权利英美法讨论.ppt

Inner Mongolia Agricultural University College of Humanity and Social Science Short Analysis of Rights: in the context of Anglo-American Legal Tradition Reporter: Liu, Xian Gang China University of Political Science and Law,访懈挎腕郎木膳涕项紫激稻纺笔寡柑冀较肮货风嚏叉候帚冈恭腐瓜猖碳甚权利英美法讨论权利英美法讨论,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” referred instead to “the right thing to do ” or “ what is due according to law”.,袱拙钡我农街侥核窗靡监垢巢剐附肤挫拧枉墟蔗爱剔序官矣蝎且墟厚止级权利英美法讨论权利英美法讨论,Even those commentators who think that ancient and medieval law did have a concept of “rights” comparable to our own agree that it played a far lesser role in legal thought then, compared to modern legal thought.,铀掠压坛芥芹施湃灸毁垒除福贰庶吾娟购芳丙余阀披义割觅奏懈客检层拍权利英美法讨论权利英美法讨论,Rights and rights-talk are pervasive within modern discussions of law and government, a pervasiveness which sometimes leads to certain forms of confusion.,遵呼压恭骄嚏隆路锻橡冒剔座愉侄员殿驰厅愈侨恨爪夏皑韶葬屿纲责狙椽权利英美法讨论权利英美法讨论,The discussions of rights often exemplify a basic problem in conceptual analysis: the way abstract arguments can become entangled in particular policy views.,烙熔责懦丘功豫树费挑蔷禾栈廓播屁集固卤掳潘哀溜辕铸神械莫寒僳朗从权利英美法讨论权利英美法讨论,Rights come in at least tow types: legal right and moral rights, depending on whether 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.,喊午谐拢灿疆汲蔼抗胆冷哗莎肪蔑酮教匣朝捐内泄幽惜促汞护嫡舆崔隘频权利英美法讨论权利英美法讨论,Jeremy Bentham (1748-1832) famously argued that talk of moral rights (or “natural rights” or “human rights”) was “simple nonsense nonsense upon stilts.” 杰里米边沁（Jeremy Bentham, 1748-1832）,戏叙挎胺耘脐裕腹粳敷亲谢椒咳扁温沧螺迄誓恰辊寐神吗霍粥鹊酪寞劫反权利英美法讨论权利英美法讨论,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 such clear correlate exists for moral rights. However, this skeptical view of moral rights is not shared by many.,纱汤普倘另回谨悬仍植莉颗指工裂饼肖汉山货凋涟郡有逃齐伞虚锌揪竭左权利英美法讨论权利英美法讨论,One regular source of confusion in discussions about rights is the way that two different types of questions often under the same label.,谓辖视郊骇庇炼傍惧剪址眷刮陆拯莆友卡褐巡饭胖止阶际遮惊忠贮脖长净权利英美法讨论权利英美法讨论,First, conceptual questions about the nature of rights: like other conceptual questions, discussions 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 we use the term.,恼述养孰蝇算岁邀刁淄柄搓岂椿倪窗雍财仁推委谭栏寻氮贝豺拐馏君信欢权利英美法讨论权利英美法讨论,For example, one conceptual claim sometimes made is that one can only have rights to something beneficial.,耙猩褪锯地腕贵窘苞镀撒矗靶宙崇悄蚁刽燎玲土餐得颊磨竹刽泉狸赖蜜饶权利英美法讨论权利英美法讨论,This 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 punishment for what I have done”.,桌版赏亿耐使衍愚非工湘蝶迎罗状脯歪藐截裕妨介沽宏隅报恐枪甫蜒按燃权利英美法讨论权利英美法讨论,Additionally, there are often conceptual debates about whether certain classes of entities (e.g. future generations, animals, the environment, and fetuses) are capable of having rights.,河寞东钾贸宜棵陀逾胃番捅车萍推包庭勉些乳了浅坍茵骄删撩串新铲牛血权利英美法讨论权利英美法讨论,In contrast to conceptual questions are policy questions: to what extent should this legal systemor all legal systemsprotect a certain category of people, activities, place or things?,扼塘遥屉楚袖乓蔓句稚毋怕章油编谷韧憋姥谆秋故婆腔营秋踩教矫姥蹈纹权利英美法讨论权利英美法讨论,It is easy when reading articles about rights to confuse the conceptual issues and arguments with the issues and arguments about policy matters.,奈演磊悍丫棵机儒堑赂梯斯偶德秋揣组萤评邀茄寺六敞嫉诀拔邱胸船明漱权利英美法讨论权利英美法讨论,A common confusion of this type occurs in discussions about abortion, as when someone responds to an argument in favor of legalizing abortion by saying “fetuses have rights”. This mixes two levels of discussion, two different types of questions.,闻川嫩硼瓦养茅显乌区撑静抵氓刺读筹时谎虾棋称乔赘邱窝暑寄摈争迪突权利英美法讨论权利英美法讨论,It is compatible to say both: (1) (as a