I. Basic Information
Professor Mo Jihong, male, born on May 21, 1965, Han nationality, Jingjiang City, Jiangsu Province, and Ph.D. is currently the director and a research fellow of the CASS Institute of International Law, a supervisor of doctoral and master's students at CASS Graduate School, and a distinguished professor at the University of the Chinese Academy of Social Sciences. His majors are constitutional law, legislative studies, administrative law and international human rights law and his key research areas are constitutional philosophy, constitutional theory, constitutional supervision system and constitutional review theory, basic human rights theory, international human rights law implementation mechanism,the stateof emergency system, and national security and public safety theory.
The main social positions and part-time jobs held by Professor Mo Jihong include: Honorary President of the International Association of Constitutional Law (Lifetime), an executive member of China Law Society, a member of the Academic Committee of China Law Society, an executive vice president of Chinese Association of Constitutional Law, President of the Association of Legislative Studies of Beijing Law Society, Vice President of the Association of Legislative Studies of China Law Society, Vice President of the Association of Lawyer Studies of China Law Society, etc.
Mo Jihong graduated from the Department of Law of Peking University in 1986. He obtained a master's degree in lawand a JD from CASS Graduate School in 1989 and 1994, respectively. From 1989 to 1990, he worked at the Institute of Political Science of the Chinese Academy of Social Sciences. From 1991 to 2018, he worked at the Institute of Law of the Chinese Academy of Social Sciences. From 2018 to the present, he worked at the Institute of International Law of the Chinese Academy of Social Sciences. He became an associate research fellow in 1993, a research fellow in 2001, and a doctoral supervisor in the field of international human rights law in 2004.He was awarded the title of one of the “National Top Ten Outstanding Young Jurists” by China Law Societyin 2004, selected for the “National Talents Project” by the Ministry of Human Resources and Social Security and awarded the honorary title of “Young and Middle-aged Expert with Outstanding Contributions”in 2013, received a special government allowance from the State Councilin 2015, was awarded the honorary title of “Cultural Master and Talent” by the Central Propaganda Department and the honorary title of Leader in the Field of Philosophy and Social Science in 2017. He was amember of the Supreme People's Procuratorate Expert Advisory Committee, a member of the Central Lecturers Group under the "Fifth-Five-year National Plan" and "Seventh-Five-year National Plan" for the PopularizationLaw, a member of the "100 Jurists Reporting Group" of China Law Society, alegal adviser to Beijing Municipal People's Congress Standing Committee, and a legal consultant to Beijing Municipal People's Government, a legal advisor on the publicity of ruling the city by law to the government of Beijing Municipality, a legal advisor toGuangdong Provincial Party Committee and the deputy secretary of the CPC Zhangye Municipal Committee of Gansu Province (a temporary leading postheld from April 2017 to March 2018).
Professor Mo Jihong has been a visiting professor and visiting scholar at famous universities and research institutions abroad: he was a visiting researcher at the Faculty of Law of the University of Tokyoin 1995, at the Norwegian Institute of Human Rights in 1998,at Lund University in Sweden in 2001, and at the University of Fribourg in Switzerland in 2002.
Professor Mo Jihong’s doctoral students in the direction of international human rights law who have already graduated were: Wang Zhenjun, Dai Ruijun, Wang Yi, Luo Yan, Xia Zuyi, Yu Haixia, Jiang Nancheng, Shao Yi, Wu Wenyangand his current doctoral students are Zhou Fanmiao, Huo Yaping and Chu Xiaohua. Up to now, he has supervised nearly 20 postdoctoral researchers, 60 master students,10 advanced students, and 2 undergraduate students in the direction of constitutional and administrative law.
