政府治理的“法治—效能”张力及其化解

The Tension between Rule of Law and Effectiveness in Governmental Governance and Its Solution

在良法善治的理想下,如何实现法治与效能的并行共进是政府治理现代化必须面对的大问题。不同于西方语境中基于司法机关与行政机关的互动所形成的“法治—效能”张力,中国政府治理中的“法治—效能”关系内生于法治建设与效能建设相交织的政府治理现代化进程中。因此,法治政府建设与政府效能建设既相互依存,又引发了行政自制与权能扩容、刚性法律与动态治理、封闭结构与开放系统、个体权利与技术特权等多重紧张关系。既有的法治评估、包容性法治与技术规制调适框架对规则、程序与证据等关键统合要素均有不同程度的遗漏或疏忽,而法社会学、元治理思想和循证决策理念所提示的反思型治理,有潜力对政府治理的规则、程序和证据实现理论统合,对于化解内生于政府治理的“法治—效能”张力具有更强的解释力。

Given the ideals of good law and good governance,achieving the parallel advance of rule of law and effectiveness is a major issue for the modernization of governmental governance.Unlike the Western context,in which the“rule of law vs.effectiveness”tension grows up through the interaction between judicial and administrative organs,in Chinese governmental governance this relationship forms endogenously in the course of the modernization of governmental governance,a modernization in which the construction of rule of law and effectiveness are interconnected.Therefore,the independent construction of a rule of law government and governmental effectiveness also leads to multiple tensions between administrative autonomy and the expansion of powers,between rigid law and dynamic governance,between enclosed structures and open systems,between individual rights and technological privilege,and so forth.The current frameworks for assessment of the rule of law,the inclusive rule of law,and technological regulation and adjustment have more or less overlooked key integrative elements such as rules,procedures,and evidence.The reflective governance suggested by the sociology of law,meta-governance ideas,and the concept of evidence-based decision-making has the potential to achieve theoretical integration of rules,procedures,and evidence in governmental governance,creating a stronger explanatory power for the resolution of the rule of law vs.effectiveness tension endogenously formed in governmental governance.