XU Ruichao*

 

 

Keywords: fundamental rights · fundamental obligations · socialism · consistency of rights and obligations

 

Special provisions on the co-existence of rights and obligations and the public-private integration in Chapter II of the current Constitution of PRC have generated many debates. Some scholars believe that constitutions are not ordinary laws and should not stipulate civic obligations¹; some interpret fundamental obligations as fundamental rights restrictions²; by combing the development process of fundamental obligations in Germany, some scholars believe that they have independent constitutional status, and then defend the fundamental civic obligation of the country³; some argue that the fundamental obligation is a constitutional category and has independent value⁴. On the relationship between fundamental rights and obligations, some scholars claim that the relationship between the two is centered on “the restriction for protection”, which reflects the unity of the limitation of rights and the protection of rights⁵; some point out that the two are equal in the constitutional hierarchy and are mutually independent⁶; some scholars have positioned Article 51 of the Constitution as a clause prohibiting the abuse of fundamental rights, and the relationship between the two serves to resolve the conflict between fundamental rights and public interests or among the fundamental rights⁷; there are also scholars who believe that fundamental rights and obligations have different value positions in the constitutional system. The fundamental right is the core value of the Constitution, and the two have non-equivalence under normal circumstances⁸. These studies provide different approaches and perspectives for understanding the relationship between fundamental rights and fundamental obligations. However, the real problem is that most of the above scholars limit their propositions to a certain category, so they neglect the discussion of integrity. They neither deeply analyze the particularity of the Constitution of PRC as a socialist constitution, nor exactly explain why the present Chapter II of the Constitution stipulates it so.

 

Combined with the background and original intention of formulating constitution, the special arrangement of Chapter II of the current Constitution is influenced by “the principle of consistency of rights and obligations”.⁹ As a constitutional principle of our country, the consistency of rights and obligations caught general attention in the 1950s¹⁰, 1980s and 1990s¹¹, which was commonly spread at that time. With the change in constitutional jurisprudence theory and the introduction of foreign constitutional thoughts, most textbooks, monographs, and papers on constitutional jurisprudence have abandoned the principle of consistency of rights and obligations. Only a few scholars have touched on the principle of consistency of rights and obligations.¹² This kind of fracture in research is really not conducive to the further development of the studies on Chapter II of the Constitution. The principle of the consistency of rights and obligations “has reasonable sources and origins” with very strong national attributes. It must be placed in a particular context to be interpreted. As one scholar said: “Since the 20th century, the most valuable works of Chinese scholars on Chinese scholarship have been those that least rely on Western ideas.”¹³ Accordingly, this paper intends to make a relatively complete analysis and elaboration of the origin, connotation and significance of the principle of consistency of rights and obligations, and corrections to the existing problems. On the 40th anniversary of the promulgation and implementation of the current Constitution, sorting out the unique constitutional principles of the Chinese Constitution can further deepen the discourse system of the Constitution.

 

 

At present, academia has not made a systematic discussion on the origin of the principle of consistency of rights and obligations, and most of them believe that it can be traced to Marx’s idea, that is, “There is no right without obligation and no obligation without right”. This judgment is not applicable to all circumstances. As a constitutional principle of our country, the consistency of rights and obligations is the complex combination of historical logic, theoretical logic and constitutional logic.

 

 

Tracing back to history, the expression of the consistency of rights and obligations appeared in the late Qing Dynasty and the Republic of China. In Da Qing Xian Fa Lun (On the Constitution of the Qing Dynasty) published in 1911, Bao Tingliang writes that “Rights cannot be without obligations, and obligations cannot be without rights”, “Rights originate from obligations, and obligations originate from rights”, “Rights and obligations are treated together and obligations cannot be separated from rights”.¹⁴ By reviewing the constitutional texts and theoretical views of the late Qing Dynasty and the Republic of China, it can be found that the discussion on the consistency of rights and obligations roughly covers the following aspects: (1) The relationship between the state and the individual reflected in the substitution of terms, including “subjects of a feudal ruler” (as people being ruled), “citizen” (related to nationality), and “people” (all members of society). According to the observation of the history of ideas by Prof. Jin Guantao and Prof. Liu Qingfeng, the term “obligation” is often used together with rights when discussing the relationship between the individual and the state. The reason is that the ideas, namely, “individuals must have rights that can be enjoyed since they have obligations that must be performed” and “rights and obligations are indivisible and mutually conditional”¹⁵, are very similar to the reciprocal relationship in the moral provisions of different hierarchical identities in Confucian ethics. In other words, although individual rights have been introduced into China as a concept opposed to Confucian ethics, the deep structure of Confucian ethics related to reciprocity is still at work when discussing the relationship between the individual and the state: An individual who fails to fulfill his obligations does not deserve to enjoy rights. (2) The change of the normative content of fundamental rights and fundamental obligations from guaranteeing individual freedom to maintaining social justice reflects the cognitive change of our country from “negative view of rights” of free constitutionalism to “positive view of rights” of social constitutionalism, as well as the relationship with “Datong (Great Harmony)”, a kind of traditional Chinese ideal. (3) It emphasizes that there is the same relationship between the public rationality of individual rights and the formation of good social order and the independence, prosperity and strength of the country. The principle of consistency of rights and obligations in the late Qing Dynasty and the Republic of China is mainly manifested as follows:

 

First, it analyzes the consistency of rights and obligations from the perspective of individual titles/positions for the state. Influenced by thoughts from Japan, Liang Qichao first explained the relationship between rights and obligations in the constitution. He pointed out that “the determination of rights and obligations of subjects as well as their positions is an important part of the constitution of each country”, “the meaning of obligation is closely related to titles and positions”¹⁶. The consistency of rights and obligations based on titles/positions emphasizes that the obligations and responsibilities of a person should be determined according to their identity, status and position, and the order of titles/positions should be formed in the state, society and family. Acting according to titles/positions can effectively maintain governance and promote social harmony and stability.¹⁷ For the same reason, the Qing government believed that the “exclusive power” enjoyed by the monarch and the “obedience doctrine” of the people in the regimes of Germany and Japan were perfect, and the subjects had the obligation to obey the state power. The Qing government opposed the idea of “uniting the sovereign and the people as one” and “establishing a constitution to govern all”, and believed that “joint governance by the sovereign and the people” and “jointly governance by the constitution over the sovereign and the people” violate the discipline and ethics.¹⁸ On the one hand, the Qing government showed that the constitution was the fundamental law, and the ruler and the people should keep it together. On the other hand, it also pointed out that the due rights and obligations of subjects should be determined according to the law under the sanctity, supremacy, and dictatorship of the emperor’s sovereign.¹⁹ The purpose of the Qin Ding Xian Fa Da Gang (An Outline of the Constitution Decided by the Emperor) was to consolidate the power of the crown and to protect the subjects, whose legal position was a passive and obligatory position.²⁰ “Due rights and obligations” means that fundamental rights andfundamental obligations in the constitution have not only legal normative attributes, but also ethical attributes, which is the embodiment of the integration of law and morality.²¹ The consistency of rights and obligations based on titles/positions revolves around the consolidation of the regime and has a strong political attachment.

