Compare the similarities and differences in the formation of the US and UK constitutions

The United Kingdom is the birthplace of constitutions in the world. Its constitution is extremely unique: it was not "enacted" at a certain point in time, but gradually "generated" over the centuries; it is not encapsulated in a written code, but is scattered in a number of constitutional historical documents, parliamentary enactments, jurisprudence and practice. This generated "fundamental law" in its various sources does not differ from the common law in form, but only in content; and its content is flexible and changeable. For those accustomed to empirical analysis of written constitutions, the British Constitution seems to be in a state of uncertainty. Thus, without scholars to summarize, generalize and interpret it, the British Constitution is likely to be difficult to grasp accurately. Therefore, in Britain, there is a saying that "constitutionalists are the codifiers of the British Constitution". It is not difficult to find, in the centuries-old development of the British Constitution, especially since the eighteenth century, some British constitutionalists such as Blackstone, Bai Zhihao, Dai Xue, Jennings and other scholars who attempted to summarize the content of the British Constitution to summarize and explain the writings of scholars is so authoritative that some people believe that these scholars of the masterpiece can be regarded as a part of the British Constitution.

Walter Bagehot (1826 - 1877) was admitted to the bar and was long the editor-in-chief of The Economist until his death. In 1867, he published a series of constitutional articles on the history of the Cabinet, the Monarch, the House of Lords, the House of Commons, and the English Constitution in the British system of government, published successively in a journal, and the result was what we now see as The English Constitution. For a long time in England, royalty, politicians, and jurists have chewed over the fine points of this book, and ordinary readers have been delighted by the Baconian aphorisms that pepper the pages. Birchhoff's contribution has earned him the title of "the greatest Victorian" in England. Since its inception, this work has had a lasting impact on the English-speaking world. Its influence has spanned three centuries, and in 2001 it was still published in the Oxford World's Classics Series. In the United States, Chi Ho Paik's The English Constitution has been no less influential than it was in England.

Unlike Braxton and Dysue, Paige Ho was not a normativist who found self-sufficiency in a system of strict rules, but a distinctive functionalist. His argument is characterized by a simple, clear language (a style consistent with The Economist's struggle for economic freedom and political democracy in the Victorian era) and an almost essayistic style, which confronts "a living constitution -- a constitution in operation and in effect" -- at the level of political traditions, political culture, and even political psychology. -a constitution in actual operation and effect‖; he explores not the strict positive rules of the British constitution, but the political conventions that are in actual operation beyond the rules. Thus, what one sees in The British Constitution is not a parsing of the legal rules of the positive constitution, but the operation of the British constitution in actual political experience. Between formal constitutional rules and practically fluid practices, Paiziho unambiguously prefers to grapple with the latter: "I have never believed in so-called immutable rules so far as they are necessary for the solution of practical problems." (p. 21) For Bai Zhihao, the textual and written British constitution is one thing, the concrete situation of the British constitution at the level of political operation is another. He says:

The accumulated literature on this aspect (referring to the British Constitution) is sweaty, but an observer who is looking straight into the living reality will be dismayed at the contrast between reality and written description. He will see many things in life that are not found in books. He will also find that much of what is elegant in book theory is simply not to be found in crude practice. (p. 54)

Desue Snow, in the fashion of the first edition of his Essence of the English Constitution, was unimpressed by this focus on Bai Chiho. A devotee of Austin, Dyser addressed practices that were binding but inapplicable by the courts, but decided that they were not constitutional law, and placed them in the last of the three sections of The Essentials of English Constitutional Law and discussed them in relation to constitutional law. However, in 1914, when he revised the Essentials of the British Constitution, he realized that he should not have overlooked the great contrast between the positive rules of the British Constitution and its actual operation, which he had keenly observed decades before, in the face of the decisive influence on the British political system caused by the expansion of the power of the British party machine, which had already become a reality at that time. He began to quote extensively from Bai Zhihao's The English Constitution in the introduction to The Essence of the English Constitution. Lucklin commented that at this point Dai Xue was actually trying to return to Bai Zhihao's position (Martin Locklin, Public Law and Political Theory, translated by Zheng Ge, Commercial Press, 2003 edition).

