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Assignment代写:The constitution of society

2018-07-16 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- The constitution of society,供大家参考学习,这篇论文讨论了社会宪法。在全球层面上,由于政治宪法始终无法运转,各种全球社会体制的离心倾向和相互侵犯更加严重,已经造成了新的宪法问题。全球社会宪法应运而生,旨在支撑和驯服不同的全球社会力量,因此呈现随体制而异的片段化形态。政治宪法缺位的全球层面,失控的社会宪法问题只能依靠全球社会宪法解决。

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National political constitution is a kind of special constitution, it is difficult to areas other than the other social political implementation oriented constructive and restrictive dual functions, balance the autonomy and expansion of the social system. At the global level, the continuing failure of the political constitution and the increasing centrifugal tendencies and mutual violations of various global social systems have created new constitutional problems. The global social constitution came into being to support and tame different global social forces. Therefore, it took on a "fragmented" form, which was different from the system. The inevitable collision between constitutional fragments of global society should be solved by a new conflict law.

The reformed political and constitutional instruments can barely cope with the social constitutional problems within the nation-state; But in the absence of a political constitution in the global level, the runaway social constitutional problems can only be solved by the "global social constitution". Practice, the world trade organization, the international labor organization, the international chamber of commerce, the Internet corporation for assigned names and Numbers icann, businessmen and other supranational social system specification, the basis of the already have global social prototype of the constitution. Various supranational system, initially may only be a product of the state public or private order, but with the emergence of corresponding specification, gradually by the "legalization" state transition to a "constitutional" state.

Unlike the political constitution, the constitutional attributes of these basic norms are not related to specific constitutional texts or historic constitutional actions, but mainly reflected in two aspects. On the one hand, they effectively implement the constitutive function of the constitution and support the global autonomy and self-foundation of various functional systems. Supranational economic, science, art, education, mass media, Internet system, with its basic specification, break itself and the national political, legal, the closed structure of the coupling between various functions with specific interconnected communication in the global scope, thus releasing huge parallel development momentum. On the other hand, as a reflective "secondary norm", they have helped supranational institutions achieve independent legal creation, legal recognition and legal sanctions. What is decisive is that many areas of global society have established special dispute settlement mechanisms to deal with internal disputes in accordance with their own laws rather than national laws. In the world trade organisation, for example, the panel of experts and the permanent appellate body are subject to the wto rules of "final adjudication of two trials" and approve "reprisals" if the losing party fails to implement the ruling. "Global merchants method" is more remarkable in the field of: a large number of international commercial trade and international professional association, the international business organization, the use of investment projects in developing countries, depend entirely on the contract created rules, the effectiveness of these rules does not come from the law of the country, but from the contracts between merchants itself; The settlement of transnational commercial disputes is not mainly to the national court, but to the international arbitration institution agreed in the contract, which in turn regards the contract rules themselves as the basis of judgment.

Visible, global social constitution to vary with system of "fragmentation" form, unlike national political constitution, which constitute a unified whole, and with the attitude of "basic law" to other areas of the law for the common law. This is because the function caused the "multi-center globalization", each kind of function of the global system or global social system are realized self reproduction, were required to be adapted to the special constitution inherent logic and operation way. In the global art, for example, explicitly deny democratic rights and formal organization compulsory Settings, against the artistic standard of monopoly, emphasize to encourage innovation as the goal of freedom of expression and the intellectual property rights to provide constitutional protection; To realize fair competition in the field of global sports, "legislation" is more should comply with the "sports law" instead of the democratic process, "justice" must be more instant than court judge, fuzzy and not allow errors, in addition, the world anti-doping regulations, and the world anti-doping agency has a special importance in the global sports law.

Global Internet "digital constitution" provides a more extreme example - than is focused on the political constitution of the medium of "power", "digital constitution" attempts to release medium and constraint system is the "code" of the Internet, so we can not adopt the same as the former. First of all, the political constitution emphasizes "separation of powers", but the code has the attribute of self-enforcement, and the combination of legal creation, legal application and law enforcement. Second, the political constitution default behavior regulation, expected to construct and the separation of conflict resolution, especially the judicial principle of "not to talk to" set aside the autonomous space for the society, the code is again three about one; Finally, the political constitution not completely ruled out room for legal interpretation, according to new facts and new value rules of fine-tuning is always possible, "0/1" code is highly formalized, rejection, "grey area". All these situations show that compared with the political system, the Internet system poses a special threat to the independence of individuals and institutions. For that matter, "digital constitution" must be a different approach, such as through "the open source movement" expanding areas of Internet system spontaneously, and as in the Internet corporation for assigned names and Numbers icann arbitration practice development and the application of "Internet basic rights", and including the open principle, the principle of anonymous, from control principle, the hierarchical principle, a principle "Internet".

