The inevitability of the emergence of economic law

Since the First World War, the economic law from the emergence to the development of nearly a hundred years of history. Nevertheless, the legal profession is still debating whether economic law is an independent legal department. The negative school believes that because economic law does not exist independent of the object and method of adjustment, so it can not become an independent legal sector; while the affirmative school is mainly from the perspective of social practice, especially to overcome market failure to argue that economic law is an independent emerging legal sector. From the performance of the two different points of view of the debate seems to be limited to the economic law is an independent legal sector; in fact, from a deeper level, the two are in fact on the inevitability of the emergence of economic law to recognize the existence of diametrically opposed points of view. This paper intends to amend and improve the traditional economic law theory about the inevitability of economic law to further demonstrate that the emergence and development of the economy is the inevitable result of the progress of human society.

I, market failure phenomenon analysis

(a) the existence of market failure

The market, originally refers to the original meaning of the exchange of goods, and later gradually evolved into a social resource allocation mechanism. The great classical economist Adam Smith once compared it to the "invisible hand", and believed that if there is no intervention from any external force, this hand can guide people to maximize their own interests while maximizing the interests of society, which is called the invisible hand theory. [①] Although the market is the most effective way of resource allocation discovered by human society so far, it is not omnipotent as described by the invisible hand theory. Welfare economists, represented by Picourt and others, have concluded through normative analysis that because monopoly, externality and social inequality are problems inherent in a free competitive market but cannot be solved by the market itself, the market is flawed and the invisible hand will fail. [②] Market Failure (Market Failure), also translated as market failure, which generally refers to the market mechanism in certain occasions will lead to the improper allocation of resources, so that the free market equilibrium deviates from the Pareto optimal state. The occurrence of market failure is not accidental, but inevitable. From a philosophical point of view, the two sides of things and the principle of development and change shows that the market can not always be flawless, when the market operating environment changes and development reaches a certain stage, the market itself will inevitably be exposed to the defects that exist in the market will be out of the market failure; modern economic theory and social practice has also proved that: in the modern economic environment, due to the public **** products, externality, monopoly (including natural monopoly), information incompleteness, the market failure. Modern economic theory research and social practice has also proved that: in the modern economic environment, due to the public *** product, externalities, monopoly (including natural monopoly), incomplete and unbalanced information and other factors, a single market resource allocation mechanism is not possible to complete the task of building a benign market order. [③] Modern market failure has the following main manifestations: (1) inequitable distribution of income and wealth; (2) the problem of negative external effects; (3) the failure of competition and the formation of market monopolies; (4) the problem of unemployment; (5) the problem of regional economic incoherence; (6) the insufficient supply of public *** products; (7) the transitional use of public *** resources, and so on. These manifestations are the inevitable product of the intensification of contradictions within the market, market failure is also one of the objective existence of economic laws.

(ii) market failure is an abstract expression

Market failure is the market can not complete all the economic phenomenon of the allocation of social resources to make an abstract language generalization. It is in the form of universal, but its respective content is often relatively specific. This is specifically manifested in two aspects: first, the degree of market failure at different stages and the specific forms of expression are different. As a social resource allocation mechanism, the function of the market itself is limited. When the market operating environment on the market itself more and more demanding, the relative defects of the market will be exposed more and more, the market will be more and more appear to be dysfunctional or even appear completely paralyzed. The social development process of western countries is the best proof. When western capitalism just got rid of the constraints of the feudal system, due to the relatively low requirements of the economic operating environment at that time, the market was able to accomplish almost all the allocation of social resources. It was in this particular social environment that Adam Smith's invisible hand theory was born, which was indiscriminately used throughout the era of classical economics. The good times did not last long, along with the development of the commodity economy from low to high level, the market failure is becoming more and more serious, for example, the weak trading rules lead to the proliferation of fraud gradually rises to the business behavior of the irregularities lead to a substantial increase in transaction costs until the emergence of the great capitalist economic crisis in 1933. Secondly, market failure varies from country to country and region to region. Due to the different level of development of productive forces in each country or region, the performance of market failure in these countries and regions also has great differences. Some countries or regions of the market failure has reached the point where the government must be naked public power to intervene openly, most of the world's more economically developed countries or regions belong to this type; while some countries or regions are still at the end of the market free allocation stage, this situation generally occurs in the more economically backward small and medium-sized countries. It is worth pointing out that, even if the level of economic development is basically at the same level of countries or regions, affected by a variety of factors, the specific situation of market failure between them is not the same, often showing a personalized color. The study of the relative specificity of market failure for us to define the different countries or regions of the economic development and development has a profound significance, it shows that different countries or regions of the economic law and the development of the specific time is not the same, on the economic law of the generation of time to generalize the conclusion of the practice is not scientific.

