2017년 1월 10일 화요일

Rigid constitution

Rigid constitution

The rigid constitution (こうせいけんぽう) is difficulty of the revision in the study about the constitution; of each country when classify constitutions in two (the wide sense), is a constitution classified in the side having difficulty in revision. The thing classified in the side where other constitution namely revision is easy is called a flexible constitution (なんせいけんぽう). The standards of the classification are different every study.

Relative difficulty of the revision was used for the statement about the constitution in a different viewpoint at first without being famed with the standard of the classification.

Table of contents

Comparison with common law コンスティチューション and the established constitution

"Was scirrhous", and James Brice invented the constitution and the discussion that "was flexible", and sorted a constitution with constitutional two kinds [1]; [2]. Was new, and Brice assumed the thing which became higher of other law a rigid constitution historically [3]; [4].

(Other constitutions, most of them belonging to the newer or Statutory class, stand above the other laws of the country which they regulate.)

Brice did not classify a system, the constitutions of each country at the time, and classify a system, constitutions (コンスティチューション) including a historic thing [5]; [6]. I write it down by Brice as follows.

Reason of the naming

When I classify コンスティチューション (overall Constitution not to limit to established constitution namely Constitutional Law) according to Brice, like then, it is inappropriate to distribute whether you are documented, and what I halve whether it is common law コンスティチューション (the legal system that assumed common law the basis), or a legislation is a done constitution as a law (system) is proper [7]. Common law コンスティチューション grew up naturally during the history of the country. In the case of a done constitution, a legislation is not so.

However, the expression using the word of "the common law" does not match the actual situation over time. In other words, the matters which are legislate under common law コンスティチューション increase, and I decorate the legislation with interpretation again even if made from a done constitution, and (Fringe) increases. Therefore, the difference of both becomes vague. Therefore, as a new word to express the characteristic of both, I named the former (common law コンスティチューション) flexible constitution (Flexible Constitution: flexible コンスティチューション), latter a rigid constitution (Rigid Constitution) [8].

And, according to Brice, in flexible コンスティチューション [9] from common law, there is an old thing of U.K. and Hungary in Europe of the end of 19th century, and Italy is a constitution of the one sentence book formerly again, but is similar to this because I am too changed [10]. A level same as other law includes flexible コンスティチューション. On the other hand, rigid constitutions are usually different from law in a legislation, revision, and is completely the upper grade (entirely superior); [11].

Flexible constitution (flexible コンスティチューション)

The stability of flexible コンスティチューション is social, and, according to Brice, according to the analysis of the real history, it depends on a support of the economical power other than a form. Judging from a history, it is not a thing of the instability (unstable) to be flexible. It prevents a revolution by some power that revision does not have difficulty, and the British history shows it [12]; [13]. It is that damage does not remain later even if it does sudden intense strenuous efforts to show human physical (Constitution) toughness and is the point where you should boast of it to. I can say the same thing about the nation [14]. Flexible コンスティチューション has adaptability and I bend it while maintaining a main characteristic and can revise it [1].

The maintenance of the system called flexible コンスティチューション adapts to the power by the scholar of few high educational background special privileges (aristocracy). It is unsuitable for mob rule. The understanding of flexible コンスティチューション is not easy, and this is because sophistication is necessary [15].

Generally one of three next conditions is necessary so that flexible コンスティチューション is maintained [16].

  • There is sovereignty in right few hands with the political culture
  • Being interested in politics continuously, and most people knowing a lot
  • Most people having sovereignty legally, but agreeing to leaving careful administration of the government to proficient a few

It becomes the autocratic government, or the end of flexible コンスティチューション may shift to a rigid constitution. [17]

Rigid constitution (rigid コンスティチューション)

The rigid constitution was new historically and, according to Brice, has been adopted in many countries from the 19th century. The opening is a colony in North America in the 17th century. When it is the motive that a citizen with a political right is going to protect it that a rigid constitution is born and does a legislation or a federation is sometimes made. Among others,

  • By a monarch, to prevent abuse of for the circumstances of the monarch or the power
  • In a released country
  • New group
  • When I make the alliance the tighter federation (United States of North America)

But, there is it [18].

For the revision of the rigid constitution mainly with the method of next four kinds [19].

  1. By the method that is special in an assembly
  2. By a special meeting body for revision
  3. I decide it in the representatives of each state
  4. Direct vote

Much one is methods with 4 to 1.

