Human Rights Jurisprudence in the New Era
ZHANG Wenxian*
This year marks the 70th anniversary of the founding of the People’s Republic of China. In the past 70 years, especially since the launch of reform and opening-up, under the guidance of the ruling philosophy of “serving the people,” “people-oriented” and “people-centered”, great achievements have been made in China’s economic construction and material civilization, political construction and political civilization, cultural construction and spiritual civilization, social construction and social civilization, ecological construction and civilization. These achievements, in the final analysis, are “achievements in human rights development.” Over the past 70 years, along with the historical changes of the “new era” and “new period,” the Chinese nation has experienced “the great leap from being the sick man of East Asia to standing up,” “the great leap from standing up to becoming rich” and “the great leap from becoming rich to becoming strong.”1 These three historical changes and three great leaps have brought fundamental and profound changes to China’s human rights situation. The Chinese people are liberated and have become masters of the country. Clothing and shelter are no longer a problem through joint contributions and sharing. The country is on the way to realizing its national rejuvenation as it builds a comprehensive well-off society. This change tells the story of China’s human rights development path and the glorious achievements it has made. The extraordinary experience of the past 70 years proves that only socialism can save China and enable all Chinese people to obtain basic human rights. Only socialism with Chinese characteristics can develop China and enable the Chinese people to share the human right to development. Only by upholding and developing socialism with Chinese characteristics can we achieve the great rejuve-nation of the Chinese nation and enable the Chinese people to realize comprehensive human rights.
Today, it is time for us to review the 70 years of the New China’s human rights path, summarize the experience of human rights development, upgrade China’s human rights theories and strengthen our voice in this field. This will undoubtedly greatly enhance our confidence in our path, theory, system and practice of human rights. At the same time, it should be noted that, more importantly, based on the existing achievements, experience and theories regarding human rights, we should continue to promote innovation in the theory, system, practice and culture of human rights, and provide more scientific and substantial legal support for making new breakthroughs, development and leaps in the cause of human rights with Chinese characteristics for a new era. Based on this understanding, this paper takes “human rights jurisprudence in the new era” as the theme and seven theoretical propositions as the main line of argument.
I. Marxism is the Greatest Banner of Human Rights in Human History
General Secretary Xi Jinping has pointed out that in the history of human thought, no other theory has exerted such a wide and profound influence on mankind as Marxism.”2 This judgment is fully applicable to the world history of thought on human rights. In the works of Marx and Engels, there are many classic human rights propositions and discussions. Marx reiterated many times that human rights are the most general form of rights, and that the sufferings of the proletariat “are not special injustice, but universal injustice, which can no longer appeal to historical rights, but can only appeal to human rights.”3 Marx stated more clearly in his draft of the Provisional Rules of the International Workingmen’s Association (First International) that “it is the duty of a man to demand human rights and civil rights, not only for himself, but for everyone who performs his duties.”4 Marx also advocated the use of the law and other means to affirm and protect human rights. When he was a revolutionary democrat, he strongly argued that the legal code was “the bible for the people’s freedom.”5 These human rights thoughts and propositions of Marx were inherited and developed by later Marxists and put into practice by the proletariat in the fight for human rights. The reason why Marxism holds high the banner of human rights and fights for human rights is because: the realization of human rights is the inevitable requirement of communist theory and ideals. Marxist theory and the ideals of communism are to build a society of true freedom, equality, fraternity and happiness. In their works such as the Manifesto of the Communist Party and Critique of the Gotha Program, Marx and Engels summarized the ideals of the communist movement as the elimination of private ownership, class opposition, class oppression and the conditions for the existence of class itself, and the replacement of the old bourgeois society with a new kind of society.
They envisioned that “in the new society, the free development of each individual is the condition for the free development of all.”6 There, wealth springs up like a fountain, and the needs of everyone who does his or her best can be fully met. There, the world of man, his relations, and his destiny are returned to man himself, realizing “the true possession of man’s essence through man and for man.”7 Second, human rights are one of the banners and weapons of the proletarian revolution. Although human rights with freedom, equality, fraternity and democracy are the main content of democracy and the rule of law were first proposed by the bourgeoisie and stipulated in the form of constitutions and laws, they are not exclusive to the bourgeoisie only. In the bourgeois revolution, the proletariat, together with the bourgeoisie, fought bravely to abolish the privileges of the feudal landlords and fought for universal human rights. On the banner of human rights there is the blood of the proletariat. When the bourgeoisie established their political power, however, the proletariat soon found that the ideal of human rights for which they had shed their blood had not come true. So, they raised the banner of human rights again and began to ask the bourgeoisie for human rights.
As Engels said, human rights, the weapon used by the bourgeoisie to overthrow the feudal system, was now aimed at the bourgeoisie itself.8 The human rights claim “works through Rousseau as a theory... And it is still a great promoter of socialist movements in almost all countries today.” 9 These statements of human rights by Marx and Engels laid a profound foundation for the human rights jurisprudence of the socialist revolution and the communist movement and are still shining with the light of truth and the power of human rights jurisprudence.
In the new era of socialism with Chinese characteristics, Comrade Xi Jinping has inherited and developed Marxist human rights jurisprudence, formed Xi Jinping human rights jurisprudence with distinct characteristics for our times and strong humanistic care, made a historic leap forward in adapting Marxist theories of human rights to Chinese and contemporary conditions, and guided the cause of socialist human rights with Chinese characteristics to develop to a new level and create a new situation.
II. The Practice Basis of Human Rights Jurisprudence in the New Era is the Profound Change of the Principal Contradictions in Society
The experience of the 70 years since the founding of the New China tells us that the Communist Party of China’s theories, path, principles and policies, the Constitution and laws of China, and the destiny of the Party, the country and the people all depend on how we correctly judge the major contradictions in the Chinese society. China’s human rights path also tells us that China’s human rights theory, voice, system and practice also mainly depend on the ruling party’s judgment on the major social contradictions in a certain historical stage. According to the viewpoint of Marxist philosophy, the main contradiction of a society is the intensive expression of the law of movement of the basic contradictions of the society at a certain stage and within a certain scope and is the most basic national condition. Accurately grasping the principal social contradiction is the premise of and key to human rights development.
