Can not develop without benefit of academic contention, the development of jurisprudence as well.
Papers Category:Legal Papers
- Constitution Papers
Post Time:2006-9-22 17:38:00
To run a publication, the same should also listen to all aspects of the observations and recommendations. In order to implement the prosperity and development of the academic's 'double hundred policy', in order to properly Articles from the issue date in the ad hoc 'contention and opinion' column, please send authors contend articles on benefits, please read those suggestions and comments on the Articles. Manuscript in this regard, in addition to making the necessary text and technical processing, the original is reproduced. A few years ago, in our legal theory circles, and some scholars, consciously or unconsciously deny the Four Cardinal Principles, spread some of the most erroneous views, reflecting the erroneous tendency of bourgeois liberalization. This article tries to amend the Constitution of scholars have raised some of the issues to talk about some of their own views.
1. Is to uphold Marxism-Leninism, Mao Zedong Thought to explain and clarify the legal situation (including the Constitution of the phenomenon) or in the reform and updating of concepts continue to sell and respected by the slogan of the bourgeoisie and other non-Marxist legal theory, it is first of all need clear a basic principle.
Method is how the origin of it? What is the nature of the law? This seems to have been resolved. However, some scholars in China earlier this year, the author claimed that: 'law takes precedence over laws and regulations are the rules of laws and regulations must be followed. The reason why things better, the reason why the evolution of life, the reason in human nature has its good side, both for natural and subject to its domination of a certain law, creating harmony and balance, and the emergence of the perfect shape. 'As a result, the ancient ideas of natural law has been openly onto the Forum of China Law.
With regard to law, the essence of the classic Marxist writers have long pointed out, law is a reflection of the will of the ruling class and embodied. The will and interests of the ruling class is the essence of the law. Law can not deviate from a certain degree of material living conditions by the people to pure invention, from this perspective, law is objective. But, France, after all, is human development, is acting on the subjective and objective product. For the same kind of adjustment of social relations, due to enactment of laws belongs to the class of people is different from different standpoints, the naturally have different laws. In that respect, France and there are subjective. As to the 'rule', if it refers to the thing itself has an independent existence of the laws or rules, it is not follow the people's subjective will of the objective laws. Jurists tasks, is that it reveals, to reflect and describe the things of this rule, which worked out to reflect the will of the class, in line with the laws of the class interests. However, we usually talk about law or law, is by no means the 'law', although ties between the two, but after all not the same thing. Of course, in people's process of law making, there are certain rules or called legislative rules, can go to follow, but it is another matter. Under any circumstances, can not be man-made laws and the laws inherent in things equate.
Some scholars have rightly said that the United States Constitution is difficult to manage from a country that tough the actual needs of the 'forced out of''compromise basket'. It is not in the pedantic style arising from the discussions, but the discussion is full of conflict and coordination, for both ideological confrontation, there are back-room deals, one side is a lofty idealism, while at the same time engaging in insidious activity, short. Constitution in the political disputes that arise. Clearly, as the laws of Constitution of the United States Constitution, like with all of capitalism is absolutely not what the other above the law and regulations to follow the 'rules' formulation, but the will and interests of the bourgeoisie, the reflection and manifestation of capitalism in order to form a' harmonious and balance ', the pursuit of capitalist society is the natural shape of a' perfect '.
Some scholars believe that, from a substantive rather than from the formal point of view, the Constitution is always between people in society as a 'convention' is to be equally observed by the parties is the Government's rule and those being governed as a 'contractual relationship '. This is undoubtedly a natural law school on the origin of the state and law on the issue of social contract theory.
For this doctrine, even the bourgeois scholars have long raised the criticism that this is a baseless assumption, it is not man's natural state, in every conceivable state, this state's most contrary to human nature, the most not in the people's feelings, the most contrary to people's needs and to assert that man's natural state of social and political. Marxism holds that the law is with the private ownership, class generation, the emergence of antagonistic class interests by the dominant class, made up of countries to develop, recognize and implementation of national mandatory code of conduct is beneficial to maintain the rule of class, social relations and social order.