From the political point of view of the analysis of British constitutionalism, the main contributions of Bai Zhihao include the following points: First, the British political system is divided into two parts, namely, "the dignified part" and "the efficient part". The first is the division of the British political system into two parts, namely, "the dignified part" and "the efficient part".

Paik Chi-ho argued that the British constitutional system, which had evolved over the centuries, could not be understood at his time unless it was divided into "the dignified part" and "the efficient part". The "dignity part" had the function of inspiring and preserving respect, and it gave authority and impetus to the system, while the "efficiency part" was a modern application of that authority. The former, inherited from a long history, is complex and grand, ancient and solemn; the latter is modern, simple and effective. The former is the appearance of the English system of government; the latter is its essence. "Its essence is pungent because it possesses the strength that comes from modern-style simplicity; its appearance is opulent because it possesses the Gothic solemnity displayed by a more hallowed age." (p. 61) Pai Chi Ho does not make a precise distinction between these two parts of the British system of government, but says, roughly, that the monarch and the House of Peers belong to the "dignified part" of the system, and the House of Commoners and the Cabinet belong to the "efficient part"; that the King is the head of dignity, and that the Prime Minister of the Cabinet The King of England is the head of dignity and the Prime Minister of the Cabinet is the head of efficiency.

As I said above, Bai Zhihao analyzed the British Constitution from the level of political tradition, political culture and even political psychology. This is most evident in his analysis of the "dignified part" of the British Constitution. This point has been neglected since Bianqin and Austin, including Blackstone, Mill and Daicher. The "dignified part" is inherited from tradition, or to be more precise, some ancient parts of the British system of government which have been transformed over the centuries and whose functions and status have been qualitatively altered, but which have not been discarded by the system of government but continue to perform new functions as organic parts of the system of government. For example, the King of England has been transformed from a sovereign centuries ago into a "virtual monarch" who "would have to sign her own death warrant if it were unanimously issued to her by both Houses of Parliament", but she is still part of the contemporary British system of government, exercising some symbolic powers. part of the contemporary British system of government, exercising symbolic powers such as the powers of consultation, reward and warning, and maintaining the appearance of British constitutionalism as a symbol of national unity and solidarity. The "dignified part" is the result of centuries of political culture, not something "manufactured" by legislation. It is not legal, but political, and it is something on a political-psychological or political-emotional level. For those who do not have this element in their political system, it is "a mysterious reverence" which makes the British system "sweet" and sometimes makes the British reaction to royal affairs "childish", but it is not "made" by legislation. childish", but it forms the basis of the authentic British monarchy. For other countries, the "efficiency part" of the British system can be imitated, but the "dignity part" of the political psychology is difficult to imitate. As for the people with the same political psychology, it is not enough to transplant only the "efficiency part" of the British system, but the "dignity part" must be arranged accordingly. It seems that it was not by chance that the Americans, who understood the essence of Shirah Shibako's thesis, deliberately retained the "dignified part" of the Japanese national system, namely, the Emperor, in their post-World War II arrangement of Japan's political system. If the post-World War II constitutional arrangement of Japan had not taken this "emotional side" of the Japanese nation into consideration, it is not difficult to infer whether the modern Japanese political system would have been so stable. The opposite situation also exists in the world's constitutional history, that is, the French constitutional practice after the French Revolution. The French wanted to emulate British-style parliamentary democracy, but under the influence of Rousseau's theory of popular sovereignty, the monarch was removed, and parliamentary power was not countered accordingly, resulting in a long period of political turmoil. Until the French Fifth **** and the national constitution in the French political system to add a "semi-monarchical" type of thing, the French political system to be able to run soundly.