Since the founding of the People’s Republic of China, the Central Committee of the Communist Party of China has made several major judgments on the principal contradictions in Chinese society, which left us with both valuable experience and painful lessons. From 1949 to 1956, after the founding of the People’s Republic of China, the principal contradictions in the Chinese society were those between the working class and the capitalist class, the peasant class and the landlord class, and the socialist society and the semi-feudal and semi-colonial society. This situation can be summed up as “class contradiction is the principal contradiction in society.” At that time, the task of the CPC and the people was to consolidate the new state power of the people’s democratic dictatorship, formulate the Constitution and other basic laws, and ensure that the people were the masters of the country through a rapid and violent class struggle to suppress the counter-revolutionary forces, advance land reform, and carry out the movement against the “three evils” of corruption, waste and bureaucracy and the movement against “five evils” of the struggle against capitalist bribery of government workers, tax evasion, theft of state property, cheating on government contracts, and stealing economic information for private industrial and commercial enterprises.
By 1956, changes had taken place creating new contradictions in the social and historical conditions. The “One Industrialization and Three Transformations (socialist industrialization and the socialist transformation of agriculture, the handicraft industry, and capitalist industry and commerce)” had basically been completed. The socialist system had been basically established. The socialist Constitution had been formulated. And the framework for the governance of the socialist republic had taken shape. The Resolution on the Report to the Eighth CPC National Congress adapted to the new social situation, and the scientific judgment was made that “the contradiction between the proletariat and the bourgeoisie had been basically solved, the history of the class exploitation system that lasted for thousands of years had basically ended, and the socialist social system had been basically established in our China. The Resolution also clearly pointed out that “the principal contradiction in China is already the contradiction between the people’s demand for the establishment of an advanced industrial country and the reality of a backward agricultural country, and that between the people’s need for rapid economic and cultural development and the fact that the current economy and culture cannot meet the needs of the people.” The essence of these contradictions, when our socialist system had been established, “was the contradiction between the advanced socialist system and the backward social productive forces.” Therefore, the Resolution on the Report to the Eighth CPC National Congress emphasized that “the main task for the Party and all the people at present is to concentrate our efforts on solving this contradiction and transforming China from a backward agricultural country to an advanced industrial country as soon as possible. This is a daunting task. We must adopt correct policies in economic, political and cultural fields, unite with all possible forces at home and abroad, and take advantage of all favorable conditions to accomplish this great task.” 10 To accomplish this task, the Resolution called for accelerated efforts to get rid of the chronic weakness and backwardness of being economically poor and culturally blank, solve the problem of adequate food and clothing for hundreds of millions of people, and ensure their right to life The judgment of the Eighth CPC National Congress on the major contradiction and historical task of Chinese society after the completion of the socialist transformation has been proved correct by history and practice. But not long after that, by 1962, the CPC Central Committee’s judgment on the principal contradiction in society had changed, band it believed, at that time, the main contradiction in our society was still the struggle between the proletariat and the bourgeoisie, and the contest between the socialist path and the capitalist path. This led to the wrong line of “class struggle as the key link,” which further led to frequent and intense political and social movements, resulting in ten years of civil unrest during the “cultural revolution” (1966-1976), the decline of the legal system and weakness in upholding human rights.
During the period 1978 to 1980, the CPC, after a series of profound reflections and in-depth studies, made the major strategic decision at the Third Plenary Session of the Eleventh CPC National Congress in December 1978, to shift the focus of the Party’s work to socialist modernization, stressing the need to reform the production relations and superstructure that were not in line with the rapid development of the productive forces.11 On June 27, 1981, the Sixth Plenary Session of the Eleventh CPC National Congress adopted the Resolution on Several Historical Issues of the Party Since the Founding of the People’s Republic of China, which reaffirmed and developed the eight major conclusions on the principal contradictions in Chinese society, stressing that “the principal contradiction to be solved in our country is the contradiction between the growing material and cultural needs of the people and backward social production.”12 This important judgment embodied the ruling idea of the CPC at that time, which focused on economic construction and improving people’s economic and cultural life. Under the guidance of this scientific judgment and the theory and strategy of building a well-off society put forward by Deng Xiaoping, the claim and theory that the right to life and development is the priority human rights for the Chinese people started the great historical process of China’s reform and opening up. In this way, China ushered in 40 years of reform and opening up, sustained and rapid economic and social development, made great achievements in increasing people’s sense of gain, and achieved peace, stability and harmony in the Chinese society for 40 years.
Since the 18th CPC National Congress in 2012, the CPC Central Committee with Comrade Xi Jinping at its core has actively explored how to uphold and develop socialism with Chinese characteristics in the new era, and, from the analysis of the principal social contradiction, put forward the major political judgment and scientific assertion about the profound changes of the social principal contradiction in the new era. At the 19th CPC National Congress, Comrade Xi Jinping solemnly declared that “with long-term hard work, socialism with Chinese characteristics has crossed the threshold into a new era. This is a new historic juncture in China’s development.”13 The major symbol and basic reference for the judgment that socialism with Chinese characteristics has entered a new era is that “the principal contradiction facing Chinese society has evolved. What we now face is the contradiction between unbalanced and inadequate development and the people’s growing needs for a better life.”14 This is a very important judgment, and a highly scientific one. Thus, the “people-centered” ruling concept has been established. The CPC Central Committee’s major political and scientific judgment on the principal contradiction in the new era is a positive response of the CPC to the people’s needs for a better life, and the starting point and criterion for all the work of the Party and the country in the new era. President Xi Jinping pointed out that “the evolution of the principal contradiction facing Chinese society represents a historic shift that affects the whole landscape and that creates many new demands for the work of the Party and the country.”15 This judgment has a fundamental and decisive guiding significance for the development of China’s human rights cause in the new era, and lays a new theoretical basis for the progress of its human rights cause.
