The Establishment of Constitution’s Position in Legal System Forum

[Naisheng Cheng]

The Establishment of Constitution’s
Position in Legal System
By Cheng Naisheng

(Professor of Law SchoolNanjing Audit University; doctor of law)

In general settingsthe constitution is usually regarded as the core and foundation of the legal system in each countryas the supreme law beyond any categorization of the department law(1)or as “mother of lawsand law of lawsas the basis of any countries’ legislation”.(2) Theoreticallysuch supremacy is determined by its topmost priority and it is also what it should be in a constitutional state under the rule of law. In realityconstitution hasn’t always been held in the core position in legal systemnor does it always follow the suit of the process of a constitutional state.
I. The modes of constitution’s establishment of its position in the legal system Countries like UKUSA and France took the lead in achieving rule of law. They are regarded as the advanced countries in the sense of modernization theories. In those countriesthe constitution occupies the core and fundamental basis in the legal system with other laws as its lowerlevel lawswhich shall in no occasion collide with it. The formation of constitution’s position as the basis was achieved gradually with the institution of modern legal system.(3) Howeverthe three countries followed three different modes in which the constitution won the core place in the respective legal system.
A.UK legal system is built in accordance with the constitutional spirit of securing rights and limiting power.
The supremacy of constitution isn’t distinctly obvious as it is in no written form as the alleged “the supreme standard”. “For UKconstitution is not the original source of all legal regulations but absolute results from individual rights and freedom.”(4)Howeverwith the substantial existence of constitutional essencewhich is to protect people’s rights and limit the power of authoritiesthe inherent requirement that British law should never be in collision with the essential spirit of constitution will have to be demanded. Locke believes that “people’s welfare is the supreme law”(5)and “it is far from acceptable that legislature or the supreme authority bodies should hold power at hand and then exercise governance by dogmatic and dominating commands. Insteadtheir governance should be achieved by means of the ordinary and constantlystanding laws with the help of qualified and prestigious judges who will execute jurisdiction and determine on the rights of people.(6) In the middle of capitalism revolution as well as in its aftermathlaws were primarily used to limit the power of the king. After the establishment of the principle of ‘parliamentary sovereignty’laws primarily are to circumscribe the power of other national bodies and to protect people’s rights.”
According to British traditionslegislation is enjoyed by the parliament. After the Glorious Revolution in Englandthe capitalism class successfully seized it and put it under the control of the parliament that has the undeniable authority in legislationthe right of supervision on governments’ administration and theoretically the supreme jurisdiction by its Upper House.”(7) In October1689what William III of England acceptedwhich makes up the most important part of British constitution—Bill of Rights regulates in its first article “that the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal”; in Article 2 “that the pretended power of dispensing with laws or the execution of laws by regal authorityas it hath been assumed and exercised of lateis illegal.” “The supreme power that the parliament enjoys is inherently attainedneedless to win authority from anyoneany bodieseven from the Constitution. Nobody or no organs shall announce void the laws passed by the parliamentor maintain and support those abolished by itwhich can be alternatively stated that no limitation should be set to the legislation of the parliament; in the process of executing lawsthe court shallunder no circumstancesreject applying laws passed by the parliament. Amendment and suspension of previous laws can be undertaken only by the parliament”;(8) UK is a country with a flexible constitution and the parliament has the right to make laws of any kind even including the constitution. A different procedure will be followed to make laws with constitutional sense; hence there is no basis law or core law in the legal system. Howeversince 20th centurythe tendency of attaching more stress on laws of constitutional significance in Britain has been on the rise. “It is prescribed in Article 46 of the Parliament Regulation that constitutional bills should be reviewed by the Whole Committee of the House instead of by standing committee members. What’s more important issuch bills will initially be discussed in the joint meeting and go through a procedure of approval similar to the citizen’s voting.”(9)Though it doesn’t follow that this means British constitution bears rigidness in itit still exertsto certain extentinfluence on its legal system.
B.The nucleus position of American Constitution in the legal system is determined by its rule of judicial review of constitution.
Due to the mechanism of judicial review of constitutionthe position that constitution enjoys in the legal system is equally important as the rule itself. It is held by Americans that all people’s deeds shall be based on specific constitutional ruleswhich is particularly true in exerting national public power. Since the peopledesigned constitution intensively reflects reason and justice and embodies natural lawonly deeds in accordance with constitution are congruent with public willreason and justice. It is claimed in the 1776 Declaration of Independence that “Governments …deriving their just powers from the consent of the governed.”
