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The Theory Of Property Rights Under The View Of Constitutionalism In Modern Britain

Posted on:2010-05-24Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y F YanFull Text:PDF
GTID:1116330338482112Subject:Economic Law
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The idea of property rights in the sense of constitutionalism in modern Britain, which has model value and far-reaching influence to late ages, is the theoretical source of contemporary property rights thought and system. John Locke in the stage of natural rights, David Hume and Adam Smith in the Scottish Enlightenment, Jeremy Bentham and John Stuart Mill as Utilitarian are the respective representatives of the three development stages. The five thinkers'works are classical versions of these fields. The researches on the five thinkers'thought about property rights in the mainland academic fields are confined to individual personages. And there is no achievement on systematic understanding and making the inner evolutionary process of the idea of property rights in this period clear. So, the inquiry to inner evolutionary process of the idea of property rights in the history of modern British liberalism from absolute and sacred to relative and limited after its establishment has important significance. This has great value to understanding and solving current theoretic divergence, to promoting the rebuilding of the idea of property justice, and to making the value orientation of property system clear.John Locke created the theoretic normal formulas of property rights in the history of modern liberalism. In order to solve the problem of rebuilding the justificatory foundation of the political power in his times, John Locke, a theorist in England political transformation of modern times, acutely seized the historical moment of property rights based on individualism, established the fundamental position of property rights as natural rights in political philosophy. Since then, the problem of property rights was no longer a pure problem of civil law which had nothing to do with political system, but a constitutional problem which was deeply related to defending individual liberty. Gradually, property rights acquired almost absolute and sacred position.Scottish Enlightenment thought, whose representatives were Hume and Smith, bridged the rational rift in Locke's property rights theory and therefore completed the proof of feeling psychology in political philosophy of British classical liberalism. David Hume doubted the idea of natural rights with transcendentalism color and the doctrine of social contract with meaning of rationalism. He pulled property rights back to the society from the state of nature of John Locke, and regarded it as the core of the laws of justice of artificial virtue. He thought the basis of government authority and its justification should be based on defending the laws of justice which took property rights as the core. From"A Treatise of Human Nature"by Hume in which he talked about the England revolution, and Locke's writing date of"Two Treatises of Government"re-demarcated by Peter Laslett, it was Hume but not Locke who theoretically provided justificatory proof for"Glorious Revolution". According to"Lectures on Jurisprudence"by Adam Smith, property rights are not natural rights, but acquired rights various in different societies and different ages which are related to conventions and dependent on specific political system conditions. Property rights what Smith advocated are as absolute rights as natural rights, which others have absolute obligation not to damage and government has responsibility to protect. Smith thought property rights were closely related to the origin of government, thus emphasized the dimension of economic liberalism and made clear the province of government.Utility principles of Bentham and John Stuart Mill stand for radical democracy and limited property rights, this caused democratic constitutionalism separate from liberal property. The idea of natural rights and the doctrine of social contract were completely replaced by the utility principle of Bentham. For him, property rights were legal rights, exactly civil rights. Bentham insisted on the safe value of property, at the same time, he emphasized that the property should be limited and distributed more equally. Bentham's political theory was separated from property because of his advocating radical democracy. The inseparable connection between property and liberty in the works of Locke and Smith in early classic times became indistinct, and the political meaning of property became weaker. As the successor and reviser of Bentham's utility principles, John Stuart Mill tried to balance the inner conflict between liberty and equality which had appeared at his times. Although he claimed that he insisted on the principle of laissez-faire, he separated the laws of production from the law of distribution, thus made convenience for state interference and socialism. He sympathized and yearned for socialism. So he pushed property rights over thoroughly from the chancel. From then on, classical, sacred and absolute property rights gave way to modern, relative and limited property rights. His theory of representative government changed from pure democracy to revised democracy, in which he emphasized to guard against majority misrule, so property only kept function of means and its political meaning became more ambiguous.The evolutionary process of property rights in this period provides some enlightenment as follows benefit for understanding and solving current theoretical problems. First, during the transformation of modern British, the establishment and development of property rights is of vital importance for the development of industry and commerce, the formation of constitutional system and cultivation individual independent spirits. Second, thinkers such as Locke etcetera had classically proved that property rights are human rights. The property rights in constitution are the fundamental human rights that resist the stretch of public power in public law. This reflects the defensive nature of property rights in defending liberty and dignity of human personality. Third, property rights are not only economic rights but also of political nature. We should realize its dual significance as the intersection of economy and politics. Only in this way can we put an end to the fatal divergence which has existed at the two international human rights covenants (ICESCR and ICCPR), and really implement inter-dependent and undivided principles among economic, social, cultural, civil and political rights.The change from traditional society to modern society of china from 1840 is similar to that of the West from 17th century to19th century. So, Using British experience for reference, the initial task of contemporary China is to rebuild the idea of property justice and make it clear that property rights in constitution have the nature of human rights. Secondly, the value orientation of property rights provisions in constitution between modern (absolute and sacred) and contemporary (relative and limited) should objectively reflect the requirement of historical laws. Last but not the least, it is urgent need to deepen the reform of property rights, and solve the problem of truncated property rights gradually.
Keywords/Search Tags:Constitutionalism, Property Rights, Liberalism, Utilitarianism, Natural Rights, the Laws of Justice
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