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1、Inner Mongolia Agricultural University College of Humanity and Social Science Short Analysis of Rights: in the context of Anglo-American Legal Tradition Reporter: Liu, Xian Gang China University of Political Science and Law,According to some commentators, ancient Roman Law and medieval legal systems
2、 had no concept that compared to the modern notion of “rights”. The closest analogue, “ius” referred instead to “the right thing to do ” or “ what is due according to law”.,Even those commentators who think that ancient and medieval law did have a concept of “rights” comparable to our own agree that
3、 it played a far lesser role in legal thought then, compared to modern legal thought.,Rights and rights-talk are pervasive within modern discussions of law and government, a pervasiveness which sometimes leads to certain forms of confusion.,The discussions of rights often exemplify a basic problem i
4、n conceptual analysis: the way abstract arguments can become entangled in particular policy views.,Rights come in at least tow types: legal right and moral rights, depending on whether the claim in question is grounded on the authoritative sources (e.g. statutes, judicial decisions, or constitutiona
5、l provisions) of a particular legal system, or on a moral theory.,Jeremy Bentham (1748-1832) famously argued that talk of moral rights (or “natural rights” or “human rights”) was “simple nonsense nonsense upon stilts.” 杰里米边沁（Jeremy Bentham, 1748-1832）,The idea is that while legal rights have a clear
6、 correlate in the world, in legal texts and the willingness of legal officials to enforce them through various enforcement procedures, no such clear correlate exists for moral rights. However, this skeptical view of moral rights is not shared by many.,One regular source of confusion in discussions a
7、bout rights is the way that two different types of questions often under the same label.,First, conceptual questions about the nature of rights: like other conceptual questions, discussions about the (conceptual) nature of rights generally attempt either to offer a definition/delimitation for the pu
8、rpose of clarity or to discover some element distinctive to the social phenomenon expressed in the way we use the term.,For example, one conceptual claim sometimes made is that one can only have rights to something beneficial.,This derives from, or at least is supported by our linguistic intuitions:
9、 It makes sense to say “I have a right that you pay me five dollars”, but not to say “I have a right that the state imprison me for five years as punishment for what I have done”.,Additionally, there are often conceptual debates about whether certain classes of entities (e.g. future generations, ani
10、mals, the environment, and fetuses) are capable of having rights.,In contrast to conceptual questions are policy questions: to what extent should this legal systemor all legal systemsprotect a certain category of people, activities, place or things?,It is easy when reading articles about rights to c
11、onfuse the conceptual issues and arguments with the issues and arguments about policy matters.,A common confusion of this type occurs in discussions about abortion, as when someone responds to an argument in favor of legalizing abortion by saying “fetuses have rights”. This mixes two levels of discu
12、ssion, two different types of questions.,It is compatible to say both: (1) (as a conceptual matter) I do not think it makes sense to speak of fetuses as having rights; and (2) (as a matter of policy or morality) I believe that abortion is wrong and immoral because it involves severely harming fetuse
13、s, which should not be allowed except in the most extreme circumstances.,Of course, deciding that a certain type of entity (e.g. a fetus) can have (moral or legal) tights is different from saying that fetuses do have such rights. Finally, there can be circumstances where an entity has rights, but it
14、 is nor protected because other parties have stronger countervailing rights.,Thus, it is compatible to believe both: (1) fetuses are capable of having rights; and (2) abortion should be allowed in most circumstances (because fetuses in fact do not have rights relevant to this situation, or whatever
15、rights they have are overridden by the conflicting rights of the mother).,To put the matter another way, from the statement “Y is capable of having rights”, it does not follow that Y has any rights and it does not follow that whatever rights Y has will trump the conflicting legal interests in the ma
16、tter under consideration.,The confusion in this area is encouraged by the use of rights rhetoric in political discourse (more prevalent in the United States than in most other countries).,When people want to say that making sure that no one go homeless is a worthy and important government objective, they often use the shorthand” human beings have a right to shelter” and when people want to express their belief that abortion should be prohibited, they sometimes choose the shorthand,” unborn babie
