The traditional concept of reflection and beyond the Constitution

Paper Keywords: reflection beyond the traditional concept of the Constitution
Abstract: The traditional concept of the Constitution there are three limitations: historical limitations, the limitations of abstract objects, positioning limitations. Based on the concept of the traditional limitations of the Constitution of reflection and beyond, can be defined as an objective order and the Constitution order interaction and the formation of the concept of the sovereignty of the basic social norms.

First, the traditional concept of the Constitution Review
Throughout the Constitution of China, the scholars of the Constitution defines the concept of mainly the following circumstances: First, the Object of the Constitution to define the Constitution, this highlights the Definition of the main constitutional Civil rights, state power and the interaction between the two relations. If scholars believe that: "Civil Rights and the Constitution is to adjust the basic relationship between the state power sector Law, the fundamental Law of the country." Second, the function and role of the Constitution to define the Perspective of the Constitution. This approach highlights the double function of the Constitution - granting power to restrict the powers, it is a product of liberal thought. l9 century liberals believe that the U.S. Constitution is an important means to defend freedom, both central government departments regulate the power between the balance, but also regulate the central government and local balance of power between levels of government. Its goal is to bind the State power. Third, the performance of the Constitution defines the form of constitutional perspective. This definition highlights the two main elements of the Constitution: "has the form of written code, with a specific amendment procedures." it first must have a consistent emphasis on the "Constitution" of the normative documents to other departments and wears different. Next is strictly modify the program, as distinct from other Laws modification level. from the two main elements of the form to reflect the fundamental constitutional, rather than the adjustment of the object from the Constitution to reflect its fundamental. Fourth, the Constitution in the legal system in the whole house for the view definition of the status of the constitution. This directly to the Constitution as fundamental Law defining the properties highlighted. This definition stressed that the framers of the Constitution to the Constitution for the governance of human Political organization as a fundamental Law of the group. The Constitution and the literature that illustrate a country's Political system by which the principle of building the city. So American scholar Schwartz said: "The Constitution is the guiding principle of governing the country, including the national fundamental law." constitution is a Political and class define the perspective Constitution, such a definition from the law is the product of class society, starting, that the Constitution is the rule embodiment of the will of class. It is the Political ruling class in the law reflect the highest. "because the country belongs to the ruling class of individuals to achieve their common interests in the form, it can draw a conclusion: the rules are common to all state as the intermediary, are a Political form. "" The Constitution is the will and interests of the ruling class, embodied, "It is in this sense, understanding the Constitution.

In summary, different scholars from different angles with different content of the Constitution the definition, they are from a different angle reveals the characteristics of a constitution. And Research to our understanding of the Constitution has a positive meaning. However, the Constitution's basic concepts and terminology changes in the historical development at the same time, it has the constitutional principle of the change in synchronization. In other words, the development of constitutional principles as the history of change The basic concepts and terminology with the constitutional principle of change, to meet the constitutional principle. in the process, the constitutional practice of the concept first raised questions about the Constitution, and constitutional theory have begun to be explored in this regard, and the emergence of a large number of related results.

Second, the traditional limitations of the concept of reflection Constitution
(A) of the historical limitations of the reflection
From the perspective of the history of constitutional doctrine, the concept controversial constitution began in the first relationship between the state and different understandings of the Constitution. Traditional constitutional concept has the same generous doctrine of historical background: The Constitution is a product of the bourgeois revolution, slavery and feudalism period of constitutional history is in early childhood. At the time the constitution is not clear in form, not shape, the contents are incomplete, not systematic, not even the name of the Constitution, no independent from the general law. However, this kinds of vulgar bourgeois Constitution is the Constitution and the connection can not be ignored. modern constitution was not created out of thin air, not only must the development of the capitalist economy as its premise, the bourgeoisie for its midwife, but to the ancient times has been with the results of criticism and the Constitution, the existence of a law with the ancient continuity of the Constitution. Therefore, the traditional concept of the constitution of modern constitutional history from the extracted.

Hayek said: "abstract" is back in the performance of all conscious thought or for people to be expressed in words to determine the person before the action of the process with a feature. When a certain type (atype) of the situation so that a person tends to (disposition) to make a particular model (pattern) of the response time, called the abstract relations that already exist. This is the basic viewpoint of evolutionary rationalism. reflected in the institutional development is: we can only make the system dependent on the changes to the system of social needs and thus easy to detect, so far as possible meet the need for change. To ensure this flexibility, it is necessary to make political organization conditions attached to the social reality and needs, so that the political their self-organization does not value or the power of self-established and its consistent with the established society. Their existence is not because they are absolutely correct, but because they are in fact compatible with the community. Such the concept of a system that is being reflected in the Constitution: the decision of people's "rights" is a country's history, rather than the concept of the sacred and beautiful statement. no traditional support, a written constitution, but a dead letter. Therefore, the existence of constitutional tradition is the cornerstone of the Constitution.


