论临时宪法

Temporary Constitutions

临时宪法在规范性和描述性的两个立场上皆挑战了流行的持久宪法观。尽管未发展成熟且未充分理论化,但临时宪法依然有着深厚历史背景及特质。在减少错误成本及决策成本的同时,临时宪法降低了支配宪法时刻的认知偏误,推进了宪法协商中的共识建设,并解决了建国一代"死亡之手"的控制问题。然而,临时宪法也会给现政权带来自身成本,将多种认知偏误注入宪法设计进程,损害了宪法的永久性、稳定性及设计效率。即使"依法"条款、模糊性和低修订门槛作为三种成本最小化的方式被提出来,但临时宪法依然有其独特优势。

Temporary constitutions have been challenging the conception of prevailing durable constitutions on both normative and descriptive grounds.Athough underdeveloped and undertheorized,temporary constitutions have an extensive historical pedigree and their specificities.With the reduction of error and decision-making costs,temporary constitutions can decrease cognitive biases in constitutional moments,prompt consensus building in constitutional negotiations,and ease the"dead hand"problems by constitutional framers.Temporary constitutions,however,can also impose their own costs on the polity and inject kinds of cognitive biases into the design process by undermining constitutional permanence,stability and design efficiency.Even though"by law"clauses,vagueness and low amendment threshold are prescribed as three responses,temporary constitutions still have their distinct advantages.