Constitution is the basis on which any other laws are built and the warrant according to which other laws are madedue to its position of the higher law. Viewing from the origin of constitutional conceptionmany scholars are in line with this standpoint: since the constitution as higher law is transformed from natural lawplus another premise that every manmade law shall follow natural lawconstitution thus wins itself the warrant for all legislation activities. “Any statue law shall be in accordance with natural law for the reason that it is the best and most ideal law.”(10) Americans hold such a view“Constitution should be observed by any individualsany national bodies and organizationsany laws and regulationsand any behaviors of any government officials. Whatever goes against it is void.”(11)Chief Justice of the US Federal Supreme Court John Marshall established the judicial review principle of “Laws in violation of constitution are no laws at all.” through the case of “Marbury v. Madison”. Since thenthe predominant majority of constitutions in the world declared their position of supreme law. Yetdue to wellrun unconstitutional review system in USAthe nucleus position of the Constitution’s position as the nucleus and basis is comparatively stable.
C.Legal system in France is built in accordance with its constitution.
France is the earliest country which set up a comprehensive legal system after the capitalism revolution. “After Napoleon came to powerin attempt to strengthen the success of capitalism revolutionto boost the development of capitalism economyto eliminate the inconsistency in law as a result of unstable political condition and constant warshe personally presided over the compilation of a series of codessetting up a virtually systematic and comprehensive modern capitalism legal system.”(12) The French stressed much upon protecting their victory over the feudalism power by the weapon of law. Besides the Bill of Rights made and issued during the French Great Revolution1792 Constitution1793 Constitutionother important fundamental laws were made instantly within 20 years after the breakout of the Great Revolution. They constituted “Six Codes of France”. “Six codes” originate from the civil law system. France is the first country of codification. In 1804Civil Law was made; thereafterCivil Procedure Law was made in 1806; Commercial Law was made in 1807; Criminal Procedure law was made in 1804; Criminal Law was made in 1810; together with French Constitution enacted in 1791all these laws makes up the Six Codes of France.”(13) “It is proper to claim that this is an organic and integrative system which draws up on lines with the Roman lawinherits the essence of previous codes in Francelies on the basis of civil codeand regards the constitution as the fundamental law. Its emergence marks the ultimate establishment of legal system of French capitalists.”(14)
Generallyany newlymade law has a shadow of previous laws. However“French modern lawin comparison with that of UKis relatively pure capitalist law in contentsdoctrine and form; it reflects the revolutionary victory over feudalism in a systematic and direct way; it also fits into and promotes the capitalist production relations. It is typical of early capitalist law.”(15) An essential reasonwhy modern French law first came into being among capitalist laws and became the representative of capitalist civil law systemis that the constitutional spirit established by Bill of Rights has been rooted into people’s heart.(16) As a resultin spite of constant changesthe fact remains the same that French constitution bases itself on Bill of Rights’ proclamation of rights and incorporates in itself the fundamental spirits of safeguarding human rights and limiting power. So does its position as the base and core of French six codes. If there are any new changesit is the increasing strengthening and consolidation of the position of the constitution.
II.The formation and development of Chinese constitution’s position in the legal systemThe 15th Congress of CPC in 2010 declared that the task of establishing China’s socialist legal system has been fulfilled. On Jan.242011“The Meeting of Building Socialist Legal System with Chinese Characteristics” was held in Golden Saloon of the Great Hall of the People by the Standing Committee of National People’s Congressin which Chairman Wu Bangguo made an important speech. Wu said“By the end of 2010a total of 236 national lawsmore than 690 administrative regulationsand more than 8600 local laws and regulations have been enacted. Current lawsadministrative regulations and local laws and regulations have been overall coordinated. At presentChina has established a comprehensive socialist legal system that governs all sectors of social life; the fundamental and major laws in different sectors of law have been enacted; relevant administrative regulations and local laws and regulations are in full bloom; the inner structure of the legal system has come into a scientific and harmonious unity. What has been established is a socialist legal system with Chinese characters that is rooted on current situation and reality of Chinathat satisfies the needs of Chinese reform and openingup and socialist modernization constructionsthat embodies the will of the party and peoplethat is led by Constitution and backed up by such a variety of law sectors as constitutionderived lawscivil laws and commercial lawsthat is made up by a multitiered legal norms including lawsadministrative regulations and local laws and regulations. All these provide a legal basis for national constructions in economypoliticsculturesocial developmentand ecological development.” Wu emphasized“We should improve the legal system at a new starting point”. He also deems that such a goal requires us to “stick to and maintain Constitution’s authoritative position as the fundamental law of the nation”. The reason why Wu emphasizes on the authoritative position of the Constitutionin our opinionis that its core and fundamental position has not been fully embodied and implemented in reality. And there is still some distance from the comprehensive legal system demanded by constructions of modernization and building of a nation under the rule of law.