Of course, the law has been the ruling class as a means to control society in the formulation, we should find ways to be the ruling class into submission, to consider the limits of oppression and exploitation, of course, take into account the interests of its allies and attention to their internal relations. But no matter how hard, in the law between antagonistic classes is not a mutual 'agreement', nor is it an equal compliance with the 'contract'. But a ruler and the ruled, between oppressors and the oppressed embodiment, is a party relying on state violence imposed on the other side. The United States a state senator clearly states in the United States 'If you just let those people in power do whatever they like, you will not go to jail, it would not in trouble'. 'Those privileged people always have the means to pass a law so that they can legitimize any request. They always have the means to wrest from the property or rights of others, and will not go to jail '.
In France the issue of the origin and nature, for Marxism-Leninism, Mao Zedong Thought, not only to uphold the basic principles, but also to develop. Without development, insist on speaking, we fall into rigid, Marxism lost its vitality; but left persist in development, we lose our direction, we can no longer not a Marxist in his. Specifically, in this issue, while we can no longer 'in terms of class struggle as the key link'; do not think there is a bourgeois party, do not think there will be a one bourgeoisie or other exploiting classes; the other hand, must also see that in the community, there are still counter-revolutionaries, enemy agents, criminals and other bad elements, as well as corruption, theft, profiteering and other new elements of exploitation, class struggle will continue to exist for a long, international class struggle will inevitably reflected in the domestic come. Shift the focus of the work, will law was only known as a tool of class struggle has its one-sided, but it still can not deny that it remains a tool of class struggle on the one hand.
Today, if denied the existence of class, generation and the origin and existence of law is a key reason for denying class nature is the essential attribute of law to promote law is an abstract super class 'agreement', 'contract', that is, intentionally or unintentionally, to deviate from the basic principles of Marxism and basic methods, reflecting the legal concept of the bourgeois.
2. Bourgeoisie to establish its own rule 200 years, accumulated a wealth of political experience, no doubt, some of which belong to human civilization, an indispensable part of the treasure. However, for the capitalist civilization, including the principles of the constitution for the bourgeoisie is to beautify the touted, totally positive, and all copy it? Or realistically, in combination with China's national conditions and our experience to draw on reasonable factors for the socialist modernization drive service? It is clear we need another principle.
Some scholars have pointed out, 'there is no theoretical problems probably be divided into domestic and foreign', and advocates to bring it to foreign scholars, the theory of the Constitution to 'Mao Tse-tung were the additions and amendments to the constitutional principles can not understand'. I think that although the problem is not theoretical points East and West, but in today's world there are non-Marxist Marxism and the boundaries. The Chinese people are not able to understand the constitutional principles of the bourgeoisie, but rather by means of Marxism-Leninism, Mao Zedong Thought this great ideological weapon, the constitutional principles of the bourgeoisie through the false phenomenon, reveals that open criticism of its class nature. Some scholars explain the source of the Constitution, it cited the words of a certain foreign constitutional scholars, that 'the emergence of the modern constitution is due to people need a fresh start', and as a means of additions and amendments to the Constitution we can not understand the principle of what to say 'constitutional government have a common belief that government power can not be unlimited, the right to not have all that power must be restricted, while the Constitution is the fundamental law to grant and limit powers'. And say this is the origin of modern constitution.
The constitution say that is because people need a fresh start, is the authorized limit of the right to control rights law, which not only does not reveal, but to cover up the nature of the Constitution. The first is to establish the bourgeois constitution of bourgeois rule. Lenin once pointed out: 'The essence of the Constitution: State all the basic laws and the election of representative organs of the right to vote as well as the representative of the legal powers of the bodies, etc., are manifestations of class struggle in the real comparison between the various forces'. Socialist Constitution, 'recorded the proletarian masses against the exploiters of the country and around the world struggle against the experience and organizational experience. '③ China's socialist constitution is to the Four Cardinal Principles as a foundation for building this fixed, so that people across the country have a clear track, so that people across the country feel that there is a clear a clear and correct path to take. If only the abstract talk about authorization, limited rights and control rights, did not point out which class, it is who is who authorized, limited rights and control rights, but also did not specify the ultimate goal of doing so, apparently, there is no essence of the Constitution tells .