In summary, the fragmented history of contact, that the Constitution is a product of the bourgeois revolution, thus ignoring the "law is like language, is neither arbitrary will, nor is the product of deliberate design, but the slow, gradual, organic result of the development "of the thesis. The legitimacy of this assertion is grounded in the continuity of social and material above.

(B) Reflection of the limitations of abstract objects
By "abstract object" refers to the phenomenon on which the concept of the sum. The concept of task is to generalize to all abstract objects, and the limitations of the traditional concept of the Constitution is that it is only abstract objects written constitution thus ignoring the reality of the Constitution, the concept of the existence of the Constitution.

The history of philosophy, people have realized that the "common sense, science and philosophy of the three-level conceptual framework, providing people with three different picture of the nature of the world, ways of thinking and value specification. It is in these three picture of the different nature of the world, ways of thinking and value specification, the world has been described and interpreted at different levels "." World Vision is a picture on the experience of the world, not fantasy or mysticism of the picture. "This indicates that the" world picture "of the material, it is not man's subjective will." The so-called 'thinking', usually refers to the people to grasp, describe and explain the world, the combination of the conceptual framework and mode of operation. "It is human formed in the process of social development logic system, a tool of the meaning of existence in the subjective world of. "The so-called 'value norms', that is, people's value orientation, value identification, value choice, value assessment and value of the Fulfillment and other norms. "This may be the moral norm, it could be behavioral. In short, the human mind or its normative behavior." People picture of the world, ways of thinking and values and norms are mutually interdependent constraints "an inseparable link with.

Constitutional law as the study of scientific phenomena and the Constitution, should also have a philosophical background of the above. So, we define the meaning of the Constitution should no doubt follow the philosophy of law, the Constitution is above all a phenomenon, it is not to the people the subjective will, with its own objective reality. So the phenomenon of the Constitution in the Constitution constitute a "world picture." It is a fact that judgments will not have any subjective nature, we call such a world picture constitutional reality, it exists in the objective world. By contrast, there is the subjective world, from a philosophical point of view, it is a "thinking" problem. As the "Thinking" exists, we can grasp, describe , understanding and interpretation of "world picture", and on this basis ought to form a concept. so that people judge the phenomenon of the Constitution to form a constitution ought to, we call the concept of the Constitution (model constitution) refers to the reality of constitutional development prospects of the future should appear in the Constitution. the social phenomenon of human thought in the process, the formation of his own subjective world, but the human nature to change the world of the initiative, always take Zhuguan the outside of the world. In this process, will form a "value of the norm." to the constitution of this subject, this result is outside of the emergence of a written constitution, it is the constitutional concept of the constitution of reality processing result is interaction between the objective world and subjective world, the product is a value specification. When people call this time of a written constitution to be implemented, it will have an impact on the reality of the Constitution.

Constitution of the traditional concept of a written constitution only as abstract objects, regardless of actual Constitution, the concept of the existence of the Constitution, but also ignored the interaction between the three, with the limitations of abstract objects.

(C) limitations on the positioning of the reflection
The traditional concept of the Constitution as the legal system are based on the definition of the system, so it is able to escape the constitutional law on the fate, which is just down the definition of the vision of constitutional law. As mentioned above, the Constitution is an objective reality of existence of the phenomenon, phenomenon is not really law. concept of the concept of the constitution is a way of thinking, nor is it law. If you stand in terms of positive law the definition of the Constitution, will not reveal its true meaning. so far, have been asking for this issue touched, the main performance of the following aspects: First, the Constitution is a branch of political science, or branch of law, or both interdisciplinary? Second, Marx said: "The Constitution - the law of the yardstick." We may wish to ask: " the criterion of the law "is the law? Third, the modern constitution to limit state power to protect Civil rights as the basic task to oppose the" privilege "as the basic value of the goal, it belongs to the fundamental law of nature, therefore, can not be simply classified as "Public Law" and "private" scope. In line with this trend, the constitution of a public law that is going bankrupt, the subject before us is that the Constitution is the traditional method? these three areas are the "Constitution is the Law" challenges the notion, also confirms the traditional concept of the Constitution in its positioning limitations. Links to Research Papers Download http://www.hi138.com Third, beyond the traditional concept of the Constitution
(A) Methodology
Through the limitations of the concept of traditional constitutional analysis, its remedy can only be the right prescription. First of all, to break the boundaries of history, from the long course of history to uncover the meaning constitution. Second, from the philosophical perspective (world view, thinking way, the value of norms) to examine the level of the Concept of Constitution (constitutional reality, the concept of the Constitution, a written constitution), and from a historical perspective of their own produce. once again, to get out of traditional modes of thought, do not just limited to the "law "This level of Investigation of its content. Finally, the identity of the three levels of the Constitution, the Constitution of the content of the abstract.

