论实验主义法治——中国法治实践学派的一种方法论进路

On Experimentalism Rule of Law:A Methodological Approach of China Practical School of Rule of Law

实验主义治理思想是当前新兴的治理理论,具有若干突出优势,对当前中国法治实践和理论建设具有重要参考价值。中国法治实践学派倡导实践、实证、实验的研究方法,提出实验主义法治新构想,即从实验主义治理理论出发,重新理解中国法治实践,为中国特色社会主义法治理论建设提供新思路。中国现代治理实践中已存在实验主义倾向,当前地方治理自主性不断增长,使得中国具备构建实验主义法治模式的条件。实验主义法治以实践为核心,从目的、结构和方法三个层面重新审视中国法治实践。在目的上,以框架性目标取代理论独断;结构上,以网状结构突破层级体制;方法上,强调法治评估在实验主义框架中的核心位置,并促使其从绩效考核向路径实验转型。

The research on the practice of rule of law in China has focused on three areas:target,structure and methods.However,most of the existing research is limited to a certain area.If the practice of rule of law is to be regarded as an integral and institutionalized systematic behavior,then a coherent methodological framework will be required to provide a scheme which combines theory with practice.Experimentalist governance,an emerging theory,may offer an adequate answer to this question.The theory of experimentalist governance is an alternative scheme for the traditional″command-control″ model of governance.It has four steps:(1)central departments,local authorities and external stakeholders jointly establish temporary framework goals and evaluation criteria;(2)local authorities are given broad discretion to achieve these goals in their own ways;(3)the discretion acts on the premise that local authorities must report regularly and make peer reviews on the methods they use to achieve the same goal;and(4)the goals,metrics,and decision-making procedures themselves are periodically revised in response to the results of the review process.This way of governance has three outstanding merits:(1)it is adaptable to diversity;(2)it provides a mechanism of collaborative learning from local experience;and(3)the target itself and the way to achieve it can be corrected in the next cycle.China has met the basic requirements for the experimentalist governance model.From a longitudinal perspective,China has formed a tradition of experimental governance in the process of revolution and construction.From a lateral perspective,China's local autonomy and initiative have been continuously improving.The local practice and experiment gave birth to China practical school of rule of law,for experimentation is one of its core methodologies.The school proposes that the goals,structures and methods of a practice system of rule of law should be reconstructed from the experimentalist perspective.In terms of the purpose of rule of law,dogmatic theories should be replaced by framework goals.There are three existing theories on the values of rule of law:the rights theory,the utilitarian theory and the order theory.Experimentalism opposes a unified theory and the establishment of a static objective of rule of law,but calls for the establishment of temporary and modifiable framework goals.In terms of the body structure of rule of law,the dominant structure in China is hierarchic and departmental.Experimentalism requires a network relationship between the central government and local government,i.e.,the two can compete with and learn from each other,with the central government functioning as a platform of policy transfer.In terms of the practice of rule of law,the assessment of rule of law should be regarded as the key one in the experimentalist system to evaluate regional differences in practice and to facilitate learning-oriented decision-making.The idea of experimentalist rule of law needs continuous improvement,but it will surely provide some theoretical impetus for the rule of law with Chinese characteristics.