解释学与宪法解释

A. Barak
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引用次数: 3

摘要

我是法官。对我来说,宪法是一份可操作的文件。我通过从文本中提取意义来裁决案件。从宪法文本中提取意义的过程,与任何文件一样,也是解释的过程,所以摆在我面前的问题是:你如何解释宪法?说“言语没有意义;做任何你认为政治上有利的事。”言语是有意义的。香烟不是大象。我是法官,不是政客。我没有政治议程;我不代表一个选区。把我的主观意志强加于政体,这不是我的职责,也不是我的愿望。我需要明智地、客观地、一贯地、连贯地行动。对我来说,建议“谨慎、务实、理性地思考和行动”并不是答案。“谨慎”是什么意思?我什么时候表现得“务实”?也没有答案说“阅读文本并应用它”。阅读和应用需要中间步骤:解释。宪法的措辞和其他文件的措辞一样,可以有多种含义。我应该选择什么意思呢?词汇可以应用于不同层次的一般性和抽象性。我应该选择哪个级别?可以说,“选择符合宪法制定者意图的一般性和抽象性的水平。”但我为什么要这么做呢?解释的目的是为了加深他们的意图吗?解释的目的不就是为了促进宪法的目的吗?为了了解如何阅读宪法,我必须对解释有更好的理解。什么是“诠释”?诠释是如何完成的?我很快意识到,当我阅读其他文本时,我也面临着类似的问题。人们如何解读合同,法规,遗嘱?我读宪法和读遗嘱一样吗?难道我们不应该一直意识到“我们是宪法的前任”吗
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Hermeneutics and Constitutional Interpretation
I am a judge. For me, a constitution is an operational document. I decide cases by extracting meaning from its text. The process of extracting meaning from the text of the constitution, as with any document, is the process of interpretation, and so the question presented to me is: How do you interpret a constitution? It is not an answer to say "Words have no meaning; do whatever you think politically expedient." Words do have meaning. A cigarette is not an elephant. I am a judge, not a politician. I do not have a political agenda; I do not represent a constituency. It is not my role, nor do I desire, to impose my subjective will on the polity. I am required to act judiciously, objectively, consistently, coherently. It is no answer to me to advise, "Think and act prudently, pragmatically, reasonably." What does "prudently" mean? When am I acting "pragmatically"? It is also no answer to say "Read the text and apply it." To read and apply requires the intermediate step: to construe. The words of a constitution, like the words of any other document, may have several meanings. What meaning should I choose? Words can be applied on different levels of generality and abstraction. Which level should I choose? It may be said "Choose the level of generality and abstraction that fits the intent of the framers of the constitution." But why should I? Is the purpose of interpretation to further their intent? Isn't the purpose of interpretation to further the purpose of the constitution? In order to know how to read a constitution I must have a better understanding of interpretation. What is "interpretation" and how is it accomplished? I realize soon, that I am faced with similar questions when I read other texts. How does one read a contract, a statute, a will? Do I read a constitution the same way I read a will? Do we not always have to be aware that "it is a constitution we are ex-
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