Jiang Bingxi: Common Prosperity and the Rule of Law: A Coherent Interpretation of the Constitution's "Socialist Country Ruled by Law"


2022-06-24: [Chinese Article Link]  Co-opportunity. Rule of law Summary: Co-prosperity is the essence of socialism, on which the guarantee of the rule of law should be based on the “social rule of law” provided for in article 5, paragraph 1, of the Constitution. However, the common wealthic nature of “socialism” together with the background of individual freedom of the “rule-of-law State” shapes the inherent tension of this constitutional concept, with differing understandings of the degree of tension between the two or with fundamental implications for the basic direction of the common enrichment-building of the rule of law in our country. To this end, by drawing on the German public law doctrine, it is intended to adapt the normative content of the socialist rule of law in the context of the adversarial unity of freedom and equality through a coherent interpretation. Guided by a socialist State governed by the rule of law, the rule of law for our common wealth should be built on the premise of the security of individual freedom and property, on the material basis of adherence to the system of market economies, the liberation of productivity, the institutional guarantee of the rule of law in its form, in a manner consistent with the “principle model” of progressive development, which provides systematic and comprehensive guarantees of the rule of law for the achievement of social balance and the maintenance of equitable justice in society on the basis of freedom and wealth. Keywords: socialism, the rule of law, shared wealth, social balance. Introduction The proposal adopted by the Party's Plenary of the 19th Session of the 5th Session of the Chinese Communist Party for the formulation of the 14th Five-Year Plan for the Economic and Social Development of the Nation and the 23rd Five-Year Vision has made a significant strategic deployment for the solid promotion of shared wealth, calling for “a more visible and substantial progress in the shared prosperity of all people by 2035”. The corresponding guarantee of the rule of law is indispensable in order to achieve the goal of shared prosperity. As Professor Li Lin said, “Shared wealth is the essence of socialism, an essential feature of modern Chinese style, and the inevitable pursuit of the rule of law in socialism of China’s identity. However, before a system that specifically promotes the guarantee of the rule of law in common wealth is established, there is a constitutional dimension that needs to be clarified, namely, how the “socialist rule of law” inherent in article 5, paragraph 1, of the Constitution of the People's Republic of China (hereinafter referred to as the Constitution) should be viewed. In the current constitutional order, a socialist State governed by the rule of law constitutes the constitutional basis that guides the construction of the rule of law in our shared wealth, and the different answers to whether and to what extent tensions exist between “socialism” and “rule of law” may affect the fundamental direction of the construction of the rule of law in our shared wealth. In view of this, it is proposed that, from the text of the Constitution and with the help of the teachings, it should be noted, first of all, that the common rich nature of “socialism” and the free colour of the individual “law-based State” together shape the internal tensions of the socialist rule-of-law State; secondly, that the possibility of their convergence within the system of constitutional norms be further demonstrated by drawing on German doctrine; and finally, that the overall requirements and fundamental orientation of the common rich rule-of-law-building in the country be based on the unity of the two, under the guidance of the socialist rule-of-law State. I. A dichotomy of a socialist State governed by the rule of law In the normative system of the current Constitution, the “social rule of law” provided for in article 5, paragraph 1, of the Constitution constitutes an important prerequisite for exploring the guarantees of the rule of law for shared wealth. In terms of semantic structure, the term consists of two elements: “socialism” and “law-based State”, which will be analysed separately below in order to clarify their respective normative content and, in turn, to examine whether there is any inherent tension in the concept of socialist rule-of-law State. (i) Normative content of socialism “Socialism”, which is a fundamental part of our Constitution, has appeared 50 times in the current text of the Constitution, which has been used to characterize elements such as the “national” “market economy” and the “democratic” “law-based State”, respectively, and which are closely linked to the path of our development, the doctrine of guidance and the design of policies and institutions corresponding to it. In view of this, the current academic community interprets the constitutional content of “socialism” in terms of its “fundamental attributes” and considers that “socialism in the text of the Constitution is primarily a manifestation of the nature of the State system, the values of the State and the direction of the country's development”. A typical example of this is the general doctrine of the academic community represented by the Constitutional Law of the Ma'am project, which interprets “socialism” as the nature of the State, at the core of the provisions of article 1, paragraph 1, of the Constitution. However, the above-mentioned formula of interpretation “is merely an expression of the high, or fundamental, importance of socialism to the Constitution in terms of the dimension of value theory”, fails to reveal the normative nature and content of socialism in terms of its normative dimension. On the basis of a normative position, constitutional norms can be distinguished by their nature as constitutional rules and constitutional principles, depending on their characteristics and the manner in which they are applied. Among them, constitutional rules are “orders of certainty” consisting of three parts: presumption, conduct and disposition, which must be applied “in whole or in nothing”; constitutional principles refer to “orders of optimization” in constitutional norms that can be used as a source and basis for constitutional rules and that are “to the greatest extent possible, de jure and de facto”. [5] Through the “principles-rules” general law theory, the expression of “socialism” in the current Constitution is concentrated in the “preamble” and “general outline”, which are mainly concerned with the history of the country, its basic system and its basic State policy and, by their very nature, constitute an order of optimization and should fall within the scope of constitutional principles. Moreover, “socialism” has been placed first and foremost in the normative expression of the main text of the Constitution, in article 1 of the Constitution, which proclaims that the essential attributes of the social relations regulated by the Constitution are fundamental in the system of constitutional norms and should be further interpreted as fundamental principles of our Constitution. [6] And as a fundamental principle, the socialist principle forms the “inherent unity and the basis for assessing consistency” of the constitutional order,[7] playing a value enforcement and normative role with respect to other socialist norms. Among them, the socialist State, which is governed by the rule of law, as established in article 5, paragraph 1, of the Constitution, is within the scope of the radiation of socialist principles and is shaped by the values of the latter. With regard to the normative content of the socialist principle, first of all, the term socialism in the current Constitution is not inherent in my country, but is a German concept derived from the Marxist doctrine of scientific socialistism. The doctrine is aimed at changing the growing polarization and sharper class rivalries of the monopolistic capitalist countries of the second half of the nineteenth century, in the hope of achieving social balance through the creation of a State capable of proportionately interfering in socio-economic conditions and guaranteeing equitable distribution, thus ensuring substantive personal freedoms and legal equality. [8] Professor Hans Zacher, a German social jurist, examined the source of the term socialist, noting that it was developed from the “social/social” root of the word “social”, with some ideological connotations, representing criticism of unreasonable and unequal living conditions and the revision of such inequality in the direction of “more equal”. In this sense, “socialism” under the Constitution should no longer be considered merely as a “fundamental” declaration of the legal value dimension, or as an expression of “purpose solidarity” in the legal ethics sense, but should be interpreted as a normative concept. By its very nature, the socialist principle contains positive restrictions on the economic freedom of the socio-economic elite and guarantees of the “social rights” of the socially and economically vulnerable, and should define its normative content in terms of upholding social justice, supporting the socially vulnerable and achieving social coexistence for all. (10) Returning to the normative context of the current Constitution, Comrade Deng Xiaoping, in his “South Talk” in 1992, systematically interpreted the nature of socialism as “freezing productivity, developing productivity, eliminating exploitation, eliminating polarization, and eventually achieving shared wealth”,[11] the current Constitution, with its “common wealth” as its vehicle, further affirms the kernel of social balance as the norm of socialism. (12) In addition, the Party’s nineteenth Congress officially declared that the socialism of China’s identity had entered a new era and made it clear that the main contradictions of our society in the new era had translated into a conflict between the growing needs of the people for a better life and the inadequate development of the imbalances, which had led to a shift in the focus of the State’s work towards addressing the imbalances and imbalances in the development process. In this context, it is clear that the purposeful interpretation of the socialist principle also points to the idea of promoting the comprehensive development of the human person and achieving a social balance in which the entire population shares wealth. On the basis of the above analysis, “socialism” in socialist rule-of-law States is the projection of socialist principles in the area of the rule of law, and its normative content includes the promotion of social balance and the promotion of shared wealth in order to achieve a dignified life for the human person. (ii) Normative content of States governed by the rule of law In the current Constitution, the term State under the rule of law is limited to article 5, paragraph 1, of the Constitution, which states that “the People's Republic of China shall be governed by the rule of law and shall build a socialist State under the rule of law”. This provision is derived from the 1997 Party's 15th report on the State's strategy based on the rule of law and was completed by the 13th Amendment to the Constitution, adopted in 1999, which represents the “constructed objective of the image of the State in the Constitution”. [13] In accordance with the dichotomy of “rules-principles”, the State provision on the rule of law, taken together with the system, constitutes a fundamental principle that is fundamental to the State itself — that is, the State principle on the rule of law. The so-called “law-based State”, by definition, is “a State founded on law”. [15] Like socialism, it is not a traditional Chinese term, but is translated from “Rechtsstaat” in the German national law tradition, which is a classic German characterization (deutsche Worldpr? In Germany, the term State of the rule of law was born in the late eighteenth and early nineteenth centuries and was a product of the liberal national doctrine of Kandeh, Humboldt and the early Fahithics.