Citation:
Lei LEI. The Characteristics of Legislation[J]. Academic Monthly, 2020, 52(1): 97-108.
The Characteristics of Legislation
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Abstract
Legislation, in view of Stufenbaulehre, can be taken as activities of implementing constitution, which are both application of constitutional norms and creation of general legal norms. But theory of balance of principles deems this application-and-creation activity as legislative balance of constitutional principles (mainly basic rights, including other constitutional principles too). In the view of normative theory, legislation has its own characteristics: Firstly, legislation has a more huge discretion space comparative to legal application and creation on other levels, which has only a nature of degree, however. Secondly, legislation as balance of constitutional principles is closely related to conception of substantive democracy, especially to deliberative democracy aiming to realizing most fundamental interests (claim to correctness) of citizens, which does no harm to the principle of democratic legitimacy. Finally, legislation as balance of constitutional principles includes both of positive and negative legislation, and constitutional review as negative legislation has to take “burden of balance” in three forms, in order to respect positive legislation properly.
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References
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Access
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