Constitutional Analysis: an interpretation
Keywords: constitutional text / Constitutional Analysis / textualist
Summary: The text of the Constitution refers to the constitutional text as the object of study, the constitutional text as a whole, using a variety of methods of constitutional words, phrases, sentences, to find out the meaning of the Constitution. It is a formalistic legal approach doctrine known as the text is widely used in the Constitution and constitutional theory of the judicial process of implementation. as a method of constitutional interpretation, constitutional text analysis has its limitations and advantages and disadvantages.
As a method of constitutional interpretation, constitutional law text analysis is the primary task. Because the law is also a text study, it relates to legal texts, court decisions and the development of new text of the plan. [1] can be said that, if left text, Law existence itself is difficult, especially in pursuing the legal age of written doctrine. The Constitution is no different. hard to imagine, in a written constitution era, if not the text of the Constitution, researchers, legislators, judges, what the general public As the object of study and content of the Constitution? What was the basis for interpreting the Constitution? inferred from where the spirit of the Constitution? the effectiveness of the Constitution to embody? In short, if there is no constitutional text, who should have the final say?
First, what is the text of the Constitution
Text of the Constitution, also known as "text Doctrine" (textualism or strict interpretation of the (strict construction, scholars and judges is the text of the Constitution Constitution of their own to infer the meaning of the word, the use of factor analysis of the constitutional text in the form of substantive content of the Constitution or the Constitution meaning of the process. in the analysis of the method, first need to define what is a constitutional text. from the formal point of view, a written constitution and the unwritten Constitution State constitutional text means the country is different. written constitution of the constitutional text, including the Constitution State Code, Constitution amendment, constitutional jurisprudence, international treaties, of which only a narrow constitutional text and constitutional amendments to the Constitution Code, the broad constitutional jurisprudence and the constitutional text will be included in international treaties. unwritten constitutional State, including constitutional law constitutional text, constitutional jurisprudence, the international treaty. This is the extension of the constitutional text by the classification. formal meaning of the Constitution and the real sense of the constitutional text contains different elements. formal meaning of the constitutional text contains the word, words, phrases, language , the concept of the relationship between different parts of words, the provisions of the logical structure of the different provisions and the relationship between the different chapters. real sense of the meaning of constitutional text mainly refers to the Constitution, based on the provisions of the constitutional process and the record shows that the debate The Constitution's original meaning and intent of the Framers. In order to analyze the convenience and precision, this is the constitutional text referred only to a narrow constitutional amendment to the Constitution, including the Code and the constitutional text.
The view was limited to the text of the text on the constitutional text, and elements outside the text to be excluded. First of all, it will determine the constitutional norms of the social political and economic factors that made the exclusion, not to consider the appropriateness of cause and effect. The constitution of proper causal of (the legitimacy of the social and political focus on the analysis of economic realities, it is the study of constitutional norms and social causal relationship between political and economic, that is what the constitution of social reality is based on the conditions established? what kind of social political and economic factors determine a constitutional norms? established constitutional norms reflect a balance of power between social relations? This is a real Marxist analysis. Secondly, it would exclude moral considerations, not to consider the appropriateness of the value of constitutional norms. Moral The purpose of considering the value of proper study of constitutional norms (the legitimacy of constitutional norms to see whether some kind of abstract principles such as justice, equity and other senior law. Again, it made the exclusion of judicial precedent, not to be considered before the court made decision. Finally, it has made constitutional history of exclusion, not to consider the constitutional process and representation in the Constituent Assembly debate on record.
The first two were ruled out with the ethical nature of the method. Whether it is general social political and economic realities, or prior to the specification and the transcendent moral evaluation, and they are in some pre-determined specifications to judge the constitutional norms themselves. Which general political and economic realities of social analysis is a method of social positivism, sociology and political science is often found in the analysis of the process, it is the fact that some reasonable elements of the existing constitutional norms as the basis for further evaluation of the constitutional text specifications. ethical considerations is a philosophical method, usually coincides with the analysis of political philosophy. It is assumed in some abstract or self-evident principle of constitutional norms for the conduct of the evaluation criteria. This method of natural law or constitutional norms, or divine revelation and some instructions as eternal and unchangeable standard evaluation constitutional norms. As for the precedent to rule out is that precedent made by the judge rather than the constitution to represent the people who made, although the case law country, a precedent binding on the strength of normative , but it does not have the support of the democratic legitimacy of the constitutional text specification, and therefore not included in the precedent analysis of the pure text of the Constitution. of constitutional history as well as representatives of the Constituent Assembly debate on records and research, common in historical analysis, which is a historical analysis. It can be seen, in addition to precedent is a judge in court with legal methods, several other methods to be excluded or sociological approach, or method of political science, or philosophical method, or history methods. they have in common is around the constitutional text in the text to look for other factors determine the strength of norms and factors, rather than locked in view the text on the constitutional text. For this reason, although these methods The content and the relevant constitutional norm, but in essence, do not fall strictly legal methods.
Text of the Constitution or a constitutional interpretation, because "all have a similar interpretation of the text on the learning issues" [2]. On the one hand, and always want to clarify the true meaning of the text, which requires explanation, on the other hand, always explain have to go by, this Li Bukai text. with the constitutional text and constitutional theory and history of the interpretation process analysis, text analysis is Savigny interpretation of the law within the meaning of the four elements, namely grammar, logic, history and systems. And Text of the Constitution is both a technical issue, but also a question of attitude. skills and attitudes of the difference is: technology is the analysis and interpretation of the constitutional text as a starting point, whether the attitude is, as the text of the final effect. If the text of the Constitution as a kinds of technology, just need to focus on the text itself, but as the text of the Constitution of the attitude not only need to pay attention to constitutional text, but also need to focus on the effectiveness of the text. differences between the two is that one is placed in the center of gravity will focus on starting a home will be the focus of attention in the end. Strictly speaking, there is no way to distinguish between the two. If the text of the Constitution is technology, technology is always applied, the application process will inevitably add attitude.
Second, the constitutional text analysis is how to produce
As a theoretical approach and practice of law on the meaning of the interpretation, analysis of the constitutional text does not start there, but a historical phenomenon, whose origin and development due to the interaction of a number of factors. These factors both politics, there are laws, both academic, but also justice.
As a method and interpretation of law, the constitutional text of the Constitution depends on the causes of the emergence of the phenomenon, the production of a written constitution, the constitution of an independent discipline, the Constitution as Chi formation of the academic community, as well as the implementation of constitutional justice needs. modern sense of the Constitution of the phenomenon of the 17th century, the United Kingdom 1689 "Glorious Revolution" as a symbol, this time much later than private law, the U.S. Constitution of 1789 marks the birth of a written constitution. These two factors General, decided the previous text of the Constitution can not be evidence-based research on the phenomenon of the Constitution, and as an independent establishment of constitutional discipline is also very recent thing. Since the early state constitutional law and political science rely on the existence, almost in a different countries and different periods, have removed from the Constitution in philosophy, political science, sociology and history and other disciplines, it is difficult for its unique research methods touted academic independence. a group to study the constitution of the professional academic Chi groups and the emergence of this course with the Constitution of the emergence of time-related. as in the university offered a course, constitutional law in various countries appear very late. Constitution of the European continent in the University offers courses most important in France University of Paris, time of .1835 mid-19th century, the Paris establishment of the Constitutional instructors, but in 1851 (after the coup of Napoleon III, the instructors has been canceled, and was established in 1879, a new instructors. until 1885, scholars Bout m (Bountmy still there lament: "public law branch of the most important has been left out in France." [3] to the early years of the 20th century, constitutional began famous men, such as the Diji, Essman, Aoli Wu, etc. . until the First World War to the Weimar Constitution, the Constitution only the course in Germany. Prior to the German constitutional state of law school or belong to, or become a traditional political science is the main content of the national study. for a long time, some Constitutional scholars desire to get out of this situation, trying to update through the method with other adjacent disciplines to distinguish. Back in Bismarck that the Constitution Constitution of the Empire period in 1871, the then State Law guru Laband approach to strongly advocate the sense of establishing legal national legal research, that the concept should be implemented based on analysis of legal rights and obligations, and political significance to the fact that relations between the distinguished. here is the real concept of the constitutional text given by the text on the composition of the Concept of Constitution . Laband purpose is to make the country a more radical form of law, and reasoning, and composition theory. He believes that "the current reality on the set norms, and its value judgments of the fact that the object has full understanding of the necessary certification , then in addition, law is to make the thinking process in the pure theory "." All the history of political and philosophical considerations, and specific legal hermeneutics facts, no relationship. "[4] a time when 19 mid-century, before the State Law mixed political and economic policies of various factors, Rumsfeld aims to purify the country of law, its true within the limits set in the Law. followed Michael and Kai Erxun is sparing no effort remove all thoughtful teleology and sociology, the Law as given to the relevant norms for the real object of study, the content of emptiness in the form of science. and that the appropriateness of the law may not be valuable, may not have the proper nature of cause and effect, The owner of the only real set of appropriateness. fact is the appropriateness of given proper law, that is all to implement provisions of law in mind. [5] However, when the Constitution is still not from the political science, or State law independent of the Weimar Constitution during Constitution master Schmidt wrote this masterpiece <<constitutional doctrine>>. In this book, Schmitt addition to make the Constitution or state law from a national study self-contained learning, and research on the scope of national law with the traditional distinction between political science or other, they use methods with the traditional state law or political science are different, which is focused on the basis of the Constitution Constitution Code concept, and proposed the "constitutional concept of absolute" and "the constitutional concept of relative". "absolute constitutional concept" is a real sense of the political decision based on the Constitution, also known as the Constitution of empirical concepts (where Empirical evidence is a social rather than legal evidence, "the constitutional concept of relative" is the constitutional text-based formalism constitutional norms, but also the sense of legal positivism the constitutional concept. On this basis, Schmidt developed his famous "Constitution" and "constitutional rules" dichotomy (and some will be the translation of the "Charter" and "constitutional law." stressed the political decision before a constitutional sense, focusing on the integrity of the Constitution, which emphasizes the text of the Constitution meaning based on the form of constitutional provisions. Schmidt, this distinction is noted that two different faces of the Constitution, in the text of the Constitution with emphasis on the reality of the premise of the Constitution different from the constitution. political decision on the constitutional meaning of the concept or "absolute constitutional concept" of the proposed constitution opened the link between political reality and the path, reflecting the political side of the Constitution, constitutional laws or "the constitutional concept of relative" indicates that the normative force of the Constitution, the laws of the Constitution embodies the of the side. Meanwhile, this concept and points to the Constitution, but also the method clearly laid the legal methods of political science research methods and characteristics of the distinction.