Since the launch of reform and opening-up, China’s human rights theory, discourse, system and practice have been mainly based on the judgment that “the main contradiction in our society is the contradiction between the growing material and cultural needs of the people and backward social production.” According to this judgment, the development of the cause of human rights mainly aimed at solving the problems of adequate food, clothing, housing, travel and material well-being for the people, and ensuring people’s access to childcare, education, employment, medical services, elderly care, housing, and social assistance. China has met the basic needs of over a billion people, has basically made it possible for people to live decent lives, and will soon bring the building of a moderately prosperous society to a successful completion. The needs that have to be met to enable people to live better lives are increasingly broad. Not only have people’s material and cultural needs grown; their demands for democracy, rule of law, fairness and justice, security, and a better environment are increasing. The new and incremental needs for a better life of the people are human rights needs. To respond to the people’s demands for democracy, the rule of law, fairness, justice, security, dignity, the environment and development is to respond to the people’s high-standard demands for human rights. In the face of the people’s growing, higher-standard and diversified demands for human rights, we must discover and establish new human rights jurisprudence and provide scientific and effective legal support for human rights development and progress in the cause of human rights in the new era. Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era provides scientific theoretical guidance for the formation of human rights jurisprudence for the new era.
III. The Development of Human Rights in the New Era Should Focus on Resolving the Contradiction between the Growing Human Rights Demands of the People and the Insufficient and Unbalanced Development of Human Rights
The phrase “unbalanced and inadequate development” in the statement of the major social contradiction in the new era is in contrast to the people’s growing needs for a better life, especially their human rights needs for democracy, the rule of law, fairness, justice, security, dignity, the environment and development. The growing demand for new human rights is the concentrated reflection of the profound changes in the major contradictions of society in the new era, and the inevitable reflection of the new needs and expectations of the people for a better life. At present, the human rights system is not perfect, with insufficient attention being given to human rights and human rights theories are not in place, lagging behind the cause of human rights led by the CPC. Some human rights discourse even stays in the old era of the social contract theory and natural human rights theory, and still regards the bourgeois theory of human rights as the only human rights theory, and even interprets China’s human rights practice with some Western human rights theories. Human rights practice is inadequate, and serious violations of human rights occur from time to time in law enforcement and judicial activities. The unjustified cases that have been discovered are still poorly rectified. The realization of human rights among different classes, groups and individuals is unbalanced. Unfair distribution and the gap between the rich and the poor are still plaguing the balanced development of human rights. Different regions, villages and urban areas still cannot share public services on an equal footing. In particular, people living in former revolutionary base areas, areas inhabited by minority nationalities, border areas and poor areas cannot enjoy the same high-quality public services as residents in developed areas and central cities. The problem of unbalanced and insufficient economic and social development in China is most prominent in these regions and among these groups. Therefore, we need to pay special attention to unfair rules, unfair rights, unfair opportunities and unbalanced interests caused by unbalanced and inadequate development, so as to truly realize joint contribution, co-governance and shared benefits, and ensure that the fruits of development benefit all the people equally.
We should not only recognize the constraints of inadequate and unbalanced eco-nomic and social development on human rights, but also analyze the phenomenon of unbalanced and inadequate development in terms of democracy, the rule of law, fairness, justice, security, dignity, environment and development. We should follow the new development concept, promote political, economic, cultural, social and ecological progress in a coordinated way, and implement the strategy of “Four Comprehensives,” which means to build a moderately prosperous society, deepen reform, govern the nation according to law, and strictly govern the Party on a deeply comprehensive level. While maintaining scientific development of the economy, we should pay more attention to political development and progress, social harmony and stability, improvement of the ecological environment, and address such prominent problems as unbalanced development and uneven sharing. Only in this way can we fully grasp the key points, difficulties and focus of the development of political, economic, cultural, social and ecological fields in the new era. In the new era of socialism with Chinese characteristics, if we fail to meet the people’s needs for a better life and deviate from the new requirements and standards for human rights, it will be impossible for us to adhere to the people-centered concept of development and focus on the prominent problems of unbalanced and inadequate development. The development of the new era cannot follow the previous development model. Development in the new era of socialism with Chinese characteristics must be scientific and unswervingly guided by the vision of innovative, coordinated, green, open and shared development. We must comprehensively promote the five major construction projects and the Five Civilizations. We must strive for the aim of all-round development and the full freedom of humans proposed by Marx and Engels in the Communist Party Manifesto.
IV. The Right to a Better Life as a Leading New Generation Human Right
According to the academic circle, there have been three historic transformations of human rights in the world: “the first-generation human rights,” “the second-generation human rights” and “the third-generation human rights.” At present, a new generation of human rights is coming, which is represented by “the right to a better life” or “the right to a happy life.” Different generations of human rights do not cover each other up, nor do they deny each other. The emergence of the second-generation human rights does not mean the elimination of the first-generation ones. The emergence of the third-generation human rights does not mean the end of the first-and second-generation human rights. Of course, the fourth-generation human rights will not put an end to the third-generation ones. The four generations of human rights present a process of progress, expansion, transformation and upgrading. Together, they constitute human rights system in the new era.
General Secretary Xi Jinping has pointed out that “China’s development achievements can be attributed to the fact that hundreds of millions of Chinese people have been living a better life,” and that “the people’s happiness is the biggest human right.”16 Among the fourth-generation human rights, the right to a better life (the right to a happy life) is a dominant and general concept, while security human rights, environmental human rights and digital human rights constitute the main symbols of human rights system in the new era. A good life is something we must strive for. A good life should also be guaranteed by the system. What systems should be designed to promote and protect people’s pursuit of a better life (happy life)? No doubt, we should transform the people’s demand for a better life (happy life) into their right, and further define it as a “basic human rights” of the people. We should realize the “fundamental right to a better life” through the human rights system. In today’s world, the standard measure of social civilization and progress is whether a social system can promote and guarantee people’s needs for a better life (happy life). The ultimate measure of whether a political party is progressive and advanced is whether it takes the realization of the people’s needs for a better life as its fundamental value and governing philosophy, and whether it takes the promotion and protection of the people’s right to a better life as its sacred obligation and responsibility. Over the years, what Comrade Xi Jinping has been thinking and doing can be summed up in a brief sentence: to deliver a better life to the people.
