法律下的中国:一个构建法治中国的法理议题

China in the Context of Law: A Jurisprudential Proposition to Establish the Rule of Law in China

构建法治中国是中国当代社会的基本共识,也是执政党法治观的集中表达。共同建设法治观和一体建设法治观建立在法律的同一性原则上,也承认了国家、执政党和社会的相对独立性。执政党法治观是构建中国国家法治观的前提,其落脚点在于对中国国家共同体的具体阐释。从法律的规范角度理解中国国家共同体,显示出其与历史中国、文化中国和政治中国等视角在方法论、内容上和目标上的差异。法律共同体揭示了公民身份对法治中国的构成性功能。法律下的中国作为一个时代命题需要处理政府集权和行政集权、宪法建制与公民忠诚、全球规则与中国国家行为等关系,破解国家权力高度统一与集体能力低下的历史悖论,创造国家治理能力法治化的总体性方案。

It is a basic consensus to establish the rule of law in China in contemporary era which is also a concentrate expression of the ruling party＇s viewpoint on the rule of law. The principle of uniform legal identity should be followed to unanimously construct the viewpoint on the rule of law and to integrate such construction,besides,it requires to admit that the state,the ruling party and the society are relatively independent.The ruling party＇s viewpoint on the rule of law is the premise for establishing the rule of law in China,which aims to specifically elucidate China as a state community. This legal and normative perspective to understand China is different from other contexts of China such as historic,cultural,and political aspects particularly in methodology,content and goals. The legal community reveals that the citizenship plays a constructive role in establishing the rule of law. As an epochal proposition,China in the context of law should cope with such relations as between government centralization and administrative centralization,between constitutional institution and citizen fidelity,between global rules and Chinese state action. Moreover,it requires to break the historical paradox between the highly uniform powers and the low collective capacity so as to create an overall scheme for improving the capacity of state governance under the rule of law.