On the other hand, the main defects in the current global social constitution practice, is not find a suitable way to vary with the target system, in order to avoid system the excessive expansion of inner energy and explosion danger. As mentioned above, the vast majority of global social systems are not stunted, but rather self-destructive tendencies and negative externalities. The constitutive function of constitutional fragments of global society has been well developed, but its restrictive function is often absent. The main cause of failure is not the lack of external pressure imposed by the constitution, but the failure of external pressure to find the right focus and the ability to activate the self-restraint of the target system. In the final analysis, only the internal self-reflection mechanism of the system can tame its inherent power, and the role of the constitution is only to provide external rule support for these self-reflection mechanisms. Of the current global financial crisis, for example, the commercial bank credit super hair problem, can't be solved through national sovereign guarantee and financial aid, multinational central bank and currency system reform is the only way; Facing the industrial production of worldwide resource depletion and environment pollution problem, in addition to the tax regulation and administrative punishment, should also through product boycott, public interest litigation, the environmental movement, ecological investment way, change the economic system in the field of spontaneous consumer preferences; To the governance of global scientific research misconduct, or false news, global mass media cannot rely on the government's rewards and punishment system, tort litigation or town government agencies, and the introduction of autonomous professional evaluation mechanism and the committee system... Only by setting the reverse structure according to the specific communication media of the target system and improving the self-reflection ability of the system can various constitutional fragments of the global society effectively play the function of restriction. As toibner said: "fire against fire; Right to counterclaim; The law of law; Money is king.

To sum up, basically because of supranational social media system does not use the power of the political system, but with the help of other functional system of media communication, their constitution in terms of organizational norms and basic rights, or the execution of a function and limit the means of sexual function, great differences are related to national political constitution. As a result of the double reflection of the target function system and the legal system, the global social constitution is and should be many independent constitutional fragments.

The fragmentary development of the global social constitution directly caused the violent collision between each other. Based on empirical observations, in buner Outlines the supranational system constitution conflict between "four kinds of typical case: one is that the similar case, multiple conflicting supranational system specification, such as international human rights law and international humanitarian conflicts of the laws of war; Second, courts in one system face the question of whether to apply the norms of another system. Third, the same legal issues are referred to different arbitration systems, such as Chile's "arrow fish" case submitted to the wto and the international tribunal for the law of the sea respectively. Fourth, different international tribunal may explain the same legal norms in different ways, such as when in non-state actor's behavior must be attributable to the state, the Hague international court of justice and the former Yugoslavia international arbitration court of controversy.

Four kinds of circumstances are not simple policy disputes or specification differences, but in the global constitution all the fragments collide with each other, which involves the reproduction from the perspective of the constitution of the world all social system's "rational" conflict, supranational "gods" in the field of society. Without a global center position or highest authority have the ability to resolve the collision: the economic constitution, political controversy between constitution and social constitution "court" in the world, and balance the function of the unity of the development trend in the field of global political constitution, from the experience already proven to be a delusion; The ambition of "economic imperialism", especially the attempt to coordinate the subareas of world society with "global capital markets", has also been frustrated by the global financial crisis in recent years. Needless to say, to establish a kind of any global constitutional order as the supreme principle, will destroy other social identity of constitution and the autonomy of the social system attributes, and then destroy the function of social differentiation itself.

The crux of the problem is that there is no objective, neutral standpoint to deal with the equal global system and the global constitutional conflict. However, on the one hand, the global system conflict can still through the "talks" to seek reconciliation, accordingly, the global constitution can be negotiated and dedicated to the supply of due process and guarantee the equal status of the negotiators. This way is beneficial to reach a consensus and get executed, but in the specific historical stage, some of the "hegemony" such as the world trade organization may not want to "to" sit for negotiation, "weak system" and other relative lack of bargaining power. On the other hand, private international law has also brought many Revelations. Traditional private international law is mainly aimed at conflicts between the legal orders of different countries. Such conflicts, like those between different parts of the global constitution, are "non-hierarchical conflicts". If the former problem is ultimately solved in a nation state with a legal conflict, the latter problem can also be solved within a conflicting global system. This requires the development of a set of "new conflict laws" between the constitutions of the global community. However, based on differences in regulating object, especially considering the conflict to be resolved in the vertical between national law and order operation of supranational system, a new conflict traditional method to deal with some of the key links of private international law amended.

First of all, on the choice of "jurisdiction" and "applicable law" confirmed, in view of the core problem is no longer dispute about "the city" is located and where the legal relationship, but involves the legal relationship of "main" more closely contact which function system, it is necessary to "system properties" replace traditional dependency "doctrine" in private international law. Functional differentiation continuously expand worldwide, deeper reality, determines the first principle of the new conflict of laws: dispute legal relationship of "main category" exists in which within the global system, what kind of system should be by the referee organization shall be under the jurisdiction of and special rules for processing or use what kind of system. This is the first step in the revision.

The second step of the amendment is to exclude the simple application of the traditional "induced" norms of private international law. As is known to all, without getting involved in the problem of "reservation of public order", under the condition of the traditional private international law adopts the technology of the cause, essence of the whole dispute to one or another country law and order processing. According to the social system theory analysis, the legitimacy foundation of the arrangement is not international "comity", but in the national law as a "total order", fully implement the stability of social life in all areas "normative expectations" function, so the effective principles, norms, policies more or less exist between "internal balance". Different from the laws of nation-states, all kinds of global laws are "self-respecting", completely dependent on the inherent logic of a single functional system, and lack the internal motivation to balance the global "public interest". Therefore, it is inevitable for either party to deal with the inter-institutional conflicts at the global level "fully", to indulge one-sided rational standards and encourage the centrifugal tendencies of the world society.

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