The implementation of the Constitution is the judicial analysis of the constitutional text produced another important reason. According to the U.S. scholars in the United States, the Constitution is the completion of constitutional law text analysis of the needs and the way to go through. This is because the century by the British 16,17 basic law concepts, the early United States is not the strict sense of the Constitution as a legal document by the court to implement, but a decision by a sovereign act of political documents. political documents and legal documents are different. political document constraints sovereign acts, binding legal document individual behavior, political documents implemented by the political organs, the implementation of legal documents by the courts and political documents by the political authorities (the legislature passed amendments to change its meaning, judges interpret legal documents to give it meaning. In Marshall as Chief Justice during the , due to the need to establish through the exercise of the right of judicial review status of the Court, Marshall thoughtful and unassuming but not the introduction of common law interpretation, the constitutional line of sight to the people successfully transferred to the text of the constitutional text to complete the court as a constitutional interpretation who attempts to determine the meaning of the Constitution and the formation of a great people to avoid judicial review the court's view as a political act. This is a case he has made a clear legal opinion reflected.
Marshall's two aspects of this approach rely on the reform of judicial techniques: First, one by one British judge changed the habit of writing legal opinions, to change the majority opinion, the accompanying comments and objections, first in the production of legal advice to the constitutional text as interpreting the Constitution according to the text. These are two associated actions, both can make a loose, fragmented nature of a majority of judges, the Supreme Court speak with one voice, can also bring attention to the constitutional text text, and through the courts Court to interpret the Constitution to establish the status of the text text. [6] combination of two factors, the Court effectively reform the structure of state power and the overall image of the public mind. which focus on the text text to interpret the Constitution in all constitutional cases as Marshall's submission of a notable features. In 1819 Dartmouth College v. Woodward case, the opinions of each sentence agree with the handling of the case depends on two questions: whether the College charter constitutional meaning of the contract, if it is, whether the damage bill in New Hampshire of the charter obligations. Marshall, in his legal opinion repeatedly referred to "constitutional text." He said: "Obviously this is a contract, donors, trustees and the King ... ... is original contracting parties of the contract. ... ... Therefore, it is a not only literally, but in the spirit of the contract are in line with the Constitution. "[7]" In the absence of all authority of the cases, according to the nature of the case and the reasons , rather than constitutional text that we can find the maintenance of constitutional interpretation of the thing? "[8] in the 1819 case of Sturges v. ��������� Marshall words by examining the meaning of the Constitution to determine constitutional significance. He said: "In discussing 'whether the state is prohibited by such laws' of this issue, we first need to examine the relevant words in ordinary usage meaning. What is the obligation of contracts? will cause damage in the end it is what? "Finally, Marshall to such comments made on his point of view the answer:" In discussing this proposition, we can properly assume that, despite a law, in particular the spirit of the Constitution will be no less than their words respect, but this spirit is mainly derived from its text. "[9] Marshall stressed the constitutional text and interpretation of the Constitution are linked. In the law declared invalid the process, he has three solid issues directly addressed in the Constitution .8 years later, in Oden v. Sanders case, Marshall said again: "the Federal Constitution concerning the application of the principles of interpretation, we have already said too much. ... ... that the Constitution intended to pen the inevitable dominance, said that intention necessarily from the constitutional text, that text must be in accordance with the Constitution the Constitution in general to understand the meaning intended to be used ... ... this is repeating what has been discussed a lot, but also what may be necessary. "[10] in these judgments discussion, Marshall insisted that the Constitution is subordinate spirit of the Constitution the words, only one exception, this is McCullough v. Maryland. In that case, Marshall gave up his upheld in other cases the method of probing the words from the Constitution constitutional intent, the reasons for his doing so is considered likely because he believes that "necessary and proper clause" of the text itself can not stand the essence of what he needs. and this will not affect his analysis of constitutional text created, but also with his consistently adhered to the Constitution as a tool to solve the problem is not inconsistent [11].
In these case, the most obvious explanation is the text of the Constitution, the 1824 case of Gibbons v. Ogden. In this case, a New York State law in conflict with the laws of Congress, which involves China, the Constitution will be Right, "adjustments and foreign and interstate commerce," the interpretation of this provision. This time, Marshall used the interpretation of constitutional text analysis skills are very skilled, through the "adjustment" and "commercial" interpretation of the two terms, giving Marshall The very broad meaning, and to expand the powers of the federal parliament. Marshall that the "business" includes all economic exchanges, is sufficient to accommodate all the obligations of a comprehensive concept of the future. "It depicts the countries, part of the country between the internal part of the country's commercial dealings between. "After that, Marshall has to" adjust "the meaning of the verb made the same generous interpretation." What kind of power? "he asked." is to adjust the power, that the provisions of the rules govern business. Like all the other powers given to Congress as the power itself is complete, may be exercised to maximize. "[12] Marshall's explanation," Commercial "includes all of the exchanges," adjustment "all-encompassing.
As the vision of today, this text does not explain the technology curious place in court, but in the 19th century, the meaning of this extraordinary move. Because for the time being, as a constitutional interpretation of both text analysis technology not established, people do not think the constitution is the law, the written text of the Constitution has respected the importance of not like today. When Marshall insisted the primacy of the meaning of the text by analyzing the reasoning to determine when the Constitution was violated, his colleagues are still bypassing the constitutional text, directly through the spirit of the Constitution, intentions or some established principles outside the text - not the constitutional text - to search the contents of the Constitution. For these people, even by the judiciary to determine unconstitutional, this behavior is more of a public or political action, rather than a real judicial action. [13] At the time, this is a common perception and approach, because that time the minds of the constitution and not a law, judges do not treat the law treated as the Constitution. Marshall is an exception and the exception is his first to the corresponding legal interpretation of the text and text to the Constitutional Tribunal technology into the process. For this reason, the American scholar that this is a constitutional change, its meaning is not simply the introduction of common law interpretation, but the text of the Constitution by interpreting the words, phrases, sentences, meaning to change that Constitution as the only view of a high-ranking political documents to make the Constitution into a real legal text, which will be inherent in the Constitution and legal factors, political factors combine to make the fundamental law as "the supreme law of this country" to complete the basic law of the law, and established the Court as the interpreter of the Constitution position. In the process, he also introduced the logic of common law lawyers and legal arguments in the form, but as the text of the constitutional interpretation and therefore popular.
