民法的人文关怀_英文_王利明

Social Sciences in China

V ol. XXXIII, No. 3, August 2012, 46-66

C ivil Law: Its Humanistic Concerns

Wang Liming

School of Law, Renmin University of China

比照近代民法以财产法为中心，现代民法强化了人文关怀，主要表现为从以财产法为中心到人法地位的提升，并广泛体现于民法中主体制度的发展、人格权的勃兴、

合同制度的发展、物权法的发展、侵权法的发展、婚姻家庭法的发展等各个方面。中

国未来的民法典应当以人文关怀构建价值理念，注重对人的自由和尊严的充分保障以

及对弱势群体的特殊关爱。基于这一理念，在中国未来民法典中有必要增加人格权法

和侵权责任法编。在中国民法的适用等方面更应强化人文关怀。

关键词：人文关怀民法典价值理念人格尊严

In contrast to early modern civil law, which centered on property law, modern civil

law shows intensi? ed humanistic concerns. This is mainly re? ected in the rising status of

personal law, and is also widely evidenced in the development within civil law of the subject,

personal rights, the contract system, real right law and tort law, as well as marriage and

family law. China’s future civil code should construct civil law values based on humanistic

concerns and highlight the full protection of human freedom and dignity and special care for

disadvantaged groups. In line with this idea, it is necessary to include law on personal rights

and tort law in the future civil code. Humanistic concerns should be strengthened in the

application of civil law.

Keywords: humanistic concerns, civil law code, values, personal dignity

Civil law, the basic law of civil society, also provides the basic regulation for the protection of private rights. At present, in this key period in the formulation of China’s civil code, it is especially important to stress the necessity of making the code adhere to realities and be oriented toward the future. It should not limit itself to focusing on the design of specific systems and regulations, but should be concerned with the values thereof. “By virtue of its abstract concepts and systems, the image of classical civil law became that of a self-contained system of scholarship from which one grasps with dif? culty the modern image of

ISSN 0252-9203

? 2012 Social Sciences in China Press

DOI: https://www.360docs.net/doc/d714017343.html,/10.1080/02529203.2012.702941

https://www.360docs.net/doc/d714017343.html,

Wang Liming47

civil law.”1 Studies of civil law cannot be con? ned to its external system or logical relations, but should rather set out from its values and, through historical investigation, gain an accurate grasp of its tendencies, so as to base it on a more scienti? c and more complete value system. With the values of the humanistic concerns of civil law as its basis, the present paper endeavors to expound its implications and its weighty in? uence on the improvement of the institutions and system of civil law.

I.Humanistic Concerns of Civil Law: From Centering on Property Law to Elevating the Status of Human Law

In early modern civil codes, relationships of property ownership and exchange formed the main subject of civil law norms. The centrality of property rights found expression chie? y in the control of external wealth; the law clearly neglected the spiritual dimension of human existence and simply materialized the diverse connotations of humanity.2 In this context, the value of man’s personal existence independent of property was far from clear. This constitutes the background of the Jhering’s famous proposition: “He who encroaches upon the property of a person encroaches also upon that person’s human dignity.”3

In terms of the historical development of civil law, it was the Jus Ro m anum that took the lead in adopting an abstract approach to developing and stipulating the abstract relations of private property,4 to lay down a system of independent personal right, obligation and real right and set out a whole system of private law. In this system, the exchange and ownership of property was the focus of readjustment; while there were regulations on personhood, the focus was more on “status” laws relating to eligibility for rights, which differed in meaning from the personal rights of modern law. Under the Jus Romanum, persona was used only to indicate a certain status.5 With the advent of the Middle Ages, the Jus Privatum system was found to be totally at loggerheads with canon law and the feudal land system and relations of dependency, so the Jus Romanum fell into a long silence. This lasted until the ? nal years of the Middle Ages, when the development of a commodity economy along the Mediterranean coast made property transactions more and more complex, providing a foundation for the revival of the Jus Romanum and at the same time meeting the needs of the Europe of a later day when the seeds of capitalism sprouted.

In the era of legal codi? cation, civil law, represented by the French Civil Code, aimed to eliminate feudal society’s oppression of man, oppose feudal trade barriers and encourage the development of a market economy. The French Civil Code adopted a three-part model

1　Kitagawa Zentaro, The Civil Law System of Japan, p. 115.

2　Xue Jun, “The Protection of the Person: The Basic Value in Drawing Up the Chinese Civil Code.”

3　Rudolf von Jhering, The Struggle for Law, p. 21.

4　Karl Marx, “Critique of Hegel’s Philosophy of Right,” p. 280.

5　Zhou Nan, On the Jus Romanum, p. 106.

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consisting of statuta personalia, statuta realia, and ways to obtain property rights. Design of the statuta personalia focused in the main on the af? rmation of equality among men and ascertaining the ownership of property; as a result, property rights remained the core of the code as a whole,6 as was noted by the French scholar Savadi e r: “In contrast to laws having to do with persons, the (French) Civil Code bestowed the dominant position to laws having to do with property.”7

This property-centered character underwent little change in the German Civil Code. While in structure it adopted a ? ve-part model (General Principles, Right of Obligation, Real Right, Kinship and Inheritance), its core remained the sections on Right of Obligation and Real Right, and stipulations on the subject in the chapter on General Principles continued to center on the ownership and transactions of property. In the formulation of the German Civil Code, little importance was assigned to protecting the dignity of the individual. The law’s de? nition of the natural person was too simple and overlooked quite a few important rights of the person.8 Also, in terms of tort liability, the Civil Code limited its consideration to damages and treated them under the law of obligation, while imposing a rather strict limit on compensation for psychological damage. Not long after its proclamation, the German scholar Werner Sombart (1863-1941) noted its bias in “giving precedence to property rather than man.” As the Code’s very system had been designed to meet the demands of the commercial capitalist class, little wonder that it embodied that principle of “giving precedence to property rather than man” peculiar to the bourgeois class. Laws on the legal status and legal relations of the person yielded to laws on property.9 The very absence of the rights of the person in the German Civil Code was why, after WWII, German courts had to resort to the clauses on basic rights in the country’s constitution, instead of its legal code, to develop the rights of the person in general. This re? ected the fact that the German Civil Code had not given law on the rights of the person the status it should have had.10