People’s needs and aspirations for a better life are changing and constantly enriched and improved. What kind of life is a good life in the new era? Answering this question is crucial to the innovation of human rights theory and the improvement of human rights system. According to the report to the 19th National Congress of the CPC, the basic standards for people to live a good life are “ensuring people’s access to childcare, education, employment, medical services, elderly care, housing, and social assistance.” At the same time, higher standards include freedom, dignity, democracy, rule of law, equality, justice, security, environment and development. The people’s needs for a better life will inevitably be translated into their human rights demands, thus promoting the development of human rights. People’s demands for a better life in the new era call for the fourth generation of human rights, which are mainly embodied in the needs for security rights (overall security rights), environmental rights (ecological and environmental rights) and digital rights.
Security human rights. As the fourth generation of human rights, security human rights have their own objective inevitability and realistic urgency. Since the beginning of the 21st century, citizens’ personal security, personality security, property security, information security, housing security, private life security, public life security, national life security, production safety, traffic safety and food and drug safety have become more and more prominent issues. Institutional security, territorial security, political security, political power security, economic security and resource security on which the people rely for survival and development are being intruded on and challenged as never before. Religious extremism, separatist forces, terrorist forces, criminal forces and various hostile forces have posed serious harm and threat to the people’s right to a safe life. Under such circumstances, people’s concern for security has escalated, and the need for security has become increasingly apparent. It is urgent to respect, protect and guarantee security as a basic human right. Here the “security human rights” are not the traditional and narrow individual personal and property security, but the right to security within an overall concept of security. They are rich in their connotations including the right to life, health, property, personality, work safety (occupational safety), public life security, and national system security.
Environmental human rights. Starting with a debate in the United States in 1960 about what constitutes a constitutional basis for citizens to live in a good environment, the concept of environmental rights has become prominent. In the beginning, environmental elements were regarded as common property, by which citizens had the right to claim a good environment. The Tokyo Declaration of 1970 reads, “we request that everyone has the right to an environment in which elements such as health and welfare are protected, and the right that the legacy is passed from one generation to another should be natural resources rich in natural beauty. As basic human rights, these should be defined in the legal system.” The United Nations Declaration on the Human Environment in 1972 stipulates that “Humans have the fundamental right to freedom, equality and adequate conditions for life, in an environment of a quality that permits a life of dignity and well-being, and each individual bears a solemn responsibility to protect and improve the environment for present and future generations.” The United Nations Conference on the Environment and Development in 1992 formally recognized environmental rights as a basic human right, and pointed out that the general definition of environmental rights is the right to enjoy a good environment and exercise control over it, which includes: (1) ensuring a healthy, comfortable and safe environment; (2) what the present generation passes on to future generations are the elements of natural resources that are not polluted or damaged; (3) contemporary generations have a solemn obligation to protect resources and improve the environment, including preventing environmental damage, removing harm, restoring the environment and taking good measures to prevent environmental damage.
Since the 1980s, China has enacted more than 20 laws on environmental and resource protection. Among them, the formulation and revision of the Environmental Protection Law and the formulation of the Law on the Prevention and Control of Air, Water and Soil Pollution are of great significance. At the same time, the State Council of China has formulated nearly 100 administrative regulations on environmental and resource protection, and local people’s congresses and local people’s governments have formulated a large number of local regulations and government rules that are compatible with laws and administrative regulations in light of the specific conditions of their regions. China has also concluded and participated in dozens of international treaties, conventions and agreements related to environmental issues. It can be said that China has basically formed a relatively complete legal system of environmental and resource protection with the Constitution as the core, the Environmental Protection Law as the basic law, and the laws and regulations related to environmental and resource protection as the main contents.
However, although these laws and regulations contain the ideas of environmental rights, there is no universal definition of environmental rights, and the concept of environmental rights has not been recognized by the Constitution and laws. When the Environmental Protection Law was amended a few years ago, many people suggested including environmental rights in the law, but it was not adopted. Since the 18th National Congress of the CPC, “green development” has been clearly included in the “new development concepts” proposed by Xi Jinping, general secretary of the CPC Central Committee. The report of the 19th CPC National Congress, the amendment to the Party Constitution and the fifth amendment to the Constitution all include the concepts and ideas of “green development,” “ecological civilization” and “beautiful China.” The report of the 19th CPC National Congress further identifies “the environment” as a core element of a better life for the people. The fifth amendment to the Constitution provides for “building a strong, prosperous, democratic, culturally advanced, harmonious and beautiful modern socialist country.” These have laid scientific theoretical foundation and institutional conditions for environmental rights. On this basis, we should take the people’s right to live and develop in a healthy, comfortable and beautiful environment as an emerging right, and make it both legal and institutionalized. I believe that not only should people enjoy environmental rights, but also that environmental rights should be basic human rights.
Digital human rights. The world is ushering in a digital era. Digital technologies represented by the internet, big data, cloud computing and artificial intelligence have become the symbol of this era. China is also stepping up to become a “digital China.” Digital technology is deeply integrated with social production and people’s life. The extensive use of digital technology has become an indispensable part of people’s life, survival and development. Against this background and social context, “digital human rights” becomes prominent. In my speech at the academic seminar on “the jurisprudence of intellectual property rights and related rights,” I briefly demonstrated the concept of “digital human rights” and related propositions, hoping to draw people’s attention to “digital human rights.” In my opinion, the concept of “digital human rights” and related propositions have solid legal basis, practical needs and great significance.
