地方法治概念证成--基于治权自主的法理阐释

On the Justification of Local Rule of Law:Based on the Jurisprudence Interpretation of Governing Autonomy

"法治江苏""法治浙江""法治广东"等地方法治实践的兴起,引发了学者们对地方法治概念的理论争议。质疑者认为主权是现代法治概念的基础,地方不是独立的法治单元体,故而地方法治概念不能成立。肯定者从地方法治发展的主客观动力因素出发,分别提出先行法治论、地域文化论、地方竞争论和国家试错论等四种代表性学说,但均未阐明受质疑的地方法治的权力基础,故而难以有效证成地方法治概念。主权与治权相分离是地方法治概念的法理基础,宪法、法律中有关地方治权形态与治权事项的规定是地方法治概念的制度依据,中央主导下的地方治权自主是地方法治概念的社会实效性根据。治权自主理论的提出,有助于明确地方法治概念的主体层级、评判地方法治实践以及合理界定地方法治与国家法治的关系。

The rule of law practices in Jiangsu, Zhejiang and Guangdong provinces arouse scholars' disputes on the concept of the local rule of law. Scholars holding opposing views believe that sovereignty is the foundation of the modern rule of law concept, and the local is not an independent unit for the rule of law. Thus, the concept of local rule of law is disconfirmed. Scholars supporting the view put forward rule of law in advance theory, regional culture theory, regional competition theory and national trial and error theory from the subjective and objective motivating factors in the local rule of law development. But due to the absence of pointing out the power basis of local rule of law, these theories do not effectively justify the local rule of law concept. The governing power of the local is the legal basis of the concept of rule of law; the provisions of the local governing power in the constitution and legislation are institutional basis of the local rule of law; and the local governing autonomy dominated by the central is the social practical basis of the local rule of law. Governing autonomy theory helps to make sure the subject level of local rule of law concept, evaluate the local rule of law practices and reasonably define the relationship between the national rule of law and the local rule of law.