A Critical Analysis Of The View Of Legal Rights And The Reconstruction Of Right Theory

The right theory of analytic positive law has not attracted sufficient attention compared with that of natural law. But actually its unique view on right is characterized by distinct concept, systematic theory, comprehensive content and many other features. It should be pointed out that the right theory in our academic realm is consist with that of analytic positive law to some extent in both practice and theory. Based on that, this paper selects the right view of analysis positive law as the research object and clues, in order to deepen the cognition of “right”. It must be clear on three basic questions in order to understand the “right” profoundly and comprehensively, that is, what is “right”, where is it originated, and what is the basis of the “right”. In other words, the definition of right, the origination and the legitimacy of right.According to the analytical positive law, derived from legislation the right is prescribed by the state law and eventually backed by the authority of the sovereign. From historical perspective, the argument above is relevant to the demand of capitalist government for right after the victory of capitalist revolution. While from the philosophical point of view, both analytic positive law and its right view are inspired by British empiricism, positivism, utilitarianism and philosophy of language. Jurists of analytic school of law generally reach a consensus that “right is prescribed by law” and “right is distinct from morality”. However, they have not reached an agreement on concrete definitions. As to the definition of right, there are three kinds in general, namely the relationship theory, the will theory and the interest theory.The concept of right of analytic positive law is based on profound theory. The three kinds of definition of right have a certain correlation with dual-stage analysis, classical freedom philosophy and utilitarianism. However, this does not mean the right concept is perfect. In accordance with the Huofield’s analyses theory on rights, the relationship theory cannot handle the right conflict phenomenon existing in dual and multiple legal relationship. The will theory does not leave space for those without free will although their rights essentially need more protection. And the benefit theory, as the mainstream views of analytic positive law, cannot make a reasonable explanation of non-interest phenomena in the “right”, which leads to incomplete understanding of the right. Therefore, the right concept of analytic positive law does not embrace all kinds of right phenomena. It is connected with the applied contextual interpretation and inductive logic thought, therefore comprehensiveness is required to reinforce the theory.Opposed to “natural rights” of natural law, analytic positive law strictly adhere to “statutory rights”. The standpoint can be traced back to Hobbes’ s contract theory. But even according to logic of the analytical law, statutory rights is not a consistent origination of rights theory. First, the law has open texture with linguistic text as the carrier, which generate uncertain in statutory right. Secondly, in view of the whistleblowers case after the WII, the claim of analytical law that “evil laws are not applicable” implied the human right to reject evil laws. This actually fundamentally run counter to the logic of statutory rights.The basic standpoint of statutory rights places the understanding of right legitimacy idea of analytical law under the “normative” context. Along with the separation between law and morality, thesis of “right legitimacy” turns into an argument about “formal legitimacy”. This argument, based on Hume’s skepticism philosophy distinguishing “to be” and “ought to be”, tend to be consistent with utilitarianism attention on behavior results on the whole. In terms of analytical law itself, the “formal legitimacy” of right obtains support from “sovereign logic” and “closed legal system”, and it proceeds in the following logic: the laws are made by sovereignty, human rights are prescribed by laws, and humans act according to law. Then the right is legitimate when their acts conform to the laws, otherwise it is not legitimate. The logic is undoubtedly concise and operable, but it ignores the “morality”, namely the “rationality” in the right. As a result, it engenders value paucity of “rights”, and “rights" turn to the tool of the sovereign rather than a scherm to protect individual citizens.Obviously, the right view of analytical law confronts various theoretical difficulties in the right concept, origination and the last resort. To solve these difficulties need to reword the connotation of “right legitimacy”. “Legitimacy”, in terms of its connotation, embraces the definition of “legality” and “rationality” and “morality”. “Right” in essence is an concept about the rightness of human behavior. The definition regards right as a “spiritual idea”, which cover right phenomena of all categories and eliminate conceptual provinciality in analytical of law caused by “contextualism” and “inductive logic”. The carrier of rights legitimacy is the consensus of all members of the social community. It is of characters of mobility and negotiability, which gets rid of the limitation of the language text on the right and weakens attention on the strong concept of law and official expression. More over it can accommodate more complicated and even conflicting rights structure, hence the “contract form” of right origination is also expanded. The effective way to achieve the social consensus is the intercoordination between theory of “tripartite society” and “communication behavior”. On the one hand, the third party in the tripartite society evaluate human behaviors with their conscience, then they conclude original right concept through the logical form of “illegitimate-legitimate”. On the other hand, the original concept of rights become a social consensus with a general binding force through debate and discussion of the diverse moral subjects in public.Based on the reconstruction above, the logical structure including the basis, origination and concept of “rights of legitimacy” is founded, and the right concept, origination and judge criterion are also confirmed. In practice, the theory of “rights legitimacy” is an effective analysis framework, which can analyze rights phenomena and categories reasonably. At the same time, to place the right prior to human conscience leave enough space for “civil disobedience”. In addition, it is also important to understanding “rights” as a concept of “legitimacy” of behavior, the state is not allow to infringe on their citizen rights, and the citizens should not randomly request national welfare. In other words, it reconciles the basic relationship between “country” and “individual”, it is a feasible road to a legal state.