First, in China today, the people’s demands for a better life are mainly reflected in their need for digital technology. People’s digital life has become an important part of their real life. Human existence and life are highly dependent on digital technology. An increasing number of ordinary people use the internet to produce and live, buy and sell, make friends, communicate emotions, express themselves, and learn and entertain themselves. This has created the digital way of human existence in cyberspace. According to the 43rd Statistical Report on the Development of the Internet in China, by December 2018, the number of internet users in China had reached 829 million, among which 817 million were mobile users.17 The internet, the internet of things (IoT), instant messaging, social networking, mobile payments, the sharing economy and so on have become part of daily life. And people are increasingly dependent on digital technology. Against this background, it is necessary, urgent and natural to regard the mastery and application of digital technology as a “right” and attribute it to a “human right,” summarize the concept of “digital human rights,” and popularize this concept. In fact, people have long felt deeply, and gradually realized rationally, that “there is no human rights if there is no digital rights.” To put forward digital human rights, we need to declare that digital technology must be people-oriented, take human rights and dignity as the highest purpose, and take human rights as the fundamental demarcation scale and standard for evaluation. At the same time, the system should emphasize the responsibility of science and technology enterprises to respect and protect human rights, and the obligation of the government to respect, protect and realize digital human rights. On the one hand, such responsibility and obligation are reflected in the respect and protection of citizens or internet users’ rights and freedom such as privacy, data, expression and personal dignity in their digital life. On the other hand, such responsibilities and obligations also mean providing internet infrastructure and other digital equipment, especially to the vulnerable groups who face the “digital divide.” That means that public resources and collective actions should be taken to ensure that members of society have equal and full access to the internet and opportunities to live digital lives. Digital science and technology must be people-oriented, take human interests and even human rights as the highest value, take human rights as the demarcation scale, and take human rights as the fundamental standard for evaluating scientific and technological progress. As General Secretary Xi Jinping has pointed out, we need to adhere to the people-centered development philosophy, promote the “internet+ education,” “internet+ medical care,” “internet+ culture,” etc., so that the people do less legwork and data do more travel, and that we can make public services more equitable, inclusive and convenient. We will continue to be problem-oriented, focus on prominent conflicts and problems in areas related to people’s livelihoods, strengthen services to improve people’s livelihoods, and make up for weaknesses in people’s livelihoods. We will promote the spread and application of big data in education, employment, social security, medical and healthcare, housing, transportation, and other areas, and develop all kinds of convenient applications. We need to strengthen the application of big data in targeted poverty alleviation and the ecological environment, so as to help win the final phase of the war on poverty and accelerate the improvement of the ecological environment. All in all, we need to enable hundreds of millions of people to enjoy more of the benefits of the development of the internet, big data and cloud computing.
Second, the significance of putting forward the concept of “digital human rights” lies in strengthening the ethical and legal restrictions on the development and application of digital science and technology with the power and authority of human rights. Digital technology is a double-edged sword. Digitization brings not only the benefits of rights, but also the crisis of them. While people enjoy the personal liberation, convenience, economic growth, democratic progress, cultural diversity and social security brought by digital technologies such as big data and artificial intelligence, they also face the risks of privacy disclosure, injustice (discrimination), and illegal regulation due to excessive collection and improper use of personal data.
In the face of digital technology, we must be vigilant and guard against the misuse of digital technology and prevent digital technology from infringing on human rights. At present, digital technology has been widely used in national governance and social governance. In order to ensure that digital technology as the important instrument of state and social governance is properly used, and to ensure that the use of digital scientific and technological achievements is limited to the bottom line of freedom, justice, security and order, it is necessary to choose or make a shield, which is undoubtedly the noble “digital human rights.”
Any digital technology that violates human rights must be outlawed and stopped with a human rights shield. Regarding the research and development, industrial production and social application of digital technology, the state and relevant industries would carefully evaluate, review and regulate the human rights implications of digital technology. When the government uses digital technology as a tool or means of social governance, it should uphold the concept of respecting and protecting human rights, limit them to the fields necessary for social interests, and strictly follow the scope and procedures stipulated by law. In the context of the digital economy and digital society driven by digital technology, the protection of intellectual property rights of scientific and technological companies should abide by the principle and bottom line of respecting citizens’ rights to privacy, data and the right to share knowledge interests. The conflict and coordination between intellectual property rights and human rights in the development of digital technology and the digital economy are also important issues that we should pay attention to.
Third, to put forward the concept of “digital human rights” is a strategic need to guide the new generation of human rights. According to the academic circle, there have been three historic transformations of human rights in the world, including “the first generation of human rights,” “the second generation of human rights” and “the third generation of human rights.” At present, the “fourth generation of human rights” are on the way. The core rights leading the fourth of generation human rights are digital human rights. With the fourth scientific and technological revolution represented by digital technology and with the rapid changes in economy and society, new human rights emerge on a large scale, among which digital human rights are the most prominent and important. They are not only new human rights, but also leading a new generation of human rights. In particular, the “right to data” is one of the most attractive of the new human rights. If the most basic strategic resource of agricultural society was land and the most basic strategic resource of industrial society was capital, then the most basic strategic resource in the fourth scientific and technological revolution is data. The protection of independent intellectual property rights and data sovereignty, and the reasonable allocation and protection of right to data will become the most basic of rights in the future.
