基本權作為最佳化命令與框架秩序－從原則理論初探立法餘地(gesetzgeberische Spielräume)問題

Abstract

This essay tries to give a preliminary systematic account of the structure of constitutional rights and legislative discretion (gesetzgebericher Spielraum) from the viewpoint of principle theory. The basic tenet is that constitutional right norms constitute the fundamental principles of legal system and have the structure of optimization requirements (Optimierungsgebote). This essay also scrutinizes some critical arguments from the framework (Rahmenordnung) theory, the main opponent of the principle theory in the contemporary German constitutional doctrine, which claims that the characterization of constitutional principles as optimization requirements would lead to the elimination of all independent decision-taking capacity of the democratically legitimated legislature. However, this essay will argue that the concept of framework and the idea of optimization are not incompatible with each other. On the foundation of principle theory it is possible to construct an adequate doctrine of legislative discr etion consisting of the structural and epistemic discretion. Considering the existence of the structural discretion, which derives from the principle-characters of constitutional rights, and the role of formal principles in the epistemic discretion, this essay concludes that the principle-theoretical construction of constitutional right norms will not excessively reduce the sphere of legislative freedom in shaping the legal system.