美国宪法解释方法论略析
发布时间：2018-07-13 18:51
【摘要】： 宪法解释与宪法适用是如影随形、相伴而生的。随着人权理念的传播及基本权利保护的扩大,各国对宪法的适用问题越来越关注。同时,作为基础问题的宪法解释理论也得到广泛关注。然而,即使在解释理论众彩纷呈的美国,也没有一个人能说获得了完备的宪法解释理论。美国200多年的司法审查实践告诉我们,有关宪法解释理论之争,重点在于宪法解释方法之争。解释方法的不同会产生大相径庭的结果。宪法解释方法的选择从本质上看涉及到国家机构之间的权力分配问题,因此,探讨完善的解释方法不仅具有理论意义,同样具备实践意义。 我国没有建立起像美国一样的司法审查制度,但是这不意味着我国没有解释宪法的要求。借鉴和吸收国外相关理论,对于我国制度建设具有极大的促进作用。分析美国宪法及解释理论,能折射出我国宪法理论的优劣及今后发展应当注意的问题。对于建立我国宪法解释制度具有启示意义。 本文主要从四个部分展开论述: 鉴于实践与理论存在一些冲突的共通性,本文第一部分论述了与宪法解释方法相关的一些基础性问题。分别讨论了在“反多数”难题则责问下,司法审查是如何被论证为正当的;现行的前代人制定的宪法对当代人仍有效力是出于何种原因的;美国联邦最高法院作为宪法解释的主体的正当性。这三个问题与宪法解释方法的选择将会遭受的责难是有关联的,又是相承的。这些问题的正当性是宪法解释活动进行的前提,而宪法解释方法的适当,解释结果得到广泛接受又能减少人们对这三个问题的质疑。 本文第二部分是对美国理论界宪法解释方法理论的一个述评。对美国学界影响广泛的一些解释方法的分类进行系统比较的分析,评价其利弊,并提出自己的观点:宪法解释的每一个因素自身都是精妙而复杂的,而对方法进行分门别类难以达到欲想的效果,并且很难界定清晰。且方法论不同于其他,不能以对立面的不合理性直接证明自身的合理。因此建议单个的分析影响宪法解释结果的因素。接着本文又介绍了美国国内的权威学者博克、惠廷顿、德沃金、Andrei Marmor著作中有关宪法解释方法的演进。 在第三部分中,本文首先对美国宪法解释司法实践中曾经影响过判决的因素做了大致总结,分别是:制宪者意图、制宪时人民的意图、制宪时文本的含义、文本当下的含义、宪法的总意图或目的、解释者的主观价值(主观道德)、当下人民的道德因素、政治因素、社会利益、判例等等,单独分析单个因素的利弊。囿于自身的局限性,没有哪一个因素能独立的长久的担当重任。但是从理论上和实践中的经验看,有一些因素在宪法解释活动中是不能回避的,那就是文本、解释者的主观价值判断和政治因素。 宪法文本是固定的,但是适用它的事务却是灵活多变的。宪法解释面临着许多难题。本文在第四部分试图尝试寻找宪法解释的合理方法,提倡综合考虑各种因素,公允的对待每种因素的利弊,重点在于把不可避免的因素纳入考虑范围;针对所列的不同情形,要做到具体问题具体分析。更要求解释者从自身上采取一种自我约束、自我克制的正确态度和意识。我国的宪法解释环境与美国不同,目前为止,宪法解释还缺乏实践的土壤。但是我们可以从美国宪法解释中检视我国的现状,在解释主体及宪法保护的基本权利条款的解释上借鉴美国的经验。
[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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D971.2;DD911
本文编号：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.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D971.2;DD911
【引证文献】
相关博士学位论文 前1条
1 崔雪丽;美国宪法解释研究[D];山东大学;2011年
，本文编号：2120412
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