混合宪制与三权分立:现代民主的君主制与贵族制特征

立法、行政与司法三权分立理论目前仍是现代代议制民主的基础。它由孟德斯鸠创立,取代了早先的混合宪制理论。后者可以追溯至柏拉图、亚里士多德和波利比乌斯,其核心主张是,世界上存在三种宪制:君主制、寡头制和民主制,而当来自三种宪制的各种制度混合在一起时,制度之间就会相互作用,影响国家的立法、执法与司法等全部职能。文章认为,今天,孟德斯鸠的三权分立说存在太多例外,已经漏洞百出,成为理解现代民主结构的障碍而非助力。因此,有必要恢复混合宪制,从而纠正"西方国家就是纯粹的民主制"和"民主就是由人民统治"这两个流行的观念。

The Mixed Constitution versus the Separation of Powers: Monarchical and Aristocratic Aspects of Modern Democracy

The theory of the separation of powers between a legislature, an executive and a judiciary is still the foundation of modern representative democracy. It was developed by Montesquieu and came to replace the older theory of the mixed constitution which goes back to Plato, Aristotle and Polybios. The core of this theory is that there are three types of constitution: monarchy, oligarchy and democracy, and when institutions from each of the three types are mixed, an interplay between the institutions emerges that affects all functions of state: legislation, implementation of laws and jurisdiction. Today, Montesquieu’s separation of powers is riddled with so many exceptions that it is an obstacle rather than an aid to understanding the structure of modern democracy. The mixed constitution deserves to be revived as a corrective to the prevailing view that Western states are pure democracies and that democracy is rule by the people.