Fourth, to put forward the concept of “digital human rights” is also necessary to enhance the voice of the Chinese legal community in the international community. At present, the hard power of China’s economy has been significantly enhanced, but we are faced with serious problems such as the lack of voice and “voice deficit.” The basis of a strong voice lies in real theoretical innovation and the quality of voice. Therefore, it is essential to build up our own academic voice system and thought system for us to make China’s voice one of the dominant voices in the world. The basis of a strong voice lies in whether we can summarize symbolic concepts, create new concepts, categories and expressions that are easy to be understood and accepted by the international community, and design new topics to guide international academic research and discussion. After repeated demonstration and discussion, I believe that the concept of “digital human rights” is likely to become a symbolic concept that can generate worldwide influence. The connotation of digital human rights is very rich, including “realizing human rights through digital technology,” “human rights in digital life or digital space,” “human rights standards of digital technology,” and “legal basis of digital human rights.” Entering the 21st century, although there are many countries, international groups, and academic institutions that place Internet-related human rights issues high on their agenda (e.g., on June 27, 2017, the United Nations Human Rights Council adopted a Resolution on the Promotion, Protection and Enjoyment of Human Rights on the Internet), the concept of “digital human rights” has not been clearly summarized, let alone giving the scientific connotation of the autonomy of “digital human rights.” China’s digital science and technology capability is at the forefront of the world, and China’s ability to use digital science and technology is even ahead of other countries and regions. We should seize this favorable opportunity and academic gap, lead the new generation of human rights with scientific interpretation and institutional construction of “digital human rights,” lead the international community’s research on digital human rights, and further lead the innovation of intellectual property theory, system and practice.
V. The Scientific Connotation of the Right to Development in the New Era is the Organic Unity of Individual’s Comprehensive Development and Society’s Comprehensive Progress
Marx pointed out that, “the essence of human beings is not the inherent abstract of the individual, in reality, however, it is the sum of all social relations.”18 In this case, the rights that people should enjoy by their nature involve all aspects of social life. Therefore, the human right to development is the right to comprehensive development and is a basic human right with rich connotation. Moreover, it must be pointed out that the overall development of individuals is not only a matter that concerns the rights of citizens, but also a matter that concerns the rights of a society. As Marx and Engels said, “the free development of each individual is the condition for the free development of all.”19 So far, in the dominant human rights discourse system, people’s right to free and comprehensive development has not received due attention. In essence, the comprehensive development of human and the comprehensive progress of society are two sides of the course of human history, and the former is the basic trend of the historical process in the new era. The new era of socialism with Chinese characteristics provides a superior environment for the comprehensive development of human. The right to development in the new era is supposed to be one that combines the comprehensive development of people with the comprehensive progress of society. The former must be the value orientation and destination of the latter. As is pointed out by President Xi Jinping, “economic development takes social development as its goal, while economic development is the end-result of social development. And spiritual culture is the core of human development.”20 In his report to the 19th CPC National Congress, General Secretary Xi Jinping stressed that, “building on continued efforts to sustain development, we must devote great energy to addressing development’s imbalances and inadequacies and push hard to improve the quality and effect of development. With this, we will be better placed to meet the growing economic, political, cultural, social, and ecological needs of our people, and to promote well-rounded human development and all-round social progress.” “We must uphold the idea of people-centered development and constantly promote all-round human development.” “We will ensure that all the people have a greater sense of gain in joint and shared de-velopment, and continue to promote all-round human development and common prosperity for all the people.”21 General Secretary Xi Jinping also pointed out that China adheres to the people-centered development philosophy, and takes improving people’s well-being, ensuring that the people are masters of their own country and promoting their all-round development as the starting point and goal of development. China has effectively safeguarded the people’s rights and interests in development and blazed a path of human rights development with Chinese characteristics. China has taken an active part in global governance, worked hard to promote inclusive development, and strived to create conditions and opportunities for people of all countries, especially those in developing ones, to share the fruits of development.
These discussions reveal the intrinsic relations between the comprehensive development of human and the comprehensive progress of society and clarify the significance of the free and comprehensive development of people to economic development, social development, cultural development and social progress. Guided by General Secretary Xi Jinping’s important statements on development and the right to development, we should enrich the connotation of the right to development, promote the transformation and upgrading of the right to development, and pay more attention to the significance of comprehensive development for the right to development.
The emphasis on people’s right to comprehensive development is highly targeted in reality. The problem of inadequate and unbalanced development focuses on the underdevelopment, unbalanced development, unreal development and unfree development of individuals, especially the weak and vulnerable groups in society. Under such circumstances, to realize a better life for people, it is very important to focus on the development of people and the modernization of people, enrich and innovate the concept of the right to development, and promote the equal, free, personalized and all-round development of all people.
VI. Common Human Values Are the Jurisprudence Basis of the Human Rights Community
At present, there is a popular view that “human rights are an issue within the sovereignty of a country.” This view has its special historical background and is targeted at specific issues. If we stick to this view today, it is clearly not in line with the historical orientation of socialism with Chinese characteristics for a new era, nor with the reality and trend of human rights development in the world, nor with China’s strategic plan to actively participate in and lead global human rights governance. When explaining why socialism with Chinese characteristics has entered a new era, General Secretary Xi Jinping used five “news” to describe and define the new era. One of them is: this new era is “an era in which China is moving closer to the center of the world stage and making greater contributions to mankind.”22 The world today is undergoing major changes unseen in a century. Since the 18th CPC National Congress, General Secretary Xi Jinping has made overall plans for domestic and international affairs, and for national governance and global governance. He has made visionary and practical statements and arrangements on promoting democracy and the rule of law in international relations, leading economic globalization, advancing reform of the global governance system and rules, building a new type of international relations featuring win-win cooperation and a fair and reasonable world order, and forging a community with a shared future for all humankind. Guided by the concept of global governance featuring wide consultation, joint contribution and shared benefits, China has actively participated in the reform and development of the global governance system and contributed its wisdom and strength. China’s international influence, charisma and shaping power have been further enhanced, making major new contributions to world peace and development. In the field of human rights, we have taken an active role in international human rights dialogues and cooperation, and in global human rights governance. In the global governance system, the concept of human rights is defined by the international community together, not by any country alone. The international definition of human rights in the Universal Declaration of Human Rights and a series of world conventions on human rights has been widely recognized and accepted.