The stability of the rigid constitution depends on difficulty of the relative revision. The characteristic that can distinguish a rigid constitution other than it definitely is usually superiority for the law. In other words, it is the unmodifiable nature. In addition, a definition is clear, and the rigid constitution is stable. The rigid constitution is easy to find the violation for it [20].

The rigid constitution can understand a common citizen, and a thing about the government is written. However, it is impossible for that all is expected by a rigid constitution and is covered all, and there is abbreviation or vagueness. They can classify roughly to three kinds of the next. [21].

  • Does the legislature invade administration, the judiciary, the domain of the state? For → this, revision is necessary.
  • Is it a thing more than the authority of the legislature? Do you leave whether you do a legislation for → this to administration?
  • When a meaning is suspicious, for → this, it is coped with interpretation, a legislation. Actually, they are flexible "やどりぎ" which occurred in the hard trunk.

It is strong, but when I receive wind and rain and exceed a limit, it is broken, and, according to Brice, as for the rigid constitution, it may be a revolution, a civil war like an iron bridge [1]. As measures to a turn of eventss equivalent to wind and rain, revision is necessary. However, in the case of a rigid constitution, it is difficult to get required many. The opposition for the revision strengthens defense at the other side of the castle wall called the elaborate procedure [22] and will succeed in avoiding a change necessary safely of the community. As a result, a rule for security becomes dangerous [23].

A broad interpretation (Extensive Interpretation) is necessary for the rigid constitution for emergency, and, actually, it becomes virtually equal to giving an evasive answer. It will give a light shock in public confidence. Because such a broad interpretation is necessary, it is important whom the interpretation right is entrusted to. The interpretation is entrusted to the court in the U.K., the United States and is entrusted to the legislature in the Roma system. I have refused judgment saying that the Swiss Supreme Court was a matter political purely (in the 19th century) (purely political cases) [24].

If public opinion (public opinion) [25] likes the direction that the legislation strongly leads according to the place that experience of the history shows, the court receives it, too and validates the result of the legislation. Such situation is easy to occur in a new administrative problem. There is the danger there, but only public opinion and an established tradition prevent danger. If コンスティチューション is a rigid constitution, the flexibility must supplement it from the heart (the minds of the Judges) of the judge [26]; [27].

Democracy (democracy) and rigid constitution

Because suitable knowledge is necessary, according to Brice, in the case of flexible コンスティチューション, it becomes only the governing classes to be related directly. On the other hand, the simplicity of the rigid constitution makes it think that I protect people from administrative abuse. On the principle of the democracy, the majority understands it and should participate and is easy to understand the constitution that became the one sentence book and can understand an average person. In other words, the rigid constitution has a big advantage in democracy. The rigid constitution may appear that a large number of people protect a right [28].

Future of both systems

According to Brice, it is expected that I already retain the rigid constitution in a certain country. On the other hand, it is expected that a rigid constitution is made when a federation is formed about the possibility to switch over from flexible コンスティチューション to a rigid constitution [29]. When the U.K. became the federation, a rigid constitution was settled for (when the current Commonwealth of Nations becomes like the United States of America, or Scotland becomes the state of the federation), and the authority of the British assembly weakened (the sovereignty) and was predicted when would follow the federation about [30]; [31].

When a country having flexible コンスティチューション is divided and when, as for flexible コンスティチューション being born in a new country, one deeply attaches to it. Or when, by revolutions, the government is completed naturally [32].

Consideration of the die sea

After the Albert Venn die sea, the use that paid its attention to a revised rule spread out [33]. Die sea and Brice were co-workers and were a friend [34]. The next sentence of the die sea is known [35]; [36] [37].

""Flexible", one of コンスティチューション [38] that I can change every law in the same way by one engine."
""Rigid", one of コンスティチューション generally a constitution or a fundamental law [39] that cannot change specific law to be known in the way same as normal law." [40]

In addition, "the rules in a constitution are unchangeable, and [41] to carve a seal by a way of thinking to be the thing which is, so to speak, holy (sacred) "policy creeds (principle) in a federation constitution gather gradually superstition-like veneration in the heart of the nation, and "it is necessary to be a rigid constitution in the case of federal system" "the federal system is apt to bring about conservatism" saying, the die sea "compares it with the federal system nation doing the United States of America with a representative for the purpose of explaining essence of the British assembly sovereignty" states the essential hard nature of the federal system" with [42] that comes to be protected unlike a theory in the study by a change and criticism" [35]; [43].

