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就当今时局和“依宪治国”“法治国家”话语而言,中国的政治宪法问题进入到一个新阶段。中国政治宪法学要有所回应,就要先厘清政治宪法学阵营内部的主题逻辑。政治宪法理论有两种,立宪主义的政治宪法理论和非立宪主义的政治宪法理论,前者又称为政治立宪主义。政治立宪主义以英国的立宪历程及其宪法学为学理的渊源主流,兼采美、法、德、日等各国的自由立宪学说;非立宪主义的政治宪法理论在法国大革命时期、德国和日本二战战败以前一度都很有市场,其代表就是施密特的政治宪法理论和当今中国推动宪法学“价值中立”的宪法社会学。政治宪法学与规范宪法学和宪法解释学之间的论争本来是宪法学方法论之争,但却在中国的特殊国情下跟立宪主义的价值之争扭结在一起,造成很多误解。在解开中国宪法学的价值观与方法论之争的交错叠合之后,中国政治宪法学就名正言顺地归宗到政治立宪主义,研究古今之变之后的现代中国从“生存的法则”到“自由的法则”的演进路径。
With regard to today’s current situation and the phrase “governing the country under the rule of law” and “state by law”, the issue of China’s political constitution has entered a new phase. To respond to the Chinese political constitutional law, we must first clarify the thematic logic within the political constitutional science camp. There are two kinds of political constitutional theories, constitutionalist political constitutional theory and non-constitutional political constitutional theory, the former is also called political constitutionalism. Political constitutionalism takes Britain’s constitutional history and its constitutional law as the mainstream of its academic theory and adopts the theory of constitutional freedom and constitutionalism in various countries such as the United States, France, Germany and Japan. The non-constitutional political constitutional theory was also used in World War II during the French Revolution Before the defeat, there was a great market. Its representatives were the political constitutional theory of Schmidt and the constitutional sociology of “value neutrality” in China today. The controversy between constitutional law and constitutional hermeneutics in political constitutionalism was originally a controversy in the methodology of constitutional law, but it was twisted with the value struggle of constitutionalism under the special circumstances of China and caused many misunderstandings. After unraveling the controversy over the conceptions of value and methodology in China’s constitutional law, China’s political constitutional law justified its return to political constitutionalism. After studying the changes of the ancient and modern China, the modern China changed from “law of survival” to “ ”The law of freedom" evolution path.