Constitutional Nature of Personality Rights and Its Manifestation in Civil Law

The formation of personality comes from people’s choices and pursuit of self-realization,which is influenced by objective factors but not determined by them,so personality does not belong to the domain of objectivity.The concept of general personality rights in the German Constitution was initially premised on the objective determinability in the field of personality,but in constitutional jurisprudence,it gradually shifted to something with individual autonomy as the core and personal self-realization as the goal,and the scope of relevant rights expanded accordingly,so that they could not be clearly distinguished from general freedom of action and thus became the general principle of constitutional rights.The protection of constitutional personality rights in the United States and Japan can also confirm this process,providing evidence for the constitutional nature of personality rights.Deeper research shows that constitutional personality rights actually manifest the highest value of modern constitutions—human dignity.In contrast,the theoretical justification of personality rights in civil law just lies in the objectivity and defensive nature of personality elements.

Is a Human Right to Democracy Justifiable？

In this article, I examine the view that there is a human right to democracy, and consider why we should regard this issue as decisive in solving the problems of foreign interference in the protection of human rights. I also note that there has been almost no discussion about the holder of the human right to democracy, that is, who is to hold this right. After comparing John Rawls＇ argument against the human right to democracy and Thomas Christiano＇s argument for it and showing similarities and critical differences among their arguments, I insist that we ought to be sensitive when proclaiming that democracy--be it a minimally egalitarian democracy or a more exacting one--is a universal value. We have sufficient cause to consider carefully not only the political circumstances but also the political infrastructure of the country before we proceed to an even limited intervention in the name of the protection of a human right to democracy. If the human right to democracy is not just a right to vote, but a right to the whole process of establishment and enjoyment of democracy, it should be understood as a group right that pertains to a human population that legitimately claims political self-determination. Any human population that insists on the democratic self-determination of their political will is both able and entitled to establish and administer democratic institutions, regardless of the diversity of its ascribed or cultural characteristics. The establishment of such a group with a firm political identity should be considered as the political infrastructure to claim and exercise the human right to democracy.

Third-Generation Human Rights＂ A Tragic Illusion

This paper deals with the applicability of human rights in general and of third-generation human right in particular. It offers an explanation of the pathetic status of human rights and suggests an alternative approach towards ＂third-generation＂ human rights, i.e., the rights of communities. It argues that since an immanent dichotomy exists between the political aspect of human rights--the fact that their addressee is the state government--and their universal aspect, i.e., the fact that they belong to everyone and their fulfillment is demanded by international bodies, very often their possessors cannot capitalize them. Third-generation human rights encounter additional problems. Very often their respondent--the state government----cannot comply with their demands, and according to the Kantian principle ＂Ought Implies Can,＂ they should be addressed towards someone who can in fact fulfill them. This article thus suggests addressing third-generation human rights towards the international community. This may exclude them from the current category of human rights, and create the need to establish a new category such as Community Rights. Such classification may bear the advantage of making these rights more applicable and accessible than they are at present.

Application of Presumptive Consent in Passive Euthanasia

In the criminological system, passive euthanasia is an act that meets the constitutive elements. We should discard the traditional view of distinguishing between acts and omissions, but use genuine consent or presumptive consent under the patient’s right to self-determination as the basis for its justification. In general, the patient’s genuine consent takes precedence, but in case of the unavail-ability of the patient’s genuine consent, his or her presumptive consent should be applied as a substitute. The judgment of presumptive con-sent should follow the subsequence, with the living will of the patient applied first and then the substitute decision-making. If the patient’s personal will cannot be inferred after exhausting all available possi-bilities, the principle of prioritizing the interests of life should prevail, and the ongoing life-sustaining medical care should not be interrupted or terminated.

Human Rights as Placeholders

Two prevailing ＂traditional＂ notions of human rights also cause the current skeptical mood concerning human rights. Either human rights are seen in a morally exaggerated way as ＂trump cards＂ in political negotiations, or they are pruned back to a purely juridical level, absorbed into legal instances that accord them at most the rank of constitutional rights. In contrast to this, the author defends a political conception of human rights that overcomes the problems besetting both conceptions, but without having to sacrifice their critical, normative content or a realistic role for human rights in international politics. A political conception of human rights assumes, the author argues firstly, that human rights grow out of concrete experiences of injustice and are the product of political struggles. Human rights are, secondly, placeholders for the public thematization of oppression, humiliation, marginalization, and despotism. A third characteristic feature of a political conception of human rights is that human rights raise claims to a rule system that permits access to the freedoms and resources formulated by human rights. And finally, the obligations imposed by human rights are not duties of assistance but institutional duties to realize the conditions for exercising human rights. Human rights, the author concludes, can be ＂used＂ by any person to criticize existing ordering structures and can be activated for political purposes directed to the common good.