Due Process And Institutionalization Of Open Society

Institution, in our society, is the basic tool of controlling socialconfliction. Different from the pattern of institution of traditional society,modern constitutional institution tends to peacefully resolve socialconflictions of various kinds in the frame of the legal procedure. This,however, does not apply to everywhere. The thesis intend to make acomparing study through the introduction of two cases, the electiondispute in the USA and Republic of Madagascar, which have the samecause but bring about the contrary results. The election disputes result injudicial settlements in USA but lead to the civil war in Republic ofMadagascar. By comparing and rethinking the tow cases, the thesis tries toreach the high level of mastery about the structural principle as well asfunctional mechanism of constitutional government from the perspectiveof functionalism.Due process is one of the basic principles which represent theconstitutional system of USA. Under the requirement of this principle, thegovernment is not allowed to breach the limit of process provided for inlaw, and should protect the procedural interest of people in the exitingframe of decision-making. The institution developed in the judicialprocess of common law, and the adversary system and proceduralnuetrality is the basic frame of due legal process. The current status of duelegal process, in my point, is benefited from the system of judicial reviewand checks and balance, and it, by the effective function of the proceduralmode in the judicial review of federal justice, spread to the field oflegislation as well as administration. In addition, the restraint exerted bydue legal process on the government; in fact, reveal the reciprocalrestricting among the institutions of government. The expansion of due legal process and the system of checks balance means constitutionalgovernment is not an abstract entity, but a decision making frame whichhas been processed on the basis of participating. The stabilization ofpolitical system in USA due to the close designing of constitutioner,dispersing the stress of participating, and, as a result, making thegovernment be able to maintain the neutrality in macro-policy, and to holdout the state of equilibrium in various forces.In the modern times, USA is the forerunner in constructingconstitutional state. There are, however, seldom cases in whichconstitution following the USA can exited until now as that of USA. Threefactors, in my point, caused these conditions. One is the thorough checksbalance, the other the system of equilibrium constructed by the power ofjudicial review as well as judicial process of common law. Theequilibrium is a way of game. Therefore, the attempt of checks balance isto make the government institution and various forces in societyconsciously accept the ruling of due legal process. The Supreme Courtholds the subtle position in the political system of USA. Its position isbenefited form the judicial process of the adversary system in USA and theskillful using of the appealing process. This is absolutely lacked in theconstitutional justice of Republic of Madagascar. The judicial system ofthe adversary system and the legal activity adopting the mode of process istypically legal game. The action and the legal activity including electionhave the same structure and function as the game. Judicial activity in courtdeduced the result by argument between two parties. This kind of judicialsystem exerted the legal burden of winning or losing on the part, andenhances not only the consciousness of burden of proof, but also theconcept of process. Therefore, people are in the game of lawsuit. Theaverage people are only the object of the play, and the true player is legalprofession. The ruling of due legal process is only that of legal professionand their playing rules.Good process does not mean the good result. Democratic electiondoes not guarantee that the persons in possession of good capacity are sureto be elected successfully. As long as people anticipate the pay, he should realize and accept the last result. This is the essence of justice of process.As the ethical basis of the constitutional system, the justice of processrequires that the government equally treats the participating parties, andthat the process of decision-making should be open, and respects theparticipants’ dignity. The consensus of process, however, is limited in notthe others but the participant. Furthermore, due to the limit of frame ofprocedural rule, justice of process is in fact the relative as well as formaljustice. The procedural rule and formal equality only set down the basicrequirements. The result of process is decided by the participatingconditions and the actual capacity of participants. Therefore, such systemof decision-making should construct the basic safeguard for the minority,such as the safeguard of human rights, the system of checks balance, andthe policy of welfare state, and so no. The policy of welfare state meansthe substantive compensation for those who are not able achieve theirneeds because of the lack of equal participating.There are lots of factors in history causing the emergence anddevelopment of constitutional system of USA, such as the constitutionalconvention of1787, the judicial review constructed by the Judge Marshallin1803, and the constitutional tradition of UK which succeed from theancient tribes of Germanic. The core of political system in USA is theconstitution, republic, and the democracy under the constitutional system.The political system, however, is long departed from not only thecontinent of Europe, but also the Britain and the other areas. Themonarchies of the continent in middle ages constantly centralize the statepower with an attempt to resolve the ceaseless confliction of religion, class,and ethic. The political and legal thinking of the Europe focus on thefollowing three aspects: dominion, democracy, and code. The governmentof the Europe lingers between the legal formalism and centralization ofstate power. Its root is in the misusing of the traditional way of thinking oflogos. The constitutional reform of Europe in World War II is to constructthe political system of balance which is harmonized with the situation ofcountry. When the European abandons the old tradition and enters into thenew system, its thinking still exerts the bad influence on the third world by its writings in enlightenment. The mode of concept provided by it isunable to resolve the various areas emerging in these countries. A newtendency, however, is showed up itself. The globalization of Economicbecomes the regulation of structure under which human beings come tounion, including the EN, the WTO, the UN, and International CriminalCourt. Correspondingly, the politics and pattern of society will bring aboutthe changes. Even if the disputes are not able to resolve solely, theequilibrium can be achieved on the scale of non-country. The internationalbackground is becoming the resources of stratagem which can be used inrule of law of the third world.At last, the constitutional system represented by the political system ofUSA is a set of govern frame which has the core of judicial process of theadversary system. It emphasized the equilibrium between the governinstitutions and the various social forces, and is more advanced than thetraditional theory of institution which has exert the strong influence on thethird world. The clarifying between the principles of two institutions, inmy point, helps to perfect the designing of the third world. Of course, asfor a country of non-common law, transplanting the mode of institution ofUSA, to some extent, means an impossible mission, and the problems thethird world is facing with are not able to be resolved by a country solely aswell. Therefore, during its construction of rule of law, the third worldshould endeavor to join in the international society, and obtain the sourcesof stratagem from the new international order.