[16] In their view, the State itself was the result of a rational choice made by human beings to guarantee freedom, a union of the majority under the law, and the preservation of the law in order to guarantee human freedoms and rights. On this basis, and thanks to the academic accumulation of scholars such as Placidos, the German public law giant Robert von Mohl has finally completed the institutionalization of a State governed by the rule of law and has become a universally accepted concept of public law in the academic community. [18] According to Merle, the rule-of-law State represents a type of State (Staatsgattung), i.e. a description of the State's attributes, which are condensed by the nature and purpose of life of different States. [19] In this sense, the State based on the rule of law is a concept opposed to the despotic, authoritarian State, which is based on the intellectual achievements of the enlightened philosophy. On the one hand, it frees itself from the fanaticism and rational repression of faith by the despotic State, using the free life of the individual in secularity as a starting point and a starting point in the national order; on the other hand, it is rid of the authoritarian State's characteristic of the monarchy's will and uses objective law, rather than arbitrary will, as the basic means of achieving the State's aims. Taken together, Carl Schmitt further emphasizes, from the perspective of the realization of civil liberties, that “any State that unconditionally respects existing objective law and the rights of existing subjects” can be called a State governed by the rule of law. [20] Thus, the essence of the concept of a State governed by the rule of law is to preserve the freedom and property of the individual through the exercise of public authority in accordance with the law, thereby promoting “self-fulfilment of the subject matter of the individual” (Selbsterfüllung der individullen Subjektivit? t. [21] In this regard, Professor Takada pointed out that a State governed by the rule of law is essentially a State that pursues freedom. In 1997, when the Party's 15th report first presented the basic formula “Building a socialist State based on the rule of law”, it also followed, to some extent, the liberal background of the aforementioned rule of law State. The report states that adherence to this approach is “an objective need for the development of a socialist market economy, an important indicator of the progress of social civilization and an important guarantee of the country's long-term security”. It is clear that the development of a socialist market economy is an important context in which my country sets out its goal of building a State based on the rule of law. Given that a market economy is essentially a power economy, in the spirit of rights and contractual freedoms, and that it essentially refers to the fundamentals of freedom, equality, human rights and humanism,[24] in the context of the link between a market economy and a State governed by the rule of law, the establishment of the rule of law is entrusted with the important task of safeguarding the economic freedom of the market subjects and guaranteeing the property rights of the market subjects in order to lay the premises and foundations of a market economy. On the basis of this, the value of rule of law State-building undoubtedly carries with it a strong and liberal attribute, as also illustrated by the constitutional amendment of 1999. In the Note on the Constitutional Amendment (Draft), the then Vice-Commissioner of the Standing Committee of the National People's Congress, Jiyun Nagata, stressed that “the inclusion in the Constitution of `the State under the rule of law, the State under the rule of law, the socialist rule of law' is of great importance in promoting economic reform and economic development. In this regard, it has been pointed out that the market economy, which is enshrined in the current Constitution, “in essence entails the protection of the individual's freedom of business and the right to property”, has the value of “economic freedom under the rule of law shall be guaranteed on an equal footing” and constitutes the superior principle that State institutions should respect. This is further demonstrated by the constitutionalization of “human rights provisions” and the amendment of “private property rights” in 2004, in this sense, the “law-based State” in the text of the Constitution establishes its own personal freedom orientation through its interaction with the market economy. In view of this, the “rule of law State” in a socialist State governed by the rule of law should be interpreted as regulating the operation of the public power of the State through a legal order, with the radiological effect of the principle of the rule of law, in order to achieve the State's objective of guaranteeing the freedom, property and security of the individual. (iii) Tensions between socialist and rule-of-law States In the current Constitution, the socialist state of the rule of law is a national goal established by the principle of socialism in conjunction with the principle of the rule of law. As the content of the norms of “socialism” and “rule of law” becomes clearer, the inherent tension of the concept becomes even more apparent. In particular, in a socialist State governed by the rule of law, the normative context of socialism is based on the idea of social balance, based on shared wealth, referring to the public and human nature of the State, requiring State intervention to eliminate unjustified differences between human beings, thereby preserving the social coexistence of human beings and achieving a dignified life for the human person. By contrast, the normative context of a State governed by the rule of law is based on the subject matter of the individual and on the safety and security of the individual's freedom and property, with a liberal perspective that emphasizes the prevention of State authority and thus promotes the free development of the individual's personality. Thus, the norms of a socialist State governed by the rule of law do not enjoy natural harmony: on the one hand, the social balance and common wealth sought by socialism are not free, but at the expense of the freedom and property of some parts of society, especially the economically powerful, are bound to conflict with the concerns of a State governed by the rule of law about the negative freedoms of individuals; on the other hand, the rule of law State aims to construct, restrict and regulate the functioning of State power through a legal order and to establish a stable normative expectation for society in order to avoid the abuse of power and guarantee individual freedoms,[29] it is inevitable to counter socialist claims to strengthen State power in order to intervene actively in society.[29] On balance, given the tensions between “social publicity” and “personal subjectivity”, the prevention of “personal freedom” abuse and the prevention of “State power” abuse, and the guarantees of “material freedom” and “formal freedom” of the individual, the socialist and rule-of-law States do have tensions in the current Constitution, referring in essence to “equality and freedom” “social and market” and even “public and private”. II. Consistency of socialist and rule-of-law States In the context of the inherent tension in the objective existence of a socialist State governed by the rule of law, how to view the level of tension between a socialist State and a State governed by the rule of law is a question that my country must answer in order to promote the guarantee of the rule of law in shared wealth. After World War II, German public law debated the compatibility of social and rule-of-law principles with the rule-of-law principles. Depending on the degree to which they differ in the constitutional order, the academic community eventually formed three representative theories, corresponding to three different paths of social state-building. The following is a first academic exercise on German doctrine, which will serve as a basis for further analysis of the coherence between socialism and the rule of law in our country's constitutional order. (i) Consistency between the State of society and the State governed by the rule of law After the Second World War, in order to level the social and economic costs of the war, it was important for Germany to support the weak and guarantee the basic living conditions of its people in the early post-war period. [30] Against this background, the Basic Law of Germany, adopted in 1949, for the first time in the history of the German Constitution, explicitly defines the “social State” as a constitutional principle. Article 20, paragraph 1, of the German Basic Law states: “The Federal Republic of Germany is a democratic and social federal State.” Subsequently, article 28, paragraph 1, further stresses that “the constitutional order of the Länder must be in conformity with the principles of the Republic, democracy and the social rule of law within the meaning of the Basic Law”. Together with the Republic, the Democratic State, the Federal State and the State governed by the rule of law, the social State became the fundamental principle of the German Constitution and formed the reference to the “social State governed by the rule of law” (sozialer Rechtsstaat). However, the entry into the Constitution of the country on the basis of the rule of law has given rise to intense controversy as a result of internal tensions, which soon became the most central challenge that plagued German constitutional science in the post-war period. Of these, there is no more representative doctrine than the fundamental negation and complete convergence of the bifurcation of the divisions, as well as the transposition that represents the current general doctrine. To say no at all. The absolute denial was raised by Professor Ernst Forsthoff, who, on the basis of his own basic position of conservatism, fundamentally denied the possibility of compromise between the principles of social statehood and the rule of law. In his view, the principle of the rule of law was a fundamental principle of the Constitution, and its core was the “system of legal technical means to guarantee freedom” (System rechtslicher Kunstgriffe zur Gewarhrleistung gesetzlicher Freiheit),[32] extremely normative. The concept of the social State, which is confined to providing minimum care for the survival of citizens by the State, is factual in nature and its content is constantly changing and lacking in norms. Any attempt to reconcile the State with the rule of law at the constitutional level is therefore likely, in turn, to break through the inherent normative structure of the State governed by the rule of law, thus putting the State at risk and even leading to the resurgence of State socialism. According to Foley, the rule of law and the social State should be placed at both the constitutional and administrative levels, in which the social State is only at the level of administrative law and is difficult to be placed in the constitutional structure, which must be constructed with greater recourse to the power of executive power and properly achieved through, inter alia, the provision of care for the survival of the State and the payment of its responsibilities. 