Third, the constitutional text analysis method
The purpose of the text of the Constitution to clarify the meaning of the Constitution (meaning, it needs to use certain methods, carefully composed text, the word (letter, word (words, phrases (phrase, sentence (sentence form elements, and elements of each of these forms the relationship between the Constitution in order to accurately grasp the meaning of (meaning. specifically, the constitutional text of the following steps:
First, the constitution of a particular text as an object. Specific constitutional text either to the Constitution Code can also be part of the Constitutional Code for analysis. That is, in interpreting the Constitution, the interpretation of the starting point is the constitutional text itself. Have the text before to explain. This is the explanation of the proper meaning, and the text is the text itself. in our constitutional text, for example, in the interpretation of a particular text, either a separate analysis of "national institutions", but also can analyze "basic civil rights and obligations" can also be analyzed, "Master" or "preamble", or analysis of the overall structure of the Constitutional Code. Amare in his <<Bill of Rights>> book, the "bill of rights" as a study object, the "bill of rights" and the bill for the amendment of article 14 states the chain between the role of (interlocking, so the "bill of rights" constitutes the text of the book's basic structure and most of the main content.
Secondly, the text of the Constitution as a set of specific words. Because the different ways of linking different phrases may have different meanings. By the Constitution as a glossary of terms specific text, specific analysis of these terms can be followed by the association formed meaning. This requires the use of language and logic of knowledge, of a group of words have meaning. Amar in his book <<Bill of Rights> "was Written in the analysis process, the" bill of rights "provisions, as as "a group of words" (a set of words of different connection, the specific terms of the specific meaning of different phrases.
Third, in the interpretation of text, try to use the ordinary meaning of the text. Usually meaning that the English plain meaning, it was also to be translated into "exoteric meaning." It is clearly important, all languages are generally more justice, but as far as possible in the interpretation of language in a country whichever is the usual meaning. most of the text advocates the assumption based on this, that can be identified from the text to a unique answer. That is, if the text vocabulary (words meaning the surface is very clear explanation should be based on the text itself. <<Vienna Convention>> Article 31, paragraph 1, states: "A treaty requires good faith in accordance with the terms of the treaty gives them the context of ordinary meaning, and with reference to the object and purpose of the treaty to be interpreted. "[14] European Court of Human Rights in the interpretation of <" The European Convention on Human Rights>> when clear on this point, the ordinary meaning of words often used to explain the provisions of the Convention and by reference to dictionaries to ascertain the terms of the meaning of the usual and natural. This method in the European Court of Human Rights have been reflected in the jurisprudence. In 1987, ruling Johnston case, the Court of Human Rights ruled that: "the term marriage rights ordinary meaning does not include a right to divorce. "Lithgow in 1986, ruling the case, the Court of Human Rights: Article 1 of Protocol in the" general principles of international law, "the ordinary meaning of reference require the phrase is given Statute of the International Court of Article 38, paragraph 1 d under the same meaning. [15]
Fourth, the text within (intratextuality analysis. This is an overall analysis of the Constitution as the spirit of the legal method, which stressed the constitutional text the words appear in different parts of the consistency, also known as "context." Generally, When the single words themselves do not know when to consider the interaction between the concept and structure to guide the interpretation of the constitution which is a method of structure as a whole. Therefore, the text method is not always the text from the text (literal explained, some text, such as John Hart Ely advocates is not a single word to be checked to find its meaning in isolation, but the constitution as a whole structure. Although this method avoided the strict literal interpretation, but The method itself is still running within the text of the Constitution, and that the interpretation of the Constitution and valid data is directly extracted from the text of the Constitution for its own premise. the other side of this approach is that when the constitutional text conflict with each other, or when the judge cited certain other provisions of the terms of the text but does not support a decision, the judges need to balance the various parts of the Constitution in order to determine the meaning of a text. [16] For example, the "workers" in the country occurred at the Constitutional Code " Preamble, "" Master, "" basic civil rights and obligations ", should be analyzed together different parts of the" workers "in the constitutional meaning. Amare in the study" bill of rights "in the process of identification was also carefully braided original various words appear in the Constitution to the "bill of rights" in repeats, a variety of topics on how the first ten amendments to the text are repeated, the Fourteenth Amendment of the key sentence (key sentence and the original Constitution and the "bill of rights" how to cross each other. The European Court of Human Rights in the interpretation of <"The European Convention on Human Rights>> when great emphasis on" context. "<<Vienna Convention for the>> paragraph 2 of Article 31 into the" context "is defined as: the entire text plus its preamble and annexes, with the treaties, the treaty concluded with all parties associated with any agreement reached, and by all the parties to the treaty as a document relating to the acceptance of any legal documents. The European Court of Human Rights Golder 1979 case ruling that: "the process of treaty interpretation is displayed in accordance with the Vienna Convention article 31 in the 'general rule' into the way, the process is a continuum, is a single integrated operation, after the close integration of this rule, placed on the same footing, the article listed in the 4 different elements. "[17] In practice, the context can not only help to make a treaty as a whole to be understood, and often In the foreword to the goals established to get the relevant help. [18] This method is also applicable to the constitution. in the constitutional text analysis, shall the Constitution as a whole, to take care of the Constitution including the preamble and the Master Code sections. in particular the preamble, because it established a national policy and objectives, and thus for understanding the rest of the constitutional text of great help. It also clarifies the strong recognition that the Preamble, the force of law, and fully reflected in the Constitution text interpretation process, the preamble is to clarify the association of other words the constitution-makers intended meaning and an important guide.
Fifth, "the text between the" (intertextuality analysis. This is one kind of emphasis on constitutional text �� other authoritative analysis of the interactions between the file, it needs with the same legal culture and legal traditions, legal documents have the same meaning between the text retrieval . In "<bill of rights>> a book, the author's method is often used as the first ten amendments to the U.S. Constitution's" Bill of Rights "and the United Kingdom 1215" Great Charter ", the English Bill of Rights 1689, American" "The Independents Declaration>>, the states with the constitutional rights of the Declaration, by viewing these files in the same text to identify the meaning of the Constitution. [19] of been able to do so because the United States and Britain have the same legal tradition, the United States directly from Britain inherited the spirit of the law there, including the wording of the text. but do not have the same factors in the country between, these methods can not be used. to our country, for example, the text between the method is only suitable in the calendar after the founding constitution of between , Constitution of the Republic of China after the founding documents and between the various constitutional documents do not have the "intertextuality."
Sixth, in accordance with the constitutional text of the order of sequencing. This approach embodied in the Constitution as a study of the theory. Many of the constitutional text of Constitution to arrange the order of the order, which is a respect for the constitutional text of the research methods. Still by Amar, for example, his "Bill of Rights" study is in accordance with the "bill of rights" text book chapters in order to arrange the order. in the writings of many of our Constitution can be seen that the research methods, with particular notably, Professor Xu Chongde in its editor's <"China Constitution>> book the methods used. As At that time, study the Constitution and rely mainly on the Soviet method, Professor Xu Chongde consciously in accordance with our Constitution of 1982 Code, the text structure of Arrangement order. Since then, the method become the mainstream of constitutional law textbook structure, reflecting the respect of the constitutional text.
It should be noted that, due to the constitutional text analysis and interpretation of the Constitution aims to learn the meaning of the Constitution, and thus the process of analysis in the text of the Constitution, the Constitution intended to take priority. But, who appears in the analysis of constitutional text, constitutional intent from the constitutional text , or that the intent of the Constitution text is the best place to learn the Constitution. Consequent, when the constitutional text can not be caused by the intention of the Constitution, the constitutional history of the constitutional text will become the most authoritative interpretation outside sources. that is, when the use of text not enough to clarify the meaning of the Constitution, the constitutional debate during the academic record is the first to help the judge interpretation of economic information. It is noteworthy that, at present, a number of national courts or the Constitutional Court places great emphasis on the use of comparative method, borrowing countries Constitution to establish their own words the meaning of the Constitution. While this approach met with some opposition, but this tendency is also revealed a new message that the comparison methods and learn from other countries to explain the Constitution and constitutional law sources in the comparison of the Constitutional Tribunal value. Another trend to note is the constitutional text should be noted that the times and social reality and the link between the open attitude as far as possible to establish the contemporary meaning of constitutional text. constitutional text analysis can not stifle the development of the Constitution, can not allow drafting and entry into force The Constitution in time become an obstacle to progress in the shackles of the Constitution. The European Court of Human Rights in establishing its rule of interpretation has come to this conclusion: the interpretation of the Convention from the following sense must be "dynamic": it must refer to the social and political attitudes be explained by the development, the effect can not be limited to the effect it is the time of the drafting or the various concepts. Under this concept, such as racial discrimination, this time does not enter the minds of the drafters of the prohibition was being included in the treatment of derogation, the provisions of Article 8 of the Convention on the privacy protection is also considered to be evolving to meet new, unforeseen before 50 years of technology development. At the same time, this dynamic approach has a limit, that is, can not be some new interpretation of the Convention on the Rights of them. In this way, under, "" The European Convention on Human Rights>> many of the rights, such as family, education, forced labor, freedom of trade unions have a new development concept. Although these the development of the concept of expanding the obligations of States parties, and make it beyond the original commitment, but this method was considered necessary because these countries signed the treaty intended both to protect individuals against the threat the past, but also desire to its citizens from future threats. [20]
Links to Research Papers Download http://www.hi138.com four methods for text analysis
Constitutional Analysis method can be applied in two areas: one area of constitutional theory in the constitutional text in order to verify the basis of norms based on a point of view, and then determine the appropriateness of the normative point of view, an area in the constitution judicial practice, as determined by the constitutional text based on the constitutionality of the statute.
