비교헌법동학(Comparative Constitutional Dynamics) : 헌법성립과 헌법변경의 비교유형론

초록

The comparative constitutional dynamics, which typifies and analyzes the experiences of constitution-making and constitutional change in different nations, can give us empirical knowledge and wisdom concerning democratic constitutional design. Following the introduction, in chapter II and III, I summarized some typological and empirical studies on “constitution-making” and “constitutional change”, and in chapter IV, drew some practically useful conclusions. First, the task of constitution-making, in general, emerges in conditions that are likely to work against good constitution-making. Second, the process of constitution-making, at least the mode of its legitimation, should be democratic, for constitutions produced in more democratic processes will tend to be more democratic. Third, to block the influence of vanity or self-love on the constitutional debate, as well as to enhance the possibility of political compromise, a certain degree of secrecy in the constitution-making process is inevitable. Forth, the constitution-making body should be so constituted as to reflect a broad range of social groups, for it is a key element which decides the successful operation of a new constitution. Fifth, as a constitution ages, the need for change arises, however, it also becomes more difficult to change. Sixth, judicial interpretations and legislative enactments can serve as effective substitutes for formal processes of constitutional amendment, but they cannot be fundamental solutions. Seventh, overly flexible constitutional amendment processes may cause excessive constitutional mutability and insufficient constitutional stability. Eighth, successful constitutional amendment becomes more difficult in larger decision-making bodies, and the assembly model of constitutional amendment may not be suitable for the current situation of constitutional change.

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