The Critique Of Unwritten Constitution Study In China

Professor Jiang Shi Gong’ article “unwritten constitution in Chineseconstitution” by discussing British and American constitutional theories and practicesargues that constitutional operation has always depend upon “unwritten constitution”.Furthermore,analyzes the departure of Chinese constitutional practices from itsconstitutional provisions，and emphasizes the significance of unwritten constitution inunderstanding the Chinese constitutional order. Professor Jiang’ article discusses thefour main types of sources in Chinese unwritten constitution.Once Professor Jiang’ article was published, the controversy had been made. Thedeparture of Chinese constitutional practices from its constitutional provisions issurely the fundamental problem of Chinese constitutional research. The constitutionalpractice beyond the written constitution indeed plays an important role to ourcountry’s constitutional order, but as a country that has the written constitution, thewritten constitution must be the main supporter of our constitution, in such context,the research of "unwritten constitution" may cause logic mess. In addition, theconcept of “unwritten constitution” itself is not rigorous, the shortcomings in ourcountry constitutional tradition and culture also determine that Professor Jiang’sresearch is not suitable for Chinese constitutional context.Therefore, the research about the departure of Chinese constitutional practicesfrom its constitutional provisions should be placed under the constitutional text, andmake our constitutional practices meet the demands of the constitutional text insteadof finding the so-called unwritten constitution irresponsibly. Otherwise, the relatedresearch will lead to the consequences of violation of the constitution.The criticisms about the research of Chinese unwritten constitution are reflectedin three specific aspects, the theoretical basis, types of sources and the methodology.Dicey and Whale’s theory about the unwritten constitution is the theoreticalfoundation of Professor Jiang’s research, so the criticisms of its theoretical basis arealso focus on the analysis of Dicey and Whale’s constitution concept, analyzes thereal position that the concept of “unwritten constitution” lies in their theories, and through the definition of unwritten constitution to illustrate the vagueness of thisconcept.The criticism about the origin types of unwritten constitution is mainly aroundthe several origin types that listed on Professor Jiang’s article, the highlight isconstitutional convention. Pointed out that the so-called “unwritten constitutionsources” actually does not have the basic attributes of the traditional constitutionalsources.The criticism about the methodology is mainly through method of constitutionalnorms to emphasis that the theory about constitutional law should change its role andreturn to its independence as a legal subject.