China’s new constitutions undertook the following important stages in gaining its core and fundamental position in the legal system.
Stage One: From 1949 to 1957. At the early beginning of China’s foundingalthough with the absent concept of rule of lawfrom the general and common logical line of nation administrationthe establishment of socialist laws was still on the way. Before the founding of new Chinain February1949Central Committee of CPC issued “The Directive of Abolishing Kuomingtang’s Complete Six Laws and Establishing the Judicial Principles in Liberated Regions”which thoroughly repealed the previous laws of China. Hencelegislation of New China has to make a fresh start. During this period of timeNPC and its Standing CommitteeThe State Council and various ministries enacted about 730 important lawsdecreesand regulationsinvolving politicsmilitaryeconomyforeign affairs and setting a whole new start in new China’s legislation. Laws of this stage revolve around consolidating the new state power featuring people’s democratic dictatorshipbuilding the fundamental political system based on people’s congressand protecting people’s democratic rights. It is also in this stage that important laws were made like 1954 ConstitutionLand Reform LawMarriage lawRegulation on Punishing Counterrevolution Crime. The basic political and legal system of our socialist nation was initiated then. Howeverthe apparent problems with in them include: they were not systematic; the constitution is inferior to political authority; laws are fewer in number than decrees and regulations. What is primarily important is that they were not wellenforced and were constantly replaced by policies made during the political movements.
Stage Two: From 1957 to 1977the majority of laws including Constitution were abolishedleft with only the titles.
Stage Three: From the end of 1978 to 1997. By the end of 1978it was proposed in the Third Plenary Session of CPC: “From now onlegislation should be put on the agenda of National People’s Congress and its Standing Committee”. Thereaftera round of legislation on an unprecedented scale was under way. This stage consisted of two periods: the first period began from the end of 1978 through 1992 when the former national leader Deng Xiaoping’s doctrine of democratic law was announced and important laws as ConstitutionCriminal LawCriminal Procedure LawMarriage LawCivil Law were urgently enacted. Despite the basis that laws in this period laid for future construction of socialist country under the rule of lawthey are essentially conventional legal constructionwhose conception is far from the constitutionalismas a result of which the core and fundamental position of the constitution was not obviously promoted into the legal system. But it is in this period that an agreement was reached upon the constitution’s position in legal system among constitution study scholars. For examplein Constitutional Lawthe most important textbook of constitution study at that timeProfessor Jia Lin put forward that the constitution is characterized by its position as the national fundamental law and enjoys the supreme position in legal system. The second period in this stage is the construction of laws for socialist market economyfocusing mainly on legislation of economic laws and rudimentarily accomplishing the legal system for Chinese socialist market economy. Legislations in this period enhanced largely the socialist market economy of our country and made our cause of reform and openingup irreversiblelaying the economic foundation for China’s socialist constitutional construction and thus for the establishment of constitution’s core and fundamental position in Chinese legal systemfor market economy will consequentially stimulate people’s request of their legal rights and thus bringing people’s demands on power limitation. From 1992 to 1997totally 873 laws and codes were madeall of which are connected with the construction of socialist market economy. Yet apparentlywhat needs improvement in this period is that constitutionalism was not automatically reflected in legislation and that awareness was wanted of stressing upon ensuring rights and limiting power.
