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On Dworkin's Jurisprudence Concerning The Rights Of Minority Group

Posted on:2008-05-13Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y M ZhengFull Text:PDF
GTID:1116360215953570Subject:Legal theory
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This thesis aims to carry out a brand-new investigation into the protection of the rights of the minority at the level of system within Jurisprudence. It also makes an all-round attempt to interpret and sort out Dworkin's theory of equality. Although recognized with an equal status before the law, peoples in all nations enjoy nothing but equality in its nominal sense. Their individuality and uniqueness as human beings have been obliterated in this or that way. Therefore, in the name of democracy and market economy, the protection of the rights of the minority and the weak has become the core and key factor in further promoting equality. The current thesis holds the belief that resource parity, constitutionalism and the two ethical principles of individualism, as propounded by Dworkin, serve as effective defense for the protection of the aforesaid rights. Dworkin's renovating plan constitutes an institutional guarantee.The following thoughts constitute the core of this current paper: the rights of the minority involve not only the government responsibility but also personal liability; therefore, it is advisable to gain a balance in personal choices and improve the status. What makes the matter even complicated is that different people in the minority hold different views of jurisprudence. For those who are economically weak, the main concern is the problem of re-distribution and the goal is to trim down the discrepancy with personal liability as its emphasis at the same time; for the cultural minority, the main concern is to recognize their rights and the goal is to acknowledge the discrepancy and ascertain the reasonability of their rights, and simultaneously resort to and guard against the application and extent of the special protective measures; and for the political minority, the government ought to tolerate those with varied political views and take necessary measures to streamline the mechanism for political participation. The fundamental solution to matters concerning the rights of the minority lies in the incessant improvement and perfection of the market economy and the democratic system.The thesis's originality stands out as follows:1. Aim to break through the current mode of researching. Relevant researches are presently confined to ethnic minority, while listing other minorities within the area of the weak groups. And the object of study on the weak groups is mainly directed to those who are economically weak resulting from economic restructuring, who actually belong to the majority. Few has cast their eyes on the life styles and subcultures of the minority, thus leading to the fact that the rights of these minority peoples have not been put on the high agenda in China. Therefore, studies on the rights of the minority are relatively weak. The current thesis regards the rights of the minority as special human rights, so as to render a systematic analysis to Dworkin's jurisprudence concerning the rights of the minority and initiate an investigation from the perspective of system into the effective ways of protecting the rights, and seek out for the theoretical support for the controversial issue of the rights of the minority.2. The current thesis is the first attempt to sort out in a systematic way Dworkin's theory, which contributes to the domestic studies in this field. 3. Attempt to define and categorize the concept of"the minority", and analyze the characteristics and protective mechanism for"the minority"rights.4. Carry out a series of studies on the rights of the minority from the angles of the individual and the state, the rights and the power, and seek for the solution to the rights of the minority from the high plane of economic and political systems. Through coordinating the government responsibility and personal liability, respecting the choices made and correcting the status, we can construct an effective theory for the protection of the rights of the minority.This paper is composed of seven chapters, excluding Introduction and the Miscellaneous. Introduction contains three parts. Part One explains why I chose to have the rights of the minority as my object of study and the advantages of selecting Dworkin's equality theory to solve the issue concerned. Part Two is a summary of the status quo of the studies on issues concerning the minority in the academic circle of China. Only if we have a full scale of understanding of the status quo can we start from where others end. Part Three is a generalized introduction of the core viewpoints and logics in explaining, serving as an integral blueprint for the whole paper. The Miscellaneous is an attempt to apply Dworkin's jurisprudence concerning the rights of the minority to approaching the relevant issues in China.Chapter 1 mainly introduces and analyzes the gist and characteristics of Dworkin's liberal equality and attempts to sort out what constitutes Dworkin's jurisprudence concerning the rights of