权利的证立论:超越意志论和利益论

The Justification Theory of Rights:Beyond the Will Theory and Interest Theory

意志论和利益论是权利概念的两种代表性理论,二者各有缺陷这一事实促使人们探索超越二者的理论路径。目前主要有三种超越路径,分别是折中论、形式论和证立论。折中论和形式论的权利概念在"普遍性"或"区分性"上有较为严重的缺陷,皆不可取。证立论基于"个人的利益与他人的义务的证立关系"界定权利的概念,揭示了权利在法律实践中的普遍性、区分性特征,是目前更具理论吸引力的权利概念理论。依照证立论,拥有权利意味着法律承认个人的利益构成了他人负担义务的充分根据。

The Will Theory and Interest Theory are two representative theories,and the debate between them is a classic debate on the concept of legal rights.In this debate neither side could win a decisive victory,and the debate ended in a standoff.There are three kind of theories which intend to transcend the debate,and they are respectively the Compromise Theory,the Form Theory,and the Justification Theory.The concept of rights provided by Compromise Theory or Form Theory lacks either universality or differentiation,so all of them are unconvincing.The concept of rights in Justification Theory based on the“justification relationship between the interests of individuals and the obligations of others”truly reveals the universality and distinguishing characteristics of rights in legal practice.Thus,the Justification Theory is the most theoretically attractive concept theory of rights at present.According to the Justification Theory,having a right means that the law recognizes the interests of individuals as a sufficient ground for others to bear obligations.