On Ethical Legitimacy Of The Order Of Rights

Despite the various views on the relations between ethics and law, the doctrine of the integration of ethics and law prevails among current academics. However, few people contemplate the issue where the connecting point for the integration lies. The doctrine of integration without connecting point is insufficient and inoperative in practice. Since both ethics and law reflect the order and status of the inter-personal association and interactions, the study of ethics and law shall commence from the study of such association and interactions.The inter-personal association and interaction are preconditioned on the awareness of the self's human nature and the recognition of the other's human nature. The self's awareness of human nature drives him(her) to realize his (her) human dignity by extending his(her) free wills to material objects and dominating them. The consciousness or claim of rights emerges from such an extension and manipulation. The recognition of other's human nature requires him(her) to respect the human integrity and dignity of others. The conflict and compromise of wills are resulted from such awareness and recognition. In the process of conflict and compromise of wills, there emanates the issue of whether the extension of wills and the domination of material objects are right or wrong. The conflict and compromise lead to the birth of right with legitimacy as its essential core, and the establishment of the order of rights, i.e., the order of ethical rights. The order of rights requires the regular discovery of the objective ethical order and orderly transformation of ethical rights into legal rights. Such discovery and transformation are made possible by conferment of the exclusive power upon the legislative to discover laws, the clarification of the legitimacy value of legislations, the ethical justification and scrutiny of legislations, and the dialectic negation of the legislative outcome by the judiciary. The inherent logic of the order of rights is embodied in the development process of rights, which commence from the consciousness of rights of the individuals in ethical reality, then evolve to ethical rights and transform to legal rights, and return to ethical reality in judicial procedure of court of justice.The emergence of the order of rights means the beginning of a new cycle of dialectic negation. The negation starts from the violation of the order of rights by either the mentally abled or mentally disabled. The order of rights is twisted due to these violations, leading to the shaping of pseudomorph of the order of rights. The inherent logic of the order of rights is to shake off the pseudomorph and exhibit its true essence by fostering a negation force, i.e., the regulatory power of legal discipline and mental health practice. The regulatory power starts its alienation process since its birth. Its alienation turns it from a positive force of the rights-order into a negative force, which means that it is to be negated and regulated under the logic of rights order. The negation force in this cycle, the force for the negation and regulation of the regulatory power, is the principle of rule of law, and its key element is the supremacy of the judiciary and the rule of justices of virtues. Just in this cycle of dialectic negation does the order of rights shake off thepseudomorph and return to its true essence.The mentally disabled are marginalized, objectified and dehumanized, and thus thrown out of the rights-order because of our unnecessary emphasis of reason in defining ourselves, our exaggeration of the loss of reason of the mentally disabled, and the doctrine of science in mental health practice. With the subjectivity and the decisive importance of value judgment in mental health practice, the human attitude toward the mentally disabled, their fellows in extreme conditions, puts every one under the rights-order in danger. The maintenance of the rights-order depends on a reconsideration of the self's human nature and the other's shared human nature, and a redefinition of the nature of mental health practice. The decisive importance of value judgment in mental health practice, the shared human nature of the mentally disabled, and the profound ethical conflicts in mental health practice all justify the ethical legitimacy of legal control over mental health practice. How mental health legislations behave toward the mentally disabled, the fellows in extreme conditions, speaks more convincingly of the ethical legitimacy of the rights-order. There will be no rule of law and no existence of the rights-order without the legal control of mental health practice, especially the medical power to diagnose and treat the mentally disabled.The above research reveals that right is the joint bridge between ethics and law, and is qualified to be a joint point for the integration of ethics and law. Accordingly, the study of the relations between law and ethics shall take right as its cutting point. Legal rights must be based on and originated from ethical rights for their justifiability and legitimacy; Ethical rights must be recognized and protected in law for their realization. Ethical rights is the precondition and the logical starting point of legal rights, and is the test for the success of legislation, the goodness, justification and legitimacy of law. The key to it is that the design of artificial rights-order (legislation) must be oriented to the value of protecting and promoting human dignity and human rights. The conclusion helps clarify the current Chinese thinking on the legitimacy of legislations.The above study also shows the ethical legitimacy of legal control over mental health practice and the significant ethical implications of such control for the whole rights-order and the rule-of-law order, which are an ethical analysis and a philosophical annotation for the preparation of mental health legislation in China. Such analysis and annotation are urgently necessary and important for the mental health legislation.The above research is applicable to the order of rights among interpersonal relations. However the use of the word "right" has been extended beyond personal relations and the right of the nature and the right of animals are hotly discussed. If there is a right status and an order of rights in the relations between human beings and the nature, or between human beings and the animals, how can such an order of rights be possible and justified with legitimacy? How does it evolve under its own inherent logic? These issues cannot be explained with the above research and needs further research.The purpose of the above research is to explore the principles of order of ethical and legal rights. The legislative control of diagnosis and treatment of mentally disabled is a stage of the evolution process of the rights-order. Accordingly, the exploration on the rights of the mentally disabled is only an illustration, and thus the above exploration is limited to the three fundamental rights of the disabled as a human being. The ethical analysis and arguments are confined to the legitimacy of legal control over mental health practice and the ethical mission of mental health legislation. The derivative rights and other issues in mental health legislation are not covered and demand further studies.