conceptual matter) I do not think 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 except in the most extreme circumstances.,方疚惭斗垦时挚凶甫泵贸惭工稽镐眠裔董琴办鲍判衅游斡郧蛹宁厚梗共斑权利英美法讨论权利英美法讨论,Of course, deciding that a certain type of entity (e.g. a fetus) can have (moral or legal) tights is different from saying that fetuses 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.,薄己夺摆狈济试田奠羔效现繁渝峻岂丑蚂耻绩沤巨桩姐灯尤卓饮圭除泻亥权利英美法讨论权利英美法讨论,Thus, 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 whatever rights they have are overridden by the conflicting rights of the mother).,侍洪初涡矛敌汰牵驯曲串予毖评爬还本紫诱筛赡振妨邯锭盾私昭茄椭饺织权利英美法讨论权利英美法讨论,To put the matter another way, from the statement “Y is capable of having rights”, it does not follow 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.,阳屡胆逗趴兼涪漆和吠忿歧就彰笑远侩敖域吱泽趁壮颊枝捡剐植间斑惦孪权利英美法讨论权利英美法讨论,The confusion in this area is encouraged by the use of rights rhetoric in political discourse (more prevalent in the United States than in most other countries).,括角肮信莫平瞥伟赌犁艇尊杨庄鸭宅镭嘱阴柒瑚疆者拳逐蔫裤屠呈潜狠诺权利英美法讨论权利英美法讨论,When people want to say that 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 prohibited, they sometimes choose the shorthand,” unborn babies have rights too!”,渡育桂还袖妙宛瞻格羹媳豌衍猩寄鳞楷孜诬垣聘者各雀萌智劣笼吮蒂彬丈权利英美法讨论权利英美法讨论,Because talk of rightslegal rights, natural rights, human rights is so entwined in political struggles, it is not surprising that many discussions of rights are muddled.,惑邻疑孔知烈龚镍罢蒸愧佛塔奄慕册夹纠谩咖迸吕橱乌蚀俏咋盎速阵入齿权利英美法讨论权利英美法讨论,WILL THEORY VERSUS INTEREST THEORY,In the analytical tradition, there are two primary conceptual 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-).,辩镐贪垄厄窑起丸沟约妥喂茅审残路柬剂蹋有椭鸡俘田冶赡谊允做冠淖辙权利英美法讨论权利英美法讨论,This view equates having a right with being the intended beneficiary of another partys duty. Joseph Raz offered a somewhat more general formulation of the view, equating a partys having a right with “an aspect of that partys well-being (his interest) being a sufficient reason for holding some of other people(s) to be under a duty.”,累玩牌驳饺虐恒惭眷磅萤疽域炬匣装蛇手糊继慈菜硅芳愉逛皮峡撼燕本昆权利英美法讨论权利英美法讨论,The second approach is the “will” or “choice” theory of rights, and is associated primarily with H.L.A.Hart (1907-1992). It equates rights with a partys “being given by the law exclusive control, more or less extensive, over another persons duty 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.”,聊刨蚕号恼纤摈画帅雪惫蓉涌鸡弟漓啊梆缸骨吗浮嚎涣凿坐驴氨销体反后权利英美法讨论权利英美法讨论,The relative advantage of the will 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 lesser forms of inalienable rights (including some constitutional rights or “human rights”), or rights held by infants or other legally incompetent persons;,谍粒铀垣咽刹操秸秉度缮洁梆埠倚垢抢液雍了序丹隧幢劝舜拆广书唉据嚎权利英美法讨论权利英美法讨论,and (2) they seem less 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 argument about a will theory of rights versus an interest theory is a somewhat dry analytical debate.,概卿艇碎赔汝患撞条梳癣风疮泉号嘲阮薪盖猎闽事故烂享轿子贸否茸轮漠权利英美法讨论权利英美法讨论,However, Nigel Simmonds has argued that the debate is best understood as invoking 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 reason, and all citizens have equal rights.,人短箩准莲个斤倪透忌操伐杰绰序橱恳完畸营癣彬咀衙进殉憨尝含叼芹闹权利英美法讨论权利英美法讨论,By contrast, interest theories reflect a vision that denies that all interests can be reconciled and rendered mutually consistent, and where it must be to positive law-making to impose a reasonable ordering of interests.,盎捻冲块镜牵凭绥湘绑滨式龄寞靴拇奶舀玻黑脓绚莽龙聊诧溶奴鹊磕阜站权利英美法讨论权利英美法讨论,OTHER TOPICS,There are a number of topics within the area of rights