The fact that the civil codes of the early modern period should have come to center on property law, or display what one might call a “pan-property” tendency,11 was due not only to the in? uence of the traditional civil law system but also, in particular, to their close relations with the socio-economic circumstances of their age. Both in its free and monopolistic stages, capitalism was characterized by the expansion of investment and encouragement of the creation of wealth, and the law, including civil law as a whole, had to serve this goal.12 Given the socio-economic background of the times, this practice was hardly inappropriate. Today,

6　Xie Huaishi, “Studies in the Civil Codes of Continental Law Countries.”

7　Eiichi Hoshino, Man in Private Law, p. 29.

8　Dieter Medicus, Allgemeiner Teil des BGB, p. 25.

9　Dieter Schwab, Einführung in das Zivilrecht, p. 31.

10　Xue Jun, “Exposing ‘General Human Rights’—Also on ‘System Consciousness’ in the Study of Comparative Jurisprudence.”

11　Xue Jun, “The Protection of the Person: The Basic Value in Drawing Up the Chinese Civil Code.”12　Max Weber, C ollected Works of Weber, vol. IV: Economy and Society, pp. 37-39.

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with the development of the market economy and the advance of science and technology, weighty changes have occurred in the socio-economic pattern, so it is but natural that the development of civil law should present an increasing inclination toward humanistic concerns. By humanistic concerns is meant full protection of the freedom and dignity of man and special concern for disadvantaged social groups, with an emphasis on the protection of the person, which is taken to be the value basis of civil code.13 The present paper holds that “protection of the person” does not constitute an end in itself; rather, it is but a means to realize humanistic concerns whose ultimate goal is the achievement of human freedom and dignity. “The person” here refers, on the one hand, to the individual and his free pursuits, treated concretely and historically; on the other hand, it refers also to the person of ethics, whose dignity should be respected and whose basic personal interests should be protected. Humanistic concerns means, in this sense, making “man’s enjoyment of a decent existence” the goal of law and realizing what Marx called “the all-round emancipation of man.”

With their deep social and historical roots, the humanistic concerns of civil law are hardly an invention of the contemporary age. In ancient Greece, the sophist Protagoras proposed that “Man is the measure of all things”; in ancient Rome, such systems as personal law, private wrongs, etc., did display some degree of concern for everyone except slaves, even if they fell short of the all-round physical and personal protection provided by modern law. Of course, man had to wait till the Renaissance for the ? rst real emergence of humanist ideas, while it was the thinkers of the Enlightenment who further enriched the humanist connotations of early modern civil law. For example, the ideas of human rights, freedom, equality, etc., advocated by such thinkers as V oltaire and Montesquieu greatly helped the formation of such concepts as equality of persons, freedom of contract, autonomy of private law, etc., in early modern civil law. By this time, the basic framework of humanism had already taken shape in capitalist civil law. The fundamental characteristic of humanism lies in its focus on man himself, stressing his dignity and his spiritual freedom.14 Humanism holds that “the individual human being has a value in him or herself—we still use the Renaissance phrase, ‘the dignity of man’—and that it is respect for this which is the source of all other values and of human rights.”15

From the latter half of the 18th century, Kant’s philosophy of reason began to make a significant contribution to the establishment of the status of man as subject, holding that the absolute value of mankind lies in the dignity of man, with all human capacities as its basis: that man is an end in himself, not a means, and can only be taken as the end, not as the means.16 This means, according to Li Zehou: “Kant stresses here that while things have a monetary worth, man has only his inner worth; one cannot place a price on him for being useful to somebody. As a part of nature, man is hardly superior to an animal nor more

13　Xue Jun, “The Protection of the Person: The Basic Value in Drawing Up the Chinese Civil Code.”14　Meng Guanglin, A History of the Renaissance in Europe: Philosophy, p. 27.

15　Alan Bullock, The Humanist Tradition in the West, p. 234.

16　Immanuel Kant, Anthropology from a Pragmatic Point of View, p. 4.

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valuable; but when he exists as noumenon and as the subject of practical reason (morality), he transcends all price.”17 It can be seen that the rise of the philosophy of reason made protection of the independence and dignity of the person into the core mission of society and, going further, the goal of the law as a whole. Once such beliefs had been established by the humanist movement, people came to believe that law could be constructed on the basis of reason. This was the impetus for legal reform, quickening the alliance between reason and civil law and bringing about the of? cial codi? cation of the law. The civil law codes of France, of Germany, of Austria, etc., were all products of enlightenment thought, embodying the humanistic spirit to some degree.18 In terms of values, the hierarchical ideas of feudal law were replaced by the humanistic ideas inherent in early modern civil law, while the hierarchical feudal system was replaced by the independence and equality of persons. However, compared with the values of humanistic concern advocated in this paper, it is clear that the philosophy of reason represented by Kant neglected the differences among men with regard to ability, intelligence, wealth, etc., and especially with regard to the special protection society provides for the disadvantaged, even though it did focus on the universal protection of man’s freedom.19 Hence there is a fairly large gap between the humanism of those days and the humanistic concerns of today.

