Outline Of Economic Constitutionalist Philosophy

The construction of the philosophical foundation of economic law is the major subject of the fundamental economic law theory. The economic relation between the state and the market regulated by economic law is the structure which needs to be stipulated and examined on the level of constitutionalism, and needs the actions of economic constitutionalism. Starting with the thinking approach of economic constitutionalist philosophy, the essay tries to construct the philosophical foundation of economic law and develop a new scope and approach for the philosophy of economic law.What constitutionalist philosophy discusses is about the causal interpretation of constitutionalism, which is fundamental, thoughtful and methodical. The thinking approach of economic constitutionalist philosophy is to exploit the philosophical origin of economic constitutionalism, and explain why the society needs economic constitutionalism, and what its internal idea is. Economic constitutionalism is the fundamental rules that state has to adhere to so as to guarantee the order of economic freedom when it takes economic actions. It is the "exclusive command" of the state's economic actions. The thinking basis of the economic constitutionalist philosophy is the theory of the sequenced social contracts, intervention sense based on liberalism, public sense based on individualism, and the power sense based on rights. With the philosophical explanation of economic law as its thread and the economic constitutionalism as its theme, the essay combines the history and reality, and makes a jurisprudential and legal philosophical research and exposition on the basic theory and category of economic constitutionalism. The essay is divided into five parts. The first part exploits the logical starting point,basic concept and proposition of the economic constitutionalism. The second part re-examines and expounds the social contract sense, and explains and constructs the philosophical foundation of economic law with respect to the theory of the sequenced and ranked social contract. The third, forth and fifth parts demonstrate the three pairs of basic categories of economic constitutionalism which are closely related with economic law, i.e. freedom and intervention, the public and the individual, right and power.The first part mainly demonstrates the logical starting point, concept and significance of economic constitutionalism.Starting with the moral examination on the market, the mechanism of the economic operation, the essay raises the question of market morality, which means what kind of character the market should have. The market morality is the order of economic freedom, which is the logical starting point where the economic constitutionalism is. It is the highest goal of the market to realize economic freedom through the correspondence between the market and competition and the contract mechanism. The economic freedom can not be realized automatically, but realized in the market. Therefore, economic freedom is the purpose of the market, while order its instrument, both of which construct the virtue of the market, i.e. the market morality or the order of economic freedom.But it is difficult to establish the order of economic freedom only by the market, because the market has its own limitation which are: there exists non-social rationality among the market actors; there exist some inherent defects in the market, such as imperfect and paid information, imperfect market; the extreme development of the free competition will lead to no freedom but the subversion of the market; the market can not depend on itself to grow and reach maturity. Thus it can be seen that themarket can not solve all the problems. The realization of economic freedom order needs the assistance from the outside of the market, which offers the possibility for the state to participate in it.There is large difference between non-market and market economic formation (free market economy and modern market economy). Under the free market economy, the political realm is separate from the economic one, the state is adverse to the society, so the state is neutral and the government is limited. The mission for constitutionalism is to solve the problem of the virtuous political operation, which pursues the ideal of contract justice, demands that the state play the role of "right-watch", restraints the state power and protects the individual rights. Modern market economy leads to great change of the state sense. History has witnesses the crisis and predicament emerging in the market, which can not be overcome by itself. From then on, the modern market economy becomes an economic form combining market mechanism with state intervention, and the state and society begin to merge. Under the modern market economy, the sense of state intervention and effective government takes the place of the sense of neutral state and limited government. The fundamental goal of this sense is to realize the economic justice required by the modern market economy. The economic justice goes beyond the fundamental value connotation of the free market economy in three aspects: it emphasizes that the justice of starting point includes not only the fairness of opportunity and rules, but also that of all actual strengths before "starting"; it emphasizes that economic freedom includes not only the passive and self-disciplined freedom but also active and other-disciplined freedom; it emphasizes that neither economic efficiency nor economic fairness should be overemphasized to the neglect of the other, which is the inherent connotation of the economic justice.Although the market needs the protection from the state, the state cannot inevitably and effectively guarantee the realization of the market morality, because it needs a good mechanism. Economic constitutionalism is thus advanced to meet this need.Economic constitutionalism is the sub-concept of the constitutionalism. It is the fundamental rule for the state to guarantee the realization of the order of economic freedom by economic actions. It is the "exclusive command" of the state's economic actions. The proper meaning of economic constitutionalism is to seek the balance and harmony between the