德国宪法变迁理论的演进

Evolution of the Theory of Constitutional Change in Germany

德国宪法变迁理论发端于十九世纪末,经历了二十世纪至今的复杂演进。耶利内克将宪法变迁定义为一种宪法文本形式上没有变化但是通过事实引起的改变。黑塞将早期的德国宪法变迁理论归结于国家法实证主义的结果:法与事实的严格分离导致的不是规范性的加强,而是向事实的力的投降。伯肯弗尔德区分了通过政治事实的宪法变迁和通过宪法解释的宪法变迁,并且认为这种分类的原因在于宪法裁判制度的有无。经过黑塞和伯肯弗尔德两人的努力,早期认为政治事实的变化会直接引起宪法变迁的思想遭到摈弃,目前德国主流的做法是通过宪法解释来进行宪法变迁。宪法变迁的直接原因是宪法缺乏实效性从而贬损宪法的规范力,根本原因是由于事实的变化而引起的规范内涵的变化。然而,事实虽然可以引起规范内涵的变化,却不能证明这种新的规范内涵的正当性。规范的正当性只能通过其他规范来证立。所以,证立宪法变迁的关键是让它接受宪法核心规范的检验。

Abstract： Since its emergence at the end of the 19th Century, the theory of Constitutional change has undergone a complicated process of evolution that has been going on throughout the 20th Century and up to this day. Jellinek defines constitutional change as a kind of change caused by facts without the formal change of constitutional text. Hesse attributes early theory of constitutional change to a result of Staatsrechtspositivismus. The separation of law from fact leads not to the strengthening of normativity, but to the surrender to force in reality. B0ckenf0rde distinguishes between constitutional change by political reality and constitutional change by constitutional interpretation, and maintains that the basis of this classification is the existence or non existence of an effective constitutional adjudication. As a result of the efforts made by Hesse and BOckenfOrde, the early idea of constitutional change caused directly by po- litical reality was abandoned and the mainstream idea of constitutional change caused by consti- tutional interpretation was established in Germany. The direct cause of constitutional change is that constitutional norms are short of effectiveness and become invalid and the essential cause of constitutional change is that a change of facts leads to a change of norms. Although facts can lead to a change of the connotation of norms, it can not justify the new connotation of norms. Norms can be justified only by other norms. Therefore, the key to justifying constitutional change is to subject it to the test by the core of constitutional norms.