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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 and Law,According to some commentators,ancient Roman Law and medieval legal systems had no
2、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”.,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 le
3、sser role in legal thought then,compared to modern legal thought.,Rights and rights-talk are pervasive within modern discussions of law and government,a pervasiveness which sometimes leads to certain forms of confusion.,The discussions of rights often exemplify a basic problem in conceptual analysis
4、:the way abstract arguments can become entangled in particular policy views.,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
5、 legal system,or on a moral theory.,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）,The idea is that while legal rights have a clear correlate in the world,in legal texts a
6、nd 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.,One regular source of confusion in discussions about rights is the way that two different ty
7、pes of questions often under the same label.,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 dist
8、inctive to the social phenomenon expressed in the way we use the term.,For example,one conceptual claim sometimes made is that one can only have rights to something beneficial.,This derives from,or at least is supported by our linguistic intuitions:It makes sense to say“I have a right that you pay m
9、e 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”.,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 righ
10、ts.,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?,It is easy when reading articles about rights to confuse the conceptual issues and arguments with the issues and ar
11、guments about policy matters.,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.,It is compatible to say both
12、:(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.,Of c
13、ourse,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.,Thus,it i
14、s 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).,To put the matter an
15、other 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.,The confusion in this area is encouraged by the use of rights rhetoric
16、in political discourse(more prevalent in the United States than in most other countries).,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
17、their belief that abortion should be prohibited,they sometimes choose the shorthand,”unborn babies have rights too!”,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.,WILL THEORY VERS
18、US 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-).,This view equates having a right with bei
19、ng 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.”,The second ap
20、proach is the“will”or“choice”theory of rights,and is associated primarily with(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
21、a small-scale sovereign to whom the duty is owed.”,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 less
22、er forms of inalienable rights(including some constitutional rights or“human rights”),or rights held by infants or other legally incompetent persons;,and(2)they seem less clearly applicable when talking about moral rights,as contrasted with legal rights(and thus are not good candidates for conceptua
23、l 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.,However,Nigel Simmonds has argued that the debate is best understood as invoking broader conflicting ideas about the orde
24、ring 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.,By contrast,interest theories reflect a vision that denies that all interests can be recon
25、ciled and rendered mutually consistent,and where it must be to positive law-making to impose a reasonable ordering of interests.,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
26、 of rights can go.,Firstly,to what extent can or should an analysis of legal rights be the basis of a general theory of rights(which would include moral as well as legal rights)?,Secondly,can a connection be drawn between rights,and the capability to have and claim rights,and the intrinsic dignity o
27、f human beings and the respect due all human beings?,Thirdly,to what extent does the recognition of rights or an emphasis on rights help or hinder the search for progress and social justice?,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?,
