Constitutional and civil society
【Summary】 concept of citizenship is a unique concept of civil society, which defines equality between citizens and the citizens, freedom of relationship, revealing the rights of citizens of the national public authority of the origin. Civil society constitutes a
barrier to protect individual citizens, while the formation of an effective state of political constraints. Division of public and private law, constitutional right of great significance, private law is the basic rules of civil society. Construction of China's constitutional civil society should be constructed as a starting point, will experience with the construction of a rational combination of rational and to experience a rational focus.
In recent years, the study of civil society has become fashionable. Whether scholars or graduate students just entering school, are trying to view civil society, or in civil society theory, the logic of specific ways of thinking as a tool to conduct some kind of
"scholarly" interpretation, many of whom insights. In the legal field, some scholars of civil society and its relationship with the State a very valuable discussion ?. Such as
the American scholar Alan S * Rosenbaum believes that "Western democracy and constitutionalism in modern societies often include a civil society on the idea"  (4 pages). Chinese scholars also believe that in order to form a civil society based on multi-cultural environment is one of the general conditions of constitutional government to achieve , "civil society, the construction of the building Naishi constitutional basis" . Overall, the theory of civil society is not familiar to us as tools to study the constitutional right has just begun. This paper attempts to explore the meaning of the constitutional right of civil society.
First, the constitutional significance of the concept of citizenship
"In recent history, civil society than any other characters are more dynamic"  (1). However, the literature in the Constitution, "citizens" just be simply defined as having
a country of nationality of natural persons. This "citizen" implies the concept of the value of carrying disproportionate. The existence of citizens of the first premise of civil society. Edward Shils stressed that the political community concept is a feature of civil society, and "this feature includes the concept of citizenship", "and gave birth to the concept of city-states, which is a city, as well as a group to hold public office and participate in discussions and decision-making in public affairs The concept of the right
of citizens " (36 pages). Concept of citizenship is a need for a constitution in the first well-defined, one of the most valuable areas of the cornerstones, the core elements of citizenship. Citizenship is both a political state of its membership, the status of legal recognition, but also implies a voluntary basis attributable to the individual citizens of the political concept of the state. As John Rawls in his new book, "Justice as Fairness -
New Theory of Justice," a book put it, "any member of a civilized society the need for
such a concept, this concept will enable them to understand themselves into a certain political status of the members - in a democratic society is the equal political status of
citizenship, as well as how to understand the political status of the affected their relationship with the community " (5 pages).
The constitutional significance of the concept of citizenship:
(A) It is a common feature of the concept of citizenship for citizens of the constituent
elements of meaning and the definition of a country reflects the value of constitutional expectations, the basic content of the constitutional system. With the nationality of a country, so that citizens linked with a specific country, and in accordance with the law of the country to enjoy the corresponding rights and assume corresponding obligations. States political ideas, political system, political structures and legal differences, makes the concept of citizenship in different countries, especially the specific content of the constituent elements of citizenship vary. Concept of citizenship must be compatible with the political state. Therefore, the concept of citizenship has a strong public nature of citizenship is much more than citizens of "private" thing, even though citizenship is only meaningful in relation to the individual citizen. The definition of the concept of citizenship, defining citizenship in modern public law to be completed by the first important mission.
(B) it implies the relationship between the citizens of universal significance that freedom, equality, independence.
