The so-called relative softness of economic law mainly refers to the rapid change of economic life today, due to the influence of economic changes, economic legislation changes rapidly, and the boundary between legal norms and economic policies is not obvious. Compared with other traditional and stable statutory laws with the color of continental law, it is more flexible and changeable, and it is not strict in economic law enforcement or justice. Therefore, with the help of the concept of "soft" in international law, it is not stable and tough, and it is not strong for the legal norms of economic law itself.
First, the dynamic nature of economic law.
(A) the definition of dynamic economic law
As the embodiment of the value of law, the stability of law has always been favored by scholars. People can expect their own lives according to law, and then determine their own behavior patterns, which has become an important embodiment of the social function of law. But in essence, all laws are not absolutely stable, because "stability and certainty are not enough to provide us with an effective and dynamic legal system, and laws must also obey the legitimate requirements put forward by progress". As a method of "state intervention in economic operation", economic law needs to be reformed in a timely and appropriate manner according to the variability of the regulated objects, which embodies its unique characteristics.
First of all, the theory of "market failure" provides a theoretical basis for economic law to intervene in the market. "Because of the gradual, phased, relative and different market defects, the market demand for state intervention in different periods is different in quality and quantity; Because of the cost of intervention, the ability of intervention and the limitation of the function of economic law, the scope of intervention can not be fixed, so the determination of the scope of intervention becomes quite complicated and dynamic, and all fields of national economy may become the objects of state intervention, but the actual areas of intervention at different stages are not the same.
Secondly, even if the market operates in a benign and orderly way, it does not mean that the market is static, but in the process of movement and development. Therefore, the state does not have to intervene in certain economic relations at all times, and the subject scope of economic law will change, showing a certain dynamic nature.
Thirdly, from the perspective of the development trend of economic law, deeply influenced by the basic theory of economics, since the Great Depression, Keynesian Revolution and Great Stagflation in the 1930s, the dominant economic thought has penetrated into economic law through economic policies. Based on the contention of economic theory and the choice and use of rulers, economic law also shows directional changes.
Therefore, the dynamic nature of economic law can be defined as: economic law cannot be fixed, and in order to realize the function of state intervention in economy, it must change with the changes of social and economic situation and market.
After defining the concept of dynamic, some scholars compare it with uncertainty and fuzziness, and think that "dynamic is objective, independent of human will, and uncertainty is bound to have a strong subjective color", and "legal fuzziness is also an uncertainty of law, which is the common boundary between the uncertainty of law and nature". However, in the subjective and objective concept of law in the Principles of Philosophy of Right, we already know that although China inherited the "ruling class theory of law" of the former Soviet Union, the actual and objective laws of social life are still the source of law. Without economic foundation and people's inner recognition of fairness and justice, the social effect of law will be greatly reduced and even become a "bad law." Therefore, when we talk about the dynamics of law, we have already included the understanding of the basic issue of legal objectivity, so we don't need to emphasize it any more.
(B) the causes of the dynamic nature of economic law
1. The external conditions of economic law determine it.
First, the existence of "market failure". Market economy is an economic operation mode of allocating social resources based on the market. "Although it does not have unified intelligence, it solves a production and distribution problem involving hundreds of millions of unknown variables or related relationships, which is impossible for the largest computer." However, in the market economy, there are still many problems in the process of realizing the effective allocation and rational utilization of resources, that is, market failure. Show in:
(1) The market function is defective, and there are obvious shortcomings in providing public products and safeguarding public interests. Public goods have a strong "spillover", for example, market players can get external economic benefits without paying the price, or they can't get due compensation because of external damage. Moreover, the market mechanism cannot fully provide public goods such as national defense, fire protection, science, education, culture and health.
(2) The market competition failed. The spontaneous action of the law of value often leads to monopoly, and monopoly will destroy the market mechanism, exclude competition and reduce efficiency to a certain extent.
(3) The market cannot achieve fair income distribution. The principles of market transactions are equality, voluntariness and equal compensation. However, due to the differences in resource endowments of economic individuals, income levels are bound to be different, and prices fluctuate with supply and demand. The spontaneous adjustment of the market is likely to widen the income gap and concentrate wealth in the hands of a few people. That is, it has become the main factor of social instability.
(4) The market supervision itself is blind. The regulation of the law of value to the market is actually an ex post facto regulation, and there is a certain time lag from price formation, information feedback to product production.
(5) Asymmetric market information. The market subject is limited and rational, and the lag and deviation of market price make information scarce, especially the asymmetric information distribution between the two parties, which will lead to the speculative adverse selection of the subject and the moral hazard of bad money driving out good money in the commodity market.
(6) There is an economic cycle. Economic cycle is the most typical example of individual rationality leading to collective irrationality. In the market system, every market subject pursues the maximization of its own interests, and no subject is subjectively responsible for the macro efficiency of the market. In other words, the market is an organism without "brain and heart", and it is inevitable to lose its direction in the process of operation.
Market failure appears gradually in the process of market development, and fluctuates with the changes of economic structure, economic scale and market maturity, thus showing "dynamic". Therefore, the economic law involved in this aspect must also have dynamic characteristics. The means mainly used for regulation are comprehensive and changeable.
