留学生作业代写：The logical basis of emerging rights

下面为大家整理一篇优秀的essay代写范文- The logical basis of emerging rights，供大家参考学习，这篇论文讨论了新兴权利的逻辑基础。新兴权利理论不应满足于对“新兴权利”现象作生活化或描述性说明，而首先应该从逻辑上对它予以证成或证否。因此，新兴权利理论的首要核心命题应该是新兴权利产生的逻辑条件。

The theory of new rights should not be satisfied with the existence or descriptive description of the phenomenon of "emerging rights", but it should first be logically certified or otherwise. Therefore, the primary core proposition of the New Right theory should be the logical condition of the emerging right. On the whole, the emergence of emerging rights must be based on any of the following conditions: first, according to certain social value judgments, both the real law on the distribution or arrangement of rights show an unfair pattern, and a benefit proposition is conducive to breaking and adjustment of the unfair distribution pattern. Secondly, with the development of controllable resources, one kind of benefit proposition will not lead to the derogation of rights that other people cannot accept, nor will it lead to the distribution of unfair rights according to the widely accepted value.

It is no exaggeration to say that "right" has occupied the central position of contemporary law and political discourse. Today, no matter which government, which group or individual, is the most common and often most effective strategy when it comes to legitimate interests and claims: to assert its claim to be right, and even if its assertion succeeds in "evolving" or being "packaged" as an established right, or at least closely related to certain established rights; The concrete manifestation of this in real life is that it is very rare for us to see that a proposition has been formulated in such a way that "my claim will point to certain or certain obligations", or "my claim is desirable because it is based on certain persons ' or certain obligations", it is often stated that "in order to protect a right, my claim should be supported" or "the essence of my claim is for the realization of a right"; The typical performance in theory is Scholars began to discuss all kinds of "rights" such as "wandering right", "begging right", "animal right" and so on, which are quite Ling.

However, if it takes into account the "right to no obligation, there is no obligation to be entitled" This is the most basic principle of law and practice of law, and the realization of any right depends on the fulfillment of the obligation of the corresponding subject, therefore "the obligation is prior to the right in both logic and time." In other words, if "right" is the core of contemporary law and political discourse, then "obligation" is, of course, the core. In other words, when people turn their claims into rights, they almost always mean first, and some of the other subjects will take on additional obligations because of the right of this claim; look further, and considering that the world is always a "relative scarcity" as Adam Smith said, there is almost always a world of competing resources. ―― Obviously, in such a world, if a limited resource is occupied by someone, it actually means that other people are restricted, be ostracized or deprived. The possible question here is whether there is an uncompetitive right to admit that it does not lead to derogations from the rights of others. The answer is no. For example, the right to vote: On the face of it, admitting that the other person's right to vote does not seem to lead to a derogation of the right to vote, it is not, however, because the recognition or empowerment of a part of the right to vote will dilute at least the voting rights of the subjects entitled to vote, and, of course, the increase in the relative negative obligations of others, and dilution and the negative obligations here are certainly a derogation. Secondly, even if a claim of entitlement does not directly lead to an increase in the positive obligations of others, it will at least imply a derogation from the constraints or interests of other persons. People always tend to choose "right" as the core of discourse, in fact, it is mainly a strategy, rather than a logical rational understanding of ―― and this, in fact, the following observations and anxieties have been made to the scholars concerned, "in the contemporary political discourse, we have seen that all kinds of claims, declarations and announcements are like an avalanche, presenting an increasingly long list of all the rights that people are said to have or should have." It is suggested that a moral right already exists and should be recognized legally, but that it is merely the translation of the purpose of a particular collective into the discourse of an individual's rights. Empowerment can be an object of unanimous approval, but only in a ' specific system ', where members of the system can expect to transfer the corresponding obligations to others outside their systems. There are many such systems within a society, and when they ask for rights, they hold hope with confidence and take advantage of the rest of society. Welfare rights, organized labor rights, tariff protection rights, ' fair trade ', ' fair price ', ' stable market ', and so on, its attractive charm, all because of the transfer of the cost to the profit system.