 

Second, it analyzes the consistency of rights and obligations from the perspective of the individual’s personality attribute and the scope of intention for the state. For example, Chen Wu, a scholar who studied in Japan, takes elements such as “all and one”, “state and individual”, and “personality and its identity of will and ability” as the core of the relationship between constitutional rights and obligations, and considers that rights and obligations are consistent in the Study of National Law (kokuhōgaku) published in 1905.²² Luo Jie, another scholar who studied in Japan, discussed the rights and obligations of individuals in public law from the perspective of the distinction between overall and individual personalities in his Study of National Law (kokuhōgaku) published in 1905: From the perspective of overall personality, the limits of the state on the scope of individual will are limited by the fundamental rights in the constitution; from the perspective of individual personality, people’s obligations to the state, as well as their rights, are fundamental.²³ Ruan Yicheng also pointed out in his Comparative Constitution published in 1934: “With respect to the state, the people have fundamental rights as entitled, but meanwhile they should have certain fundamental obligations”²⁴. From this point of view, the dual relationship of “state and individual” constitutes the basis for individuals to enjoy rights and perform obligations. Based on the individual’s obligations and passive position relative to the state, under the dual structure of “state and individual”, the individual does not have an independent personality from the state. Individuals who are in a passive position and have no independent personality are subject to the ruling supremacy of the state and do not enjoy rights independent of obligations. The loyal performance of obligations is a necessary and sufficient condition for enjoying rights. In this sense, the rights and obligations of each person are consistent.

 

Third, due to the historical background of saving the country from extinction, most of the discussion about the consistency of rights and obligations in the late Qing Dynasty and the Republic of China implied the philosophy of survivalism. At that time, scholars’ discussions on the consistency of rights and obligations all emphasized that the integrated relationship between individuals, the state and society constituted the basis for individuals to enjoy rights and perform obligations, and the consistency of rights and obligations was the premise of rights protection, social stability, and national unity: On the one hand, the performance of the individual’s obligations to the state and society is the premise of the enjoyment of individual rights, and individual interests must be consistent with the interests of the state and society; On the other hand, the protection of individual rights, the maintenance of social order, and the independence and prosperity of the country are closely connected. The consistency of rights and obligations can promote the homogeneity of individual freedom, social order and national constitutional system in the structure of interests.²⁵ Rights and obligations are both to serve the state and society, and only when the state and society function well can all individuals enjoy freedom.

 

It should be noted that the aforementioned consistency of rights and obligations, which emphasizes the obligation and passivity of the individual relative to the state and neglects the independent personality of the individual, has been abandoned by the current Constitution. However, the principle of consistency of rights and obligations based on the interaction between the individual and the state and society and the corresponding relationship of rights and obligations is continued in the current Constitution. The current Constitution also emphasizes the close relationship between the rationality of rights, the ethics/morality/public nature of obligations and the good social order with the democratic rule of law. The principle of consistency of rights and obligations in the current Constitution has the continuity of concept history or constitutional history.

 

 

From the perspective of theoretical origin, the principle of consistency of rights and obligations in China’s constitutional theory comes from Hegel’s view of “no right, no obligation, and vice versa” (wer keine Rechte hat, keine Pflichten hat, und umgekehrt) and Marx’s view of “there is no right without obligation and no obligation without right” (keine Rechte ohne Pflichten, keine Pflichten ohne Rechte). 

 

According to Hegel, Dasein, as the actuality of free will, is generally considered as a right, which means that rights are the prescriptive existence of the free will. As the carrier of rights, the law should and can only be obtained from the subjective will of people.²⁶ Dasein refers to the existence of a certain degree of qualitative and quantitative prescriptivity in a specific space and time. A Dasein is only a right based on subjective free will, while a person’s subjective consciousness necessarily admits or accompanies an obligation. Right is also an obligation, obligation is also a right, and one person’s right always corresponds to another person’s obligation.²⁷ In Hegel’s view, people have a consistent identity that exists freely among themselves, have a common will, and are individuals with the unity of rights and obligations. The equivalence of rights and obligations emphasized by Hegel is only an abstract equivalence in content; that is, both right and obligation adhere to the “principle of individual freedom of human”. Accordingly, the command of the law to each person is “to be a human and to respect others as human.” Besides, in Hegel’s argument, the consistency of rights and obligations is also included in the overall relationship of the state: First, the obligation to a person is substantive and universal. Right, on the contrary, is the Dasein of these substantive things. In other words, right embodies its particularity and the special free aspect of the individual. Second, as a kind of ethical existence, the state contains the mutual infiltration of substantive things (obligations) and specific things (rights). Third, on such a basis, a person’s obligation to the material in the state is also the Dasein of special freedom; that is, obligations and rights are combined in the same relation of the state.²⁸ In view of this logic, Hegel’s and Marx’s discussion on the consistency of rights and obligations manifests theoretical continuity.

 

In this regard, some scholars found that the principle of consistency of rights and obligations was inherited from the Soviet constitutional jurisprudence. Moreover, the legal philosophy foundation of the Marxist theory of the unity of rights and obligations can be traced back to Hegel’s idea of “the unity of rights and obligations, the unity of freedom and responsibility, and the integration of individuals into the integrity of the state.²⁹ This is reflected in the theoretical context as follows: Marx was able to inherit Hegel’s dialectical thought that rights and obligations contain each other and are both opposite and unified, as well as the overall structure of the state in the consistency of rights and obligations. And he further formed the “Marxist theory of consistency of rights and obligations”.

 

Marx was in the midst of Ricardian socialism, Utopian socialism, trade unionism, and the Chartist democratic movement. In view of the inequality of capitalist society, Marx proposed that “there is no right without obligation and no obligation without right” to realize the freedom and liberation of the working class and equality for all. Contrary to Hegel’s philosophical speculation, Marx’s argument about the relationship between rights and obligations takes the socialist concept of universal democracy, equality and freedom as the core. Its aim is to free the working class from the oppression of class rule and thus to eliminate the opposition between rights without obligations (class privileges and monopoly privileges) and obligations without rights (all forms of slavery to the labors). In a society without any class rule, everyone has equal rights and obligations with the same identity, being the subject of both rights and obligations. Truth, justice, and morality, which all societies and individuals must recognize, are the rules of their relations to each other and to all men. The fulfillment of each person’s obligation is not for themselves alone, but to ensure that everyone can enjoy the same individual and civil rights.³⁰ In Marx’s concept, only in a classless and non-privileged society can rights and obligations be consistent, and everyone can become a real “human being”.

