A Research On Judicial Constitutionalism

After World War II, the constitutionalism in many countries of the world was showing a different characteristic of the traditional constitutional practice. Contemporary constitutional practice reshaped inherently the overall picture of normative human self-rule:the constitutional protection of fundamental rights and human rights became the mainstream ideology of society; relying on the constitutional review system, Balanced constitutional Judgment became the core and the run hub of the constitutional practice Constitutional law began to reshape holistic system of norms of society, and the constitutional system also became standardization practice and referee. It can be said that the new constitutional practice after World War Ⅱ reflects the typical trend that the kind of judicial jurisdiction or authority reconstructed the human self-realization and self-rule model, under this reconstruction, the legitimacy of the foundation of constitutionalism the nature of institutional construction, the micro-operation mode and the path to achieve the overall have had revolutionary changes. The author called the new form of constitutionalism that the constitutional jurisdiction has the nature of self-construction and self-improvement with practice as the hub and gravity. This paper made this form of judicial constitutionalism after World War Ⅱ to be the main content, trying to achieve a clearer understanding of the inherent logic of human self-realization and self-rule evolutionary history. In this article, the author specifically addressed the judicial constitutionalism as the following chapters:The first chapter,"What is Constitutionalism?" In this chapter, the author gave a brief explanation of the inner meaning of constitutionalism in the history and evolution and then regarded the constitutionalism practice in the Age of Enlightenment of capitalism as human self-realization and self-rule normative ideal historic rendering. On this basis, the author established the historical perspective and evolutionary latitude to analysis the constitutionalism, and divided the course of human history since the modern of self-rule into two basic stages of political constitutionalism and judicial constitutionalism. This chapter established the core elements, the main content and the basic approach to analysis the constitutionalism and judicial constitutionalism, which is mainly reflected in three aspects, namely ideological and institutional issues, democracy and the rule of law, micro and macro issues. On ideological and institutional issues, the authors believe that the two are inseparable unity of constitutionalism that constitute the evolutionary background of the "thinking-system" Community, because the evolution of constitutional thought and institutive construction of constitutionalism are integration, this "thought-system" community constructed the background environment the change and reshape of the constitutionalism. Regarding the second aspect of democracy and the rule of law, the author believed it to construct the main content of all forms of constitutionalism, the different ways of the practice of democracy and the rule of law achieved a native internal power to develop and evolve the constitutionalism. The different ways to adjust the relationship between the practice of democracy and the rule of law constitute the most essential characteristic of political constitutionalism and judicial constitutionalism. Finally, the micro and macro issues mainly related to realization in the form of different forms of constitutionalism, on the whole, the political constitutionalism is to achieve a macroscopic form of constitutional and contemporary judicial constitutionalism construct a more microscopic-macro achieve comprehensive constitutional model.The second chapter,"The Evolution of the judicial constitutionalism." This chapter analyzed and investigated the history and the evolution of judicial constitutionalism. The author’s study mainly focused on the two existing basic mode of judicial constitutionalism, namely the American model and the European model, based on the changes of the contemporary new constitutional practice of judicial power analyzed the implicative substantial changes of the way and the idea behind the constitutional system of constitutional reform, explored the internal changes of this human self-realization and self-rule system from the basic concept of constitutional practice, the overall value to the operating mode. Although this research made the institutional comparative analysis be the basic material, more focused on the relationship between democracy and the rule of law on constitutional changes to achieve the basic remodeling to the constitutional system. Specifically, the analysis of the American judicial constitutionalism focused on the history of the United States Court how to reshape the basic judicial review mode according to the realization of the new two-way relationship with the rule of law and democracy; while the historical study of European judicial constitutionalism more focused on the process of constructing a unique European constitutional court system, analyzed the two-way relationship of the new democracy and the rule of law how to achieve the adjustment and regulation. The new constitutional practice of America and Europe represents two kinds of basic form constitutionalism. After World War Ⅱ, although more and more countries and international organizations began to practice the new constitutionalism, the constitutional practice basically all from the United States and the European experience, followed American and European constitutional basic operation mode and practical scheme.The third chapter,"The Structure of thought and institution of judicial constitutionalism." This chapter focuses on judicial constitutionalism to occur and expanding the background and the bacic structure. As mentioned above, this premise is based on a fusion of the structure more of "thinking-system"Community forms exist and exert influence. The article first examines the modern social environment, the evolution of constitutionalism thought of the Charter-the institutional background of remodeling, this idea-the institutional background remodeling is modern idea of "person" to change the basic concepts of social subjects impact. More attention to the role of the modern thinking of the individual "person" in promoting the social and historical development of the individual as the core driver of cosmic causality intermediaries and social progress, the basic concepts of modernity fundamentally changed the way people legal and constitutional views, reshaping the idea of the Charter-the institutional background. Further, the author has investigated two core themes of modern ideological revolutionary reconstruction of constitutional democracy and the rule of law, this revolutionary reconstruction also formed a new "ideas-system" community, justice and constitutionalism generation of expansion provides a premise and background.The fourth chapter,"The legitimacy of the judicial