Economic Humanistic Legalism

Author: Li Yongcheng
Publisher:
Publishing Time: 2006-12-01
Features: Humanism is not an obscure or profound theory; fundamentally, it is a philosophical cognition that takes human value as the standard. To some extent, being people-centered is both the ultimate ideal we strive for and the criterion for judging whether society is civilized, progressive, and comprehensively developed. Precisely because social development always deviates from being people-centered to some extent, being people-centered can rather be said to be a goal that requires us to pursue endlessly and approach infinitely closely. As a tool or means for upholding and promoting the pursuit of a happy ideal life for people and their journey toward free, conscious, and comprehensive development, law undoubtedly should be a humanistic law. Each departmental law reflects and realizes humanism from different perspectives. Then, how is the relationship between economic law and humanism? How to theoretically understand economic law humanism? And how does economic law (especially Chinese economic law) implement humanism? These are the questions this book explores. To attempt to provide answers to these questions is precisely the research purpose of this book. The book is divided into six chapters. Logically, it can be roughly divided into three parts: Part I is the Foundational Section (Chapter 1), which primarily elaborates on the general principles of humanistic law to lay a legal foundation for the study of economic law humanism; the second part is the Main Discussion Section (Chapters 2, 3, 4, and 5), which primarily explores the theoretical aspects of economic law humanism, namely, understanding economic law humanism from the perspectives of its generative logic, cognitive understanding, humanistic philosophy and methodology of economic law, and the institutional embodiment of economic law humanism; the third part can roughly be called the Practical Section (Chapter 6), as it addresses the issue of how Chinese economic law is people-centered and the practical path to implementing people-centeredness.
Humanism is not an obscure or profound theory; fundamentally, it is a philosophical cognition that takes human value as the standard. To some extent, being people-centered is both the ultimate ideal we strive for with metaphysical significance and the criterion for judging whether society is civilized, progressive, and comprehensively developed. Precisely because social development always deviates from being people-centered to some extent, being people-centered can rather be said to be a goal that requires us to pursue endlessly and approach infinitely closely. As a tool or means for upholding and promoting the pursuit of a happy ideal life for people and their journey toward free, conscious, and comprehensive development, law undoubtedly should be a humanistic law. Each departmental law reflects and realizes humanism from different perspectives. Then, how is the relationship between economic law and humanism? How to theoretically understand economic law humanism? And how does economic law (especially Chinese economic law) implement humanism? These are the questions this book explores. To attempt to provide answers to these questions is precisely the research purpose of this book. The book is divided into six chapters. Logically, it can be roughly divided into three parts: Part I is the Foundational Section (Chapter 1), which primarily elaborates on the general principles of humanistic law to lay a legal foundation for the study of economic law humanism; the second part is the Main Discussion Section (Chapters 2, 3, 4, and 5), which primarily explores the theoretical aspects of economic law humanism, namely, understanding economic law humanism from the perspectives of its generative logic, cognitive understanding, humanistic philosophy and methodology of economic law, and the institutional embodiment of economic law humanism; the third part can roughly be called the Practical Section (Chapter 6), as it addresses the issue of how Chinese economic law is people-centered and the practical path to implementing people-centeredness.
The specific content of each chapter is described as follows: Chapter 1 is Law and Economic Law in the Perspective of Humanism. This chapter primarily analyzes and explains some fundamental issues. First, it discusses the understanding of humanism itself. To this end, the chapter traces the historical implications of humanism in both the East and the West, aiming to grasp its meaning comprehensively from a dynamic historical development process. Regardless of how humanism changes its forms and appearances, its philosophical cognition of taking human value as the standard remains eternal and unchanging. The expression of humanism in the contemporary Chinese context is the people-centeredness emphasized in the scientific development concept. Second, it reconsiders the humanistic law. From the perspective of legal theory, the understanding of humanistic law and the recognition of its importance still have many shortcomings and require further in-depth exploration. Therefore, this chapter primarily reconsiders the legal theory of humanistic law from the aspects of establishing a humanistic legal view, the return of law to the daily life world of people, and how the institutional design of law should be people-centered. It also briefly examines traditional and modern legal systems in China. Establishing a humanistic legal view requires that law should take people as the source, purpose, and master, and regard people as the highest standard for evaluating law; the return of law to the daily life world of people requires that law should give genuine concern to real people and their life scenarios, for which law should take the concept of rule of law under people's governance as its ideal, and the interaction and mutual control of social power and state power as its means; the institutional design of law being people-centered should follow such a logic: human nature—human needs (legal needs)—interests—legitimacy judgment with justice as its core—human rights (rights). Third, it elaborates on the legal approach to the study of economic law humanism. That is, guided by the legal theory of humanism, economic law must also establish a humanistic legal view, return to the daily life world of people, and its institutional design must also reflect people-centeredness.