2. Complete consistency His position is in favour of liberal democracy, and he believes that the principles of social State and the rule of law can be fully integrated in the post-war constitutional order. He stressed that, in the light of the specific historical and social context of the post-war period in Germany, in order to rebuild the social order and economic foundations, the State had to assume more social tasks than traditional guarantees of freedom. To this end, Germany must move away from the concept of the rule of law to a new perspective of the legal system, instead of viewing some of the fundamental rights of freedom as a consideration of the existing economic and social order, and should re-establish a sense of social sharing in the context of fundamental rights (soziales Teilhaberecht). In other words, A.C., from the perspective of the social right as a fundamental right, injects normative content into the principle of the social State, establishes a “model of rights” for the realization of social security and, on that basis, establishes full coherence between the principles of the social State and that of the rule of law. 3. Compromise The fundamental negation, and the complete convergence, represent two extreme views of the tension between the principle of the State of society and the principle of the rule of law, each with its own one-sided nature, while not lacking in insight. In particular, there is a total denial that the modern industrial society is not aware of the fundamental changes to the constitutional order. With the 1918 Soviet Constitution and the 1919 Weimar Constitution as pillars, the modern constitution has been deeply branded as a socialist or social state. Compared to the nineteenth century, the guarantee of freedom in this era cannot rest solely on the passive defence of a State, but begins to require it to function in a broader context. For in the case of the unemployed, freedom of occupation can only be an empty word, and the protection of property rights, the protection of freedom of residence, is relevant only for the productive and the resident. In this sense, the principle of social statehood has its own normative value, and cannot be denied constitutional status on the sole ground that it is unclear. Moreover, a fundamentally negative view, which excludes constitutional control over the construction of a social state, could lead to “State intervention in the socio-economic sphere being freed from the constraints of democracy and the rule of law”[36] and put the principle of the rule of law at risk. By contrast, full integration is not aware of the special nature of social rights, which are a completely different structure of rights than traditional negative freedoms. “When they are formed, respected and safeguarded, they do not become a reality because the social content they contain requires the State to do so by doing so”, “and the preconditions required by the State to achieve those social content are costly and often lead to the obstruction or infringement of the right to freedom of others”. Thus, as Herce argued, it is difficult to establish social rights as a direct and judicially guaranteed fundamental right.[37] If these fundamental rights are enshrined in the Constitution, and the State cannot afford to achieve their valuation, it will undermine constitutional authority. Thus, on the basis of reconciling the two doctrines, Professor Ulrich Scheuner has proposed a compromise that recognizes, on the one hand, the idea of a social state in the context of modern industrial society as a re-establishment of a State governed by the rule of law, requiring recognition of the normative attributes and principles of a social state within the constitutional order, and, on the other hand, emphasizes that the re-engineering is limited to the content dimension and cannot formally break the traditional meaning of a State governed by the rule of law. To this end, Shul believes that the principle of social statehood should be established as a constitutional provision of State objectives and guidelines, which should constitute a binding constitutional mandate and substance for legislators, requiring that the “emphasis on general equality, assistance to the weak and the balance between the social classes” be achieved in the specific legislative process. This programme of interpretation represents the “model of principles” of social security, which both confers norms on the social State, avoids its isolation from the constitutional order, preserves the liberal tradition of the rule of law, avoids the excessive squeeze of social rights on individual freedoms, and guarantees “equality in society” in tandem with “freedom in a State governed by the rule of law”,[39] which is widely accepted by the German academic community as a general doctrine. (ii) Normative analysis of the coherence of socialist and rule of law States The evolution of the principle of the rule of law in society in Germany’s constitution provides an important frame of reference for the construction of a socialist state governed by the rule of law. Likewise, in the face of the inherent tension between socialism and a State governed by the rule of law, the country’s academic community, through its normative analysis of the existing constitution, is increasingly inclined to say the opposite. First, from the very essence of “common wealth”, the socialist principle established in the current Constitution, while based on social balance as a stable kernel, does not seek to limit the “averageism” of the strong and the weak, but rather represents a high level of mutual enrichment premised on the great development of material conditions. As Comrade Deng Xiaoping once advocated, shared wealth is, first and foremost, shared wealth for all, freeing and developing production,[40] and to this end should “recognize the right of all Chinese people to pursue wealth and encourage people to create wealth in order to increase social productivity”. In line with this line of meaning, socialism in the present context is not only normative, but also oriented towards both public and private norms.[42] In its pursuit of social balance, it does not deny the need to safeguard individual freedoms and property, or even to make the freedom and wealth of society the material basis on which it is built. Secondly, in terms of the manner in which the socialist principle was realized, the country succeeded to the model set out in the 1954 Constitution when it was amended in 1982. In its basic rights chapter, social rights, such as the right to work, the right to education, the right to rest, the right to material assistance and so forth, are set out in a number of articles, with a view to achieving social balance in the basic rights regulatory system. In this regard, the current Constitution seems to have adopted a fully integrated view, but with the adoption of the 2004 amendment to article 24 of the Constitution, this perception has changed slowly. This amendment adds a paragraph to article 14 of the Constitution, as paragraph 4, which states: “The State shall establish a sound social security system appropriate to the level of economic development. “In terms of semantics, through the express provision in this article “adapted to the level of economic development”, the constitutional revisioners have shown that they are aware of the material prerequisites for achieving social balance and that it is not appropriate to set too high a standard for them to do so with due diligence, otherwise it may affect the functioning of the economy and lead to a sense of parity. At the institutional level, this article, which is part of the general outline of the Constitution, highlights the institutional and policy attributes of social security in order to weaken the fundamental rights of social rights in the Constitution and to lay the groundwork for further “formulation of guidelines” for the promotion of social rights under the “principle model”. The combination of these two aspects is further ruled out by the current Constitution, which addresses the issue of the compatibility of socialist and rule-of-law States in general in the context of a compromise. Finally, according to the compromise view, in the current Constitution, socialism and the State governed by the rule of law are characterized by an antagonistic and unified relationship, representing the two sides of a socialist State governed by the rule of law. Among them, the rule-of-law State represents the liberal orientation of the socialist rule-of-law State, which is the foundation, the vehicle and the form, on the one hand, of the material basis for promoting socialism and achieving common wealth from the dimensions of wealth, thus indicating that the country is building a high level of shared wealth, and on the other hand, the system and form of the latter, which requires that all the construction of shared wealth must be within the scope of the radiance of the constitutional order. At the same time, socialism represents an equal orientation: it is a value, a content, a substance, a common dimension, which establishes the value base and the core content of the social balance in the construction of a State governed by the rule of law, with a view to proportionately correcting the liberal perspective of a State governed by the rule of law and preserving the coexistence of human beings with human beings. III. Rule-of-law-building under the aegis of the socialist State Through the synthesizing of the preceding text, the system sets out the internal tensions of a socialist State governed by the rule of law and attempts to adapt them, drawing on the compromise formula, so that they are reflected in a norm of national objectives with a dual orientation of equality and freedom in the context of an opposing unification. First, in terms of prerequisites, the primary responsibility of the individual in the process of achieving shared wealth should be clarified, and by improving the security of individual freedoms and property, favourable conditions should be created for the individual to participate freely in the creation of the wealth of society in order to create an environment of development in which all people participate and to promote the development of shared wealth to a high level. As Secretary-General Xi emphasized, “Happiness in life is a struggle, and shared wealth is created by