论社会权的宪法规范基础

尽管我国学界主流观点倾向于肯定社会权的宪法基本权利性质,但却只是基于"事实平等"应得到保障这样的价值追求上的理由,而未能提供一个宪法规范意义上的依据.因此,有必要通过确立"事实平等"在宪法平等规范中的地位,论证"事实平等"这项价值追求乃是宪法平等规范的应有之意,来为社会权寻得一个更为坚实的宪法规范基础.     

Post‐Secularism and the European Court of Human Rights: Or How God Never Really Went Away

This article analyses the critical yet elusive notions of state neutrality, secularism and religious coercion under the European Convention in light of the European Court of Human Rights recent decision in Lautsi v Italy. We contend that the real concern in the Italian crucifix case was not the infringement of the school pupils’ religious freedom nor the proselytising or coercive effect of the ‘passive’ religious symbols. Rather, opponents of the longstanding symbols were animated by desire for strict religious equality, a notion that is, correctly in our view, not guaranteed under the Convention. Lautsi has significantly cleared the conceptual undergrowth surrounding state neutrality and the varieties of secularism, reined in the elastic notion of religious coercion and eschewed attempts to squeeze the constitutional diversity of European religion‐state frameworks into a strict American‐style separationist mould. The Convention jurisprudence on freedom of religion has finally come of age.     

The rule of law as the lodestar of the European Convention on Human Rights: The Strasbourg Court and the independence of the judiciary

The rule of law is a constitutional principle under the European Convention on Human Rights. Throughout its history, the rule of law has been the lodestar guiding the development of the case-law of the European Court of Human Rights. In recent years, the normative impact of this principle has been increasing in the case-law of the Court, in particular in cases dealing with the independence of the judiciary. The article discusses the conceptual core of the rule of law under the Convention system as a fundamental component of “European public order”. Subsequently, the three-dimensional normative status of the rule of law is explored as well as the Court's statement that the principle is “inherent in all the Articles of the Convention”. On this basis, an in-depth analysis is undertaken of the application in recent Strasbourg case-law of the independence of the judiciary as a fundamental organic component of the rule of law. Finally, the author reflects on the “symbiotic” relationship in the field of judicial independence between the Strasbourg Court and the Court of Justice of the European Union.     

Constitutional courts as promoters of political centralization: lessons for the European Court of Justice

A cross-section analysis covering up to 42 countries and including the usual control variables shows that central government outlays as a share of general government outlays are significantly larger if the judges of the constitutional or supreme court are independent of the federal government and parliament and if the barriers to constitutional amendment are high. This evidence is consistent with the view that constitutional judges have a vested interest in centralization or that there is self-selection or both. These insights are used to draw lessons for the reform of the European Court of Justice. Self-selection should be reduced by requiring judicial experience—ideally with the highest national courts. The vested interest in centralization could be overcome by adding a subsidiarity court.     

公民社会经济权利宪法救济之中国路径——以南非宪法法院判例为切入点

南非宪法法院对公民社会经济权利的违宪审查判例受到宪法学界的广泛关注,这种做法具有制度创新和人权保障的双重效应。我们可以借鉴南非宪法法院相关判例,建立公民社会经济权利宪法救济的中国路径。在人民法院系统中设立宪法法庭,在人民代表大会系统中设立宪法委员会,并且在人民法院和人民代表大会之间建立特定的衔接机制,通过这些措施有助于实现中国特色的公民社会经济权利宪法救济。     

Constitutional Comparisons by A Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights

This article examines how the Judicial Committee of the Privy Council makes constitutional comparisons between ‘related’ constitutions that are or were within its jurisdiction, deploying its own precedents, as a pragmatic method of resolving idiosyncratic questions that arise across multiple constitutions. In particular, it considers the Committee's approach to the longstanding question of the interpretation of the opening section of Caribbean constitutional bills of rights, which has far reaching implications for the scope of constitutional protection of human rights. The JCPC's answer over time to this question reveals the fault lines for this supranational constitutional court as its jurisdiction peters out yet remains. The gaze of comparativism is very harsh as older constitutions are evaluated in light of newer ones and also as fossilised constitutional interpretations presented in earlier JCPC cases where the Committee no longer has jurisdiction are given new life in contemporary cases.     

The Strasbourg Court and Indirect Race Discrimination: Going Beyond the Education Domain

Prohibiting indirect discrimination has been hailed as guaranteeing substantive equality by addressing issues of structural discrimination and inequalities in a way that direct discrimination cannot and will not. However, Article 14, the ECHR's non‐discrimination provision, does not distinguish between direct and indirect discrimination. Only in 2007 the European Court of Human Rights explicitly included the notion of indirect (race) discrimination under Article 14 in DH and Others v Czech Republic, its famous judgment on Roma education segregation. Since then it has applied the prohibition of indirect race discrimination in a limited manner to similar education cases. However, in its recent Grand Chamber decision, Biao v Denmark, the Strasbourg Court started clarifying some unsolved issues in the distinction between direct and indirect discrimination in its case law and finally applied the concept to the much broader area of immigration and citizenship.     

Between Procedural Impermeability and Constitutional Openness: The Italian Constitutional Court and Preliminary References to the European Court of Justice

On 15 April 2008, the Italian Constitutional Court (ICC) raised for the first time a preliminary question to the European Court of Justice (ECJ). This decision (see judgment No 102/2008 and order No 103/2008) represented a turning point in the ICC's case‐law, and calls for a careful assessment of the motives backing such revirement as well as of the legal reasoning that the Italian judges used to wrap it up without repudiating their previous case‐law. In addition to this preliminary analysis, the aim of this essay is to explore two themes: i) the developments of the ICC's case‐law as regards the role of Community Law and the ECJ, and ii) the appraisal of the interplay between the ICC and the ECJ in the light of the notion of ‘interpretive competition’.     