 

Marx meant “human” in an abstract sense. In his view, “real human can be recognized only when he appears as a self-interested individual, and true human can be recognized only when he appears as an abstract citoyen (citizen)”, “only when the real individual restores the abstract citizen to himself and becomes a specie-being as an individual in his own empirical life, in his own individual labor, and in his own individual relations, only when he recognizes his ‘inherent power’ as a social power, and organize it so that the social power is no longer separated from itself in the form of political power, only then will the liberation of the human being be complete”³¹. Marx criticizes and reflects on Feuerbach’s ideas. He believes that the essence of man in “specie-being” (Gattungswesen) is neither an abstract object inherent in an isolated, single person, nor an “inner, silent commonality that connects many individuals purely and naturally”. In the reality of human, the essence of human is the sum of all social relations. In the real society, everyone is a conscious and universal being, and everyone can prove that they are a species-being through labor and practice.³² Marx’s core idea is that, when real individuals have abstract citizenship, when people become “species-being”, and when people’s inherent social power is combined with their individual identity, it means that everyone’s rights and obligations are equal and consistent. Marx’s view of rights and obligations based on universal democracy and equal freedom is billed as a classic elaboration of the principle of consistency between rights and obligations. And his thoughts spread through the Soviet Constitution, further influenced the constitutional theory of other socialist countries, and were finally accepted by the constitutional theory of China.

 

As can be seen, the theoretical origin of the principle of consistency of rights and obligations has a line of logic: Hegel’s idea of “no right, no obligation, and vice versa” → Marx’s idea of “there is no right without obligation and no obligation without right” → Marxist theory of consistency of rights and obligations. Marxist theory of consistency of rights and obligations contains the following elements: It is committed to fighting against class privilege and monopoly privilege, so as to achieve the liberation and freedom of human freedom; it opposes the hierarchical distinction of “human” and emphasizes the indifference and abstraction of “human”; it ensures that everyone in society is equal, so as to build a free and equal society with no class nature or privilege.

 

 

From the constitutional point of view, the principle of consistency of rights and obligations is influenced by the Constitution of the Russian Soviet Federative Socialist Republic (1918) (Constitution of the R.S.F.S.R.) and the Constitution of the Soviet Union (1936). The Constitution of the R.S.F.S.R. (1918) was the world’s first socialist constitution. It takes “public welfare as the highest pursuit goal of the state”, and its ultimate goal is to eliminate the system of human exploitation, eliminate social class antagonism, and realize human freedom and liberation.³³ A series of socialist constitutional ideas of “taking society as the foundation, advocating democratic values, and giving priority to equality” established by the Constitution of the R.S.F.S.R. (1918) had a profound impact on the establishment of the Constitution of the Soviet Union (1936) and the Chinese Constitution.³⁴ In the process of formulating the Constitution of the R.S.F.S.R. (1918), the Constitutional Committee believed that Lenin’s requirement that the Soviet constitution “must be transferred from formally recognizing the equality between the bourgeoisie and the proletariat, the poor and the rich, to actually realizing the freedom (democracy) enjoyed by the exploited working people” is the starting point of civil rights and freedom. And obligation is inseparable from political rights and freedom, so the constitution must stipulate the most important obligation of citizens.³⁵ It was the rudiment of “the consistency of rights and obligations” (Единствоправ и обязанностей), and was also accepted by other socialist countries.³⁶ The principle of consistency of rights and obligations advocated in the Constitution of the R.S.F.S.R. (1918) was inherited in the Constitution of the Soviet Union (1936). The Constitution of the Soviet Union (1936) named its Chapter X as “Fundamental rights and obligations of citizens”, which formed the dual structure of fundamental rights and fundamental obligations. Chapter II of the 1982 Constitution “Fundamental Rights and Obligations of Citizens” was consistent with the terminology of Chapter III of the 1954 Constitution, which were all borrowed from Chapter X of Constitution of the Soviet Union (1936), that is, “Основные права и обязанности граждан” (fundamental rights and obligations of citizens).³⁷ It can be said that the principle of consistency of rights and obligations is one of the constitutional principles for “The Fundamental Rights and Obligations of Citizens”, Chapter II of the current Constitution in China.

 

To sum up, the principle of consistency of rights and obligations in the Constitution of PRC has its origins in historical logic, theoretical logic, and constitutional logic. It incorporates the views on rights and obligations of the late Qing Dynasty and the Republic of China (the historical logic), the ideologies of “Hegel → Marx → Marxist theory of consistency of rights and obligations → Soviet constitutional theory → Chinese constitutional theory” (the theoretical logic), and the constitutional process of the Constitution of the R.S.F.S.R. (1918) → the Constitution of the Soviet Union (1936) → China’s 1954 Constitution → China’s 1982 Constitution (the constitutional logic) .

 

 

The three origins of the principle of consistency of rights and obligations have formed its normative connotations. The principle of consistency of rights and obligations covers multiple elements in its content and has complex connotations. 

 

 

The people’s democracy in China’s Constitution contains the socialist thought of essential equality. The function of fundamental rights is to achieve freedom and democracy for all people. Different from the concept of freedom in liberal constitutionalism, freedom in the socialist constitution is not based on the “private” freedom in the field of individual autonomy, but the “public” freedom of all people. Therefore, the freedom protected by the Constitution of PRC is not individual freedom, but the “freedom for all” that aims to eliminate the “private” system of exploitation and strive to reflect the common interests and unified will of the people. The fundamental rights in the Constitution of PRC are not a kind of civil rights based on individual economic activities and individual private property, but a kind of civil rights based on communism and the right to life of all people. In other words, the Constitution of our country does not define the public and private spheres through “private property”, “individual” and “private rights”, but connects the individual with the collective, society and the state through “communism”, “citizen” and “public rights”. What is “private” is contained in what is “public”. The citizen in the Constitution is the individual with national, social, and collective characteristics, and is the individual with otherness and altruism, which is integrated into the whole.³⁸ Under people’s democracy and socialism, “public” interests (the public interests of the state and society) and “private” interests (individual interests) are inseparable and consistent. From this point of view, the rights of “private” in “public” have mutual commonality, which is the universal and equal “public” that includes all “private”. In the “all for the public” structure of freedom, the rights and obligations of each person are consistent, and no one enjoys the privilege of being superior to others. Based on the consistency of rights and obligations, citizens should give consideration to social freedom and social equality while maintaining individual freedom. Therefore, the state and society in the Constitution of PRC should not be simply conceptualized as the binary opposition with their own inherent domains of domination, but should deal with the relationship between the individual and the state, society, collective, and other citizens according to the general principle of “public”.

 

 

The equality of the enjoyment of rights and the performance of obligations contain socialist concepts such as egalitarianism, people’s livelihood and democracy, which represents the universality of the subject of rights, the subject status of the people as the master of the state (non-class and non-exploitation) and the commonality of the undertaking of obligations (non-privilege). On the basis of equal enjoyment of rights and performance of obligations, Chapter II of the 1982 Constitution restored the contents of Chapter III of the 1954 Constitution and was amended according to the “inseparability of the rights and obligations of citizens”.³⁹ In the view of the scholars who experienced the constitutional amendment at that time, “the fundamental rights and obligations of citizens stipulated in the new Constitution of our country not only reflect the legal status of citizens in national life, but also reflect the socialist nature of our social system and national system”⁴⁰. The equality between the enjoyment of rights and the performance of obligations is reflected in the Constitution of PRC that the same fundamental obligations for the whole society should be borne by all citizens with equal status.

