Introduction to Constitutional Law

Author: Zhang Qianfan
Publisher:
Publish Date: 2004-01-01
Features: The title of this book is "Introduction to Constitutional Law," with the subtitle "Principles and Applications." The reason it is called an "introduction" is determined by its nature as a university textbook. Therefore, its focus is on introducing basic principles rather than deeper theoretical exploration. As mentioned above, constitutional law "principles" are not abstract; they are the product of reflection, induction, and summarization based on constitutional practice. In fact, pure constitutional law "principles" do not exist; without constitutional practice as a foundation, constitutional theory can only be built on sand. This is precisely why this book places the content of judicial review at the beginning. From an individualistic methodology (see Chapter), the author of this book believes that the only purpose of the constitution is to protect the dignity and rights of individual citizens—even though these rights may sometimes conflict, and the establishment of state power is merely a means to achieve this purpose. This explains why this book does not cover certain topics typically found in traditional constitutional law textbooks, such as civic obligations and state sovereignty. As Chapter explains, modern constitutional law generally discusses "rights" rather than "obligations" of citizens; this does not mean that citizens have no obligation to obey the constitution and laws—they certainly do—but the entire purpose of legislation is to highlight the fundamental idea that the state's ultimate goal is to protect citizens' rights, not impose obligations. This is a fundamental formal distinction between the constitution and ordinary law (of course, the ultimate goal of ordinary law is also to protect rights). In other words, provisions regarding civic obligations in the constitution cannot be implemented and can only be understood as limitations and definitions of citizens' rights themselves. This book also does not discuss the concept of "state sovereignty." The constitution is primarily domestic law, while sovereignty is an international law concept and is not the focus of modern constitutional law. Overemphasis on state sovereignty may even pose a threat to citizens' rights. A government represents the state's "sovereignty" externally—even though this concept has become increasingly irrelevant due to the development and deepening of a series of international organizations and rules—but internally, it is the opposite: the people have sovereignty over it. However, even the concept of "popular sovereignty" is not something constitutional law should dwell on excessively— the issue is not whether the people have sovereignty (they certainly do), but what this "sovereignty" actually means and how it is manifested and where. Does it refer to the power of the majority to directly make laws? The power to directly elect representatives? The power to indirectly elect and supervise representatives? For these practical questions, vague talk of "sovereignty" does not provide any insight. What is important is that "sovereignty" is an abstract and holistic concept, not very operational in practice, and easily misused to the point of losing meaning. Therefore, we prefer to talk about rights—specific, individual rights that can be implemented. Finally, this book might discuss the topic of the "meaning of the constitution (or constitutional law)" more. But this topic actually does not need much elaboration. In fact, what we have previously said about the meaning of the constitution (or constitutional law) is not too little, but too much—not that the meaning of the constitution has been elevated too high (which is of course impossible), but that we have said too much while doing too little. Everyone has heard that the constitution is the "supreme law of the land," the cornerstone of the entire legal system, and so on. But where does its meaning ultimately lie? Simply talking about it does not solve the problem. In my opinion, we should say less, learn more, and do more. The meaning of the constitution (or constitutional law) ultimately comes from the practice of China's constitutional system, and this is not just the mission of individual constitutional law professors, but the mission of all Chinese people—including all the readers of this book. After all, the constitution (should) was made by them and for them.