宪法权利规范的结构及其推理方式
徐继强宪法权利规范的结构及其推理方式
Structure of Constitutional Right Normand Its Reasoning Model
期刊名称：《法学研究》
期刊年份：
作者：徐继强
单位：上海师范大学
中文关键词：法律规则;法律原则;宪法权利推理
英文关键词：norm;principle;the reasoning of constitutional rights;balancing
中文摘要：
对宪法权利的理解、解释和落实必然遇到的一个核心问题是，宪法权利能否因其他宪法上的利益、公共政策以及与之相冲突的权利而受到限制。从规范法学的观点来看，宪法权利具有一种复杂的结构，既内含排他性层次，又内含权衡的层次。因此，宪法权利推理呈现一种衡量与不衡量结合的双阶结构。宪法权利之作为权利，是一种对公共权威作出某种行为时所依凭的理由的限制。对某些政府行为的理由，宪法权利能将其坚决排除出去，而对另一些政府行为的理由，包括为了公共利益，则需要和权利仔细加以权衡而做出取舍。这样的宪法权利规范及其推理体现的是一种理性的、民主的政治慎思机制。
英文摘要：
Since the constitutional rights clauses tend to be highly abstract and generalized, their meaning should be clearly articulated by either legislation drafting or the exercise of constitutional review so as to protect citizens’ rights. The process of articulation should not be arbitrary and should be subject to objective reasoning. The key issue is whether the constitutional rights can be restricted to accommodate other constitutional interests, public policy or other rights. There are two polarized theories concerning to this issue. One contends that constitutional rights are absolutely exclusive, while the other allows the flexibility for balancing. However, the constitutional rights tend to lay out a complicated structure with a combination of exclusiveness and flexibility, as is evident in both the text and application of the majority Constitutions in the world. Consequently, the constitutional right reasoning is a double-layer structure that includes both balancing and non-balancing features. Thus the initial rights enjoyed by the citizens are not always superior to the public policy. And the restriction of constitutional rights is not always prohibited. The core of the constitutional rights implementation lies on the legitimization of the restriction. And the legal effect of constitutional right norms can not only be judged by the internal characters of rights, but by the balancing of other elements.Given that in China the primary approach of implementing constitutional rights is through legislation, the structural characters and the reasoning process of those rights have not yet be demonstrated. But this fact relates to the fundamental problems of whether the government wants to protect constitutional rights and whether the citizens can actually enjoy those rights. International experiences tell us that the constitutional rights reasoning should accommodate democratic and rational values. The structure of constitutional right norms and its reasoning model above-mentioned are just the mechanism which can make it.
全文阅读： 点击下载
