| As a concept representing a universal value, the word"rights"has been widely used in the world today, closely influencing the life of the people. However, are we really mastering the meaning of this concept, and to exactly understand the inherent meaning of the concept when applying it; and at the right moment, by using the right approach to express its correct requirement in order to adhere to the correct meaning of concept of rights? Of course, nowadays the values and effectiveness representing rights– for own protection, and to obstruct the intervention of others– perhaps it is no longer disputable; however, for whose rights, and which rights to gain recognition, and to eventually gain protection does not necessarily be self-evident.Although with the development of norms, along with the trend of cultural protection resulting in the improvement of the awareness of people on the kind of behaviors to be adhered to concept of rights; of many cases we usually notice that not all propositions of rights can be recognized by people, and can enjoy the default status of values and effectiveness. One question worth thinking about is by what reasons the propositions not being recognized miss out the status of being protected? Even though there are appeals evidently showed the misuse and even abuse of the conception, but what should not be avoided is what the criteria for determining these misuse and abuse are? What is more in some controversial cases, the content claimed by the defeated party is not of the rights not enumerated in the legal provisions, so what was really reason causing the lost in the lawsuit? The author believes if one having yet to master the genuine meaning of concept of rights and the theories and principles applicable to these concepts, we will be caught in the facts of complicated cases, and be disoriented in the midst of applying integration between preconditions and facts. Accordingly, the author believes that in order to explore the concept of rights, it is necessary to proceed from the awareness of three issues, respectively as (1) what is the meaning of concept of rights? (2) What is the effectiveness of rights? (3) What is the nature of rights?The first issue discussed is the meanings of the"rights"claimed by many propositions of rights may not necessarily be the same, that is the word"right"can be differentiated into several different varieties, and the meanings and concepts of these varieties are all different, or there may also be certain logical relationships among them. For the reason that the concept of rights is not a single meaning, therefore, litigants of different grounds when put forward their claims, but only to enjoy the extension of concepts of different varieties, and have no intersection due to the differences in varieties on disputes of rights. Therefore, even though the content as advocated by the losing party is truly belonged to the rights to be protected, but the unfavorable outcome of the judgment may not necessarily be denying the status of rights of the losing party on enjoying the possibility of protection, rather was due to the reason that the losing party had put forward an incorrect proposition for the facts of the disputes, and therefore, needs to undertake the corresponding concept of rights– duties.If, however, there is still a need to interpret the different varieties of concepts while understanding the concept of rights, then a further question to ask is what are the common features shared by these different varieties of concepts which is also what the second question (the effectiveness of rights) intends to explore. The purpose of distinction in varieties is to avoid confusion during the process of actual operation of these concepts by distinguishing them in accordance to their functionalities; however, if there is no common feature among each individual variety of concepts, the saying of having a common feature among the preceding concepts will then be losing its legitimacy. Accordingly, in respect to the effectiveness of rights, the author has to link the common features of different varieties, regardless of the difference in meaning relating to the proposition of rights as put forward, and its identical indicative role exerted in terms of rights holder and duties bearers.As for the third question relates to the exploration of its virtue, even though it is different from the analytical discussion in the formality of the meaning of the preceding two questions, and gets into the substantial level in the essence of concepts, however, the author believes that this sequence of understanding concepts is a necessary step. After all, the possibility of changes in the content of rights, in understanding the virtue of concept of rights will be beneficial to me as a basis while adding or canceling certain protections of rights. As regard to the discussion of this portion will involve what the concepts of the rights held and of which core values are these protections of rights hoping to specifically focus on.In response to the awareness of the three a-forth mentioned questions, this study will adopt the approach of analytical jurisprudence to focus on the concept of rights being widely used in contemporary evaluation of the national responsibility and individual behavior as a basis. At the instance of applying the words of rights, there are two points which I feel should be prudently considered; among the numerous propositions of rights, which are real, and which are faked; and the purpose of effects intended to be achieved by the essence of these propositions. The main purpose of the approach of analytical jurisprudence is to provide methods of examining various concepts and theories, through qualitative analysis of the meanings of concepts to avoid cognitive differences which result in loss of focus during the discussion, and by setting up of shared semantics to exclude confused concepts or false discourse that does not belong to the conceptual framework, in order to coherence the discourse on clarifying the genuine features of concepts. Indeed rather than conveying in great details the creation and evolution of concepts in the torrents of history, or studying the metaphysical grounds on top of ontology of the rights which they ought to be, the approach the author has adopted is through interpreting the impact of concepts of rights have on the real life of people and their methods of operations, inspecting on how to understand the propositions in the name of rights from the basis of contemporary discourse, and the reasons for such understandings. In summary, this study will apply the approaches of analytical jurisprudence to conduct analysis on concept of rights.The research of this study demonstrating the following seven points:(1)The meanings of rights in accordance to the classification by an American scholar Wesley Newcomb Hohfeld can be divided into concepts of two orders, four groups and eight types of varieties. Two orders refer to the claim-right and liberty of first-order relation, and power and immunity of second-order relation. As for the four groups of eight concepts are divided into two group of different relation settings in accordance to the logical relations between jural correlative and jural opposite as set by Hohfeld; for jural correlative terms are duty, no-claim right, liability and disability; as for jural opposite terms are no-claim right, duty, disability and liability respectively.