宪法对于立法的功能是什么——激励与约束功能的平衡

What is the Role of the Constitution in Legislation?——The Balance between Stimulation and Restriction

立法为创新型国家构建制度基础,国家、社会和个人的创新能力受到宪法的制约。宪法的授权和限权规则的结合形成了宪法对于立法的核心功能:激励和约束并存,共同作用于立法过程。激励与约束之间需要微妙的平衡,激励过度导致立法泛滥,人民无所适从;约束过度则导致立法创新被抑制,符合知识社会发展的新规则难以产生。进入21世纪后,我国宪法对于立法的约束逐步强化,对于立法的激励则偏弱,导致了激励与约束的失衡。为了应对知识社会的发展,宪法应该适当发展对立法的激励机制,通过对宪法激励条款的扩张解释、建构审慎约束立法的合宪性审查制度、发展地方立法特色竞争的机制、细化立法协商技术,以宪法推动立法对社会发展引领功能的发挥。

The legislation provides institutional foundations for an innovation-oriented country,and the innovative capability of a country,society and individuals is restricted by the Constitution.The combination of authorization rules and restrictive rules in the Constitution forms the core functions of the Constitution in the legislation:the coexistence of the stimulation and restriction being jointly applied to the legislative process.The subtle balance between stimulation and restriction is needed.Over-stimulation leads to over-legislation and the people being at a loss as to what to do,while over-restriction leads to the restraint of legislative innovation and the difficulty of producing new rules conforming to the development of knowledge society.After entering the 21st century,the restriction of Constitution of China on legislation has been gradually strengthened,and the stimulation for legislation is relatively left behind,resulting in the imbalance between stimulation and restriction.In order to cope with the development of knowledge society,the mechanism for stimulating legislation should be developed in the Constitution,the constitutionality review system on prudently restricting the legislation should be established through expanded interpretation of stimulating provisions of the Constitution,the mechanism of feature competition among local legislation should be developed and the legislative consultation techniques should be refined,thus giving full play to the legislation in leading social development by means of the Constitution.