Theory in the Constitution text analysis used in the study should pay attention to the following aspects: first, the text following the true historical events and struggles, it is only in the text on these struggles gave birth to the "freedom" and "equality" and other words the other is hidden in the text following the ugly side of history. these events is the age of those living in the era of constitution-drafting, but also for their efforts trying to get through the text of the constitution of such things "never" happen again the driving force. Third , semiotic sense of the uncertainty of the meaning of words must also be noted. the same words in different context and meaning of the scene is not the same. These are in the process of using text analysis to be kept in mind.
Marxist analysis of the text also in the process of constitutional interpretation and judicial reasoning, was used as a method of constitutional interpretation and use. In the United States, the text advocates (textualist is defined as "those who give the constitutional text and structure of the first heavy, and often wonder the ability of judges to decide the collective intent of the original fundamentalists are. "textualist (textualism is the United States in 1936, Judge Robert Owen, the United State v. Butler as defined in the case, also known as" strict interpretation of doctrine are "(strict constructionist . This school of constitutional interpretation and judicial reasoning in the process will be the constitutional text as a basis for authority. They believe that one judge's function is to give the Constitution and laws to force the other hand, the text in the Constitution or the law (words constitute its meaning the best guide. It is this point to keep in mind, Justice Frankfurter made the guidance of the famous three-step theory of statutory interpretation, namely, read articles ��, �� read articles, �� read articles. [21] Read articles also apply to the constitution strong. textual analysis of the problems manifested in difficult cases. What is the easy case (easy case? What is a hard case (hard case? how to decide which cases met the case is easy or difficult cases? difficult cases because the text is usually vague and ambiguous to the sky, usually there are four cases:
First, if a word can have two or more meanings, or be ambiguous, this case is difficult cases. For example, the Constitution provides that "citizens are equal before the law", which "equality before the law," This a phrase is not clear. The Constitution has many such phrases, for example, freedom, housing, communications, human dignity and so on. such phrase does not mean rigid, to some extent framers or legislators intentionally, the purpose of These phrases can grow is to prevent some crime to solve the constitution or legislation does not and can not foresee the beginning of the situation and problems, it is suggested that such uncertain legal concept of "law and order in the strange free eggs." In this case, based on the Constitution to read is not find a simple answer, in addition to relying solely on the text other than the judge can explain other explanations recognized community tools.
Second, when in a case in the language of the applicable provisions of the Constitution is very clear on the surface, but the result is inconsistent with the rules for the purpose of this case is difficult cases. In such cases, the ordinary meaning of words and use the Vocabulary is a tension between the reason, the problem is usually due to poor drafting of technology to the purpose listed in contradiction with the legal wording caused. this is a relatively well-known amendment to Article 13 of the U.S. Constitution. It provides:���ڹ����ڻ�����ڹ���Ͻ������,����ū���ƻ�ǿ�������ƵĴ���.�����Գͷ����о�Ϊ������,���ڴ���.��Щ���������ϱ�ս��֮����ݺ�ͨ����,��Ϊ�˸�����ǰ��ū���Գ�ֵķ��ɱ���,������Ŀ�������14������15��������һ��ȡ��ū����..Ȼ��,��������������Ķ��Ļ�,ū�����ƺ�����һ���ƶ�,����һ�ַ���ͷ�����.
����,�����ٷ����ܷ�����ĺ�������,��ȴ�е������������������������,����Ӧ�����ܷ�������������ƽ��,��������������Ѱ���.����,�ܷ��涨"��������",������һȨ��Ӧ���ֹΥ���̰���ƽ��,ÿһ���˶���ƽ�ȱ�����Ȩ��,����Ȩ��Ӧ�뱣����ʷ������Ⱥ����ƽ��,ÿһ���˶����л���Ȩ��,����ЩȨ��Ӧ���������ص�������ƽ��.�ڴ������,�ܷ�����Ҫ��Ժȥƽ���ı��ĸ���������,����Ѱ��һ���ı�����Э����Щ��ͬ����.
����,����ì�ܵ��ı��洦���Է���,��������������Щ����ʱ,�����е��ı���������ȴ��֧����һ����,���స��Ҳ�����Ѱ���.��ij�̶ֳ���˵,������ì�ܵ��ı�,��ȴ���������������һ��Ӧ������������.���ܷ�����Ҫ��ƽ���ܷ�������ʱ,����ܷ���Ҫ����Ѿ����ı��к������д��,���پ�û��Ȩ��ȥԮ���ܷ���������������СӦ�����õ��ı��ķ�Χ.[22]
�塢����
��Ϊһ�ּ������о�����,�ܷ��ı�������ǰ����һ���ܷ�����Ƚ��ȶ�,�ܷ��Ĺ������ϴ�.���һ�����ת�ͼ���,���������������,���ܷ��ı����������ۺ�ʵ��Ч���ǻ���ۿ۵�.ս����ʱ���ɻ��߿�,�ܷ�Ҳ���,�dz�״̬֮�����ܷ��������ֹ,����ս�������ҡ�����״̬֮�µ��ܷ��ı����������ۺ�ʵ������û����������.���漰�����ɺͷ�Ժ��������ǰ�ľ���.�Դ�,����������:"ս��֮ʱ,����ʧ��".[23]������<<�����������˼¼>>��Ҳ˵��:"������������ǰֻ�ܱ��ֳ�Ĭ,��Ժ��ͬ����Ҳά�ֲ��˵ĺ�ƽһ������ʧ��".[24]�ʶ��ܷ��ı�����Ҳ��������������.