With the increasing number of transnational and global human rights issues facing mankind, many human rights issues are no longer limited to a single country or can be handled by a single country. Global challenges require concerted cooperation between countries. It is necessary to actively promote the internationalization and globalization of human rights on the basis of China’s position, views and methods, as well as international consensus on human rights, so as to make due contribution to maintaining the global human rights order. It is also China’s unshrinkable responsibility as a responsible major country to promote reform of the global governance system for human rights. China should enhance its institutional voice on human rights issues through human rights dialogues and cooperation, especially consultation and joint governance in the field of human rights.
Promoting the internationalization and globalization of human rights and building a human rights community are the inevitable requirements of building a community of shared future for mankind. Since the 18th CPC National Congress, General Secretary Xi Jinping has made elaborate theoretical demonstration and institutional design for building a community with a shared future for human beings. As the community of shared future for mankind proposed by General Secretary Xi Jinping is a community of shared interests and values, it must also be a community of shared human rights. This proves that human rights must be international and global in nature. At the 70th UN General Assembly, President Xi Jinping said very clearly that “peace, development, equity, justice, democracy and freedom are the common values of all mankind, and the lofty goals of the United Nations.”23 In his congratulatory letter to the symposium marking the 70th anniversary of the publication of the Universal Declaration of Human Rights, Xi stressed again that “the Chinese people are ready to work with people of other countries to uphold the common human values of peace, development, fairness, justice, democracy and freedom, safeguard human dignity and rights, promote more just, rational and inclusive global human rights governance, and build a community of shared future for mankind and a beautiful future for the world.”24 The proposal of “common values of human”, as well as a series of internationally compatible human rights propositions and concepts proposed and expounded by President Xi Jinping on other major occasions, have gone beyond the historical limitations and tangible harm of the Western “universal value theory.” They have put us at the commanding height of views on human rights, morality and values, and laid an unbreakable legal foundation for the internationalization and globalization of human rights. They have also injected fresh legal essence into a more inclusive concept of human rights.
VII. From “Faith in Human Rights” to “Human Rights Jurisprudence” Is the Intrinsic Logic of Human Rights Development
Faith and jurisprudence form a logical dialectical relationship. “Jurisprudence is the reservoir of faith, while faith is the original ecology of jurisprudence.” That is to say, jurisprudence originally comes from the rational consensus of people in practice, and is the faith formed by people based on their pursuit of ideals. But faith exists by itself only in the minds of people without the internal reflection of people. The fountain of faith flows into the pool of jurisprudence through the reflection of thought, so that faith can be preserved and become a spiritual force beneficial to practice. In this sense, faith is the raw material of jurisprudence, while jurisprudence gives faith real value. “Faith will be prone to change without jurisprudence, while jurisprudence becomes empty without faith.” Faith can only become jurisprudence after rational reflection and consensus of practice and gain more stability and vitality in practice. Meanwhile, jurisprudence must take faith as the premise. If there is no faith from social life, jurisprudence will be empty, illusory, and fall into circular argumentation. Understanding the category of the dialectical relationship, we find the historical logic, theoretical logic and practical logic from “faith in human rights” to “human rights jurisprudence.”
To be specific, this theory is based on a profound reflection on the experience and lessons about human rights over the past century. During the period of the New Democratic Revolution, the Communist Party of China led the people in holding high the banner of “fighting for human rights,” that is, fighting for human rights and freedom from imperialism, the feudal landlord class, reactionary warlords and bureaucrat-capitalists. When the CPC led the Anyuan workers’ strike, the mobilization slogans for the workers were, “animals before, humans now” and “fight for human rights.” The August 1 Declaration of the CPC in 1935 explicitly raised the banner of “fighting for freedom and human rights.” The CPC mobilized the people to carry out the peasant and workers’ movements with vigor and vitality, to smash the local tyrants, share the land, organize workers’ strikes, fight for freedom, and establish the red regime and revolutionary base areas. The CPC resisted aggression, fought against Japanese aggressors, saved the nation from subjugation, safeguarded the independence of the country, and ensured the survival of the nation. The CPC opposed the Civil War, fought against hunger, strived for democracy, and overthrew the Chiang regime. The CPC established a socialist country under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants and put an end once and for all to the humiliation that the Chinese people had endured for more than 100 years, and the miserable situation of prolonged war and deprivation. For the first time in history, the Chinese people have gained universal and equal human rights. However, after the mid-1950s, especially during the “cultural revolution” (1966-1976), the “left” trend of thought became rampant, denouncing “human rights” as bourgeois and advocating “human rights are the slogan of the bourgeoisie,” “humanity is guilty” and “human rights are reactionary.” As a result, people's humanity was in abeyance and Chinese society regressed. Reflecting on this painful historical lesson, a basic problem during that period was the simple belief in “human rights” as a weapon of struggle. Because the faith in human rights had no scientific legal support, it was weak and vulnerable amid the social turbulence, so weak that it became a funeral sacrifice for political struggle. After the launch of reform and opening-up, especially since the 1990s, under the banner of emancipating the mind, and through a fight among theories as China straightened out the chaos, the concept of human rights has been justified, basic human rights have been revived, human rights values have been deeply rooted in the hearts of the people, and the human rights system has been increasingly improved, thanks to the formation and development of human rights jurisprudence.
