Research on the Modernity of Economic Law

Author: Huang Maoqin
Publisher:
Publish Date: 2006-12-01
Features: The rise of economic law in the late 19th and early 20th centuries was an important "event of modernity." The emergence of the emerging legal field represented by economic law brought profound changes to the Western legal tradition. Some scholars even argue that, in the face of this trend in modern legal development, the history of law should be "rewritten" with new concepts. Therefore, grasping the true nature of economic law is undoubtedly an important topic, because by revealing the essence or characteristics of economic law, we can feel the pulse of the times, understand how people use law as practical reason to shape modern social life, maintain their dignity, and achieve their value of survival. So, how can we conduct effective research on the essence or characteristics of economic law? The author believes that research on this issue can be carried out according to the "modernity" research paradigm, because "modernity" is the spirit or characteristic of our time, and economic law, as a modern law, also has distinct "modernity" characteristics. Therefore, following the academic norms and research results of the "modernity" paradigm, we can recognize the "modernity" essence or characteristics of economic law, understand the rationality and legitimacy of its existence, and especially grasp the path of the modernity of Chinese economic law in the context of globalization and knowledge-based modernity. Based on the above considerations, this book takes "modernity" as the main thread to explore the "modernity" essence or characteristics of economic law. The structure of the book is mainly carried out in the following steps: defining the logical starting point, exploring the original principle, describing the essence and characteristics, analyzing the value implications, revealing the rational connotation, and examining the practical demands. Specifically, it includes the following six parts:
Chapter 1 defines the logical starting point of the book's topic of "the modernity of economic law," "modernity," and discusses related basic issues. In this chapter, the author compares the relationships among the concepts of modernity, modernization, and postmodernity, and argues that economic law is a modern law rather than a postmodern law. The author also points out that modernity is the "commonality" of law in modern society, and that departments of law such as the constitution, civil law, and administrative law all have their own modernity. Therefore, modernity for economic law is a "shared" modern concept.
Chapter 2 examines the original principle of the emergence of the modernity of economic law. In this chapter, the author explores issues such as the meaning of the modernity of economic law, the context of its emergence, and the mechanism of its formation. The author points out that from the perspective of "overcoming the modernity issue," the mechanism of the emergence of the modernity of economic law can be examined microscopically as arising from overcoming the purpose-means rationality of market entities or governments in the market economy, and macroscopically as arising from the functional needs of the social system composed of functional groups such as enterprises, social intermediaries, and the state for economic legal systems.
Chapter 3 describes the multidimensional aspects of the modernity of economic law. In this chapter, the author mainly discusses the modernity dimension of the essence of economic law, the modernity dimension of the structure and function of economic law, the modernity dimension of the operation of economic law, and the issue of the legitimacy of economic law in the context of modernity. The book points out that the modernity of the essence of economic law is reflected in the unity of substantive rationality and formal rationality in economic law; the modernity of the structural and normative structure of economic law is reflected in the modernity of micro-level "atomistic" behavioral units, the modernity of meso-level "rules" and "standards," and the modernity of macro-level economic legal systems; the modernity of the function of economic law is reflected in the institutional guarantee of overcoming modernity dilemmas or promoting modernization; the modernity of the operation of economic law is reflected in the economic legislation as a "new law" for solving economic and social problems, the economic law enforcement as a "new form of management" in modern society, and the economic adjudication with the "purpose-oriented" adjudication method as a characteristic; and the legitimacy issues of economic law in economic legislation, economic law enforcement, and economic adjudication are actually the modernity issues in the operation of economic law, and the solution to this problem lies in the realization of substantive legitimacy in the operation of economic law.
Chapter 4 discusses the modern implications of the value of economic law. In this chapter, the author mainly examines the value connotation of modernity, the moral nature of law, the economic ethical foundation of economic law, the connotation of the moral nature of economic law, and the modern manifestations of the value of economic law. The book points out that even formal law has a moral nature. In modern society, the formation of the legal order is an inevitable process of ethical people, so the moral nature of economic law comes from the legal elevation of economic ethics such as the ethical responsibility of enterprises, the ethical responsibility of fair trade, the ethical responsibility of economic administration, the ethical responsibility of sustainable development, and the ethical responsibility of fair distribution. The article further points out that the modernity of the value of economic law should be understood from two aspects: substantive justice and utilitarian value. The former includes the unity of negative freedom and positive freedom in economic freedom, the pursuit of factual equality in economic equality, the solution of the "growth" problem with value rationality in sustainable development, and the pursuit of stability expectations in risk society through economic security. The latter includes the economic welfare from "increasing the happiness of the majority to avoiding the misfortune of the majority" and the economic efficiency from "increasing the total benefit without harming anyone."
Chapter 5 discusses the practical rationality and substantive rule of law of economic law in the context of modernity. In this chapter, the author mainly examines the impact of the modernity of economic law on the Western legal tradition and the practical rationality of economic law.
Chapter 6 examines the modern demands of Chinese economic law. In this chapter, the author examines the practice of economic law in the modern legal movement of China, the modernity and problematization of Chinese economic law, and the modern demands of Chinese economic law in the new context of modernity. The article points out that although the specific content of Chinese economic law practice is different in the late Qing legal reform period, the Northern Warlord Government period, the Nanjing National Government period, and the People's Republic of China period, the pursuit of an economic legal system that adapts to the modernization process is their common pursuit. At present, Chinese economic law, in the process of pursuing modernity, faces the problem of the "simultaneous integration" of traditionality, modernity, and postmodernity, while modernity remains a consistent goal. The adoption of economic law from other countries does not contradict the formation of the "local knowledge" of Chinese economic law. The modernity of Chinese economic law is reflected in four main aspects: in terms of goal orientation, it is reflected in the realization of the modernization of China's transforming society; in terms of the source of motivation, it is reflected in the government-led driving force; in terms of the choice of path, it is reflected in the combination of experiential rationality and constructive rationality; and in terms of functional performance, it is reflected in the combination of transitional and guiding functions. For the problematization of Chinese economic law in terms of rationality and legitimacy, driving force, and the legitimacy of economic rule of law, we still need to overcome these issues in the practice of economic law. At present, the modern demands of Chinese economic law are facing the modernity context of globalization and knowledge-based society. Under this context, we should take the realization of the goals of modern rule of law as the orientation, and take the practical rationality that unifies constructive rationalism and experiential rationalism as the guidance, thereby developing a modern Chinese economic law that unifies substantive rationality and formal rationality, as well as the unity of contemporaneity and nationality.