�ܷ��ı��������ŵ����������¼�����:��һ,ʹ��������һ�����ܵķ�Χ��,�������۵�չ��,�������ޱ�.�ı�������С�˷�Χ,�����������뻮������һ��,��Χ����ʹ��Ϸ��Ϊ����.�ڶ�,���Խ����ֽ������ı����������,���ڿ���������һ�ֽ������ʺ���Щȷ�Ĵʻ�(words,�����ճ�Ϊ��߷�.����,�ܷ��ı������������Ƶ�����Ϊ����ġ������ܷ�����.���ٺ���ʦ�����г������ɴʻ�(words���������,����,�ı������Ƿ��ɷ������������,�������ɵ�����(letter�������Ƶ������ɵľ���.��<<Ȩ������>>һ��ķ���Ϊ��,�����ܷ���peopleһ��������,��<<Ȩ������>>�����Ȩ��������Ȳ���personҲ����everyone,����people,�Դ˿�����֪�ܷ���<<Ȩ������>>�ľ��ǽ�����������,"����"Ҳ���ܷ�����Ҫ��ֵ,�����ܷ������������ĸ�����,���������ǽ���ֵ�������������Ϊ�˱��ϸ���"����".����,�ı������ɶ��о���Χ��һ���ų�,ͨ�����ƹ淶Ȩ��(authority��ѡ�����������о���Χ�����ı�,ʹ����������ӽ��,��ʹ���������ڽ������ļ���"Ȩ������"��Ϊһ������һ�º��������Ƶ�ʵ��.����,ʹ���ı���(intratextuality���ı���(intertextuality���ַ�������,�ɰ���ȷ�������ܷ�δ�оٵ�Ȩ����������Щ?��η�������?�������ܷ�Ϊ��,�ı���(intratextuality�����ɽ���9�����������ܷ�������ϵ����,ȷ��δ�о�Ȩ���Ĵ���,�ı��䷽��(intertextuality������ʹ���ٽ���14����������Ӣ����<<������>>��<<Ȩ����Ը��>>��<<Ȩ������>>�����ݵ�������ϵ�����Ķ�,ȷ��δ�оٵ�Ȩ��.�����������Dz�ע������ܷ����о�Ȩ��,ǡǡ�ǽ��������оٵ�Ȩ��,��ʹ�ÿ����Ե����Խ��н���֮ǰ,��������Щ�ı��оٵ�Ȩ��֮�����ijЩȨ��,���߳�����Щδ�о�Ȩ��֮�����Ƴ���Ȩ��.����Ҫ���ܵؼ���о�Ȩ������(letter�Ա�ǡ����֤����Щ��������ľ���.����,�������ռ����������ܷ����ֱ��ֵĸ���Ȩ��.���ǽ����ܷ��ı�,�����ܷ�<<Ȩ������>>����Щ��ΰ����(grand phrase�ŵ�������ͨ�����пڶ��ഫ,�㷺�ռ�.����������(the freedom of speech,���к�Я��ǹ֧(keep and bear arms,�������ɳ���(due process of law,������������(We the People of the United State��������������.[25]
�ܷ��ı����������ı��������ܷ�ѧ�о��е�һ�ַ������ߺͷ���.ʹ����һ����,�����������������������һλ�ܷ�ѧ�߰�������"�����ܷ���ʱ��"����(three great constitutional moments.��������Ϊ,�����ܷ�������ʷ������ΰ����ܷ�ʱ�����͵�,������ΰ����ܷ�ʱ�̷ֱ��ǽ���ʱ�ڡ��ؽ�ʱ�ں�����ʱ��.[26]�������Ȥ�ط��ʵ�:"���Ȩ������δ�о�,�����������������ĵ��ܷ���������?"[27]����֮,���Ȩ������δ�о�,������Ҳ��δ�о���?�����ٴ���ʾ����������ܷ��ı��ĸ߶����ؾ���.��������,�����Ϊ�ܷ��ı���������ȱ��һЩ��ʾ�Ĺ涨,�Ͳ����϶�ijһ"�ܷ�ʱ��"�Ĵ���.Ҳ����˵,��ν"�ܷ�ʱ��",�������ܷ��ı�������������,���������ν"�ܷ�"ʱ��.����Ϊ��,��ͬ�Ⱒ�������������ܷ�ǰ����ʱ�̵Ĺ۵�,��Ϊ�ı�����ǡ���ṩ������ʱ���ۺϻ�����֤��,�����ܷ��������Ѿ����ı��϶Դ���������,����ָ<<Ȩ������>>��ǰʮ���������͵�14��������֮��Ļ�����ϵ,���ܷ��ı�ȴδ������ʱ�����κ�����,������ı������Ĺ۵�����,��������Ϊ�������ܷ�ʱ����վ��ס�ŵ�.���н���,����һЩ���ı������ѧ��(more textualist�����������ɸ�Ϊ����.���������Ϊ�������ܷ�ʱ�̼�����ʱ�ڵ���������������Ȩ���������ٷ����Ȩ��,��Щѧ��ͨ������20���ͳ��ڵ��ܷ��������ı�,������������֮ǰ��1910���,���������Ѿ������������ݼ�ȡȨ����һ����.����,��16��������(1913��䲼�涨������Ȩ��������˰,��17��������(1913��䲼ȡ�����������涨�������Աѡ�ٵ�Ȩ��,��19��������(1920��䲼�涨��ʹ���ݵ�ѡ���и�ŮҲ�����������֤��ͶƱȨ.��Щ���ǹ������������,��ζ������������Ｓȡ��Ȩ��.��16�������������涨��������ԴӸ����������ñ����ݸ��������˰,�������ٷ���.������Щ�ı�����,������Ϊ,��Ȼ���,�ѵ����б�Ҫ�ټٶ�����ʱ�ڻ�������һ���ܷ�δ�оٵ�ּ�����ֹ���������ٷ�����ܷ��������������?��Ȼû���ܷ��ı��ϵ�������֧����ν"����",��1930���֮ǰ�����������Ѽ�ǿ�˹�������,�Ͳ����������϶϶��������ܷ�ʱ�̵Ĵ���.[28]
�ܷ��ı�����Ҳ����һЩ��.����Ϊ,��һ,�о���Χ�����ܷ��ı�,������һЩ����.�������������<<Ȩ������>>Ϊ��,����ʹ���ı�����,���齫һЩ���ܷ��г��ֵ�ȴδ��"Ȩ������"�г��ֵ�Ȩ���ų�����.����,�ܷ���1����9��涨�����������İ䷢,��ֹͨ���ݶṫȨ���ݼ������ķ���,������������λ,��6���涨�Ľ�ֹ�Թ�ְ��Ա���ڽ̲���,��13���������涨��ȡ��ū����,��15����19����24����26���������涨��ͶƱȨ.�����ų����ɱ���ش���һ����ȱ��,����ģ��������Ȩ����������ĵ�λ���ж���Ȩ�����������������������֮������ϵ.���,�ı��������ܶ��������������۷���,ֻ�ܾ������ı�����.�ı����������������߸����Χ�����ı��еĴ�(words�������ض��ܷ�����ȥ��������ݺ�ʵ�ʵ�,����ܷ����ۺ�ѧ˵�������ı�����֮���Ҳ��������λ��.����,������ܶ�Ӧ���ܷ���˾��ʵʩ�Լ�ʵ��������ɫɫ���ܷ�����,�ܷ��ı������п����뵥�����ܷ�ע��,Զ��������ʵ,ʹ�ܷ�ѧ��Ϊ�����������б���ζ��������Ϸ.���,��Ȼ�ı�����������֪̽�����ߵ�ԭ����ͼ,�����ֳ������ܷ��ı��п���ʧȥ���ܷ��ı��������������.�ⲻ���п����谭�ܷ��ķ�չ,���п���ʹ�ܷ���Ϊһ����ʱ�����Ľ����ı�.
Notes:
[1] [��]κ��ʿ:<<����ѧ>>,���ɳ�����2003��,��140ҳ.
[2] <<����ѧ>>,��140ҳ.
[3] [��]������ʩ����:<<�ܷ�ѧ˵>>,̨��������ҵ����ɷ�����˾2004��,��12ҳ.
[4] [��]��ľ����:<<������ѧ������֮��Ǩ>>,�й�������ѧ������2004��,��29ҳ.
[5] <<������ѧ������֮��Ǩ>>,��61ҳ.
[6] "'����ʼ����ǿ����߷�Ժ'.����Ъ��֮ǰ,��߷�Ժ��ϮӢ��������,��ÿλ�ٶ����淨�����.��������˵��:'��ʷ������һ��,��ϯ�ٲ����ɴ���һ�����������Ĵ�ͳ,�����侲���Լ�������������߷�Ժ�����ְ��.'""�Ӷ�����˵ķ������תΪ��߷�Ժ�ķ������,���������ڼ�ǿ����é®����߷�Ժ������.��Ъ������,ֻ��ͨ��һ��ͳһ�IJ��л������������������ԭ����ܹ���߷�Ժ�������Ȩ��������.Ϊ��ʵ���о��������Ժ�ȷ����,��Ŭ����ȡ����ֻ��һ���������߷�Ժ".<<������߷�Ժʷ>>,��42ҳ.
[7] <<˾��������ܷ�>>,��129ҳ.
[8] <<˾��������ܷ�>>,��134ҳ.
[9] <<˾��������ܷ�>>,��137ҳ.
[10] <<˾��������ܷ�>>,��138ҳ.
[11] [��]���ɵ¡�ʩ�ߴ�:<<������߷�Ժʷ>>,
[12] <<������߷�Ժʷ>>,�й�������ѧ������2005��,��51ҳ.
[13] [��]����ά�ǡ�˹ŵά˹:<<˾��������ܷ�>>,������ѧ������2005��,��174ҳ.
[14] <<ŷ����Ȩ��:ԭ��������>>,��47ҳ.
[15] <<ŷ����Ȩ��:ԭ��������>>,������ѧ������2006��,��43ҳ.
[16] Ziyad Motala ,Cyril Ramaphosa:Constitutional Law:Analysis and Cases,Oxford University Press2002, p 19ҳ��23ҳ.
[17] <<ŷ����Ȩ��:ԭ��������>>,�й�������ѧ������2005��,��44��45ҳ.
[18] <<ŷ����Ȩ��:ԭ��������>>,�й�������ѧ������2005��,��45ҳ.
[19] Akhil Reed Amar:The Bill of Rights,Yale University Press1998,p295����301.
[20] <<ŷ����Ȩ��:ԭ��������>>,��48ҳ.
[21] G��Alan��Tarr:Judicial Process and Judicial Policymaking,Wadsworth2003,p250ҳ.
[22] Constitutional Law:Analysis and Cases,p21��23.
[23] ת����:<<������������:Ӱ��������25��˾����>>,��137ҳ.
[24] ת����:<<������߷�Ժʷ>>,��273ҳ.
[25] The Bill of Rights,Yale University Press1998,p295����301.
[26] �μ�[��]��³˹��������:<<��������:�ܷ��ĸ���>>,���ɳ�����2004��.
[27] The Bill of Rights,Yale University Press1998,p299.
