Comparative Constitution

Author: Wang Shijie
Publisher:
Publish Date: 1997-12-01
Features: The introduction to the book states that anyone studying constitutional law should first have a proper understanding of the terms "constitution" and "state." The purpose of this book is to separately explain the several concepts we must possess regarding these two terms.
Chapter 1: The Concept of the Constitution
Section 1: The Characteristics of the Constitution
"Constitution" and "Constitutional Law" are old terms in our country. For example, in the Book of Documents it is said, "Reflect on the established constitutions of former kings," and in the Book of States it is said, "Praise the virtuous and punish the wicked—the constitutional law of the state." These old terms refer to "classics," "regulations," or "general laws," which are roughly equivalent to what modern people call "law," but different from what modern people call "constitution." Today, when people in our country use the term "constitution," it is a translation of Western words like "constitution" and "Verfassung," no longer containing the meaning of general law. However, although modern people no longer use "constitution" to broadly refer to general laws, the term "constitution" in modern usage is still ambiguous. This is because the nature of the constitution itself contains both formal and substantive aspects. When people use the term "constitution," sometimes they refer to its formal characteristics, and sometimes to its substantive characteristics. Therefore, even though they use the same term, the meaning may often be inconsistent. So, when observing the constitution from both its formal and substantive aspects, what are the actual characteristics of the constitution?
(1) Formal Characteristics
From a formal perspective, indeed, there is no single characteristic that can be said to be possessed by all constitutions of countries. However, in the case of most modern countries, constitutions either possess one of the following two characteristics or both. These two characteristics belong to the formal aspects of the constitution; they are also the features of modern constitutions; they are also the characteristics of modern constitutional concepts:
First, the effectiveness of the constitution is higher than that of ordinary laws. This means that the constitution and ordinary laws have a master-servant relationship; when ordinary laws conflict with constitutional provisions, the ordinary laws lose their effectiveness. This is a characteristic generally considered to be possessed by constitutions in modern times. The differences of opinion among scholars are not about whether the constitution should have this supremacy, but about whether this supremacy should be protected by an effective mechanism. Many countries not only recognize that the constitution is more effective than laws but also establish effective safeguards for this supremacy—namely, courts may refuse to apply ordinary laws that violate the constitution. Some constitutional scholars, despite recognizing that the constitution should be more effective than ordinary laws and that ordinary laws should not conflict with the constitution, do not advocate for such safeguards. Some countries' constitutions have not actually established such safeguards. These issues will be discussed in detail when discussing the court's right to interpret the constitution, but for now, we will not elaborate on them.
Second, the amendment of the constitution differs from that of ordinary laws. This means that the body or procedures for amending the constitution are different from those for amending ordinary laws. This characteristic is only possessed by what is generally referred to as a "rigid constitution." However, although not all modern countries adopt rigid constitutions, they are the form adopted by the vast majority of modern constitutions. Therefore, this characteristic can also be said to be a characteristic of modern constitutions in general. Moreover, since the effectiveness of the constitution is supposed to be higher than that of ordinary laws, theoretically speaking, the body that amends the constitution should be different from that of ordinary laws; even if the bodies are the same, the procedures for amending the constitution should be different from those for ordinary laws.