On Balancing Of Constitutional Rights

This is a basic research on Balancing of Constitutional Rights from the perspective of legal methodology and comparative constitution in response to urgent requirement of worldwide protection of human rights and implementation of constitution.The dissertation attempts to review and conclude Constitutional Right Reasoning emerging in the last fifty years,present and justify the generic analysis framework of constitutional rights in order to promote further and real implementation of constitution of our country and fundamental rights of citizens.The core thesis of this dissertation is:worldwide Constitutional Right Reasoning gradually appears to a different model to ordinary legal method,the model of Balancing of Constitutional Rights.Balancing of Constitutional Rights is demonstrated as "Generic Framework" on fact dimension,"Balancing of Norms" on theoretical dimension,"Dual Structure" on normative dimension and "Proportionality Test" on operational dimension.In general,this dissertation is a legal dogmatics's research of insiders mainly by descriptive and analytic approaches.The so-called descriptive approach mainly refers to a kind of method of functionalism on comparative constitution with the aim to illustrate the worldwide situation of Balancing of Constitutional Rights.The so-called analytic approach refers to a Structural Analysis or Structural Theory with the aim to present the internal structure and operational aspects of Constitutional Right Reasoning through facts of Balancing of Constitutional Rights.constructive approach is also adopted in this dissertation to some extent.This may take in some value judgment,but it is formality in general,in an attempt to provide an analytical framework on methodology rather than evaluation criteria on axiology.The dissertation proceeds the proposition with "what","why" and "how" in logical sequence.In addition to the "Introduction" part,the main essay contains five chapters:the first and second chapter do the factual description of the concept and history of Balancing and Balancing of Constitutional Rights to work out the problem of "what";the third,fourth and fifth chapter focus on reviewing of a variety of doctrines on Balancing of Constitutional Rights,analyzing its norms and basis and deconstructing its operational process to work out the problem of "why" and "how".As the conclusion and proposition or expectation part of the full text,the last section sums up the core proposition of this dissertation and puts forward preliminary suggestions of how to preceed constitutional right reasoning in our country.This dissertation manages to shift the research focus of constitution from Constitutional Interpretation to Balancing of Norms by first-hand information and detailed theoretical analysis in a global view.To sum up,the main innovations are:First,it presents the idea that it is balancing rather than legal interpretation that applies to constitutional rights.The latter is characterized by pattern or categorization while the former features in degree or strength with regard to ways of thinking.Second,it regards the Balancing of Norms with Balancing of Constitutional Rights different to Balancing of Interests or Balancing of Value,which distinguishes balancing and non-balancing and includes multiple evaluation criteria.Third, it indicates that Balancing of Constitutional Rights relays on reason-restraining conception of rights,that is,the right to act of constitutional rights is the restriction of reasons upholding government's actions.For some reasons of government's actions,constitutional rights work like Trumps in poker game and exclude them firmly while for others such as public interest,they balance carefully before determination.Therefore,constitutional rights can be absolute or non-absolute.The real effect of them can only be confirmed by contact with other constitutional rights and interests in the specific situation.Fourth,it alleges that constitution in modern legal system shall be deemed as not only Authoritative Constitution but also Deliberative Constitution,in that Balancing of Norms on constitutional rights is actually rational,democratic political discussions.