“根本法”考论

On Fundamental Law

根本法是欧洲发明的政治道德话语。它是法国人对任性王权的应激反应,按照历史与理性的方式被写入不同内容,后被改造成保障主权的政治审慎。在英格兰,根本法也是政治势力斗争的工具。国王用之保护王权,议会用之钳制国王特权。它从普通法、理性、自然法中获得灵感和形式,为政治势力策略性运用。议会获得主权后,根本法快速消亡,变身为政治道德。在欧洲,根本法装下的是经年政治斗争累积的政治审慎。美国人将美利坚民族的形成及生活方式全部根本法化,并命名为“宪法”,由司法保障实施。根本法由此发生词性改变,从指涉“政治规矩”的名词变成修饰“宪法特性”的形容词。

The academic debate on the“fundamental-law”connotation of the Chinese Constitution presupposes Western understandings of fundamental law.However,there is some degree of misunderstanding among Chinese scholars of the preconception and background of Western understandings of fundamental law.They fail to recognize the replacement of fundamental law by the constitution and to inquire into the underlying human intentions behind it.This necessitates intellectual archaeological research on fundamental law.The concept of fundamental law originated in Europe as a political and moral discourse.It emerged as the French response to the demand for curbing the excessive power of monarchs,adapting its content to cater to diverse political needs based on historical context and rationality.With the establishment of nation-states,Jean Bodin transformed it into a political prudence that safeguards sovereignty.The concept and application of fundamental law in France directly impacted the development of legal principles in England through Scottish immigrants to France.In England,fundamental law also served as a tool for political contention:the king utilized it to safeguard his powers while the parliament employed it to regulate royal prerogatives.It encompassed both the foundational political system established by the monarchy and the rationality derived from common law jurisprudence.Rooted in traditional,rational,and natural legal doctrines,it was strategically invoked by various political factions.However,with the ascendancy of parliamentary sovereignty,fundamental law swiftly waned into a mere political morality for wielding political authority.Throughout Europe,fundamental law embodies political prudence accumulated through years of political struggle.The fundamental law of England,which was implemented in the American colonies,facilitated the invention of the American Constitution.This comprehensive constitutional document established the United States and reflected a dual confrontation between the authorized government(the king’s prerogative)and the basic rights of individuals(traditional rights)similar to that found in English fundamental law.Subsequently,fundamental law not only acquired legal status but also underwent a transformation from a noun referring to“certain rules”to an adjective modifying“constitutional nature.”As fundamental law,the United States Constitution comprehensively addresses societal needs through its mechanism-driven functioning,with judges addressing various disruptions and issues.Chinese scholars propose that China implements the constitution in a manner similar to that of the U.S.However,reinventing fundamental law in China is a result of localized adaptation rather than mere replication.Therefore,there is an urgent need for contextual research on China’s own constitution as a“fundamental law.”