hard work and wisdom”,[46] to this end, the State should “enhance the full motivation, initiative and creativity of the people and promote the socialist cause of China's special character by all means of the nation, constantly magnifying the cake”. Secondly, with regard to the material basis, the socialist market economy should be maintained and developed, “combining market freedom with social balance”, continuing to function through a competitive mechanism “general life processes for the production, supply and distribution of goods”, constantly promoting technological and economic progress in order to liberate and develop productivity, thus laying the material foundation for a fuller and more rational social redistribution. On the contrary, Tsach had examined the socialist welfare countries of Eastern Europe, pointing out that their failures were not due to their special welfare social system, but rather to a lack of freedom and wealth. Thirdly, in terms of institutional guarantees, the socialist rule of law State does not formally break the traditional content of the rule of law State in defending the authority of the State. The principle of the rule of law requires that any intervention, payment, distribution of tasks and responsibilities assigned to the State by socialism must be “formulated” and operate only within the limits authorized by the constitutional order. Fourthly, in terms of the way in which they are achieved, shared wealth, which is highly constrained by economic levels and social conditions, should be more a constitutional objective of the State, through its duty to protect under the “principle model” and through the establishment of institutional guarantees appropriate to the level of economic development, in order to avoid the unrestricted expansion of social rights that may result under the “rights model” and the enormous burden it places on the national economy. In this regard, the General Secretary Xi said, inter alia: “Even in the future, even with higher levels of development and greater financial resources, there is no room for over-ambitious objectives and excessive safeguards against falling into the trap of `welfareism' of laziness. [50] It is submitted that one of the attempts to transform the Community completely into a welfare and security State, which covers a wide range of State remedies, is inconsistent with the expectations of the current Constitution for a socialist State governed by the rule of law. Fifthly, given the antagonism between socialist and rule-of-law States, under the guidance of a socialist State governed by the rule of law, the construction of our common wealth means a historical process towards “more equal convergence” that is bound to go through a complex line from lower to higher levels, from imbalance to balance, even at higher levels. Because absolute equality standards do not exist, “even under ideal conditions, `equality' may be merely an equal-oriented integration of differences”. Therefore, in advancing the rule of law in shared wealth, my country should be guided by the caution of Secretary-General Xi Jinping that the design of shared policies must be based on national circumstances and on the level of economic and social development, and that it must be neither ahead of time, nor far away from the baht, nor at the expense of food. Concluding remarks The built-in tensions of socialist rule-of-law States have shaped a unique path of rule-of-law guarantees for shared wealth that cannot be seen only as free, rich, ignoring the extremes of equality, commonness, polarization, stifling of classes, nor as one-sided emphasis on equality, common rejection of freedom, wealth, denial of markets and competition, and stifling of social vitality. The establishment of the rule of law in our shared wealth should be rooted in the antagonistic unity of socialist and rule-of-law States, the achievement of social balance and justice on the basis of freedom and wealth, and the promotion of comprehensive human development and social coexistence. Notes: [1] Lee Lin: " Strengthening the security of the rule of law for the common prosperity of the people of the new era ", in Democracy and the Rule of Law Weekly, No. 1, 2022. [2] Han Dae Won: “The normative structure of the “socialized market economy” in the Chinese Constitution”, published in Law of China, No. 2, 2019. [3] See also Constitutional Studies: Constitutional Science, Higher Education Press, People's Press 2020, p. 110. [4] Zhang Guo: “Common wealth” as the normative content of the principle of constitutional socialism”, Legal Science, No. 6, 2021. [5] See Ray: Legal System, Legal Approaches and the Rule of Law, Chinese University of Politics and Law Press 2016, pp. 45-51; Monarch Zhou, ed., Introduction to Jurisprudence, Law Press 2018, pp. 73-76. [6] For a detailed argument of socialism as a fundamental principle of the Constitution, see op. cit. [4], p. 31. [7] Supra [5], Thunderprint, p. 45. [8] Ernst-Wolfgang B? I'm sorry, but I don't know what you're talking about, but I don't know what you're talking about, but I don't know what you're talking about, but [9] See [D] Hans Tsakh: The European Design of Welfare Society: An Episode of Tsakh Society in French, Liu Tomei, Iván Yang, 2014 edition of Beijing University Press, p. 17. [10] See [Japan] Tae-chung Sugihara: History of the Constitution — A Comparative Constitutional Newory, Lui Quantao, Xiao Hyeon Fu School, Social Science Documentation Press, 2000 edition, p. 114. [11] Dan Xiaoping Selected (Vol. III), People's Press, 1993 edition, p. 373. [12] See op. cit.[4], p. 1. [13] Han Dae Won: Academic Contribution to Chinese Constitutional Science since Reform and Open, Chinese Law Review, No. 5, 2018. [14] For a detailed analysis, see Kang Eun-seok: " Study of State norms on the rule of law in the Chinese Constitution ", 2021 Ph.D. dissertation, People's University of China. [15] Zhang Zhijing: " Legal roll-out of the practice of the rule of law in China ", People's Press, 2018 edition, p. 214. Vgl. Klaus Stern. Das Staatsrecht der Bundesrepublicblik Deutschland.Bd.I, C.H. Beck, 1.Aufl., 1977, S. 602; Vgl. Ernst-Wolfgang B? I don't know what you're talking about, but I don't know what you're talking about, but [17] See [German] Kande: " The principles of the law and the way to school - science of rights ", Ping Shen, Long School Lin, 1991 edition of the Business Print Book, pp. 144-146; [D] William von Humboldt: " On the Role of the State ", Lin Yong-yun, Von Heung Won translation, 1998 edition of the Chinese Social Sciences Press, p. 36 ff.; [D] Fishert: " The Basis of the Right to Natural Law Based on the Principles of Intellectuals ", edited by Le Chi Liang: " Selected Phenomenon " (vol. 2), 1994 edition of the Business Print Book, pp. 412-432. [18] Vgl. v. Mangolds/Klein/ Stark, Grundgesetz Kommentar, Bd.2, C.H. Beck, 7.Aufl., 2018, S.103. [19] Vgl. Robert von Mohl, Dasstatsrecht des knigreiches Württemberg, Bd.1, Tübingen, 1829, S.6f. [20] Carl Schmitt, Verfassungslehre, 11 Aufl., Duncker & Humblot, 2017, S.129. [21] Ernst-Wolfgang B?ckenf?rde (Fn.8), S.68. [22] Takada Bin, Rechtsstaatsdenken im japanisch-deutschen Vergleich, Mohr Siebeck, 2019, S.76. [23] Jiang Zemin: " The great banner of Deng Xiaoping's theory pushes the construction of a socialist cause with Chinese identity into the twenty-first century - Report to the Fifteenth National Congress of the Communist Party of China, " No. 18 of 1997 ". [24] Reference is made to Zhang Wensheng, “The Psychiatry of the Market Economy and Modern Law”, Chinese Law, No. 6, 1994. [25] See Hu Jingwang, “The market economy and the constitutional guarantee of individual property rights”, Journal of Jurists, No. 3, 1993. [26] Tian Jieun: Note on the Amendment to the Constitution of the People's Republic of China (draft) - 9 March 1999, Second Session of the Ninth National People's Congress, in which the Office of the Standing Committee of the National People's Congress and the Central Documentation Research Unit of the Communist Party of China (CPC) were compiled: " Selection of Important Documents in the System of the People's Congresses (III) ", Chinese Democratic and Rule of Law Press, Central Documentation Press, 2015, p. 1082. [27] Pan: On the Constitutional “Socialist market economy” - a normative analysis around the text of the Constitution, in Politics and Law No. 5 of 2015. [28] See, e.g., “Standing with each other”: social rights provisions in the recent history of the constitution of China, in Forum Law and Policy No. 4 of 2016. [29] Cf. Lee Chongxia: Constitutional content of the rule-of-law State - Constitutional perspective towards a functionally divided society, Law Studies, No. 2, 2017. [30] See, for example, Zhang Zhizheng, Lee Jolan, Towards the Rule of Law in Society: German Episodes and Apocalypse, The Journal of the National Public Prosecutor's Institute, No. 1, 2015. [31] For a detailed summary of the relevant arguments, see op. cit. [30], Zhejiang Zhejiang, Zhejiang, 2020, No. 3. [32] Ernst Forsthoff, Die Umbildung des Verfassungsgesetzes, In: H. Barion, E. Forsthoff, W. Weber (hrsg.), Rechtsstaat im Wandel, Duncker & Humblot, 1959, S.61. [33] VVDSTR 12 (1953), S.14ff. [34] VVDSTR 12 (1953), S.85ff. [35] Vgl. Hesse, Grundzüge des Verfassungsrechts deutschland, C.F. Müller, 20 Aufl., 1999, S.94-95. [36] op. cit. [31], Lechhan. [37] Vgl. Hesse (Fn.35), S.91. [38] Ulrich Scheuner, Die neue Entwicklung des Rechtsstaats in Deutschland, in: Restschrift zum hundertj? I'm sorry, I'm sorry, but I'm sorry, but I'm sorry, [39] VVDSTR, 11 (1951), S.154. [40] Supra [11], “Dun Xiaoping Selected” (Vol. III), p. 142. [41] Supra [4], Zhang Quan. Professor Li Jinxia considers that socialism in the current Constitution has a “public and private dual” normative structure. See Li Jong-sa: Analysis of the Constitutional Structures of the “China Characterist Socialism” in Law and Policy Forum No. 5 of 2018. [43] See op. cit. [9], Hans Tsach, p. 40. Qinghua Law No. 5 of 2010; Qinghua Law No. 4, Political and Legal Law No. 4 of 2020. [45] See op. cit. [29], Li Chung Ha Wen. [46] Xi Jinping: " A solid push for shared wealth ", No. 20 of 2021. [47] Xi Jinping: Speeches at the 18th Plenary Plenary Seminar (18 January 2016) of the 18th Plenary Meeting of the Party of Follow-up to the Heads of State and Government, published in the 2nd edition of the People's Daily, 10 May 2016. [48] See, for example, Editor-in-chief Zhu Min: Social Market Economy: Compatibility with Individuals, Markets, Society and the State, Sun Yan, etc., Chinese and Chinese Group of Publications 2019, pp. 171 ff.; op. cit. [9], Hans Tsach, p. 40. [49] See op. cit., Wang Yiwen. [50] Op. cit. [46], Xi Jinping. [51] See op. cit. [46], Xi Jinping. [52] See op. cit. [9], Hans Tsach, p. 23. [53] op. cit. [47], Xi Jinping. Kang Young-seok, Doctor of Law, postdoctoral mobile researcher at the Faculty of Law of the University of Qinghua. Source: Rule of Law Society, No. 3, 2022. Co-opportunity. Rule of law Entitled: admin Poster: Ideas of Love (http://www.aisixiang.com), column: Academies of Heaven > Jurisprudence > Constitutional and Administrative Jurisprudence Link to this paper: http://www.aisixiang.com/data/134890.html Enter an e-mail address in the box, separated by a semi-accompanied comma (,) between multiple emails.