 

It should be noted that the equality of enjoying rights and fulfilling obligations does not mainly discuss the situation in which each subject of rights undertakes certain actions or performs nonfeasance in response to the request of the other party in the specific legal relationship. The equality of enjoying rights and fulfilling obligations is abstracted from the specific interpersonal relationship and social situation, and focuses on strengthening the democratic relationship between the people and the state, which is an abstract construction. The reason for the abstract construction of the equality between the enjoyment of rights and the performance of obligations lies in the close connection between the democratic system of socialist countries and the enjoyment of rights and the performance of obligations by citizens. The constitution of a socialist country is based on the principle of democracy and equality, committed to the liberation of all the people, emphasizing the equality, universality and authenticity of democratic rights and freedoms enjoyed by every citizen.⁴¹ In the constitutional concept of socialist countries, “fundamental rights and obligations determine the political and legal status of citizens and the scope of their freedoms, and mainly describe the political system of the whole country”⁴². Conversely, the rights and freedoms enjoyed by citizens of socialist countries are the embodiment of socialist democracy. “Socialist democracy guarantees the equality of the rights and obligations of all working people without any conditions or restrictions attached”⁴³. In countries based on socialist democracy, property, identity, occupation, rank, ethnicity, gender, etc., do not determine a person’s social status.⁴⁴ The equality between the enjoyment of rights and the performance of obligations not only emphasizes the universality and authenticity of rights⁴⁵, but also emphasizes the substantive guarantee and social function of rights⁴⁶. The freedom under the inconsistency between the enjoyment of rights and the fulfillment of obligations is the freedom of the exploiting class, which is not universally enjoyed by citizens with the same identity and equal status.

 

 

The consistency of interests of the individual, society and the state is the embodiment of the identity of the people’s will. The socialist state does not represent the interests of a certain number of people, but the interests of the whole people; the national social interests are not to ignore the personal interests of the public, but to better realize the personal interests. The interests of the state, the collective, the society and the individual in Soviet socialism are fully compatible, unified and indivisible.⁴⁷ Under the consistency of interests of the individual, society and the state, “the fundamental rights entrusted to citizens or the fundamental obligations they undertake are not only the interests of the state, but also the interests of citizens themselves”⁴⁸. The unity of interests of the individual, society and the state requires that citizens must perform corresponding fundamental political and social obligations when exercising their individual rights. In terms of the form of expression, the performance of fundamental political and social obligations by the individual citizen is reflected in the observance of national and social interests stipulated by the constitution and laws. The socialist constitution, in the form of the fundamental law of the state, stipulates the social system and the national system that includes the interests of all the people, reflects the universal and common will of the working class and the working people, and represents the most fundamental interests of all the people. Anyone who fails to abide by the constitution and laws goes against the will of the people and harms the interests of the state and society.⁴⁹ In terms of purpose, “public” interests take priority over personal interests, so as to ensure that everyone can get better protection in this interest consistency. The consistency of individual, social and national interests is reflected in the fact that national and social interests constitute the external and internal boundaries for citizens to exercise fundamental rights, because “our country does not allow anyone to harm the public interest of the country and society for the benefit and freedom of an individual or a few people.”⁵⁰ In nature, the unity of interests of the individual, society and the state has the dual connotations of law and morality: One is the legal obligation, that is, personal interests shall not violate the interests of the state/society/collective; otherwise they will bear the corresponding adverse legal consequences; the other is the moral obligation, that is, all members should give up petty interests for the greater good and sincerely shoulder their civic responsibilities. Each member is closely related to the socialist construction.

 

 

The China’s Constitution is a socialist constitution. Having liberalist individual freedoms that counter the political community is deemed as a tool of the exploitative regime. Individual freedom independent of the collective will and the sphere of state power does not match the view of freedom in the socialist state. Freedom is not the individual freedom, but a kind of social freedom. In detail, the fundamental rights under the principle of consistency of rights and obligations are not subject-oriented, but society-oriented. The fundamental rights of social orientation do not lie in the guarantee of individual freedom, but in the realization of social justice. Therefore, the socialist constitution does not advocate the dual opposition between the field of state power and the field of civil freedom, but emphasizes that the individual, collective, society, and the state are closely integrated and serve the realization of social freedom together: On the one hand, the fundamental rights of citizens do not have the attribute of resisting the state, but must be consistent with the collective interests, social interests and national interests. Individuals have an obligation to participate in the transformation of society by the state. On the other hand, it is the obligation of the state to intervene actively in the private sphere, to bring the self-interested individual into conformity with the requirements of social freedom through transformation.⁵¹ Under the socialist system of people’s democracy, there is an inseparable unity between the state’s protection of the people’s rights and the people’s obligations to the state, and between fundamental rights and fundamental obligations.⁵² Fundamental rights oriented to the society take “private in public” as its premise of standpoint, and the fundamental rights of individuals are limited in principle. The fulfillment of fundamental obligations is the premise of the enjoyment of fundamental rights. The obligatory characteristic of fundamental rights means that fundamental rights have multiple limitations: The enjoyment of fundamental rights depends on the individual’s fulfillment of the obligations of the national social community; that is, it takes the interests of the state/society/collective and the rights of others as its orientation.

 

Besides, the obligatory characteristics of fundamental rights are also reflected in specific rights clauses. In the text of the Constitution of PRC, the right to work and the right to education are both rights and obligations for individual citizens. The Constitution of PRC is committed to eliminating the alienated labor relations of production and the production system of exploitation. Everyone has the right to obtain the means of production through labor and establish the joint relationship between individuals and the state and society through labor. The right to education is not only the premise of the free development of individual personality, but also an important way to cultivate civic responsibility and make contributions to the country and society.

 

 

 

In countries of liberal constitutionalism, civil society exists prior to the political state, and civil society is, in principle, free from the interference of the political state. Under the boundary setting of the rule of law, the state is in a negative position. The substantive restrictions imposed by the state on private behavior are correspondingly concentrated in the field of disorderly freedom, and the state is not given a positive right to intervene. With the change in social structure, the constitution faces the problem of structural social injustice in the industrialized society, the pluralistic society and the information society. Accordingly, constitutional countries adhering to the liberal constitutionalism paradigm have also begun to reflect on the fact that in a complex and changeable society, the protection of fundamental rights in the private sphere should not only adapt to the particularity of private law, but also fairly handle the self-normativity of individuals in the domain of risk autonomy. But constitution as public law and civil law as private law are heterogeneous propositions. Countries adhering to the liberal constitutionalism paradigm partially amend the concept of individual freedom under the premise of fundamental rights targeting the state, and do not play the social constitutional governance function of fundamental rights.

 

Countries adhering to the socialist constitutional paradigm are committed to the reality and authenticity of freedom, and effectively connect different fields, such as the state, society and individual, through the principle of consistency of rights and obligations. The state and society are not separated from each other, but have a relationship containing multi-dimensional interactions and complementary functions. The principle of consistency of rights and obligations can ensure the inherent rationality of state intervention in society, so as to maintain the structural coupling of different fields. To some extent, the principle of consistency of rights and obligations breaks the free space concept of “people’s freedom out of the state”, and instead emphasizes that free space is not only individual and negative, but also belongs to the overall space guaranteed by the political state. Or it can be said that the principle of consistency of rights and obligations breaks the civil society envelopment structure that cannot be changed by “fundamental rights targeting the state”. In the sense of the constitutive meaning of the social system, private autonomy is endowed with multi-dimensional space. The principle of consistency of rights and obligations has gone beyond the traditional state-centered concept of fundamental rights and expanded the dimensions and functions of fundamental rights. It has the significance of protecting fundamental rights in the private sphere.

