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根本法是盛行于17世纪英国的一个古老概念,表达了统治者须受制于外在权威这一理念,18世纪美国复兴这一观念,根本法成文化为宪法,它强调约束主权的根本法与约束个人行为的普通法律之间的区别,发展了法院实施宪法保障根本法地位的机制,完成了根本法的法律化。从而使得宪法与根本法紧密联系起来,构成了今天宪法理论的基石。而以公民基本权利保障为核心的宪法关系则进一步深化了根本法理论的内涵。我国民国和新中国宪法学都继受了这一概念。但是我国宪法更多继受了西方根本法观念,在表现形式与能动效应的结合上存在缺失。随着建设法治社会的进程不断加快,对于公民权利尤其是基本权利的保障更加注重,鉴于宪法的特殊地位,必须明晰表现形式,促进基本权利的保护,寄以发挥公民社会之应有效用。
The Fundamental Law is an ancient concept prevalent in the 17th century England that expresses the notion that the ruler is subject to external authority and the concept of the revival of the United States in the 18th century. Fundamental law is codified into the constitution by emphasizing the fundamental law of restraint of sovereignty and the restriction of individual conduct The common law of the difference between the development of the court to implement the Constitution to protect the status of the fundamental law mechanism to complete the legalization of the fundamental law. Thus making the constitution closely linked with the fundamental law and forming the cornerstone of today’s constitutional theory. The constitutional relationship with the guarantee of the fundamental rights of citizens further deepens the connotation of the fundamental law theory. This concept has been followed in both our Republican and New China constitutional laws. However, the constitution of our country has inherited the concept of Western fundamental law more and more, and there is a lack of combination of manifestations and positive effects. With the accelerating process of building a society ruled by law, more attention is paid to the protection of civil rights, especially basic rights. In view of the special status of the Constitution, it is necessary to clarify the forms of expression and promote the protection of fundamental rights so as to give full play to the effectiveness of civil society.