Criticism to a common view

According to Alessandro soft-headed Che, the distinction with the common view namely the distinction, "the rigid constitution needs a special revised procedure so that it is revised unlike a flexible constitution" is the result that the die sea misunderstood a thought of Brice [3]. According to soft-headed Che, the die sea assumes the French charters of 1814 a flexible constitution, but it is a mistake if I consider that blood was drained for the promulgation. Saying that, in the die sea, there are not the words that established the limit of the legislative power in the charter in the Orleans dynasty, and it is apparent to a British man that an assembly had sovereignty in a reason as well as the U.K. [44]. According to soft-headed Che, this is an error due to U.K. ideology context in the die sea [3].

According to Ishizawa, it is said that the cause that the distinction only by a revised procedure became the common view is not because die she misunderstood a statement of Brice [35].

I am understood commonly as if I am classified in a flexible constitution and a rigid constitution according to Kiyoshi Asai by the rule of the revised procedure, but it is extremely superficial interpretation, and, as for the real intention of the theory of Brice, it is said to other point (elasticity of the flexible constitution) that there is it [2].

I it about a term

Different expression

According to Voermans, the distinction of rigid constitution (rigid constitution) (English: rigid constitution) and flexible constitution (flexible constitution) (English: flexible constitution) is said to be the distinction of エントレンチ (English: entrench) and non エントレンチ and there is difference in the nuance between both, but is done with the same thing essentially [45]. However, エントレンチ can become the attribute every article.

About the English documents in conjunction with the constitution, I can find all the thing which is written if rigid, a thing transcribed into エントレンチ a lot now.

Difference by the viewpoint

I exemplify the difference in statement by the viewpoint about the American Constitution.

There are a large number of corrections in American Constitution. Is for this purpose; "is a statement in 1905, but, in one that the documents which it states, "a constitution of the common law is a constitution to arrange it" "to have been a live constitution" that it is flexible that an American constitution continued more than 200 years exist [46], the documents to insist on saying "there is no room for the question in the fact that there is not a change except a thing by the Civil War in after 1804, and the American Constitution is unmodifiable substantially, and is rigid" exist. [47]

About the American Constitution, it is necessary to read each statement in consideration of the modification (I add modified contents as an amendment with leaving a conventional rule).

Use in Japan

In Japan, the standard of the division which you assume a certain constitution a rigid constitution, or you assume a flexible constitution does not maintain the same like the said article either [48]. In addition, I do not maintain the same whether you divide it, and you enunciate when there is an article protected impregnably by a certain constitutional part either. In the compulsory education and issue of in Japan entrance examination, mention of the supporting textbook becomes the standard.

In general, the written law to need the procedure that is stricter than the legislation procedure of the normal law on revising it is considered to be a rigid constitution, and non-it is done with a flexible constitution. In addition, by a certain statement, it is said to the distinction that is a rigid constitution or a flexible constitution that the procedure that is stricter than the legislation procedure in each nation, the revised procedure of the law "formally" to the last is distinguished at a point whether is required.

In contrast, there is a statement that "(mainly a written law) including the Constitution of Japan and the American Constitution is classified in a rigid constitution, and one, the U.K. (an unwritten constitution) are flexible constitutions, and to be flexible in the rigid constitution substantially in the European countries including France and Germany.".

However, various opinions exist like the said article about the American Constitution. In addition, there is an eternal article in Basic Law for Federal Republic of Germany, and it may be said that it is a rigid constitution about this even if I compare it with any other constitutions how.

Significance

About some kind of rules making constitutional revision difficult, the following significance is insisted on.

民主主義のもとにある国家においては、与党などは、例えば立法を担う議会の決議要件を充足する勢力を有するなど法律を自らの意向に従って制定する権限を持つのが通常であり、一面では民主主義はそれを正当に要求するものである。ところが、法律によって規律されるレベルを超えた普遍的な価値、根元的な価値に関しては、法律に関する授権を超えた特別な決議要件を必要とするという考え方が硬性憲法という発想につながる。硬性憲法の長所は、時の権力が（一般の法律はともかく）憲法をも自分に都合のいいように書き換えることにより権力を恣意的に行使し、国民の人権を侵害する危険性を低減できる点にある。しかし、改正しにくい結果、時代の変遷に迅速に対応できなくなってしまうという短所も存在する。

