法律、主权与民主——戴雪宪法学说的政治之维

Law,Sovereignty and Democracy——On Political Dimension of Dicey's Constitutional Doctrines

在戴雪的理论模型中,议会主权和法治构成了英宪的两大原则。然而,站在当代主流法律理论的立场上来看,这两项原则之间似乎存在着不可调和的矛盾,因此,这一理论模型不可避免地要受到来自逻辑和经验两方面的挑战。借助戴雪隐而未发的民主观念来解释两者之间的兼容问题,可最终证明戴雪的理论错误应该归咎于他的政治意识形态。

Parliament sovereignty and rule of law, between which there seems to be an irreconcilable conflict in the eyes of the contemporary mainstream jurists, were took for granted as twin pillars of English constitution by Dicey. This theory has inevitably met with challenges from both logic and experience. This paper attempts to explain the compatibility of the two principles in terms of Dicey＇s potential notions of democracy and finally purports to prove that Dicey＇s theoretical errors should be ascribed to his political ideology.