权利本位的理论逻辑——与童之伟教授商榷

The Theoretic logic of Rights standard

童之伟教授《权利本位说再评议》一文对于深化法本位问题和权利本位问题的研究具有重要的学术价值 ,但他指责权利本位说没有给予权力问题以应有的关注 ,只关照到私法领域 ,而不能适用于公法领域 ,其理论框架是过时的和不切实际的等 ,是偏颇的和有失公允的。他认为权利本位只存在于权利与权力关系领域 ,在权利与权利、权力与权力关系中不存在法本位的问题 ,具有独断论的色彩。实际上 ,权利本位说已经充分关注到了权利与权力的关系问题 ,并且坚持在这一领域应当坚持权利本位 ,反对权力本位 ;不能认为权利本位仅存在于权利与权力关系中 ,而应当从三个方面全面把握权利本位的基本内涵和理论逻辑 ,即在权利与义务关系中坚持权利本位 ,在权力与权力 (职权与职责 )关系中坚持职责本位 。

Prof. Tong Zhiwei's thesis“Re comment on the Right Standard Theory” has great value of learning about deepening the research of law standard and right standard, but his standpoint such as the right standard theory paid not enough attention to power and only concerned about the private law but not applied to public law, so the framework of the theory is outdated and unrealistic is partial and unfair. His standpoint that the right standard exists only in the relationship between right and power, and there is no law standard in the relationship between right and right, power and power has the meaningfulness of dogmatism. Actually, right standard theory has paid enough attention to the relationship between right and power, also it insisted on right standard and opposed power standard. So we can not think that the right standard exists only in the relationship between right and power, but we should grasp the basic meaning and theoretical logic from three aspects, that is to insist on right standard in the relationship between right and obligation, insist on duty standard in the relationship between power and power (authority and duty) and insist on right standard in the relationship between right and power.