First, the "citizen" is a comparative concept, the concept of citizenship means equality. "Citizenship is equal representation"  (13 pages). The existence of the modern
concept of citizenship requires two preconditions: First, state or political community (citizen groups) the existence of two of the state or political community that the equality of the universality of membership. Therefore, that the person has citizenship, meaning that he is a citizen groups (ie political state) members, and with the other members of this group have equal status. In the early days, "citizen" concept has great limitations. Slavery in ancient Greece, the first country to use the concept of citizenship, was referring to conquer other city-states as the basis for the establishment of its own rule of conquerors, that is, the so-called natural citizens and their descendants also the first heaven and earth to enjoy rights of citizenship, to become city-state of citizens  (292
pages). Citizen is a privileged class, a monopoly of the city the right to rule city's political life is a citizen of the patent, other than citizens of slaves and free people are
excluded from the political and social outside ?. Ancient Roman concept of citizenship
is more developed, and on this basis to form a complete system of the legal system. The citizens of ancient Rome is also a privileged class, the liberation of free people, slaves,
Latins and foreigners do not have citizenship. During this period have citizenship "citizens" of the number of extremely limited, it is based on huge, which have been taken for granted on the basis of inequality. On the privileges and levels of tolerance,
making ancient Greece and Rome "citizens" of the concept of the modern concept of citizenship and near there is a huge contrast. However, ancient Greece and Rome "citizens" of the concept still has a history of reasonable. On the one hand, it is
history's inevitable at that stage. As Engels said, "In the Greeks and Romans, where the inequality of people is much more than any other equal attention. If you think that the Greeks and barbarians, freemen and slaves, citizens and protected the people, the
Roman citizens and Rome's subjects (referring to a broad sense), can require an equal political status, then the eyes which in ancient times must be mad " (20 volumes, p. 52). More importantly, on the other hand, ancient Greece and Rome "citizens" of the
concept of the source of the modern concept of citizenship. "Citizen" concept has been made, it contains nearly its modern civilization, all the political and the rule of law "Gene" and in the past has shown more and more important in modern meaning.
Because "the citizen's intention is 'part of city people' or 'composition of city people'. Obviously, this is a blood relationship transcends beyond the autocratic monarchy with a universal legal qualification of the concept"  (158 pages). It gives a certain size as a
political community (or city) of membership, although such qualifications in ancient Greek and Roman times, under specific historical conditions, only limited universality -
it is a "limited" because In a country or society, not all natural persons are citizens;
that it has a "universal" because within the framework of the citizens, everyone is equal. Goods are natural equality faction, which relieved the early concept of citizenship of the "limited nature" to include all natural persons are included in the
scope of citizens. In the modern sense of the concept of citizenship accompanied by the rise of capitalism, arise.
Secondly, the "citizenship means that citizens have rights"  (158 pages). On the political state, the meaning of citizenship is to identify the individuals belong to citizens of that part of things that he should have given the legal share is to determine a reasonable and fair distribution of benefits, obligations commitment program. Citizenship implies the existence of a "first" on civil rights and obligations of the normative system, ie a state or political community in which the identity of its members to give citizenship, while also "gives individuals the responsibility and rights and obligations of and power constraints and freedom " (104 pages). Citizenship is a set of norms by this system to determined. In modern law, it would set normative system to the right as the center, the so-called rights-based. Therefore, the concept of citizenship
symbolizes the political state of civil rights of the individual configurations.
Third, the concept of citizenship means that citizens have the independent status of the individual. Civil society is a main principle of personal independence society. Citizens to be independent, is achieved through the citizenship, but citizenship is a civil rights and obligations of the norms defined. Legal rights of individual character and specific nature. These rights should be the rights of individual citizens, these obligations should
also be the obligation of individual citizens, that the rights and obligations only in relation to a specific, independent of individual citizens to have any real value. Citizens to leave the independent individual, the so-called civil rights meaningless. The rights of
natural persons constituting the country's independence unit, the concept of citizenship to citizens of individual autonomy and independence gained.
(3) It implies the citizen and the State (or the civil rights and public power) relations of
universal significance, that is, the bipolar confrontation between the state and citizens are based on assumptions, build a public power derived from the civil rights of citizens and belong to the theory of the premise.
Civil and political relations between countries of the universal significance, through the social contract theory of the early West, who can be fully displayed. Despite the social contract theory of some of the conclusions derived from Jeremy Bentham has been criticism of some of the thinkers as well as the negative ?, but its way of thinking
used to establish the value of its goal of increasing indicate a general sense that even the social contract On the critics who have never been denied.
