The Historical Evolution Of The Autonomy Of Private Law And Civil Law System Is Perfect

Freedom explains the humanism. Without freedom, there is no humanism. In this point, Individual autonomy is the realization of the individual freedom. Individual autonomy makes an important question which is still a fundamental question in the modern times, which is how to balance the conflict between individual freedom and society, between individual freedom and state interference, between freedom and confining. Individual autonomy has two faces, one is the relation of individual freedom and state interference, the other is the freedom between the man and the other man. The theories of freedom have been stated in many books, but freedom has realized in the Civil law, in the legalization of the individual autonomy. The market economy has its principle and the principle of individual autonomy is the reflection of the laissez--faire economy. The contract spirit and the humanity formed the foundations of individual autonomy. In civil society, this principle is the basic principle. With the development of law science, freedom of property, freedom of contract, freedom of wills, etc have been formed. The civil law system has been construed through the concept of persona, objective right, legal act, etc gradually. In this process, individual autonomy formed the core and the spirit of legal system.The society is not still, and so is civil society. With the development of the civil society, individual freedom which is the emphasis of individual autonomy has made a turn gradually. In modern society, which is different from the old civil society in the forms of society, the civil law has also turned. In modern civil law, the individual freedom is also the core, and individual autonomy is also the fundamental principle of civil law, the development is that the private law should commit the social commission which is different from the traditional private law.In the process of development, there are three roads which could explain the turning.Firstly, the relation between individual freedom and state right is complex. In modern society, the state gradually commit many social commission which had not belongs to the state. Public law gradually intruded the sphere of private law. How to explain this? The individual autonomy still exists? The question is an old but also new question. And the answer is different. We should analysis the the economic foundation of the modern society and the human rights and the society order. The plurualism of the modern society and its complex make the relation between individual freedom and state power more complex which could not analysis from the view of the classic time, neither from the welfare state. In modern times, the protection of human right is very important.Secondly, the concept of freedom includes the relation between individual freedom and other's freedom. This also means the spirit of equality. Without equality, there is no freedom. In this point, the value of equality forms the basis of the individual freedom. The equality and freedom makes the core value of private law. In modern society, the emphasis on the value of equality has made a great influence on the private law. Just with development of society, the system of private law has changed. And the modern institution also makes the right of equality as the basic principle. In the process of pursuit of equality, the forms and value of modern private law has changed from formal equality to substantial equality. In philosophy, equality and freedom exists a conflict. The concept of social justice aims to the pursuit of substantial equality. But the pursuit of substantial equality means some loss of someone's freedom.Thirdly, the relation between individual freedom and ethics is also complex. Private includes the tradition, the culture and ethics. In classical natural law, ethics explained the right of the law. Without ethics, there is no law. With the development of market economy, how to explain the relation between individual freedom and ethics has become an important question. The principle of individual autonomy means ethics which has been founded on the modern society. To be an honest man, also means to be a rational man. The ethics of individual autonomy is different from the traditional ethics, it is also a reflection of market economy. In the development of private law, the value of ethics has become more important. This is a reform, but in other words, it is also a view of the humanism. In this process, individual freedom has been conformed by the modern ethics. There are two points in order to analysis the question, one is that the modern ethics is not a confine of private law, it is just a confine of the abuse of individual freedom. The other is that, in modern society, the law is gradually behind of the development of society, the emphasis on the ethics is a guide for the person, and to make the society develop. This means a construction of new social order.In the process of the modern society, the principles of private law have also changed. The principles such as good faith, the public policy, the principle of equality, and the principle of forbidding abuse of the right, have become more important. These changes make the principle of individual autonomy reconstruct on a new level. In modern private system, the confine on the individual autonomy come from society, ethics etc. How to explain it? The society answers. The pluralism is the tendency of the society, and the pluralism of modern private law principle is its show. But we also should mention that the foundation of pluralism is sill on the market economy, and its aim is still to protect the human right.The philosophy foundation of modern private law is still on the individual freedom, and the individual autonomy is the realization of freedom. Firstly, the confine aims to protect individual autonomy, which is different from the old civil society, aims to protect the humanism of private law. The difference is that the modern society has become more complex and the protection of individual freedom is more difficult. This also explains the value of individual freedom in modern society. Secondly, these confines themselves make the border line. That is to say, to confine means to confine in the due process and by the good reason. Such as public policy or ethics, the confine should right itself.In this thesis, the writer emphasize that the individual freedom is not only a basic concept, it is also a developing concept. The reason is that the freedom makes the base of private law. it is also the basis of the institution. Firstly, individual autonomy or freedom means the spirit and the method of individualism. The humanism is always meted with the individualism. It is not imaginable that the state and society could make without the individual. Secondly, how to understand the freedom also means that the freedom is developing. It should be viewed as a plural thing, not a still thing. Evidently, with the development of society, the concept of freedom is more and more fluent.How to understand mankind? It is a question that we should view it from the development process of humanism, society and law. Autonomy means freedom, it is just one thing. Private law makes humanism as its base and spirit, and the private autonomy is the symbol of the base and the spirit. The theory of private autonomy is an old one, but it is still an important thing in our legalization. Its life is very strong, the reason is that private autonomy means individual freedom, and with the development of society, it also has been developing. Private autonomy, as a basic and a simple principle of law, has become a principle of private law which means more things. And to understand it rightly, we should know that the developing is the key, and the knowledge of the humanism, the law and the society is the base that private autonomy has been growing.Private autonomy makes a line between individual freedom and the state power, and it has the spirit of individual freedom. It is meaningful for our country. The line between individual freedom and state power is common for western countries and our country. Especially in our country, how to make the line is very important. With the development of our society, the spirit of private autonomy should influence our private law system and its design. But, this theory has not been stated clearly in books and other writings. The spirit of individual freedom is just in need for our legalization. In our traditional culture, there is no individual freedom. In other hand, private autonomy also means much ethics. Freedom could not be without ethics, and so the other side. Without ethics, freedom cannot be called freedom. Without freedom, ethics cannot be called modern ethics. For our private law, the value of modern ethics is very important, especially for this point: how to reconstruct the traditional ethics and how to construct the ethics value of private law, and how to deal with the relation between individual freedom and modern ethics. Evidently, both the two sides are very important for our private law.Private autonomy is a thing which is a result of the development of history, and it is also the base which modern private law develops further. In other words, we should analysis it from views of history, and analysis it from the comparative law, from the ups and downs of the social development. And so, we could have a right view of private autonomy.