[28] The Bill of Rights,Yale University Press1998,p299����300.ת���� ��������������� http://www.hi138.com
As a method of constitutional interpretation, constitutional law text analysis is the primary task. Because the law is also a text study, it relates to legal texts, court decisions and the development of new text of the plan. [1] can be said that, if left text, Law existence itself is difficult, especially in pursuing the legal age of written doctrine. The Constitution is no different. hard to imagine, in a written constitution era, if not the text of the Constitution, researchers, legislators, judges, what the general public As the object of study and content of the Constitution? What was the basis for interpreting the Constitution? inferred from where the spirit of the Constitution? the effectiveness of the Constitution to embody? In short, if there is no constitutional text, who should have the final say?
First, what is the text of the Constitution
Text of the Constitution, also known as "text Doctrine" (textualism or strict interpretation of the (strict construction, scholars and judges is the text of the Constitution Constitution of their own to infer the meaning of the word, the use of factor analysis of the constitutional text in the form of substantive content of the Constitution or the Constitution meaning of the process. in the analysis of the method, first need to define what is a constitutional text. from the formal point of view, a written constitution and the unwritten Constitution State constitutional text means the country is different. written constitution of the constitutional text, including the Constitution State Code, Constitution amendment, constitutional jurisprudence, international treaties, of which only a narrow constitutional text and constitutional amendments to the Constitution Code, the broad constitutional jurisprudence and the constitutional text will be included in international treaties. unwritten constitutional State, including constitutional law constitutional text, constitutional jurisprudence, the international treaty. This is the extension of the constitutional text by the classification. formal meaning of the Constitution and the real sense of the constitutional text contains different elements. formal meaning of the constitutional text contains the word, words, phrases, language , the concept of the relationship between different parts of words, the provisions of the logical structure of the different provisions and the relationship between the different chapters. real sense of the meaning of constitutional text mainly refers to the Constitution, based on the provisions of the constitutional process and the record shows that the debate The Constitution's original meaning and intent of the Framers. In order to analyze the convenience and precision, this is the constitutional text referred only to a narrow constitutional amendment to the Constitution, including the Code and the constitutional text.
The view was limited to the text of the text on the constitutional text, and elements outside the text to be excluded. First of all, it will determine the constitutional norms of the social political and economic factors that made the exclusion, not to consider the appropriateness of cause and effect. The constitution of proper causal of (the legitimacy of the social and political focus on the analysis of economic realities, it is the study of constitutional norms and social causal relationship between political and economic, that is what the constitution of social reality is based on the conditions established? what kind of social political and economic factors determine a constitutional norms? established constitutional norms reflect a balance of power between social relations? This is a real Marxist analysis. Secondly, it would exclude moral considerations, not to consider the appropriateness of the value of constitutional norms. Moral The purpose of considering the value of proper study of constitutional norms (the legitimacy of constitutional norms to see whether some kind of abstract principles such as justice, equity and other senior law. Again, it made the exclusion of judicial precedent, not to be considered before the court made decision. Finally, it has made constitutional history of exclusion, not to consider the constitutional process and representation in the Constituent Assembly debate on record.
The first two were ruled out with the ethical nature of the method. Whether it is general social political and economic realities, or prior to the specification and the transcendent moral evaluation, and they are in some pre-determined specifications to judge the constitutional norms themselves. Which general political and economic realities of social analysis is a method of social positivism, sociology and political science is often found in the analysis of the process, it is the fact that some reasonable elements of the existing constitutional norms as the basis for further evaluation of the constitutional text specifications. ethical considerations is a philosophical method, usually coincides with the analysis of political philosophy. It is assumed in some abstract or self-evident principle of constitutional norms for the conduct of the evaluation criteria. This method of natural law or constitutional norms, or divine revelation and some instructions as eternal and unchangeable standard evaluation constitutional norms. As for the precedent to rule out is that precedent made by the judge rather than the constitution to represent the people who made, although the case law country, a precedent binding on the strength of normative , but it does not have the support of the democratic legitimacy of the constitutional text specification, and therefore not included in the precedent analysis of the pure text of the Constitution. of constitutional history as well as representatives of the Constituent Assembly debate on records and research, common in historical analysis, which is a historical analysis. It can be seen, in addition to precedent is a judge in court with legal methods, several other methods to be excluded or sociological approach, or method of political science, or philosophical method, or history methods. they have in common is around the constitutional text in the text to look for other factors determine the strength of norms and factors, rather than locked in view the text on the constitutional text. For this reason, although these methods The content and the relevant constitutional norm, but in essence, do not fall strictly legal methods.
Text of the Constitution or a constitutional interpretation, because "all have a similar interpretation of the text on the learning issues" [2]. On the one hand, and always want to clarify the true meaning of the text, which requires explanation, on the other hand, always explain have to go by, this Li Bukai text. with the constitutional text and constitutional theory and history of the interpretation process analysis, text analysis is Savigny interpretation of the law within the meaning of the four elements, namely grammar, logic, history and systems. And Text of the Constitution is both a technical issue, but also a question of attitude. skills and attitudes of the difference is: technology is the analysis and interpretation of the constitutional text as a starting point, whether the attitude is, as the text of the final effect. If the text of the Constitution as a kinds of technology, just need to focus on the text itself, but as the text of the Constitution of the attitude not only need to pay attention to constitutional text, but also need to focus on the effectiveness of the text. differences between the two is that one is placed in the center of gravity will focus on starting a home will be the focus of attention in the end. Strictly speaking, there is no way to distinguish between the two. If the text of the Constitution is technology, technology is always applied, the application process will inevitably add attitude.
Second, the constitutional text analysis is how to produce
As a theoretical approach and practice of law on the meaning of the interpretation, analysis of the constitutional text does not start there, but a historical phenomenon, whose origin and development due to the interaction of a number of factors. These factors both politics, there are laws, both academic, but also justice.
As a method and interpretation of law, the constitutional text of the Constitution depends on the causes of the emergence of the phenomenon, the production of a written constitution, the constitution of an independent discipline, the Constitution as Chi formation of the academic community, as well as the implementation of constitutional justice needs. modern sense of the Constitution of the phenomenon of the 17th century, the United Kingdom 1689 "Glorious Revolution" as a symbol, this time much later than private law, the U.S. Constitution of 1789 marks the birth of a written constitution. These two factors General, decided the previous text of the Constitution can not be evidence-based research on the phenomenon of the Constitution, and as an independent establishment of constitutional discipline is also very recent thing. Since the early state constitutional law and political science rely on the existence, almost in a different countries and different periods, have removed from the Constitution in philosophy, political science, sociology and history and other disciplines, it is difficult for its unique research methods touted academic independence. a group to study the constitution of the professional academic Chi groups and the emergence of this course with the Constitution of the emergence of time-related. as in the university offered a course, constitutional law in various countries appear very late. Constitution of the European continent in the University offers courses most important in France University of Paris, time of .1835 mid-19th century, the Paris establishment of the Constitutional instructors, but in 1851 (after the coup of Napoleon III, the instructors has been canceled, and was established in 1879, a new instructors. until 1885, scholars Bout m (Bountmy still there lament: "public law branch of the most important has been left out in France." [3] to the early years of the 20th century, constitutional began famous men, such as the Diji, Essman, Aoli Wu, etc. . until the First World War to the Weimar Constitution, the Constitution only the course in Germany. Prior to the German constitutional state of law school or belong to, or become a traditional political science is the main content of the national study. for a long time, some Constitutional scholars desire to get out of this situation, trying to update through the method with other adjacent disciplines to distinguish. Back in Bismarck that the Constitution Constitution of the Empire period in 1871, the then State Law guru Laband approach to strongly advocate the sense of establishing legal national legal research, that the concept should be implemented based on analysis of legal rights and obligations, and political significance to the fact that relations between the distinguished. here is the real concept of the constitutional text given by the text on the composition of the Concept of Constitution . Laband purpose is to make the country a more radical form of law, and reasoning, and composition theory. He believes that "the current reality on the set norms, and its value judgments of the fact that the object has full understanding of the necessary certification , then in addition, law is to make the thinking process in the pure theory "." All the history of political and philosophical considerations, and specific legal hermeneutics facts, no relationship. "[4] a time when 19 mid-century, before the State Law mixed political and economic policies of various factors, Rumsfeld aims to purify the country of law, its true within the limits set in the Law. followed Michael and Kai Erxun is sparing no effort remove all thoughtful teleology and sociology, the Law as given to the relevant norms for the real object of study, the content of emptiness in the form of science. and that the appropriateness of the law may not be valuable, may not have the proper nature of cause and effect, The owner of the only real set of appropriateness. fact is the appropriateness of given proper law, that is all to implement provisions of law in mind. [5] However, when the Constitution is still not from the political science, or State law independent of the Weimar Constitution during Constitution master Schmidt wrote this masterpiece <<constitutional doctrine>>. In this book, Schmitt addition to make the Constitution or state law from a national study self-contained learning, and research on the scope of national law with the traditional distinction between political science or other, they use methods with the traditional state law or political science are different, which is focused on the basis of the Constitution Constitution Code concept, and proposed the "constitutional concept of absolute" and "the constitutional concept of relative". "absolute constitutional concept" is a real sense of the political decision based on the Constitution, also known as the Constitution of empirical concepts (where Empirical evidence is a social rather than legal evidence, "the constitutional concept of relative" is the constitutional text-based formalism constitutional norms, but also the sense of legal positivism the constitutional concept. On this basis, Schmidt developed his famous "Constitution" and "constitutional rules" dichotomy (and some will be the translation of the "Charter" and "constitutional law." stressed the political decision before a constitutional sense, focusing on the integrity of the Constitution, which emphasizes the text of the Constitution meaning based on the form of constitutional provisions. Schmidt, this distinction is noted that two different faces of the Constitution, in the text of the Constitution with emphasis on the reality of the premise of the Constitution different from the constitution. political decision on the constitutional meaning of the concept or "absolute constitutional concept" of the proposed constitution opened the link between political reality and the path, reflecting the political side of the Constitution, constitutional laws or "the constitutional concept of relative" indicates that the normative force of the Constitution, the laws of the Constitution embodies the of the side. Meanwhile, this concept and points to the Constitution, but also the method clearly laid the legal methods of political science research methods and characteristics of the distinction.
