The Rise Of Constitutionalism: A Perspective Of Property Rights

This dissertation presents a study of the rise of constitutionalism under property rights. The partâ… is a review of the research questions, which is followed by four chapers'discussion of the rise of constitutionalism in various aspects from the property rights perspective. Chapter Five focuses on specific probloms in China.Chapter One starts with a systemic study of the concpet of property rights, which leads to an explicit definiton. Through comparative analysis of the content of property rights between China and western countries, the exsiting differneces between Civil Law and Constitution are studied and an explicit definiton is made. Constitutionalism is a negative political mechanism, which regulate and limit authority of Government Democracy on the basis of democracy in the process of pursuing liberties and rights. As a sustainable approach, it limits and regulates power. The legal rules secure the aim of Human Rights and Independence, and liberties of citizenry. Constitutionalism regulates all sorts of social relations, such as policital relations, economic relations, administrial relations, etc. Nonetheless, there is a supreme rule underlying all such relations, the interests among individuals, which imbody the right of property. Property right is not only an inherent right, but also the fundmental interests among social numbers. The very existance of property rights is to fulfill human's needs of survival and freedom. In order to meet the needs of protecting property rights and the growing interests in various fields, civil orgnizations based on economic interests were formed spontaneously. During the process of continuous gaming with the authority of state, the parliamentarism which was recongnised by constitution or representative system under political consultative mechanism was fully promoted. At the same time the economic and social struture of humen society were experiencing a gaint leap towards an advanced state and even more great civilization.Chapter Two focuses on the value which was contributed by property right in the formation of constitutionalism from static angle, which includes the following aspects. Firstly, being the initial power of productivity and production relations, property right accelerates the development of social commodity economy and market economy. It contributes not only as the source of wealth, but also an economic fundation during the establishment of constitutionalism. Secondly, property right recongnizes people as independent and liberated individules in the society. everybody is a unique entity which differs from the nature and one another. Moreover, it is the substance which people live on takes the duty of securing the system of human rights. It is safe to say that human rights hardly exist without the protection of property. Therefore, human right securing system based on property right is a valuable goal to the constitutionalism. Thirdly, the defensive nature of property rights protects itself from governmental invasion by building up a soiled barrier of indenpendant private secoters. Such development not only accelerates the improvement of private social self-governing, but also forms a dualistic country structure which involes the opposition of citizenry society and political domain. The conflicting result between the private right and public power conforms the leading position of right agaist power, which reconstructs the relation between people and country. The relation that public power limited by private right is well recognized as the essential value of modern democracy. Fourthly, property rights promote the development of democracy and the rule of law. It is not only the driven power of modern democracy, but also the private force which the rule of law would build upon. Therefore, it is an indispensible value in the raise of constitutionalism.Chapter Three is on property rights'influence on the rise of constitutionalism from a static perspective. This process is construed through financial constitutionalism, which is the compromise from state rights to civil rights through taxation restrction. Financial constitutionalism is also called financial parliamentarinism, which states the principles of property relations between country and citizens. It helps people become masters of the country through the adjustment of the relationship between the country and citizen's private property. With financial constitutionalism,.the representative system of democracy and legality restricts government's rights and protect people's propety from infringement. Thus, the process of the rise of financial constitutionalism is the same with that of constitutionalism. The working mechanism of property rights to the rise of constitutionalism includes the following points. Firstly, it promotes the construction of modern public financial system through the control of government's expenditure of financial revenue and specification of power working system of the rise of constitutionalism. Secondly, it promotes the rise of modern representive system of democracy, which defines the structure of constitutionalism and establishes the constitution of peoperty protection and financial control. Thirdly, it promotes the legalism of tax revenue, which, in turn, builds property and civil rights protection as the aim of constitutionalism. Fourthly, it promotes the rise and development of financial budget law, which improves financial constitutionalism, forms both legitimacy-oriented and rationality-oriented exnamination system, and thus, establishes effective restrictions of state power.Charpter Four focuses on historical review. In this chapter, The UK, US and France will be taken as examples towards the fromation of mordern weastern property rights and constitutionalism. It can be observed that early as the late of medieval ages, the theory of absolute property rights had already been established and secured by commen law in the UK. Furthermore, under multiple powers, constitutionalism came into being and grew, and such development helped the promotion of social autonomy and improvments in the parliament. On the ground of property rights, autonomy power grew stranger and stranger, which battled sovereign power time after time, and finaly the fund of a constitutional country marked its significant victory over the England sovereign. Such common legal traditions were inherited by the colonies'property rules in North Amercian. The porperty rights guaranteed great profits for its owners, and by this way, indenpendant self-governing establishment was developed and the idea of constitutionalism was widely spread all over the colonies. When the English Sovereign seized his greater control over the colonies by increasing taxes, he had to face resistance from all over the colonies. With the idea of constitutionalism, the colonies were finally won the war of independence and formed the constitutional system of the US. On the otiher hand, France experienced another different approach. With the lost of property rights and the decline of parliamentary power, the soverign power became more and more despotic. With other citizenry rights were also violated, the development of constitutionalism was restrained. Then, with the lack of constitutionalism character, the french revolution was taken place. However, the radical revolution only led to an even worse despotic situation. Only after years of struggle, property rights were restored and constituional mechanism was found.The focus of chapter Five is on the situations of China. During the late of feudal ages, constitutionalism was introduced by Chinese elite in order to save China from poverty and underdevelopment. But due to lack of property rights, several movements of constitutionalism were failed. After the found of PRC, property rights were primiarily constracted and economy was recovered quickly in the first three decades. Howover, before it had the chance to stabilise and enhance such improvement, radical polical movements and the socialization of private property resulted in a backward of consitutionalism. In recent three decades, with the economic reform and the formation of a improving polical system, the property right was restored and further promoted along with the market economy mechannism. The construction of consitutuionalism is also experiencing a major recovery. However, due to the uneven development of property rights, economy growth and consitutionalism construction, problems in the field of property right, distribution and protection are somehow major obstruction towards the found of China constitutionalism. Therefore, current domestic status must be taken into consideration. Combined with the advanced experience of western constitutionalism, the China constitutionalism should be explored with great effort, which could only be achieved by developing a sound mechanism to secure property rights. In this chapter, it is argued that on one hand, in order to complete legislation of property rights, distribution mechansim should be improved under the market economy system. The protection of private right to property should be strengthened along with the public right to property. This is an appoach which could deem to be from top to bottom. One the other hand, in order to restrict state's power, it is essential to accomplish the democratic political restructuring on the base of people's congress. Building up a government on the ground of rule of law, ensure the government enforces its duty on securing the fundmental citizenry rights under the scope of constitution and law, and finally to provide institutional support for both private and public property right. It is a top-to-bottom approach in respect of finalising property right and constructuring consitututionalism.