After WWII and, in particular, in recent decades, the connotations of humanistic concern in civil law grew ever more plentiful and its status ever more apparent. This can be seen not only in the concrete institutions of civil law but also in the profound in? uence these concerns exert on the external system of civil law as a whole.20 In the ? rst place, respect for and protection of the person was raised to unprecedented heights and the human rights movement spread vigorously throughout the world. Correspondingly, man’s dignity and self-respect and his pursuit of a high-quality material and spiritual life found their full expression in civil law. The inhuman acts that took place on a wide scale during WWII and the revulsion they evoked after the war, as well as the human rights movement that began in the 1960s, all helped to promote and strengthen modern civil law’s concern for human dignity and respect. For example, the very ? rst article in the Basic Law of the Federal Republic of Germany declares that “the dignity of man is inviolable,” thus making “the dignity of man” a fundamental provision of the Basic Law. With the advent of the 21st century, respect and protection for human rights have become a universal consensus throughout international society. In the second place, industrialization and marketization have resulted in ever widening social polarization. A tiny minority of people have come to possess the lion’s share of the world’s wealth, while the phenomena of social inequality and injustice are becoming ever more striking. In these circumstances, the traditional view that freedom of contract would lead

17　Li Zehou, A Critique of Critical Philosophy, p. 290.

18　Alan Watson, The Making of the Civil Law, p. 144.

19　Stamatios Tzitzis, Qu’est-ce que la personne?, p. 84.

20　Zhu Yan, “Transformation of the Social Foundation and Construction of a Dual System of Civil Law.”

Wang Liming51

directly to social justice has become totally divorced from reality. On the contrary, the abuse of private property, manipulation of formal contracts by big business, the powerful position of monopolies in given fields, etc., have created all kinds of social injustice. This raises profound questions about people’s deep-rooted faith in the rationality of the property rights provided in civil law. Should modern civil law fail to be supplemented with the values of profound humanistic concern, this will result in further social injustice. In the third place, the rapid and vigorous development of modern science and technology has placed new demands on humanistic concerns with regard to civil law, acting as a new motive force for their development. Development of gene technology has made the protection of individual privacy all the more urgent and the emergence of test-tube babies has changed the traditional concept of life, while techniques for the production of arti? cial organs, stem cell research and development of cloning and tissue engineering have paved the way for mankind to ultimately solve the question of sources of human organs. At the same time, the science and technologies mentioned above pose new challenges to life, the body, health and other rights of the person, with the growing possibility of infringement of civil rights (especially the rights of the person) with ever more serious consequences; hence civil law needs to provide further protection. In the fourth place, following the fundamental satisfaction of man’s basic material needs, his spiritual needs grow more prominent. According to Maslow’s theory, man’s needs fall into ? ve categories. These are, from the lower to the higher level: physiological needs; need for security; need for social relationships; need for esteem; and need for self-actualization. Once people’s survival needs are fundamentally met, their cultural and spiritual needs grow stronger, something which Maslow summed up as the need for self-respect.21 Undoubtedly, the challenges these social changes pose for civil/commercial law are revolutionary. Against such a background, the revision and complementation of the traditional system of civil law with the profound value ideas of humanistic concern is indispensable.

After 1949, when China achieved “the people as masters of the country,” the value of man was accorded full respect and was fully expressed. However, owing to the prevalence of “leftist” ideology for quite some time and with the weakening of the idea of the rule of law, the idea of human-centered values was eroded for a while. After reform and opening up in 1978, the Party summed up and absorbed the tragic lessons of the “Cultural Revolution” and strengthened the construction of democracy and the system of law. With the deepening of reform and opening up, the socialist market economy system gradually came into existence. Striving for the great goal of a well-to-do and harmonious society, the Party and state have set up “taking people as the basis” as the governing idea. In terms of civil law, this means fully protecting the various rights and interests of citizens and respecting and defending their independence and dignity, making it possible for them to live with freedom and dignity. Consequently, the spirit of humanistic concerns embodied in our civil law differs in essence

21　Abraham H. Maslow, Motivation and Personality, pp. 40-54.

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from the humanism of the West; it is the concentrated expression of the core values of socialism and is adapted to the social, economic and cultural development of our country at the present stage. It especially stresses a deep concern for disadvantaged groups, setting a full value on the freedom and development of the individual and striving to realize social equality and justice.

During the three decades and more of reform and opening up, the General Principles of Civil Law of 1986 and the series of laws promulgated in the years that followed laid down the regulations governing the ownership and exchange of property as well as the framework of civil/commercial law indispensable to the development of China’s market economy, greatly facilitating the country’s socio-economic development. However, against the background of our considerable achievements in socio-economic construction, our needs with regard to civil law cannot be limited only to the law’s economic function, but must have an even greater focus on its significant role in realizing humanistic concerns. On the one hand, interest relations multiply along with the rapid development and drastic transformation of society and social contradictions become ever more prominent, so that emphasis on the values of humanistic concern helps realize the goal of constructing a harmonious society. On the other hand, the all-round emancipation and development of man constitutes the basic purpose of socialism and of the construction of a country ruled by law, as well as the construction of a harmonious society. The socialist legal system that has been established so far embodies the value orientation of humanistic concerns in an all-round way. Compared with other departments of law, the humanistic concerns displayed by civil law are even more comprehensive and more focused on harmonizing the conflict between different interests. Emphasis on the humanistic concerns of civil law takes the happiness and dignity of the individual as the ultimate end of state and society, not as the means for realizing other purposes. Modernization does not mean simple economic modernization; rather, it is the modernization of man himself that counts. In a certain sense, civil law can also be called human law; modern civil law, the most important legal form for protecting the all-round development of man, can never be divorced from the protection of humanistic values.