So does this mean that the right does not have a logical basis for expansion? Or is it that the expansion of rights, or the emergence of new rights, is always not justified? The answer is still negative, that is to say, "The proposition that there is no logical basis for the expansion of rights is not tenable, otherwise it is simply impossible to explain the general tendency to be easily observed from experience: why is it that the rights of the citizens to actually enjoy the examination are becoming more and more abundant today in the modern society and the so-called" postmodern "? Or, in other words, with the development of a society, does it not always constantly produce certain new rights ――, that is, the right to ―― in the past and the present?

Therefore, it must be that we ignore some of the links in the above logic, and thus make our logical analysis and empirical observation show a clear conflict; and so if we can find the links that we've overlooked, it could be the emergence of new rights from logic. In the author's opinion, the identification and research of these links should be the true core of the New Right theory. Unfortunately, however, at present, when discussing the issue of emerging rights, the academia has almost avoided this core, and only focus on the living description of the external experience, only the time, space or content "in the past" and "now has" as the emerging rights standards emerged. While an external description of emerging rights standards is not entirely worthless, this description does not require, it is not even worthwhile for the theorists to proceed in a big way, because it is not, and should not be, an external and living description of the phenomenon, but rather an intrinsic and logical evidence of the issue. In fact, only the latter can answer the following key questions in the emerging rights domain: What are the logical causes of emerging rights or what are the logical conditions? In other words, what kind of conditions should the law give to the status of a legal right?

I. Kant, referring to the relationship between rights and obligations, had referred to two "vacancy situations", one "the legal relationship of persons who have no right to be responsible" and the other "the relationship of persons who have rights and no obligation". Among them, the former is vacant because "if such a person is bound to be a person without legal personality, as a slave with chains", then the reason for the vacancy is that only God can meet this condition, and "God is not an object of experience". As Kant says, in modern social life, a slave who does not have a right or a god who has no obligation at all, is obviously impossible and should not exist, and more often than not, some people have Shing rights or obligations. In terms of this article, the "unfair distribution" of rights and obligations arises. In general, this includes the following specific circumstances: first, the person who should undertake certain obligations, not fully assume the corresponding obligations, the typical such as a taxpayer who should be taxed tax evasion; second, the person who should not undertake certain obligations, undertake or partly assume the corresponding obligations, typically such as women in the patriarchal society of the additional commitments of certain obligations; Third, those who are entitled to the examination of certain rights are not fully entitled to the corresponding rights, typically such as a worker who has not been paid on time by volume; Those who do not have access to certain rights are, in fact, partially entitled to such rights, and a typical person who refuses to perform a maintenance duty or even intentionally injures a child of the elderly actually obtains part of the inheritance right.

If the pattern of unfair distribution is based on the actual law, it can be summed up as two categories of the four specific cases: the Shing of the distribution of rights and obligations caused by the standard of the real law, such as the "eight discussions" in the Tang Dynasty, which may result in the right of the corresponding subject to be examined, shall be entitled to the examination. The other is that the real law itself does not lead to the distribution of rights and obligations Shing, but actually leads to this pattern based on the role of some empirical factors, If, in the age of general scarcity of employment opportunities, even the law itself is fair enough to deal with employers and employees, it may also lead to an employer's lack of responsibility and a pattern of obligations. Clearly, this latter situation does not address the issue of emerging rights, since it is only at this point that the rights, obligations and distribution mechanisms already recognized by law can be implemented. So, is the former situation likely to involve the issue of emerging rights? If the legislation can accurately reflect the basic social pattern and the mainstream ideology and the specific value judgments based on them, there is no problem of unfair distribution of rights and obligations based on the fact law. As an example of the "Tang law" mentioned in this paper, if the prevailing social consciousness does not consider that giving a special preferential treatment to those who meet the "eight-argument" condition, then at least according to the standards at that time, there is no Shing right and obligation distribution. We today think that the "eight-argument" system is unfair and unfair, mainly because we are based on the value of "we". The problem, however, is that empirical legislation does not always accurately reflect the value judgments of a society, which may include two of cases:

