宪法判断的正当化功能

Legitimating Function of Constitutional Decision

对特定国家行为的合宪性作出具有法律效力的宪法判断,有助于实现基本权利的保障和法律体系的统一。除此之外,对国家行为的正当化也是宪法判断所能实现的一个重要功能。宪法是法律体系的正当性基础,通过对法律规范作出合宪判断,可以直接强化其宪法上的正当性,而即便是违宪判断,通过法律技术的运用和处理,也可以实现对特定法律规范或国家行为的正当化功能。

There are different models of constitutional review all over the world, but the two main typical tasks of the institution of constitutional review are as follows. One is to protect the individuals basic human rights granted in the constitution from the infringement by the governmental organ. The other is to safeguard the constitutionality and unification of the legal system. In addition, to justify certain state action is also one of the most important by--products of constitutional review. According to the fundamental principle of constitutionalism, state action is justifiable only when it is done in accordance with the constitution. The constitutional decision may enhance the legitimacy of governmental actions, and further more it is a basic factor according to the principle of rule of law. In this regard, Charles L. Black argued that the legitimating function of the judicial review of constitutionality is of immense --perhaps vital-- importance to the nation and the government of limited powers. In fact, the decisions in the majority of the constitutional cases were approved. From the perspective of comparative law, even the unconstitutional decision can provide legitimate foundation for some other state actions. As the case in the U.S. has shown, the unconstitutional decision is easily available for use as a seal of legitimacy for countless other controversial political acts. When it comes to the function of constitutional decision, most of the constitutional scholars attach great importance to the function of check and balance. In this aspect, the theory of legitimating function provides a new perspective. Given the special political and social context in China, research on the legitimating function of constitutional decision is an urgent task for constitutional theory and constitutional jurisprudence.