The Normative Force Of Rights In Practical Reasoning

“Normative Force” refers to the strength and ability of rights to guide people's behavior.This description is closely related to the practical change in the field of rights research.Since the 1960 s and 1970 s,the return of a “practical philosophy”has occurred in the western philosophy of law.The research on rights is also affected by it,and it also started a practical change.The study of rights based on practical philosophy mainly discusses two questions: the first one relates to the formal part that what right's concept is,and we can solve this problem by rewriting Hohfeld's right system.However,there is a gap in Hohfeld's rights framework,and that is to explains what it means for someone to have a right or have an obligation.This is also the essential or “evaluation” problem that the second part of practical philosophy needs to solve,that is,what kind of concern rights protect or what the nature of right is.To answer this question we need to turn to the interest theory and the will theory.The interest theory and the will theory respectively regard rights as protection of interests and choices,and they are two competing theories.However,because of the too close relationship between the will theory and a special kind of morality that emphasizes self-determination and autonomy,the political view of the will theory is too narrow to explain inalienable rights and rights for subjects who do not have the capacity.The interest theory believes that interests constitute the basis of rights.Rights are justified by interests,and obligations are justified by rights.The normative force of rights in practical reasoning is manifested in the fact that it provides a justification for an obligation based on the interest of the right holder,and this interest provides a reason for the existence of such force.Rights as intermediate conclusions are independent and complete reasons in practical reasoning,so that we do not need to trace the ultimate value everytime in practical reasoning.However,there is a gap between the weight of a right and the interests of the right holder.It is this fact that makes us believe that rights do have special normative force in practical reasoning.“Rights as trumps” is a description of this phenomenon,but the term does notprovide a reasonable explanation for this phenomenon.On the basis of the interest theory,Raz developed a special common good theory to explain the normative force of rights.In the process of practical reasoning,rights are a reason stronger than the interests of the right holder.A person's rights not only reflect his interests,but also add an additional,independent reason for it.Raz has filled up the normative gap in the interpretation of individual rights by bringing interests of others and common goods in it,and developed his common good theory.The common good theory can be divided into two versions: the weak version has the view that common good can guide people's behavior and it can,to a certain extent,enhance the normative force of rights.The strong version of the theory is that the reason why liberal rights have the normative force in practical reasoning lies in common goods,and people act on the grounds of common goods rather than personal interests.The interest theory has a broad theoretical horizon and can explain the normative force of rights quite well.However,the utilitarianism elements implied in the interest theory is likely to create the danger of infringement on the minority in the name of interest.For Raz's common good theory,the role of common goods is not to justify the normative force of rights,but to reveal that one of the sources of this force lies in common goods.Common goods play their role together with the interests of right holders so that rights have this unique normative force.