论西方行政法治的主要类型

On the Main Types of Western Administrative Rule of Law

在现代性语境里,西方行政法治依次经历了四个主要历史发展时期,即警察国、法治国、福利国和后福利时代(后现代)。对安定与秩序的向往,带来了绝对君主治下的“警察国家”;自由先于平等,造就了法治国的短暂繁荣;平等抑制自由,成就的是福利国的生存关照;自由再次挣脱平等羁绊的努力,引发了后福利时代对现代性的解构与反思。法治国坚持的依法律行政原则在福利国时代演变为依法行政原则,其间行政立法的大量出现,稀释了法律对行政民主控制的法效力;而行政程序的法典化和程序性商谈机制的导入,局部弥合了行政的正当性困局。进入后现代,科技行政和风险国家呈现出后福利国家的另一制度侧面,政府再造和市场回归为主要面向的行政事务民营化浪潮,使依约行政原则步入行政法治舞台,揭示了公私法治融合对行政新的时代要求。不过,就本质而言,整体上现代性构筑起来的西方行政法治类型及其法文化形态是一典型“地方性知识”,但其带来的“文明病”——对人造物的高度依赖,却以“侵入”的方式深刻地影响了全人类。故此,世界期待“人类文明新形态”。

The administrative rule of law has experienced four major historical development periods, police state, rule of law state, welfare state and post welfare era in the context of modernity. Order is relative to police state, freedom is relative to rule of law state, welfare state appeals to equality, and risk society returns to market in the name of reform. History has gone from rule of law state to welfare state, at the same time, the principle of the administration according to law will be substituted by the administration according to rules. During this period, a large number of administrative legislation appeared which diluted the legal effect of law on administrative democratic control, while the codification of administrative procedures and the introduction of procedural negotiation mechanism partially bridged the dilemma of administrative legitimacy. In the post-modern era, science and technology administration and risk-based countries present another institutional side of post-welfare state. The wave of privatization of administrative affairs, which is mainly oriented by government reconstruction and market return, makes the principle of the administration according to compliance step into the stage of administrative rule of law, and reveals the new era requirements for the integration of public and private rule of law.However, in essence, the type of western administrative rule of law constructed by modernity and its legal culture form are a typical “local knowledge”, but the “civilization disease” brought by it--the high dependence on man-made products, has profoundly affected all mankind in the way of “invasion”. Therefore, the world is looking forward to a “new form of human civilization”.