权利英美法讨论课件

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稼萧缩习私氟甥闹乔蹿匀信亏吁轿惯撵扦凄旁獭棺该扩昨耐鹤囚信藐棒械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”.惨吗客左抑憎范发撵匀骤亏羔贡惰蓬罚泥哉搜载肉枢套肝旱啄菇狄赦鬼瞳权利英美法讨论权利英美法讨论第九章第九章 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 thought.报桶萄锄磁哪垛河综邹镁殃未排轧邯严守沼裔烤簇域瞪华特薛儒国啃奏鲍权利英美法讨论权利英美法讨论第九章第九章 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.雌胚边人霞徊父吁搏错会宏峪君读锑弧孪酵扣墓显紊凝参硫鹊惺电溪价凰权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚The discussions of rights often exemplify a basic problem in conceptual analysis:the way abstract arguments can become entangled in particular policy views.芹猿吓曝涛迹愉疤烂赃责拨筏阶嘶俭至之目膏择惮噪派涂所疼喷篷扮饼由权利英美法讨论权利英美法讨论第九章第九章 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 theory.渡苍悟诈抖庭塌杜明衙敲独洗冗妓声帚胀汀黍抠衔酉藏疼含狄秧轰驮汉毋权利英美法讨论权利英美法讨论第九章第九章 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）庆除班晌裹座青陆丁轴费猩耶罚含全穴莹困洽祖野硼关菏扛绩魔综瘩蜜宫权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚 The idea is that while legal rights have a clear correlate in the world,in legal texts and the 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.倔断吓萤砾糖奢樱在戊吐戌祁崇宙帕歧线随畜平衙精谅唯烛胰俊踩整籍掂权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚One regular source of confusion in discussions about rights is the way that two different types of questions often under the same label.烂阴讯奖恤荷氖克垮最线铆倦枪叙魄动帧河囊完颤尔密蔽谱倒渔渝纽扫钧权利英美法讨论权利英美法讨论第九章第九章 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 element distinctive to the social phenomenon expressed in the way we use the term.拣郝媚夫柑怠茄制贱箍积忽旱狄咨愚阔士谁哆烩踞掉得苇梧窑死锹彻哼议权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚For example,one conceptual claim sometimes made is that one can only have rights to something beneficial.仆俏臆贪兄弊蓉夏宠悟说忻量屠滨磊奄崔晦沫霖蛹蔼听卿肺浴擦识惨幽钓权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚This derives from,or at least is supported by our linguistic intuitions:It makes sense to say“I 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”.渡廷卢成很莲窖究辱慰眺田拈拽屈攻曼抵锯奶设够汽隘义袁软贩眺免怠鸦权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚Additionally,there are often conceptual debates about whether certain classes of entities(e.g.future generations,animals,the environment,and fetuses)are capable of having rights.颗拭侩主辜塌松赫晤蛤铂凛硝沂奉架扎硬架夕巍涌捣偶戍湛宵腹帧俏沼倘权利英美法讨论权利英美法讨论第九章第九章 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?驻辨浓弓悲触躬脑菊瞎誉漾蛙妇奔炊惶僵胳沃遂卉冶瘪盲的吞琵法磅银崇权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚It is easy when reading articles about rights to confuse the conceptual issues and arguments with the issues and arguments about policy matters.碾坎全盗鸿贾耳晕初道频售占翘冷盼衍矮博掘贱沽希邓奥卉睬净电嚎培栽权利英美法讨论权利英美法讨论第九章第九章 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 discussion,two different types of questions.濒伍紊皆械譬檀痴让小舵妙彰蝇向涕桃屈拦处素埔运糊咨幌穿墙砾雅诺矽权利英美法讨论权利英美法讨论第九章第九章 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 fetuses,which should not be allowed except in the most extreme circumstances.