| Freedom is a great, mysterious and lofty word that makes people lookforward to. Freedom has a close relation with law. On the one hand, withoutlaw, freedom would not be perfect and will be damaged. On the other hand,law would be the tool of violence without freedom. The scope of freedom thatpeople enjoy contacts with the transition of law and fluctuates along with hevalue orientation of the law. In our country, in the long haul, due to thepolitical and economic centralization of the state power, the state powerinvades each realm of the society and many aspects of the individual liveswithout any restriction, so it causes the disappearance of individual freedom.With the reformation and the social transformation, the flag of individualfreedom dances in China. It requests the state to retreat from the realms wherethe state shouldn't be involved in and should guarantee the individual freedom.The change of the ideal of law brings the development of law. This is thetendency of the historic progress with the changes of value choices of the lawinstitutes.This article is divided into four parts.The first part: freedom in modern law. In this part, I introduce theexplanation and classification of freedom and also point out freedom means, inphilosophy, according to the nature. But in the realm of the social politicalrelation, freedom includes the political freedom, idealistic and culture freedomand economic freedom. At the same time, the more meaningful classificationis made by the Britain scholar called Berlin. Berlin classifies freedom intopositive freedom and negative freedom. Negative freedom means that thesubject is free from something, whereas positive freedom means that thesubject is free to do something. Restriction to negative freedom comes fromthe exterior of subject and the restriction to positive freedom comes from theinterior of subject. It is obvious that freedom always means that it is a kind ofstate in which the subject is not coerced, regardless of the coercion comingfrom the exterior or interior of subject.Secondly, I analyze the relation between law and freedom, pointing outthat the confirmation and maintenance to freedom are the basic contents thatcharacterize the law. At the same time, whether to respect and guaranteefreedom is an important standard to adjudicate the law. The freedom is historicand is restricted by the physical life terms and law. But pursuing for freedom isnot only the motive to push the history advance, but also the positive factor tomake the law being revised. The second part is the social transformation and individual freedom.Firstly, I introduce two social transformations in the western society and thehuge change of the freedom ideal. The western society in modern age sharesclassic liberalism that emphasizes the individual freedom, worshipping thenegative freedom. However, with the social development, the capitalismdeveloped into the monopolization period. The emergence of the welfare statemarks the first big transformation. The classic liberalism also developed intothe welfare liberalism. The welfare liberalism emphasizes the positive freedomon the found of negative liberty and claims the state intervene the nationaleconomy to enhance the welfare. At the end of 1970's, the capitalism sinksinto the mire pond of the stagnation. The rising of 'the Reagan economy'symbolizes the second transformation, and the new liberalism replaces thewelfare liberalism and occupies the main current. The new liberalism supportsthe negative freedom and thinks the market is the source of freedom itself. Soit objects to intervention of the government. From above, we can see that individual freedom is the highest value. Thenotion hasn't been changed whether the classic liberalism or the welfareliberalism. Then, I point out that our country is in the period of societytransformation. This process is a process from traditional society to modernsociety. According to the theory of Parsons, main characteristics of modernsociety are as following: market economy, democracy and individual freedom.Social transformation brings so many laws amended. The three elementsinteract with each other to improve the social progress. From this, the socialtransformation takes place with the establishment of the individual values, butthe establishment of the individual freedom require the restriction the statepowers. In the third part, I points out that individual freedom is the valueorientation of the transformation of law. Then I make the positive analysis tothe amendment of Foreign Trade Law in our country and point out that thecharacteristics of transformation mode of Foreign Trade Law: the change fromthe mode which law is supplied by the government to the mode ofbi-directional interaction between the government and society. This changeindicates the state's status declines and the power of society strengthens. In theprivate sphere, people hope autonomy and don't intervention by the state. Then I draw a conclusion that makes the individual freedom as the valueorientation and the rational demonstration about it. Firstly, freedom as purposeis decided by the human nature. Marxism thinks the development of thesociety coming from the man itself. The purpose of the social development isto realize man's completive and unrestricted development. Man's freedom isthe highest. Abandoning man's freedom is to abandon the man's qualificationsto be a man. Our CCP puts forward the man-orient scientific developmentview, it also requests the law is man-orient and respect the personal freedom.At the same time, human nature contains good and evil. The prejudication tohuman nature whether good or evil is the beginning of establishing all kinds ofinstitutions. And it constitutes the base of the spirit of lawmaking too. Lawmakes the prejudication to human nature that is evil as the base of institutions.The function of law is the prevention from evil not the development of good.The assumption which human nature is evil has the different reflection in thedifferent law realm. In the realm of public law, law pays attention to the manwho holds power. Law assumes they are rascal and makes prevention. But inthe private realm, the object of prevention is state power. It thinks that statepower is the biggest evil to private right. So the private law must implementthe principle that the private law has the priority compared with public law.The things that individual can deal with need not the intervention of the statepower. Secondly, from the angle of the limitation of human knowledge, I pointout that government does not have completive ability to know the entire thing,so it is wrong to think government is almighty. This view answers the questionwhy we request the freedom. It is due to individual itself is the bestspokesperson of his benefits and it is more logical to let man decide how to do... |
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