state's economic power and the individual economic rights, revolting against both economic autocracy of the state's economic power and that of the individual economic rights. The realistic meaning of economic constitutionalism is manifested by the statutory documents embodying the spirit of economic constitutionalism with the economic constitution as the core, but also manifested by the actual implementation of the above-mentioned documents. Only the state's economic actions under the constitutionalist structure can be proper, and helpful to realize the market morality.It is of great significance to advance the concept of the economic constitutionalism, which is displayed on the aspects of the discipline, system and culture. From the aspect of discipline, the advance of economic constitutionalism may contribute to providing the proper and legitimate explanation for the science of economic law and providing real connotation and foundation for the science of economic constitution. And it makes a clear demarcation between the science of economic constitution and constitutional economics. From the aspect of the system, economic constitution may contribute to conducting our state's economic construction and the practice of legal system, and providing intellectual source for the legislation, amendment and abolition of our constitutional law and economic law. Form the aspect of culture, economicconstitutionalism may contribute to changing our traditional culture situation based on collective department. It develops in the market situation the sense of tolerance, legal supremacy and social contract and finally promotes the emergence constitutionalist culture.The second part focuses on the exposition of the philosophical foundation of economic law based on the theory of the social contract.Contract is the basic means for the free society to organize and contact, and it is also the most possible way to realize the harmonious corporation in the society. Contract can also become a general proposition and approach to explain the social phenomenon. Social contract is of the power of constitutionalist explanation and standardization. It is not confined to the explanation of the state, it can also be used to explain the social structure, social phenomenon and social affairs. Generally speaking, social contract is in nature a common unanimous agreement possibly reached with respect to social power, social actions and social corporation. It is the constitutionalist foundation to determine the power mechanism. And the civilized constitution is the constitutionalist and contractual document.The social elements in social contract are not of same nature, and the creation of social contract is in sequence and rank, upon which it can be divided into social political contract, social property contract and social economic contract. The sequenced social contract can convert the ideal of contract into mechanism, the spirit of contract into reality.As far as social political contract is concerned, it is a coordinating mechanism for all kinds of social political powers, it is a agreement for social members and political groups to distribute social administrative power. It has three progressive meaning: firstly, man's life can not be interfered; secondly, the power of administrating society is equally distributed to every social member; thirdly, the specific political personalityof the social members is acquired by his work post, which can not be monopolized and occupied permanently.As far as the social property contract is concerned, it means that all the property legally owned by social members and organizations should be confirmed by law, recognized and respected by society. And the different property shares owned by social members and organizations and the resulting divergence should be recognized by law and tolerated by the society. The social property contract has logically progressive meanings: firstly, legitimate property is protected by law; secondly, the unequal shares of social property are protected by social contract; thirdly, the transference of property takes place in exchange.As far as the social economic contract is concerned, it emerges out of the possible collapse of both the social political contract and the social property contract. Its significance is that it adjusts the unfairness of social property contract and the expansion and exclusive equality of social political contract. And on the basis of keeping the stability of the political contract and the property contract, it integrates collective economic actions possibly formed and taken by the society.The social economic contract has the following connotations ofeconomic law: firstly, protect property-- it urges that social membersshould comply with the social contract, and that they should not interferewith each other; secondly, standardize the basic economic symbols-- itestablishes the basic and standard economic symbols which can be used for calculation and comparison; thirdly, determine certain size of publicproperty to meet the social demand for public goods-- because of thespecific nature of public goods, it defines the scope of public goods which is exclusively produced by the enterprises chosen by the government, and it determines that all social members, the consumers of the public goods, payfor the productive cost by means of tax; fourthly, consent to certain economic actions taken by government to maintain the market mechanism and fairness, ensure the economic security; finally, realize social equalitythrough social conformity-- the social economic contract connote theconformable distribution, the essence of which is to re-distribute the income and takes a small part of individual's property and interests and re-distributes them among the society.Based on the analysis above, it comes to the conclusion that the social contract correspond internally to economic constitutionalism, and the idea of liberty, equality and right that the social economic contract depends on is the spiritual essence of the constitutionalism. The social contract is divided into independent contracts in sequence, which keep the contracts separate, and contribute to reducing the mutual interference of the contracts and improving and perfecting the social