憲法性法律的概念辨析與觀念溯源

The Conceptual Differentiation and Theoretical Source of Constitutional Law

我國憲法理論與實踐將憲法性法律作爲僅次於憲法典的重要憲法淵源。但憲法性法律的表述具有一定的誤導性，有必要在觀念溯源的基礎上予以辨析和反思。“憲法性”作爲形容詞與“法律”作爲名詞相結合的複合結構具有悠久歷史。憲法（πολιτετα）一語的民族語言化構成其基本前提，根本法（lois fondamentales）等概念是其直接萌芽。隨著古代不成文憲法自近代以來逐漸成文化，根本法等概念基本上被成文憲法典取代。在現代成文憲法體系中，憲法性法律無論作爲對憲法典的修訂，還是在憲法典缺失時作爲替補法典的複數成文憲法文件，都具有與憲法典相同的規範效力。立法機關基於憲法典制定的實施性法律不構成憲法淵源，應以憲法附屬法或其他適當表述來統稱其類別並確保其合憲性。

The theory and practice of constitutional law take constitutional laws as its second important source. However, the expression of constitutional law itself is misleading, so it is necessary to analyze its concept on the basis of tracing its theoretical source. The compound structure of “constitutional” as an adjective and “law” as a noun has a long history. The nationalized language of “πολιτετα” constitutes its basic premise, and the concepts such as lois fondamentales are its direct germination. As the ancient unwritten constitution has gradually become written constitution since modern times, the concepts of fundamental law have basically been replaced by the written constitutional code. In modern written constitution system, constitutional laws are mainly used as revisions to the constitutional code. When the constitutional code is missing, they are used as written constitutional documents of plurality to replace the code, but they all have the same normative effect as the constitutional code. The implementing laws formulated by the legislature based on the constitutional code do not constitute the source of the constitution. They should be collectively referred to as their categories in laws affiliated to the Constitution or other appropriate expressions and ensure their constitutionality.