Constitutional Philosophy Issues to Discuss

Author: Qian Fuchen
Publisher:
Publishing Time: 2006-12-01
Features: This book reflects on and attempts to answer fundamental questions about constitutionalism, hence the title Essays on Philosophical Questions of Constitutionalism. The book is divided into three parts: Ontology, Value Theory, and Genesis, which respectively address the following four questions: What is constitutionalism? Why is constitutionalism? How is constitutionalism generated? How can constitutionalism be generated? For the convenience of readers, the main arguments of the book are summarized as follows:
Part I, Ontology
1. Regarding what constitutionalism is, scholars both in China and abroad often hold different views or multiple views, which actually forms a semantic field of constitutionalism based on historical and social experiences. The terms in the constitutional semantic field include the rule of law, popular sovereignty, democracy, separation of powers and checks and balances, and human rights. Based on the above semantic field of constitutionalism, from the perspective of formal logic, a constitutionally narrow definition of constitutionalism can be (derived), as well as a constitutionally broad definition. Analyzing the five semantic field meanings mentioned above, it can be found that they share a common attribute, which is the control of state power. Therefore, the constitutionally narrow definition of constitutionalism can be stated as: constitutionalism is a government system where the coercive power of the state is constrained. The constitutionally broad definition of constitutionalism includes the attributes of the above five semantic field meanings. Its specific expression is as follows: constitutionalism is a government system with popular sovereignty as the moral premise, the rule of law, democracy, and separation of powers and checks and balances as institutional means, and human rights as the value goal. The constitutionally narrow concept of constitutionalism has a broader extension, is more abstract and inclusive, and can encompass constitutional concepts of both ancient and modern times, reflecting the dynamic nature of the development of the constitutional concept. In contrast, the constitutionally broad concept of constitutionalism has a narrower extension, is more rich and specific, and only covers the concept of modern constitutionalism, reflecting the contemporaneity and comprehensiveness of the development of the constitutional concept to this day.
2. After China's reform and opening-up and the restoration of legal research and education, it has formed a constitution concept with its own characteristics, which differs significantly from Western constitutional concepts. This is specifically reflected in the methods of defining concepts, the size of connotation and extension, and the components of connotation. Chinese scholars tend to define concepts first and strive for normative, comprehensive, and rigorous definitions, while most Western scholars define the constitution only from the perspective of what the constitution stipulates and what the constitution appears to be. The constitutional concept of Chinese scholars has a larger connotation and a smaller extension, such as saying that the constitution is the fundamental law of the state, the legalization of the democratic system, and the reflection of the balance of class forces, which is only a generalization of the constitutions of some modern countries; while Western constitutional concepts have a relatively smaller connotation and a larger extension, often not limited to the modern, state-level constitution, but also including some non-state-level rules. In terms of connotation components, the most frequently occurring components in the Chinese constitutional concept are the class attribute and the fundamental law attribute of the constitution, while in Western constitutional concepts, the most common components are the provisions of the constitution on the state structure and the provisions of the constitution on the relationship between the people and the government. From this comparison, it can be seen that Chinese and Western constitutional scholars emphasize different aspects of the utility and value of the constitution: Chinese constitutional scholars focus on the qualitative research of the constitution, which is more abstract and has a stronger theoretical nature, while Western scholars focus on the interpretation of the superficial utility of the constitution, which is more specific, clear, and operational, and also emphasize and focus more on the function of the constitution in limiting state power to protect individual rights.
3. In China, both the terms "constitution" and "constitutionalism" come from the West, but they have been sinicized and formatted, and the Chinese people in turn use this concept to evaluate the constitution of the West, which inevitably leads to confusion in understanding. Therefore, it is necessary and important to systematically study the historical evolution of Western constitutionalism and the dimensions of the constitutional concept. The term "constitution" in modern Western constitutionalism and political science has undergone a historical evolution process: ancient constitutions only had one dimension of "form of government," so ancient constitutions were constitutions in the sense of government form; in the modern era, the British constitution added a dimension of "protection of individual rights," so modern constitutions could be understood as constitutions with two dimensions of government form and protection of individual rights; in the modern era, in the interaction of government form and protection of individual rights, the U.S. Constitution gave birth to a third dimension, namely the dimension of written constitutions, so modern constitutions are mostly understood as constitutions with three dimensions of government form, protection of individual rights, and written constitutions.
4. The early-emerging, internally generated Western constitutionalism shows that individual rights are the soul and life of constitutionalism, while the web-like power control model is the foundation and life form of constitutionalism. The web-like power control model of social form, the web-like power control model of theoretical form, and the web-like power control model of constitutional form are respectively the social foundation, ideological foundation, and legal foundation of constitutionalism. The comprehensive web-like power control model formed by the interaction of these three forms of web-like power control, namely the web-like power control model of legal relations, is the life form of constitutionalism. For some late-emerging, externally generated constitutional states, the key point to achieve constitutionalism is first to cultivate in society the demand for individual rights as the life force of constitutionalism and the web-like power control model of social form as the social foundation of constitutionalism. On this basis, it is necessary to improve the web-like power control model of theoretical form and the web-like power control model of constitutional form.
