On The Individual Rights And An Effective Government

The concept of right didn't gradually enter the mainstream areas of legal research and political philosophy until the 17th and 18th centuries, before which the idea of justice was regarded as the central issue in the two fields of study. This change not only has brought a great effect on the daily life of people but also guided the political administration and social practice of law. At present, the study of rights is going like fire and flowering rush, just like Louis Henkin, a leading jurist of international law and constitution, said:"our age is an age of rights". Today, rights have become a key problem and a hot issue in the study of legal scholarship. However, unfortunately, the study of rights in law circle mostly pays attention to the ought-to-be research of rights rather than feasibility study for which they even did not make a move. The ought-to-be study of rights has neglected some realistic issues of the sphere of practice, like actual enjoyment of rights and concrete protection. This idealistic view of rights must affect the realization of rights in practice. Consequently, it's of importance that we should reflect on the Relationships between individual and government in realization of rights to make up for the inadequacy of feasibility study.In the content of a significant conversion from ought-to-be to to-be, the United States produced two great jurists: Stephen Holmes, professor of Princeton University and Law School of New York University, and Cass R.Sunstein, professor of the University of Chicago, both of whom did the research of rights from the angle of public cost. Both professors have taken a new and unique perspective, which is totally different from traditional study of rights of former scholars, to begin the research of rights : a floodgate of reliable facts has been analyzed, instead of pure pursuit of the ought-to-be rights, to draw a convincing conclusion—the public cost of rights is a reality; what's more, through the further detailed analysis to fully understand how the rights is embodied with the limitation of public cost on the basis of which, theoretical prepossession of rights has been broken down, essence and operation logic of the relationship between individual rights and an effective government have been revealed , which effectively reconstructed the concept of rights and probed into a new thread of the study of rights. Both of the professors'understanding of rights of the relation between individual rights and an effective government undoubtedly will inspire the domestic legal circle in the theoretical reflection and embodiment of rights, and provide a positive reference for how to deal with the relation between individual rights and public power properly in the process of system construction during the period of Chinese modernization.Therefore, following the thinking route on rights in The Cost of Rights: Why Liberty Depends on Taxes written by Stephen Holmes and Cass R.Sunstein, this thesis focuses on setting forth the public cost of the embodiment and realization of legal rights, all of which are positive and need protection of government. As the public resources of rights protection are scant, the embodiment of individual rights needs a dynamic rebalance.This thesis constitutes three parts: foreword, main body of the thesis, and concluding remarks, among which, main body also falls into three chapters. Chapter I defined the related concepts under the context of rights cost. Rights studied by this thesis cannot be understood in the moral sense but as legal rights which are clearly defined by state law or announced by legislative program and legal principle, exist as rules in ideological state and can be supported by the state public finance. Cost talked here is the budgeted cost of rights, or in general sense, the public cost of rights, which means a necessary equivalent consideration of the public finance by government to make rights embodied successfully.ChapterⅡanalyzes the public character of individual rights underlined in The Cost of Rights: Why Liberty Depends on Taxes written by Stephen Holmes and Cass R.Sunstein. This chapter includes three parts: part I dissertates upon that individual rights protection depends on government support; partⅡdiscusses that the realization of rights has been severely affected by the rarity of public resources. PartⅢgives a further explanation that the realization of rights is of the effect of social integration.ChapterⅢdisserts on the inspiration of the theory of rights cost for China. In China, the realization of individual rights needs an effective government which can tax with reason and allocate the public resources fairly under an adequate supervision of law, but mustn't be a centralized government. So effective government is a government bylaw, a democratic government, and at bottoms a constitutional government.