For the "efficiency part" of the British political system, Bai Zhihao is greatly appreciated. He was a liberal and a great believer in parliamentary democracy. The British constitution he discussed was the constitution of 1865 to 1866, that is, before the introduction of the Second Act of Parliamentary Reform in 1867. This was a time of great change. Although he analyzes the British constitution from a political point of view rather than from a legal point of view (Bai Zhihao does not attach importance to the decisive influence of the Reform Act on the change of the times), although he emphasizes the guiding roles of political traditions, political cultures, and politicians when he analyzes the change of the times of the British political system from a political point of view, he shows a great deal of concern for the practical effect of the "widely distributed votes" following the introduction of the Reform Act of 1867, which is the first time that the British Constitution was changed in this period. He also expresses concern about the practical effects of the "widely distributed votes" of the Reform Act of 1867, but throughout he clearly demonstrates his devotion to what is most essential in the British system of government, namely, representative democracy. This was highlighted by his emphasis on the "ultimate authority" of the House of Commons. At the time of Paik Chiho, the center of political authority in England had long since shifted from the king to Parliament. However, the division of functions between the House of Commoners and the House of Peers in Parliament had not been determined at this time (the relationship between the powers of the two Houses only began to be delineated in 1911, when the Parliament Act was introduced). In his discussion of the relationship between the two Houses, Pak Chi-ho clearly expressed his recognition of the authority of the elected House of Commoners. "Whenever the opinion of the House of Commons is also the opinion of the nation as a whole, and the nation as a whole has apparently made up its mind, the Upper House must obey the Lower House." (p. 20) "If the opinion of the people is strong and unanimous, and if it reflects the will of the members of Parliament as well as the will of the electors, then it seems to me that the House of Lords ought to yield at once, and not to oppose it." (p. 22) In discussing the principles of a cabinet system of government, he determined that "the principle of popular government is that the supreme power, that is to say, the decisive power in political matters, is in the hands of the people" (p. 77), that "a free government means that kind of government in which the people who submit to him are able to make a voluntary choice ", and "a perfect free government is one in which everything is decided solely on the basis of those votes" (p. 186). In comparing the difference between the "supreme authority" in the British and American systems of government, he points out that the supreme authority in the United States is not a single one, whereas in England it is: "The ultimate authority in the British system of government is the newly elected House of Commoners." (p. 240) In the appended essay, "The Personality of Lord Brougham," which discusses the differences between the British and Continental systems of government after the Napoleonic wars, Paige Ho also shows his disdain for the Continental system of government under the dictatorship of the "Holy Alliance:" "Despotism could not be welcomed in a free country. The Holy Alliance, which turned despotism into religion, could hardly be reconciled with the British Constitution. We have utterly defeated Napoleon, but we find no pleasure in the state of things behind him. The cause which animated our hearts no longer exists; the air is no longer filled with the drumbeat of victory. Continental affairs are stagnant, despotic, and dreary." (p. 299)

The second is the revelation of the "effective secret" of the British Constitution: the "complete fusion" of legislative and executive powers.

The popular theory of the British constitution at the time of Paik Chiho was that the British system of government was one of "separation of powers" and "checks and balances". Locke divided British sovereignty into legislative, executive and diplomatic powers, and European Enlightenment thinkers also believed that the separation of powers was a feature of the British political system, or at least was reflected in the British political system. However, Pai Chi Ho, who was devoted to discovering the real "facts" of the British system, argued that "the secret of the validity of the English Constitution may be said to lie in the close union, an almost complete fusion, between the executive and the legislative powers" (p. 62). This is arguably the single most perceptive, insightful, and valuable discovery Paek Chi-Ho has made about the British political system. It is here that the "power of integration" still being explored by contemporary constitutional scholars originated.

