Social Sciences in China (Chinese Edition)

No.11, 2020

The Principle of Legislation according to the Constitution and Constitutionality Review

(Abstract)

Mo Jihong

As the fundamental principle of legislative work, the principle of legislation according to the constitution is the logical premise/prerequisite and institutional basis for reviewing the constitutionality of legislation. Legislation’s agreement with the constitution has a foundation in legitimacy and clear value goals, but has yet to be explicitly confirmed as the basic principle of legislative work under the current system. However, from the perspective of the value requirements of governance based on the constitution and the institutional structure of legislation according to law, making the principle of legislation according to the constitution into the basic principle of legislative work is a jurisprudential necessity and institutionally feasible. Three dimensions, that is, the logical relationship between this principle and the review of constitutionality, the value requirements of the principle, and the institutional boundary between review of constitutionality and review of legality, can demonstrate that institutional affirmation and adherence to the principle of legislation according to the constitution helps to clear away the institutional shortcomings that hinder constitutionality review and also help to provide the theoretical program for that review. From the perspective of the legislative system stipulated in the current Chinese constitution, what really influences the effective initiation of the constitutional review is the value disjunction between “strong legality review” and “weak constitutionality review” in legislative supervision. To truly solve the latter problem, the supreme legislative supervisory body needs to give full play to safeguarding the function of constitutional interpretation in maintaining the unity of the legal system; to using constitutional and legal interpretation to solve the various problems brought by frequent changes to the laws; to making the principle of legislation according to the constitution the basic principle of the legislation of the supreme national legislature; and to promoting full and effective implementation and oversight of the constitution on the basis of respecting constitutional authority through a scientific and effective review of constitutionality.