On The Civil Right To Culture

Cultural life is a necessary facet in a man’s progress of character independence and maturity, while at the same time the area that the state bears critical constitutional responsibility. In the specific context of China, the reform of cultural institutions is a big issue that impact the the quality and prospect of everyone’s cultural life. However, it’s irrefutable that the right to culture is missing in the process of that reform. Whether taking a citizen as a passive accepter of cultural service provided by the government, or empowering him/her the constitutional right to culture as an active person, then fully getting involved into the construction of his/her own cultural life, this is a far-reaching question. As a constitutional right, the right to culture has, I believe, on one hand established its base of value by its indispensability to the liberty as a modern man and its deep connection with the diversity and creativity of cultural lives in society, and on the other hand, by responding to Chinese people’s rethinking of the state’s proper role in the cultural life…he general reflection on the cultural rationalistic, cultural paternalism and the institutional restraint of cultural life…een confirmed in terms of philosophy of politics. Upon such a ground, I try to initiate a systematical normal construction of the right to culture, and thus offer a preliminary structure of discourse of legal right in the cultural life of a citizen.This dissertation are divided into5chapters. Chapter1describes the background of the topic, offers an overview of the study of this topic currently and then explains the methods and approaches that I will utilize in the writing. The absence of the language, mind and remedy of right during the cultural institution reform in the past30years stimulates all of us to consider quesitong of the right to culture comprehensively. The details or the comments on the gain or loss of the reform will not be my focus. But I want to lay down a basic statement ahead of the following analysis:the current cultural institution in China is in a power-oriented mode, in which a citizen is obedient and dependent to the state, and this mode jeopardizes the ideal of citizen-centered cultural life. Therefore, it’s more than necessary to launch a theoretical and normal construction of the right to culture at the constitutional level.The second chapter set up a definition for the right to culture. By doing so, I make some confusing and tangled concepts clear from eath other, and thus provide a fresh start for the following discussion. The main problem that obstructs a smooth discussion of the right to culture is that we usually use the term "culture" in two quite different ways:a wide definition of "culture" covers all the material accumulations and the sum of the way of lives of a certain group of people or a community, and this word can nealy be equal to "civilization"; while a narrow definition of "culture" depicts only the spiritual side of the way or content of life, such as literature, art, customs. In my study, the meaning of the right to culture in legal terms is confined by cultural life. In other words, the right to culture is the right to participate the cultural life freely. Actually, the right to culture is not the right concerning the general, abstract civilization or the sum of the way of lives of human kind, but the right focusing on how does an individual decide, construct and enjoy his/her cultural life. The study of the "big culture" belongs to the department of anthropology or sociology. The term of "right" used by those departments are not legally defined, and thus beyond the scope of law.Chapter3discovers the intrinsic values of the right to culture. There are three aspects:1. the relation between the right to culture and the liberal status of a modern man;2. the connection of the right to culture to the cultural diversity;3. the connection of the right to culture to the cultural creativity. In fact, the significancy of the right to culture in the prosperity of the cultural life in a society depends on these3statements. First of all, a modern man, compared to a man in ancient time, cares more about the independency of individual life, the progress,integraty and the free realization of his/her personality. As pointed out in this chapter, because the freedom and prosperity of cultural life provide the solid foundation of individual independence, the right to culture is the guard for the "modern need" of human being. Second, concerning the relation between the right to culture and the cultural diversity, I contend that the right to culture matches the natural order of cultural life, which is diversified, and I also state that the right to culture offer a legal protection for the dynamic structure of such diversity…by allowing the change of cultural preference and facilitating the harmonic co-existence of different cultural preferences. So, the right to culture is indispensible to the promotion of cultural diversity. Last, for the relation between the right to culture and the cultural creativity, I point out that the right to culture help preserve the chances of creation and balance the power of establishment in cultural life, thus operates an open structure of culture life which is friendly to creative thoughts and actions. In a word, the right to culture is very important to the creativity of culture.The forth chapter gives a description of the current misunderstanding of the role of the state in cultural life, and then offers some reflection upon these misunderstandings. This chapter will argue that the right to culture ask for a fundamental change of the way the state intervene into citizen’s cultural life, which means the state should abandon the cultural rationalistic, cultural paternalism and the institutional restraint of cultural life. In a language of philosophy of politics, this chapter provides some reasonable criteria for the demarcation of governmental power and individual right in cultural lives, or answer the question of to what extent the government steps into individual’s cultural life will not violate the his/her constitutional rights. Generally speaking, a theory of constitutional right must include the discussion of the nature and limits of the governmental power. So all the arguments concerning the governmental role in cultural life are the must in the normal construction of the right to culture.Chapter5focuses on the normal construction of the right to culture based on the previous chapters. Above all, I dispose the contention of nature of the right:collective right or individual right. I prove that the right to culture as a collective right is confined by strict limitations, and even a typical collective cultural right includes double normal claims which leave the possibility of a conflict with the right of an individual. Generally, the right to culture is an individual right. After that, I continue to analyze all the aspects of the right according to the theory of dichotomy of the fundamental rights…he right to culture as a subjective right and the right to culture as an objective legal order. As a subjective right, the right to culture bears the function of defence and benefit; as an objective legal order, the right to culture set up three obligations for the state, including the construction of a de-centralized mode of governmental power in cultural life, the extraction of ideology from the governance of cultural life, and the active promotion of a diversified cultural life in society.Chapter6extends the analysis to the weakness of the aproach that adopted in the research of right to culture, and points out that the key element to drive the research forward is the promotion of the enforcement of the right.