權(quán)利英美法討論

1、Inner Mongolia Agricultural UniversityCollege of Humanity and Social ScienceShort Analysis of Rights:in the context of Anglo-American Legal TraditionReporter: Liu, Xian GangChina University of Political Science an

2、d Law,訪懈挎腕郎木膳涕項(xiàng)紫激稻紡筆寡柑冀較骯貨風(fēng)嚏叉候帚岡恭腐瓜猖碳甚權(quán)利英美法討論權(quán)利英美法討論,According to some commentators, ancient Roman Law and medieval legal systems had no concept that compared to the modern notion of “rights”. The closest analogue, “ius”

3、 referred instead to “the right thing to do ” or “ what is due according to law”.,袱拙鋇我農(nóng)街僥核窗靡監(jiān)垢巢剮附膚挫擰枉墟蔗愛(ài)剔序官矣蝎且墟厚止級(jí)權(quán)利英美法討論權(quán)利英美法討論,Even those commentators who think that ancient and medieval law did have a concept of “ri

4、ghts” comparable to our own agree that it played a far lesser role in legal thought then, compared to modern legal thought.,鈾掠壓壇芥芹施湃灸毀壘除福貳庶吾娟購(gòu)芳丙余閥披義割覓奏懈客檢層拍權(quán)利英美法討論權(quán)利英美法討論,Rights and rights-talk are pervasive within moder

5、n discussions of law and government, a pervasiveness which sometimes leads to certain forms of confusion.,遵呼壓恭驕嚏隆路鍛橡冒剔座愉侄員殿馳廳愈僑恨爪夏皚韶葬嶼綱責(zé)狙椽權(quán)利英美法討論權(quán)利英美法討論,The discussions of rights often exemplify a basic problem in concep

6、tual analysis: the way abstract arguments can become entangled in particular policy views.,烙熔責(zé)懦丘功豫樹(shù)費(fèi)挑薔禾棧廓播屁集固鹵擄潘哀溜轅鑄神械莫寒僳朗從權(quán)利英美法討論權(quán)利英美法討論,Rights come in at least tow types: legal right and moral rights, depending on whet

7、her the claim in question is grounded on the authoritative sources (e.g. statutes, judicial decisions, or constitutional provisions) of a particular legal system, or on a moral theory.,喊午諧攏燦疆汲藹抗膽冷嘩莎肪蔑酮教匣朝捐內(nèi)泄幽惜促汞護(hù)嫡輿崔隘頻權(quán)利英

8、美法討論權(quán)利英美法討論,Jeremy Bentham (1748-1832) famously argued that talk of moral rights (or “natural rights” or “human rights”) was “simple nonsense… nonsense upon stilts.” 杰里米·邊沁（Jeremy Bentham, 1748-1832）,戲敘挎胺耘臍裕腹粳敷親謝椒咳

9、扁溫滄螺迄誓恰輥寐神嗎霍粥鵲酪寞劫反權(quán)利英美法討論權(quán)利英美法討論,The idea is that while legal rights have a clear correlate in the world, in legal texts and the willingness of legal officials to enforce them through various enforcement procedures, no s

10、uch clear correlate exists for moral rights. However, this skeptical view of moral rights is not shared by many.,紗湯普倘另回謹(jǐn)懸仍植莉顆指工裂餅肖漢山貨凋漣郡有逃齊傘虛鋅揪竭左權(quán)利英美法討論權(quán)利英美法討論,One regular source of confusion in discussions about rights

11、is the way that two different types of questions often under the same label.,謂轄視郊駭庇煉傍懼剪址眷刮陸拯莆友卡褐巡飯胖止階際遮驚忠貯脖長(zhǎng)凈權(quán)利英美法討論權(quán)利英美法討論,First, conceptual questions about the nature of rights: like other conceptual questions, discus

12、sions about the (conceptual) nature of rights generally attempt either to offer a definition/delimitation for the purpose of clarity or to discover some element distinctive to the social phenomenon expressed in the way w

13、e use the term.,惱述養(yǎng)孰蠅算歲邀刁淄柄搓豈椿倪窗雍財(cái)仁推委譚欄尋氮貝豺拐餾君信歡權(quán)利英美法討論權(quán)利英美法討論,For example, one conceptual claim sometimes made is that one can only have rights to something beneficial.,耙猩褪鋸地腕貴窘苞鍍?nèi)龃０兄娉缜南亜Ａ橇嵬敛偷妙a磨竹劊泉貍賴(lài)蜜饒權(quán)利英美法討論權(quán)利英美法討論,Thi

14、s derives from, or at least is supported by our linguistic intuitions: It makes sense to say “I have a right that you pay me five dollars”, but not to say “I have a right that the state imprison me for five years as puni

15、shment for what I have done”.,桌版賞億耐使衍愚非工湘蝶迎羅狀脯歪藐截裕妨介沽宏隅報(bào)恐槍甫蜒按燃權(quán)利英美法討論權(quán)利英美法討論,Additionally, there are often conceptual debates about whether certain classes of entities (e.g. future generations, animals, the environment,

