[内容摘要] 与具有天生优越性的权利不同，权力却因其公益性常常受到质疑，国家权力由此需要在正当性、合法性层面得到严密论证，才能成为合法的权威而使人们信服。社会契约论作为宪政民主的理论基石，虚拟和抽象地构建了合法权力的渊源、功能及其范围。其与立宪主义、法律实证主义的结合，极大地推动了世界范围内的宪政进程。近代中国宪政运动的发轫有着自身特殊的背景，它更多的受动于制度决定论、立宪强国等民族主义思潮，因而在权力合法性论证上存在诸多缺陷。现代中国宪政运动欲向纵深发展，尚需在蕴涵着丰富的宪政与民主因子的社会契约论中吸取思想养料，从形式合法性和实质合法性两个方面对国家权力进行考量。
[关键词] 国家权力 合法性 社会契约论 宪政运动
Abstract: Differing from the natural superiority of rights, the state power is often doubted for its commonweal attributes. For this reason, only the state power get the sufficient justification both of its legitimacy and legality, can it become a wildly recognized authority. As the foundation of democratic constitutionalism, the social contract theory has suppositionally and abstractly construed the resource, the function and the province of legitimate power. Its union with constitutionalism and legal positivism has facilitated the worldwide constitutionalization. The constitutionalism movement in modern China has its own specific background. It was deeply affected by nationalism thoughts such as institutionalism and strengthening the state by constitutionalism. Accordingly, it left much defects in the justification of the state power’s legitimacy. In the contemporary era, if the constitutionalism movement wants to get more achievements, it should make advantages from social contract theory which containing many constitutional and democratic elements, and provide the state power with an all-around justification of formal legality and substantive legitimacy.