Freedom Of Thought And Constraints

Beginning with the visual angle of constitutionalism, applying positivism and dialectic ways, and taking relative practices in broadcast and television as examples, the article makes a comprehensive analysis on theory sources and legal basis of the freedom of thought expressing in Germany. This thesis tries to hold the ideas and practices of the freedom of thought expression in German "state of law"; and aims at to the offering of a reference route to China's constitutional construction by this analysis. The article comprises seven parts, and each part is summarized as the following respectively:In preface, the article ascertains the field of the subject of "freedom of thought expressing" and have reasoning on it. The author thinks that it should bond the State Doctrine and Legal Culture Doctrine to analyze the subject thoroughly. The political culture theory and research method shall be also included. The State Doctrine is a theoretical subject which concerns are necessary levers of the state, especially the relationship between the state and the individuals. The Legal Culture Doctrine's concerns are mainly legal phenomena and traditions. Of course, being a legal doctor thesis, the article emphasizes the freedom of thought expressing by the visual angle of "Law".In chapter 1, the author confirms and demonstrates freedom and its two aspects, and analyzes the conception, content and subject of freedom of mind and freedom of thought expressing. The author also investigates humanity basis of freedom of thought expressing in Germany, and reveals German humanity's sources in Greek philosophy and religious culture. Besides, the author discusses the idea of "State of Law" of Germany: the literal implication of "State of Law" is that the law can not be separated from the state and the state must be with the laws, but its essence is to esteem and protect citizens' personal freedom and political freedom.In chapter2, from "human's dignity", "the necessities of exploring the truth", "debating culture of relativism", "maintaining of civil society and requirement for constructing a constitutional state", the author analyzes and discusses the juristic elements which affectfreedom of thought expressing. Firstly, as an individual, man 's dignity has an unrivalled status, but freedom of thought expressing is not purely individualisiert, thought expression requires an indispensable association between subject and object, which is socialization. So, a dignified man's freedom of expression should be limited. Secondly, in order to explore the truth, it is necessary to secure sufficient arguments, because it is the arguments that can ensure attaining the truth. But on the other hand, as relative philosophy reveals, it is necessary to limit the freedom of expression so as to secure the arguments within the rational scope. Thirdly, in light of constitutional state and requirement for constructing civil society order, in order to prevent the state from disorganizing with excessive freedom of expressing, it is indispensable to limit freedom of expressionIn chapter3, the author analyzes the philosophical, practical and cultural basis of the freedom of expression and the limitation legislation in Germany: firstly, through the investigation to the relative theories of Locke, Mill, Montesquieu, I. Kant and Hegel's, the author casts back the theory basis of the idea of State of Law. Secondly,, the author ascertains philosophical basis of the limitation to the freedom of expression which includes two aspects: (A), a rational and moral man's freedom is not absolute, (B), for the state, as an indispensable extrinsic order, the maintain of existence of state also requests limitation to the freedom of expression. The so-called democracy, in fact, is the agreement between the public opinion and state's decision. But, it must limit the ways, contents of expression so as to make democratic system running smoothly. In this chapter, the author concerns the German spirit that admires collectivism of Teutonism (The typical reflection of the spirit in theory is "the pattern of free speech " which Carl Schmitt called.), which is unique in German social and political fields. As a profound and traditional cultural factor, the spirit has great influence over the freedom of expression and relative practices.In chapter4, from the fifth term in the German "Fundamental Law" : each person has the right to express and spread his view freely by oral, writing and drawing, and has the right to gather news which is permitted to be reported. The freedom of publication, broadcast and movie report are protected, and not inspected, the author reveals and discusses the system of law and politics in Germany, which limits the freedom of mind. And what's more, the authorunites several typical cases in federation constitution court with the above demonstrations. The fundamental conclusion in this chapter is: firstly, according to the obligation the masses have the right to accept the information extensively. Television freedom should be protected sufficiently, and not inspected by illegal form. But secondly, in the field of broadcast and television, when it refers to personal reputation, party propaganda and protecting juvenile's rights, some relevant freedom should be limited. And when press freedom endangers the existence of the state, the freedom should be decreased, ceased, even banned. That means, press freedom cannot violate the state's fundamental system, so when the object of the generous democracy jeopardizes the democracy itself, the democracy will retort. In addition, the broadcast and television report should reveal the truth comprehensively and objectively, and news events commented in different angles should also be included.In chaper5, taking broadcast and television for example, the author makes a more comprehensive and profound analysis. In this chapter, the author demonstrates firstly the reason why he takes broadcast and television for example. It lies on two aspects: firstly, broadcast and television have important social function, such as securing the quality of democracy. Secondly, the field possesses the elements, which are necessary to explore the issue of expressing freedom. Subsequently, the author investigates the historical development of German administrative system in broadcast and television, and analyzes two relevant cases. On this ground, the author analyzes the limitations existing in other relevant fields. These limitations include :the freedom of broadcast and television is not controlled and intervened by the state, or some social communities Public broadcast and television can not follow the American commercial way; The restriction by civil law, criminal law, telecommunication law, and international treaties of international organizations such as Broadcast League of Europe and EU (the former is like "Television with No Boundary" , and the latter the "Europe Convention on Protecting Human Rights and Basic Freedom" ) The contents of limitation includes: Limitation to program contents; limitation to autonomy of broadcast and television station; limitation to the Parties and political communities; limitation to the state's freedom and governmental speech. And self-discipline to broadcast and television staff.In the end, the author reviews and concludes the whole thesis from the philosophical view,, and points out that it is possible for us to draw some worthy references from the German ideas for the practices of China at the present time.