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, showing non-strictness 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.
Second, economic laws and policies.
Economic life changes so fast, and economic law, as a written law, has the general characteristics of law, that is, relative stability. In this case, the state's timely regulation of economic life is restricted by the lag of law, which requires the establishment of a new parameter-economic policy between law and economy, and economic law and economic policy are closely related.
(A) the definition of economic law and policy
As a public policy, economic policy is a guide for the state and the government to consciously solve various economic problems. In fact, it is an economic activity taken by the state or political party under the pressure of interest groups, and it is the embodiment of the national economic will. Nowadays, the state's regulation and penetration of the market has become an indispensable part of social and economic development, and the influence of economic policies is also rising. On the one hand, it is the development of the control principle of modern government ruled by law, on the other hand, the boundary between more and more laws and policies is becoming more and more blurred, and the phenomenon that laws are full of policies can be seen everywhere. This phenomenon can be understood as the essential difference between administrative law and economic law. Therefore, the policy nature of economic law can be defined as: economic legal norms are strongly influenced by economic policies, so that their legislation, law enforcement and judicature reflect certain policy characteristics and purposes.
(B) the causes of economic policies
1. The policy of economic law is rooted in the inevitable requirement of the inherent characteristics of economic law. Because economic law is rooted in the state's conscious regulation and participation in the economy, its essence is not to directly and abstractly set and protect certain rights, but to pursue a timely response to changing economic life and promote stable economic growth. However, modern society is a complex and changeable society, which requires higher efficiency of economic operation. The government's means of adjusting economy and correcting market defects will be increasingly rich and varied to meet the requirements of modern social development. However, the limitations of the internal structure of the law itself are relatively backward, so we have to rely on economic policies to deal with various complex problems flexibly and timely.
2. The perfection of the essence of economic policy is consistent with the interests of economic law. The economic policies widely adopted by modern countries are not the traditional compulsory system of the state, but mostly the combination of diversified policies that reflect the functions of modern countries. On the premise of rational "economic man" in civil society, the policy objectives are achieved through interest-driven means, which is consistent with the interest adjustment means in economic law.
(C) the policy content of economic law
1. The legislation of economic law is influenced by economic policies.
First of all, today, when legal adjustment permeates all aspects of social relations and is highly specialized, the adjustment of economic law often comes first with policies, which are mandatory and give them legal effect, and even constitute an indispensable part of economic law.
Secondly, economic legal norms are short-lived and changeable, and the process of "change" itself is short-lived and rapid, which is often synchronous with the change of economic relations itself, and sometimes even ahead of the change of economic relations to some extent. Moreover, the timely response of economic law to some specific economic phenomena is very similar to the special response and transience of economic policy. What should not be stopped or done at this moment may become what should be done and stopped at that time. Xie Huaiyi, a famous scholar, compared the image of economic law with that of civil law: "A country's civil code can remain basically unchanged for hundreds of years, but economic law can't."
Thirdly, there are quite a few principled norms in economic norms, and the specific application of such principled norms must match the relatively clear economic policies in a specific period, so as to provide good behavior expectations for the public and maximize the stability and authority of the law.
Finally, there are many vague policy words in the norms of economic law, such as "for the great interests of" and "to maintain the healthy, stable and rapid development of the national economy". In the traditional legal department, the standard used to judge the legitimacy is only behavior, but in the economic law, the result, purpose and even motivation of behavior have become the standard, so we should consider the policy according to the specific situation, and the meaning of the policy is completely integrated into the law.
2. Economic law is deeply influenced by economic policy in law enforcement and judicature.
First of all, there is a kind of "fourth power" which combines traditional administrative power, quasi-legislative power and quasi-judicial power as the institutional basis of economic law. It not only embodies the blending and coordination between public and private, but also is not a general administrative executive organ as the concrete executor of the fourth power, but a variety of economic management organs with the nature of special committees established by special laws.
Secondly, in the specific application, pay attention to the overall social effect of the law, and don't force the so-called "consistency". Taking the anti-monopoly law as an example, we should understand the application of the anti-monopoly law in combination with the specific economic policy background. In the field of competition law, anti-monopoly laws with similar provisions have different enforcement efforts in different countries. The attitude of the United States towards monopoly is much stricter than that of other countries; Even within a country, the enforcement of anti-monopoly law is different in different periods. As far as the Microsoft antitrust case is concerned, it also fully reflects the softness of antitrust enforcement. In September, 20001year, the U.S. Department of Justice announced that it would no longer demand the separation of Microsoft, and would no longer insist on the anti-monopoly requirements against Microsoft's bundling of Internet browsers and Windows operating systems. One of the main reasons is that the Bush administration changed the Clinton administration's tough stance against Microsoft monopoly and adopted a more conservative and business-friendly policy. In view of the fact that Microsoft is basically a monopoly company developed by itself and based on intellectual property rights and knowledge innovation, the Ministry of Justice has issued the banner and policy of "promoting innovation". Influenced by the American government and policies, the judicial system responded to this.
