基于恶的权利本体论构建——评艾伦·德肖维茨《你的权利从哪里来?》

The Construction of the Right Ontology Based on Evil——A Review of Alan M.Dershowitz’s Rights From Wrongs:A Secular Theory of the Origins of Rights

时至今日,权利的理念已经深入人心,'以法律的武器维护自己的合法权利'已经成为众所周知的话语,人人皆知自己享有某些权利,但我们为何会享有权利,权利源自何处?关于权利来源的争论一直众说纷纭,有源自于上帝、自然、主体间的商谈、法律等不同的观点。美国哈佛大学法学院教授艾伦·德肖维茨(Alan Dershowitz)在《你的权利从哪里来?》[1]一书中提出了一个石破天惊的理论,他认为权利既不是来自于自然法.

On the origin of rights,they originated from natural law,positive law or among the subjects according to different theories.Dershowitz criticized the traditional theory of right source and thought rights come from the evil of human experience.He believed that people sununed up experiences and lessons from evil,promoted rights based on these lessons,and then built the rights system.Corresponding to natural rights,Dershowitz creatively put forward the term of nurtural rights.Rights are established by examining the history of injustice,summarizing the experiences and lessons of the evil and established on the basis of these lessons.The process of gradually establishing and accumulating the rights system is anurtureIn addition,besides claiming that rights originated from evil,Dershowitz also admitted that the rights(which originated from evil)themselves would produce evil.He thought rights did not guarantee the emergence of legitimate results.The world of rights is a world of risk,but experience tells us that the world without rights is more risky.Compared with the traditional source of rights theory,Dershowitz’s theory of rights is newer and somewhat convincing,but it also has some limitations:first,there are insufficient experiences of circular reasoning and motivation.Dershowitz believed that it was just from injustice the people suffered that they summed up experience and established rights.'Experienceplays a very important role in the theoretical system of rights,but it is the experience that makes the argument of the source of rights defective.The whole argument is based on experience,with rights from the experience of injustice,and judgment of injustice is also based on experience.There is suspicion of empiricism for this repeated argument around experience and it is not convincing.Second,there is not enough argument for authority on the rights system.In Dershowitz'view,the best way to maintain rights is to actively and persistently defend rights,rather than passively relying on'the highest authority'.Defense and advocacy are conducive to awakening the awareness of rights,but they cannot produce the authority to defend rights.In order to obtain the authority,for the rights we claim or advocate,there must be some power to ensure the realization of its authority,whether this kind of power is the force of the country or other.There is no such power for defense and advocacy for they only have the right to vote but no decision for the authority of rights.Third,there is no enough distinction between rights and preferences.Dershowitz believes that the right is not democratic in nature,because the right limits the national implementation of most peopled preferences.Rights are more durable and determined than most people’s preferences and they have historical origin and the system.The distinction between rights and preferences is mainly about the degree of difference and the main means of differentiation is through experience.Obviously,Dershowitz’s explanation on the distinction between rights and preferences is not detailed and there is no enough argument.If the distinction is mainly reflected in the degree,then about how to grasp the degree,he hasn’t made clear.Moreover he rely too much on experience.Therefore,we should have sober knowledge about Dershowitz’s theory of rights and be more cautious for grasp of rights.