Some scholars in China has repeatedly emphasized the constitutional principle of the bourgeois ours? We recognized the following five basic principles of the bourgeois constitutional test to be analyzed.
First, the principle of private ownership. Some scholars put forward China's socialist public ownership of our country does not eliminate the phenomenon of exploitation of persons, and asserted that 'a decline in productivity, poverty and backwardness became a reality, a common feature of the socialist countries'. The implication is clear. I think this is to ignore the most basic historical facts. The existence of capitalist private ownership is the root of exploitation, the socialist public ownership is the eradication of exploitation, to achieve social equity basis. Although China is now in the economic sphere, particularly in the circulation process, there are serious problems, and even a large number of criminal phenomenon, which is by no means a result of public ownership in itself, on the contrary, it is the result of the destruction of public ownership. Today, our country and the overall sense fundamentally is to eliminate the phenomenon of exploitation, the people reason to believe and support our party and the government, the key also here. Broad masses of the most fear and concern is to restore and encourage private ownership of capitalism. Because 'before everything the Constitution, as well as the most democratic and republican spirit of the Constitution and the basic content of all up in a private ownership on the'. ④ poverty and backwardness is not the socialist countries 'common characteristics', in fact, the implementation of public ownership of the socialist countries there are rich, while the implementation of private ownership of the capitalist countries also have poverty. Moreover, those rich capitalist countries is how to make its fortune is not known to do? Even now, they are rich and poor countries, contradictory, is there no facts? Socialist countries, plundering other countries must not rely on the resources and labor to get rich, but also can not rely on exploitation of its working people to accumulate, it can only rely on the development of social productive forces, the development of technology, relying on its own to revive the efforts of the people, take the road of common prosperity.
Second, 'popular sovereignty' is a basic principle of the bourgeois constitution, the United States' Declaration of Independence, 'declared' the legitimate powers of government derived from the consent of the 'French' Declaration of Human Rights' declared 'The Origin of the sovereignty of the whole country in the hands of nationals of any group, no individual may exercise its sovereignty, fail to understand the powers conferred '. President Lincoln and to make 'the people, for the people' as the content of the principle of popular sovereignty. The reality is do? American political scientist Merriam, then a good explanation, he talked about the U.S. constitution, said that the bourgeoisie 'their main concern is to maintain law and order, human rights guarantees in their just a minor', 'they are in favor of a strong and effective government, whether the people in power in the second Dao Hai '. ⑤ In the U.S., who is rich, has the power, the U.S. dollar rule. Of 'popular sovereignty' to conduct class analysis, where the word 'China' is by no means the masses of working people, but a small number of monopoly bourgeoisie and their agents.
Third, the principle of separation of powers and checks and balances is also the bourgeoisie has repeatedly emphasized that a constitutional principles. 'Declaration of Human Rights' Article 16 says, 'Where the right to offer no protection and the separation of powers is not established in the community, there is no constitutional'. Some scholars also believe that our country, there is no separation of powers, there is no restriction on power from a substantive rather than from a formal point of view, there is no constitutional at all. Reposted elsewhere in the paper for free download http://eng.hi138.com
The bourgeois principle of separation of powers and checks and balances to prevent the feudal autocracy to ensure that the bourgeois democracy and freedom, so that normal operation of the bourgeois state machine, play an important role. Of the proletariat in establishing their own rule, for government building, should also explore, absorb a reasonable factors, but must not copy rigidly applied in the system. This is because: First of all, this principle has always been there for the debate, and mixed. Some bourgeois scholars believe that sovereignty is indivisible; Some believe that the separation of powers in government create friction, fragmented responsibilities, forcing political parties to overcome the rigid separation caused by the confrontation, in short, 'cause of confusion and ambiguity, rather than simple, everyone can be monitored '. ⑥ long been noted that although the separation and balance of governmental power to be recognized in theory, but the theory required that the balance of power has not been achieved. Because, the reality is, initially raising the legislature, and later elevation of the status and powers of the executive authorities, the principles are often undermined.