framework. The state's economic actions must acquire the grant by social contracts. The purpose for creating social contracts is to facilitate the social corporation and realize the social expectation.The third part focuses on clarifying the relation between freedom and intervention in economic constitutionalism and establishing the intervention sense of economic law based on liberalism.Although it seems that the passive freedom and the active freedom are two categories of freedom sense confronting with ach other, they bring about two closely related categories of constitutionalist sense: passive and active constitutionalist. The passive freedom advocates watching out for and preventing the state intervention into the individual realm. Correspondingly, the passive constitutionalism that approves of passive freedom and objects to active freedom advocates restricting the state power.While the active freedom believes that it is the objective demand of our age for the state power to expand and penetrate into the social economic realm, and it seeks the state power to safeguard and offer actively remedy for the individual rights. Correspondingly, the active constitutionalism approves of the active state intervention into the individual area. Thus it seems that they are incompatible as fire and water.The interventionist advocates that the scope of individual economic activities should be reduced and the state should intervene and participate in the social economic activities. Although the interventionist is of rationality to some degree, the government is not wiser than the market. The nature of power expansion makes the state enter willfully and widely into the free area of the market actors, and encroach upon the autonomic space of the civil society.The purpose of economics constitutionalism is to balance the freedom with intervention, to pursue the harmonious situation with the co-existence of strong government, big market and great society. The freedom in economic constitutionalism means that everyone has freedom to take advantage of his own knowledge and ability to pursue all kinds of goals under the constraint of some rules. Economic constitutionalism is a social instrument to protect freedom, but it does not encourage exclusive and extreme freedom. Freedom should be the one under the rule by law which is the foundation of freedom. Economic constitutionalism needs both the market and the government. The intervention in the economic constitutionalism is the fusion of the state and the market, the conversation of freedom and control, the corporation of the government and the individuals.Economic law advocates intervention based on liberalism, which has three connotations: Firstly, intervention can be both an good and evil power, what is essential is to define the purpose of intervention--protectfreedom but not abolish freedom. The limits that determine intervention depend on the "necessity" of freedom and the market. Secondly, the intervention should go beyond the market interest relations and theinterveners must not seek any interest from intervention-- the state isthe intervener beyond the market interest relation, but not the competitor of the interest. Thirdly, the intervention should be operated on the track of constitutionalism, and it should be determined by economic democratic mechanism, and avoid economy autocracy. The final thrust of interventionlies in the conclusion of new social corporation-- the state can becomethe public place for the individuals to undertake economic and social corporation, the individuals may take collective economic actions in the community of the state beyond the market, and may try all kinds of social corporation and common actions in the community of state by means of the existing expressive mechanism or newly-created mechanism.The forth part expounds the public sense of economic law based on individualism.The classical fable in economics reveals the conflict between the individual and the public. According to the individualist thinking, both tendencies of collectivism and pseudo-individualism should be criticized. The philosophical essence of collectivism lies in that people should put the collectivity in the first place during the course of explaining the society. That is to say, the social or public problem should be regarded as something prior to any specific individual action and the society or the public is exclusively superior to the individual. To some extend, it is reasonable for the collectivist to emphasize the importance of the public. But the practice that places the public exclusively superior to the individual will lead to the danger of the planned-economy and totalitarianism. Thepseudo-individualism emphasizes the integrity of personal rationality. It assumes that the individual is superior to and prior to the society. It is the theory of the unique importance of individualism.Hayek's individualist proposition, the real individualist one, corresponds to the public sense based on individualism, because it emphasizes the protection of reasonable freedom; the individual is not superior to the society in the actual sequence, but superior to the society in the should-be sequence; the society is not inevitably superior to the individual; and rationality is limited.As far as the ideal relation between the individual and the public is concerned, it is the individual's demand to set up a public entity, because the individual is egoistical in pursuit of the maximization of his own interest, at the same time, the realization of his own interest and motivation is altruistic. The original role of the public entity is the system that conforms to the social fairness and justice, which is based on, but also beyond self-interest. It is the bridge for the individual to corporate and contact. Although it serves self-interest, it does not exist for certain self-interest. What it tries to ensure is both of the maximization of self-interest and the long-term maximization of the social efficiency. In order to avoid the consumption resulting from the clash of each other's interest, the individual grants part of his rights to form public power by means of the social contract. But the public is not superior to the individual. The public should serve all