As noted above, when discussing the ultimate source of power in the British system, Pai Chi Ho identified the elected House of Commons, the House of Commons, as the ultimate authority. Following this line of thought, Dyson later summarized the first major principle of the British constitution, namely, "parliamentary sovereignty". However, Bai Zhihao did not stop here, but from the actual political practice to further excavation, and found the British legislative power and executive power of the "complete fusion" of this phenomenon.

The so-called "fusion" does not mean the absorption of executive power by legislative power, but the integration of the two. This implies some deviation from, or some modulation of, absolute "parliamentary sovereignty".

Paik Chi-ho further pointed out that the connecting point of the marvelous fusion of these two powers in the British constitution was the "Cabinet". "Cabinet" is a "new word, meaning a committee chosen by the legislature to act as the executive", "a 'hyphen' that serves as a link, a fastener", and a "hyphen" that serves as an intermediary. ', and a 'clasp' which connects and clasps the legislative and executive parts of the State. In its origin it belongs to this part; and in the role it plays it belongs to the other" (p. 64).

Although the Cabinet is a committee of Parliament, it in turn has the power to dissolve Parliament, as is customary under the British Constitution. The Cabinet's power to dissolve makes it something peculiar: "It is a created thing, but it has the power to destroy its creator. It is at once a body of executives appointed by the legislature, and a body of executives that can destroy the legislature. It is created, but it can destroy; it is derivative in origin, but in action it is destructive." (p. 60) Paik refers to this power of dissolution of the British Cabinet as "the modulator" of the unitary sovereignty of the House of Commons, and argues that this "modulator" is one of the two components (the other being the "safety valve") of the British Constitution that allows it to function successfully. The other was the "safety valve", the power of the Prime Minister to enthrone members of the House of Lords. With the decline of the House of Lords in a series of constitutional reforms and the eventual abolition of this power of enthronement, the "safety valve" has become less relevant in the contemporary British system). The "modulator" was necessary because the House of Commoners, as sovereign, was not perfect. Paes summarized the defects of the House of Commons in three ways: variability, partisanship, and selfishness. The existence of the "moderator" is a clear example of the high degree of integration between the executive and legislative powers in Britain. Third, the emphasis on the "guiding role" of politicians in times of constitutional change.

British scholars on the British Constitution generally from three disciplines: one from the legal aspect, the representative figure is Blackstone and Dai Xue; two is the historical aspect, the representative figure is Hallam and Freeman; three from the political aspect, the representative figure is Bai Zhihao. Bai Zhihao's unique perspective on British constitutionalism, in addition to the above analysis of the actual operation of the British Constitution from the side of political tradition and psychological level, but also highlights his emphasis on the "guiding role" of politicians in the era of change in the British constitutional reform.

The first edition of The English Constitution was published in 1867, and when it was reprinted seven years later, Paik added a long "Introduction". In this introduction, he provided a systematic theoretical summary of the operation of British constitutionalism in this era of change from a political point of view. In discussing the dominant factor contributing to the changes of the times, he does not attribute this factor to the Reform Act, but to the change of generation of politicians and the guidance of the people.

From a legal point of view, the constitutional progress of the nineteenth century in England was the result of a succession of parliamentary reform laws. The first reform act of 1832 enfranchised the bourgeoisie, and the second reform act of 1867 enfranchised the working class. Through these two reforms, there was a plurality of political forces such as the king, the nobility, the bourgeoisie and the proletariat in the British political scene. Since then, social change in Britain has been put on a kind of "legalized" track - the struggle of various political forces for rights and their improvement has been confined within the framework of reforming and improving the parliamentary system. After several further reforms in the twentieth century, universal suffrage became a reality in Britain. By this time, British society had both preserved traditional freedoms and realized full democracy through gradual constitutional reforms while avoiding a French-style violent revolution. Thus, from the legal point of view, what contributed to this constitutional progress was a series of reform laws. However, Bai Zhihao, who is accustomed to analyzing British constitutionalism from a political point of view, put forward his unique view.