Positioning Codes within the Constitutional Order: An Analysis through the Lens of “Basic Laws” Application

Abstract

In China’s codification process, the notion of “basic laws” has emerged, along with the proposition that such laws should enjoy “priority of application.” However, neither codes nor basic laws acquire constitutional rank or a status superior to ordinary statutes merely by virtue of possessing foundational character in part. Normative supremacy is a distinctive quality enjoyed exclusively by the formal constitution, and therefore, using codes as a basis for constitutional review is untenable. Basic laws are not automatically “general laws,” and determining whether the applicable norm is general or special requires a detailed analysis based on legal methodology, particularly historical and teleological interpretation. Existing rules on the application of norms are sufficient to resolve normative conflicts; accordingly, introducing an additional rule that grants priority to basic laws is unnecessary and may generate further complications. The internal consistency of the legal system is itself a constitutional mandate. Issues of legal methodology are inherently constitutional issues. Constitutional norms concerning the right to equality, the right to liberty, and the division of powers provide important guidance for resolving conflicts within the legal system through hierarchy-consistent interpretation, especially interpretations consistent with the Constitution. In the era of codification, greater emphasis should be placed on the internal system-building of legal doctrine. The legal order of the modern rule-of-law state is ultimately oriented toward unity under the guidance of the Constitution, and in the era of codification, doctrinal studies of individual branches of law should likewise be oriented toward an integrated legal dogmatics informed by constitutional values.

Keywords

basic law / special law / systematic interpretation / unity of legal order / legal dogmatics

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Higher Education Press