宪法与法治英文版Word文档下载推荐.docx

1、1. Constitutions, Constitutional Courts and Constitutional Interpretation at the Interface of Law and Politicsin: B. Iancu （ed.）, The Law/Politics Distinction in Contemporary AdjudicationUtrecht 2009, S. 21 34（constitutional courts at the interface of law and politics 08-2008.doc）2. Constitutional A

2、djudication and Democracy M. Andenas （Hrsg.）, Judical Review in International PerspectiveLiber Amicorum in Honour of Lord Slynn of Hadley Band IIDen Haag 2000, S. 103 （constitutional adjudication lib.pdf）3. Political Parties （political parties engl fuer yale 07-2006）4. Levels of the Rule of Law （Lev

3、els of the rule of law final 15-12-09.doc）5. The Development towards a Rights-Oriented Legal Culture in Europe（rights-oriented legal culture china 03-2007.doc） 6. Human Rights and Judicial Review in Germany D. Beatty （Hrsg.）, Human Rights and Judicial Review, Dordrecht 1994, S. 267（grimm human right

4、s.pdf）7. Values in German Constitutional Law, Dennis Davis u.a. （Hrsg.） - noch nicht erschienen, （values in german const law Aenderungen 20-04-09.doc）8. Proportionality in Canadian and German Constitutional Jurisprudence University of Toronto Law Journal 57 （2007）, S. 383 397 （proportionality printv

5、ersion 30-01-07.doc）9. The Protective Function of the State G. Nolte （Hrsg.）, European and US Constitutionalism, Cambridge （England） 2005, S. 137 155（protective function of the state 12-2004.doc）10. Civil Liberties in an Age of Terror （http:/www.bertelsmann-stiftung.de/cps/rde/xbcr/SID-0A000F0A-935A

6、2172/bst/Transatlantic%20Thinkers_Part_5_final.pdf）Constitutions, Constitutional Courts and Constitutional Interpretation at the Interface of Law and PoliticsI.1. Before the end of World War II constitutional courts or courts with constitutional jurisdiction were a rarity. Although constitutions had

7、 been in place long before, a worldwide demand for constitutional adjudication arose only after the experiences with the many totalitarian systems of the 20th century. The post-totalitarian constitutional assemblies regarded judicial review as the logical consequence of constitutionalism. In a remar

8、kable judgment the Israeli Supreme Court said in 1995: Judicial review is the soul of the constitution itself. Strip the constitution of judicial review and you have removed its very life It is therefore no wonder that judicial review is now developing. The majority of enlightened democratic states

9、have judicial review The Twentieth Century is the century of judicial review. （United Mizrahi Bank Ltd. v. Migdal Village, Civil Appeal No. 6821/93, decided 1995）. Based on this universal trend the Israeli Court claimed the power of judicial review although it had not been explicitly endowed with it

10、 in the constitution.Yet, just as the transition from absolute rule to constitutionalism had modified the relationship between law and politics, this relationship was now modified by the establishment of constitutional courts. As long as law was regarded as being of divine origin politics were submi

11、tted to law. Political power derived its authority from the task to maintain and enforce divine law, but did not include the right to make law. When the Reformation undermined the divine basis of the legal order and led to the religious civil wars of the 16th and 17th century the inversion of the tr

12、aditional relationship between law and politics was regarded as a precondition for the restoration of social peace. The political ruler acquired the power to make law regardless of the contested religious truth. Law became a product of politics. It derived its binding force no longer from Gods will

13、but from the rulers will. It was henceforth positive law. Eternal or natural law, in spite of its name, was not law, but philosophy.Constitutionalism as it emerged in the last quarter of the 18th century was an attempt to re-establish the supremacy of the law, albeit under the condition that there w

14、as no return to divine or eternal law. The solution of the problem consisted in the reflexivity of positive law. Making and enforcing the law was itself subjected to legal regulation. To make this possible a hierarchy had to be established within the legal system. The law that regulated legislation

