美國(guó)憲法解釋方法論略析
發(fā)布時(shí)間：2018-07-13 18:51
【摘要】： 憲法解釋與憲法適用是如影隨形、相伴而生的。隨著人權(quán)理念的傳播及基本權(quán)利保護(hù)的擴(kuò)大,各國(guó)對(duì)憲法的適用問(wèn)題越來(lái)越關(guān)注。同時(shí),作為基礎(chǔ)問(wèn)題的憲法解釋理論也得到廣泛關(guān)注。然而,即使在解釋理論眾彩紛呈的美國(guó),也沒(méi)有一個(gè)人能說(shuō)獲得了完備的憲法解釋理論。美國(guó)200多年的司法審查實(shí)踐告訴我們,有關(guān)憲法解釋理論之爭(zhēng),重點(diǎn)在于憲法解釋方法之爭(zhēng)。解釋方法的不同會(huì)產(chǎn)生大相徑庭的結(jié)果。憲法解釋方法的選擇從本質(zhì)上看涉及到國(guó)家機(jī)構(gòu)之間的權(quán)力分配問(wèn)題,因此,探討完善的解釋方法不僅具有理論意義,同樣具備實(shí)踐意義。 我國(guó)沒(méi)有建立起像美國(guó)一樣的司法審查制度,但是這不意味著我國(guó)沒(méi)有解釋憲法的要求。借鑒和吸收國(guó)外相關(guān)理論,對(duì)于我國(guó)制度建設(shè)具有極大的促進(jìn)作用。分析美國(guó)憲法及解釋理論,能折射出我國(guó)憲法理論的優(yōu)劣及今后發(fā)展應(yīng)當(dāng)注意的問(wèn)題。對(duì)于建立我國(guó)憲法解釋制度具有啟示意義。 本文主要從四個(gè)部分展開(kāi)論述: 鑒于實(shí)踐與理論存在一些沖突的共通性,本文第一部分論述了與憲法解釋方法相關(guān)的一些基礎(chǔ)性問(wèn)題。分別討論了在“反多數(shù)”難題則責(zé)問(wèn)下,司法審查是如何被論證為正當(dāng)?shù)?現(xiàn)行的前代人制定的憲法對(duì)當(dāng)代人仍有效力是出于何種原因的;美國(guó)聯(lián)邦最高法院作為憲法解釋的主體的正當(dāng)性。這三個(gè)問(wèn)題與憲法解釋方法的選擇將會(huì)遭受的責(zé)難是有關(guān)聯(lián)的,又是相承的。這些問(wèn)題的正當(dāng)性是憲法解釋活動(dòng)進(jìn)行的前提,而憲法解釋方法的適當(dāng),解釋結(jié)果得到廣泛接受又能減少人們對(duì)這三個(gè)問(wèn)題的質(zhì)疑。 本文第二部分是對(duì)美國(guó)理論界憲法解釋方法理論的一個(gè)述評(píng)。對(duì)美國(guó)學(xué)界影響廣泛的一些解釋方法的分類進(jìn)行系統(tǒng)比較的分析,評(píng)價(jià)其利弊,并提出自己的觀點(diǎn):憲法解釋的每一個(gè)因素自身都是精妙而復(fù)雜的,而對(duì)方法進(jìn)行分門別類難以達(dá)到欲想的效果,并且很難界定清晰。且方法論不同于其他,不能以對(duì)立面的不合理性直接證明自身的合理。因此建議單個(gè)的分析影響憲法解釋結(jié)果的因素。接著本文又介紹了美國(guó)國(guó)內(nèi)的權(quán)威學(xué)者博克、惠廷頓、德沃金、Andrei Marmor著作中有關(guān)憲法解釋方法的演進(jìn)。 在第三部分中,本文首先對(duì)美國(guó)憲法解釋司法實(shí)踐中曾經(jīng)影響過(guò)判決的因素做了大致總結(jié),分別是:制憲者意圖、制憲時(shí)人民的意圖、制憲時(shí)文本的含義、文本當(dāng)下的含義、憲法的總意圖或目的、解釋者的主觀價(jià)值(主觀道德)、當(dāng)下人民的道德因素、政治因素、社會(huì)利益、判例等等,單獨(dú)分析單個(gè)因素的利弊。囿于自身的局限性,沒(méi)有哪一個(gè)因素能獨(dú)立的長(zhǎng)久的擔(dān)當(dāng)重任。但是從理論上和實(shí)踐中的經(jīng)驗(yàn)看,有一些因素在憲法解釋活動(dòng)中是不能回避的,那就是文本、解釋者的主觀價(jià)值判斷和政治因素。 憲法文本是固定的,但是適用它的事務(wù)卻是靈活多變的。憲法解釋面臨著許多難題。本文在第四部分試圖嘗試尋找憲法解釋的合理方法,提倡綜合考慮各種因素,公允的對(duì)待每種因素的利弊,重點(diǎn)在于把不可避免的因素納入考慮范圍;針對(duì)所列的不同情形,要做到具體問(wèn)題具體分析。更要求解釋者從自身上采取一種自我約束、自我克制的正確態(tài)度和意識(shí)。我國(guó)的憲法解釋環(huán)境與美國(guó)不同,目前為止,憲法解釋還缺乏實(shí)踐的土壤。但是我們可以從美國(guó)憲法解釋中檢視我國(guó)的現(xiàn)狀,在解釋主體及憲法保護(hù)的基本權(quán)利條款的解釋上借鑒美國(guó)的經(jīng)驗(yàn)。
[Abstract]:The interpretation of the Constitution and the application of the constitution are accompanied and born. With the spread of the concept of human rights and the expansion of the protection of the basic rights, countries have paid more and more attention to the application of the constitution. At the same time, the theory of constitutional interpretation, as a basic issue, has also been widely concerned. We have obtained a complete theory of constitutional interpretation. The practice of judicial review for more than 200 years in the United States has told us that the controversy about the theory of constitutional interpretation focuses on the dispute of the method of interpretation of the constitution. The different methods of interpretation will produce different results. The choice of the method of interpretation of the constitution involves in essence the question of power distribution among the institutions of the state. Therefore, it is of theoretical significance and practical significance to explore a perfect interpretation method.