II. Research Activities and Contributions
In his research work of nearly 30 years, Professor Mo Jihong presided over and participated in many importantresearch projectsboth in and outside of the Institute and the Academy, and actively participated in national legislative activities by taking part in the drafting, demonstration and advisory work of nearly 100 laws and regulations. Many of his important academic research results have won provincial and ministerial level awards. Many of his nearly 100 internal research reports have been received positive responses from Party and state leaders. He has won more than 60 awards for Excellent Countermeasure Information from the Chinese Academy of Social Sciences. Among his published articles, more than 350 have been collected in the database China Knowledge Network, nearly 10 reprinted in Xinhua Digest, and more than 20 reprinted in China Social Science Excellencepublished by Renmin University of China. His main research achievements include the following aspects:
1.Actively participating in or organizingthe research work of key national projects and key projects of the Chinese Academy of Social Sciences. A number of relatively significant academic achievements have been made by Professor Mo in this respect. The followings are some of the more influential national key projects and key projects of the Academy of Social Sciences participated in or organized by Professor Mo:
(1)He has led and successfully completed the major project of the National Social Science Fund in 2007, “the Organic Unity of the Party’s Leadership, the People Being the Masters of the Country and Governing the Country by Law”;
(2)He is the leader of the key projects of the National Social Science Fund in 2017, “Civil Norms and Local Legislation”, which is making effective progress;
(3) He has led the demonstration and drafting of the expert proposal draft of the Decision of the Fourth Plenary Session of the 18th CPC Central Committee, the result became an important reference material for the decision drafting group;
(4)He has participated in the research project on the Books Series “Comprehensively Deepening the Reform”, led by the Former President of the Chinese Academy of Social Sciences, and written and published one of the books in the series: "the Constitutional Foundation of the Rule of Law in China";
(5)He has participated in the project on Readers Series "Xi Jinping’sThought on Socialism with Chinese Characteristicsin a New Era",led by the Former President of the Chinese Academy of Social Sciences, and written and published one of the books in the series: "Ruling the County by Law in a Comprehensive Way and Building the Rule of Law China";
(6)He has led the 2015 CASS National Condition Survey Project “Research on the Current Situation of Law-based Administration of Religious Affairs in Ningxia Hui Autonomous Region”, the 2017 CASS National Condition Survey Project “Studies on Local Rule of Law”, and the 2018 National Condition Survey Project "Construction of Ecological Civilization and Awareness of Ecological Rule of Law";
(7)He is the leader of the 2019-2022 large-scale CASS investigation project “the Prevention of Legal Risk and Construction of Legal Mechanism relating to the 'Belt and Road'" and so on.
2. Actively participating in national legislative activities. Many of his important legislative proposals have been adopted by legislative organs. Some of his works compiled and published in conjunction with legislative activities have become important reference materials for legislative activities:
(1)He has participated in the work of legislation on earthquake prevention and disaster reduction and the construction of legal system on earthquake disaster prevention and reduction. He has successively served as the deputy head of the legislative drafting group of the Regulations on Emergency Responses to Destructive Earthquake and as a member of the Drafting Group of the Law of the People's Republic of China on Protecting Against and Mitigating Earthquake Disasters, as an adviser to the Drafting Group of the Provisions on Issuance of Earthquake Predictions, to the Drafting Group of the Regulations on the Management of Aseismatic Fortification Requirements, and to the Legislative Drafting Group of the Regulations on the Key Areas for Earthquake Surveillance and Protection. In order to cooperate with the earthquake prevention and disaster reduction legislation work, he compiled the book "Foreign Emergency Legal Systems" (Law Press China, 1994), which became an important basis for the establishment ofthe earthquake emergency response mechanism in the Law on Protecting Against and Mitigating Earthquake Disasters;
(2)He has participated in the legislative discussion and consultation work of the Martial Law, the National Defense Law, the Legislation Law, the Supervision Law, the Law on Civil Servants,the Organic Law of People's Procuratorates, the Organic Law of People's Courts, the Charity Law and other laws. His book An Introduction to the Legal System of Martial Law (Law Press China, 1996) became an important reference material in the drafting of the Martial Law and the National Defense Law;
(3)He participated in the drafting of the Emergency Response Law and was an important member of the Drafting Group of the National Security Law;
(4)He participated in the consultation and publicity work of the fourth and fifth revisions of the of the Constitution in 2004and 2018,and many of his proposals on constitutional amendments had been adopted by the Constitutional Amendment Group;
(5)He has made a systematic summarization of his own experiences of participating in national and local legislative activities, which were published in the book In Defense of Legislation (Wuhan University Press, 2007).
3. Actively responding to the call of “premium projects” and “innovative projects” proposed by the Leading PartyGroup and the leaders of CASS. On the basis of combining theory with practice, especially his own practical experience of participating in national legislative activities, Professor Mo has submitted numerous internal reports on major issuesof construction of the rule of law in China, many of which attracted the attention of Party and state leaders, including Hu Jintao, Zhu Rongji, Wei Jianxing, Li Lanqing, Luo Gan, Wu Bangguo, Zhang Dejiang, and Li Zhanshu, who have given written instructions on these reports. More than 60 reports have received awards for excellent information or excellent countermeasures from the Chinese Academy of Social Sciences or other types of provincial and ministerial awards, and produced extensive social impacts. The followings are some examples:
(1) In 1999, in response to emergency incidents such as NATO’s bombing of the Chinese Embassy in the former Yugoslaviaand the "Falungong" incident and on the basis of his own long-term research on the legal systemof the state of emergency, Professor Mo submitted to the Chinese government an internal report entitled "The Establishment of a National Emergency ResponseMechanism", which was published in issue No. 558 of Compilation of Situation Reports, an internal reference material edited by the Editorial Board of the People’s Daily. The internal report was highly valued by the party and state leaders. Comrade Li Lanqing wrote the instruction “Please refer to Comrade Zhu Rongji, ComradeHu Jintao, Comrade Wei Jianxing, and Comrade Luo Gan”; Comrade Wei Jianxingwrote the following instruction on the report: “Comrade Luo Gan:You may consider asking the Political and Legal Affairs Commission of CPC Central Committee and the Ministry of Public Security to discuss the matter with the relevant departments.” Comrade Luo Gan wrote the following instruction on the report: “Since the report involves the establishment of a government coordination body, I suggest thatthe Office of Central Institutional Organization Commission also be asked to make comments on it.” The Ministry of Public Security has carried out studiesthe report and implemented the recommendations put forward in the report.