II.Constructing the Value Ideas of Civil Law with Humanistic Concerns

Even though traditional civil law did take freedom and equality as its basic value orientation, these values have to be subjected to certain readjustments and changes under the impact of modern society’s value ideas of humanistic concerns. This is because traditional civil law was designed around property rights. Thus considerations of the values of humanistic concern are gradually becoming the basic value system of civil law at the same time as the positive elements of traditional values are carried on.

1. Full protection for the freedom and dignity of man

Freedom in terms of civil law differs from freedom at the economic level; its core is

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respect for the subject’s self-determination at the level of personal dignity. For civil law, human dignity constitutes an inalienable and irrepressible value, the fundamental condition that determines what makes a man human. With the advent of the 21st century, respect for and protection of human rights has become a universal consensus in international society .

On the one hand, an emphasis on the freedom and dignity of man has found concentrated expression in laws on personal rights. Article One of the Universal Declaration of Human Rights stipulates that “All human beings are born free and equal in dignity and rights,” and Article Three that “Everyone has the right to life, liberty and security of person.” Article Two of the 1948 Basic Law of the Federal Republic of Germany provides in clear terms for the “protection of the free development of the human person,” and it was on the principle of “the inviolability of human dignity” set up by that article that German judges developed personal rights in general, embodying in private law the values of the protection of human dignity and the free development of the individual and protecting privacy and other rights or interests by means of the system of general personal rights.22 In recent decades, various countries have given further attention to strengthening the protection of personal interests and improving the way in which such protection is provided for when drawing up new civil codes or revising and “re-codifying” their civil law codes; this can be seen from the newly proclaimed civil law codes of a number of countries. Many of these codes devote several articles to the protection of personal rights, expanding the way in which such protection is to be applied and strengthening the protection of personal interests in their sections on family law and other areas. The interests of the human person are becoming ever more prominent and are gaining pride of place in civil rights.23

On the other hand, the idea of affording full protection to human freedom and dignity is being comprehensively provided for in the various speci? c systems represented in the law of torts. In traditional civil law, from Jus Romanum to the German Civil Code, compensation for damages revolves around property, stressing payment in property while neglecting compensation for mental harm. Thus the gradual recognition since the 20th century of compensation for mental harm indicates to a certain degree the broadening of respect for human dignity. Furthermore, in the system of protection of rights and interests under civil law, such rights and interests have different degrees of precedence, with personal dignity and freedom always coming first. In particular, the life, health and interests of the person enjoy strengthened protection. With regard to the reducibility of rights, the right to property is reducible in principle, but the reduction of personal rights calls for caution. Some rights, such as the right to life and health are simply irreducible. The law of torts broadens the scope of rights to be protected by civil law. Throughout the whole process, personal rights, especially the non-contractual protection of human dignity, has taken pride of place. As one

22　Karl Larenz, Allgemeiner Teil des Deutschen Bürgerlichen Rechts,vol. 1, p. 170.

23　Charlotte Girard and Armand Henneuse, La dignité de la personne humaine: recherche sur un processus de juridicisation, p. 87.

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of the basic values of Western democracy, personal dignity has, at present, been gradually established through judicial precedents and written legislation as a right under private law, any infringement upon which quali? es the victim to sue directly for remedy.24

It is because the law of personal rights and tort law embody concern for and protection of man that these two departments of civil law have become growth points for the theory and system of modern civil law.

2. Special solicitude for the disadvantaged

Taking as its basis man’s personal dignity in the abstract, civil law has since early modern times stressed equality in the formal sense, assuming men to be “equal” and “interchangeable.”25 Against such a background, civil law took as its object the readjustment of property and personal relations between equal subjects, disregarding in principle the differences among these subjects in terms of age, sex, race, economic power, knowledge, etc., and holding them to be of equal status. It also held not only that each should enjoy basic rights, but also that those rights should be equal among persons; only in this way would a harmonious society be possible.26 The equality that 19th century civil law sought was formal equality, which found expression in recognition of the equality of the civil rights capacity of all natural persons under the civil code. What is termed the move “from status to contract” actually meant the process of pursuing formal equality. Formal equality concerns itself, in the sphere of contract law, only with the parties’ equality in the abstract, without paying too much attention to whether they are equal in their negotiation capacities. Similarly, in the ? eld of real right, civil law stipulates an abstract equality with regard to quali? cations for acquisition of property and protection of property ownership, but places little stress on the distribution of property or concern for the disadvantaged. Though this formal equality has so far remained the basic value of civil law, an increasing number of factors relating to substantive equality have been injected into civil law since the beginning of the 20th century on the basis of value considerations relating to the protection of social equality and justice, the need to protect the security and order of transactions, etc. This has found expression not only in a major increase in content relating to substantive equality with the gradual formation of areas of law separate from the civil code in the ? elds of labor protection, consumer rights, workplace injury insurance, etc., but also, in some countries, in the addition to the traditional civil code of contents relating to substantive justice, so as to adapt to society’s changing demands. For example, one may cite the provision for a period in which goods can be returned without any reason and other special regulations on the cancellation of contracts dealing with certain transactions in consumer goods, added to the German Civil Code after the passage of the Act on Modernization of the Law of Obligations.

24　For the development of provisions on human dignity in Western legal systems, see C. McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” pp. 655, 667.

