Research On Cultural Rights In The Context Of The Constitution

People pay close attention to cultural rights. The studies of cultural rights pick up steam in the academic circles. Throughout most of the existing studies are no answers of the original proposition of what are cultural rights. The basic consensuses about this proposition are not reached, the mirage of cultural rights which is build up by more and more researches, is the danger of collapse at any time. Because each researcher all say to himself, we can't judge who is right or wrong. This status of researches will hinder the further research on the cultural rights. The paper studies for the center with what are cultural rights in the constitution, and to build the consensus platform of cultural rights research through revealing the core content of culture rights in the constitution.The first chapter is to answer "what is the constitutional culture". The content of culture is wide and uncertain, thus, choosing a real, reliable and feasible perspective to research of what are cultural rights, it is very necessary. This paper chooses the constitution text as cultural rights research field. This paper finds that the culture content in the constitution experiences the evolution process from science, literature, art and technology to generalizations, through careful inspecting of the meanings of culture at all times and in all places, and combining the consensus of cultural right about that the cultural articles are article 47 of our Constitution and article 15 of International Covenant on Economic, Social and Cultural Rights. Thus it can be seen that culture in the constitution refers to the typical types of intellectual property, such as "science, literature, art, and technology". Thus this paper unearth the generalities of science, literature, art and technology, and regard the generalities as the criterion of "culture" identification in the constitutional cultural rights, and lay the foundation of confirming the connotation and denotation of cultural rights in the constitution.The second chapter reveals "the expression of cultural rights in the constitution". First of all, the expression of cultural rights in the international human rights law is investigated as the origin of the constitutional expression, and points out that although the constitutions made after the second world war are affected meaningfully by cultural rights in the international human rights law from the pattern to the details. But the value basis and the content of cultural rights in the international human rights law are different from in the constitution. Second, the expressions of cultural rights in the countries' constitution in the world carry out the overall and individual investigation on "science, literature, art, technology". From the overall investigation, we find that "science, literature, art, technology" several kinds of typical culture are accepted in the vast majority of countries' constitutions. From the content of cultural rights on "science, literature, art, technology", the subject status of the individual person is approved, but the subject status of the collectivity isn't involved. Cultural freedom and the beneficial right of cultural achievements are valued highly, and they express by the right mode. But rights of the cultural development and policy participation are stipulated in the articles of public policies. In the special investigation, this paper are selected respectively several constitutions which is typical, such as “The Weimar Constitution” which is called as the source of cultural rights; "Constitution of the Republic of Portugal" in which cultural rights are set a chapter; "Constitution of the Republic of South Africa" in which cultural rights are hidden from other rights; "The Constitution of the People's Republic of China" in which cultural rights are set an article. And the paper elucidates the merit and demerit of the different mode, the content of rights, the rights' nature and so on.The third chapter builds "the construction of cultural rights in the constitution". First, this paper discusses the subject of cultural rights in the constitution, and only "individual" is the subject, the collectivity aren't. This characteristic of cultural rights is confirmed by constitutional texts of the countries in all over the world. They often use "everyone,a person,a citizen,a nation" etc. And this paper points out that, the subject of culture rights in the constitutional changes a citizen from a person, because of the economic, political, and social foundation conditions. Second, according to examine the texts, cultural rights define that a person participates in cultural life. This right divides into two genres which are the empirical and concept rights. Empirical rights divide into the appreciator and participator according to the different status. Concept rights abstractly classify the rights which are concluded in empirical rights. So we find that the types of cultural rights are mainly the cultural liberty, the beneficial right and the right to development in the cultural field, the participation of the policy discuss. Then the paper distinguishes with the rights of scientific research, academic freedom, the right to education, non-material cultural heritage. Finally the paper interprets the types, characteristics and function of the object of culture rights.The fourth chapter analyses "the function of cultural rights in the constitution". Cultural rights have dual attributes which are the liberty, social rights. From this, these functions are mainly the defense, beneficial, institutional safeguard. Cultural freedom mainly has the right to defense function, and mainly show that the subject of rights has the right to exclude state intervention, corresponding to it, the state burdens with nonfeasance. In addition, the paper particularly illustrates the defensive function of the social rights nature of cultural rights. It means that the subject of cultural rights have the right to its performance as the main body in the right to exclude the disrespectful behavior of the status. At the same time, the status has the obligation to "no infringement". The beneficial functions of cultural rights include the negative and positive aspects. The negative beneficial function means that the subject has the right to request relief and the status has the obligation to protect. The positive beneficial function indicates that the cultural rights subject has the right to request the cultural interests from the country and the status has the obligation to pay.In addition, the institutional safeguard function particularly emphasizes that the behavior of the status cannot violate the institution which conceals in cultural rights. Meanwhile the status must actively create all kinds of reasonable systems, and follow the principles of "enough guarantee ", "system justice principle", "residual theory principle".The fifth chapter analyses "the restrictions of cultural rights in the constitution". First of all, this paper looks into articles of the general restrictions and special restrictions about the cultural rights in the constitutional. The general restrictions refer to the restrictive articles which can be applied to all basic rights in the constitutional texts. The special restrictions mean that the restrictive articles only go for the cultural rights. These two kinds of restrictive articles are aimed at the restrictions of the liberal rights. These restrictive reasons are all much of a muchness, such as public interests, other constitutional rights and the emergency period of the state, etc. Secondly, this paper respectively analysises the restrictions of the cultural rights of the liberal and social rights. This paper particularly explains the reasons, the characteristics and the banning situations of the cultural rights restrictions of which the nature is the liberal rights. As a result of the limitations of social rights of cultural rights in the constitutional text are without clear rules, through the analysis of the basic characteristics of social rights, this paper reveals the social rights of cultural rights have limited for "progressive payment", "auxiliary principle" and so on.The sixth chapter discusses "cultural rights guaranteed in the constitution". Throughout the constitution texts in the world, basic rights mainly safeguard by the national policy, the national legislation and national judicial and other human rights mechanism. By examining constitutional texts around the world, the realization of cultural rights appears that the subjective rights have been turned into the objective rights. At present, the of the constitution texts which rule cultural rights generally accepted the function of subjective rights and the objective value order which is the cultural freedom and rights subject itself the beneficial rights. And the beneficial rights of the social and cultural achievements only emphasize the objective value order, rights of cultural development and right to participate in cultural politics, but deny to the subjective rights nature of cultural rights. Thus, the cultural rights of which the nature is social rights are guaranteed by national policy and protection mechanism of national human rights, and the national legislations and judicial implementations are underpowered. At present, the cultural liberty, the beneficial rights of the subject's own achievements are protected by the national legislations and judicial ways, while the beneficial rights of the social cultural achievements, rights of the cultural development, the cultural policy participation are often protected by the national policy.