论国家概念的法理化

On Legal Theorizing of State as a Concept

国家治理现代化是当代中国法理学需要攻关的长期性重大课题之一。然而,现阶段对该课题的法理研究存在法治化路径依赖的问题。究其根本,当前中国法理学只关注“治理”“现代化”而忽视了“国家”,由此导致国家治理现代化的法理研究被简化为一种无“国家”的“治理法治化”研究。因此,为了克服这一“单条腿走路”的研究困境,有必要引入国家概念并将之法理化。国家概念的法理化分为三个环节:首先是正视“国家”,将“国家”视为方法而非目的引入法理学,强调“国家”作为一种研究视角的方法论意义;其次是吸纳“国家”,将法理概念作为“国家”进入法理学的入口,并对国家概念进行对象化处理,从而提炼出作为研究对象的现代国家建构之法理;最后是融合“国家”,在现代国家建构之法理的范畴内,通过建构包含国家理性、法律理性与政党理性的三维立体式的法理学分析结构,将“国家”融贯于法理学之中。国家概念的法理化就是一种“以国家为方法,以法理为目的”的思想操作过程。

The modernization of state governance is one of the long-term major issues that contemporary Chinese jurisprudence needs to tackle. However,the legal research on the subject at this stage has the problem of path dependence on the rule of law. The fundamental point is that the current Chinese jurisprudence only focuses on "governance" and "modernization" and ignores the "state",which has led to the reduction of the legal theory of state governance modernization to a study of "governance legalization" without "state". Therefore,in order to overcome this research dilemma of "monism",it is necessary to introduce the concept of the state and legalize it. The legalization of state concept is divided into three procedures. First,it is to face the "state" squarely,introduce it as a method rather than an end into jurisprudence,and emphasize the methodological significance of the "state" as a research perspective.The second is to absorb the "state",use the concept of legal principle as the entry of the "state" into the jurisprudence,and treat the state concept as an object,so as to extract the legal principle of modern state construction as the research object. Finally,it integrates the "state". Within the scope of the jurisprudence of modern state construction,the "state" is integrated into the jurisprudence by constructing a three-dimensional jurisprudential analysis structure that includes reason of state,reason of law and reason of party. The legalization of state concept is a process of thought operation that "takes the state as the method and the legal principle as the goal".