 

 

The problems existing in the principle of consistency of rights and obligations are mainly manifested as problems in abstract construction, specifically as follows:

 

 

The principle of consistency of rights and obligations is the embodiment of the universal concept of socialist justice and is essentially an abstract construction detached from the specific national social situation and case facts. The problem is that the consistency of rights and obligations does not imply equivalence between different categories. As mentioned earlier, the consistency of rights and obligations covers multiple dimensions: First, the consistency of rights and obligations in the same fundamental right, that is, the consistency of rights and obligations in the correspondence between the fundamental rights of individual citizens and state power includes the obligation of the individual citizen to the state and the obligation of the state to the individual. Second, the individual citizen’s obligation to society is manifested as the subordination of individual interest to collective interest and the restriction of social public interest to individual interest. The third is the relationship of rights and obligations between the individual citizen and other individual citizens. The consistency of rights and obligations in different categories has different directions, so it is difficult to analyze them in the same dimension.

 

As some scholars have said, “The subjects who enjoy fundamental rights and those who undertake fundamental obligations do have the same identity. But the identity mentioned here, which merely excludes the privilege of enjoying rights without performing obligations, embodies one single aspect of the principle that all citizens are equal before the law”. “However, the identity in this sense does not directly mean the identity of the legal relationship between the subject of enjoying fundamental rights and the subject of fulfilling fundamental obligations”.⁵³ The principle of consistency of rights and obligations only indicates the identity of rights and obligations at the abstract level, not the same as the identity at the factual dimension. In the mixed structure of abstraction and fact in the principle of consistency of rights and obligations, there is also the phenomenon of mixed public and private affairs and the separation of subject and object. It is not operational because it does not distinguish the differences between “the correlation between fundamental obligations and fundamental rights” and “the correlation between fundamental obligations and political and social communities”, nor does it distinguish the differences between the subjective and social aspects of fundamental obligations: On the one hand, it emphasizes that protecting one’s own rights cannot be separated with respecting the rights of others, and various obligations of citizens are interrelated and mutually restricted, which presents a horizontal relationship. On the other hand, it points out that it mainly discusses the status of citizens in the national life but not the interdependent relationship of rights and obligations of citizens, which presents a vertical relationship. It is not without a doubt how to use the vertical right-and-obligation relationship to a horizontal one.

 

 

According to the current provisions of Chapter II of the Constitution, the fundamental obligations of citizens include fundamental political obligations and fundamental social obligations. As far as fundamental political obligations are concerned, they are essentially vertical constitutional obligations exercised against the state under the vertical dimension of “citizen-state,” and do not have the directivity to the society and other people. Based on the principle of popular sovereignty and equality, rights and obligations may be consistent at the level of appropriateness; that is, no one can only enjoy rights without performing corresponding fundamental political obligations. However, at the practical level, the performance of fundamental political obligations is neither the exercise of fundamental rights, nor does it involve direct conflicts with the rights of others or disputes over rights and interests, so there is no question of equality between the enjoyment of rights and the performance of obligations.

 

In terms of fundamental social obligations, they are essentially horizontal constitutional obligations with a private direction under the horizontal dimension of “citizen-society/other citizens,” involving the relationship between citizens and the social community. At the level of appropriateness, the current Constitution assumes that the interests of the society include the interests of each individual. There is no difference or contradiction between individual interests or between individual interests and social interests, which is homogeneous. Performing social obligations is also for the realization of one’s own interests, for which rights and obligations are consistent.⁵⁴ However, at the practical level, there are great differences in the interests corresponding to each provision of fundamental rights and the normative elements contained in the provisions of fundamental rights, which are impossible to be consistent. According to the constitutional principle, the principle of popular sovereignty and equality is aimed at the requirements of the state, which should construct a democratic system and protect the rights of everyone equally; however, fundamental social obligations involve the relationship of rights and obligations between people, and legal acts and expressions of intention should be used as communication media. Taking the principle of popular sovereignty and equality as the interpretation and practice standard of the relationship between rights and obligations is bound to cause confusion in principle. The consistency of interests of individuals, society and the state ignores the diversity and difference of interests and normative elements contained in different constitutional provisions.

 

 

The reason for the asymmetry between fundamental rights and fundamental obligations is that if fundamental obligations and fundamental rights are given the same normative status and binding force, citizens must be oriented to the interests of the state/society/collective and the rights of others, and the state can directly bypass the restrictions of fundamental rights and arbitrarily intervene in the social and individual fields in the name of fulfilling fundamental obligations. At this time, the relationship between fundamental rights and fundamental obligations will be advocated by the objective social needs and development rules determined by the ruling class. The socalled harmonious balance between individual and society and the maximization of fundamental rights protection will disappear and be in name only. This shows that fundamental obligations can only be based on the principle of reciprocity of fundamental rights and the principle of freedom and equality for all, and the state may not directly translate fundamental obligations into legally binding orders. According to the arrangement of fundamental rights over fundamental obligations stipulated in Chapter II of the current Constitution and the provision of “the state respecting and protecting human rights” in Article 33 (3) of the Constitution, fundamental rights are in a superior position to fundamental obligations and state power. The concept of fundamental obligation is always subsidiary, qualified, and derived but not constitutive. Fundamental rights and fundamental obligations do not have symmetry in constitutional values and normative content. Most importantly, if the constitution is oriented toward the guarantee of human rights and the liberal order, fundamental rights and fundamental obligations must be unbalanced or asymmetric in the constitutional order.

 

According to the principle of the rule of law, fundamental obligations are incomplete and must be imposed in the form of law to stipulate the legal consequences of non-performance. If fundamental obligations can be used as the direct source of state authority without the restriction of the rule of law, the normative status of fundamental rights will be damaged. Fundamental rights are also socially neutral. Their exercise usually does not impose obligations on the state/society/collective/others. If restrictions on fundamental rights are required for the public interest, they must also comply with the principle of legal reservation. The value system of fundamental rights is the core of the constitution. The unrestricted and direct application of fundamental obligations will narrow the application space of fundamental rights, which goes against the meaning that the state respects and protects human rights. From the perspective of popular sovereignty, the fundamental obligations stipulated in the current Constitution include political and social obligations, which have different aspects of state/society/collective/others, and have diversity in stipulated matters. This requires a new political decision made by the people to conform to Article 2 of the current Constitution, which states that all power belongs to the people and the people manage the social affairs and economic and cultural undertakings of the state. Therefore, the state shall not place fundamental rights under the general and ever-changing interests of the state/society/collective and the rights of others in the name of fundamental obligations. The independence of fundamental obligations is limited. Its content and exercise are subject to constitutional principles such as legal clarity and balance of interests, and are limited by fundamental rights.

