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政权合法性判断实际上分为两个层面:社会对主权的合法性认同,以及此后对所构建的政权进行合法性的检验。基于第二个层面,经过民主授权的政权还要受到法治原则的控制,背后隐含的是作为主权者的人民对运行中的政权进行合法性追问。但是,当法治规范受到权力的控制,合法性判断就会在形式法治的过程中分解,实质民主意志就会因为权力对法治话语的控制而被“僭越”。要解决政权运行过程中,对合法性的延伸判断问题,就要完善交往程序,整合多元利益诉求,克服权力的压制模式,实现真实妥协。
The judgments on the legitimacy of the regime are actually divided into two levels: the social recognition of the legitimacy of the sovereignty and the subsequent verification of the legitimacy of the regime it has constructed. Based on the second level, the democratically empowered political power is also subject to the rule of law. What lies behind this is the people who are the sovereign who question the legitimacy of the running power. However, when the rule of law is controlled by power, the judgment of legitimacy will be broken down in the process of formalizing the rule of law and the real will of democracy will be “overstepped” by the control of power over the discourse of law. In order to solve the issue of judging the extension of the legitimacy during the operation of the regime, it is necessary to improve the procedures of exchanges, integrate the demands of multiple interests, and overcome the repressive mode of power so as to achieve a real compromise.