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Jiang Bingxi: Common Prosperity and the Rule of Law: A Coherent Interpretation of the Constitution's "Socialist Country Ruled by Law"


2022-06-24: [Article Link]  Co-opportunity. Rule of law Summary: Co-prosperity is the essence of socialism, on which the guarantee of the rule of law should be based on the “social rule of law” provided for in article 5, paragraph 1, of the Constitution. However, the common wealthic nature of “socialism” together with the background of individual freedom of the “rule-of-law State” shapes the inherent tension of this constitutional concept, with differing understandings of the degree of tension between the two or with fundamental implications for the basic direction of the common enrichment-building of the rule of law in our country. To this end, by drawing on the German public law doctrine, it is intended to adapt the normative content of the socialist rule of law in the context of the adversarial unity of freedom and equality through a coherent interpretation. Guided by a socialist State governed by the rule of law, the rule of law for our common wealth should be built on the premise of the security of individual freedom and property, on the material basis of adherence to the system of market economies, the liberation of productivity, the institutional guarantee of the rule of law in its form, in a manner consistent with the “principle model” of progressive development, which provides systematic and comprehensive guarantees of the rule of law for the achievement of social balance and the maintenance of equitable justice in society on the basis of freedom and wealth. Keywords: socialism, the rule of law, shared wealth, social balance. Introduction The proposal adopted by the Party's Plenary of the 19th Session of the 5th Session of the Chinese Communist Party for the formulation of the 14th Five-Year Plan for the Economic and Social Development of the Nation and the 23rd Five-Year Vision has made a significant strategic deployment for the solid promotion of shared wealth, calling for “a more visible and substantial progress in the shared prosperity of all people by 2035”. The corresponding guarantee of the rule of law is indispensable in order to achieve the goal of shared prosperity. As Professor Li Lin said, “Shared wealth is the essence of socialism, an essential feature of modern Chinese style, and the inevitable pursuit of the rule of law in socialism of China’s identity. However, before a system that specifically promotes the guarantee of the rule of law in common wealth is established, there is a constitutional dimension that needs to be clarified, namely, how the “socialist rule of law” inherent in article 5, paragraph 1, of the Constitution of the People's Republic of China (hereinafter referred to as the Constitution) should be viewed. In the current constitutional order, a socialist State governed by the rule of law constitutes the constitutional basis that guides the construction of the rule of law in our shared wealth, and the different answers to whether and to what extent tensions exist between “socialism” and “rule of law” may affect the fundamental direction of the construction of the rule of law in our shared wealth. In view of this, it is proposed that, from the text of the Constitution and with the help of the teachings, it should be noted, first of all, that the common rich nature of “socialism” and the free colour of the individual “law-based State” together shape the internal tensions of the socialist rule-of-law State; secondly, that the possibility of their convergence within the system of constitutional norms be further demonstrated by drawing on German doctrine; and finally, that the overall requirements and fundamental orientation of the common rich rule-of-law-building in the country be based on the unity of the two, under the guidance of the socialist rule-of-law State. I. A dichotomy of a socialist State governed by the rule of law In the normative system of the current Constitution, the “social rule of law” provided for in article 5, paragraph 1, of the Constitution constitutes an important prerequisite for exploring the guarantees of the rule of law for shared wealth. In terms of semantic structure, the term consists of two elements: “socialism” and “law-based State”, which will be analysed separately below in order to clarify their respective normative content and, in turn, to examine whether there is any inherent tension in the concept of socialist rule-of-law State. (i) Normative content of socialism “Socialism”, which is a fundamental part of our Constitution, has appeared 50 times in the current text of the Constitution, which has been used to characterize elements such as the “national” “market economy” and the “democratic” “law-based State”, respectively, and which are closely linked to the path of our development, the doctrine of guidance and the design of policies and institutions corresponding to it. In view of this, the current academic community interprets the constitutional content of “socialism” in terms of its “fundamental attributes” and considers that “socialism in the text of the Constitution is primarily a manifestation of the nature of the State system, the values of the State and the direction of the country's development”. A typical example of this is the general doctrine of the academic community represented by the Constitutional Law of the Ma'am project, which interprets “socialism” as the nature of the State, at the core of the provisions of article 1, paragraph 1, of the Constitution. However, the above-mentioned formula of interpretation “is merely an expression of the high, or fundamental, importance of socialism to the Constitution in terms of the dimension of value theory”, fails to reveal the normative nature and content of socialism in terms of its normative dimension. On the basis of a normative position, constitutional norms can be distinguished by their nature as constitutional rules and constitutional principles, depending on their characteristics and the manner in which they are applied. Among them, constitutional rules are “orders of certainty” consisting of three parts: presumption, conduct and disposition, which must be applied “in whole or in nothing”; constitutional principles refer to “orders of optimization” in constitutional norms that can be used as a source and basis for constitutional rules and that are “to the greatest extent possible, de jure and de facto”. [5] Through the “principles-rules” general law theory, the expression of “socialism” in the current Constitution is concentrated in the “preamble” and “general outline”, which are mainly concerned with the history of the country, its basic system and its basic State policy and, by their very nature, constitute an order of optimization and should fall within the scope of constitutional principles. Moreover, “socialism” has been placed first and foremost in the normative expression of the main text of the Constitution, in article 1 of the Constitution, which proclaims that the essential attributes of the social relations regulated by the Constitution are fundamental in the system of constitutional norms and should be further interpreted as fundamental principles of our Constitution. [6] And as a fundamental principle, the socialist principle forms the “inherent unity and the basis for assessing consistency” of the constitutional order,[7] playing a value enforcement and normative role with respect to other socialist norms. Among them, the socialist State, which is governed by the rule of law, as established in article 5, paragraph 1, of the Constitution, is within the scope of the radiation of socialist principles and is shaped by the values of the latter. With regard to the normative content of the socialist principle, first of all, the term socialism in the current Constitution is not inherent in my country, but is a German concept derived from the Marxist doctrine of scientific socialistism. The doctrine is aimed at changing the growing polarization and sharper class rivalries of the monopolistic capitalist countries of the second half of the nineteenth century, in the hope of achieving social balance through the creation of a State capable of proportionately interfering in socio-economic conditions and guaranteeing equitable distribution, thus ensuring substantive personal freedoms and legal equality. [8] Professor Hans Zacher, a German social jurist, examined the source of the term socialist, noting that it was developed from the “social/social” root of the word “social”, with some ideological connotations, representing criticism of unreasonable and unequal living conditions and the revision of such inequality in the direction of “more equal”. In this sense, “socialism” under the Constitution should no longer be considered merely as a “fundamental” declaration of the legal value dimension, or as an expression of “purpose solidarity” in the legal ethics sense, but should be interpreted as a normative concept. By its very nature, the socialist principle contains positive restrictions on the economic freedom of the socio-economic elite and guarantees of the “social rights” of the socially and economically vulnerable, and should define its normative content in terms of upholding social justice, supporting the socially vulnerable and achieving social coexistence for all. (10) Returning to the normative context of the current Constitution, Comrade Deng Xiaoping, in his “South Talk” in 1992, systematically interpreted the nature of socialism as “freezing productivity, developing productivity, eliminating exploitation, eliminating polarization, and eventually achieving shared wealth”,[11] the current Constitution, with its “common wealth” as its vehicle, further affirms the kernel of social balance as the norm of socialism. (12) In addition, the Party’s nineteenth Congress officially declared that the socialism of China’s identity had entered a new era and made it clear that the main contradictions of our society in the new era had translated into a conflict between the growing needs of the people for a better life and the inadequate development of the imbalances, which had led to a shift in the focus of the State’s work towards addressing the imbalances and imbalances in the development process. In this context, it is clear that the purposeful interpretation of the socialist principle also points to the idea of promoting the comprehensive development of the human person and achieving a social balance in which the entire population shares wealth. On the basis of the above analysis, “socialism” in socialist rule-of-law States is the projection of socialist principles in the area of the rule of law, and its normative content includes the promotion of social balance and the promotion of shared wealth in order to achieve a dignified life for the human person. (ii) Normative content of States governed by the rule of law In the current Constitution, the term State under the rule of law is limited to article 5, paragraph 1, of the Constitution, which states that “the People's Republic of China shall be governed by the rule of law and shall build a socialist State under the rule of law”. This provision is derived from the 1997 Party's 15th report on the State's strategy based on the rule of law and was completed by the 13th Amendment to the Constitution, adopted in 1999, which represents the “constructed objective of the image of the State in the Constitution”. [13] In accordance with the dichotomy of “rules-principles”, the State provision on the rule of law, taken together with the system, constitutes a fundamental principle that is fundamental to the State itself — that is, the State principle on the rule of law. The so-called “law-based State”, by definition, is “a State founded on law”. [15] Like socialism, it is not a traditional Chinese term, but is translated from “Rechtsstaat” in the German national law tradition, which is a classic German characterization (deutsche Worldpr? In Germany, the term State of the rule of law was born in the late eighteenth and early nineteenth centuries and was a product of the liberal national doctrine of Kandeh, Humboldt and the early Fahithics.