宪法法律化:中国法治之未竞事业

宪法法律化是指宪法像法律一样具有约束力和强制力.宪法法律化要重点解决两个问题:一个是理论与认知问题,即认识到宪法首先是且必须是法律；另一个是制度与实践问题,即实施宪法这一法律的司法性机关的建立与司法适用实践经验的积累.从世界各国立宪与行宪史察之,自宪法到法律之生成规律,一般渐次历经两个发展阶段,即宪法的法律宣言化、宪法实施的制度化及宪法的个案适用与解释.前者是前提,后者是关键.在我国,要完成“依法治国、建设社会主义法治国家”的历史性任务,就必须完成宪法的法律化过程,这应当是中国法治建设中不可逾越的发展阶段.宪法法律化虽是一个老问题,但它在我国仍然是个新问题,是我国法治之未竟事业.

The Legalization of Constitution: the Only Road for the Development of Rule of Law in China

Legalization of constitution means that the constitution has the same binding and enforcement power as laws,which involves two essential issues to be solved.The first is a theoretical and cognitive one,that is,the constitution should and must be a law.The second is an institutional and practical issue,namely,the foundation of a judicial institute implementing the constitution and the accumulation of judicial application experience.The progress of the constitution from "being law" to having the real effect of law is not a natural one;it is instead the fruit of long and repeated games and compromise of many social interest groups.A review of the history of the establishment and the implementation of constitutions all over the world reveals that there are always two steps in the process,the legal declaration and institutional implementation of a constitution,and the application and interpretation of constitution with cases.The former is the premise while the latter is the key.In order to realize the historic mission of "governing the country according to law and building a socialist country ruled by law" in our country,legalization of constitution is a stage that cannot be skipped.Although an old topic,legalization of constitution is still a new and unfinished mission in China.