The Research On The Institutionalization Of Natural Rights

The contemporary theory of human rights originates from the modern natural rights presented by the Enlightenment thinkers. Natural rights, from the budding of its elements to the formation of the theory, has existed for more than 2,000 years, ultimately evolving into a series of corresponding institutions. Based on the writings of the modern Western Enlightenment thinkers as well as the Western codes and documents on and International Human Right Charter since the 17th century, from the viewpoint of historical study, comparative analysis and positive research, I thoroughly explore the institutionalization of natural rights in my doctoral dissertation. This dissertation, apart from the introduction and conclusion, consists of five chapters. The Introduction summarizes the research's significance, the research's current situation home and abroad, the dissertation's general framework, and the train of my thoughts and my writing methods.Chapter One analyzes the origin and evolution of natural rights and expands between the interlapping of natural rights and natural law. Historically speaking, it is found that the Western political and legal ideology has experienced an enormous conversion when it comes to Stoic School, that is, the human independence and the concept "Men are created equal." yield the budding of natural rights. The ancient natural law ideology is able to hand down via Cicero and then the equality concept is further sublimed and the contract concept further evolved with the development of Christianity in the Middle Ages. Since individualism has been gradually established after European Renaissance, a number of great Enlightenment thinkers dominate the conversion from tradition to modernism. The traditional political philosophers maintain that humans are by nature a political creature and that the human's initial state is the political society. Thomas Hobbes, claiming the natural state as human's original state, in which humans only have natural attributes, demonstrates the origin and purpose of political power. Subsequently, John Locke, inheriting Hobbs's logic method, advances natural law to natural rights. Thus the individual desires are externalized into natural rights, which constitute the origin of the state and the foundation of man-made law. People no longer need to find support from the uncertain law of nature. The traditional natural law theory, by means of a brand-new vocabulary, is transformed into the theory of natural rights. Presented and demonstrated by the Enlightenment thinkers in the 17th and 18th centuries, natural rights has experienced ups and downs, ending up being replaced by the concept "human rights" after the end of World War II. According to the historical relations between natural rights and human rights, quite a lot of Western scholars often see human rights as the modern substitute of natural rights. But there exist a variety of differences between the two terms. Although the concept of natural rights was introduced into China 100 years ago, its Chinese translation could not accurately correspond to the western "natural rights".Chapter Two focuses on the jurisprudential analysis of natural rights, including its foundation, content, nature and evaluation. In terms of its foundation, the theory of natural rights establishes the platform of its doctrines on the base of humanity in its natural state. The human desire of self-preservation and human reason make up its philosophic and practical foundation respectively. Humanity bestows natural rights with original disposition, which indicates that natural rights result from neither man-made efforts, nor external grant. Hence it is deduced that the state can acknowledge rather than produce natural rights and the state's depriving people of their natural rights means the moral injustice. In terms of its content, the rights of life, liberty, property, equality belong to the nucleus natural rights; the rights of penalty, consent and resistance are derived from protecting and fulfilling the nucleus natural rights. In terms of its nature, natural rights are factual rights first of all, which are created with the birth of individuals and originally exist as objective rights in the natural state. In order to protect these rights better, people make contract so as to enter political society, thus natural rights become the legal and justifiable basis of power. If there were no natural rights, there would be no grant and authorization of rights, and no public power and political society. Therefore, it is logically deduced that natural rights are the origin and intention of the state and government, and that whether people's life, liberty and property are protected or not is the standard of measuring the administration of the government. So natural rights have become an evaluation indicator as well as moral rights. During the 17th and 18th centuries, the theory of natural rights, sweeping Europe and America with its enormous charm, became a popular discourse and doctrine. At the same time, its theoretical limitations also incurred questions and criticisms. Beginning from Hume's criticism from the viewpoint of epistemology, the censures from Bentham, Burke, Marx and the like engaged natural rights with many unanswered challenges. However, the theory of natural rights, with its irresistible theoretical charm, has been changing and shaping the world. Historically, it contributed to the bourgeois revolution with theoretical weapon, the modern legislation with ethical foundation and the Western constitutionalism with the institutional framework.Chapter Three explores why to institutionalize natural rights. Based on the definition of institution and institutionalization, this chapter examines the causes and conditions of institutionalizing natural rights. The institutionalization of natural rights