[16] In their view, the State itself was the result of a rational choice made by human beings to guarantee freedom, a union of the majority under the law, and the preservation of the law in order to guarantee human freedoms and rights. On this basis, and thanks to the academic accumulation of scholars such as Placidos, the German public law giant Robert von Mohl has finally completed the institutionalization of a State governed by the rule of law and has become a universally accepted concept of public law in the academic community. [18] According to Merle, the rule-of-law State represents a type of State (Staatsgattung), i.e. a description of the State's attributes, which are condensed by the nature and purpose of life of different States. [19] In this sense, the State based on the rule of law is a concept opposed to the despotic, authoritarian State, which is based on the intellectual achievements of the enlightened philosophy. On the one hand, it frees itself from the fanaticism and rational repression of faith by the despotic State, using the free life of the individual in secularity as a starting point and a starting point in the national order; on the other hand, it is rid of the authoritarian State's characteristic of the monarchy's will and uses objective law, rather than arbitrary will, as the basic means of achieving the State's aims. Taken together, Carl Schmitt further emphasizes, from the perspective of the realization of civil liberties, that “any State that unconditionally respects existing objective law and the rights of existing subjects” can be called a State governed by the rule of law. [20] Thus, the essence of the concept of a State governed by the rule of law is to preserve the freedom and property of the individual through the exercise of public authority in accordance with the law, thereby promoting “self-fulfilment of the subject matter of the individual” (Selbsterfüllung der individullen Subjektivit? t. [21] In this regard, Professor Takada pointed out that a State governed by the rule of law is essentially a State that pursues freedom. In 1997, when the Party's 15th report first presented the basic formula “Building a socialist State based on the rule of law”, it also followed, to some extent, the liberal background of the aforementioned rule of law State. The report states that adherence to this approach is “an objective need for the development of a socialist market economy, an important indicator of the progress of social civilization and an important guarantee of the country's long-term security”. It is clear that the development of a socialist market economy is an important context in which my country sets out its goal of building a State based on the rule of law. Given that a market economy is essentially a power economy, in the spirit of rights and contractual freedoms, and that it essentially refers to the fundamentals of freedom, equality, human rights and humanism,[24] in the context of the link between a market economy and a State governed by the rule of law, the establishment of the rule of law is entrusted with the important task of safeguarding the economic freedom of the market subjects and guaranteeing the property rights of the market subjects in order to lay the premises and foundations of a market economy. On the basis of this, the value of rule of law State-building undoubtedly carries with it a strong and liberal attribute, as also illustrated by the constitutional amendment of 1999. In the Note on the Constitutional Amendment (Draft), the then Vice-Commissioner of the Standing Committee of the National People's Congress, Jiyun Nagata, stressed that “the inclusion in the Constitution of `the State under the rule of law, the State under the rule of law, the socialist rule of law' is of great importance in promoting economic reform and economic development. In this regard, it has been pointed out that the market economy, which is enshrined in the current Constitution, “in essence entails the protection of the individual's freedom of business and the right to property”, has the value of “economic freedom under the rule of law shall be guaranteed on an equal footing” and constitutes the superior principle that State institutions should respect. This is further demonstrated by the constitutionalization of “human rights provisions” and the amendment of “private property rights” in 2004, in this sense, the “law-based State” in the text of the Constitution establishes its own personal freedom orientation through its interaction with the market economy. In view of this, the “rule of law State” in a socialist State governed by the rule of law should be interpreted as regulating the operation of the public power of the State through a legal order, with the radiological effect of the principle of the rule of law, in order to achieve the State's objective of guaranteeing the freedom, property and security of the individual. (iii) Tensions between socialist and rule-of-law States In the current Constitution, the socialist state of the rule of law is a national goal established by the principle of socialism in conjunction with the principle of the rule of law. As the content of the norms of “socialism” and “rule of law” becomes clearer, the inherent tension of the concept becomes even more apparent. In particular, in a socialist State governed by the rule of law, the normative context of socialism is based on the idea of social balance, based on shared wealth, referring to the public and human nature of the State, requiring State intervention to eliminate unjustified differences between human beings, thereby preserving the social coexistence of human beings and achieving a dignified life for the human person. By contrast, the normative context of a State governed by the rule of law is based on the subject matter of the individual and on the safety and security of the individual's freedom and property, with a liberal perspective that emphasizes the prevention of State authority and thus promotes the free development of the individual's personality. Thus, the norms of a socialist State governed by the rule of law do not enjoy natural harmony: on the one hand, the social balance and common wealth sought by socialism are not free, but at the expense of the freedom and property of some parts of society, especially the economically powerful, are bound to conflict with the concerns of a State governed by the rule of law about the negative freedoms of individuals; on the other hand, the rule of law State aims to construct, restrict and regulate the functioning of State power through a legal order and to establish a stable normative expectation for society in order to avoid the abuse of power and guarantee individual freedoms,[29] it is inevitable to counter socialist claims to strengthen State power in order to intervene actively in society.[29] On balance, given the tensions between “social publicity” and “personal subjectivity”, the prevention of “personal freedom” abuse and the prevention of “State power” abuse, and the guarantees of “material freedom” and “formal freedom” of the individual, the socialist and rule-of-law States do have tensions in the current Constitution, referring in essence to “equality and freedom” “social and market” and even “public and private”. II. Consistency of socialist and rule-of-law States In the context of the inherent tension in the objective existence of a socialist State governed by the rule of law, how to view the level of tension between a socialist State and a State governed by the rule of law is a question that my country must answer in order to promote the guarantee of the rule of law in shared wealth. After World War II, German public law debated the compatibility of social and rule-of-law principles with the rule-of-law principles. Depending on the degree to which they differ in the constitutional order, the academic community eventually formed three representative theories, corresponding to three different paths of social state-building. The following is a first academic exercise on German doctrine, which will serve as a basis for further analysis of the coherence between socialism and the rule of law in our country's constitutional order. (i) Consistency between the State of society and the State governed by the rule of law After the Second World War, in order to level the social and economic costs of the war, it was important for Germany to support the weak and guarantee the basic living conditions of its people in the early post-war period. [30] Against this background, the Basic Law of Germany, adopted in 1949, for the first time in the history of the German Constitution, explicitly defines the “social State” as a constitutional principle. Article 20, paragraph 1, of the German Basic Law states: “The Federal Republic of Germany is a democratic and social federal State.” Subsequently, article 28, paragraph 1, further stresses that “the constitutional order of the Länder must be in conformity with the principles of the Republic, democracy and the social rule of law within the meaning of the Basic Law”. Together with the Republic, the Democratic State, the Federal State and the State governed by the rule of law, the social State became the fundamental principle of the German Constitution and formed the reference to the “social State governed by the rule of law” (sozialer Rechtsstaat). However, the entry into the Constitution of the country on the basis of the rule of law has given rise to intense controversy as a result of internal tensions, which soon became the most central challenge that plagued German constitutional science in the post-war period. Of these, there is no more representative doctrine than the fundamental negation and complete convergence of the bifurcation of the divisions, as well as the transposition that represents the current general doctrine. To say no at all. The absolute denial was raised by Professor Ernst Forsthoff, who, on the basis of his own basic position of conservatism, fundamentally denied the possibility of compromise between the principles of social statehood and the rule of law. In his view, the principle of the rule of law was a fundamental principle of the Constitution, and its core was the “system of legal technical means to guarantee freedom” (System rechtslicher Kunstgriffe zur Gewarhrleistung gesetzlicher Freiheit),[32] extremely normative. The concept of the social State, which is confined to providing minimum care for the survival of citizens by the State, is factual in nature and its content is constantly changing and lacking in norms. Any attempt to reconcile the State with the rule of law at the constitutional level is therefore likely, in turn, to break through the inherent normative structure of the State governed by the rule of law, thus putting the State at risk and even leading to the resurgence of State socialism. According to Foley, the rule of law and the social State should be placed at both the constitutional and administrative levels, in which the social State is only at the level of administrative law and is difficult to be placed in the constitutional structure, which must be constructed with greater recourse to the power of executive power and properly achieved through, inter alia, the provision of care for the survival of the State and the payment of its responsibilities. 