Second, the aim is to respond positively to the jurisprudential needs of human rights development. Human rights are the basic rights that people should enjoy as human beings, respecting and protecting human rights are the symbol of human civilization and an indispensable condition for the development of human civilization. However, human rights and their sources are not self-evident. They need to be justified by jurisprudence. Human rights cannot just be simple faith; they need to be upgraded to profound jurisprudence. “Respecting and protecting human rights” is not a natural truth. In every era, people have theoretically proved and justified human rights based on practice. For example, “natural rights,” “natural human rights,” “human beings are born equal and free” and “human rights are the essential rights of human beings arising from human nature.” These concepts and propositions based on liberalism and humanism reflect the bourgeois views of human rights and are the human rights jurisprudence of capitalist society. After the Second World War, human rights went beyond the scope of states and became an international and universal principle. The Universal Declaration of Human Rights and a series of international human rights conventions embodied the human rights jurisprudence under the new post-war world order. The proposition of “common human values” is the human rights jurisprudence for forming a fair, reasonable and inclusive global human rights governance pattern. “Happy life of the people is the greatest human right.” “Everyone fully enjoying human rights is the great dream of human society.” “The right to life and development is the priority and basic human right.” “There is no best but better human rights protection.” “Up-holding the principle of combining the universality and particularity of human rights.” These are the human rights jurisprudence of the new era of socialism with Chinese characteristics, and the human rights program of the Chinese. The evolution of human rights theories suggests that human rights research constantly learns from the advantages of jurisprudence. The power of jurisprudence to explain and demonstrate human rights is far stronger than other ways of argumentation. The discussion of human rights jurisprudence occupies the core of human rights research. The power of jurisprudence directly determines the power of human rights discourse, and any kind of human rights discourse needs to be supported by research on jurisprudence. According to this logic, it is a qualitative leap from faith in human rights to human rights jurisprudence. With jurisprudence, human rights are no longer just ideas or appeals. Respecting and protecting human rights are no longer just political discourse, moral discourse or legal discourse, but something that has distinct and solid academic rationality and legitimacy.
Third, we should have a deep understanding of the jurisprudence value of human rights. Human rights are not only a kind of faith that needs legal support, it’s an important legal principle in contemporary society. In other words, human rights provide legal support for other legal propositions and practices. For example, the punishment is legally prescribed, the suspicion of guilt should be regarded as innocent, torture to extort confessions is prohibited, and illegal evidence is invalid — these legal principles in the practice of criminal laws are, in the final analysis, to respect and protect human rights. With the rapid development of science and technology and society, the legal value of human rights has become more and more prominent. When facing scientific and technological ethical and legal problems such as assisted reproduction, artificial intelligence and genetic engineering, people must take human rights seriously, and explain, criticize and reflect on the legitimacy of the practice with human rights jurisprudence.
When faith in human rights is developed into human rights jurisprudence, human rights will gain a more scientific position as truth and a more sacred position as value, and thus become the fundamental standard to measure whether the national system, laws and regulations, public policies, and law enforcement decisions are just, fair, rational, and made with goodwill. To advance the cause of human rights in China in the new era, we must strengthen research on the “jurisprudence of human rights”, summarize more jurisprudence concepts, propositions and discourses for human rights of socialism with Chinese characteristics, and provide and consolidate the legal basis for basic human rights, new human rights and the rights of the weak.
(Translated by CHEN Feng)
* ZHANG Wenxian ( 张文显 ), Director of Academic Committee of the Chinese Law Society, Senior Professor of Philosophy and Social Science of Jilin University.
1. Xi Jinping, “Speech at the Ceremony Commemorating the Bicentenary of the Birth of Marx,” People’s Daily, May 5, 2018.
2. Ibid.
3. Marx and Engels, Collection of Marx and Engels (Beijing: People’s Publishing House, 2009), 17.
4. Marx and Engels, Collection of Marx and Engels (Beijing: People’s Publishing House, 2003), 17.
5. Marx and Engels, Collection of Marx and Engels (Beijing: People’s Publishing House, 2009), 176
6. Marx and Engels, Collection of Marx and Engels (Beijing: People’s Publishing House, 2009), 53.
7. Ibid., 185.
8. Ibid., 37.
9. Ibid., 108.
10. Documents Research Office of the Central Committee of the Communist Party of China, Resolution of the Eighth National Congress of the Communist Party of China on Political Report (adopted by the Eighth National Congress of the Communist Party of China on September 27, 1956), in Selected and Edited Important Documents since the Founding of the People’s Republic of China, vol.9 (Beijing: CCCPC Party Literature Publishing House, 2011), 292-293.
11. Documents Research Office of the Central Committee of the Communist Party of China, Selected and Edited Important Documents Since the Third Plenary Session of the CPC National Congress, vol. 1 (Beijing: CCCPC Party Literature Publishing House, 2011), 3-4.
12. Documents Research Office of the Central Committee of the Communist Party of China, Selected and Edited Important Documents Since the Third Plenary Session of the CPC National Congress, vol. 2 (Beijing: CCCPC Party Literature Publishing House, 2011), 168.
13. Xi Jinping, Secure a Decisive Victory in Building a Moderately Prosperous Society in All Respects and Strive for the Great Success of Socialism with Chinese Characteristics for a New Era – Report at the 19th National Congress of the CPC, (October 18, 2017) (Beijing: People’s Publishing House, 2017), 11.
14. Ibid.
15. Ibid.
16. Wei Zhezhe, “Xi Jinping sends letter to commemorate the 70th anniversary of the publication of the Universal Declaration of Human Rights, emphasizing that we should stick to the path of human rights development in line with national conditions and promote all-round human development,” People’s Daily, December 11, 2018.
17. China Internet Information Center, “43rd Statistical Report on the Development of the Internet in China,” contained in the website of the Office of the CPC Central Committee’s Commission on Internet Security and Information Technology.
18. Marx and Engels, Collection of Marx and Engels (Beijing: People’s Publishing House, 2009), 135.
19. Ibid., 422.
20. Xi Jinping, Zhejiang China: A New Vision of Development (Hangzhou: Zhejiang People’s Publishing House, 2007), 150.
21. Xi Jinping, Report at the 19th National Congress of the CPC, 21.
22. Ibid., 21.
23. Xi Jinping, “Working Together to Forge a New Partnership of Win-win Cooperation and Build a Community with a Shared Future for Human Beings – Statement at the General Debate of the 70th Session of the UN General Assembly”, People’s Daily, September 29, 2015.
24. Wei Zhezhe, “Xi Jinping sends letter to commemorate the 70th anniversary of the publication of the Universal Declaration of Human Rights,” People’s Daily, December 11, 2018.
