Research On The Ought-to-be Rights Of Minority In Law

Since Revival of Learning and Protestant Revolution brought on the movement of resisting privilege and inequality, the majoritarianism idea has been prevailing in democratic state. Under the influence of the majoritarianism idea, majority decision rule has been adopted in all fields of society as a rule that can achieve decision efficiency at utmost, from majority governing, communitarianism and utilitarianism of democratic politics, to capital majority decision rule of corporate and corporate law, then to the majority verdict of judicial judgment, etc. Majority decision rule bases on two suppositions: the collective intellect of majority has more truth than the one of minority, and the interest of majority is superior to the one of minority. But these suppositions also implicate the biggest danger, namely majority tyranny, which is prone to deprive of minority rights, and consequently results in the bankruptcy of democratic politics. For the sake of justice, minority also deserves respect and protect. The whole train of thought on demonstrating the ought-to-be rights of minority from law viewpoints is as follows: Firstly, to elaborate on the concept of'minority'from the doctrine, international law, and constitution. Secondly, to argue the legitimacy of minority rights separately from the theories of entity democracy and procedure democracy, new liberalism represented by Ronald Dworkin and John Rawls's theories, and anti-utilitarianism theories with majoritarianism as a start point. Thirdly, to discuss minority problem in legislative and judicial practice: regarding as statute laws, to list and analyze the regulation on minority in international laws, constitution and other separated enacts; while regarding as judicial practice, to draw the conclusion that minority and majority share both the same and different rights types after distinguishing minority judge from minority litigant. Fourthly, to guarantee the achievement of the ought-to-be rights of minority by allowing nonviolent resist, establishing dissenting opinion system, and giving special treatment to the minority at a disadvantage. However, this text doesn't tend to overthrow democracy and majority decision rule, but to provide some self-reflection, to emphasize that only respect and protect minority when attaching importance to majority, can we indeed realize universal justice in society.