| 英文摘要 |
In the process of reform and opening up, some reform measures existed at that time belong to the "unconstitutional", which was called "benign unconstitutional" by the academic circle. Over the years, different viewpoints have been put forward to explain this phenomenon in order to justify the reform, but so far this puzzle has not been solved. The theory of dualist democracy proposed by Bruce Ackerman, an American constitutional scholar, can provide new theoretical resources for the resolution of the dilemma of "benign unconstitutional". In the context of the duality of daily politics and constitutional moment, constitutional moment indicates that the country is at a constitutional moment in need of major transformation, and "unconstitutional" unconventional actions are often the necessary conditions to realize social reform. In this stage, the people came out and deeply interacted with the politicians and finally approved the whole reform. The will of the people solved the legitimacy problem of unconventional transformation. The formation process of the 1982 Constitution of China and the economic system reform from the late 1970s to the early 21st century can be regarded as two constitutional moments in the history of our constitution, and those "unconstitutional" unconventional measures should be understood in this context. The unconventionality is the inevitable logic of the major constitutional transformation, and the mobilization of the people during this period gives the unconventional reform measures a legitimacy. |
