“法無授權不可為”的憲法學展開

雖然國家機關“法無授權不可為”在今天看來是個憲法原則，但它其實起源和生長於私法土壤。國家一切權力屬於人民，決定了國家機關權力只能以憲法列舉的為限，並且，這些限制首先並主要針對立法機關。列舉國家機關及其權力範圍是憲法限制權力的基本方式。形成國家機關清單和權力清單乃憲法限制權力的基礎性方法。國家機關和他們行使的權力不超越憲法清單一直是正常立憲國家的法治實踐。“法無授權不可為”也應是中國憲法學者維護的價值標準之一。

Although the principle that “anything not mandated by the law is unpermitted”with regard to state organs seems to be a constitutional one today, it actually originated and developed from the soil of private law. All power of the state belongs to people, which determines that the state organs can only exercise their powers enumerated by the constitution, and the restrictions are firstly and mainly imposed on the legislative organ. Enumeration of state organs and their powers is the basic way to limit power in the constitution. To form a list of state organs and a list of powers in the constitution is a fundamental approach to limit powers. That the state organs and their powers do not go beyond the constitutional lists has always been the practice under the rule-of-law principle in constitutional states. The principle that “anything not mandated by the law is unpermitted” should also be one of the normative standards that Chinese constitution scholars must safeguard.