宪法惯例的法律性及其成立标准

The Legality of Constitutional Convention and the Criteria of its Establishment

宪法惯例是宪法学研究当中一个无法避开的问题。对于如何看待英国的宪法惯例的性质,英国以外的其他国家是否存在宪法惯例,如何在我国的政治与法律的语境下正确地认识宪法惯例等诸多问题,仍然存在着广泛的讨论空间。宪法惯例本身不同于公意或政治道德,具有同成文宪法规范相同的法律权威,但其效力并非通过司法,而是通过"授权报复"的机制得以实现。而判断一条宪法惯例成立与否,则须依据心理标准和行为标准共同进行判断。

The problem of the external forms of the constitutional law has become an inevitable question in the Constitutional Studies, of which no scholar can steer clear. There are many questions open to discussion such as what view should be taken of the constitutional conventions, whether they exist outside of Britain, and the proper way to define consititutional conventions under the context of Chinese political and legal system. The constitutional conventions are different from the public opinions or the political morality in that it has the same legal authorities as the constitutional laws. However, the implement of its legal power does not belong to the judiciary, it is carried out by the system which is called ＂authorized revenge＂. And to judge the establishment of a constitutional convention, the criteria of phycology and action should both be relied on.