正在加载图片...
3. Is interpretation of the Constitution something special in relation to other laws? It is quite obvious that the Constitution is different from other laws, at least in those countries where it has lex superior status and amending it requires a qualified procedure. Characteristic of the Constitution is that its norms contain more principles and value statements than the norms in Acts that are hierarchically below the Constitution. This can be seen at least in the case of basic ights. Still, there is a great similarity at the level of interpretation between the norms of the Constitution and other statutes the basic problem in both cases is that the norm content is unclear There have been discussions in many countries about the question whether one should interpret the Constitution differently from other statutes. For example, in the United States it is common to conceive the interpretation of the Constitution as a special case in comparison with statutes, which do not have the same status. (8)A central question has been whether the Constitution is static or hangeable. So-called originalists favour a static interpretation of the Constitution and so-called non-originalists are prepared to modify its interpretation when necessary. Typical of the originalists is their ' original intent thinking, which means that interpretation is strongly rooted in the grammatical method. An example of non-originalist thinking is the 'separate but equal doctrine. (9) The same question also arose in Germany, and there too two main lines can be discerned. One supports a traditional interpretation of the Constitution, while the other thinks that there should be dynamics in the interpretation. However, a synthesis of these two lines has been suggested, when in interpretation'classical'interpretation methods(grammatical, historical) should be used, at least in principle. Different interpretation methods may be used together (10)In Sweden, at least two travaux preparatoires can be found, where it has been suggested that the Constitution should be interpreted along the same principles as other statutes (11) That view, however, did not receive unanimous support in Sweden. Thomas Bull states that very little has been said about the nterpretation of the Constitution in the Swedish constitutional debate. ( 12) It is obviously possible to develop different types of method for the interpretation of the Constitution. Nonetheless, it is not al ways clear how much these methods differ from the usual methods, i.e. methods that are used in the interpretation of ordinary laws. And, on the other hand are those methods even necessary? There are, in general, many rules in the Constitution which do not need aspecial method to be applied while being interpreted. Some rules do not cause any interpretation problems, because they are formulated unambiguously. An example of this kind of ule is a rule that regulates the number of representatives in Parliament. On the other hand, basic rights are a group of norms that usually need rather more interpretation than many other norms of the Constitution. This is because norms concerning basic rights are very important rules and those norms are seldom unambiguous. However. i do not wish to state that some norm of the Constitution would be less valuable than others because it does not cause any interpretation problems. However, attention is more often paid to only some norms of the Constitution3. Is interpretation of the Constitution something special in relation to other laws? It is quite obvious that the Constitution is different from other laws, at least in those countries where it has lex superior status and amending it requires a qualified procedure. Characteristic of the Constitution is that its norms contain more principles and value statements than the norms in Acts that are hierarchically below the Constitution. This can be seen at least in the case of basic rights. Still, there is a great similarity at the level of interpretation between the norms of the Constitution and other statutes. The basic problem in both cases is that the norm content is unclear. There have been discussions in many countries about the question whether one should interpret the Constitution differently from other statutes. For example, in the United States it is common to conceive the interpretation of the Constitution as a special case in comparison with statutes, which do not have the same status.(8) A central question has been whether the Constitution is static or changeable. So-called originalists favour a static interpretation of the Constitution and so-called non-originalists are prepared to modify its interpretation when necessary. Typical of the originalists is their 'original intent' thinking, which means that interpretation is strongly rooted in the grammatical method. An example of non-originalist thinking is the 'separate but equal' doctrine.(9) The same question also arose in Germany, and there too two main lines can be discerned. One supports a traditional interpretation of the Constitution, while the other thinks that there should be dynamics in the interpretation. However, a synthesis of these two lines has been suggested, when in interpretation 'classical' interpretation methods (grammatical, historical) should be used, at least in principle. Different interpretation methods may be used together.(10) In Sweden, at least two travaux préparatoires can be found, where it has been suggested that the Constitution should be interpreted along the same principles as other statutes.(11) That view, however, did not receive unanimous support in Sweden. Thomas Bull states that very little has been said about the interpretation of the Constitution in the Swedish constitutional debate.(12) It is obviously possible to develop different types of method for the interpretation of the Constitution. Nonetheless, it is not always clear how much these methods differ from the 'usual' methods, i.e. methods that are used in the interpretation of ordinary laws. And, on the other hand, are those methods even necessary? There are, in general, many rules in the Constitution which do not need a 'special method' to be applied while being interpreted. Some rules do not cause any interpretation problems, because they are formulated unambiguously. An example of this kind of rule is a rule that regulates the number of representatives in Parliament. On the other hand, basic rights are a group of norms that usually need rather more interpretation than many other norms of the Constitution. This is because norms concerning basic rights are very important rules and those norms are seldom unambiguous. However, I do not wish to state that some norm of the Constitution would be less valuable than others because it does not cause any interpretation problems. However, attention is more often paid to only some norms of the Constitution
<<向上翻页向下翻页>>
©2008-现在 cucdc.com 高等教育资讯网 版权所有