脚注

  1. ^ a b c 高見勝利 2005, p. 9-11.
  2. ^ a b 浅井 1929, p. 216.
  3. ^ a b c アレッサンドロ・パーチェ 2005.
  4. ^ 21世紀初頭現在の日本語の「憲法」は、ほぼこれと同義である（「明鏡国語辞典」大修館書店、など）。
  5. ^ ブライスは法学者であるほか歴史学者・政治家ともされている。
  6. ^ 英語のConstitutionという単語も、制定された憲法を指す場合と、制度を指す場合の二つの意味がある。
  7. ^ Bryce 1901, p. 127-128.
  8. ^ Bryce 1901, p. 132.
  9. ^ ブライスの言うフレキシブル・コンスティチューションは、日本語の「軟性憲法」の意味・語感から遠いため、カタカナ書きのままとした。
  10. ^ これらの中で21世紀まで続いたのはイギリスのみと言える。
  11. ^ Bryce 1901, p. 131.
  12. ^ Bryce 1901, p. 139-143.
  13. ^ ブライスは単なる学者ではなくイギリスの政治家だった人物であり、イギリスの制度を称賛する論述には注意が必要かもしれない。
  14. ^ Bryce 1901, p. 149.
  15. ^ Bryce 1901, p. 152-155.
  16. ^ Bryce 1901, p. 160.
  17. ^ Bryce 1901, p. 151.
  18. ^ Bryce 1901, p. 171-174.
  19. ^ Bryce 1901, p. 178-181.
  20. ^ Bryce 1901, p. 184-185.
  21. ^ Bryce 1901, p. 186-187.
  22. ^ この説明でブライスはEntrenchedという単語を使っている。比較的古いエントレンチの用例と言える。
  23. ^ Bryce 1901, p. 191.
  24. ^ Bryce 1901, p. 196.
  25. ^ おそらくブライスの言う世論は、19世紀末という時期を考えると、全国民の意見を集めるものではないだろう。
  26. ^ Bryce 1901, p. 197.
  27. ^ アレッサンドロ・パーチェ 2005, p. 70.
  28. ^ Bryce 1901, p. 198-204.
  29. ^ Bryce 1901, p. 205-210.
  30. ^ Bryce 1901, p. 209-210.
  31. ^ ブライスの予測は、形を変え、21世紀初頭現在のEUとイギリスとの関係に見ることができる。
  32. ^ Bryce 1901, p. 212.
  33. ^ 井口文男訳 アレッサンドロ パーチェ 『憲法の硬性と軟性』友信堂、2003年169-181頁
  34. ^ ダイシーもイギリスの学者であり、ダイシーの論述を見る場合も、その点に注意が必要かもしれない。
  35. ^ a b c 石澤 2014.
  36. ^ Dicey 1915, p. 65.
  37. ^ "Category The Constitution". 2015年6月28日閲覧。
  38. ^ 原文：A "flexible" constitution is one under which every law of every description can legally be changed with the same case and in the same manner by one and the same body.
  39. ^ 原文：A "rigid" constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.
  40. ^ この文では、ダイシーが「リジッド・コンスティチューション」と呼んだのは、明らかに制度のことであり、その下で法典である憲法あるいは基本法が設けられるとされている。
  41. ^ 原文：Now this essential rigidity of federal institutions is almost certain to impress on the minds of citizens the idea that any provision included in the constitution is immutable and, so to speak, sacred.
  42. ^ 原文：To this one must add that a federal constitution always lays down general principles which, from being placed in the constitution, gradually come to command a superstitious reverence, and thus are in fact, though not in theory, protected from change or criticism.
  43. ^ 人々の保守化については、ブライスの論文でも触れられている。
  44. ^ 原文： The constitutional monarchy of Louis Philippe, in outward appearance at least, was modelled on the constitutional monarchy of England. In the Charter not a word could be found which expressly limits the legislative authority possessed by the Crown and the two Chambers, and to an Englishman it would seem certainly arguable that under the Orleans dynasty the Parliament was possessed of sovereignty.
  45. ^ "Wim J. M. Voermans", "The consititutional revision process in the Netherlands", Engineering Constitutional Change : A Comparative Perspective on Europe, Canada and the USA (Routledge Research in Constitutional Law), Xenophon Contiades (ed.), September 9th 2012, p. 269
  46. ^ 大林啓吾「時をかける憲法」『帝京法学』28(1)、帝京大学法学会、2012年、129-130頁
  47. ^ Henry Bournes Higgins, "The Rigid Constitution", The Academy of Political Science, Vol. 20, No. 2, Jun., 1905, p. 203
  48. ^ 石澤 2011.

参考文献

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