发现还是创造:新型权利的表达逻辑
发布时间：2018-09-18 08:49
【摘要】：新型权利表面繁荣的背后有一些方法论上的隐忧值得关注:权利标准缺失,一些权利束、权能也被当作新型权利加以研究。在纷繁复杂的权利理论丛林中,学者应说明采用哪种权利理论在论证新型权利。新型权利研究在技术上也存在瑕疵,权利所对应的义务常被研究者忽略,其应予明确。新型权利证成中权利的冲突、权利义务之间的匹配关系应进一步精细化,利益衡量应当被引入到新型权利研究中。新型权利应该具有某种道德上的正当性,即从道德权利发展为法律权利,所以新型权利的研究应当是一个发现的过程,而非一个创造的过程,发现的源泉应当是道德基础,尤其是公德。新型权利研究的目标应当是说服立法者或司法者接受该项权利的存在,那就要求研究的精细和对话性,而不能将所有有关利益的主张都赋予"权利"的身份。
[Abstract]:There are some methodological worries behind the prosperity of new rights: the lack of standards, the bundle of rights and the study of power as new rights. In the complicated right theory jungle, scholars should explain which rights theory is used to demonstrate the new right. The study of new rights also has defects in technology, the corresponding obligations of rights are often ignored by researchers, which should be clearly defined. The matching relationship between rights and obligations should be further refined, and the measurement of interests should be introduced into the study of new rights. The new right should have some moral legitimacy, that is, from the moral right to the legal right, so the study of the new right should be a process of discovery, not a process of creation, and the source of discovery should be the moral foundation. Especially public morality. The goal of the study of new rights should be to persuade the legislator or the judiciary to accept the existence of the right, which requires that the research should be subtle and conversational, and that all the claims of interests should not be assigned to the status of "right".
【作者单位】： 黑龙江大学法学院;
【分类号】：D923
，
本文编号：2247390
[Abstract]:There are some methodological worries behind the prosperity of new rights: the lack of standards, the bundle of rights and the study of power as new rights. In the complicated right theory jungle, scholars should explain which rights theory is used to demonstrate the new right. The study of new rights also has defects in technology, the corresponding obligations of rights are often ignored by researchers, which should be clearly defined. The matching relationship between rights and obligations should be further refined, and the measurement of interests should be introduced into the study of new rights. The new right should have some moral legitimacy, that is, from the moral right to the legal right, so the study of the new right should be a process of discovery, not a process of creation, and the source of discovery should be the moral foundation. Especially public morality. The goal of the study of new rights should be to persuade the legislator or the judiciary to accept the existence of the right, which requires that the research should be subtle and conversational, and that all the claims of interests should not be assigned to the status of "right".
【作者单位】： 黑龙江大学法学院;
【分类号】：D923
，
本文编号：2247390
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2247390.html
