Since the theory of market economy was put forward, people have realized more and more that the laws of market economy should first reflect the laws of market economy, not just the will of legislators. Breaking away from the laws of the market economy itself and making laws artificially according to the wishes of legislators will inevitably be detrimental to the development of the market economy. In the past, we emphasized that law is the expression of the will of the ruling class, which has caused the evil consequences of violating economic laws in the economic field, which is enough to draw lessons.
Returning to the essence of objective laws is the first essence of the laws of market economy. The idea that law is the objective expression of its own law embodies the natural law spirit of Roman law.
Pietro Bonfante said in his Textbook of Roman Law (Istituzioni di Dritto Romano): "Natural law refers to' laws not created to reflect the will of legislators', while civil law refers to' laws created at least partially by legislators at will'. "Law is the product of consciousness and social needs, and it should always be consistent with them. Many norms and legal systems accurately meet their purposes and blend with them, because they are only legal confirmation of this purpose; However, there are also many norms and systems that are not so, either because they are outdated or because the means mastered by legislators are not perfect. The former norm is really like a natural product because legislators have not played any positive role, and it is called natural law; The second norm is civil law. The former is always consistent with' justice' and' justice'; The latter is not always the case. " * 1 "is very enlightening to us. Although many market economy laws in China today cannot be said to be completely similar to the legal norms that "legislators have not played any positive role", they can be said to reflect objective laws. It is different from another law that mainly embodies the will of legislators.
Should the law embody subjectivity, objectivity or the combination of subjectivity and objectivity? Before the concept of market economy was put forward, most of the legal circles in China thought that the subjectivity of law was absolute, ignoring or not talking about its objectivity. From the perspective of English, law contains both the meaning of law and natural law; закон in Russian also contains both legal and conventional meanings; The Chinese characters "Fa" and "Fa" both contain the Chinese character "Fa", which cannot be said to be just a coincidence. At least, it can be considered that the laws formulated as legislators cannot be completely divorced from objective laws, and the legal spirit is essentially the unity of subjectivity and objectivity. But in different fields, its objectivity-socio-economic regularity is different.
In the past, people often thought that the natural law in Roman law only refers to some common laws between people and animals, that is, "the nature of all things." For example, the principle of preemption in the ownership relationship, natural marriage in the relationship between men and women and so on. But in fact, "there are many trading systems such as transfer, sale and so on." It is also called the natural law system by the Romans, and they are still unique to human beings. *2 1992 People's Republic of China (PRC) maritime code is a law with common maritime practices. The Roman emperor once had a famous saying: "I am the Lord of the land, but Haifa is the king of the sea." "It can be seen that the emperor can make laws governing his subjects according to his own will, but he cannot make maritime laws at will. Maritime law embodies the maritime trade practices of people of all countries and the spirit of objective laws, which was not formulated by any emperor.
There are many similarities between natural law and universal law, and even many Roman jurists regard universal law and natural law as the same concept. National law and natural law must include the common things in the laws of all nationalities in the world. The popular view in ancient Rome was that their legal system consisted of two elements, half of which were governed by their unique laws and the other half by the common laws of mankind. This also has great enlightenment for us today. The laws of market economy transcend the boundaries of a country, and the market is no longer restricted by a nation, such as company law, securities law, negotiable instrument law, futures trading law and so on. The spirit of natural law embodied in these laws is the common law in such laws in various countries. We must study the laws and norms of market economy, which are common to all countries' laws and unique to China. We must also affirm that the dominant aspect of market economy legal norms should be something common, that is, something objective and regular.
Legal norms that reflect regularity are long-term and stable, while legal norms that simply reflect the will of legislators are often extremely changeable, usually with the change of legislators or the change of legislators' will. Since the natural law in Roman law is the legal expression of natural (social) phenomena, it should not be changed easily. Of course, from the perspective of market exchange and trading rules, there can be no eternal rules. That kind of "absoluteness" is analyzed from the spirit of natural law and does not represent objective reality. However, we have to pay attention to the phenomenon that legal norms changed too frequently in the past. From Roman law to today's more than two thousand years, what are the fundamental breakthroughs in the rights and obligations of buyers and sellers and some basic norms of the relationship between buyers and sellers in market transactions? We have made a breakthrough in the past, aren't we going to change it again? Therefore, the formulation of a unified contract law today, including various specific contract specifications, should also reflect this long-term and stable regularity. The authority of law comes from its stability.
