Constitution

Author: Zhou Yezhong (Editor) / Country: Mainland China
Publisher:
Publish Date: 2005-03-01
Features: [Excerpt:]
I. Research Object and Scope of Constitutional Law
(1) Research Object of Constitutional Law
Constitutional law is also known as constitutional science. Science is not only the fruits of human understanding of the world but also the ideological weapon for human transformation of the world. Over thousands of years of social practice, humans have created and accumulated rich wisdom and experience, making the classification of scientific knowledge in different fields and levels an inevitable choice for scientific development. In scientific research, the research object is often the basic criterion for distinguishing different disciplines. It is precisely because each discipline studies a specific subject with contradictory particularity that they each have their own individuality, making them independent disciplines. At the same time, due to their commonalities or connections in research objects, they form a group of related disciplines or have a very close relationship with each other. Therefore, defining the research object is of great significance to the development of any discipline. This is particularly evident in the case of constitutional law in China. In the past, people's views that "constitutional law has a relatively empty content," "constitutional law has a lot of overlap with other courses," and "constitutional law is broad and, not in-depth enough on any issue" largely stemmed from the unclear definition of the research object.
In the field of constitutional law, although the research object of constitutional law has not been widely and deeply explored, various viewpoints remain diverse. For example, as early as the 1930s in the Soviet Union, there were two typical views among constitutional scholars: one, represented by Vysotsky, believed that Soviet constitutional law studies the socialist system and state system of the Soviet Union, the rights and obligations of Soviet citizens toward the state and society, and the functions and development processes of the Soviet state, Soviet society, the state and social system. The other, represented by Khrushchev, believed that constitutional law is a legal science that studies state legal norms and state legal relationships. ① In China's constitutional law circles, opinions on the research object of constitutional law have also been diverse since the 1950s. The most representative views are as follows:
First, some believe that constitutional law is a legal science with the constitution as its primary research object. ①
Second, some believe that constitutional law is a theoretical system with practical value that studies constitutional phenomena, and it is also a future-oriented knowledge system with predictive functions. ②
Third, some argue that the objects of legal study are social relationships regulated by law, so constitutional science should primarily study the laws of the constitution's origin and development, the essence, characteristics, forms, and functions of the constitution, the formulation and implementation of the constitution, the interpretation, amendment, and supervision of the constitution, as well as various constitutional relationships and ideological phenomena. ⑨
Fourth, some believe that the study of constitutional law is a comprehensive research on the "constitutional-making-constitutional-execution-constitutional-protection" issue from both static and dynamic perspectives, which is the research object of constitutional law. ④
Fifth, some believe that constitutional law is a legal science with constitutional norms as its primary research object. In China, constitutional norms are primarily reflected in the constitution. However, the constitution as the research object of constitutional law is a part of law, and its scope includes not only the constitution but also the organization laws of state organs, the election laws of representative bodies, and other constitutional laws. ㈤
Sixth, some believe that the research object of constitutional law should focus on the substantive content of the constitution. Every constitution in a country must stipulate fundamental state systems, socio-economic systems, the basic rights and obligations of citizens, the state organs and their organization and principles of operation. ⑥
Seventh, some believe that the research object of constitutional law is the state. Specifically, constitutional law is a discipline that studies the fundamental law of the state, the nature of the state, the form of government, state organs, and the basic rights and obligations of citizens. ⑦
Eighth, some argue that constitutional law is generally a discipline with the constitution as its research object, studying the constitution and its development laws. Specifically, it can be divided into constitutional theory and constitutional norms. ⑧ And so on.
It can be seen that although the expressions of scholars differ, they can be roughly divided into two categories: one explains the research object of constitutional law from the perspective of listing the content stipulated by the constitution, and the other explains the research object of constitutional law from a comprehensive and general perspective. We believe that although the enumeration method can make people clearly understand, remember, and have a deep impression of the listed aspects, its greatest drawback lies in the inability to exhaust the content of the relevant aspects. Moreover, although the research object and research content are roughly overlapping, there is still a distinction between them: research content is often the specificization of the research object. At the same time, the research object of constitutional law must not be confused with the object of regulation of the constitution. The object of regulation of the constitution is various social relationships, while what constitutional law studies are the various constitutional relationships and constitutional systems adjusted by constitutional norms. Therefore, we believe that the comprehensive and general method is more scientific. However, there is a common defect in the understanding derived from this method in the above views, that is, they all summarize from a certain aspect or perspective, such as focusing on constitutional norms or constitutional relationships, or the essence of the constitution, or the constitution itself, etc., so their conclusions are somewhat one-sided.
