Contract Theory In Philosophy Of Public Law

This thesis chooses the basic knowledge and methods on contractual theory, and the basic theory and system on philosophy of public law as researching object. By coordinating contractual knowledge and clearing up many contractual viewpoints, the author tries to reconstruct the system on philosophy of public law and public institutions, and contract is as the core category and methodology. This thesis first illuminates the necessity and purpose on constructing the system on philosophy of public law, and simply describes its theory basis: political philosophy, public philosophy, social contract theory, and consent theory. Contract is the jumping-off point of constructing philosophy of public law. Human right, public power and contract are the central categories. They not only have enriched social relational meaning but also have logic orientation. Among the three categories, human right is a purposing and subjecting category, public power is a instrumental and objective category, contract is a medi-category. Philosophy of public law develops itself by the three categories. As a methodology and instrument, contract theory can solve the contradiction between coexistence and individual integrities, justice and efficacy, autonomy and heteronomy in social cooperation. This thesis has six chapters. Chapter One: Contract as a Pillar Category of Philosophy of Public. In ch.1.,the author uses the firsthand materials to analyze the linguistic "contract", enumerate contractual vocabulary map. By examining the shift in terminology, this thesis describes the histories and mutual relations of the three major English languages: covenant, compact and contract. Contract usually be divided into legal contract and life contract, they are used in social communicational sense. In ch.1.,the author introduce Macneil, Selznick and Hugh Collin show to understand the meaning of contract in exchange sense. Political philosophers and scientists think political association as a contractual relation; political exchange theory actually is a contractual theory. Understanding the meaning of contract in exchanging sense, the obstacle among economics, politics, private law and public law will be solved. In ch.1.,the author also anatomized the Chinese legal culture on Meng and Yue. They have comparability with social contract and governmental contract. So we must pay great attention to local knowledge of philosophy of public law. The author also researched the condition from contract category to contractual methodology. Chapter Two: Contract Theory's Historical Venation and Themes In ch.2.,the author analyzed and generalized the themes, knowledge structure and contractarian pedigrees of contract theory in different times. Hobbes's contractarianism is a paradigm shift. Hobbes achieved the equivalent of a Copernican revolution in social and political thought. Contract theory is a revolution to Aristotelian "polis". From ancient Greece to the contemporary era, contract theory go through four historical stages: (1)early contract theory of justice—orientation;(2)governmental contract theory on legitimacy of public power;(3)social contract theory on man-made state;(4)the new contract theory of rational choice —orientation. Anti-contractarians arguments form an integral part of any account of contractarian thinking. Anti-contractarianism includes patriarchalism, feminism, utilitarianism and communitarianism. Chapter Three: The Basis and Types of Contract Theory In ch.3.,the author firstly reviewed Chinese scholars how to understand the link between social contract and common contract. Social contract is the outcome of public law, it have less connect with civil contract and market-oriented economy. Chinese scholars maybe misread the evolutionary path of communitarianism . The social roots of contract theory appear diversity. This thesis anatomized contract stories in political anthropology, religious covenants and ordinary contracts in public life. They play an important role in social theory and practice. At last, the author introduced the new development of modern contract theory in 21 century. It has been more recently recognized that there are two distinct strains of social contract thought, which now typically go by the names "contractarianism"and "contractualism."Chapter Four: Contract Methodology ant it's Functions In ch.4.,contract theory firstly was divided into two parts: knowledge and methodology. The contract methodology from Hobbes to Rawls is a method of logic reasoning. They have internal connect with natural science methodology. The logic reasoning schema of contract methodology include hypothetical scenario, solutions of the problems and the designs of institutions. Contractual methodology is not a experimental reasoning but logic reasoning, it is Methodological Individualism and subjectivism. The subjects of values of contract methodology focus on subjectivity, equality, justice, reciprocity and efficiency. Contract also is a metaphor and device, it can analyze and explain social communicating phenomenon; it can construct collective life how to be justice and efficiency, and avoid anarchism and coercionism. Chapter Five: the Institutionalization to Contractual idea After Maine's famous dictum that the progress of the law has been from status to contract, it is an important proposition and formula that human association is from contract to institution. What is the puzzle of contract disappearing? The progress of organization, intervention of public power translate contract into institution. Convention and constitution is a sort of contract. At a democratic angle, procedure and contract have a common sense. The contractual expressions in public law are contractual ideas and institutions, such as dialogue, negotiation, compromise and autonomy. They belong to the pedigree of contract concepts. Public choice theory is a branch of contract theory. It can solve the common understanding problem of opinion in pluralistic society. So contract theory have a special function under spanning the gorge of institution change. Chapter Six: Contractual Choice on the Chinese Public Institution in Future In ch.6.,the key theme is how to use contract methodology to analyze Chinese problem. In one hundred years, Chinese modernization has come up against many different prisoner's dilemmas or social dilemmas, such as how to achieve a justicial and inefficient cooperation, how to balance coexistence and individual integrities in social cooperation. They are important questions of social theory and institution. The author used the knowledge and methodology of contract theory and game theory to anatomize Chinese problems. This thesis constructed two models: "Revolutionary Dilemma"(Sun Zhongshan) and "Monks Shouldering Water"(Bai Yang). The author pointed out China must make a reasonable choice among anarchism, coercion and contractual governance.