(2)Main countermeasures reports that have received instructions from Party and state leaders and awarded first prize for excellent countermeasures information by the Chinese Academy of Social Sciences include: “Several Issues To be Paid Attention to in the Revision of the Representative Law", September 2011, special prize; “Intensifying the Publicity of the Revision of the Election Law”, September 2011, the first prize; “Several Theoretical Issues To Be Taken Seriously When Declaring the Formation of a Socialist Legal System with Chinese Characteristics”, September 2011, the first prize; “The Need To Carry out Legal Remedial Work in the Aftermath of ElectionBribery Incident in Hengyang City”, June 2015, the first prize; “It Is not Advisable for the National People's Congress To Amend the Laws Adopted by the Standing Committee of the National People's Congress”, June 2015, the first prize; “The Need for the Law of the People’s Republic of China on National Medals and National Titles of Honor To Embody the Spirit of ‘Scientific Legislation’", June 2016, the first prize; and “It Is not Appropriate To Use Legislative Means to Intervene in the Preservation of Religious Practices”, June 2016, the first prize.
(4) Strengthening the study of the basic constitutional theory. Professor Mo has published 12 monographs in this field. Among them, "Outline of the Constitutional Trial System" (People's Public Security University of China Press, 1998) is the first academic work to study the constitutional trial system in the Chinese constitutional academic circle. "The Legal Limits of the Freedom of Expression" (People's Public Security University China Press, 1998)comprehensively introduces the judgment of the Norwegian Supreme Court on the "Kjuus" case, systematically analyzes the function of the modern constitutional trial system in safeguarding basic human rights, and makes a useful attempt in studying cases of constitutional trial."Constitutional Amendments: A Must Book for the Government and Citizens" (Chinese People's Public Security University Press, 1999) gives a detailed introduction to the background, content, meaning, and theoretical and practical values of the 1999 Constitutional Amendments and is the most comprehensive reference book on the 1982 Constitution and its amendments."The Logical Basis of the Modern Constitution"(Law Press China,2001) is the first academic book to apply the method of logics to explain the basic principles of the modern constitution, to position the constitution as a value law, to explore in detail the value characteristics of legitimacy, certainty, validity of the Constitution and to point out that the design of the constitutional system must be based on constitutional values. "The Extraordinary Rule of Law in the Period of SARS Outbreak" (Law Press China, 2003) introduces the legislative status of China's disaster law and the law on the state of emergency and the legal countermeasures against SARS. "The International Human Rights Covenants and China" (World Knowledge Press, 2005) provides a comprehensive and systematic introduction to the basic human rights systems and its implementation mechanismsestablished by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights."Doctrines of Constitutional Law in Practice"(Renmin University of China Press, 2007) brings together the author’s constitutional views and ideas resulting from his systematic theoretical thinking of constitutional issues in practice. "In Defense of Legislation" (Wuhan University Press, 2007) is a comprehensive and systematic collection of the legislative materials of the national and local legislation participated by the author, as well as expert legislative proposals on certain social issues drafted by the author on the basis legislative needs and techniques."Doctrines of Constitutional Law"(China Social Sciences Press, 2008) uses the methods of comparative constitutional law and normative constitutional law to summarize the constitutional system in the written constitutional texts of various countries in the world, and construct a brand-new system of constitutional doctrines."The Constitutional Foundation of the Rule of Law in China" (Social Science Academic Press,2014), which is a part of the book series "Comprehensively Deepening the Reform" edited by the former President of the Chinese Academy of Social Sciences, comprehensive and systematically discusses, summarizes and analyzes various constitutional issues in the process of building the rule of law in China and puts forward the theoretical framework and main academic viewpoints of ruling the country by the Constitution. "The Rule of Law in China and Institutional Construction" (China Local Records Publishing House, 2016) contains the author's academic thinking and recommendations on some major theoretical and practical issues in the construction of the rule of law in China.
III. Main Academic Ideas and Viewpoints
Professor Mo Jihong’s unique contributions to the improvement of the theoretical research of constitutional law and human rights law are embodied in the following academic views that have had a major impact in the academic circle:
1. The essence of ruling the country by law is ruling the country by the constitution
Professor Mois the first person in the Chinese legal academic circle to put forward the idea that the essence of ruling the country by law is ruling the country by the constitution, whichhas been elaborated ina series of articles, including "Governing the Country according to the Constitution as an Important Guarantee for Governing the Country according to Law". He believes that the implementation of the spirit of "ruling the country by law" means not only that in a society ruled by law, all social relations must be evaluated by legal rules, so that "there is a law to follow",but more importantly, the premise of "ruling the country by law" should be guaranteed. Namely, the problems relating to the law itself must be solved by the means of the rule of law. The solution of the contradictions of the law itself must be achieved through the implementation of the constitution. If the core position of the constitution in ruling the country by lawis not highlighted, ruling the country by law may evolve into the normalization of the rule of man or a new form of rule of man in practice.
