论宪法权利的构造

The Constructions of Constitutional Rights

宪法权利的构造方式有两种,一种是规则构造,一种是原则构造。规则是明确命令,它的应用形式是涵摄,而原则是最优化命令,权衡是它独有的运用方式。原则构造迄今引发了诸多反对意见,最为重要的是对权衡的理性的质疑。本文是对权衡理性的辩护。通过发现和证立隐藏在德国宪法诉讼中合比例审查背后的衡量公式,文章尝试证明权衡是理性的,原则理论就此有能力成为宪法权利的基础学说。

There are two different constructions of constitutional rights,the rule construction and the principle construction.Rules are definitive commands and their form of application is subsumption.By contrast,principles are optimization requirements,which choose balancing as their specific form of the application.Till now,a good many objections to the principle construction as well as balancing have been raised.Among them the argumentation-theoretic objections throwing doubt upon the rationality of balancing play a crucial role.In this Article the rationality of balancing will be defended.By discovering und justifying the weight formula behind a proportionality test it would be proved that balancing is rational,and the principles theory,accordingly,is capable of serving as a doctrine of constitutional rights.