论义务及其与权利的本质关系

Comment on Duty and Its Essential Relationship with Right

界定法律义务不能孤立地就义务谈义务,而要从权利与义务的整个关系链条、从法的整体上去把握。法律义务是一种法定约束;权利一经法定,就是对权利的范围与自由度做出规限,即隐含着不得超越界限的义务。权利与义务是构成法的统一体,这同说“权利义务是统一的”的命题有所区别。后者只是说明二者自身相互依存,对立统一;前一命题则突出权利与义务是法和法律的整体构成上的两个必具元素,舍一不可。就法的本体而言,不能单纯以权利或义务为本位,权利义务都属于法的本质范畴,它们之间是本质内容与本质形式的关系。

When we give duty a definition, we can＇ t talk about duty only ; we must grasp it from the whole relationship of duty and right and entirety of law. Not only is duty a kind of legal restriction, but when right is legislated, its scope and extent of freedom is regulated and limited. In another word, it implies that there＇ s the duty which can＇ t be surpassed. Right and duty is the unity which constitute law. But it＇ s different from the proposition that right and duty is unified. The latter one is to say those two are interdependence and the unity of opposites. But the former one is to stress the right and duty is the element of the total constitution of law and legal norm. Neither of them can be neglected. And when we talked about the ontology of law, we can＇ t take either right or duty as the basis alone, both of them belongs to the nature of law, and their relationship is the relationship of essential form and content.