Shasha Li: Commentary on " Cao Xiangjian, 'The Negative Position for Fundamental Rights intervening Private Law'" 曹相见 基本权利私法介入的否定立场

Over the course of the last several years, Chinese scholars have been engaging in a very interesting discussion about the way that constitutional sensitivities to human rights affects Chinese law and practice in a number f areas. The conversation intensified after 2004 when the State Constitution was amended to include a third paragraph in its Article 33 that provides: "The State respects and preserves human rights."

This year I have the great privilege of hosting a marvelous visiting scholar from China, Shasha Li. Professor Li is an Associate Professor of Law School of Dongbei University of Finance and Economics. She obtained her Bachelor of Law from Zhongnan University of Economics and Law, her Master of Law at Nankai University; ad her Doctor of Law at Jilin University. Professor Li may be contacted at fishsuncat [AT] 126.com.

I have prevailed on Professor Li to offer readers in English a glimpse at some of the rich discussion among academics who are considering the application of principles of human rights with Chinese characteristics and compatible with the Chinese political and normative system. Earlier Commentary may be accessed: first Commentary (HERE); Second Commentary (HERE ); third Commentary (HERE); fourth Commentary (HERE).

For her fifth commentary, Professor Li considers Cao Xiangjian, 'The Negative Position for Fundamental Rights intervening Private Law'" 曹相见 基本权利私法介入的否定立场.  It was published in Hebei Law Science 38(3):109-122 (March 2020). Cao Xiangjian is an associate professor, Shandong Agricultural University and a member of the Taishan Rule of Law Research Institute.  Drawing a distinction between normative and social jurisprudence in the study of the constitution, the article considers a framework for a relationship between fundamental rights and private law. The article abstract lays the issues out quite clearly:

Abstract: To study the relationship between fundamental rights and private law，we should distinguish between the dimension of normative constitution and political constitution． The constitutionality of human dignity does not mean that the fundamental right must intervene in private law，and its development in constitution and civil law is carried out independently and embodied as a kind of “value coincidence”．As the value basis of all empirical rights，human dignity has two dimensions facing the state and private，the fundamental rights and civil rights are still clearly defined． From the nature of fundamental rights，it can＇t intervene private law: the illegality of fundamental rights and private law are different，there is no consistency of value order between them; the meaning of the citizen＇s obligation in constitution is either a declaration of value，or still belongs to the relationship of public law and is not universal; there is no conflict of fundamental rights characterized by rigidity，the so-called conflict of fundamental rights is actually a civil rights conflict，but scholars often confuse the unempowered and untyped civil interests with the basic rights  As a means of normative control，constitutional interpretation unable to run through the value order of civil law and constitution, which has only formal significance to private law．

Here one finds an interesting taxonomy of constitutional rights grounded in a necessary distinction between the character of the obligations and responsibilities of states (the public sphere), and those among non state actors (the private sphere), and in that context the contextually contingent meaning/application of human dignity within either.  Its most profound contribution points to the further development of notions of political constitutionalism as something quite distinct from the legal constitutionalism that has become the orthodox view in the West.  The former invests constitutions and constitutional legitimacy with a political dimension, the later is grounded on a fundamental premise of an identity between legality and constitutionalism. The difference becomes central to issues of constitutional remedy. 

Professor Li's English language Commentary follows below along with the original article (Chinese language only; English language Abstract).

Reflections on "Cao Xiangjian, 'The Negative Position for Fundamental Rights intervening Private Law'"

Shasha Li

 

The issue of the effectiveness of the Constitution to private law is a hot topic in the Chinese constitutional academic community. Almost every constitutional scholar has discussed this issue and put forward a wealth of views. In this period, scholars have studied classical constitutional theories, analyzed foreign laws and cases, and examined almost every case trailed by courts that involve constitution in China. It can be said that to some extent the discussion of this issue has promoted the development of basic theories and research methods of constitutional law in China. On the other hand, civil law scholars do not involve much in this issue. This article is a masterpiece in this field. Starting from the theory of civil rights and the practice of civil trials, the author refutes the viewpoint that basic rights are involved in private law in detail by combing and analyzing the mainstream views of Chinese constitutional scholars. The author's main views and arguments are as follows:

 

 

Observing the constitution has two dimensions: norms and politics. The former studies constitutional norms and belongs to normative law; the latter studies constitutional facts and belongs to social law. The effectiveness of constitution varies according to the legislative or judicial organs. The former will eventually transition to the category of political constitutions, and the latter may have different results due to public and private laws: constitutional values are intrinsically consistent with public law and thus have It has the highest effect, so the criminal law can be "constitutionalized"; however, the constitutional value and private law do not have inherent consistency, so they cannot intervene in private law.