 

 

The consistency of the interests of the individual, society and the state indicates that the individual in the constitution is no longer a self-confirming subject. The identity of an individual’s autonomy is replaced by the identity of an individual with others and groups. Rights are determined, not according to the autonomous will, but according to the public interests of the state and society and the rights of others. The exercise of rights by the individual has the obligation to be self-established to satisfy the state/society/group/others. This is inconsistent with the constitutional idea of guaranteeing individual autonomy in meaning, behavior and responsibility. According to the principle of human rights protection, the state stipulates that people must perform fundamental obligations, and its purpose can only be to promote the development of “the superiority of individual (fundamental rights)”.⁵⁵ Based on this, the protection of individual rights in modern constitutions includes a dual system: The first is the fundamental rights protection system for members of the national social community (citizens). The second is the protection system of human rights as a natural attribute.

 

In the first system, as the right recognized and verified by the constitution, fundamental rights depend on the practice of national law order and the fulfillment of national public rights. The individual, as a citizen, is a member of the national community and is subject to certain obligations, which are necessary conditions for the security of the community and the freedom of all. The problem is that when the positivist view of rights is developed to its extreme, it will become a tool for the state to restrict the rights of citizens. Based on the reflection of positivism, the second system of rights came into being. This is also reflected in the Constitution of PRC. In 2004, the “Human Rights Clause” was added to the Constitution, changing the normative structure of Chapter II of the current Constitution. The state should respect and protect the human rights system based on natural attributes and should not contradict the essential content of human rights. In this context, if the interest consistency of individuals, society and the state is still regarded as the self-setting and internal limitation of fundamental rights, it will be contrary to the self-assertion and self-determination principle of human rights. Just as Smend stated, as a member of a community, individuals are bound to have intentional associations with others, but this does not mean that there is a collective self that is independent and act-by-oneself in the society: On the one hand, “collectivity is only the totality of individual meaning experience”. On the other hand, the development of individual nature and the shaping of meaning by collectivity is realized through the way of social occlusion. The collective self is essentially “the integration of individual life and super-individual life”. Therefore, in Smend’s view, although everyone is a social individual and must participate in the life of the group, “the society cannot be imagined as a structured super-individual entity, but can only be considered as being carried by individuals and living only among them.”⁵⁶ Collective citizenship cannot ignore individual people.

 

 

In view of the problems existing in the abstract construction of the principle of consistency of rights and obligations, it is necessary to purposefully restrict the principle of consistency of rights and obligations and make concrete construction in specific fields.

 

 

The principle of consistency of rights and obligations not only requires citizens to make obligatory contributions to the community, but also requires citizens not to violate the objective will, moral requirements, and ethical order of the community, which implies the obligation of negative omission. According to the content stipulated in the Constitution, “the rights and obligations in the Constitution essentially express the relationship between the state and citizens, society and its members.” Fundamental rights and fundamental obligations are essential and important contents of the Constitution.⁵⁷ This means that although fundamental obligations cannot be treated the same as fundamental rights, they are still the basic category of the Constitution and constitute the basic value determination of the Constitution.

 

Besides, fundamental obligations are the media concepts of individual and national social community as well as morality and law, which are ethical and open, and can be used as a buffer mechanism for the conflict between constitutional norms and social reality. In the context of public-private integration and cooperation and social risk prevention, the social rule of law or the social function of the Constitution depends on the practice of fundamental obligations. The principle of consistency of rights and obligations enables the state to avoid the constraints of the pure liberal rule of law, and has social functions such as the formation of community, the maintenance of social order, and the substantive protection of individual freedom. By virtue of the principle of consistency of rights and obligations, the state can actively intervene in the social and private spheres, promote economic and social reform, and achieve social justice. It can be said that although “in constitutional practice, the relationship between fundamental obligations and fundamental rights is not always corresponding, the two maintain internal unity in different forms”⁵⁸. Therefore, the Constitution cannot be understood as a single system based on the prescriptive existence of fundamental rights. Fundamental rights and fundamental obligations, as constitutive elements of the Constitution, both reflect different aspects of the relationship between the individual and the state. In other words, fundamental rights and fundamental obligations should not be in opposition, but should be in cooperation with each other, serving the realization of specific constitutional values. In this sense, the principle of consistency of rights and obligations can be used as a complement to the system of constitutional functions.

 

 

According to Articles 51 to 56 of the current Constitution, the fundamental political obligations of citizens include loyalty to the country in the sense of ethics and morality, maintenance of the country’s legal order in the sense of law, obedience to national interests and ideology in the sense of interest and will, and specific contributions to the country in behavior and material. Fundamental political obligations are the embodiment of the consistency of individual interests and national interests, and contain the ethical and moral concept of the country. From the perspective of constitutional history, the practice of fundamental obligations containing national ethics and morality follows the Soviet Union’s methods, that is, assuming that people’s morality is politically unified, and citizens’ compliance with national values and ideology is also practicing their own morality.⁵⁹

 

Based on the principle of popular sovereignty and the constitutional principle that the state respects and guarantees human rights, the state in the constitution cannot be understood as having intrinsic values independent of society and individuals. A state is established by the freely expressed will of the people. In other words, the constitution based on the principle of popular sovereignty and the respect and protection of human rights by the state excludes the value judgment of individuals for the purpose or result orientation of the state goal, which goes beyond their own interests. The limits of absolute and exclusive state high power and the effectiveness of human dignity and human rights protection are the core values of the constitution. Within the framework of democracy, with the constitution at its core, the state must construct a system of individual freedom and social justice based on respect for fundamental human rights. Therefore, fundamental obligations, as the carrier of civic responsibilities, community associations and public attributes of rights, must serve the core value of civil rights protection.⁶⁰ Ye Jianying also pointed out in his 1982 report on amending the Constitution: “We must unite with all the forces that can be united, correctly distinguish and deal with the two types of contradictions, and strive to create a political environment among the people of the whole country in which there is both centralization and democracy, discipline and freedom, unity of will, and individual happiness and vitality.”⁶¹ In a word, the emphasis of the state on centralization, discipline and unified will cannot neglect the maintenance of democracy, freedom and individual will. The protection of fundamental rights is the purpose of state power, and the national values and ideology emphasized by fundamental political obligations should be purposefully limited to meet the requirements of Article 33 of the current Constitution that “the state respects and protects human rights”.

 

 

Fundamental social obligations cannot be understood as effective mandatory provisions and applied. The core concern is the issue of coordination, which does not require individual behaviors to be consistent with social/collective interests and the rights of others. Li Dazhao once pointed out: “There is no truly reasonable individualism that disregards the social order; there is no truly reasonable socialism that does not take into account individual freedom.” “The freedom we demand is freedom in order; the order we have in mind is the order in freedom. Freedom can only be derived from order, and order can only be built on freedom. The individual and society were inseparable originally, and the same is true for freedom and order.”⁶² The principle of consistency of rights and obligations should be guided by the integration, reciprocity and mutual consideration between people, and then eliminate the conflict between individual freedom and the interests of social community on the basis of ensuring that the subjectivity and free personality of people are not infringed. The joint relationship between the individual and the social community emphasized by the principle of consistency of rights and obligations should not infringe the inherent value of the individual, and the tension between the individual and the community should be determined by both the association between the individual and the community and the constraint of the individual by the community.⁶³ In the field of fundamental social obligations, the principle of consistency between rights and obligations can only be used as a negative constituent for individuals to enjoy fundamental rights. Citizens exercising their rights are protected by the constitution as long as they do not infringe upon the interests of the social community.

