The Constitutional Road Under The Context Of The Common Law

Feudalism, as the most important early English society ties, which is a particular contractual relationship based on the letters between lord and vassal of the feudal for the grant fief, have a great significance to the emergence of the common law. It can be said that the common law arising from the beginning, that is, in order to maintain feudalism. Common law litigation is substantial to adjust the personal relationship and property relations of lords and clients. Feudalism Deductive slowly and develop in the history, in this process, the common law continuous grow, precipitate, accumulate, at the same time, the spontaneous order plays a leading role. Individuals or groups in the subjective will of the formation of the common law failed the mainstream, which is the formation of a National Code of diametrically opposite situation.The common law as a way of life, customs and habits of the legal representation, which happened in a similar situation in other countries and regions, the content of any unique, but the key is in the entire history of the evolution of common law, in order to strengthen the Crown the King rely on common law, and the nobles against the Crown in order to rely on common law, common law is not only the performance of the world order, it is also the expression of social and political order. This caused the common law the most far-reaching impact on the constitution.Common interest groups in the confrontation and compromise for the various interest groups have to rely on the equity of the device. However, the common law itself was deeply rooted in history and habits of the British. The common law is a spontaneous self-generated in the order. This rule is self-generated spontaneous social order in the symbiotic status. The common law is a spontaneous self-generated in the internal rules of order, on the evolutionary significance of the approval for the people of a natural selection, therefore, be able to meet the legitimate expectations of the vast majority of people, in other words, it services to the vast majority of people purposes. This is the way of cultural transmission advantage. In this sense the common law carries its own history and customs of the United Kingdom, and the originator of this law which subject to this order has the greatest degree of respect of the people, because as a molecule in order only at this healthy running order will make the greatest possibility of the legitimate expectations of the implementation. And in this sense the common law will promote the greatest degree of order and respect, therefore, like English people treated the same approach to history, in addition to fear, respect and obedience, there is no other feeling.Constitution is an external rules, it can not be used as a cornerstone of the country or as a source of the rule of law. The plight of world of western democracy and freedom in recent years are related to it. The roots of the theory is that people have the omnipotent machine of rationality, since the human can go into the logic of the rational set up its own country, the Government, to create their own laws. And the gradual evolution in human history and development process, ration is only "less than rational," a tributary of it. However, the existence of external rules are not always in a negative sense, the Constitution can make the internal rules to be better implemented. The Constitution under the constitutional system must ensure that the spontaneous order live efficiently. English common law as a whole is based on the constitutional foundation is to maintain benign constitution in the spontaneous order.Locke's concept of property rights put the property on the natural rights of people, which launched his political structure, that is, the exercise of rights must show the location of the sovereignty of each person who is available to all legislation, and this of course is not feasible, so that later on the derivation of representative institutions, and different concepts between people, in order to achieve a unified concept, which in turn lead to a democratic system, the separation of powers is to prevent the absolute power, but the idea of legislation as the center has not changed. Legislators that sovereignty, the legislature reflects the will of that country's will. However, legislators themselves a kind of organization will be vulnerable to announce the rules of organization as external rules. Second, the legislators as an institution which has the characteristics of people easily in accordance with the "construction of rationality" approach to implement their own purposes, thus ignored or suppressed the purpose of the vast majority of people, which misses the legitimate expectations. Furthermore, the constitutional structure of separation of powers that give legislators legislative powers, the legislature is that it is all about. And legislators with the sovereignty of color itself, therefore can not assume responsibility on the legislative fault.Both the theory and facts have proved that the current political structure of the separation of powers make the line between legislative and executive powers increasingly blurred, thus can not achieve equity and the effect of each other. The consequences of which led to the increasing weakening of judicial power. Judicial power as a judge right has the negative characteristic, while the executive and legislative powers of the natural expansion and squeezing so that the functionality of judicial power can not be done. As mentioned earlier, the judicial power, although the only way to judge known to outsiders, but is responsible for its own internal rules of discovery and expression of the abstract, it can be said that judicial power is the basic existence of the spontaneous order. With the integration of the legislative and executive power, the prevalence of external rules which make the presure to the internal rules, external rules not generated in the source make the internal rules not apply to the natural order, so that the internal order gradually change for the external order.In Hume, where the measure of property rights is not innate, nor on the subjective motives of the kind, but on justice. The formation of the rules of justice for the distinction between private property rights provide an evaluation criteria, which is indeed a man-made rules of justice, without the purpose of the product of impulse, in the long-term shape of common life. Hume believed that people in the common property is the existence and common development process which gradually involved in the formation of the expected relationship between the stability of society. Therefore, the legislation is not to re-construct a new right, but how to discover and identify such legitimate rules of conduct. The government is also the selection of a product of compromise that a long-term benefit conflict against the Group in the development of checks and balances and, therefore, no matter whether it is posed by the monarchy and the aristocracy or the mixed system of government posed by universal democracy or representative body, the difference not too much, but the key question is to safeguard legitimate rules of conduct to protect the people in accordance with the rules of legitimate expectations, namely the protection of people's long-established concepts of property rights. In this sense, the social contract formed the basis of the Government does not have much value..The constitutional road under the common law gives a to new ideas and solutions to people who face the current confusion of constitutional development. To mainten spontaneous order as far as possible is the major aim of the constitution. Therefore, to adjust the maintenance of spontaneous order under the common law context of the constitutional structure of separation of powers would be more beneficial, and to ensure that the existing internal rules of order to maximize the application of the framework. First, the functions of councils need to re-construct, that is, only make external rules, at the same time, the the external rules require judicial review to determine their compliance with the internal order. Second, government rule-making power of the external rules need to be cancled, the Government should have only the implementation of external rules. Third, the internal rules of discovery, carding, and abstract should be given to judges, and strengthen their right to judicial review and oversight. Only the internal rules be fully applicable, the internal order be fully respected, the freedom of human beings can be fully enjoyed, and even though a lot of the constitutional framework expressed the greatest respect for freedom on the name, but the highly respecting legislative and executive power, often causing the greatest interference on the freedom.From the system level, freedom is the personal choice in spontaneous order, which is also a part of it, while the full play of the selection of individuals means the respect to the internal order. From a personal point of view, freedom means free from other mandatory, Spontaneous order gives individuals the right to select the greatest, but this option can not be carried out because of interference from other sources. In this sense, first of all, Freedom of action means that the scope of the individual are not violated. To achieve freedom, on the one hand, to prevent arbitrary executive power, on the other hand, also to prevent arbitrary legislative power. This requires the administration of justice. In this sense, the constitution under the context of the common law provide the largest and most fully protection for the freedom.