A Study On Legitimacy Of Constitutional Procedure

The legitimacy of any system must originate from society, and the demand for system decides the supply of system. At present, the difficult situation of administrative litigation system in China has in-depth constitutional causes, which determines it is inevitable for administrative litigation to stride into constitutional litigation. On the basis of prudent legislation, justice is of vital importance to rule of law, and it is necessary for legislation centralism to deviate to justice centralism. The road of justice to judicature can not bypass the gateway of constitutional litigation, and constitutional litigation is the logic result of the development of justice centralism and judicial constitutionalism.Constitutional litigation is a system that the judicial authority reviews and determines whether the law is unconstitutional and invalidates the unconstitutional law in accordance with judicial procedure. As a litigation form of resolving constitutional disputes, constitutional litigation system is characterized by its judiciary nature, ex post nature and objectivity of disputes.Legitimacy of constitutional litigation system has two dimensions, which are subjective dimension and objective dimension. The subject dimension is a kind of legitimacy based on empiricism, in the sense of legitimacy of constitutional litigation originates from people's consent or political identification. The objective dimension is a kind of legitimacy based on normativism, that is, the legitimacy of constitutional litigation comes from certain objective standards of justice or ideas of superior law.As for the subjective aspect, it seems that constitutional litigation is anti-democratic and that it lacks democratic legitimacy allowing jurists to judge whether the will of people's representatives is in accordance with constitution. However, constitutional procedure system is justified on the theory of dual democracy, elite democracy and republican democracy. The reasons are as follows. Firstly, the applicable law by the court is the "general legislation" including the constitutional judgment, award, and the options of the representatives of the people. Secondly, according to elite democracy theory, democracy is the rule of elites chosen by people, so justification of constitutional procedure system is based on mutual recognition between judges regarded as elites and people. Last but not least, constitutional litigation is the embodiment of republicanism, which fully reflects the idea of "common" and "harmony" and the doctrine of the state belonging to people. The demonstration of objective standard in legitimacy of constitutional procedure is deeply rooted in special historical situations. Freedom without community means crazy while community without freedom means slavery. With constitutional litigation system, people are able to participate in political activities regularly through litigation, which not only safeguards and widens civilian's basic rights and freedom, but also promotes the sound development of community. Constitutional litigation can resolve disputes among people's representatives who represent different people. As the third neutral party, the court embodies the basic connotation that no one can be his own judge. Meanwhile, as the fundamental law in modern countries, constitution has evolved into "the incarnation of justice" and legitimacy of constitutional litigation lies in insisting that the basic of judgment for courts in constitution procedure is the constitutional text which is the symbol of "justice".With regard to why superior law is explained by the court, the theory of minimum danger branch and minimum judicial limit provide justification. The judicial power is a negative power and adjudicative power. The court abides by minimum judicial limit and only needs to resolve the case in hand but not issues or points relevant to the case. Therefore, the court is the most suitable announcer and protector of certain lasting values.From the perspective of legal practice, the scope, review criteria and judgment forms of constitutional litigation provide technical solutions for resolving the puzzlement of legitimacy of constitutional litigation. Under the existing political-legal system, Chinese constitution can enter into litigation by constitutional interpretation, rejecting unconstitutional law, and developing the third party effect of constitution and so on.