(D) the policy function characteristics of economic law
First of all, economic policy, as a conscious form of governance in which the country focuses on the real economic state and induces the economy to develop in a specific direction, is a political decision made unilaterally by the country, which embodies a strong will for public power. This may seriously violate the objective economic laws and become the product of pure power will. The concept of "limited government" and "government is not omnipotent" in modern rule of law also requires the legalization of economic policies, so that power can be controlled within the prescribed scope, especially through fixed mechanisms to achieve scientific, efficient and stable decision-making. Therefore, the inherent concept of effective restriction of power by law limits that economic policy can only show itself on the platform of legal operation.
Secondly, under the complicated social and economic conditions in modern times, the era of using economic policies to regulate the unimpeded market by administrative guidance is gone forever, and rational people in civil society do or don't do some economic behavior driven by interests. Therefore, it is increasingly necessary for the government to enact laws to increase the predictability of economic operation, and to operate a relatively independent legal system to increase the legitimacy of economic regulation, thus reducing the huge resistance and unnecessary consumption that may be encountered in the implementation of economic policies.
Third, the significance of the study on the relative softness of economic law.
(A) a dynamic view of the practical significance of economic law
First, the illegal compilation of economic law. Because of the dynamic characteristics of economic law, it is impossible to achieve a high degree and fairly stable systematization on the whole, so it is difficult for economic law to be expressed in the form of code in legislation. "Since the emergence of economic law, few countries have formulated a unified economic code", and the only basic part of Czechoslovakia's socialist economic code named "Code" has almost no provisions on planning work and economic management. Many problems in economic law still need to be solved by formulating special economic laws and regulations. If we look at economic law from a dynamic perspective, on the one hand, we will not get entangled in the codification of economic law and waste the legislative cost; On the other hand, we will not stick to the existing economic laws and regulations, but should formulate an economy that conforms to the development of the times in time.
Laws and regulations to promote social, economic and cultural development.
Second, the combination of principle and flexibility is inevitable. Although economic law has dynamic characteristics, as a law, we should keep its stability as much as possible, and coordination can be achieved through careful arrangement of legislation, law enforcement and judicial procedures. From the legislative point of view, the contents of some basic economic and legal documents should remain strong in principle and should not be too detailed; Only lower-level legal documents can be reflected. In addition, while formulating economic and legal documents with strong principles, we should establish more flexible law enforcement and judicial mechanisms and give law enforcers and judiciaries greater discretion. Of course, how to regulate the proper use of power and ensure that power does not expand is also the content of system program design.
(B) the meaning of the internal interaction between economic law and economic policy
First of all, it is necessary to construct the relationship framework between economic law and economic policy, and realize the benign interaction and combination between them.
How to integrate law and policy harmoniously and overcome the instability of policy and the lag of law is worth discussing. Facing the new trend of social change in the 20th century, western legal scholars put forward a theoretical model of responsive law, arguing that the law has moved from mandatory to autonomous, and began to change to responsive law. Its basic connotation includes: the purpose of law is power, legitimacy comes from substantive justice, rules are subordinate to principles and policies, law enforcers have expanded discretion that they must still be responsible for the purpose, and their legal demands and political demands have reached a fusion. Economic law is a departmental law with responsive legal characteristics. It should be highly sensitive to the implementation of economic policies, improve the rationality and effectiveness of its own operation in a responsive way, and grasp the realization of the overall interests of society in a diversified interest pattern.
Secondly, the interactive combination of economic law and economic policy must always aim at ensuring free operation.
Government intervention stems from "market failure" and the soil of the market, so it must be carried out within the scope of market mechanism failure or failure. Practice has fully proved that non-market defects caused by government intervention are more harmful to the market than market defects. At this time, the phrase "the government with the least management is the best government" still applies. Therefore, in the complex game between the state and the market, economic law and economic policy should form an elastic mechanism, skillfully integrate the free market and state intervention, and always maintain the necessary tension between them.
(C) Divergent thinking about the relative softness of economic law
Although the connotation and extension of the relative softness of economic law and the countermeasures in the practice of legal construction of economic law in China are systematically analyzed from the perspective of legal rationality, the author believes that the relative softness of economic law is the product of the strong contradiction between the stability requirement brought by the legal nature of economic law and the variability requirement brought by the strong influence of economic life and economic policy, rather than the so-called "failure to abide by the law, lax enforcement and failure to investigate the law" brought about by the so-called judicial imperfection, that is, the development of the rule of law in the Economic Law has little influence on this phenomenon, only the change of economic life. When the economy develops to a certain extent, when it reaches a stable period or a platform period, the law and the economy are relatively close and the changes are very stable, then the contradiction between them will be reduced.
I hope the above content can help you.