches great importance to the significance of research methods, from a methodological point of view reveals a variety of constitutional phenomenon. An 1956 Professor Hasegawa is published \ World War II, Comparative Constitutional worldwide research has made great progress, and accumulated a large number of research results, further develop the academic impact of Comparative Constitution. The main reason is: First, scholars from various countries after World War II the attitude of a rational analysis of their fascist rule of the disaster to human society, from a comparative point of trying to reveal the cause of the war; Second, the Soviet Union, China, the emergence of socialist countries in Eastern Europe the traditional international political structure posed a challenge to encourage people to focus the reality of the existence of different systems to find similarities and differences to explore the social basis of the existence of different systems; third post-war emergence of independent non-Western countries, but also to compare the contents of Constitution The expansion offers a lot of material to promote the development of comparative constitutional law system. In particular, carried out 60 years after the legal system in non-western countries, especially the constitutional system of investigation and related problems of scholars attracted broad interest in comparative constitutional law. Whether national policy level or academic research, comparative constitutional knowledge has become an important body of knowledge and decision-making basis. To 50 years after the 20th century, comparative constitutional law research has important breakthrough occurred in the academic achievements, ; the constitutional practice of States had a major impact. One representative scholars Marco Nizi, Hugh Thailand because, Virgin and so on. During this period, they issued a large number of academic works, in order to establish the system of comparative constitutional law and made important theoretical contributions to the study of comparative constitutional law has entered a new stage of development. Generally speaking, they are focused on the theoretical contributions: First, expand the field of comparative constitutional studies, focusing on the constitutional system and constitutional operation of the research,[link widoczny dla zalogowanych], so has the practical function of the constitutional system; Second, the concept of Comparative Constitution, to overcome Comparative Constitution only the traditional focus of Western constitutional experience of research methods, cultural diversity, the Constitution is based, began to focus on non-Western countries and developing countries, the constitutional culture and constitutional experience, so that a caring Comparative Constitution's system of common destiny of mankind of knowledge. Representative works with Buzi Man's \), Lusi's \Third, the Constitution of the comparison method, promote diversity, emphasis on the openness of knowledge and integrity. As the research field of comparative constitutional law and constitutional phenomenon of growing complexity in the interpretation of constitutional issues scholars face when the knowledge and methodological limitations of research methods attempt to update the Constitution to strengthen the scientific theory. Positivism and non-positivist research methods from a perspective of the debate illustrates the method of comparative study of changes in the constitution process. By scholars of this period, comparative constitutional law started to become a specialized body of knowledge, but also attract more investment to the more academic research into the constitution, the basic construction of the discipline system. Of course, by comparing the value of the Constitution itself, and the factual characteristics of the decision, comparative constitutional law concepts, contents and methods of improving the academic contention in the ongoing process of implementation, academic point of view of the doubts and criticisms are constantly Comparative Constitution mature theory of academic motivation and character. Comparison of the 20th century, after 70 years research into the diverse constitutional and academic competition stage. From the 70's began publishing the \sources of law as a legal source involved in the function of the Constitution. Comparative Law in the International Symposium held in a variety of on Comparative Constitution or constitutional issue is the issue of common concern to scholars, such as the 1998 meeting of the 15th Conference of International and Comparative Law identified five issues to reach the third is on the constitutional issues, including the constitutional basis of judicial organization, constitutional principles of international law, the legal status of trade unions. 2. Comparative Constitution in China's development in China, comparative constitutional law is in the late 19th early 20th century the process of transplantation of Western constitutional theory formed and developed, was the first branch of one of the established constitution. Through the Development of China's Constitution Analysis of historical starting point, we can draw a conclusion that the early Chinese scholars abroad by comparing the Constitution Review of the Constitution and constitutional theory, and comparative constitutional law and foreign constitutional experience and knowledge-based start thinking about China Constitutional system. The description of the development of constitutional law, due to China's social system and historical background of the special constraints, comparative constitutional law beginning with the path of development different from the West. In the 30's and 40's, the academic environment of relatively loose, European and American Thought the influence of the Japanese Constitution, comparative constitutional research flourished. [7] After a period of theoretical preparation and the experience of constitutional practice, and some scholars published a book on comparative constitutional law, a certain representative works are: Wang's \Constitution \1933), Wang, Qian Duansheng's \Comparison of the Constitution works Wang, Qian Duansheng coauthored \Constitution of the book value of the main problems: (1) Comparative Constitution system, the authors do not take the country as the standard method, take a \to introduce a variety of different rules and different opinions \rights and obligations of citizens groups III, IV state organs and their functions, V constitutional amendment. This style of arrangement is characterized by: the theory of comparative constitutional law dealt with reasonably in the state, society and the individual's relationship to the individual's fundamental rights issues and introduce a more systematic study shows that the concept of fundamental rights. (3) the amendment to the constitution as an Independent is an important feature of the book one of the structure, indicating that the change of the constitutional issues. Although the book content in the system and there are some flaws, but as a comparison of 70 years ago published books about the Constitution still has significant academic value, the development of contemporary Chinese Constitution still play an important academic influence. Comparative Constitution since the founding of the content and system through different historical stages of development. Studies in the new Constitution of China around the start-up period of the first scholars to develop the socialist constitution Constitution began a study of foreign and conducted academic research in a range of comparative constitutional studies. Such as the constitution-making process in 1954, the Framers were in reference to the Soviet Union than the constitution outside the Constitution in Eastern Europe also references the old Constitution of China,[link widoczny dla zalogowanych], France and other Western capitalist countries of the Constitution. Although the limitations of historical conditions at that time, scholars can not consciously be professional Comparative Constitutional Studies, but in the academic research methods and the choice of constitutional system, the specific use of the results of comparative constitutional law. In the future Constitution of the \Constitution of China after 1978, entered a period of recovery and development, especially before and after the 1982 Constitution amended general concern scholars and compared the results with the Constitution of the value of thinking in the Comparative Study of the Chinese Constitution in Theory and Practice. Can be said that the 1982 Amendments to the Constitution is the Comparative Constitution an important opportunity for prosperity. Since 1982 works published in Comparative Constitution are: Professor Gong Xiangrui's \(1990), Professor Wang Guanghui's \Comparative Constitutional Study Series \In addition, comparative political science and other related works published in academic fields but also some of the more involved aspects of the Constitution. Since 1991, the legal experts in different subjects in the form of a more systematic study of Comparative Constitution's basic theoretical and practical issues, and accumulated a certain amount of research results, the Comparative Constitution into a open and professional knowledge.
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