作为根本法的宪法:何谓根本

根本法是盛行于17世纪英国的一个古老概念,表达了统治者须受制于外在权威这一理念,后在主权概念的冲击下衰落。18世纪美国复兴这一观念,根本法成文化为宪法,它强调约束主权的根本法与约束个人行为的普通法律之间的区别,发展了法院实施宪法保障根本法地位的机制,完成了根本法的法律化。德国根本法是真实和实定的协定。根本法概念其后注入基本权保障元素。我国民国和新中国宪法学都继受了这一概念。新中国宪法学理论的根本法观念侧重于强调宪法与普通法律的区别、宪法作为普通法律的立法基础、宪法的优位地位,但基本权保障未得到应有重视,司法实施宪法保障根本法的机制亦不健全。鉴于宪法的政治性,须重新恢复根本法和普通法律的区别,完成当代司法审查和现代宪法维护社会基本价值的使命。

Fundamental law was a concept which prevailed in England in the 17th century, expressing the idea that govemor must be subject to extemal authority, declined after impacted by the conception of sovereignty. It became the writtenconstitution with its reviving in USA in the 18th century, emphasized the distinction between fundamental law constrained sovereignty and ordinary law restricted personal activity, developed the mechanism of court enforcing constitution, completed the legalization of fundamental law. Fundamental law in Germany is a true and substantial agreement. Then, the conception assimilated the factor of fundamental rights. It also had been accepted and inherited by constitutional theory of both ROC and PROC. The latter prefer to stress the distinction between constitutional law and ordinary law, legislative foundation of being ordinary law, preferred position, but lack of the idea that protect fundamental rights, themechanism which judicial enforce fundamental law had still not been perfected .Because of the political nature of Constitution, it must be renewed the distinction between fundamental law and ordinary law, so as to fulfill the mission to maintain the social basic values by contemporary judicial review and modem constitution .