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Constitutional Change management commentary and analysis on the


First, the concept of constitutional change constitutional change is a change in form of constitutional norms, the general provisions of the Constitution itself does not mean any change, but with changes in social life, the substance of constitutional change in the terms and produce certain social effects . That is, when constitutional norms conflict with social life, the meaning of certain constitutional norms has disappeared in the specification form of social life appear to adapt to the actual requirements of the new meaning and content. Germany's public law scholar leaves Linna Ke (G ? Jellnek) first from the perspective of Constitution put forward the concept of constitutional change and make it theoretical, systematic. Ye Lin Nake that the constitutional amendment is an act of will through the formation of a constitutional provision to change the constitution refers to the change in form does not change the provisions that exist to maintain its original form, in the absence of intent, awareness of the case did not change based on changes that occurred in the situation. [1] Ye Lin Nake systematically proposed constitutional changes occurred several situations: 1. Based Council, Government and the tribunal's interpretation of the changes occur; 2. Based on political changes in the needs; 3. According to the Constitution practices and changes; 4. because of the non-exercise of state power changes; 5. According to the fundamental spirit of the Constitution changes. Constitutional Change and Amending the Constitution is the form of constitutional norms change, have the same constitutional validity, but the nature of the two are different. Amendment to the constitution in accordance with constitutional procedures, conscious, purposeful change of the constitutional norms to express the behavior; and constitutional change is based on changes in social life caused by the change in the substance of constitutional norms, constitutional provision itself to remain unchanged. Change the Constitution to the general use from the two senses: one is the law on the sociological significance of the changes in the content of constitutional norms that the Constitution and the reality of the conflict between the state recognized as a fact; the other is the method of hermeneutics sense of change, that is the contradiction between norms and actual premise of a written constitutional norms lost its original meaning of the emergence of new content with the constitutional norms. Constitutional change discussed at the constitutional significance is mainly on the interpretation of law changes. The concept of constitutional change from the historical emergence and development process, the period of rapid change in social life, there is the possibility of constitutional change is relatively larger. Since the strict procedures of constitutional amendment, it is certain norms will conflict with the reality usually in the form of constitutional change. In some countries, constitutional change is a constitutional amendment necessary preparations, the constitutional amendment changing the constitution is based on experience,[link widoczny dla zalogowanych], and to enrich the constitution of social life in the form of adaptation. Second,[link widoczny dla zalogowanych], the nature of constitutional change Change Theory in the Constitution the most controversial issue is the identification of the nature of constitutional change. How constitutional practice should be recognized on the scope and extent of the social effects of constitutional change and constitutional changes in the specific operation of the constitutional system, the question whether the direct binding are directly related to the nature of constitutional change. Around the nature of constitutional change, there are three theories: First, the fact that, say, inconsistent with the provisions of a written constitution constitutional state can not allow the new generation of constitutional norms. Violation of the constitutional practice of constitutional norms exist in the social reality is actually a violation of constitutional authority, constitute a constitutional fact. Understanding of the concept of constitutional change is actually the default unconstitutional the legal existence of the facts, it can not be promoted; Second, customary law that the written constitutional norms that conflict with the constitutional status of constitutional norms that are actually produced as a constitutional customary law. As the reality of conflicting norms and, effectiveness of written constitutional norms play encounter obstacles to the new constitutional norms in the form of customary law, and further enriched the content of constitutional norms themselves. Reasonable and customary law awareness of the existence of social norms to a certain extent, ease the contradiction between norms and reality, to avoid the constitutional norms that may arise in practice gap; third law practice that, according to British constitutional theory and practice law in the constitutional concept note Change of legal nature. Written constitutional norms in conflict with the effectiveness of norms is not only a fact unconstitutional, but not to the perspective of full recognition of customary law, the nature of the law. Practice law as a constitutional change, the legal are \[2] theory of the three different reflection from the scholars of constitutional change to determine the value of theory and practice. Determine the performance of these three