权利英美法讨论.ppt

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1、Inner Mongolia Agricultural UniversityInner Mongolia Agricultural UniversityCollege of Humanity and Social ScienceCollege of Humanity and Social ScienceShort Analysis of Rights:Short Analysis of Rights:in the context of Anglo-American Legal Traditionin the context of Anglo-American Legal TraditionRe

2、porter:Liu,Xian GangReporter:Liu,Xian GangChina University of Political Science and LawChina University of Political Science and Law第九章第九章 惩罚惩罚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

3、,“ius”referred instead to“the right thing to do”or “what is due according to law”.第九章第九章 惩罚惩罚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 though

4、t.第九章第九章 惩罚惩罚Rights and rights-talk are pervasive within modern discussions of law and government,a pervasiveness which sometimes leads to certain forms of confusion.第九章第九章 惩罚惩罚The discussions of rights often exemplify a basic problem in conceptual analysis:the way abstract arguments can become enta

5、ngled in particular policy views.第九章第九章 惩罚惩罚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 theor

6、y.第九章第九章 惩罚惩罚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）第九章第九章 惩罚惩罚 The idea is that while legal rights have a clear correlate in the world,in legal texts and the willi

7、ngness 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.第九章第九章 惩罚惩罚One regular source of confusion in discussions about rights is the way that two different type

8、s of questions often under the same label.第九章第九章 惩罚惩罚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 elem

9、ent distinctive to the social phenomenon expressed in the way we use the term.第九章第九章 惩罚惩罚For example,one conceptual claim sometimes made is that one can only have rights to something beneficial.第九章第九章 惩罚惩罚This derives from,or at least is supported by our linguistic intuitions:It makes sense to say“I

10、 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”.第九章第九章 惩罚惩罚Additionally,there are often conceptual debates about whether certain classes of entities(e.g.future generations,animals,the environment,

11、and fetuses)are capable of having rights.第九章第九章 惩罚惩罚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?第九章第九章 惩罚惩罚It is easy when reading articles about rights to confuse

12、the conceptual issues and arguments with the issues and arguments about policy matters.第九章第九章 惩罚惩罚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 discu

13、ssion,two different types of questions.第九章第九章 惩罚惩罚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 fetu

14、ses,which should not be allowed except in the most extreme circumstances.第九章第九章 惩罚惩罚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

15、it is nor protected because other parties have stronger countervailing rights.第九章第九章 惩罚惩罚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 whate

16、ver rights they have are overridden by the conflicting rights of the mother).第九章第九章 惩罚惩罚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 interest

17、s in the matter under consideration.第九章第九章 惩罚惩罚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).第九章第九章 惩罚惩罚When people want to say that making sure that no one go homeless is a worthy and i

18、mportant 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!”第九章第九章 惩罚惩罚Because talk of rightslegal rights,natural ri

19、ghts,human rights is so entwined in political struggles,it is not surprising that many discussions of rights are muddled.第九章第九章 惩罚惩罚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”o

20、r“beneficiary”theory of rights,and is associated with Jeremy Bentham(1748-1832)and Neil MacCormick(1941-).第九章第九章 惩罚惩罚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

21、 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.”第九章第九章 惩罚惩罚The second approach is the“will”or“choice”theory of rights,and is associated primarily with (1907-1992).It equates rights with a partys“being giv

22、en 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.”第九章第九章 惩罚惩罚The relative advantage of the will theory is that it seems to point to

23、 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

24、legally incompetent persons;第九章第九章 惩罚惩罚 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 r

25、ights versus an interest theory is a somewhat dry analytical debate.第九章第九章 惩罚惩罚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

26、principles of justice and the rules of society can be derived from reason,and all citizens have equal rights.第九章第九章 惩罚惩罚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 impo

27、se a reasonable ordering of interests.第九章第九章 惩罚惩罚OTHER TOPICS There are a number of topics within the area of rights that I do nit have time to consider here.A sample will give a sense of how wide(and deep)the discussion of rights can go.第九章第九章 惩罚惩罚Firstly,to what extent can or should an analysis of

28、 legal rights be the basis of a general theory of rights(which would include moral as well as legal rights)?第九章第九章 惩罚惩罚Secondly,can a connection be drawn between rights,and the capability to have and claim rights,and the intrinsic dignity of human beings and the respect due all human beings?第九章第九章 惩

29、罚惩罚 Thirdly,to what extent does the recognition of rights or an emphasis on rights help or hinder the search for progress and social justice?第九章第九章 惩罚惩罚Fourthly,why are some interests and demands perceived as rights and others are not?Fifthly,do(moral)rights sometimes entail a(moral)right to do wrong?第九章第九章 惩罚惩罚