在政策与法律之间:教育治理工具的博弈与平衡

Between Policy and Law: Game and Balance of Educational Governance Tools

政策与法律的关系是教育法学最基础与核心的话题,也是实现教育法治必须解决的重要问题。理论界对二者的关系虽有不少讨论,但同样存在一些误读,不仅有意或无意地将政策与法律割裂开来,而且容易忽视教育治理较之其他社会治理领域的特殊性。事实上,教育政策与法律并没有价值上的优劣之分,反而呈现出地位上的独立性、时序上的相继性以及功能上的互补性。注重教育政策同教育法律的衔接和协调是我国教育治理工具优化的基本要求,这与立法权限以及相应党政机关教育管理职权范围密切相关,并体现在静态的制度和动态的实施、监督、保障层面。在此基础上,教育法治的实现应当坚持多元合法化机制,将“于法有据”“科学理性”“程序正义”植入教育治理全过程,这不仅有助于政策与法律间的资源统合,而且对全面理解教育法治和构建全面的教育法治具有现实意义。

The relationship between policy and law is the most basic and core topic of educational law and it is also an important problem that must be solved to realize the rule of law in education. There are some miscomcepts of the relationship between the two in the theoretical circle, which not only separates the policy from the law intentionally or unintentionally, but also easily ignores the particularity of educational governance compared with other social governance fields. In fact, there is no distinction between educational policy and law in terms of value. Instead, they show independence in status, continuity in time sequence and complementarity in function. Paying attention to the connection and coordination between educational policy and educational law is the basic requirement for the optimization of educational governance tools in China. On this basis, the realization of the rule of law in education should adhere to the diversified legalization mechanism and implant “based on the law”, “scientific rationality”,and “procedural justice”,into the whole process of educational governance, which is not only conducive to the integration of resources between policy and law, but also of practical significance for comprehensive understanding of the rule of law in education and the construction of comprehensive rule of law in education.