Stage Four:Since after 1997. In February of 1996the Political Bureau of the Communist Party had an intensive study in which Chinese jurist Prof. Wang Jiafu made a speech titled “Exercising the Rule of LawBuilding a Socialist Country Governed according to law”. Instantly after thata commentary of the same title was publicized in People’s Daily. Thenceforthit has become the theme in Chinese political life and law. In 1997CPC held “The Fifteenth National Congress” which set “the rule of law” as the administrative strategy of CPC in the new phase of development. In 1999in the Third Amendments of 1982 Constitutionincorporated into the Constitution was “Exercising the Rule of LawBuilding a Socialist Country Governed according to law”making “rule of the law” the fundamental principle of China’s constitution. It was also the first time that the country’s socialist constitution determines the principle of “rule of the law”which indicates that our constitution is turning from paper to reality. In the sense of legislationthe construction of socialist legal systemrevolving around the constitutionhas become a selfconscious behavior for national legislative bodies. After 1997a series of powerrestraining laws was issued in successionlike Administrative Penalties LawAdministrative Reconsideration LawCivil Servant LawAdministrative License Law. It was an unprecedented scene in Chinese history of legislation. In the fourth amendment of present Constitution in 2004the state affirms and guarantees people’s right of private property by inscribing warrant of human rights into the constitutionclaiming openly the safeguard of human rights in constitution. Though Up to nowalthough the restraint of power and guarantee of rights in law still remain limited in the legal systemplus the failure of setting up constitutional review system and the fact that the constitution’s political sense is stronger than its legal senseefforts have been put into limiting power and guaranteeing rights in legislationwhich itself means that a socialist legal system with Chinese characteristicscentering on the constitutionwas on its wayand emerging is the constitution’s fundamental position.
After combing the relation between China’s constitution and its legal systemit is of our thoughts that the process of constitution shifting from paper to reality is the process in which constitution moves from a position parallel to other laws to the core around which the socialist system is constructed. This will be a longterm historical developmentbut it has already begun after 1997. The day when China becomes a genuine constitutional country coincides with the time when constitution becomes fully the core and basis of socialist legal system.
III.The foundation of constitution’s position as core and base in the legal system Constitution’s position as core and base in the system is not achieved in one step. Insteadit results from the historical development of the country’s modernization and legalization. It also is closely associated with belief in law and the practical enforcement of constitution. It is ultimately determined by the material living condition of the society—the foundation of commodity (or market)economy.
A.Such a position is determined by commodity market economy conditions.
Constitution is the legal right request from the entities of commodity economy. “Rights are the core of lawwithout the demand of which there will be no needs and desire for law.”(17) People’s rights intensively embody the entities’ demand for legal rights. This concept originated in the development of commodity economy in the medieval and modern Europe. As commodities are products intended for equivalent exchange for products of other kindsthe purpose being for exchangethe exchange parties have to be equal in rights and enjoy total freedom of personal willwithout which it can’t help successful exchange. “Not only do equality and freedom win respect in the process of valuebased exchange but also lay a realistic foundation for any equal and free production.”(18) Commodity exchanges demand for freedom and equality. If the entities in commodity economy request intend for legal rights like freedom and equalitynational power has to be restrained that erodes freedom and equalityespecially the feudalism autocratic power. In this historical period of timemany enlightenment thinkers began to consider about the source of state power. Initially from the angle of denying the divine right of kingsthey set up the theory of people’s sovereignty: expecting effective protection from the governmentpeople grant their rights to the government while the government exercises state power with people’s authorization. People will regularly inspect the government’s execution of power by means of election. If the government can’t pass people’s inspectionit has to resign; otherwise it’ll be only act of arrogation for which people can drive it off the power by violent revolution. Although people’s sovereignty theory is merely a political assumptionthinkers afterwards designed the fundamental rule of representative democracy to practice it. People’s sovereignty changes from a political assumption into a political and legal value of scientific sense. Meanwhileenlightenment thinkers also engaged themselves in probing into the constraint of state power and guarantee of people’s rights. By drawing on right constraint theory from Polybius and Ciceroespecially on the ground of British capitalist revolutionsRock and Montesquieu developed the theory of “separation of three powers” which evolved into the standard system for capitalist democracy after practices of American Constitution and French Constitution. It is of the essence of constitutionalism to constrain state power and safeguard people’s rightshence commodity economy is the economic ground for constitution and a constitutional government in that only commodity economy breeds constitutionalism.
To fulfill the demand for legal rights in commodity economylegislation would have to center on constitution. To ensure integrity in exchangethe system of civil law has to be set up; to ensure the order of commoditymarket economythe state has to interfere with macro economyhence the administrative law system has to be established; to ensure the smooth flow of commodities among countriesinternational law system has to be built; to ensure effective relief for the infringed rights of entitiesprocedure law system has to be erected. All these laws are lower laws of constitution. They are the specification and extension of Constitution’s restriction on state power and protection of human rights. Thereforewhen the economy of a country is truly based on commoditymarket economy and all laws are made revolving around constitutionsit will surely follow that its constitution must be the base and core of its legal system.
B.Belief in law especially that in constitution is prerequisite to Constitution’s gaining the core and fundamental position in the legal system.