China has not established the same judicial review system as the United States, but it does not mean that our country does not explain the requirements of the constitution. Learning from and absorbing foreign related theories has a great effect on the construction of our system. Analysis of the Constitution and interpretation theory of the United States can reflect the advantages and disadvantages of our constitutional theory and the future development. The problem is of enlightenment to the establishment of our constitutional interpretation system.
This article is mainly discussed from four parts.
In view of the commonality of conflict between practice and theory, the first part of this paper discusses some basic questions related to the method of constitutional interpretation, and discusses how the judicial review is justified under the question of the "anti majority" problem. The justification of the Federal Supreme Court of the United States as the subject of the interpretation of the constitution. These three issues are related to the responsibility for the choice of the constitutional interpretation method which will be related, and they are consistent. The legitimacy of these problems is the premise of the constitutional interpretation, and the proper interpretation of the Constitution and the extensive acceptance of the interpretation results. It can reduce people's doubts about the three problems.
The second part of this article is a review of the theory of the constitutional interpretation method in the American theorists. A systematic comparison is made to the classification of some explanatory methods that have been widely influenced by the American academic circles, to evaluate their advantages and disadvantages, and to put forward their own views: each of the factors in the interpretation of the constitution is exquisite and complex, and it is difficult to classify the methods. In order to achieve the desired effect, and it is difficult to define the clarity. And the methodology is different from others, and it can not be justified directly by the irrational facade. Therefore, a single analysis of the factors affecting the results of the constitutional interpretation is proposed. Then this article introduces the works of the American domestic authority scholar Bok, Whittington, Dworkin, Andrei Marmor. The evolution of the methods of interpretation of the constitution.
In the third part, this article first makes a general summary of the factors that have influenced the judgment in the judicial practice of the United States, which are: the intention of the constitution maker, the intention of the people in the constitution, the meaning of the text in the time of the constitution, the meaning of the text, the general intention or purpose of the constitution, the subjective value of the interpreter (subjective morality), the present way of the people. The advantages and disadvantages of moral, political, social, and jurisprudence are used to analyze the advantages and disadvantages of individual factors alone. Limited to their own limitations, there is no one factor that can be independent for a long time. However, from the theoretical and practical experience, some factors can not be avoided in the interpretation of the constitution, that is, the text, the interpreter's subjectivity. Value judgments and political factors.
