Build Off The Theory Of Core Areas Of Law Legal System, Involved In Social Welfare

"A theory could develop into a system or school by itself only when it can own a theoretical basis, the expression of which is the basis category that is the typical embodiment of certain stands, viewpoints and approaches and therefore distinguishes one system (school) of theory from another ". so this shows that basis category or core category(the two concepts are used alternatively in academic circle.) is something that distinguishes jurisprudence from other disciplines of learning. Jurisprudence, a well-developed hierarchy of disciplines, needs to constitute its own theoretical framework. Then, what is the core category of jurisprudence? Or what can be the core of jurisprudence or the backbone of jurisprudence? What can jurisprudence rely on to build up its system?We can say that the core category of law is controversial in the academic circle. Among those argumentations, the most authoritative is right-obligation theory, whose contribution is to bring legal studies focused on class struggles back to its normal study area and put forward theory of standard of right. But can rights and obligations are able to interpret all legal affairs and act as the basis of legal system?Some scholars have already realized this and made constructive attempts by proposing right-power theory and "right-obligation and right-power" theory. It can be said that scholars in our country begin to be aware that there is power in addition to right and power cannot be covered by the right and obligation relationship but coexists with right. However, the scholars go no further, when they realize the problems of right and power, neglecting legal responsibility, a very common thing in law so far as I am concerned.Definition of legal responsibility by the academic circle takes obligation as reference category. As a result of this, legal responsibility, a very central thing in law, has been neglected. Taking obligation as reference category means responsibility is not a basic concept, as compared to obligation, but a non-natural being. Then is this the truth? I find that Mr. Zhang Wenxian, the advocate of the obligation theory, remarked, with regard to legal responsibility, that: "either legalized conventions as unwritten laws or documents in various forms as written laws, in the very early history of law, according to the current resources, were hardly beyond the restrictions of legalresponsibility------legislation was done closely around the gist, range,undertaker, defining and execution (sanction) as well of legal responsibility. As to judicature, it assumed as its all duties to define, summarize and execute legal responsibility, which makes early legislation characterized by "responsibility-centeredness". Later on, due to the advancement of social civilization and variety of methods of legal adjusting, laws were not only or mainly dependent on forbidding man's behavior such as definition of responsibility and punishment of misfeasance to direct people and regulate social relationship, but on requiring people to act by observing the right model, and setting down the punishment of violation of the right model, and ways and procedures of punishment to make the goals come true of laws to direct and regulate social conducts and relationships. Correspondingly,the legislative paradigm of "responsibility-centeredness" was replaced by that of "obligation-responsibility" pattern. Because of the development of commercial economy, politics and democracy, and rational culture since modern times, proclamation, definition and protection of responsibility became the orientation in legislation, however, this did not degrade the value of responsibility but transform it, namely, from a mechanism to punish crimes to that to defend rights. Right, obligation and responsibility together become parameters in legislaton, producing the legislative paradigm of 'right-obligation-responsibility'." We can conclude from this experimental analysis that responsibility came into existence since the birth of laws and was indispensable to laws. But why did Mr. Zhang's core category of "right-obligation" give up responsibility? And he held that obligation and responsibility became the parameters in legislation altogether, then, does this modify his view of responsibility as secondary obligation? After all, his analysis helps by picking up responsibility in the core category of law.In addition, in my opinion, the reason why obligation can't be used to refer to responsibilities is that obligations are not basic conceptions which can be used to refer to responsibilities. Obligations and rights are relative. That means that you have rights, then you have corresponding obligation. Obligations are the derivate of rights. Obligations and rights are not relative. Their relationshipcan not be realized without their derivate------rights. Maybe some scholars willsay that responsibilities and rights are corresponding and responsibilities are rights' derivate. Many famous western jurists, such as Hohfeld, point out the correspondence between rights and responsibilities. To the writer, this is a misinterpretation of responsibilities. Rights and duties are relative. Legal responsibilities, as a common phenomenon, are necessary responses to disputations, conflicts or are the ultimate solution disputations and conflicts. To all laws, responsibilities are necessary inflections. It can't disobey and choose. Without legal responsibilities, power can be abused. Rights can be infringed. Laws turn out to be ineffective laws. In this sense, responsibilities can be terminated. Therefore, responsibilities don't attach themselves to rights and power. It exists independently and without responsibilities' restriction, power and rights are likely to be abused. Responsibilities can eliminate abuse. Different from power and rights, responsibilities are aloof existence. They enable rights and power to exist more reasonably and are restriction of subjects' action. Rights—power is still expression of laws. Still power and rights are the basic content. Responsibilities are active and the terminal point to the realization of power and rights. So I think we should define the cornerstone of laws as the combination of rights, powers and responsibilities.In my opinion, the combination of rights, powers and responsibilities theory is just a premise. In practice, the three basic concepts don't have equal standing. Private laws, such as civil laws, mostly give individual more freedom and rights become the basic value guidance. Public laws, such as administrative laws, give more power to governments. The power becomes the basic value guidance. We know that private laws and public laws can't cover all laws in our society, For example, the third departments. If the third departments take right as guidance, there is an embarrassment that it aims to take care of the society's welfare, instead of give individual more freedom and rights. So is the case if the third departments take power as guidance. This is a problem which right theory or power theory can't solve. In my opinion, the combination of rights, power, and responsibilities can solve this problem, because the third department law system care about society welfare. Individuals, governments and social communities can not get moreprivate profit, more administrative power. And so Aristotle said, "......thatwhich is common to the greatest number has the least care bestowed upon it. Every one thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual. For besides other considerations, everybody is more inclined to neglect the duty which he expects another to fulfill". The main purpose when designing the laws is not to give rights or power, but to fulfill the responsibilities. Taking the protection of non-material heritage as an example, we lay our emphasis on the attendance of responsibilities. We have to design a legal system which takes responsibilities as its guidance.