國家治理、憲法規範與政治事實

憲法與政治的關係為國家治理現代化的重要命題。自戴高樂領導成立法蘭西第五共和國以來，共和國總統位於法國國家機構的核心。憲法第５條將總統定位為監督者、仲裁者及捍衛者，總統所享有的各項權力呈現多層次構造：常態政治下作為國家機構爭議的調解者消極運行，在國家機構爭議中或緊急狀態下成為權力運行的主體。然而政治事實卻影響甚至顛覆憲法規範的字面含義，造成了總統職權行使的失序：從監督憲法實施轉變為隱性的制憲權，從機構糾紛仲裁權轉化為行政決策權。為此，法國政界與學界均嘗試通過改革形塑權責對稱的總統權。但如何實現這一目標存在改革路徑上的分歧：在確認仲裁型總統身份與強化議會對總統的制衡之間徘徊。在此過程中，憲法規範內在的變遷與政治事實的規範力形成緊張關係。政治事實並非“必要的惡”，對規範與事實相互影響過程進行研究亦可正當化憲法學多元研究方法。

The relationship between the Constitution and politics is an important issue for the modernization of French state governance. Since the establishment, of the French Fifth Republic under Charles de Gaulle, the President of the Republic has been at the heart, of the French state apparatus. Article 5 of the French Constitution positions the president as a supervisor, arbiter, and defender of the powers he enjoys in a multi-layered structure: a passive operator under normal politics, a mediator of disputes in state institutions, and a subject of power in a state of emergency. However, political facts affect and even subvert the literal meaning of constitutional norms, resulting in a disorderly exercise of power. The presidential power has been transformed from the supervision of the implementation of the French Constitution to the implicit constitutional power» and from the power to arbitrate institutional disputes to the power to make executive decisions. In this regard, both political and academic circles have attempted to reform the presidential power to create a symmetrical power and responsibility. However, there is a divergence of views on how to achieve this goal, especially on whether to confirm the identity of the arbiter president, how to clarify the powers and responsibilities of the president and the prime minister, and whether to strengthen parliamentary checks and balances on the president, and establish a system of presidential responsibilities. In this process, there is a tension between the inherent change of constitutional norms and the normative force of political facts. Political facts are not a “necessary evil” and the study of the process of interaction between norms and facts also sheds light on the methodology of our constitutional studies.