以人为本与宪政中国

“以人为本”作为日常生活语言何以可能成为法律语言,进而体现在宪法文本中?从比较法的视野考察,上述问题并不具有独特性,西方宪政话语中的“人的尊严”范畴早就已经完成了从日常语言到宪法文本条款的变迁过程。通过探讨西方宪政历史中“人的尊严”条款入宪的过程及其法律涵义,可以理解我国当下宪政话语中的“以人为本”的可能意蕴。     

Constitutionalism and experimentalist governance

This comment explores how experimentalist governance is connected to wider constitutional questions and makes two claims. First, there are good reasons to believe that experimentalist governance can only flourish in a world where the precepts of liberal democratic constitutionalism have been widely accepted and institutionalized. Experimentalist governance is part and parcel of the world of liberal democratic constitutionalism. Second, it is not only governance in Europe that can be described in experimentalist terms. The concept is also useful to describe the dynamics of European constitutionalism.     

公共行政中的宪政主义

公共行政中的宪政主义是研究公共行政的两条线索之一,长期以来没有被深入研究,对其进行系统论述具有较强的理论创新意义。公共行政中的宪政主义与西方政治哲学中的宪政主义既有区别也有联系,其内容为公民权利,公民社会或社区价值,人本主义与后现代公共行政及公民参与,它贯穿于公共行政发展的全程,仍然需要进一步发展以完成其使命。     

Implementation as communicative action

Many social problems can only be solved through some form of governmental involvement. In this article, a model is formulated for policy implementation. The various criticisms against a top-down model of implementation can be taken into account by conceptualizing implementation as communicative interaction between policy actors and their target groups, each characterized by distinct rationalities (section 4) with important consequences for the likelihood of learning and behavioral change (section 5). As explained in section 3, communicative action is being used to underline that we go beyond the top-down vs. bottom-up distinction, thus doing justice to empirical findings and adopting a post-positivist epistemology. Normatively, this expresses a critical approach to implementation as the continuation of politics with different means.The need for such an approach is illustrated by two case stories (section 2), one about fresh dairy packing in the Low Countries, the other one about nuclear missiles in the United States. Examples from these stories are used in sections 4 and 5 to clarify our model.     

Montesquieu on Federalism and Anglo-Gothic Constitutionalism

The common perception that Montesquieu is not a major theoristof federalism is due both to the peripheral nature of his accountof confederate republics and his praise of the unitary BritishConstitution in the Spirit of the Laws. This study challengesthis view by arguing that, despite his endorsement of the separationof powers, Montesquieu had serious reservations about England'shighly centralized system of parliamentary sovereignty. Moreover,his most significant reflections on federalism were not containedin his brief treatment of confederate republics, but ratherin his lengthy consideration of Gothic constitutionalism. Iconclude that Montesquieu's complex constitutional theory involvestwo distinct dimensions including both the separation of powersexemplified in England and the federal principles in the decentralizedGothic system of medieval France.     

当代世界宪政发展趋势与新时期中国宪政建设的基本走向

在当代中国发展社会主义民主政治、建设社会主义法治国家的历史进程中,宪政建设对实现社会主义民主的制度化、法律化的作用和重要性日益凸显。追求宪政与民主、权力制约与有效治理之间的平衡、协调和统一,是当代世界宪政发展的主要趋势。中国新时期的社会主义宪政建设,显现出从人治向法治转变、强调秩序和稳定、重视对权力的规范和制约、加强人权保障等基本走向,这既符合当代世界宪政发展的潮流,也适应我国现阶段的实际国情和发展需要,对中国特色社会主义民主政治的健康发展必将起到有力的促进作用。     

美国宪政中的分权制衡机制

著名启蒙思想家洛克和孟德斯鸠的分权制衡学说在美国制宪先驱们天才般的不懈努力下最终成为美国宪法及宪政实践的思想基础和灵魂.美国宪法及宪政中的"分权"与"制衡"是相辅相成的:"分权"是"制衡"的基础和前提,"制衡"是"分权"的目的与归宿,通过分权制衡机制实现以权力制约权力的愿望.我们应当客观辩证地看待美国宪政中的分权制衡机制.     

Constitutionalism,Division of Power and Transaction Costs

According to many democracytheorists, there is an unavoidabletrade-off between constitutionalism and theneed for political action. This papercriticizes that belief. Rather, it arguesthat a division of power, while sometimesentailing high political transaction costs,can nevertheless be beneficial andthat it is not necessarily the case that adivision of power does entail hightransaction costs. The analysis expands theframework of Buchanan and Tullock (1962).Constitutionalism is thus defended againstone of its main perceived deficiencies: itsbringing about gridlock. This does notalways happen, and when it does, it isoften a good thing.     

Pluralism and the Hobbesian Logic of Negative Constitutionalism

According to an essentially Hobbesian account of political order, the claims of cultural and national minorities within a state to some form of constitutional or institutional recognition are morally suspect and politically undesirable. Underlying this Hobbesian logic is a particular understanding of the relation between law and politics. 'Negative constitutionalism' is focused primarily on limiting the damage government can do. However the pursuit of constitutional minimalism runs up against the challenges presented by deeply diverse political communities. By investigating the manner in which Hobbes has been invoked in arguments concerning the relation between the rule of law and the 'politics of recognition', I argue (i) that the distinction between the rule of law and politics is fundamentally unstable, and (ii) that in invoking Hobbes, modern theorists have missed an important element of Hobbes's own argument—namely, his appreciation of this instability. As an example, I examine the way Hobbes is used in some of John Gray's recent writings on pluralism and liberalism.     

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

Scholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post-hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative .     

Thinking About Constitutionalism at the Start of the Twenty-First Century

At the beginning of a new century, constitutional democracyseems ascendant almost to the point of a universal inevitability.What follows is in part a cautionary tale and in part an assessmentof where we now stand in one of history's most hopeful long-termtrends. An examination of the diffusion of constitutional democracy,and of general trends in cross-national constitutional developmentssince World War II, leads to a consideration of the manner andextent to which modern constitutionalism embodies a recapitulationof human cultural and political evolution. The culture-power-justicenexus that characterizes modem constitutionalism was first dissectedby Montesquieu, and an examination of his approach to constitutionalismprovides a useful window into why we developed the politicaltechnology of constitutional democracy and why the future ofthis technology is not a foregone conclusion.