2. The dualization of law and morality is the product of "rule of man"
Professor Mo first put forward theview that the duality of morality and law as the product of "rule of man"in his article "Social Autonomy and Modern Constitutionalism" and some other articles. He believes that under the "rule of man", because the ruler is separated from the ruled, he acts according to his own will and makes laws to restrain the ruled. For the ruler, law and morality are united; but for the ruled, law and morality are separated. The law embodies the will of the ruler, which might not meet the demand of the ruled. The will of the ruled cannot become law.As a result, there is a subjective demand raised by the ruled on the ruler. Therefore, the purpose of morality is to restrain the ruler, not the ruled. Under the rule of man, there are two kinds of ruling ideas in society: one is the "rule of law" concept of the ruler, and the other is the "rule of virtue" concept of the ruled.
3. At the level of national law, constitutional rights have higher legal effect than universal human rights provided for in international human rights conventions
In the article "On the Relationship between Basic Human Rights in International Human Rights Conventions and Constitutional Rights in Domestic Constitutions", Professor Mo holds that, for state parties to an international human rights convention, the basis of their undertaking of obligations under international human rights conventionsare the relevant provisions of the Vienna Convention on the Law of Treaties.That is to say, the universal human rights in an international human rights convention do not have directlegal binding force on state parties to the convention, butcould have the international law effect on state parties by virtue of the international law nature of the international convention itself.Since most state parties toa convention must ratify the convention through a law adopted by the parliament, the legal effect of an international human rights convention under domestic law can only be equivalent to the laws enacted by the parliament. From the point of view of legal effect, universal human rights in international human rights conventions approved by the parliament can only be regarded as ordinary legal rights as far as their importance is concerned. The protection enjoyed by these rights under domestic law should not exceed that enjoyed by constitutional rights. Only through a specific procedure and by means of an amendment to the constitution, can the parliament upgrade the protection of universal human rights in the ratified international human rights conventions to the level of protection given to constitutional rights.
4. Human rights are the products of dialectical development of the rights system
In the article "Legal Limitation of Freedom of Expression" and other articles, Professor Mo puts forward for the first time the view that "human rights are the products of the dialectical development of the rights system". He believes that human rights and rights are two philosophical categories with independent values. The purpose of rights is to set a qualification to realize benefits, and the purpose of the rights system is to realize the benefits to a maximum extent. Human rights emphasize human dignity and human value.It is a concept generated in the development of the rights system. The purpose of human rights is to restrict the abuse of the rights system so as to prevent human beingsthemselves from being exchanged and distributed as a kind of interest. Therefore, the human rights system is a production of dialectical negation of the rights system aimed at correcting the shortcomings of the rights system in the realization of benefits and enabling itto better serve humanity.
5. Human rights have independent values different from those of morality
In his article "The Amorality of Human Rights" and other articles, Professor Mo points out from perspective of the public morality of law that the morality of human rights must be embodied in a legal system. Without legal judgment, the morality of human rights does not have the public attribute. Under a legal system, the choice of human rights value is not completely subject to the requirements of public morality, but also subject to such ontological and epistemological factors as the objectivity of the social reality, national interest, public interest, and the goalof freedom. Therefore, the legitimacy of human rights is not entirely derived from moral evaluation.Human rights also have the amoral attribute, which mainly stresses that the legitimacy of human rights should be examined from the perspectives of historical materialism and dialectics.Human rights have certain objectivity. They are restricted by social, economic and cultural conditions and are realized in realistic social relations. Human rights cannot be separated from moral evaluation. However, because of the conflict of interests behind human rights, the value choice of human rights is notcompletely subject to moral requirements. Human rights themselves arethe products of history and are constantly developing in the process of social development. Therefore, in examining the legitimacy basis of human rights, attention should be paid to the dialectical unity between the morality and amorality of human rights.The moral foundation of human rights cannot simply stay at the level of the normative requirements of human rights. In examining human rights in the framework of social relations, it is necessary to pay attention to the actual situation and the extent of realization of the institutional guarantees of personality interest pursued by human rights. The over subjectificationof the nature of human rights is not conducive to the development of the human rightscause.