2. Complete consistency His position is in favour of liberal democracy, and he believes that the principles of social State and the rule of law can be fully integrated in the post-war constitutional order. He stressed that, in the light of the specific historical and social context of the post-war period in Germany, in order to rebuild the social order and economic foundations, the State had to assume more social tasks than traditional guarantees of freedom. To this end, Germany must move away from the concept of the rule of law to a new perspective of the legal system, instead of viewing some of the fundamental rights of freedom as a consideration of the existing economic and social order, and should re-establish a sense of social sharing in the context of fundamental rights (soziales Teilhaberecht). In other words, A.C., from the perspective of the social right as a fundamental right, injects normative content into the principle of the social State, establishes a “model of rights” for the realization of social security and, on that basis, establishes full coherence between the principles of the social State and that of the rule of law. 3. Compromise The fundamental negation, and the complete convergence, represent two extreme views of the tension between the principle of the State of society and the principle of the rule of law, each with its own one-sided nature, while not lacking in insight. In particular, there is a total denial that the modern industrial society is not aware of the fundamental changes to the constitutional order. With the 1918 Soviet Constitution and the 1919 Weimar Constitution as pillars, the modern constitution has been deeply branded as a socialist or social state. Compared to the nineteenth century, the guarantee of freedom in this era cannot rest solely on the passive defence of a State, but begins to require it to function in a broader context. For in the case of the unemployed, freedom of occupation can only be an empty word, and the protection of property rights, the protection of freedom of residence, is relevant only for the productive and the resident. In this sense, the principle of social statehood has its own normative value, and cannot be denied constitutional status on the sole ground that it is unclear. Moreover, a fundamentally negative view, which excludes constitutional control over the construction of a social state, could lead to “State intervention in the socio-economic sphere being freed from the constraints of democracy and the rule of law”[36] and put the principle of the rule of law at risk. By contrast, full integration is not aware of the special nature of social rights, which are a completely different structure of rights than traditional negative freedoms. “When they are formed, respected and safeguarded, they do not become a reality because the social content they contain requires the State to do so by doing so”, “and the preconditions required by the State to achieve those social content are costly and often lead to the obstruction or infringement of the right to freedom of others”. Thus, as Herce argued, it is difficult to establish social rights as a direct and judicially guaranteed fundamental right.[37] If these fundamental rights are enshrined in the Constitution, and the State cannot afford to achieve their valuation, it will undermine constitutional authority. Thus, on the basis of reconciling the two doctrines, Professor Ulrich Scheuner has proposed a compromise that recognizes, on the one hand, the idea of a social state in the context of modern industrial society as a re-establishment of a State governed by the rule of law, requiring recognition of the normative attributes and principles of a social state within the constitutional order, and, on the other hand, emphasizes that the re-engineering is limited to the content dimension and cannot formally break the traditional meaning of a State governed by the rule of law. To this end, Shul believes that the principle of social statehood should be established as a constitutional provision of State objectives and guidelines, which should constitute a binding constitutional mandate and substance for legislators, requiring that the “emphasis on general equality, assistance to the weak and the balance between the social classes” be achieved in the specific legislative process. This programme of interpretation represents the “model of principles” of social security, which both confers norms on the social State, avoids its isolation from the constitutional order, preserves the liberal tradition of the rule of law, avoids the excessive squeeze of social rights on individual freedoms, and guarantees “equality in society” in tandem with “freedom in a State governed by the rule of law”,[39] which is widely accepted by the German academic community as a general doctrine. (ii) Normative analysis of the coherence of socialist and rule of law States The evolution of the principle of the rule of law in society in Germany’s constitution provides an important frame of reference for the construction of a socialist state governed by the rule of law. Likewise, in the face of the inherent tension between socialism and a State governed by the rule of law, the country’s academic community, through its normative analysis of the existing constitution, is increasingly inclined to say the opposite. First, from the very essence of “common wealth”, the socialist principle established in the current Constitution, while based on social balance as a stable kernel, does not seek to limit the “averageism” of the strong and the weak, but rather represents a high level of mutual enrichment premised on the great development of material conditions. As Comrade Deng Xiaoping once advocated, shared wealth is, first and foremost, shared wealth for all, freeing and developing production,[40] and to this end should “recognize the right of all Chinese people to pursue wealth and encourage people to create wealth in order to increase social productivity”. In line with this line of meaning, socialism in the present context is not only normative, but also oriented towards both public and private norms.[42] In its pursuit of social balance, it does not deny the need to safeguard individual freedoms and property, or even to make the freedom and wealth of society the material basis on which it is built. Secondly, in terms of the manner in which the socialist principle was realized, the country succeeded to the model set out in the 1954 Constitution when it was amended in 1982. In its basic rights chapter, social rights, such as the right to work, the right to education, the right to rest, the right to material assistance and so forth, are set out in a number of articles, with a view to achieving social balance in the basic rights regulatory system. In this regard, the current Constitution seems to have adopted a fully integrated view, but with the adoption of the 2004 amendment to article 24 of the Constitution, this perception has changed slowly. This amendment adds a paragraph to article 14 of the Constitution, as paragraph 4, which states: “The State shall establish a sound social security system appropriate to the level of economic development. “In terms of semantics, through the express provision in this article “adapted to the level of economic development”, the constitutional revisioners have shown that they are aware of the material prerequisites for achieving social balance and that it is not appropriate to set too high a standard for them to do so with due diligence, otherwise it may affect the functioning of the economy and lead to a sense of parity. At the institutional level, this article, which is part of the general outline of the Constitution, highlights the institutional and policy attributes of social security in order to weaken the fundamental rights of social rights in the Constitution and to lay the groundwork for further “formulation of guidelines” for the promotion of social rights under the “principle model”. The combination of these two aspects is further ruled out by the current Constitution, which addresses the issue of the compatibility of socialist and rule-of-law States in general in the context of a compromise. Finally, according to the compromise view, in the current Constitution, socialism and the State governed by the rule of law are characterized by an antagonistic and unified relationship, representing the two sides of a socialist State governed by the rule of law. Among them, the rule-of-law State represents the liberal orientation of the socialist rule-of-law State, which is the foundation, the vehicle and the form, on the one hand, of the material basis for promoting socialism and achieving common wealth from the dimensions of wealth, thus indicating that the country is building a high level of shared wealth, and on the other hand, the system and form of the latter, which requires that all the construction of shared wealth must be within the scope of the radiance of the constitutional order. At the same time, socialism represents an equal orientation: it is a value, a content, a substance, a common dimension, which establishes the value base and the core content of the social balance in the construction of a State governed by the rule of law, with a view to proportionately correcting the liberal perspective of a State governed by the rule of law and preserving the coexistence of human beings with human beings. III. Rule-of-law-building under the aegis of the socialist State Through the synthesizing of the preceding text, the system sets out the internal tensions of a socialist State governed by the rule of law and attempts to adapt them, drawing on the compromise formula, so that they are reflected in a norm of national objectives with a dual orientation of equality and freedom in the context of an opposing unification. First, in terms of prerequisites, the primary responsibility of the individual in the process of achieving shared wealth should be clarified, and by improving the security of individual freedoms and property, favourable conditions should be created for the individual to participate freely in the creation of the wealth of society in order to create an environment of development in which all people participate and to promote the development of shared wealth to a high level. As Secretary-General Xi emphasized, “Happiness in life is a struggle, and shared wealth is created by hard work and wisdom”,[46] to