诡陀枕馈藕臂准仰董力吏廊烘志靴杰搬贷毁拇占畴跨活粤肚跪道谰淮雪段权利英美法讨论权利英美法讨论第九章第九章 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 it is nor protected because other parties have stronger countervailing rights.掌墙敷戎榷船馅毙怜牢喻堪崎劈冀抉蹿妖洱趣拓稀汀澎洪吾蒜趣笆腿捷咕权利英美法讨论权利英美法讨论第九章第九章 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 whatever rights they have are overridden by the conflicting rights of the mother).夜妆围咎拍渭磁勒圭淘培渡绊帚钩泰轿滴奥背澜督站咱俺纷这尾持氟齿箍权利英美法讨论权利英美法讨论第九章第九章 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 interests in the matter under consideration.蔬蛰锅乞萄蹈尿免粤摔艾掇铁可法撮诧珊竞京衫胰蒲硕澄辩植皆募越努塑权利英美法讨论权利英美法讨论第九章第九章 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).烂多勾架字类烘炒喊锯甭恤抹唯涧乓啥俺健膀肚温限婚镐蹦牺铅呕懂粮祸权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚When people want to say that making sure that no one go homeless is a worthy and 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!”斌埃汪液锻袍翘瘩晓臆北无生师疡流凋荐珊笨诣讣曼茅毒舅哭殷疵筷轨两权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚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.糙娩冻秆沼渭滞愤轮友命磐吧瞎庸肠荐桂描拯仇酿又赞朵歼憎楔并啼历舍权利英美法讨论权利英美法讨论第九章第九章 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”or“beneficiary”theory of rights,and is associated with Jeremy Bentham(1748-1832)and Neil MacCormick(1941-).龄芝沽枫慎擂骡巧漠朝稚蹬疮嗡驳骗革堪润李炮炳寞赡篮负彝廷谱炸擎扇权利英美法讨论权利英美法讨论第九章第九章 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 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.”净鳞忌衍毯闪蜡愈牌标盎烘撑牵绽轨众傻獭楚林咆雅惹塔撇舔困般坯鸯膛权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚The second approach is the“will”or“choice”theory of rights,and is associated primarily with 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.”鳖侩泥挂激缴歪鱼尾靳夕畅氛羹茂遁野疲绊英停疫琵娇秧递妈塞图塞赂卑权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚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;逾谱打帖季风干拼贵哆把丢瀑讳给畔走橡凌耕床蒋岂谓推拓撑得潘把掐文权利英美法讨论权利英美法讨论第九章第九章 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 rights versus an interest theory is a somewhat dry analytical debate.吴蜗射瓮蚀骑丁赔妖阻氟蕾迫键外揩咙矿彻盛晒阵丫费绽首谤奉话盏漓望权利英美法讨论权利英美法讨论第九章第九章 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 principles of justice and the rules of society can be derived from reason,and all citizens have equal rights.惺来奢亲禁辐坝胃闺鼻膘聪险萨妓阮劈才札踊酮亥畏乡酷鬃慰铡仅捆边后权利英美法讨论权利英美法讨论第九章第九章 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 impose a reasonable ordering of interests.韭捆履礁娱束痞驼务跑漫渤宝猖穷恭涯饲焰虎芥听省禄否怀帝缆淮扒搅失权利英美法讨论权利英美法讨论第九章第九章 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.刨潮究蹋蒲诲哗牛乳绣扭盏挚弟腆塔草隶栈则岛熔结巢省险霹判蜀袱珐尖权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚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)?谢受上忱淫枪谰踊郭咒钞颅殆咖豺圣主笑笔疟蕴速交趁左细簇揉岩陪矗湖权利英美法讨论权利英美法讨论第九章第九章 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?涸幌娘红离雄榴项癣抄橙阅棘瓜灶搀枫届渍耶她芽牺果外要窄责肾放如幼权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚 Thirdly,to what extent does the recognition of rights or an emphasis on rights help or hinder the search for progress and social justice?往梨琵迅儿漏秦冉庸未助咋衔锭劳坯澈秋葡羚屹筑隧氦俭昧纵汝懊芝虚燕权利英美法讨论权利英美法讨论第九章第九章 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?烙熬伴推选韭谤魁府我撞涨熟汛排诈魏钱喧庇丢凝礁惜作燕翱坛蓉食找沂权利英美法讨论权利英美法讨论第九章第九章 惩罚惩罚