25　Liang Huixing, ed., Civil Law from the Early Modern to the Modern Era, pp. 169-170.

26　Wang Haiming, “Equality: A New Discussion.”

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Without protection of the disadvantaged, substantive justice cannot be truly realized. The research findings of Wilkinson and other British scholars show that countries that stress equality are better off than their counterparts with too great a gap between rich and poor, whether in the quality of their economic growth, their social stability, indices of the happiness of their inhabitants, or their crime rate.27 This is of course of great significance for civil legislation. Montesquieu put it well: “It is here that civil law ought to triumph, which, with the eyes of a mother, regards every individual as the whole community.”28 Very clearly do these words express the idea that although civil law practices formal equality, it can never exclude substantive equality. What is more, substantive justice has to be stressed if the normal order of the market economy is to be sustained, as the subjects of market transactions are concrete persons, not abstract ones. Formal equality is universal and reflects basic human needs, but it is inadequate in that differences in negotiation capacity, economic power, etc., among the parties in real life transactions work to the advantage of those with economic and social superiority, giving them an advantage in the gaming process so that they gain greater bene? ts than the weak. Thus if formal equality alone is pursued, the value system of civil law will rigidify and instead of embodying concern and care for the disadvantaged, it will harm equality and justice, resulting in substantive inequality.29

Care and concern for the disadvantaged does not, of course, mean negating formal justice, but rather making up to a certain extent for its inadequacies. Rather than being the main goal to be pursued, substantive equality can only be a concurrent subject of attention for our future civil code. Since encouragement of competition and promotion of innovation are important guarantees for social progress, the emphasis on substantive equality in civil law and indeed in other social law has to be con? ned within a given scope, otherwise it will con? ict with the inherent substance of civil law. The reason that laws covering labor, protection of consumers’ rights, etc., have been separated from civil law in recent years is to be found, to a large extent, in civil law’s emphasis on formal equality and the abstract person, whereas these other laws mainly stress substantive equality and the concrete person. Thus substantive equality has to be realized mainly through laws other than civil law, especially social law. However, to use humanistic concerns to construct value ideas for civil law does not mean any negation of those civil law values that center on the autonomy of the will. Humanistic concerns do not negate the civil subject’s autonomy of will in a transaction; on the contrary, to a certain degree they help to make up for possible inadequacies in the concrete civil subject’s autonomy of will and to attain a fuller realization of that autonomous will. Autonomy of the will means autonomy of private law and refers to the fact that the party concerned has the right, within the bounds of private law, to decide freely on his actions and determine his mode of communication

27　Richard Wilkinson and Kate Pickett, The Spirit Level: Why Greater Equality Makes Societies Stronger, 2009.

28　Charles-Louis Montesquieu, The Spirit of the Laws, p. 190.

29　“Allow the Peasants to Enjoy a Reasonable Premium from Their Collective Land,” p. 2.

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when participating in civil life without being subjected to illegal interference.30 Through the autonomy of private law, civil law makes it possible for the individual to enjoy a freedom that is protected by law and to make autonomous decisions; therein lies its advantage.31 However, autonomy of the will is not without its own defects. On the one hand, overemphasis on autonomy of the will may be accompanied by a whole series of social problems, such as abuse of proprietary rights, intensi? ed economic monopoly, environmental pollution, etc. It will not lead naturally either to social justice or to social harmony, and so should be curbed. These restraints are usually provided by state intervention. On the other hand, while it constitutes the basis of freedom of action, the core of autonomy of the will lies in the disposition of property; it does not generally extend to the sphere of the person. The freedom found in autonomy of the will is, in the main, the freedom of economic disposition, which differs signi? cantly from the freedom attached to personal rights. For example, in the disposition of the likeness of an individual, individual privacy, personal data, etc., the emphasis should be on respect and protection for the individual’s right of self-determination, which constitutes an inalienable part of the individual person and may not, on principle, be “freely” disposed of. Over-emphasizing the autonomy of the will may well lead to dealing with personal interests as a type of transaction. Once the idea of humanistic concern is introduced, the ? rst thing to do is to establish the legal principle of the precedence of the protection of life and health over autonomy of the will, so that any transaction based on autonomy of the will that infringes on personal dignity and freedom is automatically annulled. Seen in this light, the position of humanistic concerns should be over and above that of autonomy of the will.32 This does not, however, in any sense imply abandonment of autonomy of the will, but rather compensates for its inability to fully ensure respect and protection of the human person.

Full protection for man’s freedom and dignity together with concern and care for disadvantaged groups constitute the core contents of civil law’s humanistic concerns. The general orientation of our civil code in the future will lie in strengthening its concern for man while maintaining the principle of the autonomy of the will, so as to make up for the inadequacies inherent in the latter. Of necessity, a civil code that takes as its fundamental legislative mission “to care for man, nurture man, and make him all he can be” will reflect the all-round development of man, which will find expression not only in the all-round enhancement and protection of man’s subjective attributes and in emphasizing and safeguarding all his rights, but also in the all-round realization of his freedom. Whether or not our future civil code re? ects man as subject will decide, to a considerable extent, whether it is scienti? c and reasonable. Only a civil code that cares for the individual can be vital, of high quality, and supported and followed by the people. Not only should each person enjoy basic rights; these rights should also be equal. Only in this way will it be possible to construct a

30　Su Haopeng, “Civil Law Culture: An Initial Theoretical Analysis.”

31　Dieter Medicus, Allgemeiner Teil des BGB, p. 143.

32　Basil S. Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis, p. 235.

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III.Constructing a Civil Law System Using the Idea of Humanistic Concerns