 

 

The author starts with human dignity the value foundation of basic rights. Many constitutional scholars believe that since human dignity is stipulated in the Constitution and modern civil law is based on it, the value of the Constitution must of course be intervened in private law. However, the author of this article believes that the development of human dignity in civil law and constitution is carried out independently, so the above situation is just a "coincidence of value". The meaning of human dignity in the constitution is to reshape the relationship between the individual and the state, and to think of it as the cornerstone of the post-war constitutional state, not to regulate private life. The development of humanism in the civil law is not influenced by the Constitution, but because of the development of the social economy which has spawned many large enterprises and multinational companies to break the equality and interchangeability of the traditional civil law. The goal is to distinguish and protect the weak. Many scholars of the Constitution understood the "coincidence of value" of the civil law constitution as the constitutional rule of the civil law which is not correct. An idea cannot be stripped from the scope of civil law because it is used by the Constitution. The relationship between basic rights and civil rights has its own independent value and exists in parallel.

 

 

Next, the author discusses whether the basic constitutional rights based on "human dignity" have the possibility of having private law effect in nature? The author deduces the difference in illegality from the difference between the civil law and the constitutional obligation structure. In the constitutional relationship, citizens are the subject of rights, and the state is the subject of obligations; even in the case where citizens have obligations to the state, it does not mean that the state is the subject of rights, because such obligations of citizens are taken for the public interest, and the state is just the administrator of the public interest. In this way, in the legal structure of rights and obligations, citizens and citizens in civil law and citizens and the country in constitution have formed the separation of "harmonious symbiosis" and "means and ends". State obligations in public law are higher than those of individual in private law in order to protect the rights of citizens and limit the public power of the state; the civil obligations in private law are lower than those in public law, otherwise it will restrict individual freedom and violate individual rights. As far as our country is concerned, although the citizens’ obligations are stipulated in our constitution, the political significance of "citizens' basic rights and obligations" in our constitution is greater than the normative significance. Unlike the confrontation between civil society and political countries in the concept of constitutionalism, China ’s constitution, as a typical socialist constitution, not only assimilates individuals into the government and country, but also overcomes the independence of the intermediate social organizations and cancels the state and social binary opposition. Therefore, the concept at that time when constitution was made was "social" is "national".

 

 

The author also believes that from the perspective of the rigidity of basic rights and the structure of civil rights and interests, "conflict of basic rights" is actually a conflict of civil rights and interests. Since basic rights are the rights of citizens against the state, the rigidity of basic rights determines that basic rights of different people cannot conflict. "Basic rights conflicts" are conflicts of civil rights that are unauthorized or typed. Unlike the rigidity of basic rights, civil rights are flexible and often conflict. Private law can be interpreted in terms of basic rights, but in the end it is not absorbed by these rights. Private law rules still determine the decision of the case. Therefore, the so-called third-party indirect effect of basic rights is nothing but the protection of civil rights and interests in the name of general provisions. The role of constitutional value is simply to "lead" private law to protect certain civil rights.

 

 

Finally, the author returns to the constitutional interpretation. Can the constitutional interpretation as one of the legal interpretations measures serve as a bridge between the Constitution and the civil law? Popular opinion holds that: The value and rules of legal interpretation are not created by the departmental law, and it must be returned to the constitutional interpretation to find its value guidance and normative basis. Without returning to the Constitution, the function of interpretation cannot be completed. The interpretation of constitutionality is understood as: in order to implement the requirements of the rank structure of the constitution, the interpretation of the law should be consistent with the purpose of the "constitution". Accordingly, basic rights can be implemented in civil law through the path of legal interpretation. In the application of law, constitutional interpretation may be unavoidable, but as far as private law is concerned, because the constitution and civil law do not have the consistency of value, except for the meaning of constitutional review, it has only formal meaning. Except for influencing private law through legislative organ, constitutional value does not have the normative effect on private law.