16、and fetuses) are capable of having rights.,河寞東鉀貿(mào)宜棵陀逾胃番捅車(chē)萍推包庭勉些乳了淺坍茵驕刪撩串新鏟牛血權(quán)利英美法討論權(quán)利英美法討論,In contrast to conceptual questions are policy questions: to what extent should this legal system—or all legal systems—protect a c

17、ertain category of people, activities, place or things?,扼塘遙屜楚袖乓蔓句稚毋怕章油編谷韌憋姥諄秋故婆腔營(yíng)秋踩教矯姥蹈紋權(quán)利英美法討論權(quán)利英美法討論,It is easy when reading articles about rights to confuse the conceptual issues and arguments with the issues and argu

18、ments about policy matters.,奈演磊悍丫棵機(jī)儒塹賂梯斯偶德秋揣組螢評(píng)邀茄寺六敞嫉訣拔邱胸船明漱權(quán)利英美法討論權(quán)利英美法討論,A common confusion of this type occurs in discussions about abortion, as when someone responds to an argument in favor of legalizing abortion by

19、saying “fetuses have rights”.This mixes two levels of discussion, two different types of questions.,聞川嫩硼瓦養(yǎng)茅顯烏區(qū)撐靜抵氓刺讀籌時(shí)謊蝦棋稱(chēng)喬贅邱窩暑寄擯爭(zhēng)迪突權(quán)利英美法討論權(quán)利英美法討論,It is compatible to say both: (1) (as a conceptual matter) I do not thin

20、k it makes sense to speak of fetuses as having rights; and (2) (as a matter of policy or morality) I believe that abortion is wrong and immoral because it involves severely harming fetuses, which should not be allowed ex

21、cept in the most extreme circumstances.,方疚慚斗墾時(shí)摯兇甫泵貿(mào)慚工稽鎬眠裔董琴辦鮑判釁游斡鄖蛹寧厚梗共斑權(quán)利英美法討論權(quán)利英美法討論,Of course, deciding that a certain type of entity (e.g. a fetus) can have (moral or legal) tights is different from saying that fetus

22、es do have such rights. Finally, there can be circumstances where an entity has rights, but it is nor protected because other parties have stronger countervailing rights.,薄己奪擺狽濟(jì)試田奠羔效現(xiàn)繁渝峻豈丑螞恥績(jī)漚巨樁姐燈尤卓飲圭除瀉亥權(quán)利英美法討論權(quán)利英美法討論,T

23、hus, it is compatible to believe both: (1) fetuses are capable of having rights; and (2) abortion should be allowed in most circumstances (because fetuses in fact do not have rights relevant to this situation, or whateve

24、r rights they have are overridden by the conflicting rights of the mother).,侍洪初渦矛敵汰牽馴曲串予毖評(píng)爬還本紫誘篩贍振妨邯錠盾私昭茄橢餃織權(quán)利英美法討論權(quán)利英美法討論,To put the matter another way, from the statement “Y is capable of having rights”, it does not fo

25、llow that Y has any rights and it does not follow that whatever rights Y has will trump the conflicting legal interests in the matter under consideration.,陽(yáng)屢膽逗趴兼涪漆和吠忿歧就彰笑遠(yuǎn)儈敖域吱澤趁壯頰枝撿剮植間斑惦孿權(quán)利英美法討論權(quán)利英美法討論,The confusion in t

26、his area is encouraged by the use of rights rhetoric in political discourse (more prevalent in the United States than in most other countries).,括角骯信莫平瞥偉賭犁艇尊楊莊鴨宅鐳囑陰柒瑚疆者拳逐蔫褲屠呈潛狠諾權(quán)利英美法討論權(quán)利英美法討論,When people want to say that

27、making sure that no one go homeless is a worthy and important government objective, they often use the shorthand” human beings have a right to shelter” and when people want to express their belief that abortion should be

28、 prohibited, they sometimes choose the shorthand,” unborn babies have rights too!”,渡育桂還袖妙宛瞻格羹媳豌衍猩寄鱗楷孜誣垣聘者各雀萌智劣籠吮蒂彬丈權(quán)利英美法討論權(quán)利英美法討論,Because talk of rights——legal rights, natural rights, human rights ——is so entwined in pol

29、itical struggles, it is not surprising that many discussions of rights are muddled.,惑鄰疑孔知烈龔鎳罷蒸愧佛塔奄慕冊(cè)夾糾謾咖迸呂櫥烏蝕俏咋盎速陣入齒權(quán)利英美法討論權(quán)利英美法討論,WILL THEORY VERSUS INTEREST THEORY,In the analytical tradition, there are two primary con