The implementation of the Constitution is the judicial analysis of the constitutional text produced another important reason. According to the U.S. scholars in the United States, the Constitution is the completion of constitutional law text analysis of the needs and the way to go through. This is because the century by the British 16,17 basic law concepts, the early United States is not the strict sense of the Constitution as a legal document by the court to implement, but a decision by a sovereign act of political documents. political documents and legal documents are different. political document constraints sovereign acts, binding legal document individual behavior, political documents implemented by the political organs, the implementation of legal documents by the courts and political documents by the political authorities (the legislature passed amendments to change its meaning, judges interpret legal documents to give it meaning. In Marshall as Chief Justice during the , due to the need to establish through the exercise of the right of judicial review status of the Court, Marshall thoughtful and unassuming but not the introduction of common law interpretation, the constitutional line of sight to the people successfully transferred to the text of the constitutional text to complete the court as a constitutional interpretation who attempts to determine the meaning of the Constitution and the formation of a great people to avoid judicial review the court's view as a political act. This is a case he has made a clear legal opinion reflected.
Marshall's two aspects of this approach rely on the reform of judicial techniques: First, one by one British judge changed the habit of writing legal opinions, to change the majority opinion, the accompanying comments and objections, first in the production of legal advice to the constitutional text as interpreting the Constitution according to the text. These are two associated actions, both can make a loose, fragmented nature of a majority of judges, the Supreme Court speak with one voice, can also bring attention to the constitutional text text, and through the courts Court to interpret the Constitution to establish the status of the text text. [6] combination of two factors, the Court effectively reform the structure of state power and the overall image of the public mind. which focus on the text text to interpret the Constitution in all constitutional cases as Marshall's submission of a notable features. In 1819 Dartmouth College v. Woodward case, the opinions of each sentence agree with the handling of the case depends on two questions: whether the College charter constitutional meaning of the contract, if it is, whether the damage bill in New Hampshire of the charter obligations. Marshall, in his legal opinion repeatedly referred to "constitutional text." He said: "Obviously this is a contract, donors, trustees and the King ... ... is original contracting parties of the contract. ... ... Therefore, it is a not only literally, but in the spirit of the contract are in line with the Constitution. "[7]" In the absence of all authority of the cases, according to the nature of the case and the reasons , rather than constitutional text that we can find the maintenance of constitutional interpretation of the thing? "[8] in the 1819 case of Sturges v. ��������� Marshall words by examining the meaning of the Constitution to determine constitutional significance. He said: "In discussing 'whether the state is prohibited by such laws' of this issue, we first need to examine the relevant words in ordinary usage meaning. What is the obligation of contracts? will cause damage in the end it is what? "Finally, Marshall to such comments made on his point of view the answer:" In discussing this proposition, we can properly assume that, despite a law, in particular the spirit of the Constitution will be no less than their words respect, but this spirit is mainly derived from its text. "[9] Marshall stressed the constitutional text and interpretation of the Constitution are linked. In the law declared invalid the process, he has three solid issues directly addressed in the Constitution .8 years later, in Oden v. Sanders case, Marshall said again: "the Federal Constitution concerning the application of the principles of interpretation, we have already said too much. ... ... that the Constitution intended to pen the inevitable dominance, said that intention necessarily from the constitutional text, that text must be in accordance with the Constitution the Constitution in general to understand the meaning intended to be used ... ... this is repeating what has been discussed a lot, but also what may be necessary. "[10] in these judgments discussion, Marshall insisted that the Constitution is subordinate spirit of the Constitution the words, only one exception, this is McCullough v. Maryland. In that case, Marshall gave up his upheld in other cases the method of probing the words from the Constitution constitutional intent, the reasons for his doing so is considered likely because he believes that "necessary and proper clause" of the text itself can not stand the essence of what he needs. and this will not affect his analysis of constitutional text created, but also with his consistently adhered to the Constitution as a tool to solve the problem is not inconsistent [11].
In these case, the most obvious explanation is the text of the Constitution, the 1824 case of Gibbons v. Ogden. In this case, a New York State law in conflict with the laws of Congress, which involves China, the Constitution will be Right, "adjustments and foreign and interstate commerce," the interpretation of this provision. This time, Marshall used the interpretation of constitutional text analysis skills are very skilled, through the "adjustment" and "commercial" interpretation of the two terms, giving Marshall The very broad meaning, and to expand the powers of the federal parliament. Marshall that the "business" includes all economic exchanges, is sufficient to accommodate all the obligations of a comprehensive concept of the future. "It depicts the countries, part of the country between the internal part of the country's commercial dealings between. "After that, Marshall has to" adjust "the meaning of the verb made the same generous interpretation." What kind of power? "he asked." is to adjust the power, that the provisions of the rules govern business. Like all the other powers given to Congress as the power itself is complete, may be exercised to maximize. "[12] Marshall's explanation," Commercial "includes all of the exchanges," adjustment "all-encompassing.
As the vision of today, this text does not explain the technology curious place in court, but in the 19th century, the meaning of this extraordinary move. Because for the time being, as a constitutional interpretation of both text analysis technology not established, people do not think the constitution is the law, the written text of the Constitution has respected the importance of not like today. When Marshall insisted the primacy of the meaning of the text by analyzing the reasoning to determine when the Constitution was violated, his colleagues are still bypassing the constitutional text, directly through the spirit of the Constitution, intentions or some established principles outside the text - not the constitutional text - to search the contents of the Constitution. For these people, even by the judiciary to determine unconstitutional, this behavior is more of a public or political action, rather than a real judicial action. [13] At the time, this is a common perception and approach, because that time the minds of the constitution and not a law, judges do not treat the law treated as the Constitution. Marshall is an exception and the exception is his first to the corresponding legal interpretation of the text and text to the Constitutional Tribunal technology into the process. For this reason, the American scholar that this is a constitutional change, its meaning is not simply the introduction of common law interpretation, but the text of the Constitution by interpreting the words, phrases, sentences, meaning to change that Constitution as the only view of a high-ranking political documents to make the Constitution into a real legal text, which will be inherent in the Constitution and legal factors, political factors combine to make the fundamental law as "the supreme law of this country" to complete the basic law of the law, and established the Court as the interpreter of the Constitution position. In the process, he also introduced the logic of common law lawyers and legal arguments in the form, but as the text of the constitutional interpretation and therefore popular.
Third, the constitutional text analysis method
The purpose of the text of the Constitution to clarify the meaning of the Constitution (meaning, it needs to use certain methods, carefully composed text, the word (letter, word (words, phrases (phrase, sentence (sentence form elements, and elements of each of these forms the relationship between the Constitution in order to accurately grasp the meaning of (meaning. specifically, the constitutional text of the following steps:
First, the constitution of a particular text as an object. Specific constitutional text either to the Constitution Code can also be part of the Constitutional Code for analysis. That is, in interpreting the Constitution, the interpretation of the starting point is the constitutional text itself. Have the text before to explain. This is the explanation of the proper meaning, and the text is the text itself. in our constitutional text, for example, in the interpretation of a particular text, either a separate analysis of "national institutions", but also can analyze "basic civil rights and obligations" can also be analyzed, "Master" or "preamble", or analysis of the overall structure of the Constitutional Code. Amare in his <<Bill of Rights>> book, the "bill of rights" as a study object, the "bill of rights" and the bill for the amendment of article 14 states the chain between the role of (interlocking, so the "bill of rights" constitutes the text of the book's basic structure and most of the main content.