First, the concept of citizenship assumes a new relationship between citizens and the
State model that reflected the pattern of confrontation between citizens and the state. And this is precisely the pattern of the bipolar confrontation between the logic of the premise of constitutional thought, and all the constitutional theory and the basis for system construction. Modern Western Enlightenment thinkers, it is by virtue of the concept of citizenship in order to build the social contract theory as the basis of a modern state and the constitutional system. In the early Middle Ages in Europe to form
such a concept: "rulers and ruled is essentially the relationship between the contractual relationship"  (91 pages). Based on this concept, "despite the Crown itself has a divine origin, but the particular monarch made the basis of royal power and the people of both sides of his contract"  (91 pages). 13th century St. Thomas while the assumption of state is a human instinct tends to result in civic society, but he "hinted that originated in the royal people, and to interpret it as a contract between the people"  (121 pages). Attributed the origin of the order of society among its members concluded a contract doctrine, it is commonplace in the 16th century  (199 pages). Social Contract for the origin of the state and society provides a new interpretation, that is, in a natural state of the individual in order to avoid "people always at war with its neighbors" (Hobbes language) or for each member of the "well-being and protection
of their property" (Locke's phrase), while the mutual consent alienate some natural right to form a society, the establishment of governing institutions to determine the ruler. According to social contract theory, governing institutions, rulers, though the product of voluntary negotiations between equal entities, but they once produced, that is independent of the individual citizen. Even in modern society, citizens vote only through a complex procedure, the ruling institutions and rulers to exert an indirect impact. Therefore, the social contract theory in giving equal status of the main contract also set up the main body of the citizens as a contract with the state's pattern of polar opposites. Citizen and the State of the polar opposites, the thinkers of the right of
citizens are weak against the enormous power of the political state have expressed great concern. Thus, restrictions on public power, protect the citizens right to become the constitutional demands of eternal value. Of course, this value in practice also has
relative. Constitutional practice, the key is to limit public power and protection of civil rights between the two to find a "critical point", to achieve a balance between the two. In a particular time, this balance is a sign of the Constitution. The development of a
new constitution or to modify the existing Constitution, which means between the two reached a new equilibrium.
Secondly, the concept of citizenship rights and powers assumed a new relationship, that is derived from the civil rights of public authority, public authority belongs to all
citizens of all. This not only reveals the citizens (rights) of the origin, but also reasonable and human rights protection and the people derived the principle of sovereignty. In modern society, and power comes from and subordinate to the rights
have become axioms. However, the general public power by the elected representatives on a regular basis and the authority exercised; citizens of the state power could be effectively monitored. In Western countries it's called the right of citizens to resist,
which means citizens can conduct illegal exercise of state power of effective resistance.
In sum, the concept of citizenship shaped out of the main body of civil society, independent personality. Concept of citizenship formation process, which is "the
movement from status to contract" process.
Second, civil society: between the citizen and the State
In the civil society and political state in what the relationship between the primacy of issues, the social contract there is a dispute between the theorists. To Locke as the representative of the classical natural law school of the liberal movement, strongly highlight the civil society for the political state priority. In his view, society exists prior
to the government; community, first originated from a natural state of individuals freed from the contract, and then followed by the newly formed society was to establish the government. Even though the Government can be regarded as paramount, but it is
and society, is actually a relationship of trust. If it violates their credit, the society could recover its freedom of action,  (14 pages). And to Hobbes, represented by the natural law of the state of modern classical movement, is more concerned about the
absolute nature of the country and the sacred, emphasizing the political state is higher than the civil society  (77 pages). Hegel's absolute spirit, with its eloquent confirmation of the political state of philosophy of civil society more than reasonable.
Mr. Deng Zhenglai on the above-mentioned two kinds of civil society and the
relationship between the political state were summed up as "Rock-style 'of civil society
prior to or outside the state' architecture" and "Hegel's 'state is higher than the social'
architecture" [14 ].
Whether it is "higher than the national civil society" or "civil society prior to or external to the state," have followed the logic of a common premise: the political state and civil society analysis and understanding of the separation as a starting point. A
technique called "Constitution of sociological" theory that "the constitution as a protection of freedom of adjustment of public power agencies and to private law organized the relationship between the sociology of economic and social logic of the
Constitution of the dual premise that the country's social division, that is, recognized the existence of the state and the social, political and economic separation, and on this basis, the formation of public sphere and private sectors of the two legislative ". In
fact, civil society and political state separation is not a start, there, and civil society, the formation of a "cocoon" of the process  (206 pages). The first period of capitalism, civil society and political state with a high degree of identity between the two there is no clear line between the political state is civil society, civil society is the political state. With the development of modern industry and commerce, civil society elements gradually gained its independence the significance of the existence and development, civil society began with the political state separation. In the civil society and political state of the separation process, the market economy played a key role, because the market economy has created the main body of civil society to expand the space for civil society to shape the ideology of civil society to shape the civil society of self-government
institutions for the promotion of the legal concepts of civil society and institutions to
I wrote an article argued that a constitutional balance, that is, "Constitutional politics is a kind of balancing mechanism and the resulting equilibrium state reached" . Restrict government power to safeguard civil rights is a constitutional balance of the
basic requirements. In fact, there also includes a political balance between state and civil society. A single, decentralized citizens can not afford to directly face the state, let alone compete with the state. One between citizens and between countries, voluntary
participation by citizens in order to self-government based on economic and social
spheres of activity become necessary. This area is civil society. Stephen L * Elgin noted that "the constitutional system of government theorists have claimed that it is
necessary in the public domain to draw a line between the private sphere," "this line will be set aside in the system of government legislation: People only play a role in public affairs, political power is not to intervene in the private sector " (157 pages).
