论《英宪精义》的宪政观

发布时间：2018-03-26 00:04

本文选题：戴雪　切入点：自由主义宪政　出处：《重庆大学》2010年硕士论文

【摘要】： 戴雪是十九世纪英国著名的宪法学家,以对英国宪法的开创性研究而著称。在《英宪精义》中,戴雪揭示了英宪的三条基本原则,即巴力门主权,法律主治以及宪法与宪典的联络,使得原本内容庞杂、混乱的英国宪法显得轮廓清晰,条理有序。具体来说,戴雪的宪政思想可以细化为宪法观、议会观、法治观。首先,戴雪将宪法定义为关于国家主权行使的规则,不仅包括宪法性法律,还包括宪法典则。宪法学者应当是宪法真相的阐释者,其研究的主题是宪法性法律以及宪典依赖宪法性法律生效的机制。其次,戴雪的议会观也是比较特殊的,英国的巴力门由众民院、贵族院和君主三个部分组成,巴力门主权必须三者联合行使。当然,这种主权在事实上受到内部外部多重因素制约的。最后,法治观是戴雪理论的重心所在,戴雪是第一位对法治理论作系统阐述的学者,他所给出的法治的三层旨意分别是:武断权力的不存在;普通法律与普通法院居于优势;宪法通则形成于普通法院的判决。戴雪对英国宪法所作的自由主义阐述是对当时英国社会问题的一个回应,一度反响热烈。然而到了二十世纪,集体主义盛行,自由主义日渐式微,戴雪的宪政思想也受到了批判。工党理论家詹宁斯直指戴雪的理论已经过时了。诚然,戴雪的理论是有缺陷,但是这并不妨碍对戴雪理论中某些核心价值的继承与发扬。此外,戴雪采取的分析性的研究方法也是有借鉴意义的。总的来说,戴雪的理论在今天并没有过时,我们进行法治建设,仍然需要回到戴雪那里,去寻找资源,获得灵感以及智慧。
[Abstract]:Dai Xue is a famous British constitutional scholar in the 19th century and is famous for his pioneering research on the British Constitution. In "the essence of the British Constitution", she reveals three basic principles of the British Constitution, namely, the sovereignty of the British Constitution. The main rule of law and the connection between the constitution and the constitution make the original British constitution clear and orderly. To be specific, Dai Xue's constitutional thought can be divided into constitutional view, parliamentary view, and rule of law view. First of all, He defined the constitution as the rule governing the exercise of state sovereignty, including not only constitutional law, but also the constitutional code. Constitutional scholars should be the interpreters of the truth of the constitution. The theme of his study is the constitutional law and the mechanism by which the constitutional law depends on the enforcement of the constitutional law. Secondly, Dai's view of Parliament is also quite special. The Paleon in Britain is composed of three parts: the House of the people, the House of Lords and the monarch. Of course, this kind of sovereignty is actually restricted by many internal and external factors. Finally, the view of the rule of law is the focus of Dai's theory, which is the first scholar to systematically elaborate on the theory of the rule of law. The three levels of the will of the rule of law given by him are: the non-existence of arbitrary power, the superiority of common law and ordinary courts; The general principles of the constitution were formed in the decisions of ordinary courts. Dai's liberal exposition of the British Constitution was a response to the social problems of the United Kingdom, which was once enthusiastic. However, collectivism prevailed in the twentieth century. Liberalism was declining, and Dasher's constitutional ideas were being criticized. Labour theorist Jennings pointed out that his theory was out of date. Indeed, Daisy's theory was flawed. However, this does not hinder the inheritance and development of some of the core values in Dai's theory. In addition, the analytical research methods adopted by Dai Xue are also instructive. In general, the theory is not out of date today. We still need to go back to Daisy to build the rule of law, to find the resources, the inspiration and the wisdom.
【学位授予单位】：重庆大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：DD911;D956

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