中国宪法学方法论反思

Reflection on the Methodology of Chinese Constitutional Jurisprudence

政治宪法学过度强调不成文宪法、政策及利益的重要性,而规范宪法学存在对规范性一词的误解。宪法学作为理解的科学,既非纯粹的、逻辑严密的价值学,也非纯粹的实证主义科学或纯粹描述事实的社会学。宪法中的价值源自宪法规范与社会现实的结合。必须面向时代精神价值,通过具有整合性的宪法解释将宪法的规范含义与不断变化的现实结合起来,既保持变通性又不失安定性,这是中国宪法学面临的迫切任务之一。

The debate on the methodology of constitutional jurisprudence has become much hotter than ever for recent years. The dilemma how the constitutional theories should react to the political realities yields the significant controversy between the political constitutionalism and the normative constitutionalism, which is grounded on the dichotomy of fact and norm. However, either political constitutionalism or normative constitutionalism is insupportable in context of methodology. The political constitutionalism is near to the sociology of law, both of which try to reflect the positive law through inquiring into the social or political realities. However, they seem to be lost in the chains of causation, take the factual interests and purposes as the standards of evaluation and tend to ignore the normativity and legitimacy. Thus it overemphasizes the importance of the unwritten constitution, the policies and the interests at the price of the authority and stability of the constitution. The normative constitutionalism sets its foundation on the positive constitution while has not so much ideas of the sources of its legitimacy and validity. Neither offers it an answer to the question of the philosophical foundation of the constitution as a value--related law. This also affects the concretizing and interpretation of the constitution. As a science of ＂understanding＂, the constitutional jurisprudence is neither a pure and strictly logical theory of values nor a pure positive theory or sociology of fact description. The values in the constitution derive from the integration of facts and norms and the integration of the constitutional norms and the realities, and reflect the spirits of our times. To integrate the normative meaning of the constitution and the ever changing realities through the integrative constitutional interpretation is the main issue for modern constitutional jurisprudence.