Free Personal And Active Government

According to the common idea in academic circle, the desirable rights is regarded as the core of the academic researches, while the practicable rights is always border-razed consciously or unconsciously. It plays an important role in making up the practicable research of rights to make clear the relationship between the individual and the government concerning rights' enforcement. Taking a different angle of view, Professor Stephen Holmes and Professor Cass R. Sunstein's discussion starts from the issue on the public cost of rights, which is based on the study of practicable rights. And then, following a train of anti-traditional thought, they reveal the essence of interactive relationship between the individual and the "government", as well as how it operates. This new train of thought about rights studies is quite meaningful and the cognition of the relationship between the individual and the government shaping fi-om those studies is of great significance for enlightening and referencing, not only in both practical and theoretical area of rights, but also in handling with the relationship problems between the individual rights and the public power concretely in the reforming and constructing period of our country.The reality of rights informs that a heavy burden of public costs will take place in the realizing process of rights. As the government is the representative "hand" controlling public resource, the enjoyment and enforcement of rights are bound to depend on this "hand" to organize and mobilize public resource to give a guarantee. Therefore, other than certainly opposing to each other, the rights and the government share a compatible relationship in reality. What the thought of "the public cost of rights" pays close attention to is the budget cost of legal rights indeed. For a variety of reasons, the method which defies the cost has managed to be accepted by various factions of theory. The current situation of the studying thought about rights indicates that the research on the "public cost of rights" issue ought to spread out on the basis of the criticizing of traditional thoughts.To explain the feasibility of rights' thought from the "public cost" angle further, Holmes and Sunstein criticize and clarify the traditional concept of rights with a realistic logic of demonstration, aiming directly at three trapped traditional way of thought, which consequently leads to a brand-new concept of rights. The author believes that the new concept of rights mainly consists of three fundamental judgments: "rights is positive"; "rights is unable to be absolute"; and "rights is surely companied by responsibility". And the process to make out those three fundamental judgments is also the process to re-locate the relationship between the individual rights and the public power.On basis of clog the knowledge concerned, the thought of public cost enters a road at tempting to reconstruct the concept of rights from the visual angle of cost further. The problem how to comprehend and treat rights here is equal to the one how to grasp the relationship between the individual and the government linking with the public cost of rights in substance. Seeing from the reality that all kinds of rights have their corresponding cost, we can tell that the entitlement and protection of rights is essentially a kind of "bargam"--an interactive process of social cooperation among the individuals seeks by both the individuals and the government. As a result of that, a brand-new concept of rights comes out, which is summarized by the author as three arrangements of ideas -"cooperation", "bargain" and "integration".Analyzing the factualism route of rights theories, the author finds that the realization of fights ultimately depends on the theory of "active government", which help us to answer the fundamental question--how does individual liberty depends on social cooperation and the government' active behavior essentially. Therefore, the author thinks that the key point of treating the public cost of rights seriously is to clarify how the "active govemment" operates. To sum up the theory of "active government", which the thought of public cost depends on, there may be three theoretic basis, that is, "dependence on substance", "justice of exchange" and "justice of assignment".In short, to treat the practical rights, we need to stand in a kind of objective and actual position. That means only to cast off the yoke of traditional ideas, can we discover the essential problem which is buried in the regulation of rights operation and affects the enforcement of rights deeply, and then we can reach a train of thought to answer the question, with objective, practical or immediate significance. The thought of public cost of rights shows another mode of thinking. to us. In the public cost of rights' view, building up a fine interactive relationship between the free individual and the active government is the key to make the "rights" come true.