this end, the State should “enhance the full motivation, initiative and creativity of the people and promote the socialist cause of China's special character by all means of the nation, constantly magnifying the cake”. Secondly, with regard to the material basis, the socialist market economy should be maintained and developed, “combining market freedom with social balance”, continuing to function through a competitive mechanism “general life processes for the production, supply and distribution of goods”, constantly promoting technological and economic progress in order to liberate and develop productivity, thus laying the material foundation for a fuller and more rational social redistribution. On the contrary, Tsach had examined the socialist welfare countries of Eastern Europe, pointing out that their failures were not due to their special welfare social system, but rather to a lack of freedom and wealth. Thirdly, in terms of institutional guarantees, the socialist rule of law State does not formally break the traditional content of the rule of law State in defending the authority of the State. The principle of the rule of law requires that any intervention, payment, distribution of tasks and responsibilities assigned to the State by socialism must be “formulated” and operate only within the limits authorized by the constitutional order. Fourthly, in terms of the way in which they are achieved, shared wealth, which is highly constrained by economic levels and social conditions, should be more a constitutional objective of the State, through its duty to protect under the “principle model” and through the establishment of institutional guarantees appropriate to the level of economic development, in order to avoid the unrestricted expansion of social rights that may result under the “rights model” and the enormous burden it places on the national economy. In this regard, the General Secretary Xi said, inter alia: “Even in the future, even with higher levels of development and greater financial resources, there is no room for over-ambitious objectives and excessive safeguards against falling into the trap of `welfareism' of laziness. [50] It is submitted that one of the attempts to transform the Community completely into a welfare and security State, which covers a wide range of State remedies, is inconsistent with the expectations of the current Constitution for a socialist State governed by the rule of law. Fifthly, given the antagonism between socialist and rule-of-law States, under the guidance of a socialist State governed by the rule of law, the construction of our common wealth means a historical process towards “more equal convergence” that is bound to go through a complex line from lower to higher levels, from imbalance to balance, even at higher levels. Because absolute equality standards do not exist, “even under ideal conditions, `equality' may be merely an equal-oriented integration of differences”. Therefore, in advancing the rule of law in shared wealth, my country should be guided by the caution of Secretary-General Xi Jinping that the design of shared policies must be based on national circumstances and on the level of economic and social development, and that it must be neither ahead of time, nor far away from the baht, nor at the expense of food. Concluding remarks The built-in tensions of socialist rule-of-law States have shaped a unique path of rule-of-law guarantees for shared wealth that cannot be seen only as free, rich, ignoring the extremes of equality, commonness, polarization, stifling of classes, nor as one-sided emphasis on equality, common rejection of freedom, wealth, denial of markets and competition, and stifling of social vitality. The establishment of the rule of law in our shared wealth should be rooted in the antagonistic unity of socialist and rule-of-law States, the achievement of social balance and justice on the basis of freedom and wealth, and the promotion of comprehensive human development and social coexistence. Notes: [1] Lee Lin: " Strengthening the security of the rule of law for the common prosperity of the people of the new era ", in Democracy and the Rule of Law Weekly, No. 1, 2022. [2] Han Dae Won: “The normative structure of the “socialized market economy” in the Chinese Constitution”, published in Law of China, No. 2, 2019. [3] See also Constitutional Studies: Constitutional Science, Higher Education Press, People's Press 2020, p. 110. [4] Zhang Guo: “Common wealth” as the normative content of the principle of constitutional socialism”, Legal Science, No. 6, 2021. [5] See Ray: Legal System, Legal Approaches and the Rule of Law, Chinese University of Politics and Law Press 2016, pp. 45-51; Monarch Zhou, ed., Introduction to Jurisprudence, Law Press 2018, pp. 73-76. [6] For a detailed argument of socialism as a fundamental principle of the Constitution, see op. cit. [4], p. 31. [7] Supra [5], Thunderprint, p. 45. [8] Ernst-Wolfgang B? I'm sorry, but I don't know what you're talking about, but I don't know what you're talking about, but I don't know what you're talking about, but [9] See [D] Hans Tsakh: The European Design of Welfare Society: An Episode of Tsakh Society in French, Liu Tomei, Iván Yang, 2014 edition of Beijing University Press, p. 17. [10] See [Japan] Tae-chung Sugihara: History of the Constitution — A Comparative Constitutional Newory, Lui Quantao, Xiao Hyeon Fu School, Social Science Documentation Press, 2000 edition, p. 114. [11] Dan Xiaoping Selected (Vol. III), People's Press, 1993 edition, p. 373. [12] See op. cit.[4], p. 1. [13] Han Dae Won: Academic Contribution to Chinese Constitutional Science since Reform and Open, Chinese Law Review, No. 5, 2018. [14] For a detailed analysis, see Kang Eun-seok: " Study of State norms on the rule of law in the Chinese Constitution ", 2021 Ph.D. dissertation, People's University of China. [15] Zhang Zhijing: " Legal roll-out of the practice of the rule of law in China ", People's Press, 2018 edition, p. 214. Vgl. Klaus Stern. Das Staatsrecht der Bundesrepublicblik Deutschland.Bd.I, C.H. Beck, 1.Aufl., 1977, S. 602; Vgl. Ernst-Wolfgang B? I don't know what you're talking about, but I don't know what you're talking about, but [17] See [German] Kande: " The principles of the law and the way to school - science of rights ", Ping Shen, Long School Lin, 1991 edition of the Business Print Book, pp. 144-146; [D] William von Humboldt: " On the Role of the State ", Lin Yong-yun, Von Heung Won translation, 1998 edition of the Chinese Social Sciences Press, p. 36 ff.; [D] Fishert: " The Basis of the Right to Natural Law Based on the Principles of Intellectuals ", edited by Le Chi Liang: " Selected Phenomenon " (vol. 2), 1994 edition of the Business Print Book, pp. 412-432. [18] Vgl. v. Mangolds/Klein/ Stark, Grundgesetz Kommentar, Bd.2, C.H. Beck, 7.Aufl., 2018, S.103. [19] Vgl. Robert von Mohl, Dasstatsrecht des knigreiches Württemberg, Bd.1, Tübingen, 1829, S.6f. [20] Carl Schmitt, Verfassungslehre, 11 Aufl., Duncker & Humblot, 2017, S.129. [21] Ernst-Wolfgang B?ckenf?rde (Fn.8), S.68. [22] Takada Bin, Rechtsstaatsdenken im japanisch-deutschen Vergleich, Mohr Siebeck, 2019, S.76. [23] Jiang Zemin: " The great banner of Deng Xiaoping's theory pushes the construction of a socialist cause with Chinese identity into the twenty-first century - Report to the Fifteenth National Congress of the Communist Party of China, " No. 18 of 1997 ". [24] Reference is made to Zhang Wensheng, “The Psychiatry of the Market Economy and Modern Law”, Chinese Law, No. 6, 1994. [25] See Hu Jingwang, “The market economy and the constitutional guarantee of individual property rights”, Journal of Jurists, No. 3, 1993. [26] Tian Jieun: Note on the Amendment to the Constitution of the People's Republic of China (draft) - 9 March 1999, Second Session of the Ninth National People's Congress, in which the Office of the Standing Committee of the National People's Congress and the Central Documentation Research Unit of the Communist Party of China (CPC) were compiled: " Selection of Important Documents in the System of the People's Congresses (III) ", Chinese Democratic and Rule of Law Press, Central Documentation Press, 2015, p. 1082. [27] Pan: On the Constitutional “Socialist market economy” - a normative analysis around the text of the Constitution, in Politics and Law No. 5 of 2015. [28] See, e.g., “Standing with each other”: social rights provisions in the recent history of the constitution of China, in Forum Law and Policy No. 4 of 2016. [29] Cf. Lee Chongxia: Constitutional content of the rule-of-law State - Constitutional perspective towards a functionally divided society, Law Studies, No. 2, 2017. [30] See, for example, Zhang Zhizheng, Lee Jolan, Towards the Rule of Law in Society: German Episodes and Apocalypse, The Journal of the National Public Prosecutor's Institute, No. 1, 2015. [31] For a detailed summary of the relevant arguments, see op. cit. [30], Zhejiang Zhejiang, Zhejiang, 2020, No. 3. [32] Ernst Forsthoff, Die Umbildung des Verfassungsgesetzes, In: H. Barion, E. Forsthoff, W. Weber (hrsg.), Rechtsstaat im Wandel, Duncker & Humblot, 1959, S.61. [33] VVDSTR 12 (1953), S.14ff. [34] VVDSTR 12 (1953), S.85ff. [35] Vgl. Hesse, Grundzüge des Verfassungsrechts deutschland, C.F. Müller, 20 Aufl., 1999, S.94-95. [36] op. cit. [31], Lechhan. [37] Vgl. Hesse (Fn.35), S.91. [38] Ulrich Scheuner, Die neue Entwicklung des Rechtsstaats in Deutschland, in: Restschrift zum hundertj? I'm sorry, I'm sorry, but I'm sorry, but I'm sorry, [39] VVDSTR, 11 (1951), S.154. [40] Supra [11], “Dun Xiaoping Selected” (Vol. III), p. 142. [41] Supra [4], Zhang Quan. Professor Li Jinxia considers that socialism in the current Constitution has a “public and private dual” normative structure. See Li Jong-sa: Analysis of the Constitutional Structures of the “China Characterist Socialism” in Law and Policy Forum No. 5 of 2018. [43] See op. cit. [9], Hans Tsach, p. 40. Qinghua Law No. 5 of 2010; Qinghua Law No. 4, Political and Legal Law No. 4 of 2020. [45] See op. cit. [29], Li Chung Ha Wen. [46] Xi Jinping: " A solid push for shared wealth ", No. 20 of 2021. [47] Xi Jinping: Speeches at the 18th Plenary Plenary Seminar (18 January 2016) of the 18th Plenary Meeting of the Party of Follow-up to the Heads of State and Government, published in the 2nd edition of the People's Daily, 10 May 2016. [48] See, for example, Editor-in-chief Zhu Min: Social Market Economy: Compatibility with Individuals, Markets, Society and the State, Sun Yan, etc., Chinese and Chinese Group of Publications 2019, pp. 171 ff.; op. cit. [9], Hans Tsach, p. 40. [49] See op. cit., Wang Yiwen. [50] Op. cit. [46], Xi Jinping. [51] See op. cit. [46], Xi Jinping. [52] See op. cit. [9], Hans Tsach, p. 23. [53] op. cit. [47], Xi Jinping. Kang Young-seok, Doctor of Law, postdoctoral mobile researcher at the Faculty of Law of the University of Qinghua. Source: Rule of Law Society, No. 3, 2022. Co-opportunity. Rule of law Entitled: admin Poster: Ideas of Love (http://www.aisixiang.com), column: Academies of Heaven > Jurisprudence > Constitutional and Administrative Jurisprudence Link to this paper: http://www.aisixiang.com/data/134890.html Enter an e-mail address in the box, separated by a semi-accompanied comma (,) between multiple emails.

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