从权力的视角看政治法治化

On the Approaches to Politics Legislation

政治的实质在于权力,权力规训的出路在于法治。要想实现政治的法治化,就必须实现权力法治。传统的学说认为实现权力法治,就必须以权力制约权力,然而以权力制约权力解决的仅仅是权力与权力之间的外部边界问题,而对于权力本身的正当性问题,对于权力的内部的规范运作,以及对于作为权力系统的外部制约方面,则显得无能为力。实现权力法治化也有另外几种思路,即权力法定、权力分化、程序法治、以权利制约权力。

The essence of politics lies in the power and the disciplines of power can only be realized by way of ruling by law. Therefore, the premise of realizing politics legislation is the achievement of the power＇s rule by law. The traditional theory regards that the power＇s rule by law is realized only through restricting power by power, while this paper puts that this channel can only solve the border problems between different powers, but makes no contribution to the legitimacy of power itself, the internal reasonable operation as well as the external restriction of the power system. Based on the above, several other thoughtprovoking approaches have been advocated in the essay as follows., power legitimation, power differentiation, procedure governed by law, and checking power with rights.