6. Strengthening the constitutional review of laws, administrative regulations, autonomous regulations, separate regulations, and administrativerules
In order to comprehensively and systematically discuss the theory of constitutional review, Professor Mo has published a series of academic articles, in which he puts forward systematic academic suggestions on how to conduct scientific and effective constitutional review under the current Chinese legal system.In the article "On the Mechanism for the Constitutional Review of Laws", he proceeds fromthe principle of the unity of the legal system stipulated in Article 5 of the current Constitution andpoints out that laws, just as administrative regulations and local regulations, are the objects of constitutional review. However, the design of the system of constitutional review of laws is different from that of administrative regulations and local regulations in that the latter has clear procedures and mechanisms provided for in the LegislationLaw, whereas the former lacks corresponding procedures and mechanisms. Starting from the basic characteristics and requirements of the people's congress system established by the current Chinese constitution, he points out that under the current legislative system,in which the National People's Congress and its Standing Committee exercise the state legislative power while at the same time can amend and interpret the Constitution, the law-making body itself is also the body carrying out constitutional review. Therefore, the western "antagonistic" or "confrontational" constitutional review methods are not compatible with the Chinese political system,in which the Communist Party of China exercisesleadership over legislation. The only feasible solution is to give full play to the role of the NPC and its Standing Committee's own internal supervision mechanism, especially the role of the Constitution and Law Committee of theNPC in ensuring the constitutionality of laws.In the review of the constitutionality of laws, only the conclusions of "consistent" or "inconsistent" can be made. In the case of "inconsistency", the problem may be dealt with through an amendment to or interpretation of the constitution or the law under review, so as to ensure a high degree of consistency between laws and the Constitution and uphold the authority of the constitution and the legitimacy of laws. In the article "On the Mechanism for the Constitutional Review of Administrative Regulations", Professor Mo proceeds from the relevant provisions of the current Constitution, the LegislationLaw and other laws and regulations to carry out a comprehensive and systematic analysis of theinstitutional design, operational mechanism and characteristics,and the result and effect ofthe mechanism for the constitutional review of administrative regulations within the framework of the current legal system, summarizes the main characteristics of the mechanism, andon the basis of the analysis of the status quo of the mechanism and in light of the actual condition of the current political and legal systems in China, points out some important theoretical and practical issues to be paid special attention to in establishing and improving the mechanism for the constitutional review of administrative regulations in China. He points out that, in order to effectively promote the construction of the mechanism for theconstitutional review of administrative regulations in practice, it is necessary to proceed from the reality of China and focus on the consistency between the drafts of administrative regulations and the Constitution in the process of formulating administrative regulations, thereby enhancing legislative quality of administrative regulations.As for the external review of the constitutionality of administrative regulations, it is necessary to make proper institutional arrangements in accordance with the relevant provisions of the LegislationLaw and the principle of the Party’s leadership over legislation and in light of the characteristics of administrative regulations as thecentral regulations, so as touphold the authority of administrative regulations as the central regulations and ensure the effective implementation of the Constitution. In the article "The Jurisprudence and Stratification of the Constitutional Review of Autonomous Regulations and the Separate Regulations", he proceeds from the institutional design that autonomous regulations and separate regulations are subject to the constitutional review by the Standing Committee of the National People’s Congress, as provided for in the relevant provisions of the Legislation Law,analyzes the characteristics of the confirmation of legislative mechanism for the adoption of autonomous regulations and separate regulations by the Constitution, the Legislative Law, the Law on Regional National Autonomy and other laws, and points out that the constitutional review of autonomous regulations and separate regulations consists oftwo levels:at the first level is the constitutional review of the autonomous regulations and separate regulations adopted by autonomous regions; and at the second level is the constitutional review of the autonomous regulations and separate regulations adopted by autonomous prefectures and autonomous counties. Of the two levels of constitutional review, the former can only be carried out before the entry into force of the autonomous regulations and separate regulations whereas the latter should be carried out after the entry into force of the autonomous regulations and separate regulations. Professor Mo believes that the particularity of the procedures for the approval and coming into force of autonomous regulations and separate regulations stipulated in the Constitution and the Legislation Law has made it difficult to simply apply the principle of “the lower-level law being subject to the upper-level law” to the legislative supervision over the adoption of autonomous regulations and separate regulations. It is therefore necessary to strictly distinguish different levels of the legal effect ofautonomous regulations and separate regulations and establish a corresponding hierarchical constitutional review mechanism. Since the Legislation Law provides for the system whereby the Standing Committee of the National People's Congress reviews the constitutionality of autonomous regulations and separate regulations of autonomous regions, including those approved by itself, the NPC Standing Committee may carry out self-supervisionin practice. Therefore, in the practice of constitutional review, efforts should be made to promote the constitutional review of autonomous regulations and separate regulations,and to distinguish between different situations, so as to find specific solution suited to each situation. In the article "On theMechanismfor the Constitutional Review of Administrative Rules", the author proceeds from the relevant provisions of the Chinese Constitution, the LegislationLaw and other laws and regulations, comprehensively and systematically summarizes the system and characteristics of constitutional review of administrative rules within the framework of China's current legal system, and clearly points out that constitutional review of administrative rules is a legislative supervision system that is already in existencein China and but needs to be further improved.Starting from the analysis of the three types of administrative rules, Professor Mo proposes that formal legal relations be established between the current Constitution and the rules ofdepartments under the State Council, rules of local governments, and military rules through constitutional amendments or constitutional interpretations, so as to provide a jurisprudential basis for the formal constitutionality of the constitutional review of administrative rules.He also points out that currently a key system design is tobring administrative rules into the scope of constitutional review by the Standing Committee of the National People's Congress as stipulated in the Legislation Law, so as to ensure the authority of the constitutional review of administrative rules.