Secondly, the existence of "government failure". All kinds of economic theories that advocate the use of government macro-control measures to intervene in the economy are based on the understanding that the government has more information than a single economic subject, which in a sense means that the government is an omniscient and omnipotent single subject, so it can effectively eliminate the trial and error of a single subject in economic activities. However, the fact of "great stagflation" in the 1970s shows that the government also has some failures, just like the failure of the market mechanism. The fundamental reason lies in emphasizing the idea of high-intensity government intervention in the economy and exaggerating the ability of the government. Under the restriction of modern science and technology, the government does not have enough ability to collect information accurately, and because of the government's own preferences, the alienated government may not form social preferences consistent with the requirements of the whole society. Therefore, it is difficult for the government to intervene in the economy at the most appropriate time and with the most appropriate intensity. Moreover, even if the government as a theoretical concept can do this, it is difficult to guarantee that specific policy makers and executors will faithfully implement the will of the government, which will bring huge costs.
Therefore, we should recognize the government's intervention in the economy on the basis of a serious understanding of the role of the government, so that the government's intervention in the economy can not only minimize the cost of this intervention, but also effectively make up for the defects of the market mechanism itself. In other words, there is a potential boundary that the government cannot cross. Reflected in the economy, the adjustment scope of economic law is not fixed: when the market fails, it is necessary to bring the objects that did not belong to the adjustment of economic law into the adjustment scope, showing a certain expansion. When the market failure is compensated by state intervention, due to the objective existence of government failure, the government will withdraw its "intervention hand" and the adjustment scope of economic law will be narrowed, showing certain flexibility.
Economic law is determined by its own nature.
First, the dynamic nature of economic law is determined by the purpose of economic law. The purpose of economic law is "the government comprehensively uses various means to coordinate economic operation, so as to promote stable economic growth, ensure economic equity and social equity, and realize the benign operation and coordinated development of economy and society." In order to achieve this goal, economic law focuses on the influence of various specific factors of social and economic operation on macro-economy, that is, the overall development of social economy, rather than applying the law of value to the micro-economic field like civil and commercial law. Moreover, from the time point of view, the market mechanism has strong stability, while various specific factors of social and market changes have great volatility and variability. Therefore, the state's intervention in these changing factors is bound to be variable.
Secondly, the dynamic nature of economic law is also determined by its essence. At present, most scholars define economic law as social law to make up for the dilemma that it cannot be purely incorporated into public law and private law. However, Urbian's definition of public law and private law is supplemented by Mr. Shi Shangkuan's views on modern public law and private law: public law regulates political relations and the purpose that the country should achieve, as well as the stability of the country concerned; Private law regulates the relationship between citizens and determines the conditions and restrictions of personal interests, which involves personal welfare. It can be considered that economic law has a strong nature of public law, and any kind of economic and legal relationship reflects the existence of state public power. Different from the power control law of "limited government" in administrative law, the authorized nature of economic law gives economic law more room for adjustment means and methods, and it is always coupled with private laws such as civil and commercial laws, which determines that the variability of economic law is greater than that of pure private laws such as civil and commercial laws. As a private law, civil and commercial law can exclude the active intervention of law and government within the scope defined by law through mutual agreement between subjects, and the adjustment means of civil and commercial law can be of guiding significance in principle, enriched by citizens' colorful lives and highly inclusive. However, as the main body of economic and legal relations, the rights and obligations of the state are not allowed to be flexible at will. The change of social economy leads to the inadaptability of the old economic law, which can not be overcome by the subjects of economic and legal relations through agreement, but only through the change of economic law.
(C) the dynamic content of economic law
1. variability
As mentioned above, a series of aspects of economic law, such as adjustment means, adjustment scope, and control subjects, all change with economic and social changes, so I won't repeat them here.
2. Extensibility and flexibility
As a law of state intervention in economy, economic law is based on making up for the fact that administrative law cannot interfere in economic life, limiting the government's function of "restricting power" and "authorizing" the operation and application of the state's economic management function, which is the state's intervention in private rights by using public power. On the one hand, when the market is out of order, it is necessary to intervene in the economic relations that should not be interfered by it when the market is normal, and touch on the internal operation of civil society, which is a necessary "expansion" to make up for the defects of civil and commercial law; On the other hand, as a normal macro-control, economic law endows the main country with economic management functions and ensures the legitimacy of its macro-control power source. But as long as it is power, it is expansionary and tends to expand management, which is also a dynamic performance.
However, under the special national conditions of our country, the concept of "limited government" has not been fully established or deeply rooted in the hearts of the people. The "official standard" has ruled for more than two thousand years, and the state has freely applied the expansion function of economic law. Civil society is also good at relying on the intervention of the state, lacking the anxiety to prevent ultra vires infringement from the state, and even taking it for granted. Therefore, it is more important to emphasize the restoration of economic law, that is, to maintain the "degree" of government intervention
For the expansion of the first aspect, we should guard against the overstepping of public rights from the clear and procedural provisions of economic law on the time, intensity and means of regulation. As for the normal expansion of the second aspect, we should understand the economic law from the perspective of "controlling power law" and change the concept of "the government is in charge of everything". After attaching responsibility to power, starting power means that the "sword of Damocles" of responsibility hangs high, thus realizing the recovery of economic law.
3. Relative stability
If any law loses its stability, it will be difficult to realize its social function of guiding behavior. "A completely unstable legal system can only be a series of specific measures formulated only to cope with temporary changes. It will lack logical self-consistency and continuity. " Economic law is dynamic, but it is also a relatively stable and continuous economic legal system, which constitutes the development history of economic law.