Civil law consists of an internal and an external system. The latter, the aussere Systematik, refers to such formal systems as the structure of compilation, while the former, the innere Systematik, stands for the value system of civil law, covering its values, principles, etc.34 In terms of the external system, whether it be the three-chapter system of the French or the ? ve-chapter system of Germany, the system has traditionally mainly been constructed with property law at its center. The right elaborated in the ideas on private law of Christian Wolff, the leading ? gure of the Pandekten School, where he speaks of the centrality of civil rights in civil law, refers in the main to property rights. Wolff’s discussion carries on the Renaissance tradition of liberal jurisprudence; setting out from the theory of natural law, expounds civil rights’ central place in civil law and de? nes the essence of human action as obligation (obligatio). The rights he discusses are, however, mainly property rights. From the perspective of the German Civil Code, civil rights typically means nothing other than real right, right of obligation and right of inheritance, so it follows that its stress on the central position of rights actually means the central position of property rights. While the general principles of the Pandekten School fail to give personal law any prominence, the three-chapter model of France does so. “By comparison, Roman law is more rational,” said Mei Zhongxie, comparing the merits and demerits of the two civil codes of France and Germany. “Since everyone has a mother and even a beggar may have a wife, assigning kinship law the ? rst place in civil law not only ? ts well with the principles of natural law, but also avoids the suspicion of putting property above people.”35 But even these codes did not give prominence, either in their contents or in their speci? c systems, to the protection of the freedom and dignity of man. The three-chapter format itself came from the Gaii Institutionum Commentarii IV of Gaius: “Omne autem ius quo utimur vel ad personas pertinet, vel ad res, vel ad actiones (Every right which we enjoy concerns either persons, things or actions).” Obviously, ‘person’ in Roman personal law differs greatly from what we mean by the same word, as has been pointed out by Xue Jun: “As a whole, the system of ‘personal law’ of the Jus Romanum is a system of unequal status, of hierarchy. We cannot require the ancients to live up to our modern standards”;36 nor can we expect people in the age of slavery to have been concerned with issues like human dignity and equality. Besides, what was mainly de? ned in the personal law of the three-chapter format of the French civil code was the subject system; systems of personal rights were not seen as an important element for standardization. Traditional civil law took the transaction as its central element and served essentially for

33　Wang Haiming, “Equality: A New Discussion.”

34　Franz Bydlinski, System und Prinzipien des Privatrechts, p. 48ff.

35　Mei Zhongxie, Essentials of Civil Law, p. 18.

36　Xue Jun, “The Distance between Ideal and Reality,” p. 195.

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exchange and for the creation of wealth. The subject entity it af? rmed was in the main the subject in the exchange. “Capacity of disposition” here means in essence capacity to undertake a transaction, the absence of which would chie? y affect the conduct of the transaction. The key to the system of real right in civil law was that it served to provide transactions with their premise and basis and also guaranteed their outcomes. Besides, what civil law af? rmed was property ownership, whereas the law of obligation af? rmed property transactions. The system of legal action, as an instrument of the autonomy of private law, was chie? y concerned with the autonomy of private law in the field of property and was, in essence, in the service of the will of the actor himself. It was in this sense that the system of civil law was regarded, not without reason, as having expanded and developed with property rights at its center. It is not unreasonable for scholars to criticize the valuation of things above people; however, to consider this as an orientation towards people versus an orientation towards property would be too extreme.37 One needs to see the connection between the state of the law and the historical background of the times; law has to serve the social demands of its age.

Theoretically, the internal and external systems of civil law are independent of and different from each other: the internal system is the basis on which the external system comes into shape, and its changes necessarily extend and spread into the external system. Also, people tend to separate the value system from the external system, yet the two cannot be isolated from one other. On the basis of the fact that humanistic concerns have become an indispensable value for our system of civil law, that system’s external form should adapt to the values of humanistic concerns, so as to make the civil code respond in full to society’s demands, energized by the fresh breath of the times. Especially, with tort acts and the right to human dignity becoming the new growth points of civil law, the value ideas of humanistic concerns have gained further prominence. Changes in these value concepts will necessarily lead to the development of our system of civil law and the re-reading of the existing system. To respond to the idea of humanistic concerns, civil law should, in the ? rst place, single out personal right and make it an independent chapter in the civil code, offering a protection that will make up for the inadequacy of the system with regard to the human person. It is the law of personal right that embodies, in civil law as a whole, the most direct and comprehensive respect for and protection of man. The suggestion that personal right be made an independent chapter is aimed at developing a complete content and system for this area. In the traditional system of civil rights, no independent personal rights stand on a par with property rights; civil rights centered on property rights, and it was on the basis of the protection of property rights that the system of civil law was constructed. However, with the progress of social and economic development and the growing importance of the protection of human rights, the fetishism that summed up man’s very existence as a matter of property rights has become obsolete; increasing value is set on the individual’s spiritual rights, on the value of his feelings and sensations to his existence, and on the damage in? icted by spiritual trauma and pain to his

37　Xu Guodong, “New Humanism and Civil Law Theory in China.”

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interests as a person.38 As a result, personal rights are taking an ever more prominent place in the civil law of today, with their own system of rights and institutions vis-à-vis property rights. It can even be said that modern civil law gives more importance to the protection of personal rights than to the protection of property rights.39 The high pro? le of personal rights has had a great in? uence on the whole civil law system, leading civil law jurists to give consideration to its reconstruction.40 Obviously, making personal rights an independent chapter ? ts in well with the basic value of humanistic concern. Another category of rights running parallel with property rights in civil law is rights of the person, which covers personality rights. Rights of the person and property rights constitute the two basic categories of right in civil law, and the systems de? ning them are the mainstay of civil law. Other civil rights are either covered under these two categories or are the product of their union, such as intellectual property rights, inheritance rights, etc. Should personal rights fail to become an independent chapter, it will be very dif? cult for intellectual property rights and other rights that contain personality rights to occupy their due place in the civil code. As the attributes of different rights form the basic standard for distinguishing one chapter of the civil law system from another, for personal rights to be made an independent chapter simply ful? lls the inherent requirement of the logic and the systematic nature of legal codes. The fact that the 1986 General Principles of Civil Law was so well received at home and abroad and applauded as a declaration of rights was due, to a very great extent, to its listing of various civil rights including personal rights, an occurrence that was of epoch-making signi? cance. The very elucidation of basic personal rights—what makes man human—provided civil subjects with a legal weapon to fight all actions infringing upon their personal rights. After publication of the General Principles of Civil Law, people came to realize that wounding and killing were not only criminal offences, but also infringed upon the life and health of others who were entitled to a remedy in private law. For the ? rst time in many decades—even in thousands of years—people found that as individuals in society they had personality rights to things such as their reputation, image, etc. To create an independent personality rights chapter in the civil code, and to further af? rm and protect these rights in a comprehensive way, con? rming the civil subject’s right to the power to exclude unlawful interference and infringement by others and bestowing on all individuals the weapon to fight any illegal acts that would “look down on man, hold him in contempt and make him less than human”—will not only lead citizens to see their own values in a new light but will encourage them in all earnestness to respect the rights of others.41 This will necessarily have a powerful in? uence on the construction of democracy and the rule of law in this country.