IV. Introductions to Representative Works
1. Book
The Logic Foundation of the Modern Constitution, Law Press China,December 2001.
In this book, Professor Mo used the analytical method of constitutional logic to express his own unique views on a series of basic frontiertheoretical issues currently under discussion in the constitutional law circles in China.Specifically, the book has three important features: (1) It is innovative in methodology. The author proposes that constitution law belongs to the value phenomenon. Therefore, the basic method used in analyzing the constitutional phenomenon must reflect the basic characteristics of value, that is, the constitution should be placed in the logical chain of causality between means and purpose, and the basic characteristics of constitutional phenomena should be understood through the discussion oftheir basic value attributes, such as the legitimacy, rationality, certainty and validity of the constitution.The author uses the above-mentioned analytical methods throughout the book, aiming to discover the laws of value that have long been hidden behind the constitutional phenomenon because there has been no proper methodology to discover them. In the author's view, constitutional law science is the unity of history and logic. Constitutional logic is the highest embodiment of human reason, because its methodology is the most effective way to solve the most complex social problems.The establishment of constitutional logic is of great significance to advancing the development of logical forms and logical laws of moral logics. (2) Making new legal interpretations of some important constitutional theory issues. For example, in light of the Draft of Legislation Law, the author analyzes the essential boundaries between constitution-making powers and legislative powers, and points out that, by ignoring constitution-making powers in the construction of the constitutional system, we will not be able to overcome the various value contradictions arising from the lack of constitution-making powers. Constitution-making powers, sovereignty, referendum and social rights are all concepts of value. They exist to solve the problem of legitimacy of the constitution and are important constitutional categories that should not be abandoned at will. In addition, the author also proposes new constitutional categories that should be emphasized in the study of constitutional theory, such as international democratic principles, international rule of law principles, constitutional responsibilities, constitutional procedures, etc. These new constitutional categories are conducive to and play a pioneering role in the development in depth and breadthof the study of constitutional theory.
2. Papers
(1)“An Examination of “Ought to Be" - a Field of Vision of Constitutional Logic”, Social Sciences in China, 6 (2001)
In this paper, Professor Mo puts forward for the first time his own unique viewson the issue of "ought to be", which has been long debated in the legal theoretical circle,from the perspective of epistemology.He uses the method of constitutional logic to explore the connotation of "ought to be" from the perspectives of ontology, epistemology and axiology, and points out that the logical form of "ought to be" in the sense of axiologyhas two fields of value:certainty and uncertainty.The "ought to be" in traditional jurisprudential theory is overly influenced by the subjectivity of the subject of value judgment. Therefore, it is expressed in anuncertain logical form and it is difficult to form aproposition of “ought to be” with universal value on such a basis.The "ought to be" as a certaintymanifests itself in "have to be", which is based on epistemology. "Have to be" as a kind of capacity judgment is a category that has been forgotten by traditional legal philosophy. It can avoid the excessive uncertainty of “ought to be”caused by the "hypothesis" theory andtherefore should be taken as a logical criterion for the examination ofthe “ought to be” with minimum certainty.In this paper, Professor Mo points out that the fundamental flaw of traditional legal theory in analyzing "factual problems" and "value problems" is confusing "factual problems" with "value problems" or not being able to tellthe difference between the two. In order to realize the logical transition between "factual problems" and "value problems", it is necessary to introduce the analytical method of "capacity judgment" between "fact judgment" and "value judgment" on the basis of epistemology, and achieve the unity of the three analytical methods of ontology, epistemology and axiology.Based on the logical analysis of “ought to be”, the author points out that the value attribute of the constitution consists of two aspects: the constitution "ought to be" and the “ought to be” of the constitution, with each of thembelonging toa different category of value. The values of democracy and human rights belong to the constitution "ought to be". They are the sources of constitutional legitimacy, rather than entirely the products of "constitutionality".On this basis, the author distinguishes between the different functions of "pre-constitutional phenomenon" and "constitutional phenomenon" in the construction of the constitutional value system, and stresses that the core value of the modern constitution is a “law on the rule of law.”
