论宪政的契约属性——本质主义和注释主义之外的宪政界定

Discussion on the Characteristics of Contract of Constitutionalism:The Boundary of Constitutionalism beside the Essentialism and the Hermeneutics

当前学术界对宪政的界定, 遵循本质主义和注释主义两种思路, 该文从另一种思路出发, 探讨宪政的属性———契约性。宪政的精神与契约无异, 都包含主体的复数、意志的自由合意、地位的平等、互利预期、承诺和约束、和平协商与司法仲裁等因素。无论就静态的宪政而言, 还是就动态的宪政而言,都具有明显的契约性。

The present academic circles orientate the constitutionalism by two trends of thoughts:the essentialism and the hermeneutics. This paper discusses the characteristics of the constitutionalism in another way and assumes that the spirits of the constitutionalism are the same as that of the contract. Both contain such factors as free agreement, equivalent status, mutual benefit expectation, promise and restriction, peaceful negotiation and judicial protection. In terms of static state of constitutionalism version, created by means of negotiation, compromise and agreement, it emphasizes such contractual values as agreement, freedom, equity and rights. In terms of dynamic constitutionalism it sticks to the principle that “contract is holy”, stressing the authority of constitution.Peaceful and judicial measure is adopted to protect constitutionalism.