15、and law-enforcement had to be superior to the law that emanates from the political process. Yet, since there was no return to divine law the higher law was itself the product of a political decision. But in order to fulfil its function of submitting politics to law it needed a source different from

16、ordinary politics. In accordance with the theory that, in the absence of a divine basis of rulership the only possible legitimization of political power is the consent of the governed, this source was found in the people. The people replaced the ruler as sovereign, just as before the ruler had repla

17、ced God. But the role of the popular sovereign was limited to enacting the constitution while the exercise of political power was entrusted to representatives of the people who could act only on the basis and within the framework of the constitution.Hence, one can say that the very essence of consti

18、tutionalism is the submission of politics to law. This function distinguishes constitutional law from ordinary law in various respects. There is, first, a difference in object. The object of constitutional law is politics. Constitutional law regulates the formation and exercise of political power. T

19、he power holders are the addressees of constitutional law. Secondly, constitutional and ordinary law have different sources. Since constitutional law brings forth legitimate political power it cannot emanate from that same power. It is made by or attributed to the people. Consequently, the making of

20、 constitutional law differs, thirdly, from the making of ordinary law. It is usually a special body that formulates constitutional law and its adoption is subject to a special procedure in which either the people takes the decision or, if a representative body is called upon to decide, a supermajori

21、ty is required. Fourthly, constitutional law differs from ordinary law in rank. It is higher law. In case of conflict between constitutional law and ordinary law or acts of ordinary law application constitutional law trumps. What has been regulated in the constitution is no longer open to political

22、decision. Insofar, the majority rule does not apply. This does not mean a total juridification of politics. Such a total juridification would be the end of politics and turn it into mere administration. Constitutional law determines who is entitled to take political decisions and which procedural an

23、d substantive rules he has to observe in order to give these decisions binding force. But the constitution neither predetermines the input into the constitutionally regulated procedures nor their outcome. It regulates the decision-making process but leaves the decisions themselves to the political p

24、rocess. It is a framework, not a substitute for politics. Finally, constitutional law is characterized by a certain weakness compared to ordinary law. Ordinary law is made by government and applies to the people. If they do not obey government is entitled to use force. Constitutional law, on the con

25、trary, is made by or at least attributed to the people as its ultimate source and applies to government. If the government does not comply with the requirements of constitutional law there is no superior power to enforce it. This weakness may differ in degree, depending on the function of the consti

26、tution. Regarding the constitutive function the structure of public power will usually conform to the constitutional arrangement. Regarding its function to regulate the exercise of political power this cannot be taken for granted. The historical and actual evidence is abundant.2. It was this weaknes

27、s that gave rise to constitutional adjudication, in the United States soon after the invention of constitutionalism, in Europe and other parts of the world only after the collapse of the fascist and racist, socialist and military dictatorships beginning in the 1950s and culminating in the 1990s. Alt

28、hough many of these systems had constitutions their impact was minimal, and invoking constitutional rights could be dangerous to citizens. In the light of this experience constitutional courts were generally regarded as a necessary completion of constitutionalism. If the very essence of constitution

29、alism is the submission of politics to law, the very essence of constitutional adjudication is to enforce constitutional law vis-vis government. This implies judicial review of political acts including legislation. However, constitutional courts or courts with constitutional jurisdiction cannot full

30、y compensate for the weakness of constitutional law. Since the power to use physical force remains in the hands of the political branches of government, courts are helpless when politicians refuse to comply with the constitution or disregard court orders. But apart from this situation, which is exce

31、ptional in a well-functioning liberal democracy with a deeply-rooted sense for the rule of law, it makes a difference whether a political system adopts constitutional adjudication or not. Even a government that is generally willing to comply with the constitution will be biased regarding the questio

32、n what exactly the constitution forbids or requires in a certain situation. Politicians tend to interpret the constitution in the light of their political interests and intentions. In a system without constitutional adjudication usually the interpretation of the majority prevails. In the long run this will undermine the achievement of constitutionalism. By contrast, in a system with constitutional adjudication an institution exists that does not pursue political intentions, is not subject to election and specializes on constitutional in