(2)“On Constitutional Principles”,China Legal Science,4 (2001)
In this paper, Professor Mo makes a new exploration of the criteria for determining constitutional principles. He believes that the function of constitutional principles lies in "opposing the phenomenon of privilege", and the constitutional system must design corresponding measures for achieving this purpose.This is the logical starting point of the construction ofthe constitutional system, which may lead to two different constitutional principle systems interacting as both cause and effect: "teleological constitutional principles" and "instrumental constitutional principles"."Teleological constitutional principles" require that all constitutional systems mustbe designed toserve "the principle againstspecial powers", "the principle against special rights" and "the principle against special advantages". Any constitutional system that does not meet these three requirements of "teleological constitutional principles" is not a legitimate constitutional system. The “instrumental constitutional principles” require that there is at least a logical possibility of preventing various phenomena ofprivilege in the design of the state power system, the civil rights system, and the system of relationship between state power and civil rights. "Instrumental constitutional principles can be designed at two levels, namely the primary constitutional principles and the auxiliary constitutional principles. Primary constitutional principles are centered on the authority of the constitution, including the principle of popular sovereignty, the principle of supremacy of the constitution, the principle of surplus power and the principle of surplus rights.Auxiliary constitutional principles are centered on the authority of the laws enacted by the legislature, including the principle of the priority of law, the principle of law reservation, the principle of constitutional authorization, the principle of administration by law, and the principle of judicial final remedy for human rights.
V. A List of Important Publications
Monographs
1. New Theory of Constitutionalism, China Fangzheng Press, March 1997;
2. Summary of the Constitutional Trial System, China People's Public Security University Press, November 1998;
3. The Legal Limits of Freedom of Expression(translated work), the People's Public Security University Press, November 1998;
4. Constitutional Amendments:A Must Book for the Government and Citizens -A Panoramic Analysis of the Constitutional Amendments of the People's Republic of China, China People's Public Security University Press, April 1999;
5. The Logic Foundation of the Modern Constitution, Law Press China, December 2001;
6. The Extraordinary Rule of Law in the Period of SARS Outbreak, Law Press China, June 2003;
7. International Human Rights Conventions and China, World Knowledge Press, September 2005;
8. Doctrines of Constitutional Law in Practice,China Renmin University Press, February 2007;
9. In Defense of Legislation, Wuhan University Press, April 2007;
10. Doctrines of Constitutional Law, China Social Sciences Press, October 2008;
11. The Constitutional Basis of the Rule of Law in China, Social SciencesAcademic Press, September 2014;
12. The Rule of Lawand Institutional Building in China, Local Records Publishing House, January 2016.
Articles
1. “Several Dialysis of Legal Acts”, Journal of the Graduate School of the Chinese Academy of Social Sciences, 3(1988);
2. “The Process of Legal Evaluation and Its Standards”, Journal of the Graduate School of the Chinese Academy of Social Sciences, 6(1989);
3. “The Meaning and Significance of Legal Behavior”, Journal of Graduate School of the Chinese Academy of Social Sciences, 6 (1991);
4. “Analysis of the Voters' Intentional Structure of Elections”, China Legal Science, 3(1992);
5. “Intensify Law Enforcement Supervision and Improve the Level of Law Enforcement Supervision”, Qiushi, 7 (1996);
6. "Governing the Country according to the Constitution as an Important Guarantee for Governing the Country according to Law", inWang Jiafu et. al. (eds.),Governing the Country according to Law and Building a Socialist State under the Rule of Law, China Legal Publishing House, August 1996;
7. "Governing the Country according to the Constitution Is the Core of Governing the Country according to Law", Law Science Magazine, 3(1998);
8. "On the Relationship between International Human Rights Conventions and Domestic Constitutions", China Legal Sciences, 3(1999);
9. "Constitutionalism Is the State of the Constitutional Logic Movement", Science of Law(Journal of Northwest University of Political Science and Law), 5(2000);
10. “On the New Trends in the Relationship between International Law and Domestic Law”, World Economics and Politics, 9 (2000);
11. “On the Final Judicial Remedy for Human Rights”, Jurist,3 (2001);
12. “On Constitutional Principles”, China Legal Sciences, 4 (2001);
13. “An Examination of ‘Ought to Be’ - a Field of Vision of Constitutional Logic”,Social Sciences in China, 6 (2001);
14. "On the Constitutional Consciousness of Citizens", Qiushi, 6(2002);
15. “The Right to Appeal Is the First Institutional Human Right in a Modern Society Ruled by Law”, Law Science Magazine, 4 (2002);
16. “The Obligations under the Two International Human Rights Covenants and China”, World Economics and Politics, 8 (2002);