Market failure as a social and economic phenomenon of the abstract expression, it itself has the objectivity, it does not change the existence of people's discovery or not. The significance of people being able to realize that the market will also fail lies in the ability to give full play to human initiative to create conditions to gradually change the existence of market failure, and gradually reduce the side effects it brings to society. But human beings can not completely eliminate market failure, unless human society does not exist commodity exchange. Recognize and affirm the objectivity of market failure for us to study the inevitability of economic law has fundamental significance. China's traditional economic law theory is generally public **** welfare theory of "market failure" as the most basic reason for the inevitability of economic law. The author believes that, although China's traditional economic law theory basically clearly explains the inevitability of economic law, but its own expression and logic of reasoning needs to be part of the correction and improvement, so as not to cause unnecessary controversy between the disciplines.

Two, the inevitability of economic law

(a) market failure to give birth to the corresponding legal sector

Market failure is the optimization of the allocation of social resources to the mechanism of the reaction, which will often bring great side effects to the development of the economy. Therefore, when the market order and the social and economic development of the obvious disharmony, the government will inevitably take certain measures and means of intervention, the formulation of the corresponding law is one of the important means. Because market failure has different performance in different stages, so different periods of legislation for market failure is also different. Some scholars have summarized and concluded that "along with the development of commodity economy from low to high level, the transaction costs gradually increase, civil law, commercial law, economic law has arisen one after another. The trajectory of its generation is specifically presented as follows: first of all, equal trading subjects due to fraud, breach of contract and other acts lead to the increase in transaction costs, not specific mandatory rules of the transaction evolved into a mandatory civil law norms to ensure that the rules of the transaction to be complied with, to reduce the cost of the whole society transactions; Secondly, the expansion of the size of the market players, the increase in the internal cost of the transaction, the business behavior is not uniform, non-standardized resulting in the increase of the transaction costs, the commercial law and from the civil law, the commercial law has increased. Commercial law arose and independent from the civil law; furthermore, the transaction costs continue to increase, the collapse of the market economic order, with the government's public power to directly intervene in the market transaction behavior and indirectly regulating the macroeconomic economic economic law arose." [④] Based on the above views, we can conclude that market failure has given rise to the successive emergence of the three legal departments of civil law, commercial law and economic law.

