“文化国”的秩序理念和体系——以国家目标条款带动的整合视角

Idea and System of Cultural Constitution——A Integral Exploration Paved by the Determining State Goals

作为第三种结构的国家目标条款是具有法律效力的宪法实质规范,其本质是通过宪法表现出整体法社会的价值决定。它既拘束立法者又保留了其广泛的形成空间,而在司法审查的介入上则应该相应的选择弱违宪审查的模式。在文化宪法的规范框架内,借由与国家作为义务有关的国家目标条款的介入,而尝试把其与国家机构规范以及基本权利规范一并做一个体系化思考。整合了国家目标条款的文化宪法超越了狭义的文化宪法权利,使文化主题成为一个更全面、更深入的宪法学说的对象。

To discuss the state goals of ＂cultural state＂ facing the future within the framework of the constitutional norms, we intend to integrate terms of the state goals as national obligation to act, and the norms of basic rights as national obligation of omission, as a whole thought. The terms of state goals, as the primary norm of national task, is a legally valid constitutional norm. Their nature is the value determination of the entire law society through Constitution. They restrict the legislators as well as retain wide space for their formation. Correspondingly, weak mode of constitutional review was chosen in the intervention of judicial review. The objective legal character of the terms of state goals of culture goes beyond constitutional rights of culture in the narrow sense, which makes the theme of culture into a more comprehensive and in-depth object of constitutional doctrine.