Only things that reflect objective laws are correct. Paul, a famous scholar of Roman law, defined natural law as "things that are always just and kind" *3, which means this. In the laws of market economy, legal norms that violate objective economic laws can never be correct and can never represent justice. Therefore, it is bound to hit a wall in the implementation process. Market economy has given us a new idea: law should be the embodiment of fairness and justice, not just a tool and weapon in the hands of rulers.
Second, from the state to society.
For a long time, under the dictatorship of the proletariat, the government and the absolutely planned economy mechanism, we have formed the concept of national standard that the country is supreme, the country is the center, the will of the country determines everything, and the country plans everything as a whole. In this way, society is regarded as an appendage of the state, lacking its own independence and requiring the state to intervene in all aspects of social life. Powerful and pervasive state intervention is a portrayal of China's social and economic life for a long time. Only the existence of public law is recognized, but not the existence of private law. Its theoretical basis is the concept of national standard. The division between public law and private law originated from Roman law. Strictly speaking, "Gong" in Roman public law is "a concept between the state and society". *4 At that time, the scope of public law was only "found in religious affairs, religious institutions and state management institutions". *5 Therefore, Roman law only proposed the division between public law and private law, but it still lacked an in-depth analysis of the objective basis of the existence of public law and private law, because the separation between the state and society was not profound and obvious at that time. Rome is a powerful country, but the civil society has not been fully developed. The word Civitas is ambiguous in Chinese, and it also contains the meaning of country, city-state, nation and society. At that stage of social development, it is difficult to strictly distinguish between political state and civil society. However, when analyzing Roman society, some scholars once said: Rome belongs to civil society, and ancient Germanic people did not experience civil society. It can be understood that ancient Germanic, as the barbarian tribal economy at that time, relied not on exchange, but on war and directly on the state machine. Roman society, on the other hand, relied entirely on the means of commodity exchange, not directly on the state machine. In this sense, Roman society is the earliest civil society, and capitalist society is a developed civil society. In today's China, when the market economy is put forward as a definite economic model and goal, some jurists, economists and sociologists have seriously started the research on China's civil society. The purpose of dividing civil society and political state is to prove that the foundation of private law is civil society, not private ownership; The basis of public law is political state, not public ownership. For a long time, many jurists believe that there is no distinction between "public law" and "private law" in countries where the means of production are publicly owned. Some scholars even think that in countries where the means of production are publicly owned, all laws belong to the category of "public law". It should be said that public law and private law exist correspondingly. Since "private law" has been eliminated, where is there a separate "public law"? As an important basis for socialist countries to deny the division between public law and private law, Lenin's exposition on not recognizing any "private law" has been widely quoted in the legal field. After careful analysis and study, Lenin's original words mean that the private economy can be recognized, but no private economic relationship can be exempted from the intervention of state laws.
Obviously, what we are talking about here is not the division between public law and private law. Therefore, the newly published Chinese translation of The Complete Works of Lenin 1987 has changed the original "private law".
Change the word "private" to "private".
It is undeniable that it is not only too late to discuss the division between public law and private law today, but also seems to have more obvious limitations. But in today's China, it is still of great practical significance to talk about this topic again, not only because all our spirit of state-based public law has penetrated into the whole legal field in the past 40 years, but also because China has always been based on criminal law and has no spirit of private law in its 4000-year recorded history. We should carry forward the spirit of private law and make up for a missing page in history. The spirit of Roman law is the spirit of private law, and the revival of Roman law in China can also be said to be an indispensable spirit of private law to restore and carry forward human society. China is actively establishing a modern enterprise system, and as the basic form of modern enterprises, an important feature of companies is "independent enterprises". Without giving enterprises a truly independent legal person status, without getting rid of the administrative intervention and control of government departments, and without changing the status of subordinate administrative departments, there will be no modern enterprises at all! Market economy must take right autonomy, enterprise autonomy and freedom of contract as its three legal cornerstones.
Public rights are mainly embodied in power, while private rights are mainly embodied in rights. We should demonstrate that the foundation of public law is political state, that is, the source of public rights is the power of political state, and we should demonstrate that the foundation of private law is civil society, that is, the foundation of private rights is equal citizens. In this sense, it can be absolutely said that private law is based on the standard of rights. To recognize the existence of private law, we must recognize that rights are the core, purpose and strength in the field of private law. Obligations can only have compliance status. The performance of obligations in any private law is to realize its rights. Rights are always inseparable from their subjects (natural persons and legal persons). Without subject, there is no right, without right, there is no subject. The standard of rights is also the standard of people and the standard of subject. In the classification of personal law, property law and debt law, the basic position of personal law can never be ignored. In the market economy, the diversification of subject forms makes us realize that if the subject of market economy is not given the due qualifications and status, the role of other laws will be eclipsed.