situations: a judge is an affirmation of the value of constitutional change. When the character of social reality that certain conditions should be sure that all the constitutional practice of constitutional change in the positive. For example,[link widoczny dla zalogowanych], constitutional provisions conflict with the act of state repeated over the long term, and approved by the national awareness of the law, this act of state has a legal nature, can change a constitutional provision. This perspective emphasizes the effectiveness of the Constitution that the non-effectiveness of the constitutional norms are not viable. The second judge is no change in the value of the Constitution that the State acts in violation of the Constitution should not be admitted, in fact, does not have any legal nature. The main reasons are: the Constitution of conflicting norms and social reality, the basic solution should be adopted to amend the Constitution to accomplish the task constitutional amendment; if the recognition of the fact that constitutional change will undoubtedly affect the nature of rigid constitution; in the modern constitution , usually have the highest constitutional statutory provisions, constitutional change the fact that the impact of the constitutional status of fact. The third judge was a compromise view that acts of violation of constitutional norms in the country under certain conditions has a certain normative force, but does not have the effect of changing the constitutional provisions. I believe that constitutional norms from the theory and actual operation of view, the third judge is more appropriate. Because, if we simply affirmed the value of constitutional change there may be provided for the unconstitutional acts of state justify the basis of direct damage to constitutional order. But the basic idea of those faithful to the Constitution and constitutional norms intended to supplement the fact that uncertainty should be taken to change the principle of conditional approval. Understanding of the nature of constitutional change is directly related to the boundaries of constitutional change and the specific classification problem. Changes in the motivation of the Constitution can be divided into the general interpretation of the Constitution in accordance with the changes, the changes in accordance with constitutional practice,[link widoczny dla zalogowanych], lack of supplementary and other forms of constitutional norms; according to the nature of change can be divided according to the changing situation, as by the formation of active Changes and the omission of state power change occurred. Different forms of constitutional change to the appropriate boundary conditions for its existence. Third, the boundaries of constitutional change Most constitutional scholars about constitutional change in the theory of value,[link widoczny dla zalogowanych], usually a constitutional change must be generated and the existence of specific boundaries. In the specific historical conditions have created the phenomenon of constitutional change does not have specific boundaries and arbitrary. Change the Constitution to have general need to have the elements of physical and psychological elements. The elements of matter that exists in a certain period, and repeated examples of the Constitution; mental element refers to the Constitution to give examples of certain national recognition. Social changes, the Constitution and the intensification of social conflicts, national power need to run the special political and other factors could lead to the fact that the emergence of constitutional change. But the Constitution in determining the maximum statutory conditions, the value of social change on the impact of the Constitution itself is extremely limited, because the constitutionality of social change is the basic requirement of constitutional government. From this sense, strictly limited the meaning and application of constitutional change is an important part of realization of constitutional concepts. Constitutional Change theoretical limits of one of the issues involved in the specification and the reality is the value of balance and choice. The maximum value of the first performance of the Constitution to regulate the maximum and authority. Specification itself means \Constitutional positivism advocated \Constitutional norms to adapt to social realities and political power for the operation of legal services is the constitution important condition to maintain its vitality. But the reality of the change in political relations with the reality of the existence of constitutional norms should be based on the value system, it is not a political necessity and changes in the situation simply deny the value of specification. The rule of law in the pursuit of the ideal countries, the need for national survival and the significance of the existence of constitutional norms are the same, one of the two is the constitutional system development. The boundaries of constitutional change within the constitutional norms themselves are difficult to determine, therefore, should regulate the mutual relations and reality to find the specification can accommodate the practical requirements. The reality of over-specification may lose the ability to adjust to real life, some obvious unconstitutional acts may be the basis for the legalization. In contemporary constitutional practice, people should be more concerned normative value of the maintenance issues in order to avoid the application of the Constitution of the situation into pragmatism.


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