17. “The Connotation of the Constitutional Protection of the Right to Education”, The Jurist, 3(2003);
18. “The Status and Characteristics of China's Emergency Legislation”, Legal Forum, 4 (2003);
19. "On the Constitutional Relationship", Chinese Journal of Law, 1 (2003);
20. “Types and Functions of Constitutional Procedures”, Tribune of Political Science and Law, 2 (2003);
21, "The Significance of the Incorporation of the System of State of Emergency into the Constitution", The Jurist, 4 (2004);
22. “Conceptual Analysis of the Human Rights System”, Law Science Magazine,1 (2005);
23. “Unconstitutional Subject Theory”, Law Science Magazine, 1 (2006);
24. “Study on the Applicability of the Constitution in Judicial Trials”, North Legal Sciences, 3(2007);
25. "On the Relationship between the Constitution and Other Legal Forms", Journal of Shanghai University of Political Science and Law, 6 (2007);
26. “The Two Thinking Approaches to the Ratification of the International Covenant on Civil and Political Rights”, Journal of Capital Normal University (Social Science Edition), 6 (2007);
27. "The Relationship between Constitutional Law and Public Law," Journal of Jianghan University (Social Science Edition), 1 (2008);
28. “On the Constitutional Protection of Social Rights”, Journal of Henan Provincial Political and Legal Cadre Management College,3 (2008);
29. “Looking at Constitutionalism from the Scientific Point of View”,Legal Science, 1 (2008);
30. “Close Attention Should Be Paid to the Obligation of Safeguarding Basic Rights”, Legal Science, 4 (2009);
31. “On the Technical Route of Legislation”, Guangdong Social Sciences, 4 (2009);
32. “The Lack of the Theory of Constitutional Application as Seen from Article 100 of the Chinese Constitution”, Social Science Front, 9 (2009);
33. “On the Effective Relationship Between the Constitution and the Basic Law”, Henan Social Sciences, 5 (2010);
34. “Discussion on the Defects of China's Legislative Supervision System”, Journal of Jiangsu Administration Institute, 4 (2010);
35. “The Development of the Concept of ‘Citizen’ in the Text of the Chinese Constitution”, Human Rights, 4 (2010);
36. “On the Amorality of Human Rights”, Guangdong Social Sciences, 2 (2011);
37. “On the Evolution of the Status of the Ruling Party in the Constitutional Text of China”, Law Forum, 4 (2011);
38. “Comparison of the Characteristics of Constitutional Texts of Various Nations on the Eve of the Revolution of 1911”, Chinese Journal of Law, 5 (2011);
39. “The Social Function of the Concept of Constitutionalism in the Contemporary Time”, Legal Science, 12 (2011);
40. “Constitutional Protection of Cultural Rights”, Legal Forum,1 (2012);
41. “Evaluation Methods and Impacts of Constitutional Implementation”, China Legal Science, 4 (2012);
42. “How Should We Amend the Constitution?”,Tsinghua Law Review, 6 (2012);
43. “The Status and Development of Constitutional Principles in the Theoretical System of Constitutional Studies”, Law Forum, 6 (2012);
44. “The Rule of Law and a Well-off Society”, China Legal Science, 1 (2013);
45. “The Debate on the 'Name’ and ‘Reality’ of Constitutionalism", Journal of Jishou University (Social Science Edition), 5 (2013);
46. “To Face the 'Three Challenges': the Jurisprudential Analysis of Hengyang Election Bribery Incident”, Law Review, 2 (2014);
47. “Adhering to the Party's Leadership and Governing the Country by Law”, Chinese Journal of Law, 6 (2014);
48. “Institutional Building as the Key to Ruling the Country by Constitution”, Theoretical Horizon, 3 (2015);
49. “Formation and Characteristics of Xi Jinping's Thought of Constitutional Governance”, Law Science Magazine, 5 (2016);
50. “Emphasizing Practical Effect in the Construction of Intra-Party Regulation System of the CPC”, Eastern Legal Science, 4 (2017);
51. “Attention Should Be Paid to the Study of the Nature of Supervision Power in the Reform of National Supervision System”, Academic Journal of Zhongzhou, 10 (2017);
52. “On the Construction of a Mechanism for Strengthening Constitutional Review”, Guangdong Social Sciences, 2 (2018);
53. “On the Mechanism for the Constitutional Review of Administrative Regulations”, Journal of Jiangsu Administration College, 3 (2018);
54. “On the Mechanism for the Constitutional Review of Administrative Rules”, Journal of Jianghan University (Social Science Edition), 3 (2018);
55. “40 Years of Construction of the Constitutional Review Mechanism in China”, Journal of Beijing Union University (Social Science Edition), 3 (2018);
56. “Taking the Constitutional Amendment as an Opportunity to Promote the Governing the Country in Accordance with the Constitution”, Journal of Northwest University (Philosophy and Social Sciences), 4 (2018);
57. “On the Application of the Constitutional Retention Principle in the Constitutional Review”, Law and Modernization, 5 (2018);
58. “On the Mechanism for the Constitutional Review of Laws”, Law Review, 6(2018);
59. “Theoretical Value and Practical Significance of Xi Jinping's Important Discussions on Ruling the Country by Constitution and Exercising the Ruling Power in accordance with Constitution”, Governance Modernization Studies, 2 (2019);
60. “The Jurisprudence and Stratification of Constitutional Review of AutonomousRegulations and Separate Regulations”, Gansu Social Sciences, 2 (2019).
