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The Theory of Property Rights under the View of Constitutionalism in Modern Britain

Author: YanYunFeng
Tutor: LiBuYun
School: Hunan University
Course: Economic Law
Keywords: Constitutionalism Property Liberalism Utilitarianism Natural rights Justice rules
CLC: DD911
Type: PhD thesis
Year: 2009
Downloads: 320
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Abstract

The concept of property rights on the the British modern constitutional significance and far-reaching impact on future generations, is the source of modern property rights theory of the ideas and institutions with a typical value. Natural right stage of Locke, Hume Scottish Enlightenment and Adam Smith, and the utilitarianism of Bentham and Mill are representative of the three stages of development, five thinkers writings became a classic text in the field . Domestic scholars currently limited to individual the above thinkers property rights theory, the outcome is no system combing and clearance of the period the property rights inherent ideological evolution context. Therefore, to explore the British modern concept of liberal property rights established the Inner Logic absolutely sacred to the relatively limited direction for understanding and solve theoretical differences in the current issue of property rights, and promote the reconstruction of the contemporary Chinese property concept of justice and clear property system value orientation has great significance. Locke has created a paradigm of the modern liberal property rights theory. Modern England in the political transformation of Locke, as a legitimate basis to solve the renewal of political power in this era issues, keenly capture the moment in history based on individualism, property rights, the status of established political philosophy based on property rights as natural rights. Since then, property rights are no longer a purely civil law has nothing to do with the political system, but rather to defend the freedom of the individual is closely related to the constitutional issues, won almost absolute and sacred place. Hume and Smith on behalf of the Scottish Enlightenment thought Locke's property rights theory of rational crack bridging the complete demonstration of the emotional psychology of the British classical liberalism, property rights and political philosophy. Hume questioned priori color concept of natural rights and social contract theory with rational construction that he will be property rights from Locke's natural state to pull back to the community, which is viewed as the core of the artificial virtue of justice rules. Hume on the basis of government authority and its legitimacy is established based on the maintenance of property rights for the core rules of justice. \And customs-related according to Smith jurisprudence handouts, property rights are not natural rights, but depends on the specific constitutional environment, obtained the right to vary in different societies and times. But Smith's property rights and natural rights completely right to the others completely the obligations shall not be destroyed, the government's responsibility is to protect this right. Smith believes that property rights are closely related to the origin of government, thus highlighting the dimension of economic freedom, and clearly the limits of government functions. Bentham and Mill's utilitarian theory advocated radical democracy and limited property rights, freedom of property and democratic constitutional phase separation. Bentham's utilitarian theory for a comprehensive alternative to the concept of natural rights and social contract theory, property rights become in him a legal right, or rather is a civil right. Adhere to the security value of the property at the same time, Bentham stressed that property rights are subject to certain restrictions and in favor of a more equal distribution of political theory with the property because the advocates of radical democratic phase separation between property and freedom of classic early John Locke and Adam Smith writings close ties blurred, played down the political significance of the property. Bentham's utilitarian theory of inheritance and correction, Mill tries to balance his time, have underscored the inherent conflict of freedom and equality. Although claiming to adhere to the principle of laissez-faire, but Mill's distinction between production and distribution law, state intervention and socialism opened the door. Compassion and yearning for the socialist Mill thorough property rights pushed down the altar, the classical absolute sacred property rights from the relatively limited property rights in modern. Mill representative government steering correction of democratic political theory from the purely democratic politics, emphasis on guard against the tyranny of the majority, the property only means more blurred, its political significance. Evolution of the concept of property rights in this period as inspiration to understand and solve the current theoretical issues: first, the transformation of the British modern society, the establishment of property rights and developed to promote business and economic development, the formation of the constitutional system, as well as individual ownership culture crucial; Second, property rights are human rights, Locke and other thinkers classic proof, and property rights in the Constitution is the fundamental human rights of the public law against the abuse of public power, which reflects the defensive nature of the property rights of the defense of freedom and human dignity; first Third, property rights, not just economic rights, it also has a political side to recognize as the intersection point of the economic and political significance of property rights, so understanding of property rights, in order to eliminate the existence of the International Covenants on Human Rights the deadly differences, and really implement the economic, social and cultural rights with civil and political rights of interdependence and indivisibility principle. In modern times, China and the West on this issue in the transformation from a traditional society to a modern society in the 17-19 century there is a certain similarity. So, learn from the British experience of contemporary China, the primary task is to rebuild the property just concepts, clear property rights of human rights in the Constitution attributes. Second, the constitutional guarantee of property rights norms value orientation should objectively reflect modern times (absolutely divine) and modern (relatively limited) requirements of the laws of history. Finally, an urgent need to deepen the reform of property rights, and gradually solve the problem of property rights incomplete.

The Theory of Property Rights under the View of Constitutionalism in Modern Britain

Abstract

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