重新理解权利——哈贝马斯对自由主义、共和主义和程序主义的权利概念分析

Rethinking of the Rights, Focused on Jurgen Habermas’s Analysis of the Concept of Right in Liberalism, Republicanism and Proceduralism

在对主体权利和人民主权关系的理解上,自由主义和共和主义之间存在着截然不同的看法。自由主义把权利的正当性建立在道德自主性原则的基础上,强调人权高于主权,把人权看作是脱离人民主权而私人独立享受的东西,主张用一种弱的民主制度来实现人权。而共和主义则相反,从伦理共同体基础上理解人权和主权的关系,强调主权高于人权,认为人权只能在人民主权的实施中被享用,主张用一种强的民主制度来保障人权。而哈贝马斯强调从程序主义角度重新理解权利,把人不仅作为法律的承受者,而且作为法律的创制者,强调人权和主权是相互补充的,主张通过程序主义的民主制度保证同时实现人权和人民主权。但是这种程序主义却没有程序。

Liberalism and republicanism have quite different opinions about the relation between subjective rights and popular sovereignty. Regards rights as something that could be enjoyed individually, and emphasizes that a weak democracy could secure rights. On the contrary, the republicanism understands the relation between subjective rights and popular sovereignty on the base of ethical community, given sovereignty the priority over rights, and would like to enjoy rights through the exercise of popular sovereignty, and to secure rights through a strong democracy. Jurgen Habermas stressed to rethink rights and sovereignty from the perspective of proceduralism, namely to regarded human being not only as the addressees of law but also as the authors of law as well, suggested that subjective rights and popular sovereignty coexist and rely on each other. In his mind, only through the proceduralist democracy could the subjective rights and popular sovereign secure. But, the proceduralism has no any procedure, as what critics have said.