the individual's rights. Specifically speaking, the individual is the logical starting-point of the public. The public is the common will of the individual to meet their demands, the link between the individual and a social mechanism and the way of social formation. The individual is not exclusively egoistical while the public is not exclusively altruistic. The public and the individual should respect each other to settle their conflicts. The conflicts emerged in the process of formation of thepublic entity are resolved by free expression and democratic mechanism such as voting. When conflicts emerge in the public entity, constitutionalism is needed to control the possibility that the public entity may do evil to the society and the individual.The public economic actions should be restrained by constitutionalism. No matter in historical or realistic view, the public entity can be both blessedness and a danger. The formation of the public entity should satisfy the basic requirement of constitutionalism: Firstly, the interests brought about by the public entity should be enjoyed by all social members. Secondly, the public entity is a kind of choice when they have difficulty in implementing their actions and realizing their interests. Thirdly, the public entity should eliminate the fundamental conflicts of the individuals. Fourthly, the public entity should not cause the intense interest conflict and clash between the individual and itself. Fifthly, the interest of the public entity should not be enjoyed by only part of its members. Finally, the distribution of the public interest should be fair. Public actions should also pay some necessary cost: Firstly, the determination of the public purpose should gain recognition of the common people. Secondly, the due process of the public entity should be set in advance and should not be violated. Thirdly, the acquirement of the public interest should not shake the social property framework from its bottom. Fourthly, the individuals' loss made by the public entity should be adequately compensated. Finally, the public entity should respect and realize the individual's interest while weighing the public and individual interests.The public economic decision-making under the condition of constitutionalism should satisfy the requirements of constitutionalism: it should conform to the preference of the majority and gain the approval of the people, and it should not shake the property order and prevent public power from interfering the private rights at random. In order to ensure thedecision to be rational and scientific the due process should be observed and the people's will can be expressed by the representatives elected by them, and then the common will is reached and submitted to the government to form a policy that will be implemented in later time.The fifth part examines the economic power and its partaking.When comparing with right, power has the second characteristics. As a social governing power, it is a kind of entitlement of participation and expression in the social institutional arrangement and social affair administration. Partaking of power is the product of social actions and unanimous delegation of public affair administration by the social members. State power is not inherent, and the citizens' rights are the source of the power. Power is the result of institutional arrangement. The function of constitutionalism lies in the demarcation established between state power and citizen rights, preventing state power from going across the demarcation. It encourages the citizens to participate the public affairs while protecting their rights. With respect to the check of power, constitutionalism focuses on ensuring the power's institution, process and rule of law. What constitutionalism will deal with at first is the legitimacyof power-- in substantial aspect, power should come from public will, itshould be obtained from the people and delegated by the people and finally serve the people. In formal aspect, the obtaining of all powers should be prescribed and confirmed by law. In general, power is determined and governed by rights.Economic power is the power of the individual, the society, and the state to govern the public economic affairs. There exists both difference and link between the economic power and political power. In the society of democracy and market, politics and economy operate on the separate tracks.Politics cannot compel economy for no reason, while economic operation does not simply cater to the political value determination.Economic power should be open to all the persons, classes, ranks and groups, and should not become the private thing of a certain class or group. In the economic situation that the society needs promoting and the state function needs expanding, economic power has become an active element of power independent of the political power. It is the social contract about the arrangement of the public economic affairs between the social members and the state. It should be at least enjoyed commonly by the legislation, administration, state agencies and social members. Only the economic power shared by the state and the social members can protect the sociability and democracy of economy. The economic power can be categorized into the legislative economic power, administrative economic power, special agency's economic power and social members' economic power. In the framework of the economic power, the principle of legitimacy of the administrative economic behaviors is particularly important. Whether the administrative economic behavior is legitimate is concerned with two problems. Firstly, what kind of legitimate power should the administration have? Secondly, how to ensure that the power is properly exercised? The administration has two key powers that can be interpreted legitimately. One is the monopoly property on the natural resources in the state sovereignty. The other is the taxation power on the social members of the state. The proper exercise of the administrative economic power should comply with the following rules: economic power should be exercised in balance, the rent of the state property should be protected, the scope of power should not expanded, and the market mechanism should not be interfered.