 

 

In accordance with the requirements of the principle of consistency of rights and obligations, fundamental social obligations can be the negative constituent of individual’s enjoyment of fundamental rights, and also can be the basis of the effect against a third party of fundamental rights. The reason is that fundamental social obligations are oriented by the goal of social fairness and justice, which is the purpose of the effect against a third party of fundamental rights.⁶⁴ Of course, when fundamental rights and fundamental social obligations coexist, the third-party effect of fundamental rights will involve multiple practices: On the one hand, fundamental rights, as a negative norm, can defend against the improper intervention of fundamental rights by the state; on the other hand, based on the fundamental social obligations of individuals, the state can properly regulate the legal effect of the exercise of fundamental rights to protect the rights of others and the realization of public interests. According to Article 33 (3) of the Constitution, Article 2 of the Organic Law of the People’s Courts, and Article 3 of the Judges Law, courts have the obligation to respect and protect human rights and safeguard social fairness and justice. If a party abuses fundamental rights and leads to violation of the rights of others, based on the fundamental social obligations of the individual, the court may make a measurement of the outcome orientation in favor of the protection of fundamental rights of the victim, for the sake of safeguarding the realization of social fairness and justice. Besides, due to the asymmetry between fundamental rights and fundamental obligations, fundamental social obligations are only an initial explicit obligation to individuals, which cannot be directly applied and should be combined with specific legal obligations in practice. The court should examine the individual’s fundamental social obligations in the two-stage argumentation module of fundamental rights protection and fundamental rights limitation, and undertake the effect of the practice of fundamental social obligations in accordance with the ways and procedures prescribed by law.

 

 

According to Chapter II of the current Constitution, Chinese citizens have a double status as fundamental rights subject and fundamental obligations subject. The denial theory of fundamental obligations should not be adopted. However, the abstract construction of the principle of consistency of rights and obligations has the problem of ignoring category differences and specific situations, which is difficult to practice and must be reconstructed. Based solely on the standpoint of prescriptivism, this paper does not agree to abandon the principle of consistency of rights and obligations completely, but aims to find the problems and amend them. In other words, the principle of consistency of rights and obligations should have a concrete construction related to social facts, which is carried out in a specific legal relationship. As a relatively independent and binding clause, fundamental obligations are not only open, pluralistic, ethical and mandatory, but also closely related to the exercise of fundamental rights and the performance of state acts. They can be used as an independent category to expand the scope of constitutional adjustment, but must conform to the principle of popular sovereignty and legal reservation. Just as fundamental rights can be interpreted as the right of defense, negative freedom, and negative authority norms, fundamental obligations can also be interpreted as the authorization norms for state organs, so as to strengthen the state’s intervention in society, safeguard the realization of social fairness and justice, and eliminate the tension between individual freedom and community order. However, it can never be ignored that the protection of individual freedom based on human dignity is not only the basic constitutional requirement of every country under the rule of law, but also the primary value of the socialist core values stipulated in Article 24 of the current Constitution at the social level. The principle of consistency of rights and obligations should be carried out in the integration of fundamental rights and reciprocity and the principle of freedom and equality for all, which is in line with the requirements of the state to respect and protect human rights.

 

(Translated by LI Donglin) 

 

* XU Ruichao ( 许瑞超 ), Research Associate of postdoctoral research station of Law School of Xiamen University. Doctor of Laws.

 

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9. Xiao Weiyun, The Birth of the Current Constitution in China (Beijing: Peking University Press, 1986), 54; Zheng Xianjun, “Constitutional Interpretation of the Principle of Consistency of Rights and Obligations — Take Fundamental Social Rights as the Example”, Journal of Capital Normal University (Social Sciences Edition) 5 (2007).

 

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13. Yu Yingshi, Qian Mu and Chinese Culture (Shanghai: Shanghai Far East Press, 1994), 313. 

 

14. Bao Tingliang, Da Qing Xian Fa Lun (On the Constitution of the Qing Dynasty) (Shanghai: Jiang Zuo Shu Lin, 1911), 480.

 

15. Jin Guantao and Liu Qingfeng, Studies in the History of Ideas: The Formation of Important Modern Chinese Political Terms (Law Press · China, 2010), 136.

 

16. Liang Qichao, Liang Qichao on the Constitution (Beijing: Commercial Press, 2013), 33.

 

17. Unotetsu, Introduction to Chinese Philosophy, translated by Wang Biru (Shanghai: Zhengzhong Book Company, 1935), 140-144. 

 

18. Ming and Qing Archives Department of the Palace Museum, Archives and Historical Materials on the Preparation of the Constitution in the Late Qing Dynasty (volume I) (Beijing: Zhonghua Book Company, 1979), 6; Zhong Shuhe, From East to West: Chinese Travellers Before 1919 (Shanghai: Shanghai People’s Publishing House, 1989), 434-442. 

 

19. In the third year of Mingli in Japan (1657), Tokugawa Mitsukuni, the second seignior of the Mito Domain, presided over the compilation of Dai-nihon-shi (History of Great Japan). Based on the theory of great righteousness and status of Confucianism (Zhu Zi's Philosophy, or Syusigaku), it clearly puts forward the relationship between ruler and subject with the sovereign status of the Mikado. After the Meiji Restoration, it was retained in the Constitution of the Empire of Japan, and was later borrowed in Qin Ding Xian Fa Da Gang (An Outline of the Constitution Decided by the Emperor). See Katsube Mitake, A History of Meiji Restoration(Changchun: Jilin Publishing Group Co., Ltd., 2014), 37. 

 

20. A Memorial to the Throne from the Ministry and Commission of Finance and Administration of the Constitutional Government Archives on Outline of Constitution, Gist of Law of House of Representatives and Electoral Law, and Annual Preparatory Matters, August 1 in the 34th year of Emperor Guangxu (August 27, 1908) .

 

21. Yu Jiang, The Follow-up Explanation of the Draft Constitution of the Late Qing Dynasty in the First Historical Archive, Han Yanlong, A Collection of Legal History (vol. 4) (Beijing: Law Press · China, 2002), 454-455.

 

22. Chen Wu, Study of National Law (kokuhōgaku) (Wuhan: Hubei Legal Politics Editing Agency, 1905), 136-138. 

 

23. Luo Jie, Study of National Law (kokuhōgaku) (Tokyo: Tokyo Namiki Letterpress, 1905), 96. 

 

24. Ruan Yicheng, Comparative Constitution (Beijing: Commercial Press, 1934), 57. 

 

25. Li Yumin, Xian Fa Yao Lun (The Essentials of the Constitution) (Beijing: Beiping Jukuitang Bookbinding Office, 1934), 120; Zhang Junmai, Xian Zheng Zhi Dao (The Way of Constitutional Government) (Beijing: Tsinghua University Press, 2006), 91. 

