The Value Attributes and Normative Positioning of Constitutional Social Rights
The majority of social rights in the Chinese Constitution are aimed at helping citizens achieve substantive freedom,rather than just protecting them from state infringement,thus often requiring active action from the state.Some social rights,such as the right to material assistance,aim to achieve substantive equality.Social rights do not have a defensive function or protection obligation function,and their function is limited to requiring the state to actively pro-mote the realization of social rights.Even if the degree to which legislators realize social rights regresses,the analytical framework for the right of defense cannot be applied to review its legiti-macy.In terms of effectiveness,the realization of social rights is a constantly optimizing task that requires consideration of possible factors such as finance.It relies more on the legislative formation and thus exists in the concept of"reservation of possibility".The realization of social rights requires a balance with other constitutional values.Relative impossibility should be taken into consideration to ensure a reasonable boundary between a law-based state and a fiscal state.A distinction should be made between the scope and the means of social rights protection,with the former exploring whether the state should act and the latter involving how to act.The scope of protection for constitutional social rights should be reasonably defined so that its not be too broad or overly restrictive.There is a difference between defining the scope of protection for so-cial rights and defining the scope of protection for freedom rights.Freedom rights have natural legitimacy,but social rights are different.When defining the scope of protection,strict inter-pretation should be carried out based on the constitutional text to avoid broad generalization caused by external theories.The Constitution does not require that social rights have a core area that must be realized under any circumstances so that the principle of fundamental rights is not overturned."The restriction of restriction"does not apply to the analytical framework for social rights.After the scope of protection for social rights is determined,conflicting principles should be weighed directly.The addition of subjective rights attributes will not increase the weight of social rights,nor will it threaten the constitutional order.Although legislators should be given priority in balancing conflicts between social rights and other principles,the Constitution can still provide several criteria and standards for balancing at the normative level.The more fiscal expenditure is needed to realize social rights through legislation,the more obvious the phenome-non of the legislative power of the National People's Congress squeezing the budgetary power.According to the principle of subsidiarity,priority should be given to non-state actors in the re-alization of social rights.
万方数据
维普
