改革时代的转型法治与政治代表

The Rule of Law for Transitions in the Age of Reform and Political Representation

改革开放以来的法治型态可被概括为转型法治,即在社会主义初级阶段的改革中逐步实现法治。从思想史中可以归纳出三种转型范式,识别出有别于例外状态和规范状态的改革状态。在改革状态中,法治不再是某种理想类型,而是一种正在进行中的转型法治。在转型法治的宪制结构中,引领型的政治代表具有特别重要的地位。它在代议政府体系之上,发挥着引领、认知和勇于担当的重要作用。这构成了转型法治的基本特征,即政党与国家立法机关的二元代表制。政党既领导国家立法,又要受到国家法律的约束,与此同时,政党还必须通过党规党纪来实现自我约束。

The legal development in the era of reform and opening-up can be defined as the rule of law for transition. It means that the rule of law can be gradually realized on the base of the theory of the pri mary stage of socialism,which is also expressed as a state of continuous transform ation and upgrading. There are three transition paradigms in the history of modern thought,in which the reforming state is identified from the exceptional stateand the normative state. In the state of reform,the rule of law is no longer an ideal type,but the rule of law for transition,in which the leading political representation are necessary and outside the government system and plays an important role in leading cognizing and brave ly reforming. It constitutes the basic characteristics of the rule of law for transition that the political party leads lead parliam entary legislation but are also are subject to the laws of the state. Moreover,political party as the people’s representation must practice self-discipline,achieved only through the form ulation of party rules and disciplines.