Women's Rights to Equality and Non-discrimination: Discriminatory Family Legislation in Uganda and the Role of Uganda's Constitutional Court

In 1995 Uganda adopted the Constitution of the Republic of Uganda1995 which protected a wide range of human rights includingwomen's rights to equality and freedom from discrimination.Article 33(6) of the Constitution prohibited ‘laws, customsor traditions which are against the dignity, welfare or interestof women’. However, more than ten years later legislation,customary laws and practices have continued to be in force largelydue to the lack of political will to confront issues of inequalityand discrimination in a holistic and comprehensive manner. Thisarticle examines such discriminatory laws against women andthe jurisprudence of Uganda's Constitutional Court in the areasof divorce, criminalization of adultery, succession and marriagelaws. Using a comparative approach, it observes that these lawsconflict with Uganda's Constitution as well as regional andinternational human rights treaties to which Uganda is a Stateparty. It recommends that discriminatory laws should be harmonizedwith principles of equality and non-discrimination, and advocatesfor a litigation strategy.     

宪法权利体系是怎样发展的?--以美国法为范例的展开:司法创制权利的保护

宪法基本权利是一个开放而非封闭的体系,得益于宪法文本之外权利的司法保护,主要包括人身与经济自由,是法官通过对第十四条修正案正当程序条款采用实质性正当程序的解释而完成的.通过适用不同的审查标准,法院徘徊于谦抑与能动之间.先例规则使司法承认的权利在个案中具有拘束力.美国政府与公众对法官创制非文本自由利益并未给予过多的怀疑,法官只是需要警惕防止在抵制一个专断的过程中形成新的专断.     

The Jurisprudence of Constitutional Conflict: Constitutional Supremacy in Europe before and after the Constitutional Treaty

Abstract:  One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Juctise respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.     

人权的内核——兼论“以人为本”的宪法涵义

宪法上基本权利的保障有其基础理论和核心内容,西方实证宪法和宪政理论都肯定“人的尊严”构成了人权的内核。人的尊严是人权宪法保障的哲学依据,是人权生长的原点,是对基本权利限制的限制。“国家尊重和保障人权”是一种规范性表述,而非描述性表述,其中蕴含着一定的价值判断,表明“以人为本”已经从实证法形式上升为国家理念,构成了我国宪政制度建构的根本,是借鉴世界其他国家宪政和人权理论与制度的坚固基础。     

Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey

During the past two decades, scholars have noted a global expansion of judicial power and court‐led rights revolutions. Far from leading a rights‐revolution, the Constitutional Court of Turkey became renowned for its restrictive take on civil liberties during this period. Why are some high courts more activist than others in protecting and expanding civil rights and liberties? I argue that judicial power and judicial independence offer incomplete explanations of judicial activism on questions of rights. Even powerful courts are activist only selectively, using their clout to protect some groups while suppressing the demands of others. Building on perspectives on legal mobilization and judicial entrenchment, I argue that the sociopolitical alliances in which high courts and judiciaries participate explain the selective nature of their activism. The initial parameters of these alliances are set during critical junctures when formerly dominant coalitions are displaced and new institutions entrench new alliances. Such alliances are not static, however, and struggles within alliances can transform high courts' orientations on rights questions.     

民生关怀：中国宪政改革的现实基础

中国正处于社会转型的重要历史时期，选择一种符合国情的、合理的、适时的宪政改革路径和步骤至关重要。现阶段中国宪政改革应该以民生关怀作为切入点，围绕解决社会危机事件和众所注目的社会热点问题启动宪政改革，先实施体制内宪政微调，弥补立法和制度缺漏，改进相关管理及其运作方式，解决民主宪政操作层面的具体问题，尽可能发挥现有体制民生设计的预期效益。以民生需要基础考虑中国宪政改革，就必须通过推行人民代表的“非行政化”、专职化和完善选举制度强化人民代表大会的民意代表地位和功能，同时强化行宪主体的责任追究和宪法实施的社会监督。     

宪法保留：对基本自由权利限制的限制原则

法律保留原则要求某些重要事项必须留给立法机关以法律的形式加以规定,目的是约束行政权,防止行政权滥用,并在客观上要求司法机关依法裁判;然而,宪政的本质特征之一是有限政府的理念,即使是立法机关的权力本身也应当是有限度的。实际上,宪政国家违宪审查制度的普遍确立正是主要基于对立法权滥用的矫正;而我国从依法治国到依宪治国思路的转变也在事实上承认了立法权本身存在滥用的可能。因此,从法律保留到宪法保留,是保障人民基本自由权的重要原则,这一原则立基于对多数决暴政的恐惧和对有限政府理念的信奉,它在一定程度上杜绝了宪法一手承认人民基本自由权利,而法律的另一手却又予以剥夺的弊病。     

论紧急状态下限权原则的建构思路与价值基础——以我国《突发事件应对法》为分析对象

在我国《突发事件应对法》中,究竟有没有必要设置一些限制权利的基本原则?如果有必要,应当如何建构它们?在这个过程中,人们又会遇到哪些困难?基于法律体系的内部融贯性,这部法律必须认真对待普通民众的基本权利,并且需要设置一种动态的限权原则。这些原则不仅可以有针对性地应对突发事件的自身特质,彰显我国宪法对待权利的基本态度,而且能够满足现代法治对权利与权力之间相互平衡的期许。