国家治理中的法治困境及其出路

The Dilemma of and Its Solution to the Rule of Law in Governance of the State

我国语境下的国家治理与西方治理理论不同,它是政府治理而非公共治理,结果导向而非过程导向,注重行政行为而非制度理念,从而使国家治理与法治之间存在着专断性与公平性、功利性与原则性、随意性与程序性的张力,进一步导致我国法治建设面临着规则意识缺乏、法律工具主义以及党与法治关系模糊的困境。推进国家治理法治化需要以时间换空间,从重塑法律权威的四个任务入手,在限制公共权力与确保权力效力、保障自由权利与确保社会秩序之间取得平衡。对于党和法治的关系这一核心问题,要在区分党的领导与党政领导干部的权力基础上确立法律权威的至上性。

The state governance in our social context is different from that of the western governance theo- ries, as it is governmental governance and non public governance, result-oriented and non process-oriented, fo- cusing on administrative behavior rather than institution and its concept. These differences lead to some tension between state governance and the rule of law, including the tension of arbitrariness and fairness, utilitarian and principle, random and process. The construction of the rule of law in our country is faced with some dilemmas, for example, lack of consciousness of the rule, legal instrumentalism, and ambiguity of the relation of the Party and rule of law. We need more time to promote the rule of law in our state governance. We can start this job from four tasks of the reconstruction of the legal authority, and we have to keep a balance between restricting public power and ensuring the effectiveness of power, protecting the individual freedom and ensuring the social order. At last, the Party＇ s leadership and the cadres＇ power must be distinguished clearly, as this is the core issue of the Party＇ s leadership and the rule of law.