The text of the constitution is fixed, but the application of its affairs is flexible and changeable. The interpretation of the constitution faces many difficult problems. In the fourth part, this article attempts to try to find a reasonable method for the interpretation of the constitution, to promote the comprehensive consideration of various factors and to treat the advantages and disadvantages of each factor fairly, with the emphasis on bringing the unavoidable factors into consideration; It is necessary for the interpreter to take a kind of self restraint, the correct attitude and consciousness of self restraint. Our constitutional interpretation environment is different from that of the United States. So far, the interpretation of the constitution is still lacking in practice. But we can examine our country from the American constitutional interpretation. In the interpretation of the subject and the basic rights provisions of constitutional protection, we should use the experience of the United States for reference.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D971.2;DD911
本文編號(hào)：2120412
[Abstract]:The interpretation of the Constitution and the application of the constitution are accompanied and born. With the spread of the concept of human rights and the expansion of the protection of the basic rights, countries have paid more and more attention to the application of the constitution. At the same time, the theory of constitutional interpretation, as a basic issue, has also been widely concerned. We have obtained a complete theory of constitutional interpretation. The practice of judicial review for more than 200 years in the United States has told us that the controversy about the theory of constitutional interpretation focuses on the dispute of the method of interpretation of the constitution. The different methods of interpretation will produce different results. The choice of the method of interpretation of the constitution involves in essence the question of power distribution among the institutions of the state. Therefore, it is of theoretical significance and practical significance to explore a perfect interpretation method.
China has not established the same judicial review system as the United States, but it does not mean that our country does not explain the requirements of the constitution. Learning from and absorbing foreign related theories has a great effect on the construction of our system. Analysis of the Constitution and interpretation theory of the United States can reflect the advantages and disadvantages of our constitutional theory and the future development. The problem is of enlightenment to the establishment of our constitutional interpretation system.
This article is mainly discussed from four parts.
In view of the commonality of conflict between practice and theory, the first part of this paper discusses some basic questions related to the method of constitutional interpretation, and discusses how the judicial review is justified under the question of the "anti majority" problem. The justification of the Federal Supreme Court of the United States as the subject of the interpretation of the constitution. These three issues are related to the responsibility for the choice of the constitutional interpretation method which will be related, and they are consistent. The legitimacy of these problems is the premise of the constitutional interpretation, and the proper interpretation of the Constitution and the extensive acceptance of the interpretation results. It can reduce people's doubts about the three problems.
The second part of this article is a review of the theory of the constitutional interpretation method in the American theorists. A systematic comparison is made to the classification of some explanatory methods that have been widely influenced by the American academic circles, to evaluate their advantages and disadvantages, and to put forward their own views: each of the factors in the interpretation of the constitution is exquisite and complex, and it is difficult to classify the methods. In order to achieve the desired effect, and it is difficult to define the clarity. And the methodology is different from others, and it can not be justified directly by the irrational facade. Therefore, a single analysis of the factors affecting the results of the constitutional interpretation is proposed. Then this article introduces the works of the American domestic authority scholar Bok, Whittington, Dworkin, Andrei Marmor. The evolution of the methods of interpretation of the constitution.
In the third part, this article first makes a general summary of the factors that have influenced the judgment in the judicial practice of the United States, which are: the intention of the constitution maker, the intention of the people in the constitution, the meaning of the text in the time of the constitution, the meaning of the text, the general intention or purpose of the constitution, the subjective value of the interpreter (subjective morality), the present way of the people. The advantages and disadvantages of moral, political, social, and jurisprudence are used to analyze the advantages and disadvantages of individual factors alone. Limited to their own limitations, there is no one factor that can be independent for a long time. However, from the theoretical and practical experience, some factors can not be avoided in the interpretation of the constitution, that is, the text, the interpreter's subjectivity. Value judgments and political factors.
The text of the constitution is fixed, but the application of its affairs is flexible and changeable. The interpretation of the constitution faces many difficult problems. In the fourth part, this article attempts to try to find a reasonable method for the interpretation of the constitution, to promote the comprehensive consideration of various factors and to treat the advantages and disadvantages of each factor fairly, with the emphasis on bringing the unavoidable factors into consideration; It is necessary for the interpreter to take a kind of self restraint, the correct attitude and consciousness of self restraint. Our constitutional interpretation environment is different from that of the United States. So far, the interpretation of the constitution is still lacking in practice. But we can examine our country from the American constitutional interpretation. In the interpretation of the subject and the basic rights provisions of constitutional protection, we should use the experience of the United States for reference.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2009
【分類號(hào)】：D971.2;DD911
【引證文獻(xiàn)】
相關(guān)博士學(xué)位論文 前1條
1 崔雪麗;美國(guó)憲法解釋研究[D];山東大學(xué);2011年
，本文編號(hào)：2120412
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