中国劳动法学的宪法观:成形、嬗变与展望

The Understanding of the Constitution by China's Labor Law Academia:Formation,Evolution and the Future

自现行宪法出台以来,我国劳动法学界形成了难以自洽的宪法观:一方面强调劳动法作为宪法实施法的地位,用宪法论证劳动法作为法律部门的独立性,支持其改革劳动法治的主张;另一方面并未将宪法当作法律规范加以准确解释,而是在基本原则和具体制度层面都反复偏出宪法原意,且这种偏出缺乏正当性。这种宪法观无法让劳动法真正融入以宪法为核心的法律秩序,应当引入部门宪法的理念加以改造。为此,既要积极将劳动法问题上升到宪法层面思考,又要采取温和的原旨主义解释立场,注重运用历史和体系的解释方法,准确衡量各种解释素材的权威性。

China’ s labor law academia has developed a self-contradicted understanding of the Chinese Constitution since its enactment in 1982. Labor law scholars emphasized labor law’s function to implement the Constitution, justified labor law’ s independence as a department of law with the Constitution, and proposed labor law reforms based on the Constitution. Nevertheless, they have not interpreted the Constitution correctly as legal norms. Rather, they deviated from the original meaning of the Constitution repeatedly on the levels of general principles and concreted institutions of labor law. Such an understanding of the Constitution cannot merge labor law into the legal order concentrated around the Constitution. It shall be reformed by introducing the vision of departmental constitutionalism. To do that, labor law questions shall be robustly elevated to constitutional level for answers;historical and systematic methods of constitutional interpretation shall be deployed, and the authoritativeness of verified sources of interpretation shall be weighed properly.