Generally speaking, the combination of public law and private law should include two aspects: on the one hand, the scope of state intervention is getting wider and wider, and the field of private law that is absolutely free from state intervention no longer exists. The emergence of economic law and social law is a typical manifestation of this integration. In this sense, private law has become public law. On the other hand, the spirit of private law is constantly infiltrating into public law. The spirit of freedom, equality and human rights in private law is increasingly reflected in the field of public law. In this sense, we can say that public law has been privatized. We can't just emphasize the former and ignore the latter. Therefore, the revival of the spirit of Roman private law also includes
Its spirit in public law.
Third, from identity to contract.
"From Identity to Contract" in Main's masterpiece Ancient Law is a highly abstract summary of the development process from ancient law to modern law. In fact, more precisely, the development history of Roman law itself is also a history of "from identity to contract". Main also wrote in this book: "The main difference between Roman natural law and civil law lies in its emphasis on' individual', and its greatest contribution to human civilization lies in liberating the individual from the authority of ancient society." *6 The development history of Roman law is a history of constantly replacing the ancient family standard with individual standard, getting rid of the bondage of family authority, establishing individual rights and moving towards equality of rights. Roman society was a slave society. Originally, rights are the most unequal, but private law which best embodies the spirit of equal rights has emerged. The reason lies in its duality: contract law is an equal transaction between free people, while family law with family patriarchy as its core is full of inequality. The universal law, which embodies the spirit of natural law, is not bound by the patriarchal clan system. The process of the integration of civil law and civil law in Roman law is also the process in which the family standard of civil law gives way to the individual standard. It is in this sense that Roman law itself is a process from identity to contract. If the greatest contribution of Roman natural law to human civilization lies in "liberating individuals from the authority of ancient society", then we can also say today that an important symbol of the spiritual recovery of Roman law is to liberate people (including individuals and legal persons) from the inequality of status. This is also the repetition of "from identity to contract". Under the planned economy system, the innate status of producers and enterprises is unequal. Enterprises with different ownership have different legal adjustments, enjoy different rights and obligations, and bear different policy treatments and social burdens, which is tantamount to a new "identity" and "grade". The legislation of market economy should embody the spirit of "identity equality", which is the real spirit of contract. As we all know, Roman law has a famous exposition on the nature of the norms of public law and private law: "The norms of public law cannot be changed by agreement between individuals", while the principle of private law is "agreement is law" (that is, the norms of private law can be changed by private agreement). Advocating the spirit of private law is to stipulate a certain number of arbitrary norms in China's laws regulating market economy, especially in the contract law. Under the planned economy mechanism, the conclusion of a contract and its contents belong to the scope of public law and mandatory norms. If the contract law is more detailed and all are mandatory norms, it is tantamount to the state concluding a contract for the parties, and its effect is just the opposite. Therefore, an important spirit of the unified contract law that we are formulating is to restore the certain status of arbitrary norms. 1992, the General Provisions of Chapter VI of Maritime Law clearly points out that "the provisions of this chapter on the rights and obligations between the lessor and the lessee shall only apply if there is no agreement or no different agreement in the contract." This is the first time in China's contract law that it is expressed in the form of distinct arbitrary norms, so it is of great significance.
The difference between strict litigation and bona fide litigation in Roman law is based on contract law and arbitrary norms. A considerable number of contracts, especially agreed contracts, belong to bona fide litigation. When these contract disputes occur, payment should be made not only according to the terms of the contract, but also according to the principle of good faith (honesty and credit). Therefore, the judge can not stick to the words of the contract terms, and he has certain "discretion". But some contracts are serious lawsuits. Once a dispute occurs, the debtor must pay in strict accordance with the terms of the contract, and the judge can only make a judgment in strict accordance with the agreed text of the contract. He has no judgment. This issue is still of practical significance in today's market economy in China. For a long time in the past, judges have great discretion over contract disputes, which are often changed by judges on the grounds of fairness and reasonableness, regardless of the agreement. Today, some judges dare not change the unreasonable parts of these terms on the grounds of strict implementation of the contract terms. Therefore, how to embody two different principles of resolving contract disputes in Roman law in China's judicature is of practical significance.
Fourth, from experience to rationality.