Chapter 2 is the Generative Logic of Economic Law Humanism. Humanism is an important character and inherent quality of economic law, and the emergence of modern economic law, in a certain sense, lies in the correction and overcoming of the shortcomings of modernity, achieving a shift from a "thing-centered" legal view to a "human-centered" legal view. From the generative logic, economic law humanism is positioned as the social integration of the differentiation of people caused by the alienation of humans from things under modernity within the basic framework of "market failure—state (government) intervention." For this reason, first, this chapter analyzes the paradox of modernity and the alienation of humans. To some extent, modernity is an inevitable choice that human society cannot avoid in the process of modernization. However, the essential rationality of modernity, which leads to the division of humans into tools and values, forms the hegemony and suppression of instrumental rationality over value rationality, and the excessive promotion of the will of capital, inevitably leads to the alienation of humans from things and the differentiation of people. Second, this chapter points out that the excessive differentiation of people caused by the excessive alienation of humans from things in the socialization of the economy and society must be carried out from the perspective of the overall society for effective social integration, suppressing the excessive expansion and proliferation of the will of capital to achieve a balance of interests and rights between strong and weak social groups. Otherwise, it will lead to certain social conflicts and contradictions, and the economy, society, and ecology will be difficult to develop harmoniously and balance. Third, this chapter argues that the emergence of economic law and social law as a third legal domain beyond "private law socialization" and "public law socialization" arises from the need for effective social integration at the level of the overall society. For this reason, economic law cannot but have a stronger toward substantive rule of law and take the realization of social justice as its value pursuit. Finally, this chapter elaborates on the multidisciplinary theoretical foundation for the generation of economic law humanistic justice. In terms of sociological foundations, attention should be paid to social cooperation, social symbiosis, and social responsibility; in terms of economic ethics foundations, the excessive egoism should be corrected by human nature's altruism, and the development goal of maximizing wealth should be corrected by the development goal of maximizing happiness; in terms of political philosophy foundations, democracy and public will should be the foundation, and attention should also be paid to "communitarianism"; in terms of legal theory foundations, human rights are the ultimate goal, and social justice is the highest value pursuit.
Chapter 3 is the Cognitive Path of Economic Law Humanism. Following the basic humanistic legal logic of "human nature—human needs (legal needs)—interests—legitimacy judgment with justice as its core (democracy)—human rights (legal rights)," this chapter cognizes economic law humanism. First, the understanding of "people" in economic law is the starting point for the cognition of economic law humanism. In terms of human nature, the "person" in economic law is a "moral person" with collective rationality and altruism; in terms of existence, the "person" in economic law is a concrete person, a "social person" and an "ecological person"; in terms of human needs, the "person" in economic law needs the unity of economic freedom and economic order, the unity of economic competition and economic cooperation, and the unity of economic efficiency and economic fairness. Second, the understanding of the social overall interest view in economic law is the center of the cognition of economic law humanism. Social overall interest is a real, independent form of interest. In the perspective of economic law, the specific connotation of social overall interest should be understood from the perspective of social integration of interests between strong and weak social groups. Third, the understanding of the human rights view in economic law is the purpose of the cognition of economic law humanism. Economic law should respect human rights and, under the guidance of economic constitutionalism, protect the realization of basic human rights. The essence of the human rights view in economic law is the contradiction between human rights and property rights, and its purpose is to resolve the contradiction between strong and weak social groups in the realization of basic human rights. Therefore, the protection of human rights by economic law is primarily manifested in the limitation of the economic power abuse of strong social groups by economic law and the attention to the basic human rights of weak social groups. Finally, the understanding of the economic democracy view in economic law is the path for economic law to implement humanism. In the perspective of economic law, economic democracy is more of a procedural democracy centered on compromise and a process of interaction. The purpose of establishing procedural democracy by economic law is to judge the legitimacy of government intervention power, clarify the ambiguity of social overall interest, and thus maintain and promote social overall interest. For this reason, economic law should establish a procedural democracy mechanism centered on social overall interest, namely, the interest representation mechanism of weak social groups, the supplementary representation or participation mechanism for social overall interest, and the public interest litigation mechanism, and introduce such mechanisms into the legal regulation of macro and microeconomic fields.
