从基础规范看现代立宪转型之道

Constitutional Transplantation From Basic Norms

效法西方国家立宪是后发现代国家的通例却往往效果不彰，如何诊断这一现代病就变得非常关键。凯尔森的基础规范概念为此提供了重要工具。文章由此出发，先是批判性重述这一理论，认为凯尔森内容中立的基础规范无法胜任从实然向应然转换的功能；进而探讨基础规范证立所经历的三阶段，这实际上构成了立宪转型的内在逻辑结构；之后考察49年《共同纲领》的立宪实践。最后再次回到立宪转型之功能，当代思想中有两个与之相对应的典型范式：契约合意与商讨合意。在检讨了康德所代表的契约合意论之后，文章最终指出，通过商讨合意来实现立宪转型是更为优选的理论范式。

Constitutional transplantation is an established practice of modem developing ~tates but is not well effective. How to diagnose this modem sickness becomes crucial to the Legal theory. In solving this problem, Kelsen＇ s concept of basic norm provides an important ：ool. The thesis restates firstly Kelsen＇ s theory of basic norm and shows that his basic norm s incapable of transforming ＂is＂ to ＂ought＂ as he expects to. Secondly, the justification of ~asic norm is discussed and three stages of constitution making are refined. As one stage of he three, the identity of cognition and action is the criteria to judge whether the function .＇omes reality. Accordingly, the thesis has a further research on the practice of constitution naking, i.e. of the making 1949 Common Program. Lastly, the thesis comes back to the heory. There are so far two most representative paradigms of the identity of cognition and tction： consensus of contract and consensus of discourse. After analyzing the theory of zonsensus of contract of which Kant is the representative, it is indicated that achieving the dentity of cognition and action by discourse is a better theoretical paradigm.