The Reconstruction Of The Horizon Effect Of Fundamental Rights By The System Theory

The emergence of the concept ‘fundamental rights' is the result of the replacement that takes place between the natural law and the positive law.The replacement give a objective and clear source to the human rights.Although fundamental rights have an important place in the state's political life.However,for a long time,the objection of fundamental rights was limited to the state.The fundamental rights cannot be applied between equal private actors.After the 1950 s,some western countries,represented by Germany and the United States,have put forward the ‘state action doctrine' and ‘the effect of the third party'(Drittwirkung der Grundrechte).These theories broke the tradition that the constitution only adjusts the relationship between state and private actors.Constitutional fundamental rights were extended to private actors.The vertical effect of the fundamental right means that the obligor of the fundamental rights can only be the state,not individual.The separation of the state and society is the reason for the vertical effect.The various relationships in the social sphere should be adjusted by the private law.The constitution is a public law,it takes on a task that is different from private law,and the relationships between private actors cannot be adjusted by the fundamental rights.The vertical effect of the fundamental rights had dominated the practice and theoretical fields for a long time,but with the change of social situation,the vertical effect has exposed some limitations.On the one hand,the vertical effect cannot maintain with the expansion of public power.The rise of modern welfare countries lead to the integration of national and social fields.On the other hand,private rights also need to use fundamental rights to solve the problems in the risk society.All in all,with the rise of the welfare state and the security state,public law and private law have been closely connected,the view that the fundamental rights only have vertical effect based on the separation of public law and private law became incredible.We must rethink whether the fundamental rights can only be applied to the state.The horizon effect of fundamental rights means that the obligator of the fundamental rights is not only the state,but also the private actor.Of course,private actors as the obligors are usually manifested in an indirect form,and the fundamental right through the direct obligor,the state,requires public power,especially the judiciary,to consider the application of fundamental rights between private actors.On the issue of the horizon effect of fundamental rights,the theory and practice of Germany are representative.By understanding the fundamental rights as order of objective value which is permeating the entire legal system,the fundamental rights have a third party effect that can influence private actors.The third party effect theory can be divided into two categories according to its application: direct effect and indirect effect.Direct effect is that the fundamental rights can be invoked as a basis for judgments;indirect effect means that only private law can be invoked as a basis for judgments,but the fundamental rights is an explanation of the general provisions of the civil law.At present,the indirect effect theory is the dominant judicial practice in Germany.The fundamental rights horizontal effect can protect the order of objective value,strengthen the authority of the Constitutional Court,constaint strong private actors.First,the theory of the order of objective value is the base of the third party effect theory.If the fundamental rights cannot be understood as a set of order that binds government,the courts cannot be required to consider the impact of constitutional fundamental rights on private law.However,the order of objective value still has some problems,the general provisions of the civil law and the fundamental rights exacerbated the uncertainty of law.Second,the Federal Constitutional Court raised its fundamental rights by the theory of third-party effective,and thus raised its political status among the governmental apartment.However,if the practice of horizon effect theory is only endorsed for the expansion of the power of a particular organization,it is difficult to be convinced.Third,the third party effect theory enables individuals to use the fundamental rights to defend strong private actors.Habermas emphasize that citizens need to use political autonomy to defend strong private actors.They must become both the recipient of the law and the creator of the law in order to avoid the social power of citizens.However,Habermas is too obsessed with the role of political public sphere,but social problems cannot be resolved only through political ways.In view of these problems,the social system theory tries to redefine the concept of the fundamental rights,and reconstructs the infringement of social rights into "anonymous communication magic system(system,discourse)infringement the system,abstract individual and integrity of human being" The reconstruction of the fundamental rights of social system theory is based on the theory of social constitutionalism.Social system theory holds that modern society has differentiated into different systems such as politics,economy,law,science,religion and education according to the different functions.System theory observe the political constitution,grasp the function of political constitution,and then analogy to other areas of society.The constitutive function of the political constitution means that the emergence of the political constitution is the product of the coupling of the political system and the legal system.In which the political system of self-foundation has played a decisive role,and the law is in a secondary auxiliary position.In view of the restrictive function of the political constitution,the political constitution suppressed the impulses of the political system in three respects:the first,the collapse of itself caused by the infinite expansion,the second,the infringement of other social systems,and the third is the violation of the individual's basic rights.Although the political constitution has achieved great success in practice,it is only a product of the coupling of the political system with the legal system.In the face of a wide range of social spheres outside the political system,other social systems also need to have their own constitution to stabilize themselves and to restrict themselves.The social constitution's function is similar to the political constitution.On the one hand,the various functional systems themselves are autonomous,and the social constitution of economic constitution,scientific constitution,medical constitution and art constitution was born in the structural connection between law and these functional systems.The restrictive function of the constitution means that the social constitution draws on the ways which political constitution uses,namely restrict the power by the power,so that the functional system use its own medium to defeats its own medium.To identify the social constitution,it is necessary to reconstruct the provisions of the political constitution,and to treat it as the social constitution that formed by the binding of the law system and other social system.The political fundamental rights are the political system and the legal system against the political system(discourse,system).The analysis of the political fundamental rights can be used into other social functional systems.Thus,religious,educational,economic,scientific,health,art and other fields of communication have produced their own fundamental rights.The fundamental rights of each social field can be divided into the basic rights to protect the individual's physical and mental integrity,protect the fundamental rights of social system autonomy(property rights,family and marital rights,political basic rights),protect the fundamental rights of abstract individuals.There are two criteria to identify violations of the system in a particular case: First,when a system's unique logic tries to replace the unique logic of another system,the human consciousness is subjected to a highly exclusive limitation under the logic of a system,or the physical and mental integrity(personal freedom,human dignity)is violated by systematic logic.Second,it is also possible to determine whether the fundamental rights have been violated by identifying the existence of a professional organization that performs system functions.Through the system theory's reconstruction of the fundamental rights,we analyse the "Wei Zixi event".Wei Zexi's physical and mental integrity is violated by the economic system,and Baidu performed as the economic system's function.Baidu also violate the fundamental rights of the health system,and the fundamental rights of access to Internet.In the Wei Zexi event,it is necessary to use the horizontal effect of the fundamental rights to protect Wei Zexi,health systems,other Internet users.There are several ways to fullfil this goal.First,the court use the fundamental rights of the horizontal effect to judge this case.Second,the government can act as a regulator of institutional power.Finally,the spontaneous sphere can be used as a reflection place of the system's negative externalities.The practice of the system theory,the understanding of the social constitutionalism and the reconstruction of the horizon effect of the fundamental rights can enhance the protection of the fundamental rights in the social field,improve the consciousness of rights,implement the policy that rule by the constitution,and find a shortcut for the practice of constitutionalism.