The Source And Flow Of Social Law

"Social law"is not an original word in Chinese. It was introduced into our country after the building of a socialist market economy which was launched comprehensively in 1990s. The word with legal meaning firstly appeared in European scholars'literature in the early 20th century. After World War Two, the concept of"social law"was advanced and more systematic theory of social law was formulated by scholars of developed market economy countries, who had studied constituted and developing rules of social law.In discussion of the theory of the"social law", researchers could choose one from different concepts of social law, which are formed because of different opinions, as their theoretical premise of discussion according to points they want to talk about. In this thesis, the"social law"is defined as Social Law Realm. The theory which is contained in the arising, forming, developing and making for of the legal realm is"the source and flow of social law". That is the focus of the article. By using historical analysis method and comparison methods, the article retrospects about the source of social law's coming into being firstly, and then focuses on the analysis and synthesis of the formation and change course of social law from legal rules to a legal realm. In the end, the past, present and future of social law as the third realm of law in China are discussed carefully. The article is divided into three chapters:The first chapter discusses the source of the social law. This chapter is divided into three sections.The first section analyzes the possibility of social law based on the humanistic impetus of law forming, that is, the humanistic law need. The impetus of law forming is the source of driving force of the abstracted general law, as well as the cause of specific laws forming and developing into various classifications. Legal needs in human nature are a basic starting point for the impetus of law forming. The humanistic impetus of law forming is the impetus of social law's emergence. According to people as individuals and groups, that is the standard of single and human society, the needs of law in human nature include: the need for individual existing and developing and the need of social development and progress. The need of law for individual existing and developing is the direct cause of the possibility social law emergence. The need of law for social development and progress is the basis cause of the possibility social law emergence.From a point of the law development, the second section discusses the inevitability of social law emergence. The changes in the law system, the transformation of the spirit of the law, and the reconstruction of law system etc are important representations of the law development. The Development of law and the development of human society echo each other. Law shows new development trends in monopoly capitalist stage. The basic characteristics of the modern law were shaped by the change in rules, spirit, system and other aspects. These hasten the emergence of rules of social law, and decide the inevitable existing fate of the social law. The spirit of the law which is turned to social-based is the basis of law concepts of social existing. Private law mixed the form of public law is the legal system basis of the existing of social law.The third section discusses the objectivity of the existing of social law based on sociality of the law. The sociality is the basis attribute of the law. During the course of the study of social law, the social law should be examined under overall social background to analyze the social infrastructure for its forming and existing. Modern society is the arena of social law. In the process of modernization, aiming to protect the interests of the weak in the society competition or others who don't access to the competition, the social system must improve itself and establish new system. The social law is the objective result of social development. It appeared in specific social background, existed and matured in specific social situation. So its existence is objective.The second chapter discusses the flow of the social law. This chapter is divided into three sections.The first section analyses of the flow of German social law. In the next half of the 19th century, the Germany's social environment cultivated the need of rules of social law in the people. On the one hand, the powerful government represented by Premier Bismarck suppressed the labor movement ruthlessly. On the other hand, the law of social insurance was constituted and executed in order to placate labor struggle. Since then, German social law began the journey of flow. A legal system of social security whose core was social insurance law was gradually established in Germany, and a social law group with the core of Social Security Law formed in the early 20th century. In 1970s, Germany began to codify the Society Code. This code is the sign that German social law had become the third independent legal realm expect public law and private law.The second section analyses the flow of Britain social law. British Poor Law of 1601 is the starting point of social law. In 1802, the British government promulgated the Health and Ethics of apprentice Act. This act is regarded as the beginning of official social legislation. In the process from free competition capitalism to monopoly capitalism, British social law developed rapidly and formed the social law group. During World War Two and the end of World War Two, Britain established a complete legal system of social security, and became the country with the most comprehensive social security law in the world.The third section summarizes general rules of the flow of social law. It is some rules of social law adjusting part of social problems that is the starting point of the flow of social law. The maturity of social economy environment is the foundation of the flow of social law. The powerful sources of the flow of Social Law will inevitably include the creation of the concept of social law and the revolution of social ideology. In the process of the flow of social law, the role of social law switches from legal group to legal realm, and the forming of the theory of social law is accompanied at the same time.The third chapter concerns with the source and flow of Chinese social law. This chapter is divided into three sections.Section one discusses the source of Chinese social law. The legal need of social law is contained in the nature of Chinese. In the period of Nanjing National Government, the system and concept of social law belonging to the process of development of law promoted the sprouting of Chinese social law. After the People Republic of China was founded, new society is the background of the forming and existing of social law.Section Two analyzes the flow of social law in China. After the founding of new China, a series of labor protection and social security laws were enacted and this opened the journey of the flow of social law. At the end of the last century, Chinese social law group had already been formed basically, and the elementary theory of social law was built either. Now, Chinese is facing a special historical period undergoing social transformation and institutional change. All kinds of social phenomena need effective regulation of law. Social relationships need to be adjusted by new legal tools. The importance of social law in the legal system becomes more various increasingly. With the evolution of social law being the third independent legal realm except public law and private law, the basic theory of social law will move towards perfection gradually, too.Section three discusses the future development of Chinese social law. In the Fourth Plenum of the 16th CPC, the task of building socialist harmonious society was proposed. The goal of a harmonious society is the driving force of the development social law. In the Fifth Session of the Tenth National People's Congress in March 2007 and the Fifth Session of the 10th CPPCC National Committee, the social development and people's livelihood were paid more attention, and labor protection and social security were placed in a prominent position. The spirit of the"Two Sessions"is the guideline of the development of social law in the future.The legislation practice of Chinese social law has been effective. But it has not been twenty years in studying the theory of social law till now. So the basic theory of social law is still not perfect and mature. The study in theory of Chinese social law need proceed from the basis of the root problems. It must learn from the experience of developed countries. And it has to adopt the interdisciplinary and multi-angle approaches to study and understand social law. Discussing the problem of the source and flow of social law, in nature, is the process of recognizing the reason why the social law appeared, shaped, developed and boomed. It is the process of explaining how the social law becomes an independent legal realm in the social life of human beings, legal development and social change. It is also the process of analyzing of the circulation of social law in the present and future along with the evolution of social law in different time and place. Focusing on the future of Chinese social Law, scholars should ponder and reflect it continuously. There is a long-term and arduous road for legislation practice and the study in theory of Chinese social law.