Preliminary Analysis On The Theory Of Societal Constitution

The traditional constitution is based on the binary structure between the national field and the social field,and it aims at restricting the expansion of the political system to guarantee the autonomy of the social sphere and the freedom of the social action.With the change of social order,the relations between the society and the country have undergone profound changes.The functional differentiation of the social system has led to the development of more and more social subsystems outside the political system.Due to the lack of restraint mechanism which is similar to that of political system,these social subsystems with inherently divergent tendencies may pose a significant threat to the protection of basic rights.Traditional constitutional Jurisprudence with the perspective of political power cannot effectively respond to changes in social order.On the contrary,the gap between theory and reality is growing,so it requires us to pull the perspective from the national field back to the social field.The purpose of constitution in functional differentiation era is not only to control the state power to protect human rights,the self-expansion trend and the process of constitutionalization of the social subsystem are more likely to be overlooked and quite worthy of attention.The social risks of such expansion have become a difficult problem for modern society to face.How to constrain the excessive expansion of functional systems and develop a reflexive structure similar to the political system to achieve self-restriction?It has becomes an important constitutional problem in the age of functional differentiation.On the basis of the research framework of the sectorial constitution,this paper absorbs the social system theory,social constitutionalism and so on,tries to go beyond the boundary of the formal constitution,so as to further expand the connotation of the traditional political constitution and response to the new constitutional issue brought about by the expansion of the subsystems.This paper mainly includes four parts:The first part is the interpretation of societal constitution and its main characteristics.The concept of social constitution is not a new theory,but because of the differences in research perspective,problem consciousness,academic interest and so on,different scholars interpret societal constitutions at different levels,all these make the study of societal constitution inevitably fall into a chaos situation.In order to make a panoramic view of the societal constitution,we should first make a clear definition of societal constitution.Therefore,this article combs four main existing concepts of societal constitutions,and extract the basic characteristics of the societal constitution.This part mainly answers the question of what the societal constitution is.The second part mainly discusses the existing social order which is regarded as the logical starting point of societal constitution.The traditional constitution mainly focuses on the constitutional text,while societal constitution focuses on the existing social order which is related to constitutional norm.The functional differentiation brings the expansion of the social subsystem and the extension of the organizational areas,these new trends have spawned new constitutional problems.Therefore,it requires a re-interpretation of the structure and the function of constitution.This part first studies the changes of the social order and the constitutional significance of that,and then points out the key issues of constitution under three different stages.Secondly,taking the expansion of economic system as an example,this part analyzes two social trends in the era of functional differentiation and the resulting constitutional problems.This part mainly answers the question of what problems the societal constitution want to solve.The third part mainly discusses the basic rights which is the fundamental structure of societal constitution.As with the traditional constitution,the societal constitution still takes the basic right as the core and the foundation of the constitutional system.However,the nature,function,validity and protecting methods of the basic rights are different depending on the order of the social sub-domain.The basic rights are redefined in the context of the societal constitution,and its validity leaps out of the sphere of the political constitution,which spreads into various areas of the social system and thus exists as a link between the legal system and the social system.As the fundamental structure of the societal constitution,the main function of basic rights is to maintain the functional division of the social system and to prevent the infringement brought by the irrational expansion.Furthermore,it can also provide an institutional guarantee to cope with the changes of order and to solve the new constitutional problems.The fourth part focuses on the basic national policies that are widely found in national constitutions.These terms are ignored because of their abstraction,weakness,political nature and other characteristics.However,such terms have a unique Status and advantages in the framework of the societal constitution.The basic rights terms protect civil rights from the micro level,while the basic national policies provide institutional protection from the macro level,both of them lay a foundation for the function of the societal constitution.Therefore,the basic national policies should be regarded as the third structure of the constitution and be taken seriously.The third and fourth parts together answer the question of how the societal constitution solves the problems brought about by the changes of the social order.