Part II, Value Theory
1. Popular sovereignty, democracy, and human rights are the three-dimensional values of modern constitutionalism. The basic meaning of popular sovereignty is "popular," meaning state power belongs to the people; the basic meaning of democracy is "popular rule," meaning the exercise of state power by the people; the basic meaning of human rights is "popular enjoyment," meaning the enjoyment of state power by the people. In modern constitutional theory and constitutional values, popular sovereignty, democracy, and human rights are organically linked and constitute a unified whole. Popular sovereignty is the moral premise, the prerequisite value; democracy is the institutional model, the instrumental value; human rights are the ultimate goal, the goal value. Democracy is an intermediate link in the three-dimensional value system of constitutionalism, a tool to implement the moral premise of popular sovereignty and achieve the ultimate goal of human rights. Therefore, the evaluation of the goodness, evil, superiority, and inferiority of democracy cannot be taken out of context; it must be evaluated in the context of popular sovereignty and human rights, that is, it must be evaluated according to the standards of implementing popular sovereignty and achieving human rights. Western politicians and thinkers analyzed the shortcomings of democracy according to this standard. They generally believed that the greatest flaw of democracy is that it may lead to "tyranny of the majority," that is, in a democratic system, the majority of the population may form a repressive interest group, thereby depriving and infringing on the rights of the minority. It can be seen from this that the control of democracy by the U.S. courts through constitutional interpretation and constitutional review does not violate the legalization foundation of constitutionalism—popular sovereignty and the ultimate goal—human rights. Rather, democracy is only an imperfect and easily flawed means of implementing popular sovereignty and achieving human rights. The court is precisely an important supplement to democracy and an effective means of controlling the potential flaws of democracy. In summary, the control of democratic elements by the U.S. judicial system does not produce the so-called "anti-majority dilemma," but rather serves as the legitimate basis for achieving constitutionalism and an effective supplementary mechanism for implementing constitutional goals, which is also the original intention of the U.S. constitutional designers.
2. From the perspective of nature and institutional design, Locke advocated logical popular sovereignty and representative government, while Rousseau advocated practical popular sovereignty and the people exercising sovereignty directly, and firmly opposed representative government. From the perspective of purpose, Locke advocated individual rights and civil rights, while Rousseau advocated collective rights and political rights. From the perspective of temporal characteristics and constitutional practice, Locke advocated modern popular sovereignty, which was a theoretical summary of the British constitution and was practiced and developed by the U.S. constitution; Rousseau advocated ancient popular sovereignty, which was a theoretical summary of the constitutions of ancient Greece and Rome. Rousseau's theory of popular sovereignty, as an idea, has had a significant impact on modern people and modern society, but it is also very easy to produce negative effects on the idea. However, its theory of popular sovereignty, as a political program, is not suitable for modern society and cannot be implemented in modern society.
Part III, Genesis Theory
1. The constitutional gene is a historically inherited basic social factor that can induce the emergence of constitutionalism and determine its nature and development direction. The reason why the constitutionalism of the United Kingdom and the United States was able to emerge first and become a model for other countries to learn from is a crucial one: the constitutional gene of personal rights claims, pluralism of political power, and supremacy of law were generated earlier in British and American society. These genes are the original driving force for the emergence and development of constitutionalism, embodied in principles such as popular sovereignty, fundamental human rights, separation of powers and checks and balances, and the rule of law in the constitution. Eastern countries lacking constitutional genes must consciously transplant and cultivate such genes in society, otherwise, even if a constitution is formulated, it may not be implemented well.
2. The basic obstacles to the generation of constitutionalism in China lie in the absence of constitutional genes and the remnants of anti-constitutional genes in Chinese society, which not only make the generation of constitutionalism inherently insufficient but also pose significant obstacles. The economic soil for cultivating constitutional genes and eliminating anti-constitutional genes is the construction of a market economy, and the legal conditions are the improvement of civil law. The basic path for the generation of constitutionalism in China must be the combination of government promotion and social evolution. The path of constitutionalism in China over the past 20 years of reform and opening-up is actually the combination of government promotion and social evolution. If, based on a rational understanding of the basic obstacles, conditions, and basic paths for the generation of constitutionalism, we consciously operate, then the prospects for the generation of constitutionalism in China will be very optimistic.
The book reflects on and attempts to answer fundamental questions about constitutionalism, hence the title Essays on Philosophical Questions of Constitutionalism. The book is divided into three parts: Ontology, Value Theory, and Genesis, which respectively address the following four questions: What is constitutionalism? Why is constitutionalism? How is constitutionalism generated? How can constitutionalism be generated? For the convenience of readers, the main arguments of the book are summarized as follows: