中国宪法学体系的构建当取决于宪法学自身基本范畴的构建，基本范畴是评价一个学科是否成熟、完善的主要标志。本书把当代中国宪法学基本范畴概括为八组十六个范畴，即民主与共和、宪法与法治、基本权利（人权）与**权力、宪法职权与宪法责任、宪法规范与宪法效力、宪法救济与宪法诉讼、宪法概念与宪法解释、宪法监督与宪法审查。它们大致勾勒出了中国宪法学的基本框架，整个基本范畴体系构成个内部相通、外部协调的有机联系的整体。各个范畴之间具有逻辑同一性基础，既有独立的价值，又体现其在体系中的不孤立与相容性。每个范畴发挥作用，都依赖于其他范畴提供支持。八对范畴依顺序展现的是宪法运行的全过程，共同致力于宪政理想的实现。这十六个基本范畴之间的运作是一个有机联系的整体，互为表里，相得益彰，保障公民基本权利、限制**权力的宪法规范是裁决宪法纠纷的依据，但是只有经过有效适当的解释宪法各个概念之后，才能在宪法诉讼中充分完成宪法救济，追究违宪者的宪法责任，实施宪法监督，开展宪法审查，体现宪法根本大法的*高法效力，完成民主与共和的宪政理想，宪法之治意义上的法治方才实现。

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**章 民主与共和····························································9
**节 民主·································································9
什么是民主？························································9
定义“民主”不容易···············································9
民主的起源·····················································10
罗马共和制·····················································13
宪政自由民主···················································14
代议制民主·····················································16
现代民主及其发展···············································18
现代民主的含义·····················································19
民主的实现形式·····················································27
直接民主·······················································27
间接民主（代议制民主）·········································28
民主集中制·························································29 "目录 **章 民主与共和····························································9 **节 民主·································································9 什么是民主？························································9 定义“民主”不容易···············································9 民主的起源·····················································10 罗马共和制·····················································13 宪政自由民主···················································14 代议制民主·····················································16 现代民主及其发展···············································18 现代民主的含义·····················································19 民主的实现形式·····················································27 直接民主·······················································27 间接民主（代议制民主）·········································28 民主集中制·························································29 实行民主集中制的必然性·········································29 民主集中制的概念与实质·········································31 民主与民主集中制的关系·········································36 “民主集中制原则”宪法文本解读·································38 第二节 共和································································46 一、“共和”的起源·······················································46 二、古典民主共和与现代自由共和··········································50 三、民主与共和之精神比较················································52 第二章 宪法与法治····························································54 **节 宪法································································54 宪法的起源与演进···················································54 （一）西方宪法之起源与演化···········································54 （二）中国宪法之起源与演进···········································54 二、根本法与作为根本法的中国宪法········································59 三、**法与作为**法的中国宪法·········································62 四、宪法是什么？·························································67 第二节 法治································································72 一、法治的概念··························································72 二、法治与宪政···························································73 三、中国法治模式························································75 （一）“共产党领导下的依法治国”法治模式·······························75 （二）依法治国与法治·················································78 （三）共产党领导与权力制约···········································82 （四）法治模式比较···················································84 （五）当代中国法治模式的标志·········································84 四、中国法治发展反思····················································89 （一）发展、稳定与效能权威政府·······································90 （二）公共善、党性善与法治···········································92 （三）民主权利的孱弱与法治基础·······································94 （四）“司法不断改革论”与司法独立······································96 （五）名义宪法、保障宪法与宪政·······································100 （六）诚信、政府公信力与法治的道德···································102 第三章 基本权利（人权）与**权力··········································105 **节 基本权利（人权）····················································105 一、人权的性质·························································105 （一）人权的分歧·····················································105 （二）人权的本质·····················································106 二、基本人权：人权发展的宪法形态········································109 三、基本权利的竞合与冲突···············································116 （一）基本权利的竞合问题·············································117 （二）基本权利的竞合问题·············································118 第二节 **权力···························································120 宪法逻辑中的**权力··············································120 二、**权力的基本性质················································121 三、**权力的人权保障义务············································124 （一）立法权与立法机关··············································125 （二）行政权与行政执法机关··········································125 （三）司法权与司法机关··············································127 第四章 宪法职权与宪法责任··················································130 **节 宪法职权···························································130 一、宪法职权概说·······················································130 二、立法权·····························································130 （一）立法权的内容···················································130 （二）立法权的组织与运行·············································132 三、行政权·····························································134 （一）行政权的内容···················································134 （二）行政权的组织与运行·············································134 四、司法权·····························································136 （一）司法权的内容···················································136 （二）司法权的组织与运行·············································137 五、三种宪法职权之间的关系·············································142 （一）三权均衡·······················································142 （二）立法权优越·····················································143 （三）行政权优越·····················································144 六、我国现行宪法规定的宪法职权及其相互关系·····························147 （一）我国现行宪法规定的宪法职权·····································147 （二）宪法职权之间的关系·············································149 第二节 宪法责任···························································150 一、宪法责任的概念·····················································150 （一）宪法责任的主体是什么···········································151 （二）宪法“责任”是什么·············································152 （三）承担宪法责任的理由是什么·······································152 二、宪法责任的性质·····················································152 （一）“政治责任”说··················································152 （二）“政治责任与法律责任”说········································152 （三）“政治责任、法律责任与道德责任”说······························154 三、宪法责任的特征····················································154 四、宪法责任的形式····················································156 第五章 宪法规范与宪法效力··················································157 **节 宪法规范···························································157 一、宪法规范的性质界定·················································157 二、宪法规范的价值定位·················································159 三、宪法规范的基本内容·················································163 （一）宪法规范中**权力与基本人权关系·······························163 （二）宪法规范中基本权利与基本义务关系·······························164 （三）宪法规范中**权力之间的关系···································165 第二节 宪法效力···························································166 一、宪法效力的基本分类·················································166 二、宪法规范的效力形态·················································167 三、宪法规范的私法效力·················································168 （一）宪法规范能否进入私法领域？·····································168 （二）基本权利的私法效力·············································172 第六章 宪法救济与宪法诉讼··················································176 **节 宪法救济···························································176 一、宪法救济的概念辨析·················································176 二、宪法救济的原则·····················································177 （一）案件性原则·····················································177 （二）穷尽法律救济原则···············································177 （三）时效性原则·····················································177 （四）适用救济程序原则···············································178 三、与宪法救济相关的制度类型···········································178 （一）司法审查·······················································178 （二）违宪审查·······················································178 （三）宪法监督·······················································191 （四）宪法保障·······················································192 四、我国的宪法救济制度及其完善·········································193 （一）我国已有的宪法救济制度的框架及主要缺陷·························193 （二）完善我国宪法救济制度的路径·····································194 第二节 宪法诉讼·························································200 一、宪法诉讼的概念辨析·················································200 （一）行政诉讼的含义·················································200 （二）宪法诉讼与其它诉讼制度·········································201 （三）宪法诉讼与司法审查·············································201 （四）宪法诉讼与违宪审查·············································201 二、宪法诉讼的起源与发展···············································201 （一）宪法诉讼制度的起源及其在美国的确立·····························202 （二）普通法院型宪法诉讼模式·········································207 （三）宪法法院型宪法诉讼模式·········································213 （四）提起宪法诉愿的期间和方式·······································216 （五）宪法诉愿的受理和裁判···········································216 三、宪法诉讼的原则·····················································217 （一）政治问题和法律争讼以外的事项不予审查的原则·····················217 （二）诉讼身份限制原则···············································218 （三）合宪性推定原则·················································219 （四）宪法判断回避原则···············································219 （五）穷尽法律救济原则···············································220 四、宪法诉讼的裁判效力·················································220 第七章 宪法概念与宪法解释··················································221 **节 宪法概念···························································221 一、何谓宪法概念？·····················································221 二、宪法概念的特征·····················································223 第二节 宪法解释···························································225 一、宪法解释概念·······················································225 二、宪法解释的主体·····················································227 三、宪法解释的客体·····················································232 四、宪法解释程序·······················································233 （一）立法机关解释宪法的程序·········································233 （二）普通法院解释宪法的程序·········································234 （三）特殊机关解释宪法的程序·········································234 五、解释宪法的原则·····················································235 （一）解释宪法必须遵循人民主权原则···································235 （二）解释宪法必须遵循法治原则·······································236 （三）解释宪法必须遵循尊重和保障人权原则·····························238 （四）解释宪法必须遵循法治原则·······································239 六、全国人大常委会解释宪法程序设想·····································239 七、宪法解释方法·······················································241 （一）文义解释······················································241 （二）原旨解释或历史解释·············································241 （三）目的解释·······················································242 八、宪法解释与宪法修改·················································244 九、关于宪法方法论之争·················································246 （一）宪法方法论之争的由来··········································246 （二）宪法方法论之争的实质··········································251 （三）如何看待当下中国宪法方法论之争？······························256 宪法监督与宪法审查·················································259 **节 宪法监督···························································259 一、何谓宪法监督？·····················································259 二、宪法监督程序之设定·················································260 三、宪法监督程序之审思·················································263 （一）程序设定的监督主体·············································263 （二）程序设定的场景与程序提起主体···································265 （三）程序监督的客体·················································266 （四）程序设定的合理性···············································267 四、宪法监督程序之变造·················································268 第二节 宪法审查···························································271 一、司法审查···························································271 二、中国宪法审查·······················································274 （一）中国宪法审查制度···············································274 （二）法律：是否是违宪审查的对象·····································277 （三）“不适当”一词的宪法解释········································280 （四）中国宪法审查制之完善···········································281 后记·······································································283 "