(2)Through qualitative analysis of concepts, the legal relevant relationships between litigants disclosing single variety of right are not possible be advocated by parties with opposite propositions, and the relevant disputable point should be focused on whether legal relevant relationships of similar varieties are established, and the existence of other varieties should not be used as a reason for defense. This is because according to the Hohfeld's theory of defaults, if X advocates right of claim onφ(provided concepts of other varieties are similar), corresponding Y then undertakes relevant duty, that is if Y intends to advocate a defense claim on right ofφ, the reason has to be X has no right of claim onφ(or to say has no-claim right) and Y is not undertaking duty ofφ, and cannot negate the possible advocate of right of claim by X on Y through the lack of other varieties or non-existence of relevant concepts.(3)By using the setting of Hohfeld's theory as a basis of concept of rights to designate the scope of ability of rights holders, and the restrictions of counterparts, namely the common features of concepts of different right varieties, this inference is derived from the normative constraint theory of rights. Even though some theorists initiated from the perspective of rights, only passive rights– claim-right and immunity– can demonstrate the dominance of rights holders on counterparts, and use it to define the boundaries of their own abilities, only if liberty and power of active rights integrate with passive rights, otherwise it will not stand alone. However, the author does not agree with this argument, since although the passive rights holders are unable to directly request specific actions or no actions of the counterparts, by the abilities of their own can still obstruct the restrictions of the behavior type of counterparts. In other words, even though the active rights holders are unable to request counterparts on specifically assist on realizing the contents of rights, they however do not hinder the exercise of active rights as a limitation on counterparts. Accordingly, regardless of passive rights or active rights, they all possess the features in designating the scope of behaviors (rights holders'perspective) and limitations on behaviors types (counterparts'perspective).(4) The discussion on virtue of rights is for the exploration of core values of rights, and to use it as a basis for determining the content of rights. The author adopted two version of argument, respectively be the protect version of rights and justification version; the former proceeded from"what are the core values of protection of rights", therefore, examine on the consideration of genuineness of the rights proposition, that is whether the contents of such propositions are in line with the core values as criteria for recognition; the latter is concerned on"what are the core values for the existence for the duties undertaken by counterparts", and based on the fact that the behaviors of the counterparts being limited or controled must be able to fulfill the core values of concept of rights; or conversely, the contents advocated by the rights holders must be realized through the exercise of duties, if they cannot pass the test of justification version, such propositions of rights are fake. Traditionally, there are two theories defining the virtue of rights, they are Will Theory and Interest Theory respectively. The former emphasizes the core values of rights lie in the individual autonomy which represents the freedom of choice of the rights holders, whereas the latter highlights that rights are the interests of the rights holders. By walking through these theories, the author proceeds from two perspectives of"who to own the rights"and"what kind of rights to own", took references mainly from the discourses by David Lyons, Joseph Raz, Neil MacCormick, and Mattew H. Kramer for the Interest Theory, conversely, for the discussion on Will Theory, made references from the viewpoints by H.L.A. Hart, Peter Jones, and Carl Wellman.(5) Despite that the viewpoints of Interest Theory are easier to comprehend and more comprehensive on the dimensions of subjects under protection, the author believes that the main deficiency of this theory is that Interest Theory is unable to achieve compromise between the subject of rights and interests, as a result it creates the contradiction of rights under the subject of rights which is not necessarily directly beneficial to its subject. Even though Raz attempted to seek for possible solutions by segregating particular interest and whole interest, and core rights and divertive rights, but the author believes that this argument not only lack of legitimacy, it cannot even explain if there will be any difference in the counterpart of rights exercised along with the differentiation in the concepts. Another Interest Theory theorist Kramer, although re-interpreted the issue of consistency between the subjects of interests and rights by using different stages of interests of rights, and attempted to resolve the problems by segregating individual rights from collective rights, however, from my humble opinion that such a practice is only at best further segregates the counterparts of duties exercised outside the rights holders and duties bearers, and still unable to explain the reason why the subject of rights is able to give up its own protection under unfavorable circumstance. (6) The Will Theory emphasizes individual freedom of choice safeguarded under the concept of bilateral liberty highlighted after the improvement by Hart on individual autonomy. Thus, the viewpoint of rights by Will Theory (or Choice Theory) is"the ability of subject to choose freely without the intervention by others, the significance of the ability of subject is"regardless of interest, subject of rights is able to decide or not to exercise and how to exercise the rights belonging to his or her own". Accordingly, the exercise of duties by counterparts should then be exercised, complied, suspended or waived along with the demand, enforcement, waiver and extinguishment by the subject of rights.(7) While there are three common criticism of Will Theory, respectively as (i) citizens are not entitled to the possibility of decision on whether to exercise immunity under the context of constitution; (ii) criminal law system does not permit the exercise of freedom of choice by the subject of rights; and (iii) the Will Theory does not protect counterparts such as animals, children and interdicted person, and therefore is in consistent with actual operation of concept of rights. Nevertheless, the feedback which the author proposed in response to these three viewpoints is on the queries of the rights in term of criminal law and the immunity under the context of constitution are caused by the differences in public and private laws, and therefore, the key point is not whether the citizens are entitled to the freedom of choice when exercising the rights of public laws, but rather who is the real subject. For general citizens when face of rights of public laws are actually the one under protection rather than be at the status of subjects of the rights, and therefore, do not possess the abilities on exercising the freedom of choice. Secondly, by treating the limitation on the qualification of the subject of the rights as indifferent to rights of certain populations, it is better to address the freedom of choice of rights which indicates the subject of the rights is able to decide through self-willingness whether the normative effectiveness of rights is effective, and even permits the subject to make an unfavorable choice, or to modify the status of rights holders to duties bearers, and by limiting those who cannot make proper decisions as subject of rights which simply is a negation and a kind of protection.Chapter I is about the motives of the research, awareness of the problems, and scope and narration of the discourse framework. Chapter II discusses the a-forth-mentioned (1) and (2). Chapter III discusses (3). Chapter IV discusses the a-forth-mentioned (4), (5), (6) and (7). Chapter V is the conclusion.
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