“Law must be beliefsotherwise it is nonexisting.”(19) Belief in law goes before the authority of lawand belief in constitution is the key to its position of supreme law. In class societiesthere exist three kinds of norms to adjust people’s behavior: moral normslegal norms and religious observance. The reason why they can adjust people’s behavior is because they are abided by peoplewhose precondition is that people believe in them.
Rousseau holds the view that legal belief “is not graven on tablets of marble or brassbut on the hearts of the citizens. This forms the real constitution of the Statetakes on every day new powerswhen other laws decay or die outrestores them or takes their placekeeps a people in the ways in which it was meant to goand insensibly replaces authority by the force of habit.”(20) Such a belief is the important embodiment of Constitution’s supremacyderiving from its being the higher law. “Up to now‘higher law’ is the authoritative theory of Constitution’s supremacy. By overriding the confinement of secular laws and rulespeople have the faith that there exists a higher law above the statutory lawsas a result of which “higher law” found itself incorporated into a realworld or positive law which is conferred supremacy… Natural law is the reflection of people’s sense and justice. Only when laws enacted by legislative bodies are in line with human’s sense will they have legal effect. Hence it is higher than statutory laws. The Constitution made by people is the full embodiment of sense and the reflection of natural law. Since natural law is the higher law transcending justiceplus constitution being its transformationhigher law’s translation into positive law endows Constitution supremacy.”(21) Among Western constitutional theoriesthe following theories lay a theoretical foundation for Constitution’s supremacy: theory of ancient natural law in Ancient Greece and Rometheory of theological natural law in Middle Agemodern theory of classical natural law. As Maine putsthe principle of natural law takes the place of oldfashioned laws for its inherent advantagesand “such theory had won wide popularity among Roman colonies and Britain.”(22) Furthermoremodern constitutions add to natural law concreteness and feasibility. Take American Constitution for example“The primary factor which contributes supremacy to the constitution is that … it puts an end to the situation where all states dispersed in condition of natural lawwhich empowers American fundamental law with concreteness and feasibility in an unprecedented way.”(23)
From the perspective of real social conditionsbelief is human’s ultimate spiritual supportwithout which people don’t have ultimate horror. Therefore theoreticallyany rules can impossibly be put into effect in a nation without any belief. The final and ultimate compulsory resort is state violencebut law can not merely rely on state violence to maintain its effectiveness. If sothe law wherein is put in emptiness. Hence for any nations ruled by lawthe enforcement of constitution and other laws must rely primarily on people’s belief in law so to keep them in respect and fear of themwhich is the normal mentality people have upon them and is also the prerequisite of and key to the realization of them in the social life.
C.The supervisionguaranteeand enforcement of the constitution will ensure its core and fundamental position in legal system.
The constitutionas a kind of lawnonexceptionallygains its ultimate strength from the compelling force of the state. The superiority of one nation’s constitutionalism can be determined by three factors: one is whether it has a complete constitution; the second is the degree in which the constitution is enforced in real social life; the third is whether its constitution enjoys the substantial supremacy in the systemwhether any challenges over or violations of the constitution will be charged. Among the threewhat is closely related with the constitution’s core and fundamental position is whether it has been effectively supervisedguaranteed and enforced. Viewing from British’s implementation of constitutionalismthe most important question for a constitutional state is not whether it has a selfcontained constitution or not. So long as the constitutional concept is really and fully implementedthere will surelybe founded a constitutional state. No matter how perfect the constitution isif failing to be enforced in social lifethere won’t be any constitutional governments alllet alone for the constitution’s role of supervisionguarantee and enforcement. Hence a constitutional state can be measured by the existence of a truly effective system for the constitution to superviseto be protected and to be enforced.
Any unconstitutional behaviors will be charged with the government as no exception. “If the government goes against the national constitutionare there any ways of correction? How to realize them? It is a judicial question. Any citizens whose rights are infringed upon have the right to put forward such questions which shall be judged by the court in accordance with the law of the nation.”(24) Violation of the constitution is against the fundamental law; hence the violators must be subject to the administrative sanctions and legal liabilities. There is a variety of ways to undertake the liabilities for unconstitutional behaviors: for political leadersit might be the impeachment; for parties and political groupsit might be the dismissal of the organization; for individual citizensit might be to take civil liabilitiesadministrative or even criminal sanctions. It is uncommon to charge ordinary citizens for breach of constitution for the fundamental reason that individual citizens are not the one who exercises state power and also that such breach usually goes against lower laws so that citizens will be punished by means of lower laws. If no charge will be placed upon unconstitutional behaviorsit indicates that the constitutional system of the country is not perfect and its constitution has a sense of “Constitution only on paper” because “it is no law at all that offers no legal remedies.”