38　Zhang Xiaojun, “Remedy and Objective Expansion of Compensation for Psychological Damage to Substantial Right of Personality ,” p. 617.

39　Shi Chunling, “Real Right’s Active Quest for and V oluntary Yielding to Personal Right.”

40　Wang Liming, “Status of the System of Personal Right in the Chinese Civil Code.”

41　Li Lihui, “A Tentative Discussion on Whether Personal Right Can Constitute an Independent Chapter of the Civil Code.”

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Another change brought about in the civil law system by the introduction of the values of humanistic concern was the fact that tort law was made into an independent chapter. While the heated arguments thus touched off 42 seem to have settled down following the enactment and promulgation of the Tort Law of the PRC, academic circles have continued to question the rationality of separating tort law from the law of obligation. The problem, as this writer sees it, cannot be observed and understood at the formal level; rather, it has to be understood from the angle of humanistic concern. Modern civil law differs from traditional civil law in that it emphasizes not only the protection of property, but also the protection, and even preferential protection, of rights of the person. To strengthen protection of the victim, tort liability law in each country tends, on the whole, to develop from simple compensation for damage to multiple remedies. While the diversi? cation of tort liability does not alter tort law’s character as a law chie? y directed at compensation, it can lead to diverse forms of liability. Forms of liability that fall outside damages do not constitute relations of obligation. Making the law on tort liability an independent chapter helps provide the victim with a uni? ed means or way of remedy. In order to strengthen the victim’s remedy, tort law has set up comprehensive modes of remedy, such as links with insurance, social salvage, etc. All this shows that simply introducing tort law into the system of the law of obligation does not provide a way to include all of its contents. The alternative that remains is to make it an independent chapter; only thus can a full and thorough expression be found for tort law’s values in terms of humanistic concerns.

IV.Humanistic Concerns and the Future Orientation of Chinese Civil Law

With the Constitution of the PRC as the core and the law as the backbone, including such normative documents as administrative and local regulations and rules, we have built up, fundamentally, a legal system with Chinese characteristics comprising seven legal branches and three levels of legal norms; have constructed a basic legal framework for our market economy; and have protected the normal order of our social and economic life. At the level of legislation, however, we can see that while the main basic laws in the various legal branches have already been formulated, the fact that our civil code has not so far been ? nalized means that the task of integrating and perfecting our legal system remains an onerous one. To ensure that our legal system plays its due role in the development of our socialist market economy and democratic politics and the active construction of a harmonious society, we must explicitly elucidate the value orientation of the civil code and make it our guide in building a scienti? c, rational civil code that re? ects the spirit of the times. Clearly, then, we do not conduct discussions on the values of humanistic concerns out of a metaphysical academic preference, but with a view to the selection of values in our civil legislation and judicial

42　Wang Liming, “An Inevitable Split after a Long Time of Union: On the Relations between Tort Law and the Law of Obligation”; “On Tort Law’s Making Up an Independent Chapter.”

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practice. In China, so long lacking in any tradition of civil law, existing civil legislation has been found insuf? cient to support the market economy even when a preliminary legal order has been established. At a time when both social and economic development have reached a new stage, how to renew our legal ideas and make them better adapted to developments in society, how to make civil law carry out its legal role more ef? ciently and how to make the legal system as a whole play its rightful part—this is the most urgent task we are faced with today.

Our country’s legal system is an open one; similarly, its civil law is also in a dynamic process of development, carrying out different historical missions and embodying different functions and attributes in different historical periods. From the perspective of China’s civil legislation process, we can see that the commodity economy theory proposed by Tong Rou in the initial days of reform and opening up was meant in the main to construct a comprehensive civil law system in terms of those functions of civil law that relate to relations of exchange. It was in such thinking that the basic framework and idea of the country’s civil law was grounded, with a logic based on the constant emphasis, in all civil codes from the Jus Romanum to those of the era of codi? cation, on the central place of property law and the law’s mission in standardizing property transactions. Its historic merit lies in making us truly aware of civil law’s function in the market; that is, the fact that civil law’s status as a law of equal subjects has to be established if the market economy is ever to be realized. At the same time, we must set up the basic rules of the market, i.e., the rules of civil law, including those on the subject entity and on the rights of ownership and obligation. As Tong Rou sees it, the advanced commodity economy constitutes a stage in the course of mankind’s development that cannot be bypassed. Accordingly, our civil law must shoulder the great mission of preserving order and promoting the development of the economy.43 This theory, an important innovation in civil jurisprudence, has laid the foundation for civil legislation in China. During the thirty years and more since reform and opening up, our country has covered a course of development that took the West several centuries to complete. One might say that this testi? es to the great merits of civil law in the commodity economy!

Following the establishment of the market economy in China, both marketization and industrialization have developed to the full. Our country has become the world’s second biggest economy, with considerable accumulation of material wealth and substantial improvements in people’s livelihood. Under these conditions, the task of civil legislation should not stop at laying down the basic foundation for a market economy; it must take on the higher goal of concern for man. Right now, the country is in a process of rapid transition; its sharpening social contradictions and ever-changing society make it hard to decide on institutional rules for the civil code.44 In the past three decades and more, interest patterns

43　Tong Rou and Wang Liming, “Development and Perfection of Chinese Civil Law in the Reform of the Economic System.”

44　Office of the Organizational Committee for “100 Lectures by 100 Jurisprudents,” A Hundred Schools on the Rule of Law, p. 444.