The first is that the legislation is inconsistent with the social value, which leads to the unfair distribution of the rights and obligations that must arise in accordance with the provisions of the law. Taking the election law of the People's Republic of China as an example, article 14th of the 1979 election law stipulates that "provinces, autonomous regions and municipalities shall elect the places of representatives of the NPC, and the Standing Committee of the NPC will allocate eight times the population represented by each representative in the rural areas according to the principle of population represented by after 1995 years of revision to the urban and rural population in the proportion of the" eight times "adjusted to" four times ", until 2010 revised, it is clear that" The National People's Congress is represented by the Standing Committee of the NPC on the basis of the population of each province, autonomous region and municipality, according to the same principle as the number of urban and rural population of each representative, as well as the requirement to ensure the appropriate number of representatives from all regions, nationalities and all sides. Considering that the Constitution of the People's Republic of China as a fundamental law reflects the basic social pattern and the mainstream consciousness of our country, then it can be said that, until the 2010 revision, the corresponding provisions of our electoral law have been at odds with the mainstream consciousness since the promulgation of the first constitution in 1954, in which all constitutional texts clearly set out the principle of equality for all. Clearly, according to the mainstream consciousness of "equality before the law", the distribution of rights and obligations made by the electoral law before 2010 was unfair.

Second, the legislation may be in line with the social value judgments at first, but when the latter changes, the corresponding legislation has not been revised and adjusted with the times, which leads to the unfair distribution of rights and obligations according to the actual law. Here may be illustrated by the evolution of the allocation of Western suffrage: Although many important legal documents, including the French Declaration of Human Rights and the United States Declaration of Independence and the Federal Constitution, have, since the end of 18th century, declared "equality before the law", either directly or indirectly, but in fact, the so-called "equality of all people" only refers to the "productive adult white man", so proletarians, women and color does not enjoy equal rights ―― and this is precisely the prevailing social consciousness at that time ; Thus, systems such as apartheid and limited elections can be "taken for granted" in parallel with the declaration of "Equality for all before the law". Later, with the vigorous development of the trade union movement, feminist movement and the civil rights movement of Colored People, the mainstream ideology of the society has fully established the concept of "equality for all". At this time, according to this new value judgment, it is obvious that apartheid is a clear system of unfair distribution. It can be seen that if legislation does not change with the change of social pattern or ideology, it is likely that the distribution of rights and obligations under the law will not be regarded as fair.

In either case, if the legislator finally realizes the conflict and deviation between the current legislation and the social value judgments, and then makes the corresponding adjustment to the legislation, the emergence of new rights will be brought about by the appearance of the corresponding legislation. It is in this sense that we say that "the existence of unfair distribution is the first logical basis for emerging rights."

A. J. M. Milne had asserted that "if the creation of a new right is necessary to eliminate the gap between the de facto legal rights enjoyed by members of society and the legal rights they should enjoy, then they are justified". Here, we might as well put it another way: only the legitimate, and that it can eliminate the gap between the right and the real right, can be identified as the "New Right". Therefore, while the direct-form judgments arising from emerging rights are the provisions of the real law, their indirect-substantive criteria are based on a certain value determined by the basic social pattern and the prevailing ideology. That is to say, a new interest proposition is not a genuine new right as long as the formal recognition of the law is formally established, but it must also be based on the premise that the specific value of a particular society is judged. This is also the subject of J. Habermas's "Right is a social construct", and echoes Karl Marx's famous assertion, "legislators should see themselves as a natural science man." He's not making laws, no.

51due留学教育原创版权郑重声明：原创essay代写范文源自编辑创作，未经官方许可，网站谢绝转载。对于侵权行为，未经同意的情况下，51Due有权追究法律责任。主要业务有essay代写、assignment代写、paper代写服务。

51due为留学生提供最好的essay代写服务，亲们可以进入主页了解和获取更多essay代写范文 提供美国作业代写服务，详情可以咨询我们的客服QQ：800020041。-ZR