The Dilemma And The Way Out Of The Interest Theory Of Rights

Right is the cornerstone category of the philosophy of law,and the theory of right is the important content of jurisprudence.The will theory of rights and the interest theory of rights are two representative theories of rights.Before the emergence of the theory of rights,from the ancient Greek “legitimate things”to the nominalism of the Middle Ages,the factors of rights were scattered everywhere in various forms.Since modern times,the classical natural law emphasizes the subject will attribute of right,and the legal positivism emphasizes the creation of the right by positive law.The two lay a theoretical foundation for the will theory of rights and interest of rights respectively.The theoretical form of the will theory of rights is presented in two stages.Classical will theory of rights holds that right is the exercise of individual free will.According to modern will theory of rights,rights are similar to a small-range or small-scale sovereignty.The interest theory of rights holds that the aim of rights is to protect and promote the interests of the obligee.The will theory of rights,represented by the choice theory of rights,is faced with“subject dilemma”and “interest-oriented dilemma”.The interest theory of rights is also faced with the question of whether the right holder must benefit from it,as well as the criterion and the procedure of argumentation from interests to rights.Each of the two rights theory has its own advantages and disadvantages.At present,the interest theory of rights seems to be a superior theory of rights.In the judicial practice,the strategy for right disputes in difficult cases from right-interesttheory can get the favor of the judge.The interest theory of rights also occupies the superiority in the modern theory of rights,mainly manifested in the turning of the value of civil law and Pound's theory of social interests.The advantage of the interest theory of rights is that it is closer to the interest core of right than the will theory of rights,it has a stronger operability,and it is a more general theory.There are three main difficulties for the interest theory of rights.Firstly,the interest theory of rights leads to the wide scope of the subject of rights in practice.On the one hand,it improperly extends the subject of rights to animals and annihilates human subjectivity;on the other hand,it improperly extends the subject of rights to all stakeholders,we choose the third person in the contract for the benefit of a third party as the typical representative.Secondly,the interest theory of rights leads to excessive expansion of the content of rights.Many emerging interest demands cannot be resolved,they are labeled with rights,producing a large number of emerging rights,resulting in the generalization of rights.The mechanism of right generalization can be divided into three stages: the emergence of right trust,the dissatisfaction from interest appeal and the application of right discourse.The generalization of rights leads to the “inflation”of rights,and the cost problem of rights,which is harmful to the value and dignity of rights.Thirdly,the interest theory of rights leads to the lack of value of rights.The interest theory of rights holds that right is the benefit protected by law,which disassembles the right into two elements: “benefit”and “law power”,corresponding to utilitarianism and legal positivism respectively.The measurability of interests and the legality of rights result in the lack of value of rights.In view of the three dilemmas of the interest theory rights,we seek to get rid of them.Aiming at the wide scope of the subject of rights,we adopt the measures to limit the scope of the subject of rights.On the one hand,the subject of right is limited to the human being,on the other hand,the interests of subject which can rise to rights should be limited to the interests of the obligee himself,excluding the benefit of the third stakeholder from the scope of the subject of the right.In view of the excessive expansion of the content of rights,we take the gate of rights to limit the flood of interests.One of the most important gates is the measure of interest.It is up to the judge to follow the procedure of measuring the interest and decide the winning interest in the case.In view of the lack of value of rights,we should deal with it from three aspects.Firstly,rights are not measurable.Measurability of interests does not mean that rights are also measurable.Secondly,distinguish between rights and interests,showing the absoluteness,priority and subjectivity of rights.Finally,the ethical value of rights is filled from three aspects:the responsibility of the right subject,the cost of right and the moral limitation of right.