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have become ever more complicated as social contradictions intensify, such as the con? icts that take place when land is requisitioned and houses demolished for reconstruction projects and the tensions to do with resources and the environment. The appropriate solution for all these problems requires that we return to man himself and think anew about how to realize man’s all-round development instead of the one-sided pursuit of GDP growth prevalent now throughout the country. Our legal system needs to respond to this reality of social transformation and, especially, to write a civil code with Chinese characteristics and Chinese style that faces up to the 21st century and holds a unique place among the civil codes of the world. Furthermore, to meet the needs of the country’s socio-economic development, we should introduce humanistic concerns; instead of sticking to the 19th century value system of the West as the ultimate truth, we must set out from the needs of the realities of China to emphasize humanistic concerns and strive for innovation and development in terms of our value system and formal system.

Our civil code of the future should be grounded in humanistic concerns. This requires, on the one hand, that we construct its value system in accordance with the needs of humanistic concerns. The code’s value rationality is ultimate concern for man. In terms of civil law’s ideas, besides strengthening the autonomy of the will, it is also necessary that man’s dignity and freedom should be given equal importance and that these values should run throughout the institutions and systems of the code. During the legislative process, full consideration should be given to the interests and claims of comparatively disadvantaged groups, providing them with the means of fully voicing their demands; their personal dignity must be respected and their lawful rights must be protected. On the other hand, we must adhere to the ideal of humanistic concern in structuring the external system of our civil law. As well as standardizing property rights and transactions, we should, while preserving the existing system of property rights, uphold humanistic concerns as the basis for institutional design by adding independent chapters on the system of personal rights and on tort liability. Humanistic concerns demand that we persist with the idea of justice and adhere to the principles of respect for and protection of the dignity of man. The law contains man’s spirit and his sense of justice; it is not the animal kingdom’s law of the jungle. Law is a secular game, and the rules of that game. Its task is to ensure that people’s acts are governed by rules; it is not a tool for winning obedience through coercion.45

Our emphasis on humanistic concerns does not imply the all-round transformation of civil law, nor a negation of its existing values and systems. The fact is, our civil law of today is not in a critical state, nor does it need to overcome a crisis of this kind. What our civil law needs is simply to add new value ideas to its existing value system to give it more vigor. Civil law simply inherits and further develops the past; it does not negate it. Looked at from the contemporary perspective, civil law in the 19th century did display a tendency to “place more value on things than on people,” but this ? tted in well with the situation in those days. Today,

45　Hou Jian and Lin Yanmei, Humanistic Trends in Jurisprudence, p. 28.

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we need to adapt to changing social needs, developing the values of civil law and expanding its functions, so that our civil law will remain eternally youthful and vigorous.

We should make even greater efforts to ensure that the idea of taking man as the basis permeates the application of civil law. In areas of the judicial process where legal provisions are incomplete, the interpretation and application of the law in speci? c cases should always incline to the more disadvantaged party, so long as this does not contradict basic legal principles. Humanism as a theoretical system is highly logical and consistent; the humanities aim at giving full play to man’s potential, cultivating his character and perfecting him by means of humanist education.46 The legal person is not a tool making mechanical use of law articles, what he faces is real-life society in all its conflicts and contradictions, with their complex backgrounds and social sources. In this light, legal education must cultivate humanistic feelings and attitudes in students, so that they can more readily and more effectively resolve social conflicts and contradictions in their future work. The realization of humanistic concerns in legal education demands that we regard man from the perspective of man, rejecting both the mechanistic and the utilitarian pattern of thinking and refusing to simplify man. John Merryman has warned against excessively rigid application of the law: “The picture of the judicial process that emerges is one of fairly routine activity. The judge becomes a kind of expert clerk.”47 This in fact over-stresses legal formalism and conceptual jurisprudence, seeing it as nothing but the natural outgrowth of syllogism. In contrast, humanistic concerns always uphold the idea of justice throughout the whole process and maintain an attitude of respect for personal dignity. Law is both rational and emotional; it is a product of the will, yet it must be guided by justice.48 Humanistic concern is a sentiment judges must adhere to; it will bring them closer to the mass of the people, so that “The judiciary serves the people” does not remain a mere slogan, but is embodied in speci? c cases.

Notes on Contributor

Wang Liming, Ph.D. in Law, is Professor and Doctoral Supervisor of the School of Law, Renmin University of China. His main research interests are civil and commercial law. His representative works are: A Study of State Ownership (国家所有权研究, Beijing: China Renmin University Press, 1991), On Liability for Breach of Contract (违约责任论, revised version, Beijing: China University of Political Science and Law Press, 2000), Studies on the General Principles of Civil Law (民法总则研究, Beijing: China Renmin University Press, 2003), Studies on the Law of Personal Right (人格权法研究, Beijing: China Renmin University Press, 2005), Studies on the Law of Real Right (物权法研究, two volumes, Beijing: China Renmin University Press, 2007), Studies on the System of the Civil Code (民法典体系研究, Beijing: China Renmin University Press, 2008) and Studies on the Law of Liability for Tort (侵权责任法研究, two volumes, Beijing: China Renmin University Press, 2010). E-mail: wangliming@https://www.360docs.net/doc/d714017343.html,.

46　Ibid., p. 7.

47　John Henry Merryman, The Civil Law Tradition, p. 36.

48　Hou Jian and Lin Yanmei, Humanist Trends in Jurisprudence, p. 28.

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