(2) Economic law is an independent and irreplaceable legal department

Through the previous analysis, the theory of market failure has sufficiently proved the inevitability of the emergence of related legal departments. At present, although there is still some controversy in the legal profession on the relationship between civil law and commercial law, but overall it is still not as intense as the debate on whether economic law is an independent legal department. Affirmative and negative schools are tit-for-tat, each arguing for its own view. From the results of the debate, if analyzed from the purely traditional theory, the negative school has a great advantage; if the social practice, the affirmative school has the upper hand. This debate essentially reflects the disconnection between theory and practice. Therefore, many scholars have y reflected and review and try to seek new theories to argue the existence of economic law department. In the author's view, since the market failure theory has proved the inevitability of the relevant legal sector, we should discuss the existence of economic law from the social reality, rather than sticking to the traditional theory. Because the so-called legal sector is essentially only scholars according to a large number of legal norms of a certain type already exist in the theory of their abstraction on the generalization and expression, so the discussion of the existence of a legal sector, the most intuitive and powerful basis is to look at the relevant legal norms whether a large number of existence; if the social reality of the objective existence of a large number of legal norms of a certain type, then the legal sector is an independent existence. If a large number of certain types of legal norms objectively exist in social reality, then the legal sector exists independently. The formation and development of civil law and criminal law have fully proved this point. As a yardstick, economic law as an independent legal department is objective existence, because from the current social reality, whether it is our country or other relatively developed countries are the reality of the existence of a considerable number of economic legal norms. Theory from practice. Since the social practice of the objective existence of economic law department, then the theory can be argued. Through the previous analysis, we can see that the market failure will inevitably give rise to a large number of laws and a series of legal departments and development, which will inevitably appear in the old and new legal departments and the separation of emerging legal departments independent. Although the emergence of new legal departments is not overnight, there is often a development process; but it is also in these processes, the legal sector system gradually undergoes great evolution. From the combination of all laws to the criminal-civil split, and then the emergence of civil-commercial separation ....... The development of the social environment is destined to change the legal sector system is not static. When the development of society to the traditional legal sector can not be tolerated, the emerging legal sector should be born. This is true for civil law, and it is also true for economic law. From the second half of the 19th century to the 1930s, Western society has changed dramatically. The traditional existing law on the regulation and control of reality more and more appear to be unable to do, social reality calls for the emergence of new types of law to make up for the existing law of the loopholes and deficiencies. This phenomenon first appeared in the United States in 1933 in the economic crisis, Roosevelt's New Deal is the best proof. During Roosevelt's New Deal, the U.S. government enacted a large number of laws that were very different from the traditional style of legislation. Scholars refer to these numerous laws with the **** of government intervention as economic laws in general. Economic law, both in form and its own content is the civil law, commercial law and other traditional legal sectors can not be accommodated. For this point, many scholars in China have done a lot of comparisons and discussion, will not repeat here. But it is worth to add is about the relationship between economic law and administrative law. In the discussion of economic law is an independent legal department, China once appeared economic administrative law theory. In the author's view, the theory's biggest flaw lies in confusing the roots of economic law and administrative law. The root cause of administrative law, like criminal law, is mainly based on the display of state sovereignty; while the creation of economic law is based on market failure. There is a fundamental difference in the nature of government behavior due to market failure and government behavior based on state sovereignty. The former is a game between the government and the market; while the latter is the government's rule over its citizens. Therefore, we cannot deny the independence of economic law because of the competing subjects of activity.

The independence of economic law does not mean the negation of other negative legal sectors. As Coase pointed out, in different economic environments, there can be a variety of legal methods to reduce transaction costs. As legal departments spawned by market failures, civil law, commercial law and economic law have their own value of independent existence.

(C) the absolute inevitability and relative contingency of the emergence of economic law

The market objectively fails, and market failure requires a large number of laws to correct, and a large part of these laws are not covered by the traditional legal sector, and these laws have been named by many scholars as economic law. Therefore, we can conclude that the emergence of economic law is objectively inevitable and absolute. It is an important manifestation and inevitable result of the abstract universality of market failure. As long as a country or region when the market failure reaches a certain level, the economic law is bound to social development needs. Recognize the market failure and the absolute inevitability of economic law for a country or region of the legislation ahead of the great significance of guidance. However, it is worth pointing out that, ahead of the economic law legislation does not mean the negation of the theory of market failure leads to the emergence of economic law, because ahead of the economic law legislation is still aimed at regulating market failure.

Philosophical principles tell us that absolute necessity and relative contingency is organic unity. Affirmation of the absolute necessity of economic law does not negate the relative contingency of its production. The so-called relative contingency of the economic law refers to different countries or regions of the economic law time and way often due to a variety of specific factors present a big difference, it is the market failure of the relative specificity of the performance and the inevitable result. Recognize the relative contingency of the economic law for us to solve the time of economic law has great practical significance. The relative contingency of economic law illustrates the non-scientific nature of the generalized discussion of the time of the emergence of economic law.

Concluding Remarks

The debate over the independence of economic law has been going on for nearly a hundred years. Moderate theoretical looming can promote the progress and development of society, but if you ignore the reality and excessive theoretical controversy is counterproductive. Objective law and modern social practice has proved the objective necessity of economic generation and development. Therefore, from the perspective of the social purpose of theoretical research, the independence of economic law is necessary to draw a relatively perfect conclusion.