比例原则可否升格为一项宪法原则

Can the Principle of Proportionality Be Upgraded to a Constitutional Principle

伴随比例原则的研究热潮以及跨部门法的发展态势,越来越多的国内、外学者主张,将比例原则从公认的行政法原则升格为一项宪法原则,并从规范主义和功能主义两种进路展开论证.作为国家根本法的宪法,其原则不仅需要符合法律原则之法律性、抽象性以及融贯性等形式要件,更应当满足现代法治之最高性、普遍性以及稳定性等实体要求.以此为标准,既有的规范主义论证进路和功能主义论证进路皆存在一定瑕疵,或存在牵强附会之嫌,或难以实现逻辑自洽.比例原则只是法治、人权保障等价值理念的下位概念,是实现这些价值理念的一个重要"工具",其作为一项宪法原则并不适格.强行将比例原则升格为一项宪法原则,不仅是对比例原则内涵的误解以及价值功能的过度"拉升",而且还会带来一些潜在危害,导致比例原则日益泛化,渐失其具体形貌和特色.

With the upsurge of research on the principle of proportionality and the development trend of inter-departmental law,more and more scholars at home and abroad begin to advocate upgrading the principle of proportionality from a recognized principle of administrative law to a constitutional principle,and it is demonstrated from the two approaches of regularism and functionalism.As the fundamental law of the country,the principles of the Constitution should not only conform to the formal elements of legal principles,such as legality,abstraction and coherence,but also meet the substantive requirements of the supremacy,universality and stability of the modern rule of law.Taking this as the standard,both the existing normative argumentation approach and the functionalist argumentation approach have some defects,or are suspected of being far-fetched,or it is difficult to achieve logical self-consistency.The principle of proportionality is only a subordinate concept of values such as the rule of law and the protection of human rights,and it is an important"tool"to realize these values.The principle of proportionality is not suitable as a constitutional principle.Forcibly upgrading the principle of proportionality to a constitutional principle is not only a misunderstanding of the connotation of the principle of proportionality and an excessive"pull up"of the value function,but also brings some potential harm,which leads to the increasing generalization of the principle of proportionality and the gradual loss of its specific appearance and characteristics.