Secondly, the text of the Constitution as a set of specific words. Because the different ways of linking different phrases may have different meanings. By the Constitution as a glossary of terms specific text, specific analysis of these terms can be followed by the association formed meaning. This requires the use of language and logic of knowledge, of a group of words have meaning. Amar in his book <<Bill of Rights> "was Written in the analysis process, the" bill of rights "provisions, as as "a group of words" (a set of words of different connection, the specific terms of the specific meaning of different phrases.
Third, in the interpretation of text, try to use the ordinary meaning of the text. Usually meaning that the English plain meaning, it was also to be translated into "exoteric meaning." It is clearly important, all languages are generally more justice, but as far as possible in the interpretation of language in a country whichever is the usual meaning. most of the text advocates the assumption based on this, that can be identified from the text to a unique answer. That is, if the text vocabulary (words meaning the surface is very clear explanation should be based on the text itself. <<Vienna Convention>> Article 31, paragraph 1, states: "A treaty requires good faith in accordance with the terms of the treaty gives them the context of ordinary meaning, and with reference to the object and purpose of the treaty to be interpreted. "[14] European Court of Human Rights in the interpretation of <" The European Convention on Human Rights>> when clear on this point, the ordinary meaning of words often used to explain the provisions of the Convention and by reference to dictionaries to ascertain the terms of the meaning of the usual and natural. This method in the European Court of Human Rights have been reflected in the jurisprudence. In 1987, ruling Johnston case, the Court of Human Rights ruled that: "the term marriage rights ordinary meaning does not include a right to divorce. "Lithgow in 1986, ruling the case, the Court of Human Rights: Article 1 of Protocol in the" general principles of international law, "the ordinary meaning of reference require the phrase is given Statute of the International Court of Article 38, paragraph 1 d under the same meaning. [15]
Fourth, the text within (intratextuality analysis. This is an overall analysis of the Constitution as the spirit of the legal method, which stressed the constitutional text the words appear in different parts of the consistency, also known as "context." Generally, When the single words themselves do not know when to consider the interaction between the concept and structure to guide the interpretation of the constitution which is a method of structure as a whole. Therefore, the text method is not always the text from the text (literal explained, some text, such as John Hart Ely advocates is not a single word to be checked to find its meaning in isolation, but the constitution as a whole structure. Although this method avoided the strict literal interpretation, but The method itself is still running within the text of the Constitution, and that the interpretation of the Constitution and valid data is directly extracted from the text of the Constitution for its own premise. the other side of this approach is that when the constitutional text conflict with each other, or when the judge cited certain other provisions of the terms of the text but does not support a decision, the judges need to balance the various parts of the Constitution in order to determine the meaning of a text. [16] For example, the "workers" in the country occurred at the Constitutional Code " Preamble, "" Master, "" basic civil rights and obligations ", should be analyzed together different parts of the" workers "in the constitutional meaning. Amare in the study" bill of rights "in the process of identification was also carefully braided original various words appear in the Constitution to the "bill of rights" in repeats, a variety of topics on how the first ten amendments to the text are repeated, the Fourteenth Amendment of the key sentence (key sentence and the original Constitution and the "bill of rights" how to cross each other. The European Court of Human Rights in the interpretation of <"The European Convention on Human Rights>> when great emphasis on" context. "<<Vienna Convention for the>> paragraph 2 of Article 31 into the" context "is defined as: the entire text plus its preamble and annexes, with the treaties, the treaty concluded with all parties associated with any agreement reached, and by all the parties to the treaty as a document relating to the acceptance of any legal documents. The European Court of Human Rights Golder 1979 case ruling that: "the process of treaty interpretation is displayed in accordance with the Vienna Convention article 31 in the 'general rule' into the way, the process is a continuum, is a single integrated operation, after the close integration of this rule, placed on the same footing, the article listed in the 4 different elements. "[17] In practice, the context can not only help to make a treaty as a whole to be understood, and often In the foreword to the goals established to get the relevant help. [18] This method is also applicable to the constitution. in the constitutional text analysis, shall the Constitution as a whole, to take care of the Constitution including the preamble and the Master Code sections. in particular the preamble, because it established a national policy and objectives, and thus for understanding the rest of the constitutional text of great help. It also clarifies the strong recognition that the Preamble, the force of law, and fully reflected in the Constitution text interpretation process, the preamble is to clarify the association of other words the constitution-makers intended meaning and an important guide.
Fifth, "the text between the" (intertextuality analysis. This is one kind of emphasis on constitutional text �� other authoritative analysis of the interactions between the file, it needs with the same legal culture and legal traditions, legal documents have the same meaning between the text retrieval . In "<bill of rights>> a book, the author's method is often used as the first ten amendments to the U.S. Constitution's" Bill of Rights "and the United Kingdom 1215" Great Charter ", the English Bill of Rights 1689, American" "The Independents Declaration>>, the states with the constitutional rights of the Declaration, by viewing these files in the same text to identify the meaning of the Constitution. [19] of been able to do so because the United States and Britain have the same legal tradition, the United States directly from Britain inherited the spirit of the law there, including the wording of the text. but do not have the same factors in the country between, these methods can not be used. to our country, for example, the text between the method is only suitable in the calendar after the founding constitution of between , Constitution of the Republic of China after the founding documents and between the various constitutional documents do not have the "intertextuality."
Sixth, in accordance with the constitutional text of the order of sequencing. This approach embodied in the Constitution as a study of the theory. Many of the constitutional text of Constitution to arrange the order of the order, which is a respect for the constitutional text of the research methods. Still by Amar, for example, his "Bill of Rights" study is in accordance with the "bill of rights" text book chapters in order to arrange the order. in the writings of many of our Constitution can be seen that the research methods, with particular notably, Professor Xu Chongde in its editor's <"China Constitution>> book the methods used. As At that time, study the Constitution and rely mainly on the Soviet method, Professor Xu Chongde consciously in accordance with our Constitution of 1982 Code, the text structure of Arrangement order. Since then, the method become the mainstream of constitutional law textbook structure, reflecting the respect of the constitutional text.
It should be noted that, due to the constitutional text analysis and interpretation of the Constitution aims to learn the meaning of the Constitution, and thus the process of analysis in the text of the Constitution, the Constitution intended to take priority. But, who appears in the analysis of constitutional text, constitutional intent from the constitutional text , or that the intent of the Constitution text is the best place to learn the Constitution. Consequent, when the constitutional text can not be caused by the intention of the Constitution, the constitutional history of the constitutional text will become the most authoritative interpretation outside sources. that is, when the use of text not enough to clarify the meaning of the Constitution, the constitutional debate during the academic record is the first to help the judge interpretation of economic information. It is noteworthy that, at present, a number of national courts or the Constitutional Court places great emphasis on the use of comparative method, borrowing countries Constitution to establish their own words the meaning of the Constitution. While this approach met with some opposition, but this tendency is also revealed a new message that the comparison methods and learn from other countries to explain the Constitution and constitutional law sources in the comparison of the Constitutional Tribunal value. Another trend to note is the constitutional text should be noted that the times and social reality and the link between the open attitude as far as possible to establish the contemporary meaning of constitutional text. constitutional text analysis can not stifle the development of the Constitution, can not allow drafting and entry into force The Constitution in time become an obstacle to progress in the shackles of the Constitution. The European Court of Human Rights in establishing its rule of interpretation has come to this conclusion: the interpretation of the Convention from the following sense must be "dynamic": it must refer to the social and political attitudes be explained by the development, the effect can not be limited to the effect it is the time of the drafting or the various concepts. Under this concept, such as racial discrimination, this time does not enter the minds of the drafters of the prohibition was being included in the treatment of derogation, the provisions of Article 8 of the Convention on the privacy protection is also considered to be evolving to meet new, unforeseen before 50 years of technology development. At the same time, this dynamic approach has a limit, that is, can not be some new interpretation of the Convention on the Rights of them. In this way, under, "" The European Convention on Human Rights>> many of the rights, such as family, education, forced labor, freedom of trade unions have a new development concept. Although these the development of the concept of expanding the obligations of States parties, and make it beyond the original commitment, but this method was considered necessary because these countries signed the treaty intended both to protect individuals against the threat the past, but also desire to its citizens from future threats. [20]
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