constitutionalism." Contemporary constitutionalism constitutional judicial practice on the legality of the construction of the most essential way to take a very different political constitutional legitimacy. Construction of a modern constitution of the political legitimacy of the constitutional legality is not totally abandon No, but in maintaining the constitutional legitimacy on the basis of the traditional, absolute, abstract concept of popular sovereignty were dialectical transcendence and improved so more in line with the reality of the modern state and a pluralistic society and everyday life of the people of constitutional ties more closely. Judicial constitutionalism did not deny the constitutional legitimacy of the people’s sovereignty is based on natural rationality, but not of this kind as a basis for the legitimacy of abstract, macro absolute concept, but more will be its visual to be able to achieve the specific constitutional behavior closely integrated with practical elements to construct a rational perspective and a practical realization of the legitimacy of the people’s sovereignty in the two-way relationship between democracy or not the rule of law. We can say that the legitimacy of judicial constitutionalism is to construct a comprehensive presentation of complex patterns, but also to achieve the legitimacy of a legal legitimacy, moral legitimacy and social legitimacy integrated resort model presented, it will be the referee in these three constitutional legitimacy of resorting to the referee in the process, to adjust the balance of the Constitutional Tribunal of the new two-way relationship between democracy and the rule of law so as to have a basis for the legitimacy of the ultimate sense.The fifth chapter,"The operating mode of judicial constitutionalism." As the integrity of constitutional practice change after the World War Ⅱ, the constitutional ideology and theory, basic constitutional system, the way judicial constitutionalism has a very unique way of running highly complex implementation mode. This chapter will analyze the judicial constitutionalism run in the specific judicial practice. Compared to traditional political constitutionalism, judicial constitutionalism in the concrete realization of the core is also the most unique place is the use of modern methods of balancing the referee, is about democracy and the rule of law within the new two-way relationship into concrete realization of the government’s public relations law interests and rights of individual citizens, through a series of new principles of justice, the use of referees and technology, according to the specific social reality, achieving the public interest and the rights of citizens to adjust the balance of the Constitution in specific cases, and ultimately to the new two-way relationship between democracy and the rule of law effective regulation. This chapter examines in detail the nature of the judicial balance generation and technology, the basic mode of operation, and analyze the intrinsic relationship between the judiciary and the judicial way of balancing the referee constitutionalism microscopic achieve. We can say that balancing the practice of constitutional adjudication by the specific constitutional cases conducted judicial constitutionalism at the micro level, the main operating mode, is the foundation and starting point for judicial constitutionalism and ultimately in the sense of today’s world of new constitutionalism under the doctrine of judicial balance theory origin referees, technical solutions, operating characteristics analyzed and interpreted, is our understanding of the judicial constitutionalism premise and foundation.The sixth chapter,"The realization of judicial constitutionalism." In today’s world, the impact of judicial constitutionalism for the whole country and society is comprehensive, holistic, three-dimensional in nature, and only after the new constitutional practice over the course of a long period of time, the impact on the integrity of the constitutional system gradually macroscopic revealed. In this sense, finally starting to realize the integrity of the referee on the specific constitutional democracy and the rule of law in relation to adjust only the overall implementation of judicial constitutionalism, judicial constitutionalism to the specific needs of the Constitutional Tribunal as a starting point, through the case-the case of accumulation and the Constitution remodeling of the principles and techniques in a micro to macro, static to dynamic complex recycling process to be able to finally achieve. This chapter will be based on the balance of the Constitutional Tribunal, to further expand the overall analysis of the implementation process of judicial constitutionalism. This chapter focuses on the path to achieve the overall judicial constitutionalism traditional political constitutional amendment to achieve defect, which is mainly reflected in the construction of the logical implementation of constitutional self-consistency and the rule of constitutional law normative two aspects, through the improvement of these two aspects judicial constitutionalism construct a holistic dynamic cycle of constitutional practice, and ultimately reshaped human self-realization and self-rule normative social system.The seventh chapter,"The influence and inspiration of judicial constitutionalism." At the end of the article, the author describes the impact of the constitutional doctrine of judicial ruling on the normative form of human self-realization and the resulting constitutional construction of Chinese contemporary socialism possible inspiration. Overall, the impact of the worldwide contemporary judicial doctrine on human normative constitutional rule system the most prominent show in two ways:First, the deepening development of new constitutional practice of gradually changing the basic model of normative rule that no longer mainly depends on the political life of parliament to achieve effective basic social regulation, but more dependent on the power of the judiciary or judicial referee class nature of completion of the human self-realization and the ideal of self-rule, and this effect can be called justice "rule." Second, the expansion of judicial constitutionalism in the world caused marked the beginning of the concept of individual rights and human thoughts, personal constitutional rights and protection of human rights into the mainstream ideas of constitutional practice in today’s world. Judicial constitutionalism Constitutional Construction of China may revelation, the authors believe that the common nature of the judicial decisions of the constitutional doctrine of any of China’s socialist constitutional reform and reshape possible while maintaining socialism must be able to fully reach the constitutional characteristics of Chinese reality Social Democratic and practice of the rule of law to achieve integrated resort, the Chinese constitutional system can run both systems of openness and self-improvement, self-improvement and can continue to self-development in the ongoing constitutional referee’s.