Elgin is not only respected that view, but further held that "a constitutional regime Naishi this regime, of which the private sector are protected from violations of the exercise of political power"  (161, emphasis in original added). Here, the public
sphere that the political state, the private sector or civil society. In fact, not so much the constitutional requirement of civil society and the State must be separated, but rather that the constitutional civil society and the State itself is a result of differentiation,
"constitutional doctrine arises from the state and society sub-sector of the historical
process"  (250 pages ).
At this point, civil society and become a link between the citizen and political state of
the intermediate poles.
First of all, in terms of individual citizens, civil society is civil rights, freedom of protective barriers. Freedom of association is the foundation of civil society. Civil society through voluntary participation by citizens in a variety of association activities,
namely, for a variety of groups, organizations, members of the formation of self-
government, autonomous areas, as citizens of a preset (through self-regulation and
unofficial channels) discretionary space. As early as 1848, the European Revolution,
"association, the latter may be regarded as a system of civilized life"  (123 pages), and that "as social groups, associations requested that the self-autonomy, and sought to
build such a political community, in this community, the association should not be the
executive power to suppress " (132 pages). These associations are in fact groups of public power for the citizens of the safe haven in the shelter of citizens to avoid unlawful interference by public authority, if not completely avoid this intervention also allows such an intervention by the various association groups were changed may have indirect. At the same time, individual citizens also use their respective organizations, groups to fight other organizations, other groups, thus avoiding the isolation of the disadvantaged position of the individual. It is in this sense, civil society, the maintenance of the concept of civil rights and freedoms is crucial.
Secondly, in terms of the political state, civil society constitutes an important checks
and balances on state power. To safeguard their own independence and interests, civil society will inevitably require an effective state power constraints. The so-called
"effective constraint," Fundamentally, the main method is through the national
separation of powers and federalism (or local self-government) to achieve the "power
of restraining power." However, convincing the young Alexis de Tocqueville pointed out that the constraints of public power there is another important way, namely,
"social power constraints of state power." "To restrict state power, social power," the essence of civil society is to restrict state power. This constraint is reflected in the following aspects: (1) a single, distributed by the individual citizens of the various
groups in civil society, organizations accumulate into a powerful force, and no ruling bodies and the rulers can not be ignored. As a result, civil society, the exercise of public authority formed the pressure, while citizens take advantage of all and political
counterweight to the national source of strength. In addition, the views of individual citizens, advocates, but also through these groups, organizations were able to express political state, while the political state through groups, organizations for comments,
suggestions are usually given the necessary consideration. As some scholars have pointed out, "From the beginning of 17 century, the bourgeoisie through the club, salon, communications, publishing, news and other channels, in the social labor and
goods as the main content of the free trade society, to establish an autonomous individuals from the constitute the field of public communication, in this field, with a rational public discussion of color and public opinions on the exercise of state power,
there is a looming pressure ", and" the public sphere formed by the private sector, with the constraints or even opposed to the capacity of state power " (37 pages). It should be noted here called "public domain" essentially refers to the civil society,
rather than the political state within the meaning of this article. (2) civil society and political state of the boundary points for civil society to compete with the political state provides the normative form and the law. Civil society and the State is not a simple
opposition model. "State legislation, the provisions of the civil society in different areas of the external sector, with some autonomous domain; people in this society set the limits of national action"  (33-34 pages). "Political boundaries between state and
civil society is a constitutional division of functions"  (20 pages). The Constitution (of course, not just the constitution) by civil society and political state of their respective rights and obligations of the different provisions to achieve the mutual separation, constitutional, legal and traditional rights of the respective pairs of the two areas (and authority) the obligation (and responsibilities) of the different provisions, so that civil
society was through the law and its specific means to achieve to compete with the
political state of the canonical form. (3) civil society oversight of the state power. The separation of state and society does not mean that the state's laissez-faire society. In the
20th century, the country is assumed to be "night watchman" theory has been completely abandoned and replaced by the state of the active intervention of social doctrine. State power and the full involvement of civil society access to the theory and
legal support. An important feature of modern society is not civil society, the complete exclusion of the state power, but civil society to conduct effective supervision of the state power: the power of the non-exercise of the legitimate resistance against the
unreasonable exercise of such power is actively promoting the reform of the system. (4) autonomy is an important feature of civil society. " 'Social self' is the starting point of constitutional theory," . After all, civil society is independent of the political and
national civil society, it is a huge self-organizing capacity of the system, its generation,
organization and operation are also mainly in private form. Thus, civil society, rely mainly on internally generated spontaneous order can be maintained without the need
to establish arbitrary state power from the outside. "Autonomy", the key is, in accordance with its own rules to run, without political groups to intervene. This means that civil society in the political state or public authority exclusion and confrontation.