Second, not all countries have to implement this principle. The implementation of US-style separation of powers system, a State is not common, such as the United Kingdom is to focus on legislation, EU member France is focused on the executive. Again, the separation of powers and checks and balances is a dictatorship of the bourgeoisie a means or method is the polity rather than the state system. Beginning of the bourgeoisie to the feudal class separation of powers, in their full access to political power, is a division of labor within the ruling class. As Marx said, the 'separation of powers is only a matter of fact this is to simplify the implementation and monitoring of national authorities to be the division of labor Bale of Everyday Things'. ⑦ These forms can be deceived by the masses, as a class struggle, the 'buffer' or 'smoke'. In addition, the Western countries to strengthen the impact of party politics, the formal separation of powers has also been manipulated by political parties and utilization.
Fourth, the rule of law naturally some people advocate the bourgeois constitutional principles. Some scholars praised the bourgeois side of the rule of law on the one hand to belittle our country the rule of law. What to say, a city in the overnight drafted the 'interim order' will be fully restricted 'procession and of demonstration', adding that whoever who is entitled to redress, who made a Taiwan who would be arrested or erroneous cases, grievances , a vicious cycle. The former is a blatant disregard for the fact that the latter is generalized. As we all know, the law and freedom are two sides of an issue, no legislation had no freedom. Only the free world does not exist one without the law countries. The problem is the nature of the law, who is free. More can not be considered, our Constitution is 'strong hands of people determined by the tools', 'hurt people' do not believe in the role of the Constitution and the highest effectiveness and the occurrence of 'constitutional crisis'.
We frankly admit that China's current Constitution, is inevitable inadequacies and shortcomings, for which we must constantly modify and improve it, but as a whole, the current constitution is good, is a powerful tool for people are the masters. We also recognize that in our country, due to various reasons, there are many of the socialist legal system against the existence of the phenomenon. However, in accordance with the constitution, hurt the 'people' should be said that the vast majority of those crimes, and those who commit crimes. In capitalist society, the rule of law is often destroyed, and this not only from the oppressed, but also from the rulers themselves. President Lincoln himself admitted: 'some measures could have been unconstitutional, but because they are for the country to uphold the constitution by maintaining this is essential, the result becomes legally a ... ... If you wanted to protect the slave system, or any other minor things, I went so far as to allow the government, the state and the Constitution all destroyed, then I can not be called even have tried to do its utmost to uphold the constitution of the '. ⑧
Fifth, the rights and political freedom. Today's world, human rights principles is the principle of the international community's fashionable. Unfortunately, the 10 amendments to the United States Constitution that 'bill of rights', as everyone knows is well known that in the constitution-making was established four years later, just going through the approval process is more than a year. In American history, black and white, women and men, when the haves and the proletarians have equal rights? American history, indeed, passed many amendments to the Constitution, even if the law provides for equal rights, but only the establishment of a formal democratic system only, to exercise their rights due to lack of the necessary material means, every citizen has a The right is still very much an illusion. Take the right to political participation for instance! From 1860 to 1976, 30 presidential elections, there are 23 times is a party election expenses exceed the opponent to win, he was elected President of the United States; the opposite result, only seven times, but there are four times the body took place in Roosevelt. With the 'money is in political activities of breast' to describe the U.S. political freedom is more relevant in the.
Turning to human rights, Nixon's term of office for the Attica prison riots can get a glimpse of repression. For the attitude of the incident, even the mayor of Newark, Kenneth?? Gibson is also considered to be 'part of a civilized society have never taken one of the most brutal, the most blatant repression'. 'There is evidence that a government official, dereliction of duty, cruelty vicious violation of discipline, whatever - and even openly murder'. ⑨ here, they advocated the so-called 'human rights' meaning not because Geingeaud exposing it?
Through the above analysis, we can see that the constitutional principle of the bourgeoisie, in the beautiful and touching words to the class under the guise of a substance, should we be able to copy rigidly applied without analysis to do?
3. In the end what theoretical formulation and revision of the constitution as our guiding ideology of the major questions of principle, some scholars and we have differences. Some say that those who rated modern constitution of human creativity, of course, would share a common experience and common law. Saying that there 'a universal human common constitutional path'. Declared that the Constitution is 'personality from advocating the liberation of the starting of the protection of private property' and so on.
Really have 'a universal human common constitutional path' do? I think that, or the capitalist road of constitutional reform, or the constitution of the socialist road, there is no constitutional way of a common humanity. Because the two kinds of different nature and purpose of democracy, the path is different.