Therefore, we believe that constitutional law is a legal science with the constitution and constitutional phenomena and their development laws as its research object. That is to say, the research object of constitutional law mainly has three aspects: , the constitution. Constitutional law should study the constitution but is not limited to studying the constitution. In addition to the constitution, it also includes the organization laws of state organs, the election laws of representative bodies, and other constitutional laws. Second, constitutional phenomena. The so-called constitutional phenomena refer to various social relationships and phenomena caused by the constitution, including the behavior, psychology, and concepts of people related to the constitution, the agencies and systems established by the normative role of the constitution, and the status of these agencies and systems operating according to the constitution, etc. Third, the development laws of the constitution and constitutional phenomena. Originally, the law of development should be the purpose of research. That is to say, through the study of the constitution and constitutional phenomena, their laws of origin and development are explored. It is precisely because every science has certain laws that it becomes a science. Therefore, in his work "Dialectics of Nature," Engels pointed out that every science analyzes a particular form of movement, a series of interconnected and mutually transforming forms of movement. Here, "forms of movement" mainly refer to the development laws of things. This points out a fundamental principle for determining the research object of a science, that is, every science takes the law of movement of a certain thing as its research object. The constitution and constitutional phenomena, as objective existences, are inseparable from movement. Moreover, any objective thing or social phenomenon has its origins, causal changes, and movement. Since movement must have its laws, the causal changes, movement, and development laws of things themselves are also objective existences. The constitution and constitutional phenomena, like any other things, also have their causal changes, movement, and development laws. Therefore, when constitutional law takes the constitution and constitutional phenomena as its research object, it is only natural for it to take the development laws of the constitution and constitutional phenomena as its research object.
(2) Research Scope of Constitutional Law
In many textbooks and academic works, "research scope" and "research object" are often ambiguously and indiscriminately discussed together. As some scholars have pointed out, this is inappropriate. ① Because the research object of every thing, due to different aspects of the research, the relationship between this thing and other things, and the different research methods and means, may form different research scopes. Therefore, "research scope" and "research object" are two concepts that are both related and distinct. In terms of their connection, the "scope" of research cannot be arbitrarily determined without reference to the "object" of research; in terms of their distinction, since the same research object can be studied from countless different aspects, the "research scope" is a specific manifestation of the "research object," and this manifestation may only be a small part of countless aspects. Therefore, when elaborating on the research scope of constitutional law, the first thing we need to do is to distinguish it from the research object of constitutional law. If the research object of constitutional law mainly focuses on the substantive content of the constitution, then the research scope of constitutional law refers to the legal form in which the research object of constitutional law exists. Although there are many views in the constitutional law circle about the relationship between the research object and research scope, they generally affirm that the object and scope are merely a relationship between content and form. Accordingly, we can clearly define that the research scope of constitutional law refers to specific constitutional forms. Therefore, it includes not only the current constitution but also the past constitution; not only the constitution of the country but also the constitution of foreign countries; not only the constitutional provisions but also the constitutional reality; not only the constitution itself but also constitutional laws, constitutional customs, and constitutional cases, etc. However, in the specific content of the research scope of constitutional law, or in which aspects of specific constitutional forms should be primarily studied, due to the different tasks faced by constitutional law in different periods and the continuous development and change of the research scope of constitutional law itself, scholars' views are not consistent. For example, Japanese scholars generally believe that the research scope of constitutional law usually includes constitutional awareness, constitutional norms, and the systems organized according to the constitution; in France, the research scope of constitutional law mainly includes political power, the state, the constitution, and democracy, with a considerable proportion of political science content in constitutional law; in the United States, the study of constitutional cases and the actual constitution occupies a dominant position in constitutional law; in South Korea, in addition to the empirical study of constitutional norms, the actual movement of the constitution is also the most basic and important part. ① In this regard, Chinese constitutional scholars also have different views. Some believe that the research scope of constitutional law includes Marxist theory of the constitution, the history and current status of constitutions in various countries, the legal issues related to the fundamental problems of state and social systems, the customs and cases involving the fundamental problems of state and social systems, laws and decrees as well as resolutions passed by state power organs and the highest administrative organs involving fundamental issues of life, etc. ② Some believe that the research scope of constitutional law includes issues of the attribution of state power, how the state is organized, the economic basis on which the state is established, issues of state cultural systems, the relationship between the state and citizens, how state functions are realized, and the symbols of the state, etc. ③ Others elaborate on the research scope of constitutional law from the perspectives of time, space, form of expression, and content. ④ And so on.
We believe that listing the issues in the research scope of constitutional law cannot be fully and systematically summarized, so the above opinions also have certain shortcomings. But if we firmly grasp the central links that constitute the knowledge system of constitutional law and do not deviate from these major links in terms of time, space, form of expression, and content, then the specific issues in the research scope of constitutional law will be clear, explicit, and comprehensive. Based on this understanding, we believe that the following three aspects are such central links.
1. Basic Theories of the Constitution. Any discipline is based on certain theoretical principles, and constitutional law is no exception. The basic theories of constitutional law are the basic principles and principles of constitutional law, which are general conclusions abstracted from constitutional norms and constitutional practice by constitutional scholars at home and abroad. Studying the basic theories of the constitution helps to deeply understand the constitution and guide the development of this discipline.
2. Basic Norms of the Constitution. The basic norms of the constitution refer to the main behavioral norms that countries governing in the form of democracy confirm the will of the ruling class to manage the state and society in the form of fundamental law through constitutional activities. Clarifying the basic norms of the constitution is beneficial to understanding related constitutional theories, understanding and promoting the construction of constitutional states.