On The Conception Of Communitarian Rights

Liberalism and its right theory is the mainstream conception in the West, and it is sufficiently carried out in the practices of democratic politics. The current basic political systems are also constructed according to the liberalistic ideal. Nowadays, it is an evident fact that liberalism has already become the most important knowledge in theories and the guiding principle in practices. To a large degree, we use liberalistic theory of rights for reference, but more often than not, we seldom allow ourselves a critical attitude to it. We also hardly study the theorists'criticism to liberalistic theory. Our effective reference to liberalistic theory of rights is premised upon our careful differentiation, our awareness of its reasonableness and that of its defects. One of the effective approaches to achieve this is to go deep into theorists'criticism to liberalistic theory. At present, the communitarian criticism to liberalism is very profound and powerful. Some scholars even think that the challenge posed upon liberalism by communitarianism is of an essential nature to a certain degree. These challenge not only question the fundamental presupposition, but also the whole theoretic project of liberalism. How does communitarianism criticize liberalism on the theory of rights? What is the theory of rights for communitarianism? What are the theoretical status and influence of the conception of communitarian rights? How does it inspire the rule of law for China? This article tries to answer these questions.The whole article consists of four chapters besides the foreword and the epilogue.The foreword dwells on the theoretical significance, problems and the research approach and guiding principle of the study on the conception of communitarian rights.Chapter one is devoted to the discussion of the conception of liberalistic rights as the starting point of the conception of communitarian rights. Communitarianism itself does not have its integrated and uniformed theoretical pattern and it is a theoretical tide of thoughts given birth by criticisms on liberalism. Therefore, the investigation of the conception of liberalistic rights is the starting point of the research on the conception of communitarian rights. The thought about rights has been closely connected with liberalism since liberalism first came into being. The process of the development of liberalism from classical liberalism to utilitarianism and then to new liberalism is also the very process of the development of the thoughts of rights. Modern liberalists led by Rawls furthers the anti-utilitarianism logic advocated by Kant. These liberalistic scholars has substituted the principle of utility with the principle of rights and thus advanced liberalism to new liberalism. The fundamental principles of the conception of liberalistic rights are individualism and universalism and the core of the conception of liberalistic rights is the priority of right over good. Although the west politics and legal systems currently are constituted on liberalistic thoughts, the conception of liberalistic rights itself has some theoretical plight in terms of theoretical demonstration, theoretical core, fundamental principles, etc and at the same time the conception of liberalistic rights encounters difficulties in practice as well.Chapter two dwells on the criticism of communitarianism on the conception of liberalistic rights. Modern communitarians inherited the long standing thoughts of community in the west and enriched and developed them. Although the theory of communitarian community was disparate, the concept of communitarian community was a concept of constitutive community as a whole, which advocated that we should understand individual from the point of view of community rather than vice versa. Based on the thought of community, communitarianism profoundly criticized the conception of liberalistic rights on its individualism and universalism. In the respect of individualism, Sandel criticized the concept of"self"in the conception of liberalistic rights. He thought that it excluded the possibility of public life and the end and pursuit of community life, and it was not a kind of constitutive concept of"self", so it could not support the concept of liberalistic justice and rights. Taylor criticized individualism in liberalism and regarded it as atomism. It was groundless in terms of theory for liberalism to put the priority of individuals and their rights over society and regard the latter as the means for the former. In the respect of the criticism of universalism, MacIntyre performed a historicist critique on the conception of liberalistic rights. He thought that right was by no means an absolute existence and the rights enjoyed by individuals are premised upon certain concrete social rules and social conditions while on the other hand these rules and conditions are only the products of specific historical periods and particular social environment. Right can never be humanly universal. Walzer proposed that Rawls'conception of equality and his theory of distributive justice presupposes the universal philosophical conception of simple equality and the conception of distributive justice and it is a philosophical conception based on universalism. According to Walzer, argumentations of equality and distributive justice should be particularistic and we should never endeavor to construct a universal position. Justice should be pluralistic, the universal standard for justice does not exist. Justice should not be universal either and therefore justice is always relative.Chapter three deals with the theoretical construction of the conception of communitarian rights. Communirarianism seeks to understand rights via two fundamental concepts, namely community and common good extended from the concept of community. According to communitarianism, the nature of self is its constitutionality, that is, it is constitutive of ends, while the understanding of self should be performed against the backdrop of community. Community plays a decisive role in the formation self-identity. The concept of right has as its basis the concept of community, community is also one of the subjects of rights and it is also the most important subject, hence the emphasis of communitarianism on collective rights and their functions. According to communitarianism, rights should be pointed to community, rights outside social conditions do not have solid grounds and rights and community are mutually supportive. Therefore, communitarianism opposes universal moral rights and sticks to concrete legal rights. Communitarianism proposes a shared understanding of good, and according to communitarians, good mainly refers to public good or common good. Community itself is a kind of good and it is the highest one. Rights and the principles of justice that define rights must be based on common good. As a logical result, communitarianism advocates the priority of good over right. At the same time, the understanding of good must depend on the concept of community, hence the logic of communitarian conception of rights: community——good——right. Community is the ontological foundation of communitarian conception of rights, while understanding of good constitutes the moral ground for communitarian conception of rights.Chapter four is about the review of the conception of communitarian rights. Communitarianism is not socialism and communitarianism and its conception of rights cannot replace liberalism and its conception of rights. The former is only a revision and complement of the latter. Communitarianism has its share of contribution and it is helpful in our correct understanding of liberalistic conception of rights and it in some sense responses the new trends of the development of rights, which causes liberalistic reflection upon the improvement of its conception of rights. However, the communitarian criticism of liberalistic conception of rights cannot replace liberalistic criticism of society via right and it also underestimates the possibility of the conflict between common good and individual rights, hence the limitation of communitarian conception of rights. Communitarian conception of rights brings with it huge influence and this can find its proof in Rawls'acceptance of communitarian criticism and his revision of his doctrine. On the other hand, faced with the conflicts between liberalistic conception of rights and communitarian conception, some scholars attempt to conciliate them and make them compatible. This conciliation furthers the development of rights theories. Communitarian conception of rights possesses important revelations for China's construction of the rule of law and has its share of significance in practice.The epilogue emphasizes the importance of the criticism and differentiation of theory in our reference to it.