The lowest is the system level, that is, the law is the embodiment of the system. At this point, I often say that we have the same intersection with economics, which is institutional economics. Economists should establish various systems, so should we jurists. The system includes many aspects.
In addition to the system level, I think the law at the method level is a higher level of rule of law. In fact, we study law as a method, which can be figured out from the method of law education in law school. The typical way of law education in the United States is that the professor takes out a case, allowing students to discuss freely and let everyone speak freely; But in the end, students should ask the teacher: What do you think? The teacher said, I have no opinion or conclusion. I taught you methods, not legal thinking.
In the past, we had an article called "Think like a lawyer", which means "Think like a lawyer" and think like a legal person. What are the thinking characteristics of law? The first thing is to attach importance to evidence, no matter what, you must produce evidence, and don't talk without evidence; What you say without evidence is useless, and people will not adopt you. Not only use evidence to speak, but also use evidence as a means of debate.
On the third level, I think the law should also have ideas. This idea is the rule of law for us. Our understanding of the law has been further improved now, which is the difference between the rule of law and the rule of law. We used to say that the law is the will of the people, and the will of the people is of course all right. Now we realize that there is a difference between good law and evil law, and there are also good law and evil law in the system. Judging good laws and evil laws depends on whether there is a concept of rule of law. Just as there are good and bad constitutions, having a constitution does not mean having constitutionalism. Only a good constitution can be called constitutionalism. Constitutionalism is to add a doctrine to the constitution, which shows that the constitution is thoughtful.
In this way, when we study the law, we should not only pay attention to the system itself, but also have methods and ideas.
Closely related to the rule of law is constitutionalism. The core of constitutionalism is two things, one is democracy and the other is freedom. As the core idea of the constitution, constitutionalism is an important symbol to measure the quality of the constitution. And this judgment depends on two basic things: democracy and freedom.
Democracy is about where the state power comes from. Did God give God the highest authority? Supreme monarchy? Or is civil rights paramount? In fact, it is to solve this problem. Therefore, no matter what kind of system you are, the people's right to vote and supervision are important basis for evaluating whether the division of state power is scientific and effective. The restriction of the division of labor between powers is the most fundamental thing in the constitutional system. Whether it is the separation of powers, the people's congress system or any other system, people should compare which division of powers is the most scientific. From this perspective, democracy expresses the source of power, or the idea that "sovereignty lies with the people". This is the core spirit of democracy.
Freedom is the second core content of constitutionalism. Freedom answers questions such as what rights citizens enjoy and how much protection the state gives them. It should be pointed out that the protection of this right must be true. When your rights are violated, the state will protect your rights from infringement. Then this issue is a question of freedom and human rights. Therefore, the constitution should stipulate the human rights of citizens and stipulate the freedoms and restrictions of citizens. This is a question of freedom.
Generally speaking, freedom and democracy in western tradition is actually a contract between citizens and the state. Since the constitution is to be stipulated, the constitution should guarantee the rights of citizens or stipulate which rights citizens can give up. Therefore, the restriction of rights or freedoms is itself a contractual issue. The constitution of our country, what government policies are there now, which is obviously unnecessary. The constitution is about the establishment of state organs and the distribution of public power. There is absolutely no need to talk about what policies we implement. After all, the policy will change.
So to put it bluntly, without democracy and freedom, or without our constitutional concept, it is meaningless to talk about governing the country according to law. We live in a * * * same society, and we can't do it without the same standards!
According to the distinction of systems, methods and ideas, I think that in the past 60 years, China people have changed from legal pragmatism to legal nihilism in the first 30 years, and from legal empiricism to legal idealism in the last 30 years.
The so-called legal idealism is to change the law from tools and systems into the idea of governing the country. At present, this stage has just begun, and there is still a long way to go.