the minority. Dworkin intends to realize economic and political equality through stitching up or restricting democracy and market economy, which is in essence a protective mechanism for the rights of the minority. It is therefore safe to say that Dworkin's liberal equality poses as the premise and foundation of his theory about the rights of the minority.Chapter 2 is mainly concerned about the evolution of the minority and a generalization of Dworkin's analysis of them. As the representative of liberalism, Dworkin dwells his major attention on individual rights. He perches his study on the rights of the minority on the dynamic relationships between the minority and the majority. Basing on his equality theory, Dworkin focuses on American blacks, homosexual lovers, the accused, the dissidents, the destitute, the weak in economic competition, the abnormal in the eyes of the general people, the losers in voting, the victims of prejudice, and even those who take a minor position or role in political competition. Therefore, Dworkin aims to protect the rights of the minority through stitching up or restricting the majority governance.Chapter 3 is mainly concerned about Resource Parity and the Two Ethical Principles of Individualism. It attempts to sort out and analyze Dworkin's jurisprudence concerning the rights of the weak in economic competition. Dworkin designs an ideal distribution plan by envisioning auctioning of a deserted island and virtual insurance plan, aiming to delimit government responsibility and personal liability via discriminating the status and choice-relating factors. An individual must be liable for his own life, and therefore his personal choices must be duly respected. And at the same time, the government has an obligation to correct those social equalities resulting from non-personal choices, and compensate in a way the market can't do for the socially weak groups.Chapter 4 is about constitutionalism and the protection of the rights of the minority. It attempts to sort out and analyze Dworkin's jurisprudence concerning the rights of the weak in political competition. Dworkin holds the belief that the dominating mode of"the minority is subordinate to the majority"is a democratic model preferring for the majority, which goes against the basic value of constitutionalism of protecting individual rights. Dworkin believes that if the constitutionality is to be achieved, the rights of the minority must be strictly ensured. Therefore, it is necessary to supplement a few restrictions for the majority-rule democracy. He puts forth the concept of"Democratic Constitutionality", designs"the Dependent Democracy"and"Partnership Democracy"to constitutionalize the democracy through justice.Chapter 5 is about the ethical majority and ethical independent rights. It attempts to sort out and analyze Dworkin's jurisprudence concerning the rights of the cultural minority. Dworkin believes that every member in the liberal community under the support of his liberal equality enjoys an independent membership and detached ethical rights. Therefore the individual members have the rights and freedom to implement ethical judgment concerning this way of life and happiness, without social or other personal interference. The society cannot decide a standard for the ethical issues basing on the number of people. And the individual can properly make an ethical judgment. Dworkin's argumentation provides a rational defense for the rights of the minority.Chapter 6 is mainly concerned about the analysis and generalization of the relationships between the majority governance and the rights of the minority. Dworkin believes that well-meaning irregularities are in effect the embodiment of"rational"fighting of the ethically proper minority against the ethically improper majority. It aims to denounce the rationality of the government, who infringes and rids the rights of the minority with the majority interests and collective goals. Their active deeds do not in return constitute prejudice against the majority. Dworkin believes that well-meaning irregularities, the uncompromised and proactive deeds are ways of correcting the majority governance.Chapter 7 is A Comparative Analysis of Dworkin's Jurisprudence Concerning the Rights of the Minority. Firstly, comparative studies are made between the two pairs of Dworkin's concepts: the liberal equality vs. utilitarianism, and communitarianism vs. hyperliberalism. And the conclusion is that the former provides effective defense for the rights of the minority. Secondly, analysis is carried out as to Dworkin's doctrine of equality and individualism, further pointing out Dworkin's negligence of the minority's discrepancy and the group rights.The rights of the minority, like those of the majority, should have been acknowledged and protected. They are pitifully belittled just because they belong to the minority and as a consequence of majority governance. It is therefore necessary and urgent to correct and improve the governance.
Keywords/Search Tags:The Rights of the Minority, The Majority Governance, Resource Parity, Constitutionalism, Morally Independent Rights, Government Responsibility, Personal Liability
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