政策治理的宪治空间:基于“政府法治论”的初步观察

Constitutional Space of Policy-oriented Approaches:Preliminary Observation Based on“Theory of Government under Rule of Law”

"政府法治论"是中国行政法的理论基础。"政府法治论"对真实行政法世界充分回应并致力于推动行政法秩序生成。在国家治理体系中,法律与政策是行政法治不得不面对的制度现实。以行政法学田野观察方式进入研究场域,基于"政府法治论"分析工具指引,观察以请示公文为代表的内部行政行为,提出中国行政法实施双轨制路径即法律治理路径和政策治理路径,体现了"政府法治论"的实践品格。"政府法治论"对政策治理的分析与重塑以及对其法治化方向指引,旨在为构建法治政府提供制度设计清单。

Theory of Government under Rule of Law is the theoretical basis of Chinese administrative law.It is full of response to the real world of administrative law and is committed to promoting the order of administrative law.In the national governance system,the law and policy are the institutional reality that the administrative rule of law has to be faced with.By means of administrative law field observation to enter the research field,directed by analysis tools of Theory of Government under Rule of Law,observing the internal administrative acts represented by the documents,China＇s administrative law is proposed to implement a two-track system,i.e.,the legal and policy governance path,which reflects the practice of Theory of Government under Rule of Law.The analysis and reconstruction of policy governance by Theory of Government under Rule of Law and its guidance on the direction of the rule of law,is aimed at providing a list of system design for building agovernment ruled by law.