改革宪法、秩序变迁与四十年经验

The Reform Constitution and Constitutional Order Change: Experience Gained from the Reform over the Past 40 Years

新中国宪制秩序内部存在"道统"上的连续性,在人民主权、党的领导和社会主义这三个根本法原则层面保持不变,但在具体的宪制与法律制度上出现了阶段性的主题与分期现象。作为改革开放的起点年份,1978年是革命宪法向改革宪法转型的关键节点,而八二宪法及中国特色法律体系的初步形成,则构成了"改革宪法"的具体法制体系。改革宪法内部存在政治决断与规范守护的二元张力,推动这一宪法体系不断调整及发展,并通过党的十九大报告和2018年的结构性修宪实现了"新宪制秩序"的建构。改革四十年完成了"改革宪法"的初步规范化,为"继续改革"积累宪制共识与法治基础,但从治理现代化及全面依法治国层面而言,这一法规范体系结构远未成熟。治理话语的引入及党规体系的整合,带来了中国法治的治理转向和党政关系的宪制重构,有效扩充了中国法治的规范性容量及复杂性,但也带来了中国法治现代化的丰富的实践资源与理论契机。改革是一场关于生产力及制度体系的革命,从而改革宪法的规范成熟也必然是一场关于法理学和宪法学的思想革命,而改革四十年充分见证及沉淀了这一伟大的法学与法治思想运动的历史,并为未来之宪制与法治更高质量及更具体系性的规范发展提供物质与精神条件。

There is a continuity in principles over the change of China's constitutional order since 1949:what remains unchanged is the three fundamental issues,i.e.China's adherence to people's sovereignty,the Party's leadership and socialism.However,the division between different stages is obvious in the development of the specific constitutional and legal systems.As the starting point of reform and opening up,1978 is the key node for the transformation of the revolution-oriented constitution into the reform-oriented constitution(the reform constitution for short),which is embodied by the Constitution adopted in 1982(aka 82 Constitution in China)and by the corresponding specific legal system with Chinese characteristics.In the new order based on the reform constitution,there is a tension between making and implementing political decisions and safeguarding constitutional authority.This conflict has promoted the constant adjustment and development of this constitutional system and achieved the construction of the“new constitutional order”which is specified and confirmed by Xin Jinping's report to the 19th National Congress of the CPC in 2017 and the structural revision of the Constitution in 2018.Over the forty years of reform,the preliminary standardization of the reform constitution has been completed and the constitutional consensus and the rule of law foundation has been achieved for continuing reform.However,from the perspective of governance modernization and law-based governance,this constitutional system is far from mature.The introduction of governance discourse and the integration of the Party regulation system have not only brought about the governance change in the rule of law in China and the constitutional reconstruction of the relationship between the Party and the government,effectively expanding the normative capacity and complexity of the rule of law in China,but created rich resources and opportunities for the modernization of China's rule of law in both practice and theory as well.Reform is a revolution in productivity and institutional system.Therefore,the development of the reform constitution should also be an ideological revolution in jurisprudence and the studies on the Constitution.The 40 years of reform has fully witnessed the development of jurisprudence and the idea of rule of law,which provides solid material and ideological foundations for the better development of China's constitutional system and rule of law in the future.