Roman law is a codified system and a model of later codification. The codification of Roman law and its theoretical system are based on highly rational thinking. Marx said in his book Critique of Hegel's Philosophy of Right: "Romans are independent rationalists of private property." "In fact, it was the Romans who first formulated private property rights, abstract rights and abstract personality rights." "The main interest of the Romans was to develop and define abstract relationships as private property." The contribution of the Romans to private law lies in their highly abstract and theoretical thinking on private law rights.
No matter ancient or modern, Chinese or foreign, legislators should have two positions: one is based on social reality, and the other is based on rational abstraction. No aspect can be ignored or neglected. Every legal provision is written to solve real social problems, so it cannot be divorced from reality; On the other hand, every legal provision is the crystallization of a highly rational generalization of the code of conduct. Rationalism in the spirit of Roman law is first manifested in codification. The code itself is the embodiment of high rationality. Both the French Civil Code and the German Civil Code inherit and carry forward this spirit. China is a civil law country. Although different social systems have some unique features in the form and content of compilation, it is undeniable that since China attached importance to the role of legislation, its trajectory has followed the road of compilation. Whether legislation is guided by experience or rationality is not a completely solved problem in China. "Legislation can only be made with sufficient experience" and "Legislation cannot be advanced" used to be the guiding ideology of many people's eloquent legislation. Under the guidance of this idea, the General Principles of Civil Law of 1986 can only be written as the legal representative of the owner according to the factory responsibility system, but not as the legal person organ that is proved necessary by the later Company Law; It can only be written into general mortgage, but not into the separation of mortgage and pledge, which was drafted and proved necessary today. In fact, under the guidance of rationalism, we can soon completely break through the abnormal practice of not legislating stipulated in the General Principles of Civil Law.
The codification of China's civil law has gone through a bumpy road, and the two attempts of codification in 1950s and 1960s were fruitless. The third drafting work, which began in the early 1980s, can only end with the promulgation of a "general rule". Is it possible to make a complete code in China today? Of course not. Legislators in China attach great importance to legislative planning and have drawn up a list of 65,438+052 laws to be passed during the five-year term (65,438+0,993 ~ 65,438+0,998) of the Eighth National People's Congress. Some of them are important separate civil legislation, such as property law, contract law, guarantee law, broker law, partnership enterprise law and so on. It can be said that the legislative plan is the embodiment of legislative rationalism, but it is not the main performance. More importantly, it is the thinking and design of the internal systematization of legislation. Lacking a complete legislative system foundation, we still haven't got rid of the old concept of "crossing the river by feeling the stones" or "being another one when we are mature". It can be seen that the transition from experience to rationality is still a problem worth pondering in our legislation, especially in civil legislation.
Rationalism in Roman law is also manifested in a highly abstract summary of the legal system. Without this summary, there would be no theory. The debt system, real right system and personality right system in Roman law are all manifestations of this highly abstract generalization. Some systems created by Roman law are still irrefutable after more than 2000 years, which only shows that they are based on a very solid theoretical basis. One problem with China's current legislation is that it is often easy to stipulate one thing at a time, and sometimes it loses its meaning in less than ten years. Although this is related to the drastic social and economic changes, it cannot be ignored, and it is also related to the lack of in-depth theoretical research on legislation. "Paying more attention to practice than theory" is a deep-seated disease in legislation. We should get some enlightenment from the rational spirit of Roman law and its achievements.
Rationalism in Roman law is also manifested in attaching importance to the role of jurists. In the history of Roman law development, its most brilliant stage is precisely the stage when famous jurists come forth in large numbers, and it is also the stage when they show their talents in the legal arena. The process of the decline of Roman law is also the process of the decline of Roman law. In the heyday of Rome, jurists were the drafters of the emperor's legislative documents. Since Augustus the Great, some famous jurists have been given the right of legal defense. The answers and works of the five great jurists have been declared legally effective. When five jurists disagree on the same issue, the majority opinion shall prevail; If the number of opponents is equal, the opinion of Pa Pigna Yunus shall prevail; If PaPigna Yunus does not express his opinion, it will be decided by the judge. The main activities of Roman jurists in the late empire were limited to holding legal education and compiling codes.
It can be concluded that rationalism in Roman law depends on the efforts of Roman jurists to a great extent.
The strengthening of rationalism in China's legislation is also inseparable from jurists' more participation in legislative activities. Some laws were drafted by lawyers, while others were repeatedly listened to by lawyers. Of course, jurists also have their limitations. Like Roman law, the works of famous jurists can even be used as legal basis, which cannot be imitated in today's legal society. However, in China's political and legislative activities, the status of jurists is still a problem to be solved. Without the improvement of the status and role of jurists, it is impossible to truly realize the rapid transformation of legislation from experience to rationality.