 

26. Vgl. Georg Wilhelm Friedrich Hegel, Enzyklopadie der philosophischen Wissenschaften im Grundrisse (1830), §486, 1936, S. 304.

 

27. Hegel, The Encyclopaedia Logic, translated by He Lin (Beijing: Commercial Press, 1996), 202-203. 

 

28. Vgl. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissen-schaft im Grundrisse, § 36, § 261, 1986, S. 95 f., 407 f.

 

29. Zhang Xiang, Legal Construction of Fundamental Rights Norms (expanded edition) (Law Press · China, 2017), 105. 

 

30. Vgl. Karl Marx, Provisorische Statuten der Internationalen Arbeiter-Assoziation, in: Karl Marx/Friedrich Engels, Werke, Bd. 16, 1962, S. 14-16.

 

31. Marx, “On the Jewish Question”, Marx and Engels Collected Works, vol. 3 (Beijing: People’s Publishing House, 2002), 189. 

 

32. Marx, “Theses On Feuerbach”, Marx and Engels Selected Works, vol. 1 (Beijing: People’s Publishing House, 2012), 135. 

 

33.Д.М.Генкин,Individual Property Rights in the Soviet Union, translated by Hui Wen (Beijing: Times Press, 1954), 3-n; Luduic Von Mises, Socialism, translated by Wang Jianmin et al. (Beijing: Commercial Press, 2018), 62. 

 

34. Han Dayuan, “Spread of Soviet-Russian Constitution in China and Its Contemporary Significance”, Chinese Journal of Law 5 (2018), 207.

 

35.С.Л.Ронин,Первая Советская Конституция (The First Soviet Constitution), translated by Bai Lin, revised by Zeng Xiansen (Beijing: China Renmin University Press, 1956), 97. 

 

36. Zhang Guangbo, “The Social Structure and the Fundamental Rights and Obligations of Citizens in the Constitutions of European People’s Democratic Countries”, New Construction 7 (1954).

 

37. Influenced by Constitution of the Soviet Union (1936), Article 2, Chapter 1 of Constitution of the German Democratic Republic (1968) was also “fundamental rights and obligations of citizens”, and the principle of “consistency of rights and obligations” (Einheit von Re-chten und Pflichten) were established in Articles 19, 20, 24 and 25, respectively.

 

38. The socialist view of the public and the private is in the same vein as the “Datong (Great Harmony)” thought since modern China, See Mizoguchi Yuzo, China as a Method (Beijing: Joint Publishing Press, 2011), 15-28. 

 

39. Political Affairs Group, Research Office of the General Office of the Standing Committee of the National People’s Congress, The Essence of China’s Constitution (Beijing: China Democracy and Legal System Publishing House, 1996), 151-152 .

 

40. Office of Academic Research, the Northwest University of Political Science and Law, General Interpretation of the Constitution, Office of Academic Research, the Northwest University of Political Science and Law, 1983, page 146. 

 

41. Li Da, Speech on the Constitution of the People’s Republic of China (Beijing: People’s Publishing House, 1956), 205-210. 

 

42. Institute of Law, Soviet Academy of Sciences, Course of Soviet National Law (volume I), translated by Peng Jianhua (Shanghai: Dadong Book Company, 1951), 157. 

 

43. Li Da, On the Constitution (Wuhan: Central South People’s Publishing House, 1954), 23. 

 

44. Department of State Law Teaching and Research, Central Political and Legal Cadre School, Handouts on the Constitution of the People's Republic of China (Beijing: Law Press · China, 1957), 270. 

 

45. Xin Guang, Fundamental Rights and Obligations of Citizens in the People’s Republic of China (Wuhan: Hubei People’s Publishing House, 1955), 11. 

 

46. Hu Qi’an, Fundamental Rights and Obligations of Citizens in China (Shanghai: East China People’s Publishing House, 1954), 4. 

 

47.Карпинский(Karpinsky),Constitution of the Soviet Union, translated by Shen Ying, et al. (Beijing: People’s Education Press, 1955), 40-41 and 136-138. 

 

48.Ivanov, Fundamental Rights and Obligations of Citizens of the Soviet Union, translated by Liu Youjin (Beijing: China Youth Publishing House, 1954), 124.

 

49.Карпинский(Karpinsky),Constitution of the Soviet Union, translated by Shen Ying, et al. (Beijing: People’s Education Press, 1955), 136-139. 

 

50. Yang Huanan, Fundamental Rights and Obligations of Citizens in the People’s Republic of China (Beijing: China Youth Publishing House, 1955), 4. 

 

51. Li Zhongxia, “Social Logic and Chinese Model of Constitutional Function Transformation”, Chinese Journal of Law 2 (2022).

 

52. Xu Panqiu, Common Sense of Constitution (Shanghai: New Knowledge Publishing House, 1954), 52 and 62-63. 

 

53. Lin Laifan, From Constitutional Norms to Normative Constitutions — A Preface for Normative Constitutional Jurisprudence (Beijing: Commercial Press, 2017), 262-263. 

 

54.Карпинский(Karpinsky),The Soviet Union: Society·State · People, translated by Wei Xin (Chongqing: World Book Company, 1949), 113; Xu Chongde, History of the Constitution of the People’s Republic of China (Fuzhou: Fujian People’s Publishing House, 2003), 395-39.

 

55. Wang Shijie and Qian Duansheng, Comparative Constitution (Beijing: China University of Political Science and Law Press, 1997), 129. 

 

56. R. Smend, Verfassung und Verfassungsrecht, translated by Zeng Tao (Beijing: Commercial Press, 2019), 11-12 and 16. 

 

57. Chen Yunsheng and Liu Shuzhen, A Brief Interpretation of the New Constitution (Nanchang: Jiangxi People’s Publishing House, 1983), 142. 

 

58. Hu Jinguang and Han Dayuan, The Chinese Constitution (Beijing: Law Press · China, 2018), 298. 

 

59.Карева,The Course of the Soviet Constitution, translated by Liang Da, et al. (Beijing: Wu Shi Nian Dai Press, 1949), 230 and 237-238; Liu Peihua, The Lecture Outline of the Constitution of the People’s Republic of China (Shenyang, Liaoning People’s Publishing House, 1957), 148. 

 

60. Jiang Feng, “The Problem of the Theoretical Foundation of the Civil Obligation Clause of the Constitution: A Reflective Perspective”, Peking University Law Journal 2 (2013).

 

61. Ye Jianying, “A Report on Amending the 1978 Constitution of the People’s Republic of China”, People’s Daily, March 8, 1978.

 

62. Li Dazhao, Collected Works of Li Dazhao on Law (Beijing: Law Press · China, 2014), 238. 

 

63. For the constitutional interpretation of the relationship between the individual and the community, see Xu Ruichao, “The Category and the Essence of Third-party Effect of Fundamental Rights”, SJTU Law Review 1 (2021).

 

64. For details, see Xu Ruichao, “The Third Party Effect of Fundamental Rights in Germany”, Journal of Soochow University (Law Edition) 1 (2017); Li Dazhao, Collected Works of Li Dazhao on Law.