Chapter 4 is the Humanistic Philosophy and Methodology of Economic Law. Humanism is both the meta-philosophy and the fundamental methodology of economic law. This chapter explores the humanistic philosophy and methodology of economic law. In terms of the humanistic philosophy of economic law, starting from the meta-philosophy of humanism, the humanistic philosophy can further be derived as a philosophy of coexistence, harmony, and development, and economic law should take coexistence, harmony, and development as its philosophy. Under the humanistic philosophy, economic law should take the integration of the value of freedom and the value of order, and the integration of the value of efficiency and the value of fairness as its value orientation. Under the humanistic philosophy and value orientation, economic law should take moderate state (government) intervention and economic democracy as its basic principles, while also paying attention to changes in related aspects of economic law liability. In terms of the humanistic methodology of economic law, starting from the fundamental methodology of humanism, the basic analytical framework of economic law should be positioned as "imbalance—balance," imbalance being the premise and assumption, and balance being the means and purpose. Under this basic analytical framework, the basic analytical methods of economic law at least include systems analysis and interest bargaining analysis.
Chapter 5 is the Institutional Embodiment of Economic Law Humanism. The humanistic philosophy and methodology of economic law should be reflected in all the institutions of economic law. This chapter, centered on the interest comparison between strong and weak social groups, examines the institutional embodiment of economic law humanism from the two levels of microeconomic regulation law and macroeconomic regulation law. In terms of the humanistic embodiment of microeconomic regulation law, it mainly includes the following aspects: first, the legal regulation of the internal strong and weak comparison relationships within enterprises, such as the interest comparison relationships between shareholders and laborers, major shareholders and small and medium-sized shareholders, and managers and shareholders; second, the legal regulation of the strong and weak comparison relationships between enterprises and external relations in the interest comparison relationships, such as the interest comparison relationships between enterprises and the public, enterprises and consumers, and enterprises and other enterprises and consumers with competition; third, the social responsibilities of enterprises to internal and external related interest holders, such as the social responsibilities of enterprises to relatively weak employees, consumers, creditors, future generations, and local communities, as well as the social responsibilities of large enterprises to small and medium-sized enterprises. In terms of the humanistic embodiment of macroeconomic regulation law, it mainly includes the legal adjustments of strong and weak comparison relationships from the perspectives of macro-control law and sustainable development law. The strong and weak comparison relationships under the macro-control law mainly include the interest comparison relationships between regions, industries, sectors, large enterprises and small and medium-sized enterprises, state-owned enterprises and private enterprises, foreign capital and domestic capital, and the central and local governments; the strong and weak comparison relationships under the sustainable development law mainly involve the interest comparison relationships between contemporaries and between contemporaries and future generations.
Chapter 6 is the People-Centered Chinese Economic Law on the Path to Practice. To enable Chinese economic law to move toward practice and be people-centered, it must take the real Chinese people as its foundation, return to the daily life world of the real Chinese people, pay attention to the many economic and social problems arising from modernity in China's economic and social transformation period, establish a humanistic spirit and philosophy, and be committed to the harmonious and balanced development of Chinese economy and society. For this reason, first, this chapter examines the current state of China's economic and social development from the perspective of humanism. It points out that although China's modernization has developed rapidly, the development of modernity has relatively lagged behind, and to some extent, the criticism and inheritance of Western modernity have been somewhat excessive, which has largely led to the "break" and "imbalance" between China's economic development and social development, polarization between the rich and the poor, and the differentiation between strong and weak social groups. Therefore, the times require economic law to integrate society from a people-centered perspective. Second, this chapter analyzes the local characteristics of people-centeredness for Chinese economic law. "Market failure—government intervention" is the basic theoretical framework of economic law. However, the "market failure" and "government intervention" during China's economic and social transformation period have origins and effects different from those in the West. Therefore, for Chinese economic law to move toward being people-centered, it should place "market failure" and "government intervention" more in the realistic national conditions and context of China's economic and social transformation period for understanding and reflection. Third, this chapter explores the path for Chinese economic law to implement people-centeredness. This path is to take the logic of people-centered economic democracy as the red thread and guidance, from the economic constitution to economic law. This includes the expansion of the basic theoretical framework of economic law from "market—government" to "constitutionalism—market—government," the appeal of constitutional human rights to the social integration of people-centered economic law, and the creation of mechanisms for economic law to maintain and promote social overall interest under this. In the creation of mechanisms for maintaining and promoting social overall interest, economic law should establish an interest representation mechanism for weak social groups, a participation mechanism for social overall interest, and a public interest litigation mechanism.