In current worldthere are three modes for constitution’s supervisionguarantee and enforcement. Regardless of any modesany unconstitutional laws are no lawshence having no legal effect and not applicable in court. The constitution’s feature of holding the supreme legal effect is posited from this angle. If the system of constitution’s supervisionguarantee and enforcement is not built in a real senseif unconstitutional laws are still functioning in regulating citizens and the societythere will hardly be real constitutional administration and constitution’s supreme feature will be greatly undermined. Thereforefurther improvement of the socialist legal system with Chinese characteristics shall have to be based on solving this problem.
It is commonly held by us that the constitution occupies the fundamental and core position in national legal system. Such a position is consistent with its realization in social life on basis of commoditymarket economypreconditional to constitution beliefsand backed up by system of constitution’s supervisionguaranteeand enforcement. To further enhance the socialist legal system with Chinese characteristics as well as to quicken the steps of development of socialist market economythe authority of constitution must be establishedgenuinely.


（Translated by Xie Qin)Notes:
(1)HanDayuan. “On constitution’s position and function in constructing legal system.” Study and Exploration (2009).
(2)LiLong. Theoretical Foundation of the Constitution. Wuhan: Wuhan University Press1999. 102.
(3)It is held by Prof. Luo Rongqu that “contemporary” and “modern” are similar or close in meaning in theories of modernization. For this opinionplease refer to LuoRongqu. New Theory on Modernization: The Modernization Process of the World and China. Beijing: Peking University Press1993.
(4)HeQinhua and Zhang Haibin.(ed.)History of Western Constitutions. Beijing: Peking University Press2006. 338.
(5)Locke. The Second Treatise on Civil Government. trans. Ye Qifang and Qu Junong. Beijing: The Commercial Press1982. 100.
(6)Locke. The Second Treatise on Civil Government. trans. Ye Qifang and Qu Junong. Beijing: The Commercial Press1982. 85.
(7)HeQinhua and Zhang Haibin.(ed.)History of Western Constitutions. Beijing: Peking University Press2006. 334.
(8)HeQinhua and Zhang Haibin.(ed.)History of Western Constitutions. Beijing: Peking University Press2006. 33334.
(9)GongXiangrui. Comparative Constitutioin and Comparative Administrative Law. Beijing: Law Press1985. 41.
(10)ZhouNan. Original Theory of Roman Law. Vol.1. Beijing: The Commercial Press2005. 95.
(11)ZaneJohn Maxcy. Brief History of Law. trans. Sun Yunshen. Beijing: China Friendship Publishing Company2005. 232.
(12)HeQinhua.(ed.)The Development History of French Law. Beijing. Beijing: Law Press200135.
(13)FanJinxue. “Thoughts on abolishing the complete laws of Nanjing Kuomingtang government”. Science of Law(Journal of Northwest University of Political Science and Law)4(2003).
(14)HeQinhua.(ed.)The Development History of French Law. Beijing. Beijing: Law Press1997. 293.
(15)YouRong and Hu Dazhan.(ed.)Foreign Legal History. Beijing: Peking University Press1989. 199.
(16)ChengNaisheng. “On modernization of French judicial system”. Study on Modernization of Law Vol.12.
(17)XuZhangrun. Law Beliefs: Chinese Context and its Implications. Guilin: Guangxi Normal University Press2003. 161.
(18)MarxKarl and Friedrich Engels: Gesamtausgabe. Vol. 46. 1. Beijing: People’s Press1979. 197.
(19)BurmanHarold J.. The Interaction of Law and Religion. trans. Liang Zhiping. Beijing: China University of Political Science and Law Press2003. 3.
(20)Rouseau. On the Social Contract. trans. He Zhaowu. Beijing: The Commercial Press1980. 73.
(21)ZhuFuhui. The Supremacy of the Constitution—the Essential of Rule of Law. Beijing: Law Press2000. 58.
(22)Maine. Ancient Law. trans. Shen Jingyi. Beijing: The Commercial Press. 1959. 26.
(23)SnowissSylvia. Judicial Review and the Law of the Constitution. trans. Zhan Hongguo. Beijing: Peking University Press2005. 2627.
(24)ZaneJohn Maxcy. Brief History of Law. trans. Sun Yunshen. Beijing: China Friendship Publishing Company2005. 232.

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