Once again, civil society is between the citizens and the political state equalizer. Of civil society in civic and political dialogue between the countries put up the channel, and to establish a stable order. Various demands of citizens, civil society advocates in the
accumulation, growth, and through civil society organizations to the unique expression of the political state. The political state of civil society through the conduct of citizens guide. Civil society has bred a civil dialogue with the political state the basic form, namely the law, the law further confirmed the relationship between citizens and the political state of the basic framework. Order is evidence of the law. Here, "is that we as citizens of the state and the main language of dialogue, the law is a typical
consideration to his personal situation, rather than those that they take into account the establishment of the abstract with their own things related to the general requirements"  ( 96). In the "Critique of Hegel's Philosophy of Law," Manuscripts, Marx criticized Hegel's state is the family and the premise and foundation of civil society, the family and civil society are interdependent and subordinate to the State's view that "In fact, the family and civil society is the country's premise, which is the real activities; and speculative thinking enough to turn it all upside-down head " (1
volume, 250-251 pages). In Marx's view, the law should be developed or approved by the state and rely on the coercive power to implement, a fact that belongs only to "external necessity" relationship, and the law of the "internal purposes" that the decisive factor, not countries, but that people social  (39 pages). Civil and political state of the "conflict", "entangled" in civil society is dissolved, its energy has been released. This "conflict", "entangled" in the debate on the final legislation, the political bickering and the election of the citizens of voting forms. The debate on the legislation,
the political bickering and the election of the citizens to vote, avoiding a direct confrontation on Civil and political state of violence that might occur, as well as the resulting destruction of order and the traditional fracture. Moreover, these debates,
arguments, voting has become a political and social development.
In short, on the basis of civil society, civic and political countries, the relationship between citizens and the citizens become the universal significance of the general relationship, "mainly due to individuals born in country areas and the acquisition of citizenship; it in principle, is an equal capacity of the non-specificity " (96 pages).
Third, private law: the basic rules of civil society
Civil society (or the private sector) and the political state (or public sphere) separation of the right led to two different forms, one proprietary, one public power; and thus to adjust the target formed a civil law countries, respectively unique legal system, the basic structure and relatively independent of the two legal department, that is, private and public law. Is generally believed that law is constitutional, administrative law and criminal law. Respect of private law, the current interpretation of the more authoritative it is, "Black's Law Dictionary" on Private Law ( "private law"), the expression: "the opposition of private law is a law term, it refers to the adjustment of the relationship between the public and the members of the public law, or the is the subject of rights and obligations attached to the main links are private individuals circumstances, the relevant definitions, legislation and the realization of rights of the law " (6 pages). The division of public and private law, in civil law countries have a very long history. But the common law countries, some jurists have also advocate the use of this method, such as Francis Bacon advocated the United Kingdom should have the division of public and private law; contemporary well-known American jurist
Bernard Schwartz (Bernard Schwartz), in its 1947 publication "American Legal
History" in the United States in different periods of law study is in accordance with the division of public and private law to be discussed separately. In fact, the delineation of the meaning of public and private law are increasingly showing universal.
(A) The division of public and private law meaning.