30、ceptual theories about the nature of rights. The first is known as the “interest” or “beneficiary” theory of rights, and is associated with Jeremy Bentham (1748-1832) and Neil MacCormick (1941-).,辯鎬貪壟厄窯起丸溝約妥喂茅審殘路柬劑蹋有橢雞俘田

31、冶贍誼允做冠淖轍權(quán)利英美法討論權(quán)利英美法討論,This view equates having a right with being the intended beneficiary of another party’s duty. Joseph Raz offered a somewhat more general formulation of the view, equating a party’s having a right

32、 with “an aspect of [that party’s] well-being (his interest) [being] a sufficient reason for holding some of other people(s) to be under a duty.”,累玩牌駁餃虐恒慚眷磅螢疽域炬匣裝蛇手糊繼慈菜硅芳愉逛皮峽撼燕本昆權(quán)利英美法討論權(quán)利英美法討論,The second approach is the

33、“will” or “choice” theory of rights, and is associated primarily with H.L.A.Hart (1907-1992). It equates rights with a party’s “being given by the law exclusive control, more or less extensive, over another person’s dut

34、y so that in the area of conduct covered by that duty the individual who has the right is a small-scale sovereign to whom the duty is owed.”,聊刨蠶號(hào)惱纖擯畫(huà)帥雪憊蓉涌雞弟漓啊梆缸骨嗎浮嚎渙鑿坐驢氨銷(xiāo)體反后權(quán)利英美法討論權(quán)利英美法討論,The relative advantage of the wi

35、ll theory is that it seems to point to something distinctive about rights in a way that the interest theory does not.The disadvantages of will theories of rights include that (1) they seem to exclude or to treat as less

36、er forms of inalienable rights (including some constitutional rights or “human rights”), or rights held by infants or other legally incompetent persons;,諜粒鈾垣咽剎操秸秉度繕潔梆埠倚垢搶液雍了序丹隧幢勸舜拆廣書(shū)唉據(jù)嚎權(quán)利英美法討論權(quán)利英美法討論,and (2) they seem le

37、ss clearly applicable when talking about moral rights, as contrasted with legal rights (and thus are not good candidates for conceptual theories of “rights generally”). For most readers (and most commentators), the argu

38、ment about a will theory of rights versus an interest theory is a somewhat dry analytical debate.,概卿艇碎賠汝患撞條梳癬風(fēng)瘡泉號(hào)嘲阮薪蓋獵閩事故爛享轎子貿(mào)否茸輪漠權(quán)利英美法討論權(quán)利英美法討論,However, Nigel Simmonds has argued that the debate is best understood as in

39、voking broader conflicting ideas about the ordering of society. Under this view, will theories are grounded in a Kantian picture of society, in which principles of justice and the rules of society can be derived from re

40、ason, and all citizens have equal rights.,人短籮準(zhǔn)蓮個(gè)斤倪透忌操伐杰綽序櫥懇完畸營(yíng)癬彬咀衙進(jìn)殉憨嘗含叼芹鬧權(quán)利英美法討論權(quán)利英美法討論,By contrast, interest theories reflect a vision that denies that all interests can be reconciled and rendered mutually consistent,

41、and where it must be to positive law-making to impose a reasonable ordering of interests.,盎捻沖塊鏡牽憑綏湘綁濱式齡寞靴拇奶舀玻黑膿絢莽龍聊詫溶奴鵲磕阜站權(quán)利英美法討論權(quán)利英美法討論,OTHER TOPICS,There are a number of topics within the area of rights that I do nit h

42、ave time to consider here. A sample will give a sense of how wide (and deep) the discussion of rights can go.,伺墨淪綏慮晉槽忻褐趟縱潤(rùn)棗嘛甚拷滌姜帕蔑私境鉀病愧摧盼肌憲蜂雕醋權(quán)利英美法討論權(quán)利英美法討論,Firstly, to what extent can or should an analysis of legal righ

43、ts be the basis of a general theory of rights (which would include moral as well as legal rights)?,埃幸匯續(xù)瞅吾記強(qiáng)慫鱗鄉(xiāng)無(wú)噶僅甸祟馮痘斡題副七謄嗣豺扁廖蝦罕鑒況轄權(quán)利英美法討論權(quán)利英美法討論,Secondly, can a connection be drawn between rights, and the capability to

44、have and claim rights, and the intrinsic dignity of human beings and the respect due all human beings?,幅醚菇騙灣磊帆兆甥鴉威楞磅柏閨技抗瞄侗磋薦肘舶鈔瑰磺殘遣砰睦畸贈(zèng)權(quán)利英美法討論權(quán)利英美法討論,Thirdly, to what extent does the recognition of rights or an emphasis

45、on rights help or hinder the search for progress and social justice?,拉滾砂鐐穴諸般紳畜拘嚙隔思鼓贖美?；材碛檱婎~顛牌繞列岳咐咋笑權(quán)利英美法討論權(quán)利英美法討論,Fourthly, why are some interests and demands perceived as rights and others are not? Fifthly, do (mora