is an idea of advocating natural rights by means of materialization so as to implement its value appeals and political ideals in the form of institution. First, winning human liberation and independence is an internal impetus of institutionalizing natural rights, which enables every independent individual's life, liberty and property to resort to evident procedures rather than depend on others as well as the blessings of gods. Second, in the political society, natural rights are moral rights. These abstract subjective rights can be transformed into positive rights only after being expressed and affirmed by means of institutional media. Third, the institutionalization of natural rights, as an indicator pointing to the state power, by demonstrating rights and allocating power, defines the political activities into feasible and infeasible space, and in the meantime for the institutionalization erects the highest ethical standards. Why and how much natural rights are institutionalized are influenced by many subjective and objective factors. The era provides an opportunity, the spread of the concept cultivates the renovation of the ideology, and the participation of prominent statesmen also plays a powerful role of impetus. Chapter Four examines how to institutionalize natural rights in terms of the ways, the routes, and the methods. In terms of the ways, the institutionalization of natural rights is mainly expressed in the ways of declaration and the code (including convention), and it tends to have the declaration first, and then the Code. The institutionalization of natural rights is reflected not only by the human right declarations and constitutional documents in Britain, the United States, France etc, but also by the branch corpus juris generated by the movement of the corpus juris in Modern Europe. It is through the branches such as civil law, criminal law, litigation law that the constitutional principles such as the equality right, property right, the doctrine of a legally prescribed punishment for a specified crime and the principle of the presumption of innocence are reified. After World War II, the ideology was established in the International Human Right Charter that human rights are both innate rights based on human dignity, and natural rights of pre-state property. As far as the route is concerned, Britain resorted to the empirical route of "the past right" and "the original right"; France selected the transcendentalist route of "the entitled right"; The United States, as the former British colony and the significant place where the theory of natural rights was prevalent, was influenced by both thinking methods. In terms of the means of institutionalizing natural rights, the strife for the means has persisted for the entire process from the claim of natural rights to the institutionalization of natural rights, sometimes resorting to force, sometimes characterized as compromise and disputes. The institutionalization of natural rights is attained in strives but this attainment defines the scope for further strives rather than means the end of strives, that is, this attainment provides a platform and frames the space for people's expanding their rights in the institution.Chapter Five reflects on the institutionalization of natural rights. Being analyzed from four aspects, the institutionalization of natural rights, in addition to promoting human progress, has certain limitations and problems. First, since the theory of natural rights is based on the abstract humanity, the sacred right, encountering concrete people, means frauds and lies for certain people. Moreover, when natural rights won great institutional victory during the 17th and 18th centuries, it was the high time when those preceding states such as Britain and France openly invaded and exploited other weak states. Therefore, the institutional victory does not mean the truth. The institutionalization of natural rights is a premise rather than an end of attaining rights. Second, the transmission of the idea of natural rights and the practice of institutionalization of natural rights radiate externally, namely, they develop from their original localism to universalism after World War II. However, when localism encounters the diversity of the world, it is bound to exist the dilemma of human right dialogue. In addition, because of the absoluteness of natural rights and the human demand for common well-beings, there always exist the tension between the two conflicting values, and limitation in the means of preserving the institutionalization of natural rights. Therefore, after the first generation of human rights, namely, the institutionalization of natural rights emerged, the history of human rights will advance with the development of human society.The Conclusion briefly explores how to constitute human rights in China. Natural rights, based on humanity and innate existence, is concerned about the problem of how people live more happily, but the presentation and institutionalization of natural rights are the man-made choice and the product of the era. The human rights institutional construction in the European and American countries, was carried out in the era background of anti-feudalism, had spanned from its concept to its institution for centuries. China's human right construction is facing very different conditions and problems from the European and American countries. China is currently facing the plights of constructing human rights: the reproach and pressure from the advanced states in human rights, a multitude of problems in the construction of domestic human right institutionalization. As for our society which lacks of right tradition and has different cultural background from the western countries, the knowledge of the Western human right background and its history will benefit us to see the West objectively and construct ourselves rationally.