First of all, the public and private law division of the constitutional spirit of the breeds. Some scholars believe that the legal system is a macro issue, the legal sector is a micro-
problem, the division of public and private law legal system is the concept of hierarchy in which the elements of the legal system, which is based on the various departments commonality exists between the law of the re-sorting. "Only through the meso-analysis
of various departments in order to grasp the link between the law and the distinction between universality and individuality," "With public and private law are divided, you can come to analyze the new structure of modern law, new features, new concept" 
(91 pages). At this point, the division of public and private law is merely a recognition methods or tools for analyzing problems. In fact, the significance of division of public and private law is only this far. Division of public and private law in civil law countries, is made by the entire legal materials, a fundamental distinction. People not only in accordance with the division of public and private law legal system to understand the macro-and micro-legal departments; and since modern times, the lawyers also from the division of public and private law based on the logical structure and mode of thinking, and strengthen public and private law nature and the inherent logic of their own to build a public-private law distinction between the narrative paradigm and theoretical principles, and use it as the legal system to guide the reconstruction, innovation legal department. Of private law principle is "an agreement is the law" applicable to the principle of listening to Xu, any principle, the principle of autonomy of private law  (19 pages), its legal norms model, "where the law is not prohibited is allowed"  ( 91); public law principle that "the norms of public law shall not be by private agreement between the change"  (19 pages), its legal norms model, "where the law is not permitted is prohibited"  ( 91). Restrict the power to protect the constitutional rights of the spirit of it is to some extent from the division of public and private law tradition. The division of public and private law is not only the
constitutional spirit of the breeds, but also to the constitutional spirit of positivism. Because from the public and private law principles and legal norms of their respective modes of view, the goal is the division of public and private law: restrictions on public power, protect the individual rights of citizens.
Secondly, the constitutional division of public and private law provides a binary mode of thinking. Based on the political state and civil society sector, split between the stand-
off based on the "constitutional doctrine as a form of knowledge, the adoption of stand-
off thinking"  (252 pages). Constitutional government, "stand-off thinking" may
also be known as the binary mode of thinking, it actually comes from the traditional
division of public and private law. Division of the real function of public and private law as early as Roman times had been amply demonstrated, "which delineated a political state can not intervene in areas of civil society, scientists construct a complete Roman private law system, establish the authority of the natural rights, In essence, this is a civil society to build a solid defensive barrier of foreign infringement. It can be said at this time has initially established a stand-off style of thinking ". Only during this
period the restrictions on the political state or negative, while the political restrictions on countries to take an active, such as the implementation of the separation of powers,
federalism, and so is the modern representative only recently completed.
Again, public and private law into the Constitution is also of great significance. (1) Prior to the establishment of constitutional, public and private law, especially the delineation of the role of private law to some extent is equivalent to the constitution. Some scholars believe that "the Constitution in the absence of prior private law itself is constitutional, the constitution after the basic concepts of private law, the basic spirit
and the basic system and prototype became the basis of the Constitution and the adoption of the Constitution in the form of this basic law has been to sublimate was carried out in all other sectors of France " (106-107 pages). At this point, "private
law known as the real constitution"  (28 pages). While the French scholar, even has developed a written constitution, the French Civil Code, still seems to be "the most durable and the only real French Constitution," "French Civil Code indeed have
constitutional significance; Civil Code, the law is precisely the Government's restrictions on the functions of recognition and enforcement of private rights in the areas of law " (65 pages). (2) private law system, revealed by the freedom, equality
and rights of priority for the constitution to provide a material. "Roman private law principles and spirit of the late medieval cities in France for the improvement and development of modern constitutional law, providing a wealth of nutrients, such as constitutional law, freedom, equality and independence of the personality did not dare inspired by the Roman private law"  (115 pages). Public and private law divide even affected the content and structure of the Constitution. Basic civil rights and state
power are the two main parts of the Constitution, is working with the private and public law, correspond to the division. (3) public, private two systems by the constitution to provide the maximum basis. Constitution, both the content of public law, but also the content of private law. This means that the constitution is actually the public and a combination of private law; and it is precisely because there are constitutional, public, private only since then embarked on coordinated development. Therefore, I believe that the constitutional law course as the traditional view is debatable ?. Reposted elsewhere in the paper for free download http://
(B) the autonomy of private law is the underlying spirit of civil society.
