On The Private Law Of Citizens' Law

The concept that civil law is considered as private law derives from ancientRoman. However it has never been clearly explained why and for what purposes civillaw being considered as private law since the ancient time, and most of theexplanation focuses on the difference between private law and public law. This paperaims to explain why civil law being considered as private law and the value of suchconception in the field of private law from the perspective of modernity.This paper firstly criticizes the idea that civil law being considered as civilsociety law, such idea is a mistake on the understanding of words. This paperconsiders that there is no historic realization and logical necessity between civil lawand civil society law. This paper claims civil law should be understood base on thetheory of natural law and such understanding has both theoretical origin andfoundation. The theory of natural law, especially the doctrine from Kant has laid asolid theoretical foundation for the modern civil law. The essence of theKant-Savigny’s natural right theory is to establish the civil right system on freedom ofpeople, not on nature, divinity or rationality of the object, also not base on thedeductive system. The right of people is freedom itself, not only the tool to achievefreedom.Freedom is the basis of natural right and the freedom in private territory is thepersonal subjective rights. Private territory is a metaphor to indicate the absolutespace for private freedom and the personally absolute freedom in its private territory.The freedom in private territory is inborn and inalienable and in the same way therights in private territory also as personal subjective rights is inborn and precedes overthe law of state; The personal interests in the absolute private territory precedes overany collective, social and state interests. Civil law should not be considered as law ofpersonal freedom but only be considered as judgment law.Therefore, the civil law as the law of subjective rights must be private law but the limitations in form makes the civil law like objective law and subsequently thebasic content of civil law is the contradiction between the subjective rights andobjective law. The civil law states the subjective right in the form of objective law andprotects the subjective rights by using coercive force of state. But as objective law,the civil law restricts, violates and even eliminates the subjective rights, which is theformidable enemy of freedom and should be taken care of.The scientificity of civil law can only be the formalism superficially. As law offreedom, civil law cannot be scientific in nature as it embraces the unlimited,subjective and free law of rights. Freedom is incompatible with scientificity.Furthermore, civil law should examine itself by the science of civil law andshould not bow to power and stick to its nature as private law and become the law ofrights embracing the common subjective freedom.