Take only the constitution-making process in terms of bar! The development of socialist constitution is the people's deputies of equal consultation, discussion and reflection of the overwhelming majority will of the people process. The capitalist development of the Constitution all kinds of conflicting interests and the principle of compromise, is the internal friction of various local interests and the general interests of the adjustment. Constitutional bourgeois who, in order to maintain the rule of capitalism, in order to be the ruling class into submission, often rhetoric, deceived and deceive the people. Even bourgeois scholars also have to admit that only by relying on constitutional provisions other than the Constitution in order to understand the wealth of knowledge and practice. Moreover, the constitutional provisions are vague, and the experts even if the capacity of the same, even though the same sincerely want things to clear, it is entirely possible to make a variety of different interpretations of two equally proficient in the Constitution were, for the spirit of the Constitution can be make diametrically opposite conclusion. The Socialist Constitution, since it is a reflection of the will of the people themselves and reflect on the ambiguity of the word is not necessary, but also Needless to deceive themselves and others, but in the constitution after the adoption of various forms of wide publicity to explain as much as possible to do to the well-known.
China's Constitution from the 'respect for individual liberation' departure do? Person's 'personality' is a specific, historical, and there is in a class society, but also a concept of class. It is the product of social practice. Different classes of people, with different personalities, there is no abstract, super-super-class history and personality. The bourgeoisie against the feudal rule of the process, especially for the Middle Ages the dark rule of the bourgeoisie to suppress the development of personality and put forward the slogan of the liberation of individuality that time, undoubtedly played a progressive role. However, as the Socialist Constitution must not be advocating the liberation of individuality as a starting point. We are those who advocate making profits, money worship, anarchism and individualism demonstrated by expansion of the personality do? Or advocate serving the people wholeheartedly, collectivism, communism, the performance of the spirit of individuality it? Obviously, should not the former, but the latter, not only for the former can not be liberated, but should go against the limit and transformation.
The Socialist Constitution from the 'protection of private property' departure do? The starting point of all capitalism, the Constitution is to protect the capitalist system of private ownership, maintaining bourgeois private property, because private property is all the economic base of the social system of exploitation. The fundamental starting point of our Constitution is to maintain and develop the public economy and public property, other economic sectors, the existence and development must be based on public ownership as the mainstay of the economy, the existence and development as a precondition. Because there is no public ownership as the mainstay of the economic base, there is no socialist system. At present, even though China does not exclude the part of individual citizens the means of production of consumer goods and the existence of private ownership, which although protected by the Constitution and laws, but private ownership and the capitalist private ownership with the nature of difference. 'Socialist public property is sacred and inviolable', our Constitution not from the general 'protection of private property' departure.
What we need is what kind of constitutional theory? Can only be one answer: we need to the four cardinal principles as the guiding ideology of constitutional theory, which is the historical experience of socialism in China and will be further proof of that truth.
Some scholars have asked, after the founding of each of our constitution 'new' where 'good' Where? I think that in our country's socialist constitution provides for a new party in the different historical stages of the various historical task, the good news is clearly defined on the four cardinal principles of our people. Some blame the preamble of our constitution is 'Goethe' political declaration sets out four basic principles that we are not satisfied, saying that China's 'four-party constitution is a record of the results achieved and the will of the performance'. Preamble to the Constitution to reflect the true history of our society, emphasizing the four cardinal principles, the provisions of the goal of the future to clarify the status and effectiveness of the Constitution, which in turn what it inappropriate? While the Constitution is not a constitution can be the world's 142, according to the constitution to statistics, the provisions of the relevant parties have 93, accounting for 65.5%. Only the Chinese Communist Party can save China, only the Chinese Communist Party leadership in the building of socialist modernization, and only the socialist road before is the only way out, can in the Constitution, we alone can not reflect the truth?
We must better to the four cardinal principles as a guide, according to China's national conditions, to further modify and improve the existing constitution and implement the spirit of the Constitution, to defend the Constitution of the results, develop socialist democracy, improve the socialist legal system, promoting socialist modernization. Reposted elsewhere in the paper for free download http://eng.hi138.com