Is generally believed that the state law and supported by public power, while the
public power easier to be protected. Therefore, we can say the public and private law private law divide lies in the center of gravity is also private. As some scholars have suggested, "the basis of private law is public law," "private value of the value of the command of public law,"  (90 pages). It is in this sense, some scholars have offered both in theory to establish the "private law as a whole of knowledge" ? system and in
practice to be "from the attending public law into private law attending"  (73 ) claims. Civil society, private autonomy is a basic principle. In Western countries, the abstract to say that private autonomy, refers to "the will of all the main according to his principle of self-formation of legal relationships"  (142 pages), is "to express
meaning through the creation or eliminate the legal consequences of such a possibility
the legal recognition of " (142 pages). French scholar Duguit the definition of the autonomy of private law is more classic, clear: "recognition of the individual in the field of private law on the rights and obligations of their own lives, for the most
reasonable 'legislator', without violating the provisions of national law, under the conditions , Chieh-te based on its meaning, freedom to create standards in order to rule themselves and other people's private relationship " (88 pages). Overall, Western
scholars more emphasis on the independent status of the main and individual freedom of the will. In China, scholars said, the autonomy of private law, it seems more than that of freedom of contract, such as the well-known scholar Mr. Liang Huixing believes
that the autonomy of private law is the subject of equality, "according to their own freedom to the meaning of equality through mutual consultation, to determine their rights and obligations between the ". The author believes that the autonomy of
private law as freedom of contract is not appropriate, the former meaning is more abundant, more far-reaching significance.
First, the autonomy of private law rights and freedoms of citizens to be fully realized. The principle of autonomy of private law in itself mean that freedom and rights.
"Private autonomy to individuals to provide a legally protected freedom of individuals to obtain their own decisions (Selbstbestimmung) possibility"  (143 pages). Taiwan scholars have Shixiong specifications with the concept of this shift was more profound
revelation. In his view, the relationship between China and France on the private rights norms There are two ways that the shift from the body of norms and standards, but the relationship between China and France have regulated private right of individual,
complex, privacy and other characteristics of inappropriate use of auto-regulatory
approach, so China and France had to Counting on pass standardized approach. The so-called transfer specification refers to "civil law shall be the specifications of the
original, in part through the principle of autonomy of private law in order to achieve the purposes of norms", "that is run by the relationship between personal self-
arrangement, the provisions of the Civil Code limited review of the arrangements made
by the close personal relationship, in order to determine its effectiveness " (19 pages). Can be seen that the power transfer standard is a public concession in the field of private rights, its essence is an extension of civil liberties and rights and
implementation. According to Berlin on the negative freedom ( "freedom from ... ...") and positive freedom ( "freedom to do ... ..."), the opinion, I believe that law mainly related to negative freedom, law, public and private law division of the pattern of focus
the maintenance of negative freedom of citizens; and private law, mainly related to positive freedom, private self-government philosophy that emphasizes positive freedom
of citizens to define and security. The individual citizen is concerned, in the public law that is already established form of government "is a foregone conclusion" of the situation, and the autonomy of private law as opposed to positive freedom has to be more realistic significance. Berlin, the so-called positive freedom, I showed great
concern, he felt that "positive freedom is the essence of control, control, positive liberty of life holding offensive, aggressive, interventionist attitude", its center of gravity In the "control, domination and should be"  (90 pages). Therefore, the "positive freedom causes the loss of freedom": "First, positive freedom from compulsory self-
development as a social force; second, the positive freedom from the rational be developed to be forced; third aspect of positive liberty From the development to a
reasonable and rational self-repression " (91 pages). With the rise of the welfare
state, modern Western scholars and politicians of Berlin is deeply felt concerns. From "cradle to grave" welfare care, is considered to interfere with a citizen's private space, deprived of civil liberties and rights. The author believes that the key issue is to be clear what the main body of positive liberty. Positive freedom for citizens held by the individual will never lead to coercion, coercion or repression, and positive liberty, once a political state or held by the authority, it may lead to civil rights and freedoms of the individual defects. Although a number of welfare policy has been a lot of criticism, but the welfare state established by the original values and goals are still a reasonable, even with more and more important, therefore, the remaining question is how political state holdings " positive freedom "designate a reasonable limit. In the field of Civil and