公法传统的历史进化与时代传承——兼及统一公法学的提出和主张

Historical Evolution and Up—to—date Development of Public Law Tradition

公法传统的历史演进经历了以公法观念为主要栽体和以公法理论为主要载体两个阶段,并将进入以"总体的公法理论"或"整体的公法学科"为主要载体的第三个阶段。公法理论的变迁中包含解构和建构二元变量,两者互动形成一种渐进的、局部演进的发展结构,但已经陷入难以为继的境地,需要重大突破和全面创新。在一定意义上,统一公法学的提出担当了传承公法传统、创新公法理论的学术使命,展现出传承与嬗变的双重面相,体现了开放与内化的双向态势,符合现代公法理论发展与创新的基本规律。

The tradition of public law is a running river. Its historical evolution has undergone two phases, i. e. , the period when the notions of public law are its main carrier and the period when the theories are its main carrier. And it will turn into the third phase, namely, the phase of the general or integrated theory, The general theory of public law means that it has a particular theoretical foundation, constructs an independent and precise system of public law, integrates the traditions containing in the notions and theories of public law, and produces specific knowledge of public law openly. Only the general theory of public law can make all the traditions of public law carried by the notions and theories become ＂concourse＂, escape ＂being broken＂ and come down incessantly.The evolution of public law theory embraces two variables, that is, deconstruction and con struction. The interplay between them brings about a gradual-and-partial developing pattern. This developing pattern makes the theory of public law depart from the theories of politics and nation, inherit lots of traditions, unearth the inherent mechanism of public law, and form the key minds of public law. However, this pattern has entered into a condition which can not be hold on and needs being broken through now. To a certain extent, the uniform science of public law plays the dual roles of succeeding the tradition and developing new theories. Of course, every innovation of theory has changed the original tradition, and has been kept in the tradition at the same time. This process brings about the growth of new tradition. Equally, the selective succession and alteration of the tradition by the uniform science of public law reconstruct the system of traditional public law, thus it becomes a new pattern of studying public law. The generation and developing path of the uniform science of public law have maintained two kinds of trends, i. e. , opening and integrating. In conclusion, in the long running river of public law tradition, the development and innovation of modern public law theory should look back upon the past, lay loots on the status quo, and forecast the future. The innovation of modern theory should be the inheritance and development of the tradition, and should be the growth of a new tradition at the same time.