(B) of the three levels of constitutional
Real constitution. Aristotle in his <"Political Science>> using the" Constitution "is, he said:" Government (Constitution) of all organizations for the city-state basis, with particular focus on the political run by the decision 'highest governing rights' organization. "visible, he thinks the Constitution is about city organization, it is just a real natural order only, is an objective phenomenon. He studied the ancient Greek city-states regime 158, that different regimes have different constitutions. judge a good or bad form of government or the Constitution, mainly to see whether the selection of talented people to govern the public interest. Aristotle's Concept of Constitution has several characteristics: First, it the regime as a precondition, can be regarded as sovereign. On the contrary, the Constitution is not there any organization. Second, it is a basic organizational order, with the objective reality. These two features are realistic content of the Constitution. it is the reality of the Constitution within the sovereignty of the basic organization of social order. Further, the reality appears to the State Constitution, the time of production. the concept of the Constitution. human instinct of a "thinking", but in different historical stages of their development degree. This "thinking way "will eventually be the formation of a value orientation, as long as the phenomenon, people will think. Therefore, the concept of the Constitution and the reality is while producing the Constitution. It is the development history of the law, mainly in the natural law concept of higher law : "Legislation aimed at different types of people in the law implementing the higher level, in particular, achieved through specific limited by natural law." authoritative sources that have a higher conception of justice beyond all the political order in the strict sense political debate. modern constitution mainly due to the establishment of the value of higher law concepts of natural law, which can be defined as the concept of the constitution within the sovereignty of the people of the basic order.

Written constitution. Britain's unwritten constitution is typical of the Constitution, the modern constitution in the history of the oldest written constitution in 1776 when the United States pushed <"The Independents Declaration>>. So we can say that modern written constitution is generated, then we are faced with two issues: first, the concept of the relationship between the Constitution and the written constitution. people to make the constitution is the embodiment of reason and justice, is the embodiment of natural law, natural law is transcendent higher law of justice, the Constitution is its transformation of form , higher law is the law to give the Constitution as well as the conversion of the second, why there is no written constitution until the Middle Ages it? is generally believed that the production of a written constitution must have the following three conditions: the establishment of the basis of natural law, senior law the concept of long-term existence of pluralistic social structure, based on the structural basis of pluralistic society can exist independently of the commodity economy, and growing. First of all, in the Middle Ages ago, these three conditions can not be met. Second, the prevailing social relations is simple, there is no need different categories of the legal department to form a legal system, even if the provisions on the basic framework of society, will be distributed among the various laws, and therefore can not form a system of written constitution. Again, it is the lack of legal technology, will also affect the written The emergence of the Constitution. written constitution can be defined as within the community in a sovereign constitutional basis in reality to the concept of the Constitution as the media, and worked out the basic social order to reflect this legal document.

(C) beyond the traditional concept of the Constitution
Stratified our understanding of the Constitution, not from an overall understanding of the Constitution. Now the task is to be based on the stratification to identify the various levels of identity, of the Constitution as a whole to be sure. From the above argument It can be seen: first, three different levels of concern is a constitutional sovereign basic order of society, but either is an objective reality, or is the result of subjective thinking, or is the result of the interaction between the two, their identity is the basic social order. Second, the three different levels of constitution is the interaction and mutual restriction. So the definition of the Constitution from the dynamic point of view. Third, the reality is the core of the Constitution, the other two levels are to it is based. Fourth, the law is an order specification, but not the only order of specification. in the Constitution a dynamic movement, injected a subjective value. This constitution will inevitably include ethical and other norms. these specifications is an order specification, it is defined in the Constitution to break the "law" system, and from the order of the system. In summary, we can define the objective order and the constitutional order of the interaction and the formation of the concept of the sovereignty of the society the norm. reposted elsewhere in the Research Papers Download http://www.hi138.com