宪法和一般法关系命题的观念溯源与当代表达

The Conceptual Origin and Contemporary Expression of the Relational Proposition Between Constitutional Law and Ordinary Law

宪法和一般法的关系命题涉及宪法与立法者制定的一般规范的关系构造,如何理解宪法、是否以及如何限制形式法律对一般规范的创造为二者关系命题的核心。从观念史的脉络来看,宪法和一般法的关系命题奠定在自然法与人定法、法与法律、根本法与一般法所表征“法”二元论的基础之上。“法”二元论强调人定法、一般法的有效性并非仅出于立法者的意志和命令,也服从于更高的法。随着立宪主义的兴起,更高的法和基于制宪权的宪法相结合,逐渐实证化为优于一般法的最高成文法律。在议会立法国时期,法规完全为形式法律所垄断创造,宪法的规范力须经由形式法律的转化,不具备对于一般法的优位性。二战后,基于对法实证主义的反思,宪法不再仅被理解为源于制宪者的决断,亦被认定为独立于主权者意志的理性和正义的体系。宪法和一般法的关系命题是阶层的判断:首先判断制宪者的意志与更高的法对宪法认知的影响,其次判断具有形式和实质双重优位性的宪法对一般法的影响。

Different from the relational expression of“general rules and sub-rules”or“parent law and sub-law”,the relational proposition between constitutional law and general law involves the structure of the relationship between the constitution and the general norms formulated by the legislator.How to understand the constitution and whether and how to limit the creation of general norms by formal law are the core of the relational proposition between constitutional law and general law.From the perspective of the history of ideas,the relationship between constitutional law and general law is based on the dualism of law represented by the relationships between natural law and positive law,between law and statutes,and between fundamental law and general law.The dualism of law is the ideological source of the thought on fundamental law and the theory of constitutional superiority.The modern constitution is the codification and institutionalization of the natural law theory after the rise of popular sovereignty and constitutionalism in the 17th and 18th centuries.In the positive legal order,the dualism of law is manifested in the relationship between the written constitution and legislative statutes and was first practiced in the United Kingdom and the United States.Legislative statutes are inevitably subject to dual,i.e.,formal and substantive,restrictions by the fundamental(constitutional)law.During the period of parliamentary legislation,the general laws in continental European countries were created by the formal law,and the relational proposition between the constitutional law and the general law appeared illusory.The parliamentary legislative state opposes the dualism of law but does not advocate that the constitution is a higher law.It is a state form based on the superiority of legislative power and the concept of formal law.After World War Ⅱ,as a result of the reflections on absolute legal positivism,the dualism of“law”since ancient Greece and the idea of the superiority of constitutional law(fundamental law)that attached equal importance to form and substance in the United States were inherited by European countries and then influenced other latecomers in the development of the rule of law.The relationship between constitutional law and general law is a hierarchical judgment consisting of two levels:at the first level is the judgment of the impact of the will of the framers and higher laws on the cognition of the constitutional law,and at the second level is the judgment of the influence of the constitutional law with formal and substantive superiority on the general law.The relationship between constitutional law and general law is not a unilateral subordination relationship,but a complex relationship structure containing many decisive elements.The structure of the relationship between constitutional law and general law not only includes the relationship of specificity,and the conditions,modification and abolishment of normative validity,but also the relationship of normative association and mutual influence.Although democratic legislature dominates the creation of general norms,general norms are not created by formal law soely,they come from the constitutional order as a whole.